ML20215N024
| ML20215N024 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 10/28/1986 |
| From: | Williams F CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | Bechhoefer C, Harbour J, Linenberger G Atomic Safety and Licensing Board Panel |
| References | |
| CON-#486-1326 OL, OM, NUDOCS 8611040182 | |
| Download: ML20215N024 (20) | |
Text
i ISHAM, LINCOLN & BEALE COUNSELORS AT LAW MYEIE[
w.c 1150 CONNECTK:UT AVENUE. N W SUITE 1100 WASHINGT EDWARD S ISHAM.
ac. Ear T tocou..,1.,7,2,-1902 rELE--o~.ON. O C 2003620,.3..no % g }0 P3 :05 maEEnaST~Am ~ u uA WAGO. lLUWIS 60602 WILUAM G BEALE. 1 45-1923 312 558-7500 actuonG aEueo. a sanocTea October 28, lgpp, -
19 8 LASALLE STREET QQQf'f 7 ..-
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- d CHICAGO. ILL.iNOIS 60603 312 55 -5500 Charles Bechhoefer, Esq. Dr. Jerry Harbour Administrative Judge Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing j Board Panel Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555' Gustave A. Linenberger, Jr.
Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: In the Matter of CONSUMERS POWER COMPANY (Midland Plant, Units 1 and 2)
Docket Nos. 50-329 OM & OL and 50-330 OM & OL
Dear Administrative Judges:
I am attaching for your information.two administrative orders which could possibly be relevant to issues currently before the Board by virtue of Consumers Power Company's requests for withdrawal of the operating license application and dismissal of the operating license proceeding.
These orders grant regulatory approvals necessary for proceeding with the project to convert the Midland Energy Center to a gas-fired cogeneration facility. Exhibit A is an
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order from the Economic Regulatory Administration of the Department of Energy granting an exemption from the prohibitions of Title II of the Power Plant and Industrial Fuel Use Act of 1978, 42 U.S.C. S 8301 et seg. Exhibit B is an Opinion and Order from the Michigan Public Service Commission granting Consumers Power Company certain relief 8611040182 861028 PDR O ADOCK 05000329 PDR n
05, N
. October 28, 1986 Page 2 ,.
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from Condition 5 of the Commission's March 29, 1985 rate order. The relief granted allows Consumers to participate in the conversion project subject to the conditions set forth in Appendix A to the Opinion and Order.
Yours truly, , ,
i 1 Frederick C. Williams One of the Attorneys for Consumers Power Company FCW:kls cc: Service List Michael I. Miller, Esq.
Judd Bacon, Esq.
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SERVICE LIST Frank J Kelley, Esq Steve Gadler, Esq Attorney General of the 2120 Carter Avenue State of Michigan St Paul, Minnesota 55108
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Carole Steinberg, Esq Assistant Attorney General Atomic Safety & Licensing Environmental Protection Div Appeal Panel 720 Law Building US Nuclear Regulatory Commission Lansing, MI 48913 Washington, DC 20555 Myron M Cherry, Esq Chief, Docketing & Services Cherry & Flynn US Nuclear Regulatory Commission Suite 3700 Office of the Secretary Three First National Plaza Washington, DC 20555 Chicago, IL 60602 Ms Mary Sinclair Billie Pirner Garde, Esq. 5711 Summerset Street Gcnternment Accountability Project - Midland, MI 48640 Midwest Office 3424 Marcos Iane Anne Ibdgdon Appleton, WI 54911 Joseph Rutberg, Esq. j Decuty Assistant General Counsel-U.S. Nuclear Regulatory Conmission Washington, D.C. 20555 Mr D W Montgomery Babcock & Wilcox PO Box 1260 Atomic Safety & Licensing Lynchburg, VA 24505 Board Panel US Nuclear Regulatory Commission James E Brunner, Esq Washington, DC 20555 Consumers Power Company 212 W Michigan Avenue Ms Barbara Stamiris Jackson, MI 49201 5795 North River Road, Route 3 Freeland, MI 48623 Samuel A Haubold, Esq Kirkland & Ellis Alan S Rosenthal, Chairman 200 East Randolph Drive Atomic Safety & Licensing Chicago, IL 60601 Appeal Panel E/W 532 Thomas S Moore US Nuclear Regulatory Commission Atomic Safety & Licensing Washington, DC 20555 Appeal Panci E/W 532 Mr Gustave A Linenberger, Jr US Nuclear Regulatory Commission Atomic Safety & Licensing Washington, DC 20555 Board Panel US Nuclear Regulatory' Commission Washington, DC 20555 Charles Bechhoefer, Esq Dr Jerry Harbour Atomic Safety & Licensing Atomic Safety & Licensing US Nuclear Regulatory Commission Board Panel Washington, DC 20555 US Nuclear Regulatory Commission Washington, DC 20555
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DEPARTMENT OF ENERGY I Economic Regulatory Administration (Docket No. ERA C&E 86-50; OFP Case No. 61063-9326-20 thru 31-22)
Order Granting to Consumers Power Company Exemptions i from the Prohibitions of the Powerplant and Industrial Fuel Use Act of 1978 AGENCY: Economic Regulatory' Administration, DOE ACTION: Order Granting Exemption
SUMMARY
- The Economic Regulatory Administration (ERA)-of the j Department of Energy (DOE) hereby gives notice that it has granted a permanent exemption from the prohibitions of Title II of the Powerplant and Industrial Fuel Use Act of 1978, 42 U.S.C.
4 58301 et seq. ("FUA" or "the Act") to Consumers Power Company (Cor.sumers or "the petitioner") . The permanent exemption permits the use of natural gas as the primary energy source for twelve combined cycle turbine generators to be installed at their Midland, Michigan, powerplant based on the lack of an alternate fuel supply at a cost which does not substantially exceed the cost of using imported petroluem. The final exemption order and detailed information on the proceeding are'provided in the SUPPLEMENTARY INFORMATION SECTION, below.
DATES: The order shall take effect on (the 60th day following
, publication of this notice in the Federal Register.)
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The public file containing a copy of the order, other documents, and supporting materials on th'is proceeding is available upon request through DOE- Freedom of Information Reading Room, 1000 Independence Avenue, SW, Room lE-190, Washington, D.C. 20585, Monday through Friday, 9:00 a.m. to 4:00 p.m., except Federal holidays.
I FOR FURTHER INFORMATION CONTACT:
Ellen Russell Office of Fuels Programs Economic Regulatory Administration 1000 Independence Avenue, SW Room GA-093 Washington, D.C. 20585 Telephone: (202) 252-9624 Steven E. Ferguson, Esq.
Office of General Counsel Department of Energy Forrestal Building, Room 6A-ll3 1000 Independence Avenue, SW Washington, D.C. 20585 Telephone: (202) 252-6947 SUPPLEMENTARY INFORMATION: On July 29, 1986, Consumers petitioned ERA under section 212 of FUA and 10 CFR 5503.32 for a permanent exemption to permit the use of natural gas in twelve new. combined cycle gas turbine generators. The petition for exemption is based on the lack of an alternate fuel supply at a cost which does not substantially exceed the cost of using imported petroleum.
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3 NEPA COMPLIANCE:
Af ter review of the petitioner's environmental impact analysis, together with other relevant information, ERA has determined that the granting of the requested exemption does not constitute a major Federal action significantly affecting the quality of the human environment within the meaning of Section IO2(2)(c) of the National Environmental Policy Act (NEPA).
/ PROCEDURAL REQUIREMENTS:
! In accordance with the procedural requirements of section 701(c) of FUA and 10 CFR 5501.3(b), ERA published its Notice of Accep-tance of Petition and Availability of Certification in the Federal Register on July 29, 1986 (51 FR 27073), commencing a 45-day pub.lic comment period which was extended an additional 30 days on September 9, 198 6 ( 51 FR 3 28 26 ) .
A copy of the petition was provided to the Environmental Protection Agency for comments as required by section 701(f) of the Act.
During the comment period, interested persons were afforded an opportunity to request a public hearing. No comments were received and no hearing was requested.
ORDER GRANTING PERMANENT EXEMPTION:
Based upon the entire record of this proceeding, ERA has determined that Consumers has satisfied the eligibility require-ments for the requested permanent exemption, as set forth in l
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10 CFR 5503.32(b). Therefore, pursuant to section 212 of FUA, ERA hereby grants a permanent exemption to Consumers to permit the use of natural gas as the primary energy source for the combined cycle trubine generators to be installed at its l Midland, Michigan powerplant.
Pursuant to section 702(c) of the Act and 10 CFR 5501.69 l
any person aggrieved by this order may petition for judicial review thereof at any time before the 60th day following the publication of this order in the Federal Register.
2 Issued in Washington, D.C. on October /I 1986,
( Robert L. Davies
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Director Office of Fuels Program Economic Regulatory Administration
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l STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the satter of tne application of
)
CONSUMEAS POWER COMPANY for authority )
to increase electrici ty. its rates ~ for the sale of ) Case No. U-7830 (Step 3A)
In the matter of the application of ~)
CONSUMERS POWER COMPANY for authority )
)
to increase electrici ty. its cates for tne sale of ) Case No. U-7830 (Midland Step 38)
)
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In the matter of CONSUMERS POWER COMPANY's 1985 compliance filing applicable to financial stabilization. Case No. U-9431
)
At a session of the Michigan Public Service Commission held .
at it's offices in the city of Lansing, Michigan, on the 22nd day of October
, 1986.
PRESENT:
Hon. William E. Long, Chairperson Hon. Edwyna G. Anderson Commissioner Hon. Matthew E. McLogan,, Commissioner OPINION AND ORDER On April 8,1986 Consumers Power Company (Consumers) filed a M otion for Relief from Condition 5 af the Commission's ,1985 orderMarch 29 '
in Consumers Case No. U 7930 (Midland Step 3A).
This order concerns that mtion and the fol- !
lowing docurr. cati filed by Attorney General Frank J
. Kelley (Attorney General):
two petitions to reopen the record in the company's Case N p1fcation o. U-8431 ano an Ap-for Leeve to Appeal and Motion to Adjourn Case No Step 38). . U-7830 (Midlano RECEIVED j
in:T 231986 C.P.Co, M
On Septanoer 16, 1986, the Attorney General filed a pleading entitled t
"Att'orney General's Application to Reopen Hearing for Consideration of Ste Transcript:
Wigmore and McCormick to Serve." On September 23, 1986, Consumers
! filed a response to the pleading. **
The essence of the Attorney General's September 16, 1986 pleading is tnat the recent testimorty of two witnesses for Consumers in the currently-pending application for rate relief in Case No. U-7830 (Midland Step 38) contradicts the ,
claim of Consumers in Case No. U-8431 that the expenditure of S50 million for i the proposed Midland conversion project will not jeopardize its financial stabi-lization. Specifically, the Attorney General contends that the testimony of William McCormick and Barry Wigmore in the Step 38 proceeding suggests that I Consumers muld be unable to fund the proposed Midland conversion project while at the same time providing adequate service to its customers. '
On September 23, 1986 Attorney General Frank J. Kelley (Attorney General) flied a Motion to Adjourn Case No. U-7830, Step 38, and an Application to Roopen Case No. U-8431, the stated reason being Consumers' recently-announced agreemen with Dow Chemical Company (Dow) concerning the conversion of the proposed Mid-land power plant to a cogeneration facility. The Attorney General contends tnat the September 17, 1986 announcement of Consumers and Dow regarding agreement in principle to convert Midland to a natural gas combined-cycle cogeneration plant raises a number of questions,' including: What properties are involved; what costs are to be allocated to jurisdictional electric customers; what Condition 5 relief is appropriate; and, to what extent will the rates associated with the project be subject to federal preemption. Noting that the announcement came in j the form of a press release, the Attorney General seeks adjournment of the Step l j
JB litigation and the reopening of Case No. U-8431 to consider these questions.
b Page 2 U-7830 U-8431 (Steps 3A and 38) r l
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In support of this contention, the Attorney General cites the fact that uncer the agreement in principle, there would no longer be any plant neld for future use and Consumers' proposal in Ste;' 3B to increase rates for that purpose should be stricken froin the application. In addition, tne Attorney General alleges that the cogeneration project would, according to Consumers' own press statements, result in a rate increase of $400 million per year beginning with the year of operation. The Attorney General also alleges that the premise for Consumers' request to lift Condition 5 may no longer be operative. In this re-gard, the Attorney General maintains that it is unclear as to what amounts Con.
sumers is expected to put into the project and what a lifting of Condition 5 would permit.
- Finally, the Attorney General contends that pursuant to case law the Com-mission may not be in a position to assert jurisdiction to determine the reason-ableness of Consumers' power sales contracts if it approves tne wholesale agreement. Specifically, the Attorney General cites the case of Nantahala Power y Light Co. , et al. v T4ornburg, Attorney General of North Carolina, et al .,106 S. Ct. 2349, to support his argument.
On September 29, 1986 Consumers filed an answer to the Attorney General's September 23, 1986 Application to Reopen Case No. U-8431. Consumers al so indi-cated that it was filing a separate response to the Motion to Adjourn Case No.
U-7830, Midland Step 38. Also on September 29, 1986, the Attorney General filed, in Case No. U-7830 (Midland Step 38), an Application for leave to Appeal the Administrative Law Judge's (ALJ) ruling of September 23, 1986 which ne al-leges denied the Attorney General's motion to adjourn Step 38.
On October 6,1986, Consumers filed an answer to the Septemoer 29, 1986 filing of the Attorney General. On October 14, 1986, the Association of Busi-page 3 U-783 (Steps 3A and 38)
U-843
nesses Advocating Tariff Equity (ABATE) filed an answer to the September 23, 1986 Appilcation to Reopen. On October 15, 1986, the Attorney General filed a reply to Consumers' September 29, 1986 answer.1 In its answer to the Application to Reopen, Consumers ' indicates that tne only arguably relevant evidence that might be offered by the Attorney General would relate to the possibility that the company might spend less money on the proposed Cogeneration project than that anticipated in its originally proposed gas conversion project. Consumers clafas that since it believes that it has demonstrated that it could spend $50 million without jeopardizing it's financial stability, any evidence adduced by the Attorney General would be cumulative and l
therefore not cause for reopening the hearing under Rule 51 of the Comission's Rules of Practice and Procedure. ,
l In effect, Consumers agrees with the Attorney General that the agreement in principle with Dow results in less expenditures by Consumers than originally anticipated. Therefore, Consumers states, it is willing to comit to a 550 mil-
. lion cap on its expenditures for the project, and Consumers further comits in its answer that this 550 million would not come from " ratepayer funds." In addition, Consumers has agreed to undertake several obligations in an effort to simplify issues and avoid controversy, thus avoiding the need for a rehearing.
These proffered undertatings include: the continued adherence to the repayment t
- or retirement of 51.9 billion in fixed obligations; a commitment not to request present or future rate increases to support construction of the cogeneration project; a commitment not to seek rate base or cost of service treatment for the I The Comission's Rules of Practice and Procedure do not provide for replies to v answers to petitions to reopen. However, due to the nature of the allegations,
- the Commission will address the merits of the reply.
! Page 4 g(Steps 3Aand38)
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l project beyond the recovery of power purchases uncer 1982 PA 304 or other appli-cable law; and commitments to report future expenditures in the annual compli-ance nearing and to obtain permission to make further expenditures at Midland from the , banks involved in the credit agreements.
Witn respect to the Attorney General's assertion that federal law may serve to preempt any Commission jurisdiction over power sales contracts Consumers attempts to distinguish the case law relied on by the Attorney General.
In its answer to the Attorney General's September 23, 1986 Application to 1 Reopen, ABATE contends that Consumers has submitted "new evidence" to the Com-mission in its answer and the Commission should not rely on such evidence with-out affording the parties a new hearing.
In its reply to Consumers' Septemeer 29, 1986 answer, the Attorney General contends tnat Consumers is now requesting relief from Condition 5 for an entice-ly different purpose than that for which relief was originally sought.and upon which the hearings in Case No. U-8431 were conducted. The Attorney General questions the value of assurances made by Consumers in its answer and asserts tnat Consumers . should finalize its plans for the Midland project, obtain the l necessary approvals, and submit to an evidentiary hearing before relief from Condition 5 can be granted. The Attorney General suggests that it might not be necessary for Consumers to obtain relief from condition 5 f f the Midland facil-ity is constructed without expenditures by Consumers.
The requests to adjourn Step 38 will not be addressed at this time eecause a review of the record discloses that the ALJ has taken the motion before him under advisement, not dismissed it. As the Commission repeatedly has indicated in connection with the Step 38 hearings, tne ALJ should be afforded broad dis- l crecien on scheduling matters. The Commission is not persuaded that leave to page 5 U.7830 (Steps 3A and 38)
y appeal should be granted prior to receiving the considered judgment of tr.e ALJ.
! With regard to the Attorney General's September 16, 1986 pleading, tne Com-mission's Rule 51 concerns the reopening of a proceeding and requires a peti-tioner to demonstrate good cause for the failure to pr duce the proffered evidence at the original hearing. The Attorney General nas not attempted to explain why.the alleged contradictions could not have been explored during the hearings in Case No.. U-8431, particularly since the witnesses were available for cross-examination and Mr. McCormick was, in fact, cross-examined.
I Moreover, Consumers' answer to the Application to Roopen Case No. U-8431 I filed by the Attorney General on September 23, 1986 alleviates any concern the Commission might have had with the alleged contradictions, had they been proper-ly before the Ceaunission. Specifically, Consumers' pledge to spend no more than
$50 stilton not derived from " ratepayer funds" on the proposed cogeneration y project insures against the expenditure of dollars that would otherwise be l l
available to provide and maintain adequate service. The answer also renders moot the Attorney General's Appilcation for Leave to Appeal filed on July 22, ,
1986.
i i With regard to the September 23, 1986 Application to Reopen Case No.
U-8431, it is important to review. the Commission's intentions concerning the initial decision to conduct a hearing. idhen the Commission issued its June 17, 1984 order, it raised two specific concerns: )
- 1. How does Consumers propose to remain in compliance with the March 29,1985 order, remain solvent and continue toward financial health, while undertaking and financing a major construction program, or even canonitting funds for planning and engineering such a program, one that was not envisioned by any party's assumptions in Step 3A?
- 2. Consumers' reply comments appear to assert that it will' l use ratepayer-supplied funds for at least engineering studies on the Midland plant, a purpose unintended for V Step 3A revenues. It is a premise of the March 29, 1985 f/N38(steps 3Aand38) -
U-8431 -
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order that every dollar of Step 3A rste relief woulc be needed to achieve financial stability and tnat Consumers would even need to reduce normal operating and mainten-ance and construction budgets to provide funds for finan-cial stabilization. Can Consumers' current position ce reconciled with what the Commission states is the clear premise of the March 29, 1985 order?
Despite the fact that the evidence in Case No. U-8431 was developed before Con-sumers' September 17, 1986 announcement, and the fact that the project now being proposed has substantially changed, the Commission's concerns now are the same as they were on June 17, 1986, outlined above. The Commission is still cen-corned about whether there is a threat to financial stability by Consumers' in- i volvement in any new proposed construction project.
The answer filed by consumers on Septenber 29, 1986 attempts to address this long-standing Commission concern. However, as ABATE and the Attorney Gen-eral point out, the answer contains "new evidence" that may not be properly be- j fore the Connission. Much of the ngw evidence deals with assurances Consumers sets forth as a result of the change in the project being proposed. What ABATE and the Attorney General overlook is the fact that the project of type of proj-ect is not the issue before the Commission but, rather, it is the expenditure of ratepayer funds and continued compliance with the March 29, 1985 order as ex-pressed in the two concerns stated above. In Case No. U-8431, Consumers attempted to demonstrate that it would not use Step 3A revenues to pay for con-struction of the Midland project. The Commission has reviewed the record in that case and concludes that if Consumers were to spend, directly or indirectly, jurisdictional revenues for construction at Midland, it would be contrary to the i
letter, spirit and purpose of the Step 3A order. Therefore, the restriction within Condition 5 against such spending remains in effect. Because we find that Consumers cannot spend jurisdictional revenues at Midland, the question of page 1 U-7830 4
U-8431 (Steps 3A and 38)
whether Consumers would jeopardize financial stability by the expenditure of ratepayer funds is moot. Accordingly, the evidence on that issue need not be addressed in this order.
The remaining question requiring an answer from the [onumission is tnis:
May construction at Midland be resumed? Ide find that so long as Consumers does not spend jurisdictional revenues -in such an endeavor, construction at Midland may be undgetaken. This view appears to be in accord with the Attorney Gen-eral's statement that relief from Condition 5 may not be necessary if such revenues are not used. The Commission's finding that Consumers may resume con-struction is limited to the determination that a construction program in which the company suponds no jurisdictional revenues cannot in. jure the company's financial health and therefore is consistent with the criteria which led to the Step 3A order. Consumers must remain in compliance with both the letter and the f y spirit of the Step 3A order and its attendant restrictions. This finding may 4
not be cited by Consumers or others as Commission approval, authorization or support for such a project or a determination that it is prudent, as such is not before us. Since it was the Commission's concern about Consumers' financial health that led to the Step 3A order and, specifically, Condition 5, the Co. mis-sion is in the best position to deterstne whether its finding tnat construction can resume. violates the spirit of that order.
The September 29, 1988 ans'wer of Consumers, although not a part of the evi-dentiary. reterd, constitutes the defaulting of a position previcusly held by a party, which is recognized by Section 78 of the Administrative Procedures Act of 1969 as an acceptable method for disposition of a contested matter. The Comis-
. sion considers the undertakings proposed by Consumers in paragraph 19 of its September 29, 1986 answer (Attachment A to this order) to provide protection for V
Page 8 g, g (Steps 3A and 38)
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Consumers' ratepayers (including ABATE members) against the furtner erosion of financial stability that was feared when Condition 5 was created. These volun-teered undertakings will be considered binding on Consumers.
The Commission has received comments and conducted a full evidentiary near-ing on Consumers' Motion for Relief from condition 5. . Consumers has now, after the close of the record, reversed its earlier position' that ratepayer revenues would be used to construct the Midland oroject. Had this new position- Deen known to the Commission earlier, evidentiary hearings would not have been re-quired. To order additional hearings at this time would be akin to requiring a party in a civil actior, to prove in trial a matter conceded by the party during pre-trial statements.
Despite the decision not to order new hearings, the Com-1 mission is disturbed by the fact that substantial changes have occurred in the l
assumptions underlying several applications filed by Consumers, and it is through press statements cited by other parties that the Commission was formally notified of these changes.
Finally, with respect to the issue of federal preemption, the Connission I
does not need to address the various arguments regarding the Attorney General's reliance on Nantahala Power, supra. Suffice it to say, a reopening of Case No.
U-84M would not enhance the Commissicn's understanding of the case law. It is tne Commission's firm belief that it will be able to continue to review any and all contracts for the purchase of power by Consumers for reasonableness and pru-dance. If, as the Attorney General asserts, the cost of power from the proposed project is in excess of reasonable alte'rnatives, there will be appropriate pro -
ceedings in which the Commission will address the matter, including proceedings conducted pursuant to 1982 PA 304 The Commission is not, in any way, approving any agreement by its action today and indeed, as ASATE notes, no such agreement 1
l page 9 g g (Steps 3A and 38) l 1
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has been presented for Comeission review. The case cited by the Attorney Gener-9 al is, therefore, inapposite.
i The Commission FINOS that: .-
- a. . Jurisdiction is pursuant to 1909 PA 106 as amended. MCLA 460.551 et seq.; 1919 PA 419, as amended, MCLA 460.51 et seq.'; 1939 PA 3. as amended.
MCLA 460.1 et' seq.; 1969 PA 306, as amended MCLA 24.201 et seq.; and the Commission's Ru'les of Practice and Procedure,1979 Administrative Code. A 460.11 et seq.
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- b. Consumers' Motion for Relief from Condition 5 should be decided at this time without further proceedings and without reopening the record.
- c. Condition 5 should remain in effect and should not be lifted or waived.
- d. It we'uld not constitute a violation of Condition 5 if Consumers were to ,
i be involved in a construction project that did not require the expenditure of V jurisdictionai revenues.
THEREFORE,.If !$ GROERED that:
A. The Attorney General's two Applications to Reopen the record in Case No. U-8431 are denied and the Motion to Adjourn Case No. U-7830 (Midland Step
- 38) will be held in abeyance pending review of the ruling of the Administrative Law Judge, which has not been made to date. -
- 8. The Motion for Relief from condition 5 filed by consumers Power Company i is denied to the outent that it requests approvat to use jurisdictional revenues for a constrvction project at Midland. l C. The Motion for Relief from Condition 5 filed by Consumers Power Company ,
) is granted to the extent that it involves the participation of Consumers Power 1
Company in a construction pro. ject that comports with the undertakings set forth 1 i
I b in Attachment A to this order.
l Page U-783010(Steps 3A and 38)
U-8431 .
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1 Tne Commission specifically reserves jurisdiction of the matters nerein contained and the authority to issue such fur'ther order er orders as tre facts and circumstances may require.
Any party desiring to appeal this order must perfect an appeal *o the Ingnam County Circuit Court witnin 30 days after issuance and notice of tnis order, pursuant to MCLA a62.26.
- MICHIGAN pUBLIC SERVICE COMMISSICN
/s/ William E. Long Chairperson (5EAL) /s/ Edwyna G. Anderson Conuniss1oner
/s/ Matthew E. McLocan Comissioner By the Comission and pursuant to its action of October 22. 1986.
/s/ Bruce R. Mauchan Its Secretary Page 11 p, g (Steps 3A and 38) l 1
s ATTACHftENT A 1
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- 19. In summary, in an effort to simplify issues, avoid controversy and permit the consission to expeditiously grant the Company relief free Condition 5 without further hearings or proceedings, the preceding paragraphs naabered 9 through 13 of this Anower indicats the following undertakings by ,
Consumere Power if the cogeneration project sees forward as planned (i) Acceptance of a $50 million " cap" if relief from Condition 5 is granted (as per Paragraph 10):
(ii) Continued adherence to repayment or retirement of
$1.9 billion of fixed obligatione (as per Paragraph 12):
(iii) No present or future rate increase request to support construction of the cogeneration project (as per Paragraph 13);
I (iv) Except for seeking recovery for the cost of power purchases from the cogeneration project pursuant to 1942 PA 304 and other applicable law. upon completion and commercial operation no future este increase request for rate base or cost of service treataset l for the cogeneration project (as per Paragraph 14); .
1 (v) ruture reporting on Consumers Power's expenditures I for Midland construction to enable scrutiny of 1 whether financial stabilization continues (as per Paragraph 15)
BR0986-C028A-LE15 1
V (vi) Obtaining The cash for the expenditure of up to
$50 millica from "neareLepayer funde" (as per Paragraph 16)I and ,.
(vii) Obtaisias peralseios from the RCA and RCAFA banks to aska expenditures for restarting Midland construction i (as'per Paragraph 17). I WEREFORE. Cessumere Power Company' prays that this Commission deny the Attorney Gemarel's Application to Reopen in its entirety and promptly !
I grant the Ceapany's Motica for Relief so that the cogeneration project might
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go forward without andas delay. '
. . Respeetfally owheitted, COW 3UNERS POWER CONpANT September 29, 1984 y /s/ David A. Mikelosis 4
Vice Frosident and General Attorney I
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