ML18227D526

Motion to Lodge Documents

ML18227D526
Person / Time
Site:	Saint Lucie, Turkey Point
Issue date:	10/25/1977
From:	Guttman D, Jablon R Florida Cities, Spiegel & McDiarmid
To:	NRC/OCM
References
Download: ML18227D526 (13)

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NUCLEAR REGULATORY COHHISSION In the Hatter of:

Florida Power & Light Company, ) Docket Nos. 50-335A (St. Lucie Plant, Unit Nos. 1 & 2) ) 50-389A

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Florida Power & Light Company, ) Docket Nos. 50-250A (Turkey Point Plant, Unit Nos. 3 &4) ) ~S3X

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HOTION TO LODGE DOCKKNTS Pursuant to Rules 2. 701, 2. 714, 2. 730 and 2. 206 of the Commissionules of Practice and Procedure, the Ft. Pierce Utilities Authority of the City of Ft. Pierce, the Gainesville-Alachua County Regional Electric, Water and Sewer Utilities, the Lake Worth Utilities Authority, the Utilities Commission of the City of New Smyrna Beach, the Orlando Utilities Commission, the Sebring Utilities Commission, and the Cities of Alachua, Bartow, Ft. Heade, Key West, Hount Dora, Newberry, St. Cloud and Tallahassee, Florida, and the Florida Hunicipal Utilities Association ("Cities" ), intervenors in the above-captioned proceedings, respectfully request that certain documents be permitted to be lodged with the Commission and made part of the decisional. record.

On behalf of this Hotion, Cities state as follows:

At least since August 9, 1976, 1/ when they filed intervention 1/ In the context of tha South Dade units (Florida Power & li (South Dade Plant), Docket So. P-636-A), these factual allegations were raised ht Con an earlier (April 14, 1976). Relief was requested relating to these plants.

However, Florida Cities hoped for some sort of preliminary settlement discussions before seeking further formal Commission action. "Joint Petition of Florida Citi"s For Leave to Intervene and Request for Conference a'nd Hearing," Docket No. P-636-A, pp. 69-73. It was requested that this joint petition be filed in both Docket Nos.

P-636-A and 50-3S9A.

petitions, Florida Cities have raised issues of serious antitrust abuse by FP&L in the above dockets. In Docket No. 50-389A, a licensing board has granted late intervention, but denied intervention in Docket Nos.

50-335A, 50-250A and 50-251A on grounds of want of authority. These rulings were affirmed by the Appeals Boards and are before the Commission on petitions for review. 1/ The fact is that serious claims of antitrust abuse of NRC licenses (or potential abuse of proposed NRC licenses) made well over a year ago still have not been addressed on their merits.

Florida Cities believe it would serve no useful purpose to attempt to generall.

supplement the record at this time to include a-detailing of continued'efusals to deal by FP&L.

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However, on or about October 14, 1977, FP&L filed proposed wholesale rate tariffs at the Federal Energy Regulatory Commission, which they are obligated to call to the attention of the Commission. The tariff states 1/ Florida Cities do not cite the full procedural record. The petitions before the Commission for review were filed in Docket No. 50-389A by FP&L on July 25, 1977, and in Docket Nos. 50-335A, et al. by Florida Cities. on September.8, 1977,.

The petition in Docket No. 50-389A was granted by Order, October 19, 1977.

as follows:

"Sale for Resale Florida Power & Light Total Requirements Company, FPC Electric Rate Schedule -- SR-2 Tariff, Original Volume No. 1, Fourth Revised AVAILABLE: Sheet No. 5.

To electric service presently being supplied at point(s) of delivery for total power requirements of electric utility systems for their own use or for resale. Such electric utility systems are Clay Electric Cooperative, Inc., Glades Electric Cooperative, Inc., Lee County Electric Cooperative, Inc.,

Okefenoke Rural Electric Hembership Corporation, Peace River Electric Cooperative, Inc. and Suwannee Valley Electric Cooperative, Inc. This schedule shall not apply as substitute or re lacement ower to a eneratin utilit system for which interchan,e owe a reements are available or to which Sale for Resale Partial Requirements Rate Schedules PR is applicable." (Emphasis supplied).

"Sale for Resale Second Revised Sheet Total Requirements No. 7.

Rate Schedule PR AVAILABLE:

To electric service supplied to electric utility systems for their partial power requirements at any point of delivery'to'com lement the insufficient eneratin ca acit and/or firm ower urchases of such systems for their own use or for resale.. Such systems are Florida Keys Electric Cooperative Association, Inc., Utilities Commission of the City of New Smyrna Beach, Florida, and the City of Starke, Florida. This schedule shall not ap 1 'as substitute or replacement ower to a generatin utility s stem'for'which'full service interchange power agreements are ap licable." (Emphasis supplied).

Whatever the legality or acceptability of these proposed tariffs may be under the Federal Power Act, they conclusively show the following facts:

1) FP&L refuses to sell total requirements wholesale power to new customers.

2) FP&L refuses to sell wholesale power to systems having genera-tion except to replace "insufficient capacity;" and

3) FP&L will not permit a "full service interchange power agreement" for systems purchasing wholesale power.

These tariff changes would prevent the potential sale of

wholesale electri'city to nearly every municipal system in Florida.

For reasons stated in Cities'etitions to intervene, such refusals to deal plainly violate antitrust law and policy as well as historic service obligations. E.g., Otter Tail Power Co. v. United States,'10 U.S. 366 (1973).

They present immediate concerns with regard to the responsibilities of the Nuclear Pegulatory Commission. Under normal circumstances, it would be presumed that a licensee or proposed licensee of this Commission would at the very least disseminate the benefits of nuclear power through normal sales of electricity. See Atomic Energy Act, 53, 42 U.S.C. 52013. FP&L would deny such benefits to residents of municipal systems. Other documents demonstrate FP&L's policy is to sell firm power onl where it can sell at retail, plainly

'n act of monopolization as well as an unlawful tie-in sale.

FP&L is using the economic advantages from its licensed and proposed nuclear plants to retain and expand its retail service market.

Based upon its nuclear advantage, it actively seeks to take over the Vero Beach electric system, independent since 1922, and has suggested the sale of other systems. Yet by its FERC filing it would deny the sale of wholesale power, with the inevitable result of encouraging others to sell their systems as the only way to participate in nuclear benefits.

This issue is not abstract. The Ft. Pierce Utilities Authority has requested to purchase wholesale power at potentially great cost savings.

FP&L refuses. Ft. Pierce, located adjacent to Vero Beach, has had discussions with FP&L concerning FP&L's purchase of its system. Moreover, the intervenor group has specifically requested the right to purchase wholesale power as part of a settlement proposal (which includes other terms).

Apart from any other allegations, intervenors respectfully submit that this new refusal to deal in basic services mandates Commission action.

Moreover, additional documents not previously available have come to light demonstrating FP&L's awareness that deprivation of nuclear availability to Florida Cities is hurtful to the Cities.

In the context of Florida Power & Li ht Com an , Federal Energy Regulatory Commission Docket No. E-9574, Florida Power & Light Company, applicant here, has made available to staff and parties certain documents relating to that proceeding, some of which have been proposed as exhibits.

The documents show motivation by FP&L to limit Florida Cities'ompetitive opportunities, including access to nuclear power.

Florida Cities believe that they have supported a grant of inter-vention and hearing fully. They therefore request that the Commission review the proposed supplementary evidence only if it were inclined to deny intervention and hearing. They do believe that the abuse of HRC licenses and antitrust

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principles shown by these documents are so plain that the Commission must consider these documents and take ameliorative action as a result of this evidence, even if it were inclined otherwise to rule against Florida Cities.

Examples of such documents are attached. They include:

Document 0280954, et. sece. This document provides an April 8,'1976 summary of . major financial consideratio'ns for FPL in the development of cooperative nuclear power plants, showing anticompetitive intent. These considerations include the proposition that it would probably be best if FPL did not have any ownership interest in the plant. 1/

Document 8280958, et. sece. apparently prepared in July, 1976, in relation to an FPL management meeting on implications for FPL of recent developments in competitive relations. As stated at page 10 of 13, FPL may have contemplated that a shift to coal would eliminate the Atomic Energy Act as a route to municipals'nvestment 'in generationj 1/ The document should be read in conjunction with FP&L's contemporaneous March 30, 1977 letter refusing Florida Cities'articipation in the proposed FP&L South Dade Nuclear Unit, but stating FP&L "would consider being part of a joint venture to construct a nuclear facility somewhere in the Central Florida area so as to be conveniently located for potential participants.

Such a project would be a true joint venture from its initial inception through completion and would require full commitments of all participants commencing with the planning stages." Many Cities considered such project in good faith, but FP&L ultimately requested public funds be spent on the project without its being willing to consider or agree to discuss provision arrangements crucial to the economics of the unit, even including provision of nuclear fuel, transmission and back-up. Document '/I280954 clearly shows that from its inception, Fp&L recognized the joint venture form of the proposal would make the project difficult to finance for the municipals,-but it proposed that form anyway, while resisting support for legislation to allow for a joint ac;cncy.

thereby underscoring the major thrust of the document: that municipals should be prevented or limited from achieving practical access to nuclear generation. FP&L further designates 'the municipals-co-operative strategy to obtain statewide generation, planning, multiple-unit sharing, and full coordination. FP&L's response: FPL ma not be able to com ete if'municipals and co-operatives can gain access to generation investment with their low-cost capital. Municipals presently having franchises with FPL will be encouraged to go public, showing'its intent to limit competition.

Document //242627, a February, 1974 memorandum indicating a desire to limit wheeling access to the proposed 500 Kv line (between Florida and Georgia) to "systems fully regulated by the FPSC. (Florida Public Service Commission), thereby preventing or limiting transmission access to municipals.

Document Pi254384, et. ~se ., relating to interconnection negotiations between FP&L and Homestead in 1973. These documents reveal FP&L's desire to offset the demand for wheeling as well as avoid a long-term Firm Power commitment. (Document 8270832).

Document P281505, et. ~se ., entitled Strategic Planning Department, Policy Planning Background Paper, Strategic Issues in Inter-Utility Relations. Pages 13-14 of this document bear the headings

'Strategic Summary Interconnections Joint Ventures. It shows specific intent to avoid the sale of wholesale power, thereby restricting nuclear benefits. 1/

1/ As stated above, FP&L has, for example, most recently responded negatively to proposals to purchase wholesale power by th Ft. Pierce Utility Au thori ty.

Document /r'273006, a December 5, 1975 memorandum from FP&L Vice President E.L. Bivans to FP&L official K.'S. Buchanan. The memo expresses Nr. Bivan's concern that proposed interconnections with Tampa Electric Company and Florida Power Corporation provide for wheeling power at 'universal postage stamp rates.'ocument

//212164, et. ~se ., entitled Guidelines, for Power Generation from 1funicipal Haste Systems. The principal value in FP&L's participation is said to include deter the competitive threat of municipal generation.

In view of the passage of time and these new .evidences of anti-competitive activities, Florida Cities request permission to supplement their petition to intervene. Specifically, they request that this motion be considered in part of the records in these cases and that they be allowed to file 1) the above referred to documents, including correspondence concerning the Central Florida Unit, refusals to deal with Ft. Pierce, and possible settle-ment and 2) the testimony of Dr. Taylor.

Florida Cities gave FP&L advance notice of this motion. Although Florida C'ies know of no basis for such request, Florida Cities were requested not to lodge the documents referr'ed to with the motion. They therefore refrain from doing so to allow time for Commission ruling, but respectfully request that the Commiss.on allow the documents to be lodged and made part of the record. Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608

I (2d Cir. 1965), cert. den. sub nom. Consolidated Edison Co. of New .York v.

I Scenic Hudson Preservation Conference, 384 U.S. 941 (1966) .

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Respectfully submitted,

'obert A Jablon I

. Daniel Guttman, for the Ft..Pierce Utilities:

'ttorneys Authority of the City of Ft. Pierce,

~ ~C the. Gainesville-Alzchua County'egional .

Electric Water and Sewer Utilities, the Lake-Worth Utilities Authority, the Utilities Commission of the City of New

'.Smyr'na Beach, the Orlando Utilities, Commission, the Sebiing Utilities Commissio:

"and the Cities of Alachua, Bartow, Ft. Meadc Key West, Mount Dora, Newberry, St. Cloud and Tallahassee, Florida, and the Florida

~ Municipal Utilities Association C

October 25, 1977 Law Offices of:

Spiegel & McDiarmid 2600 Virginia Avenue, N.W.

Washington, D.C. 20037 202-333-4500 1 4 ~

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'ERTXPZCATE OP SERVICE X hereby certi v that Z have this day causea he forego'ng document to be servea upon the ollowing persons:

Nillial C 'Tise ( Esq Linda. L. Hedge, Esc.

Robert Hei r hera ( =sa, '. Lowenstein, Ne'.man, Re s Suite 200 ~

& Axelrad 1019 19th Stre t, N.bT. 1025 Connect: cu Avenue, H.N.

Na hirg" on, D. C. 20036 washington, D.C. 20036 william H. Cllandler, Esa. ' .' Lee Scott Dewey, Esc.

Chancier, O'Heal, Avera, Gray, Of ice .of Executive Legal

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Lang & Stripling

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" .' Director

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P.O. Drawe 0 '- Nuc>-~ar ~~gu~ ato~z Co~ssio=.

'ainesville, >>lor'a

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32601 ' 'ashina on, D.C. 20555

'..'.",-'..~.:... -.: Chic, Docketing and Sera ice

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David. A. Lec..ie, Esq Antitrust. Division Depart nt of. Justice

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"=-';.:,.-"..., .....Office of the Secreta~)

~,1101"'ennsy vania Avenue; N.>7.. '-...-.:-.:.; .:: Nuclear Reaulatory Cor.=-.'sio;.

'washington, D.C. 20530 -.'.. ..' 'ashington, D.C. 20555

, Rober" H.. Culp, sa. ..:...'..." - Xvan N. Smi ~h, Esa.

'owenstein,

& Axelrad Newman; Reis

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1025 Co..necticut Avenue, N.

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Atomic Safety & L'ens'ng"

'ucle'a Board Panel Regula o~'o..;.=.'s Mashi.".gton, D.C. 20036 . '.

washington, D.C. 20555 Tracy Da..ese, Esa. John i~j, Prussia<( Esq Vic Pres'dent, Public Affa'rs ~

Atomic Safety & Lic ..sing Plorida Power & Light Company ~

Board Panel P.O. Box 013100 .Nuclear Regulatory Co-.;.'ss'c.".

Him'; Florida 33101 Nashington, D.C. 20555 E. :<athews, Jr., Esa. Robert H. Lazo, Esc.

Hathews( Osborne( Ehrlic 1( Atom'c Sa, etv & L'censing a'John i~icNatt, Cobelman & Cobb Boara Panel 150 0 American Heritage Life Blcg. Nuclear Regulatory Coo. ,-ss'c.".

Jacksonville, = loriaa 32202 Hashirgton, D. C. 20555 J. A. Bou>niah", Jr., Esa. Chief, l~titrust/Knee-;. ni .- Gr.

Lowenstein, He~i an( Reis Office of Nuclea- R ac o=

& Axel ad 'egulation

. 1025 Conrec icut Avenue, N.'rT. Huclea Regulator/ Coo.,a =sion Washington, D-C. 20036 Mashington, D.C. 20555 Dated at Washington, D.C. th's '25 th cav of October(

1977.

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