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{{#Wiki_filter:UNXTED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00cypp~~~sivgo~~ot f$p g Zn the Matter of FLORIDA POWER&LIGHT COMPANY (St.Lucie Plant, Unit No.2)I).)))))Docket No.50-389@PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING'Parsons&Whittemore, Inc.(P&W)and Resources Recovery (Dade County), Inc.(RRD)petition for leave to intervene in this construction licensing proceeding and request the Commission to hold a limited antitrust hearing.On April 7, 1981, we petitioned for leave to intervene and requested an antitrust hearing in the companion operating licensing proceeding.
{{#Wiki_filter:00cypp~~
That petition responded to a notice of application from Florida Power&Light Company (FP&L)which had been published in the II Federal Register on March 9, 1981 (46 Fed.Reg.15831).On April 16, 1981, FP&L argued that the April 7 petition was"defective procedurally" because the operating licensing proceeding"does not pertain to the antitrust aspects of the application." Motion of FP&L for an Extension of Time to Answer, p.l.a~o428 o"L~S+QoW J 4 4" Ne believe that the April 7 petition complies with the law and with NRC's procedural regulations.
                                                                          ~sivgo UNXTED STATES OF AMERICA                  ~~ot f$p g NUCLEAR REGULATORY COMMISSION
In particular, it should be noted that intervention is sought not solely to request an antitrust hearing, but also to protect petitioners'ights under the Public Utility Regulatory Policies Act of 1978 (PURPA),.16 U.S.C.5796 et~se.Beyond this, the March 9, 1981, notice does not preclude an antitrust hearing, and the changed circumstances described in our April 7 pleading mandate one.The Department of Justice acknowledged our essential point in South Carolina Electric&Gas Com an (Virgil C.Summer Nuclear Station Unit No.1), Docket No.50-395A.There, in its October 10, 1980, r'esponse to the Commission's request for comments on the"significant changes" criteria, the Department pointed out that--"ongoing negotiations concerning access to a nuclear power plant may preclude analysis of the whole access issue at the time of a construction permit review.In such a case, there should be an opportunity to consider this issue in an antitrust review at the operating license stage."[Id.at 6n.14.]That quotation precisely states the position that petitioners are advancing in the operating licensing proceeding.
                                              ).
Nevertheless, to cover all procedural.,'techni-calities, Petitioners now request permission to inter-I vene in the ongoing construction licensing proceeding.
Zn the Matter of                       )
Petitioner's April 7, 1981 pleadings are attached as Appendix A and, incorporated herein by reference.
                                              )
This Petition focuses upon the reasons for Petitioner's delayed filing of its intervention papers in this con-struction licensing proceeding.
FLORIDA POWER   & LIGHT COMPANY       )      Docket No. 50-389@
Z.The Petitioners and Their Znterest in Zntervention
(St. Lucie  Plant, Unit No. 2)
'P&W is a New York corporation engaged in a variety of activities, including the construction and operation of solid waste processing facilities.
I
RRD is a Delaware corporation and a wholly-owned subsidiary of PGW.Zt has recently completed construction of a solid waste processing facility in Dade County, Florida.The Dade County facility is a qualifying small power producer within the meaning of Section 201 o f PURPA, 16 U.S.C.$796, and the implementing regulations, 18 CFR, Part 292.PURPA is designed to encourage co-generation and small power production of electric energy.Toward that end, PURPA grants qualifying facilities the right to sell their output'o an electric utility, to interconnect with a utility, and to buy at retai'1 from the utility all the electric power the facility needs.Qualifying facilities under PURPA are unique.They comprise a new class of entrants into the market for electric power generation and sale, Congress has singled them out for special treatment to advance the public interest in using energy that is pxoduced as a byproduct of other industrial operations or that could be produced by other unconventional sources.Qualifying PURPA facilities are expected to contribute to the overall energy independence of the nation.To achieve that end, they must become commer-cially viable.In the field of electric generation, their commercial viability depends upon their ability to compete with entrenched utilities like FP&L, which has monopoly power over the transmission grid that spans southern and eastern Florida.FP&L recognizes the long-term competitive threat posed by qualifying PURPA facilities.
                                              )
In fact, the Settlement Agreement that purports to resolve the anti-trust problems associated with this nuclear facility specifically acknowledges the existence of qualifying PURPA facilities, and it impacts upon their operation.
                                              )
See, e.cC., Section X(a)(5)of the Agreement.
PETITION FOR LEAVE TO INTERVENE '
The Agreement even treats PURPA facilities differently-than other electric generating facilities in important ways: e.cC., to avail themselves of the transmission provisions of the Agreement, qualifying PURPA facilities may have to waive their PURPA right to purchase FP&L''s power at retail.
AND REQUEST FOR HEARING Parsons   & Whittemore, Inc.   (P &W) and Resources Recovery (Dade County), Inc.     (RRD) petition for leave to intervene in this construction licensing proceeding and request the Commission to hold a limited antitrust hearing.
Also, the Federal Energy Regulatory=Commission (FERC)regulations provide, 18 CFR 5292.305(b)(1)-;that upon request of a qualifying facility, a utility"shall provide: (i)Supplementary power, (ii)Back-up power, (iii)Maintenance power and (iv)Interruptible power." The FERC regulations establish standards and procedures for waiving those requirements.
On April 7, 1981, we petitioned for leave to intervene and requested an antitrust hearing in the companion operating licensing proceeding.         That petition responded to a notice of application from Florida Power &
18 CFR 5292.305(b)(2)
Light Company (FP&L) which had been published in the II Federal Register on March 9, 1981 (46 Fed. Reg. 15831) .
.Yet without following those standards or procedures, the Settlement disregards FP&L's duty to provide-backup and maintenance power, arguably allowing FP&L not to do so when it transmits electricity for a qualifying facility.These illustrate the kinds of issues that have been raised by Petitioners in greater detail in their April 7 pleadings.
On April 16, 1981, FP&L argued that the April 7 petition was   "defective procedurally" because the operating licensing proceeding "does not pertain to the antitrust aspects of the application." Motion of FP&L for an Extension of Time to Answer, p. l.                                         +QoW a~o428 o"L~S
Petitioners contend overall, that FP&L has used the settlement process as part of a calculated effort to diminish qualifying facilities benefits under PURPA, thereby weakening them competitively.
 
This has occurred without prior notice to the affected qualifying facilities and without their participation or comment.What is more, now that Petitioners have learned of the Agreement, FP&L argues-on grounds that it concedes are technical--that qualifying facilities should be excluded from any parti-cipation in the settlement process that affects them so profoundly.
J 4
FPGL's determination to conclude the Settlement Agreement without Petitioner's participation confirms our worst fears about the utility's intended use of its monopoly power to deny Petitioners access to-the trans-mission grid-the access they need to compete.To ensure that the NRC will hear both sides of the transmission controversy between FPaL and Petitioners, we now move to intervene in the construction licensing proceeding to complement our pending i~kotion in the operating licensing proceeding.
4"
ZZ.Criteria for Dela ed Zntervent'ion NRC has recognized that delayed (or untimely)intervention petitions may deserve serious consideration, and it has issued regulations to implement its power to allow intervention at advanced stages of a proceeding.
 
The factors for consideration are enumerated in 10 CFR 52-714 (a)(1): (i)Good cause for not filing on time;(ii)The availability, if any, of other means to protect the Petitioner's interest; (iii)The extent to which Petitioner's participation may reasonably be expected to assist in developing a sound record;(iv)The extent to which Petitioner's interest will be represented by existing parties;and (v)The extent to which Petitioner's participation will broaden the issues or delay the proceeding.
Ne believe that the April 7 petition complies with the law and with NRC's procedural regulations. In particular, it should be noted that intervention is sought not solely to request an antitrust hearing, but also to protect petitioners'ights under the Public Utility Regulatory Policies Act of 1978 (PURPA),. 16 U.S.C.
These factors supplement the standard intervention criteria outlined in Subsection (d)of CFR 52.714.Our discussion of those criteria in the April 7 Petition for leave to intervene in the operating licensing proceeding (Appendix A), will not be repeated here.The remainder of this Petition discusses.
5796 et ~se . Beyond this, the March 9, 1981, notice does not preclude an antitrust hearing, and the changed circumstances described in our April 7 pleading mandate one.
the factors quoted above, in order.A.'Good'ause for unt'imel'il'i'n Zt was only when Petitioners unearthed the proposed Settlement Agreement that they realized FPGL was using this proceeding to undercut their rights as a qualifying PURPA facility.Petitioners had no notice, actual or formal (through the Federal Register), of the settlement negotiations.
The Department   of Justice acknowledged our essential point in South Carolina Electric & Gas Com an (Virgil C. Summer Nuclear Station Unit No. 1), Docket No.
Although Section Z of the proposed Agreement directly bears upon Petitioners'ompetitive interests and PURPA rights, creating the need to intervene, the Agreement was only recently made public.The public"notice", moreover, consisted of filing a copy of the Agreement in the NRC's docket room, but doing sa without attendant publicity or the requisite formalities.
50-395A. There, in its October 10, 1980, r'esponse to the Commission's request     for comments on the "significant changes" criteria, the Department pointed out   that--
Until now, Petitioners have been effectively deprived of an opportunity to participate or comment.In these circumstances, FP&L cannot be heard to complain that Petitioners'ntervention is untimely.Petitioners'elay was caused by a lack of knowledge attributable to the secrecy of the settlement process.That is"good cause" by any fair and reasonable measure.B.Availability of other means to protect Petitioners'nterest Petitioners'nterest can be protected only by allowing them to be heard in the interrelated construction and operating licensing proceedings.
                "ongoing negotiations concerning access   to a nuclear power plant may preclude analysis of the whole access issue at the time of a construction permit review. In such a case, there should be an opportunity to consider this issue in an antitrust review at the operating license stage."     [Id.
FP&L contests Petitioners'ight to air its antitrust concerns at the operating license stage.If FP&L were to prevail on that point, and if late intervention is not allowed in the construction licensing proceeding, FP&L will have succeeded in using the NRC to help it maintain and enhance its monopoly power in the ways outlined in our Brief in support of the April 7 Petitioner.
at 6n. 14.]
That surely must be FP&L's objective, for there is no imaginable pro-competitive reason for objecting to Petitioners'fforts to protect their right to compete with FP&L.The Commission has ample power to implement its statutory mandate to protect Petitioners'nterest, at this stage of the licensing proceedings.
That quotation precisely states the position that petitioners are advancing in the operating licensing proceeding.
Intervention may be granted at the operating license stage, which would be a logical choice since it is a new phase of the licensing process, or in the ongoing construction license proceeding, which is where the settlement agreement was negotiated, or in both.Regardless of how NRC chooses to formulate its intervention order, however, we contend that petitioners have a statutory and constitutional right to be heard on the issues delineated in Appendix A.One possible solution is a variant of that suggested by the other intervenors in these proceedings:
 
permit petitioners to intervene late in the construction license proceeding, and then consolidate the two proceedings for purposes of an antitrust hearing.C.Development of a sound record Petitioners-'ights are deeply affected by the!settlement agreement.
Nevertheless,   to cover all procedural.,'techni-calities, Petitioners now request permission to inter-I vene in the ongoing construction licensing proceeding.
PURPA facilities are a new and unique kind of entity, and they have been afforded less favorable treatment than other electric generators covered by that agreement.
Petitioner's April 7, 1981 pleadings are attached as Appendix A and, incorporated herein by reference.       This Petition focuses upon the reasons for Petitioner's delayed filing of its intervention   papers in this con-struction licensing proceeding.
So far as we are aware, no other qualifying PURPA facility has moved to intervene in either proceeding.
Z. The Petitioners and Their Znterest in Zntervention
          'P&W is a New York corporation engaged in a variety of activities, including the construction and operation of solid waste processing facilities. RRD is a Delaware corporation and a wholly-owned subsidiary of PGW. Zt has recently completed construction of a solid waste processing facility in Dade County, Florida. The Dade County facility is a qualifying small power producer within the meaning of Section 201 o f PURPA, 16 U. S.C.
$ 796, and the implementing regulations,     18 CFR, Part 292.
PURPA is designed to encourage co-generation and small power production of electric energy. Toward that end, PURPA grants qualifying facilities the right to sell their output'o an electric utility, to interconnect with a utility,   and to buy at retai'1 from the utility all the electric power the facility needs. Qualifying facilities under PURPA are unique. They comprise a new class of entrants into the market for electric power generation
 
and sale, Congress has singled them out for special treatment to advance the public interest in using energy that is pxoduced as a byproduct of other industrial operations or that could be produced by other unconventional sources.
Qualifying PURPA facilities are expected to contribute to the overall energy independence of the nation. To achieve that end, they must become commer-cially viable. In the field of electric generation, their commercial viability depends upon their ability to compete   with entrenched   utilities like FP&L, which has monopoly power over the transmission     grid that spans southern and eastern Florida.
FP&L recognizes the long-term competitive threat posed by qualifying PURPA facilities. In fact, the Settlement Agreement that purports to resolve the anti-trust problems associated with this nuclear facility specifically acknowledges the existence of qualifying PURPA facilities, and it impacts upon their operation.
See, e.cC., Section X(a) (5) of the Agreement. The Agreement even treats PURPA facilities differently -than other electric generating facilities in important ways: e.cC.,
to avail themselves of the transmission provisions of the Agreement, qualifying PURPA facilities may have to waive their PURPA right to purchase FP&L''s power at retail.
 
Also, the Federal Energy Regulatory=Commission (FERC) regulations provide, 18 CFR 5292. 305(b) (1)-; that upon request of a qualifying facility, a utility "shall provide: (i) Supplementary power, (ii) Back-up power, (iii) Maintenance power and (iv) Interruptible power."
The FERC regulations establish standards and procedures for waiving those requirements. 18 CFR 5292.305(b)(2) .
Yet without following those standards or procedures, the Settlement disregards FP&L's duty to provide-backup and maintenance power, arguably allowing FP&L not to do so when it transmits electricity for a qualifying facility.
These illustrate the kinds of issues that have been raised by Petitioners in greater detail in their April 7 pleadings.
Petitioners contend overall, that FP&L has used the settlement process as part of a calculated effort to diminish qualifying facilities benefits under PURPA, thereby weakening them competitively. This has occurred without prior notice to the affected qualifying facilities and without their participation or comment. What is more, now that Petitioners have learned of the Agreement, FP&L argues on grounds that     it concedes are technical -- that qualifying facilities should be excluded from any parti-cipation in the settlement process that affects them so profoundly.
 
FPGL's determination to conclude the Settlement Agreement without Petitioner's participation confirms our worst fears about the utility's intended use of its monopoly power to deny Petitioners access to -the trans-mission grid   the   access they need to compete. To ensure that the NRC will hear both sides of the transmission controversy between FPaL and Petitioners, we now move to intervene in the construction licensing proceeding to complement our pending i~kotion   in the operating licensing proceeding.
ZZ. Criteria for   Dela ed Zntervent'ion NRC has recognized   that delayed (or untimely) intervention petitions may deserve serious consideration, and it has issued regulations to implement its power to allow intervention at advanced stages of a proceeding.
The factors for consideration are enumerated in 10 CFR 52-714 (a) (1):
(i) Good cause for not filing on time; (ii) The other availability, means if any, to protect the of Petitioner's interest;
 
(iii)   The extent to which Petitioner's participation may reasonably be expected to assist in developing a sound record; (iv)   The extent to which Petitioner's interest will be represented by existing parties; and (v)     The extent to which Petitioner's participation will broaden the issues or delay the proceeding.
These factors supplement the standard intervention criteria outlined in Subsection (d) of CFR 52.714. Our discussion of those criteria in the April 7 Petition for leave to intervene in the operating licensing proceeding (Appendix A),   will not   be repeated here.                       The remainder of this Petition discusses. the factors quoted above, in order.
A.   'Good'ause   for unt'imel'il'i'n Zt was only when Petitioners unearthed the proposed Settlement Agreement that they realized FPGL was using this proceeding to undercut their rights as a qualifying PURPA facility. Petitioners had no notice, actual or formal (through the Federal Register), of the settlement negotiations. Although Section Z of the proposed Agreement     directly bears upon Petitioners'ompetitive interests   and PURPA   rights, creating the need to intervene, the Agreement was only recently made public. The public "notice", moreover, consisted of filing a copy of the Agreement in the NRC's docket room,
 
but doing sa without attendant publicity or the requisite formalities. Until now, Petitioners have been effectively deprived of an   opportunity to participate or comment.
In these circumstances, FP&L cannot be heard to complain that Petitioners'ntervention is untimely.
Petitioners'elay     was caused   by a lack of knowledge attributable to the secrecy of the settlement process.
That is "good cause" by any   fair and reasonable measure.
B. Availability of other means to protect Petitioners'nterest Petitioners'nterest can be protected only       by allowing them to be heard in the interrelated construction and operating licensing proceedings.       FP&L contests Petitioners'ight to air its antitrust concerns at the operating license stage. If FP&L were to prevail on that point, and   if late intervention is not allowed in the construction licensing proceeding, FP&L       will have succeeded   in using the NRC to help it maintain and enhance its monopoly power in the ways outlined in our Brief in support of the April 7 Petitioner. That surely must be FP&L's objective, for there is no imaginable pro-competitive reason for objecting to Petitioners'fforts to protect their right to compete with FP&L.
The Commission has ample power     to implement its statutory   mandate to protect Petitioners'nterest, at this stage of the licensing proceedings. Intervention
 
may be   granted at the operating license stage, which would be a   logical choice since it is a new phase of the licensing process,   or in the ongoing construction license proceeding, which   is where the settlement agreement was negotiated,   or in both. Regardless of how NRC chooses to formulate its intervention order, however, we contend that petitioners have a statutory and constitutional right to be heard on the issues delineated in Appendix A. One possible solution is a variant of that suggested by the other intervenors in these proceedings:      permit petitioners to intervene late in the construction license proceeding, and then consolidate the two proceedings for purposes of an antitrust hearing.
C. Development of a sound record Petitioners-'ights   are deeply affected by the settlement agreement. PURPA     facilities are a new and unique kind of entity, and they have been afforded less favorable treatment than other electric       generators covered by that agreement.     So far as we are aware, no other qualifying PURPA facility has moved to intervene in either proceeding.
Therefore, a complete record of the petitioners'nterests and those of similarly situated facilities cannot be made without petitioners'articipation.
Therefore, a complete record of the petitioners'nterests and those of similarly situated facilities cannot be made without petitioners'articipation.
To ignore these interests would be unfair to petitioners and unsound as a matter of regulatory policy.The number of pURpA facilities is sure to increase over time, 10 since PURPA was enacted but two years ago.NRC should move to protect those interests now, at the outset, by.rejecting PPGL's effort to control the competitive future of PURPA facilities through a settlement agreement that will become final while petitioners and their counterparts are just starting their competitive ventures.D.Re resentation by existing parties No party to these proceedings has the same interest as petitioners, and no party has sought to speak on behalf of qualified PURPA facilities (in the context of the issues we have raised).The existing parties cannot, adequately represent petitioners'nterest.
To ignore these interests would be unfair to petitioners and unsound as a matter of regulatory policy.
E.Broadenin of issues or dela of roceedin Petitioners'ntervention will neither broaden the issues nor delay the proceeding.
The number of pURpA facilities is sure to increase over time,
The issues are already before the Commission by virtue of the settlement agreement, which the Commission must approve or disapprove.
 
A hearing on these issues could not be significantly delayed by allowing petitioners to intervene and make their position known through such evidence and pleadings as the Commission deems appropriate.
10 since PURPA was   enacted but two years ago. NRC should move to protect those interests now, at the outset, by. rejecting PPGL's effort to control the competitive future of PURPA facilities through a settlement agreement that     will become final while petitioners and their counterparts     are just starting their competitive ventures.
Indeed, because we have done no more than articulate existing issues which NRC must decide with or without our participation, intervention by a qualifying PURPA facility is essential to ensure a fair and complete record.
D. Re resentation by existing parties No party to these proceedings has the same interest as petitioners, and no party has sought to speak on behalf of qualified PURPA facilities (in the context of the issues we have raised). The existing parties cannot, adequately represent petitioners'nterest.
11 CONCLUSION The petition for leave to intervene and the petitioners'equest for an antitrust.
E. Broadenin   of issues or dela of roceedin Petitioners'ntervention will neither broaden the issues nor delay the proceeding. The issues are already before the Commission by virtue of the settlement agreement, which the Commission must approve or disapprove.       A hearing on these issues could not be     significantly delayed by allowing petitioners to intervene and make their position known through such evidence and pleadings as the Commission deems appropriate.
hearing should be granted.Respectfully submitted, George R.Kucz.Mare Gary E en E.Sward ARENT f FOX g KINTNER/PLOTKIN KAHN 1815 H Street, N.N.washington, D.C.20006 (202)857-6000 Counsel for Petitioners Apx'il 24, 198 1 4 4 41*I 4 4.1'4 F~, 1 4 4 PL 4 4 1 4.~'L'-,~4 1 4}}
Indeed, because   we have done no more than articulate existing issues which NRC must decide with or without our participation, intervention by a qualifying PURPA facility is essential to ensure a fair and complete   record.
 
11 CONCLUSION The   petition for leave to intervene   and the petitioners'equest for an antitrust. hearing       should be granted.
Respectfully submitted, George R. Kucz.
Mare Gary E en E. Sward ARENT f FOX g KINTNER/ PLOTKIN KAHN 1815 H Street, N.N.
washington, D.C. 20006 (202) 857-6000 Counsel for Petitioners Apx'il 24, 198 1
 
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Latest revision as of 14:58, 4 February 2020

Petition to Intervene in Ongoing Const Licensing Proceeding & Request for Limited Antitrust Hearing
ML17209A991
Person / Time
Site: Saint Lucie NextEra Energy icon.png
Issue date: 04/24/1981
From: Gary M, Kucik G, Sward E
ARENT, FOX, KINTNER, PLOTKIN & KAHN, PARSONS & WHITTEMORE
To:
NRC COMMISSION (OCM)
Shared Package
ML17209A992 List:
References
ISSUANCES-A, NUDOCS 8104280478
Download: ML17209A991 (13)
v • d • e


Text

00cypp~~

~sivgo UNXTED STATES OF AMERICA ~~ot f$p g NUCLEAR REGULATORY COMMISSION

).

Zn the Matter of )

)

FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-389@

(St. Lucie Plant, Unit No. 2)

I

)

)

PETITION FOR LEAVE TO INTERVENE '

AND REQUEST FOR HEARING Parsons & Whittemore, Inc. (P &W) and Resources Recovery (Dade County), Inc. (RRD) petition for leave to intervene in this construction licensing proceeding and request the Commission to hold a limited antitrust hearing.

On April 7, 1981, we petitioned for leave to intervene and requested an antitrust hearing in the companion operating licensing proceeding. That petition responded to a notice of application from Florida Power &

Light Company (FP&L) which had been published in the II Federal Register on March 9, 1981 (46 Fed. Reg. 15831) .

On April 16, 1981, FP&L argued that the April 7 petition was "defective procedurally" because the operating licensing proceeding "does not pertain to the antitrust aspects of the application." Motion of FP&L for an Extension of Time to Answer, p. l. +QoW a~o428 o"L~S

J 4

4"

Ne believe that the April 7 petition complies with the law and with NRC's procedural regulations. In particular, it should be noted that intervention is sought not solely to request an antitrust hearing, but also to protect petitioners'ights under the Public Utility Regulatory Policies Act of 1978 (PURPA),. 16 U.S.C.

5796 et ~se . Beyond this, the March 9, 1981, notice does not preclude an antitrust hearing, and the changed circumstances described in our April 7 pleading mandate one.

The Department of Justice acknowledged our essential point in South Carolina Electric & Gas Com an (Virgil C. Summer Nuclear Station Unit No. 1), Docket No.

50-395A. There, in its October 10, 1980, r'esponse to the Commission's request for comments on the "significant changes" criteria, the Department pointed out that--

"ongoing negotiations concerning access to a nuclear power plant may preclude analysis of the whole access issue at the time of a construction permit review. In such a case, there should be an opportunity to consider this issue in an antitrust review at the operating license stage." [Id.

at 6n. 14.]

That quotation precisely states the position that petitioners are advancing in the operating licensing proceeding.

Nevertheless, to cover all procedural.,'techni-calities, Petitioners now request permission to inter-I vene in the ongoing construction licensing proceeding.

Petitioner's April 7, 1981 pleadings are attached as Appendix A and, incorporated herein by reference. This Petition focuses upon the reasons for Petitioner's delayed filing of its intervention papers in this con-struction licensing proceeding.

Z. The Petitioners and Their Znterest in Zntervention

'P&W is a New York corporation engaged in a variety of activities, including the construction and operation of solid waste processing facilities. RRD is a Delaware corporation and a wholly-owned subsidiary of PGW. Zt has recently completed construction of a solid waste processing facility in Dade County, Florida. The Dade County facility is a qualifying small power producer within the meaning of Section 201 o f PURPA, 16 U. S.C.

$ 796, and the implementing regulations, 18 CFR, Part 292.

PURPA is designed to encourage co-generation and small power production of electric energy. Toward that end, PURPA grants qualifying facilities the right to sell their output'o an electric utility, to interconnect with a utility, and to buy at retai'1 from the utility all the electric power the facility needs. Qualifying facilities under PURPA are unique. They comprise a new class of entrants into the market for electric power generation

and sale, Congress has singled them out for special treatment to advance the public interest in using energy that is pxoduced as a byproduct of other industrial operations or that could be produced by other unconventional sources.

Qualifying PURPA facilities are expected to contribute to the overall energy independence of the nation. To achieve that end, they must become commer-cially viable. In the field of electric generation, their commercial viability depends upon their ability to compete with entrenched utilities like FP&L, which has monopoly power over the transmission grid that spans southern and eastern Florida.

FP&L recognizes the long-term competitive threat posed by qualifying PURPA facilities. In fact, the Settlement Agreement that purports to resolve the anti-trust problems associated with this nuclear facility specifically acknowledges the existence of qualifying PURPA facilities, and it impacts upon their operation.

See, e.cC., Section X(a) (5) of the Agreement. The Agreement even treats PURPA facilities differently -than other electric generating facilities in important ways: e.cC.,

to avail themselves of the transmission provisions of the Agreement, qualifying PURPA facilities may have to waive their PURPA right to purchase FP&Ls power at retail.

Also, the Federal Energy Regulatory=Commission (FERC) regulations provide, 18 CFR 5292. 305(b) (1)-; that upon request of a qualifying facility, a utility "shall provide: (i) Supplementary power, (ii) Back-up power, (iii) Maintenance power and (iv) Interruptible power."

The FERC regulations establish standards and procedures for waiving those requirements. 18 CFR 5292.305(b)(2) .

Yet without following those standards or procedures, the Settlement disregards FP&L's duty to provide-backup and maintenance power, arguably allowing FP&L not to do so when it transmits electricity for a qualifying facility.

These illustrate the kinds of issues that have been raised by Petitioners in greater detail in their April 7 pleadings.

Petitioners contend overall, that FP&L has used the settlement process as part of a calculated effort to diminish qualifying facilities benefits under PURPA, thereby weakening them competitively. This has occurred without prior notice to the affected qualifying facilities and without their participation or comment. What is more, now that Petitioners have learned of the Agreement, FP&L argues on grounds that it concedes are technical -- that qualifying facilities should be excluded from any parti-cipation in the settlement process that affects them so profoundly.

FPGL's determination to conclude the Settlement Agreement without Petitioner's participation confirms our worst fears about the utility's intended use of its monopoly power to deny Petitioners access to -the trans-mission grid the access they need to compete. To ensure that the NRC will hear both sides of the transmission controversy between FPaL and Petitioners, we now move to intervene in the construction licensing proceeding to complement our pending i~kotion in the operating licensing proceeding.

ZZ. Criteria for Dela ed Zntervent'ion NRC has recognized that delayed (or untimely) intervention petitions may deserve serious consideration, and it has issued regulations to implement its power to allow intervention at advanced stages of a proceeding.

The factors for consideration are enumerated in 10 CFR 52-714 (a) (1):

(i) Good cause for not filing on time; (ii) The other availability, means if any, to protect the of Petitioner's interest;

(iii) The extent to which Petitioner's participation may reasonably be expected to assist in developing a sound record; (iv) The extent to which Petitioner's interest will be represented by existing parties; and (v) The extent to which Petitioner's participation will broaden the issues or delay the proceeding.

These factors supplement the standard intervention criteria outlined in Subsection (d) of CFR 52.714. Our discussion of those criteria in the April 7 Petition for leave to intervene in the operating licensing proceeding (Appendix A), will not be repeated here. The remainder of this Petition discusses. the factors quoted above, in order.

A. 'Good'ause for unt'imel'il'i'n Zt was only when Petitioners unearthed the proposed Settlement Agreement that they realized FPGL was using this proceeding to undercut their rights as a qualifying PURPA facility. Petitioners had no notice, actual or formal (through the Federal Register), of the settlement negotiations. Although Section Z of the proposed Agreement directly bears upon Petitioners'ompetitive interests and PURPA rights, creating the need to intervene, the Agreement was only recently made public. The public "notice", moreover, consisted of filing a copy of the Agreement in the NRC's docket room,

but doing sa without attendant publicity or the requisite formalities. Until now, Petitioners have been effectively deprived of an opportunity to participate or comment.

In these circumstances, FP&L cannot be heard to complain that Petitioners'ntervention is untimely.

Petitioners'elay was caused by a lack of knowledge attributable to the secrecy of the settlement process.

That is "good cause" by any fair and reasonable measure.

B. Availability of other means to protect Petitioners'nterest Petitioners'nterest can be protected only by allowing them to be heard in the interrelated construction and operating licensing proceedings. FP&L contests Petitioners'ight to air its antitrust concerns at the operating license stage. If FP&L were to prevail on that point, and if late intervention is not allowed in the construction licensing proceeding, FP&L will have succeeded in using the NRC to help it maintain and enhance its monopoly power in the ways outlined in our Brief in support of the April 7 Petitioner. That surely must be FP&L's objective, for there is no imaginable pro-competitive reason for objecting to Petitioners'fforts to protect their right to compete with FP&L.

The Commission has ample power to implement its statutory mandate to protect Petitioners'nterest, at this stage of the licensing proceedings. Intervention

may be granted at the operating license stage, which would be a logical choice since it is a new phase of the licensing process, or in the ongoing construction license proceeding, which is where the settlement agreement was negotiated, or in both. Regardless of how NRC chooses to formulate its intervention order, however, we contend that petitioners have a statutory and constitutional right to be heard on the issues delineated in Appendix A. One possible solution is a variant of that suggested by the other intervenors in these proceedings: permit petitioners to intervene late in the construction license proceeding, and then consolidate the two proceedings for purposes of an antitrust hearing.

C. Development of a sound record Petitioners-'ights are deeply affected by the settlement agreement. PURPA facilities are a new and unique kind of entity, and they have been afforded less favorable treatment than other electric generators covered by that agreement. So far as we are aware, no other qualifying PURPA facility has moved to intervene in either proceeding.

Therefore, a complete record of the petitioners'nterests and those of similarly situated facilities cannot be made without petitioners'articipation.

To ignore these interests would be unfair to petitioners and unsound as a matter of regulatory policy.

The number of pURpA facilities is sure to increase over time,

10 since PURPA was enacted but two years ago. NRC should move to protect those interests now, at the outset, by. rejecting PPGL's effort to control the competitive future of PURPA facilities through a settlement agreement that will become final while petitioners and their counterparts are just starting their competitive ventures.

D. Re resentation by existing parties No party to these proceedings has the same interest as petitioners, and no party has sought to speak on behalf of qualified PURPA facilities (in the context of the issues we have raised). The existing parties cannot, adequately represent petitioners'nterest.

E. Broadenin of issues or dela of roceedin Petitioners'ntervention will neither broaden the issues nor delay the proceeding. The issues are already before the Commission by virtue of the settlement agreement, which the Commission must approve or disapprove. A hearing on these issues could not be significantly delayed by allowing petitioners to intervene and make their position known through such evidence and pleadings as the Commission deems appropriate.

Indeed, because we have done no more than articulate existing issues which NRC must decide with or without our participation, intervention by a qualifying PURPA facility is essential to ensure a fair and complete record.

11 CONCLUSION The petition for leave to intervene and the petitioners'equest for an antitrust. hearing should be granted.

Respectfully submitted, George R. Kucz.

Mare Gary E en E. Sward ARENT f FOX g KINTNER/ PLOTKIN KAHN 1815 H Street, N.N.

washington, D.C. 20006 (202) 857-6000 Counsel for Petitioners Apx'il 24, 198 1

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