ML17266A460
| ML17266A460 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 10/04/1979 |
| From: | Plumb K FEDERAL ENERGY REGULATORY COMMISSION |
| To: | |
| Shared Package | |
| ML17209B115 | List: |
| References | |
| ER78-19, ER78-81, NUDOCS 8105290154 | |
| Download: ML17266A460 (47) | |
Text
UNITED STATES OF Al'%RICA FEDERAL ENERGY REGULATORY COMMISSION OPINION NO. 57-A Florida Power a Light ) Docket Nos. -ER78-19 Company ) (Phase I) and
) ER7 8-8 1 OPINION AND ORDER DENYING REHEARING Issued: October. 4, 1979 DC-A-21
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g UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION Before Commissioners: Charles B. Curtis, Chairman; Georgiana Sheldon, Matthew'olden, Jr.,
and George R. Hall.
Florida Power & Light Docket Nos. ER78-19 Company (Phase I) and ER78-81 OPINION NO ~ 57-A OPINION AND ORDER DENYING REHEARING (Issued October 4, 1979)
On August 3, 1979, the Commission issued Opinion No. 57 in these consolidated proceedings which rejected the proposal of Florida Power a. Light Company (FPaL or Company) to limit the availability of its firm wholesale requirements service to certain named and existing customers. Notices of cancel-.
lation filed by FPSL with regard to two existing wholesale customers wereaZso rejected, because they were based on the.
Company's restrictive availability proposal. In our decision we found that FPSL's proposals were unjust and unreasonable under the standards of Sections 205 and 206 of the Federal Power Act, particularly because of their anticompetitive On September 4, 1979,. FP&L filed an application for ef-'ects.
rehearing of Opinion No. 57 in which it requests that the decision be modified in certain limited respects. 1/ The Com-pany has raised no legal or factual consideration not pre-viously considered and we shall deny the application. However, we wish to reemphasize the holding of our opinion in light of several representations made by FP&L in its latest pleading.
FPSL now represents a willingness to provide wholesale requirements service under its tariffs to a number of Florida utilities in addition to those presently served:
The Company is either serving, or is willing to provide service to, the following,: Clewiston;
~l No other party applied for rehearing.
Docket Nos. ER78-19 (Phase I) and ER78-81 Floxida Public'Utilities at Fernandina Beach; Fort Pierce; Green Cove Springs; Homestead; Jacksonville Beach; Key Nest; Lake Helen; Lake Worth; New Smyrna Beach; Starke; Vero Beach; Clay Electric, Coopex'ative; Florida Keys Electric Cooperative; Glades Electric Cooperative; Lee County Electric Cooperative; Okefenokee Rural Electric Cooperative; Peace River Electric Cooperative; and Suwanee. Valley Electric Coopera-tive. Reasonable terms and conditions, including reasonable notice provisions, will, of course, be. necessary, as the 'Commission itself recognizes (Mimeo, p. 40).
The Company is willing to continue providing service to the cooperatives listed above to the extent. of their loads in the geographical areas in which they are now receiving service from FPaL. 2/
No controversy'emains regarding- the provision of wholesale requirements service to these utilities.. Also, FPGL now agrees to provide requirements service to. "new utilities in its service area that may be established. by those en-tities. it presently sexves at retail . . ..."'/'he sole purpose of FPaL's application is to request that we modify Opinion No. 57 to permit the insertion of a new availability restriction into the Company's require-ments. service tariffs. FPSL now proposes to exclude large self-sufficient utilities, including, the Jacksonville Electric Authority, the Orlando Utilities Commission and the City. of Gainesville. The- Company does not represent that any such large utility has requested service.
Application for Rehearing of Florida Power & Light Company at 3. Two of these utilities, Fort Pierce
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+2 and- ~
Homestead,, were the subjects of the notices of
'ancellation. rejected in Opinion No. 57.
+3 Id. at 2'. See, Opinion No. 57 at 39.
Docket Nos. ER78-19 (Phase I) and ER78-81 In support of its request for modification FP&L reiterates the arguments considered during our earlier deliberations.
It argues that our decision should be modified in light of the Company's wheeling. policy and opportunities offered to other utilities to participate in FP&L's St. Lucie No. 2 nuclear power plant.
He shall not consider adoption of the Company's new proposal at this stage of the proceedings. If FP&L wishes to propose any term or condition of service under its requirements tariff, the Company should do so in a new filing wherein it should be prepared to demonstrate that the proposal is "the least anticompetitive method of obtaining legitimate planning or other objectives." 4/
The Commission orders:,
FP&L's. application for rehearing of Opinion No. 57 is hereby
. denied.
By the Commission.
{ SEAL)
Kenneth F. Plumb, Secretary.
4/ Opinion No. 57 at 2.
APPENDXX C St. Lucie Plant, Unit No. 2 Proposed License Conditions
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St. Lucie Plant, Unit Ho. 2 Pro osed License Conditions X. DEFINITIONS (a) "Applicable area" means the area shown on the map which is Attachment A and any other area in the state of Florida in which, in the future, the Company will engage in generation, transmission or distribution of electric power; provided, however, that an area shall not be deemed to be included witnin the "applicable area" solely because the Company acquires an ownership interest of less than 50% in a generating facility located in such area.
(b) "The Company" means Florida Power & Light Company or any successor corporation, or any assignee of the Company.
(c) "Neighboring entity" means a private or public corporation, governmental agency or authority, municipality, rural electric cooperative, or lawful association of any of the foregoing, which owns, contractually controls, or operates, or in good faith proposes to own, contractually control, or operate facilities -for the generation or transmission of electricity, which meets each of the following criteria:
(1) its e'xisting or proposed facilities are actually inter-connected or technically feasible of interconnection with, those of the Company; (2) its existing or proposed facilities are fully
or partially within the applicable area; (3) it is, or upon commencement of operations, will be subject to regulation as a public utility with respect to rates or service under applicable state law, or under the Federal Power Act, or it is legally exempted from such regulation by law.
(d) "Neighboring distribution system" means a private or public corporation, governmental agency or authority, municipality, rural electric cooperative, or lawful associa-tion of any of the foregoing, which engages or in good faith proposes to engage in the distribution of electric energy at retail, whose existing or- proposed facilities are connected or technically feasible of connection with those of the Company, and which meets each of the criteria numbered (2) and (3) in paragraph ('c)-.above.
(e) "Costs" means all appropriate costs, including a
'reasonable return on, investment, which are reasonably allocable to an arrangement, between two or more electric systems under coordination principles or generally accepted industry prac-tices. Xn determining costs, no value: shall be included for loss of revenues from a sale of power by one party to a consumer which another party 'might otherwise serve.
(f) The cities .of Gainesville, Key Nest, Jacksonville Beach,, Green Cove
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Springs, Clewiston, Lake Helen, Orlando and Moore Haven and the Fernandina Beach Division of the Florida Public Utilities Company are considered to be
neighboring entities or neighboring d's ribution systems for the purpose of these license conditions, without regard for whether thei- facilities are technically feasible of inter-connection with the Company. This provision creates specific exceptions to the definition of applicable area and shall not, be construed to bring within the applicable area any system not located within the area shown on Attachment A or not listed here.
lZ. INTEBCONNECTZONS (a) The Company shall interconnect at any technically feasible point on its system and operate in parallel pursuant to a written agreement with any neighboring entity requesting such interconnection.
(b) To the extent it. is technically feasible, irter-connections shall not be limited to lower voltages when higher voltages are requested and available and shall no+
be limited to higher voltages when lower voltages are re-quested and available. Voltages "available" means existing on the Company's system, at the desired, point of interconnection.
Company may include in its rate schedules, provisions for conversion of interconnection voltages and relocation of interconnection points to accommodate load growth and design changes consistent with continuing development of Company's transmission system.
(c) Interconnection agreements shall provide fo" the necessary operating procedures and control equ'pment as required for the sare and prudent operation of tne interconnected systems.
(d) Interconnection agreements shall not embody pro-,
visions which impose limitations upon the use or resale of capacity and energy ezcept as may be necessary to protect the reliability of the Company' system.
(e) Interconnection agreements shall not prohibit. the parties from entering into other interconnection agreements, but may include appropriate provisions to protect the reli-ability of the Company's system and to ensure that the Company is compensated for additional costs resulting from such other interconnections.
III. RESERVE COORDINATION AND EMERGENCY PONER (a) The Company shall sell emergency power to any neighboring entity with which it is interconnected., provided that the neighboring entity has applied good utility prac-tices to plan, operate and maintain a reasonable installed reserve margin for the load that it is meeting with its own resources. Such installed reserve margin, which may include the purchase of reserves from other systems, shall consist of capacity which is as reliable as reserve capacity generally maintained. in. the electric utility industry, and which i"
maintained and operated in a manner consistent with good utility practice. The Company shall engage in such emer-gency sales when requested if and when capacity and energy are available from its own generating resources or from those.
of interconnected electric systems, but. only to the extent that it can do so without jeopardizing service to its cus-tomers. Emergency power shall be furnished to the fullest extent. available from the supplying party and required by the other party's emergency.
(b) The parties to reserve coordination transactions
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pursuant to this section shall maintain such amounts o operating reserves as may be adequate to avoid, the zmposztxon of unreasonable demands on any other party(ies) in meeting the normal contingencies of operating their systems. How-ever, Company shall not impose upon any party an operating reserve. requirement which is unreasonable in light of such party's minimum reserve obligations under paragraph (a) above.
T (c) The Company, if it has generating capacity in excess of the amount called. for'y its own reserve criteria, shall offer such excess to a neighboring entity to meet such entity's own minimum reserve margin. Zn lieu of selLing such capacity, Company may waive (to the extent. of the capacity which would otherwise be offered in accordance with this paragraph) the minimum reserve obligation under paragraph (a) above as to
a party requesting to purchase capacity .which Companv would be required by this paragraph to sell.
(d) Company's obligations under this section apply only as to neighboring entities which agree to assume reciprocal obligations to Company.
IV. MAINTENANCE POKER AND ENERGY Company, when it can reasonably do so, shall exchange maintenance schedules and shall engage in purchases and sales of maintenance power and energy with any neighboring entity which so requests. Power shall be supplied to the fullest extent practicable for the time scheduled and in
'I accordance with generally accepted industry practice for maintenance power and energy sales. Company shall be re-
-- --quired to sell maintenance power and energy only to the extent that it can do so without, jeopardizing service to its customers. Company's obligations under this section apply only as to neighboring entities which agree to assume reciprocal obligations to Company.
V. ECONOMY ENERGY Company shall exchange data on costs of energy from generating resources available to it and, consistent with system security, sell or purchase economy energy (when appropriate to do so under principles of economic dispatch and good system operating practices) to or from a requesting neighboring entity on a basis that will apportion the savings from, such transactions equally between Company and such entity. This provision shall not be construed to preclude
arrangements for economy energy transactions on a regional basis or to require Company or neighboring entity to forego a more attractive opportunity to sell or purcnase economy energy. Company's obligations under this section apply only as to neighboring entities which agree to assume reciprocal obligations to Company.
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VX. SHARING OF INTERRUPTIONS AND CURTAXLNENTS Company may include reasonable provisions i:n anv inter-connection agreement or contract or schedule for sale of wholesale power requiring a neighboring entity or neighboring distribution system to implement an emergency program for the reduction of customer load, with the objective- that Company and the other party shall equitably share tne interruption or curtailment of customer load, provided that such provisions are consistent with Company's general emergency criteria filed with any appropriate regulatory authorities. This emergency program would provide for auto-matic underfrequency load shedding or for load reduction by manual switching or other means, when and to the extent Company reasonably determines such to be necessary to main-
. tain the adequacy of bulk electric power supplv-
VII. ACCZSS TO ST. LUCIZ UNIT NO- 2 (a) Company will afford to the neighboring entities and neighbo ing distribution svstems listed below the opportunity to participate in the ownership of St. Lucie Unit No. 2 in the percentage shares listed below:
Clewiston .19387 Ft. Pierce 1.02793 Fernandina Beach Division of Florida Public Utilities Company -45410 Gainesville 2.09359 Green Cove Springs ..13011 Homestead .44499 .
Jacksonville Beach .64538 Key West .74946 Lake Helen .03121 Lake Worth .89520
&moore Ha~en .03382 New Smyrna Beach .40336 Orlando 6.08951 Starke .11970 Vero Beach 1.03963
'Florida Keys Cooperative .79371
(b) As promptly as practicable, but not later than 30 days after these conditions take effect, Company shall trans-mit. to the entities described above copies of (i) the con-struction permit. for St. Lucie Unit No. 2, (ii') the orders of the NRC and'i s subsidiary tribunals authorizing issuance of the construction permit, (iii) the final environmental impact statement prepared by the NRC Staff, (iv) the f'nal safety evaluation report prepared by the NRC Staff, (v) a statement of the costs incurred for St. Lucie Unit No. 2 through the most recent date for which an accounting is then available, (vi) Company's most current estimates of the total cost of St. Lucie Unit No. 2 (including estimates of cash requirements by calendar quarter through the date of commercial operation) and the schedule for completion of construction tnereof, (vii) the participation agreement Comoany has'xecuted with Seminole Electric Cooperative, Xnc.
(or if no such agreement has been executed, the most recent draft of such agreement), '(viii) Company's. estimate of annual capacity factors for St. Lucie Unit No. 2 and (ix) Company's
estimate of opera ing and maintenance expenses to be associated with St. Lucie Unit No. 2. No such estimates shall bind Company, and Company shall provide such information in good faith. In addition, Company shall make available to such entities at Company's offices copies of the pre-liminary safety analysis report and environmental report submitted by Company to the NRC. Company shall respond fully within 30 days to reasonable requests for additional information received from said entity within 35 days of said entity's receiving the documents enumerated in (i) through (ix) of this paragraph. If the NRC finds that the Company has failed to respond fully within 30 days to any such xeasonable requests, tne entity shall be allowed to paxticipate in accordance with such time schedule as the NRC deems appropriate.
(c) Within 120 days after transmittal of the information enumerated in paragxaph (b), each such entity. which desires to participate in St. Lucie No. 2 by ownership shall pro-vide Company with a written commitment (i) that it intends to participate in St. L'ucie No. 2 and to negotiate in good faith with the Company as to the terms of a participation n
agreement, (ii) that, in the event agreement is reached as
to the terms of a participation agreement, it will assist the Company as reques ed in obtaining the requ'red approval of the NRC, and (iii) that it will in good faith seek to obtain the necessary financing for its participation. Such commitment shall be accompanied by a payment equal to ten percent (10%) of the amount stated pursuant to paragraph (b)(v) multiplied by the participation share to which the commitment applies (expressed as a decimal fraction) . Upon receiving such payment, the Company shall agree in writing I
to negotiate in good faitn as to the terms of a participa-tion agreement with the entities which provide the written commitments and payments described above. Such written agreement shall also provide that in the event that the Company fails- to execute-the-participation. agreement reached between the Company and such entity as provided in paragraph (d) below, each such entity shall have the right to initi-ate an enforcement action before the HRC, and to initiate an action against the Company in an appropriate court and/or agency for any relief that may otherwise be available to such entity under law. The Company shall have no obliga-tion under this section to any entity which fails to provide within the time specified herein the written commitment and
payment described above, except as may otherwise be pro-vided or in these conditions or be agreed upon in writing by the Company and each such entity.
(d)(1) Xf, within 120 days after providing the written
, commitments and payments described in paragraph (c), any entities providing such written commitments and payments and the Company agree as to the terms of a participation agreement, the Company and sucn entities shall execute the participation agreement,, and Company shall seek the required approval of tne NRC for transfer of an ownership interest to such entity. The participation agreement shall provide for closing 60 days after NRC approval of partici-pation, conCzng'ant upon such entity's having obtained the necessary financing for- its participation, at which time an ownership interest would be conveyed to the participant, and the participant would pay its (percentage) share of all costs incurred in connection with St. Lucie Unit No. 2 to the date of closing, less any payment made by such entity pursuant to paragraph (c) hereof.
(d)(2) Xf NRC approval is not obtained or if, by a date 60 days after NRC approval is obtained, such entity has not been able to obtain the necessary financing, the payment made by such entity pursuant to paragraph (c) shall be refunded by Company to such entity, and Company
shall have no zur her obligation under this section to such entity. Notwithstanding the foregoing, if an entity is unable to close at the time specified solely by reason of its inability, despite a good faith ef fort, to obtain necessary financing, such en ity shall be allowed a 100-day extension of time for closing. If, for whatever reason, it fails to close within the 100-day extension period, Company shall rezund to the entity the payment made by it pursuant to paragraph (c) and Company shall have no further.
obligation under this section to'uch entity; provided, however, that if a proceed'ng with respect to the val'dity of obligations to be issued by the entity to obtain the necessary financing is pending before the Florida Supreme Court at the conclusion of the 100-.day extension period, then such period shall be extended until 60 days after entry o a final judgment in such proceeding.
(d)(3) If a neighboring entity or neighboring distribution system eligible for participation under these conditions is prevented from making the 105 commitment payment required by VII(c) due to operation of a state or federal statute 'ection or constitutional provision or because it is impossible
- or i" to obtain funds within the required time period through any of the commercial channels ordinarily available to municipalities to finance pavments required in advance of obtaining long-term financing (but excluding in all instances any impediment which can be removed by action of the municipality with'n the required time period), such neighboring entity will not be obligated to make sucn commit-ment payment; provided, however, that the neighboring entity or neighboring distribution system failing to make the com-mitment payment in reliance on this provision shall have the burden of establishing in any enforcement proceeding the existence of one o the conditions specified herein as a basis for being rel'ved of the obligation to make such payment and if it fails to do so shall have no right to participation
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in St. Lucie Unit No. 2 under this section.
(d)(4) lf any entity described in paragraph (d)(l) or (d)(2) does not close by the time specified herein, for any reason other than failure to obtain NRC approval or failure to obtain the necessary financing (having made a good faith effort to do so), Company shall refund to the entity the payment made by it pursuant to paragraph (c), and Company shall have no further obligation under this section to such entity.
(e) (1) lf, within 120 days after providing the written commitments and payments described in paragraph (c), any entities providing such written commitments and payments and Company are unable to agree as to the terms of a partzcx-
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pation agreement, any such entity may make a written request to Company that their dispute with respect, to the terms of the participation agreement be submitted to arbitration.
Upon the making of such a request by any such entity, Company and each such entity shall enter into an agreement that, the a bitration shall be final and binding as between the Company and such entity. Xf no written request for arbitration is made within the 120-day period specified in this paragraph by an entity that prov'ded the written commitment and payment described in paragraph (c), the payment. made by such entity pursuant to paragraph (c) shall be refunded by Company to such entity, and Company shall have no further obligation under .
this section to such entity. Nithin ten days a ter the making of any such request,- Company and all entities making such requests shall confer and attempt to agree upon the appoint-ment of a single arbitrator. Xf such agreement is not reached, eitner Company or any such entity may request the Amer',can Arbitration Association to appoint an arbitrator, who shall be an attorney with knowledge of the electric utility industry.
The arbitrator shall conduct a hearing to determine reasonable
terms for the disputed provisions of the participation agreement, giving due regard to the context of participation agreements negotiated among compa able parties in the electric utility industry and the particular business situation con-fronting Company and the entities requesting arbitration, and shall resolve all disputes in accordance with this 'section and the terms of the agreement to arbitrate; provided, however, that the provisions proposed by the Company as to its liability to the other participants, and as to sharing the-cost of dis-charging uninsured third party liability, in connection with the design, construction, operation, maintenance and decommissioning of St. Lucie Unit, No.'-2 shall be approved by the arbitrator unless-Ae determines that the provision pro-posed. by the Company constitutes an unreasonable proposal which renders meaningless the Company's offer of participation in St; Lucie Unit No. 2. The decision of the arbitrator shall be I
"/'ny such liability provision shall not be intended to relieve Company or any other owner of the plant from any liability which it may have to any third other law, nor party under any federal, state or basis for any shall such provision provide the of the plan defense by Company, or any other owner or any impediment to or delay in any payment, cost, expense or obligation arising from a claim of lia-bility to a third party made against the Company or any other owner of the plant. To the extent that such provision concerns liability to third parties, such provision shall relate solely to subrogation rights as between Company and participants.
rendered wi h'n 30 days of the conclusion of the hearing, unless such time is extended by all of the parties, and shall be final and binding as between the Company and each such entity. Nothing herein shall be construed to deprive the NRC of its jurisdiction to enforce the terms of this license under the Atomic Energy Act.
(e)(2) Promptly after the arbitrator renders his decision, the Company and any such entity shall execute the partici-pation agreement, containing the p'rovisions for subsequent closing, described, in paragraph (d)(l), and Company shall seek the required approval of the NRC for transfer of an ownership interest to such entity. I'f any such entity does not execute the, participation agreement,, Company shall refund to the entity the payment made by i;t pursuant to paragraph (c) and, Company shall have no further obligation under this section to such entity. If Company does not execute the participation agreement, each such entity shall have the right to r'eguest the NRC'o initiate an enforcement action and to institute an action against, the Company in an appropriate court and/or agency for any relief that may otherwise be available to such entity under: law. Upon execution of the participation, agreement, the provisions of paragraph (d) (2) shall apply.
{f) Zn the event that any entity described in parag=aph (a) hereof does not participate in the ownership of St.
Lucie Unit No. 2 or participates in the ownership of St. Lucie Unit No. 2 in an amount less than the amount prov'ed for in paragraph (a) hereof, it shall be permitted by Company to transfer all or a portion of its participation rights unde" this section to Florida Municipal Power Agency or any successor thereof (together hereinafter referred to as "CPA") or to any other entity entitled to participate under these license cond'tions, provided that FlPA or such other entity agrees to assume all of the transferring entity's obligations to Company in connection with the partxczpat~on rights transferred.
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Unless otherwise agreed to by Company and'K.A or such other
>A o entity, in no event shall FNPA or such other entity be entitled to any greate periods of time for the performance of its obligations under this section thM: its transferor would have been entitled to prior to the transfer.
(g)(1) Company may, in its unilateral discretion, extend
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"he time for any of the actions required by this section to be the taken by an entity desiring to participate a.n St. Lucre Unit No. 2. Any such extension shall be in writing. No extension permitted by Company to any entity shall require Company to perm'.'t fur ther extensions of time to such entity or similar extensions to other entitzes.
(g) (2) Pny entity which is named in the construction permit for Florida Power s Light St. Lucie Unit No. 2 (dated May 2, 1977) and which elects to participate 'n St. Lucie Unit Ho. 2 pursuant to this section does so in 1'eu of any participation rights provided in the license conditions contained in the construction permit as issued.
(h) Zn no event shall the Company be obligated to provide participation in St. Lu'cie Unit No. 2 under this section to any entity unless and until the Company and such entity execute a participation agreement and such entity pays the Company its percentage share of all costs incurred to the date of execution of the participation agreement in connection with St. Lucie Unit No. 2.
(i.) Company may retain comolete control and act for the other participants with respect to the design, eng'neering, construction, operation and maintenance of St. Lucie Unit No. 2, and make all decis'ons.relevant 'thereto insofar as they deal with the relationship between the Company and the other participants, including (but not limited to) decisions regarding adherence to NBC health, safety and environmental regulations, changes in construction schedule, modification or cancellation of the unit and operation at such time. and
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such capacity levels as it deems proper-, all without. the K
consent of any participant.. Consistent with the foregoxn gi the participation agreement shall provide for an advisory committee as a vehicle for communication and consultation among all of t¹ owners, and except where the public interest
recuires 'mmedia e unilate al action, Company shall promptly inform participants of actions which may mater'.a~ay az~ect them.
(j) Nothing contained herein shall preclude the Company from instituting an action against any entity, with respect to its participation or commitment to paitic'pate in 'n SSt. Lucie Unit No. 2, in an appropriate court for any relief that. may be available to it under law.
(k) Any rezund made by Company to anv entity pursuant to "his section sha'1 be oz the full amount paid by such entity.
Company shall no't be required by .this section to pay interest on any such refund.
(l) Any entity shall, have the right, subject to NRC approval, to sell or otherwise alienate its ownership share in St. Lucre Unit No. 2 after it has taken title to said ownership share to an utility which agrees to and is financially C 'lectric qualifi d io assume the obligations of the seller with respect to St. Lucie Unit No. 2. Any right to contest the prospective buyer's financial qualifications will be waived by Company unless Company informs the prospective seller, prospective buyer, andd the NRC of Com-aanv's objections within thirty (30) days of Company's receipt of notice of the prospective sale.
VIII. ACCESS TO FUTURE NUCLEAR PLANTS Company will afford to: '(a) those neighboring entities and neighboring distribution systems entitled under any St.
Lucie Unit 2'icense condit'ons to any opportunity to par-
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ticipate in the ownership of St. Lucie Unit No. 2, and (b) to any other neighboring entity or neighboring distribution
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system not in existence on January 1, 1980, but which operates generation, transm'sion, or distxibution facilities in the applicable area as o the date that a construction pe mit is submitted to the HRC by Company, the opportunity to participate in the ownership of all nuclear units for which the Company files a construction permit application with the NRC prior to January 1, 1990, provided, however, tha" no opportunity to par-ticipate need be afforded to any neighboring entity or neighboring distribution system in an amount, if any, which would, in the aggregate, result in its owning nuclear generating capacity, or enjoying direct access thereto by unit power purchase or par-ticipation through, a joint agency, as a percentage of its peak load in excess of what Company's percent of same would be after the addition of the proposed plant. If a joint power agency qualifies for pa"ticipation hereunder as a neighboring entity, its nuclear generating capacity and peak load shall be deemed to be the aggregate of the nuclear generating capacities and peak loads of its members within the applicable area, excluding any such members which elect to exercise direct participation rights hereunder. In no event shall this license condition be construed to require Company to provide ownership interest in any such nuclear unit in a total amount exceeding 20 percent of the Company's inter-est in such unit. Where ownership 'n a nuclear unit is shared between the Company and one or more other utilities, the Company's, obligation hereunder with respect to that nuclear unit shall be I
reduced to the extent that any utility to which participation would be afforded under this condition nas been afforded an oppor-tunity to obtain access to the nuclear unit, either directly
'.-2 2-or through a joint agency.
lX. WHOLESALE FTBl4 PONER SALES (a) Subjec" to the limitations conta'ned in pa'ragraphs (c) and (d), Company, upon t'mely request, shall sell firm wholesale power on a full or partial requirements basis to (1) any neighboring entity up to the amount required to supply electric service to its retail customers, to those wnolesale customers which are supplied by the neighboring entity and which were so supplied on 'January 2, 1979, and to those wholesale customers which were previously supplied by Company and which are now supplied by such neighboring entity, and (2) any neighboring distribution system up to the amount required to supply electric service to its retail customers. Any sales made under subsection (a) (l) or ( ) (2) above may be decreased by the sum at any one time of (i) power made available to such neighboring entity or ne'ghboring distribution system as 'a result of participation in {or purcnase of unit power from) one of Company's generating units and (ii) other power transmitted to such neighboring entity. or neighboring distribution system by Company.
(b) For neighboring entities which supply power to one or more neighboring entities or neighboring distribution systems eligible to directly request service under this con-dition, Company will alternatively make sales to such supplyin'g entities to the extent that such service would be available under the previous paragraph (a) to such neighboring. entities or neighboring distribution system(s),
!V aI ) ~ provided that such sales can be made on terms and condi-tions which do not expand Company's obligations to supply wholesale power beyond the quantities otherwise re"erred to in th's section.
(c) Company may require such advance notice of the
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intention to take service and of tne serv'e contract demands as is reasonabl for Company's power supply planning, and may impose reasonable limitat'ons upon the increases in such service contract demands, provided %hat no sucn limita-tion shall be imposed to prevent a neighboring entity or neighboring distribution system from assuming a load which has been served directly by Company or a load which Company has sought to serve. Company shall not establish rates, terms or conditions (other than the advance notice provision described above) for the:sale -of firm wholesale power. which differentiate among customers on the basis of whether or not an entity has historically been a wholesale firm power customer of the Company.
(d) Company shall not have any obligation to provide
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wholesale power to: (1) any electric utility which ezisted on January 1, 1979, and which was not a neighboring entity or neighboring distribution system as of that date; (2) any rural electric cooperative (or membership corpo ation) in a quantity greater than that required to serve such coopera-tive (or any distribution cooperat'ive served. by such co-operative) for loads in the area wh-ch has historically been supplied at wholesale or at retail by the Company; or (3) a neighboring entity wnich on January 1, 1979, owns or controls elec ric facilities with nominal capacity in
excess of 200Yiwe, provided that this item (d) (3) shall not relieve the Company f"om the alterna ive obligation, provided in paragraph (b), to make sales o a neighboring entity which supplies power to an eligible neighboring entity or neighbor-ing distribution system in lieu of making such sales directly to the eligible neighboring entity or neighboring distribution system.
(e) Wholesale power sales agreements shall not restrict use or resale of power sold pursuant to such agreements except as may be necessary to protect the reliability of Company's system. Delivery point voltages shall be established consis-tent with the provisions of section II(b).
Z. TRANSMISSION SERVICES (a) The Company shall transmit power (l) between Company power sources and neighboring entities or 'neighbor-ing distribution systems with which Company is connected, (2) between two o among more than two neighboring entities, or sections of a neighboring entity's system which are geographically separated, with which, now o- in the future,
=Company is interconnected, (3) between any neighboring entity with whom, now or in the future, Company is inte connected and one or more neighboring distribution system(s) with whom, now or in the future, it is. connected, (4) between any neighboring entity or neighboring distribution system(s) and any other electric utility outside the applicable area, and (5) from any qualifying cogeneration facility or small power production facility (as defined by the Federal Energy Regulatory Commission in l8 CFR Part 292, Subpart B) with which Company is interconnected to a neig'nboring entity or
i I 1 neighboring distribution system, where both the owner of the qualifying cogeneration facility and the neighboring entity or neighboring distribution system to which such transmiss'on service is provided agree that such neighboring entity or neighboring distribution system will make, during the time and to the extent of its purchases from, the cogeneration facility, any sales of "Backup power" and "."maintenance power" (as these terms are defined 'in appl'cable Pederal Energy Regu-latory Commission regulations) to the qualifying cogeneration facility or small power production facility; provided. however that nothing in this item (5) shall diminish Company's obligations under Section IX hereof. Company shall provide transmission service under this paragraph only if (l) Company's and other connected transmission lines form a continuous ej.ectric path between the supplying and the recipient systems; (2) permission to utilize other systems'ransmission lines can be obtained by the proponent of the arrangement; (3) the services can reasonably be accommodated from a technical standpoint with-out significantly jeopardizing Company's reliability or i"s use of transmission facilities; (4) reasonable advance request is received. from the neighboring entity or neighboring distri-bution system seeking such services to the extent that such notice is required for operating or planning purposes, provided tnat Company distributes a written timetable setting forth reasonable periods of time within which such advance notice must, be received for transmission services over existing c'ompany facilities; and (5) a reasonable magnitude, t'me and duration for
-the transactions is specified prior to the commencement of the I
transmission.
(b) Company's provision of transmission service under this section shall be on the bas's which compensates it for its costs of transmission reasonably allocable to the service in accordance with a transmission agreement, transmission tariff or on another mutually agreeable basis. Company shall file such transmission agreements or transmiss'on.
tariffs with the Federal Energy Regulatory Commission or its successor agehcy. Zn the event that the Company and a requesting ent'ty are unable to agree regarding transmission services required to be provided under this section X, Company shall, upon the request of such en'tity, immediately file a service agreement at the Federal Energy Regulatory Commission or its successor agency providing for such service. Nothing in this license shall be construed to require Company to wheel power and energy to or from a re-tail customer.
(c) Company shall keep requesting neighboring entities and neighboring distribution systems informed of its trans-mission planning and construction programs and shall include therein sufficient, transmission, capacity as required by such entities, provided that such entities provide the Company sufficient advance notice of their requirements and contract in a timely manner to reimburse the Company for costs, as allowed by the regulatory agency having jurisdiction, appropriately attributable to compliance with the request.
However, Company shall not be required to construct any transmission facility (l) which will be of no demonstrable present or future electrical benefit to Company, unless the
facility cannot reasonably be constructed by the requesting entity solely by reason of the Companv's unreasonable re usal to grant an easement oz license, or refusal to cooperate in removing impediments to the siting of any such transmission facility, (2) which would jeopardi e Company's ability to finance or construct, on reasonable terms, facilities to meet its own anticipated system requir ments or to satisfy existing contractual obligations to other electr'. svstems, or (3) which could reasonably be constructed by the request.'ng entity without duplicating any portion of Company's transmission system. In such cases where, Company elects not, to construct transmission facilities, tne re-questing system shall have the option of constructing and owning such facilities and interconnecting them with Company' faci.liti;es. For the purposes of. section X, upgrading present transmission facilities shall be considered. always to have some demonstrable present or future electrical benefit to Company.
(d) Notwithstanding the foregoing, Company shall not decline to cooperate in transmitting power produced from any neighboring entity's (including FHPA's) or neighboring dis-tribution system's ownership share, or the ownership share of any other Florida electric utility for which Company's transmission system is necessary to deliver such power, of the Alvin W. Vogtle Nuclear Units from a point or points of interconnection between Company and Georgia Power Company to points of connection described in (a) hereoz between
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Company and otner utilities. This condition shall not be cons ued to reauire Company to construct transmission facilities within he State of Georgia. Company shall not be precluded from requiring such neighboring entities, neighboring aistr~- ~
bution systems and other utilities to make reasonable finance.al 0
arrangements to pay for the construction of those portions of facilities to be utilized bv them and which are constructed for tnis purpose.
ZZ- ACCESS TO POOLING ARRANGEMENTS Company shall sponsor the membership of any neighbor-ing entity in any pooling arrangement to which Company is presently a party or to which, during the term o f this. license, Company becomes a party; provided, however, that the neighbor-incr entity satisfies membership aualific tions which are reasonable and not unduly discriminatory. To the extent that Company enters 'nto pooling arrangements during the term of the license, it shall use its best efforts to include prov'isions therein which permit requesting neighboring entities the opportunity to participate in the arrangement on a basis that is reasonable and not unduly discriminatory.
XZZ. JURISDICTION OF OTHER REGULATORY AGENCIES Rate schedules and agreements, as required to provide for the facilities and arrangements needed to implement the bulk power supply policies herein, are to be submitted by the Company to the regulatory agency having jurisdiction
tnereof. The Company agrees to include a provision in new rate schedule submissions associated with these license cor ditions to the effect that, i the rates become e zective prior to the resolution of contested issues associated witn the new rate schedules and are thereazter reduced xn accordance with the regulatory proceedings and findings, appropriate refunds (including interest) would be made to retroactively rezlect the decrease-XIII. Ii~fPLEMENTATION (a) These license conditions do not, preclude Company from seething such changes in these condi ions, including but not limited to section VIII, as'may be appropriate in accordance with 'the then existing law or factual situation.
(b) These conditions do not preclude Company from offering additional wholesale power, .access to generating units or coordination services to other electric entities.
(c) Nothing herein shall be construed to affect the jurisdiction of FZRC or any other regulatory agency.
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APPENDIX D Excerpts from May 12, 1981 Deposition of Marshall McDonald, Florida Power 6 Light Company, in Gainesville Re ional Utilities, et al. 'v. Florida Power 6.Li ht, Com an, Docket No. 79-5101-CIV-JLK
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA THE CITY OF GAINESVZLLE AND THE GAINESVILLE-ALACHUA COUNTY REGIONAL UTILITIES BOARDS THE LAKE WORTH UTILITIES AUTHORITYI THE UTILITIES COMMISSION OF NEW SMYRNA BEACH, THE COMMISSIONS THE CITIES OF ALACHUAI SEBRZNG'TILITIES BARTON, 'FORT M ADE, HOMESTEAD, KZSSIMMEE, MOUNT DORA, NEWBERRY, SAINT CLOUD, STARKE and TALLAHASSEE'LORIDAI Plaintiffs, vs 0 FLORIDA POWER AND LIGHTS 10 Def'endant.
12 CASE NO. 79-5101-Civ-JLK 4
13
- 14. 9250 West Flagler Street Miami, Florida 15 Tuesday, May 12, 1981 16 17 DEPOSITION OF MARSHALL McDONALD 18 . taken before GAIL ABRAMSON, Court Reporter and Notary Public in and for the State of Florida at Large, pursuant 20 to Notice of Taking Deposition filed in the- above-styled 21 cause.
22 24 20 NEVI 'ORK NATIONAL REPORTING SERVICE li COUAY ST. MARTY LESHAW MIAMI Spoor WN. ll.Y.
QPPAll'tPS2 44 W. ILACLfll ST.
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'. She is the one who has established policies for retention of the necessary legal retentions of documentation.
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9 Do you know if the company has ever considered destroying or discarding
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3 1 Who's the company?
FP &L Mho's the company?
Anyone- else in the company.
X have no way of knowing what everyone else in the company might have considered at any point in time about any sub ject..
if counsel.
k 10 Q. Okay do you. know for: the company ever discussed with. any company officials the possibility of 12 disposing,, destroying,. or otherwise getting rid of documents?'
am not; aware. of that Are you familiar with the findings o f the Fifth
.'ircuit Court in the Gainesville case in. 1978?
L .. Yes..
MR GRIBBON: You mean the whole, opinion?
18 MR.. GUTTMAN: X.'m; going, to ask him a specific 19 (By Mr.--.Guttman) You, read the case, I'm sure?
20 "L X; read'-'he case..
=- -21 9, The Fifth Circuit in- that case found that the .
k 22 evidence compelled the finding that FPaL was part of a 23 so you are aware of that; correct?. 'onspiracy, You are not nodding, but X take that I'm glaring.
NEVI YORK NATIONAL REPORTING SERVICE Id COURT ST.
MR. GRIBBON: What the Fifth Circuit held, we can't do anything about.
3 MR. GUTTMAN: I'm not going to beat up the witness in light of that holding and he is not going to beat me up either.
Q. (By Mr. Guttman) In light of that finding,. what specific action, if any, have you. taken to insure FPsL's .
compliance with the, antitrust laws?
I 'm not aware that we have. ever been guil.ty o f 10 infringing any antitrust laws .
9, In your. view., the Fifth Circuit holding in 1978 12 was- not a finding. that FP&L had- infringed on any antitrust 13 laws?
In my opinion, the views o f the Fifth Circuit were incorrect.
The. views of the jury who actually saw the evidence observed the witnesses, was correct.
18 0, Preserving your dispute with the Fifth Circuit, in 19 light of their holding,, what; specific action, if any, have 20 you taken to insure FPSL's compliance with the antitrust 21 laws' 22 I'm not aware that we have not been complying with the antitrust laws.
Have you ever, as head of FP&L, taken any action or engaged in discussions to insure that the company stays in NEW YORK NATIONAL REPORTING SERVICE
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compliance with the antitrust laws, if that is the premise.
Yes, sir. X have never agreed that there is any ll'll l
I obligation to share the output of our nuclear plants, but I
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since there is a theory that there is one, at the time that we did not accept a pax'ticipation in the South Dade Plant; V
X directed Mr. Qardner and Mr. Danese to offer to the rest of the State all that X could speculate that this other position might encompass which was our ability to find a site for a plant., license that site and constx'uct the plant and to offer these services at a reasonable service fee to the o ther electrical sys tems in the. S tate.
12 Xn addition to the Central, Florida project:, if we
.can refer to it by that name, what other action have you taken to insure or preserve your compliance with the ant-trust laws?
X have had no target to aim for because X do not believe that we have infringed on, any antitrust laws.
18 Q. Does FPaL, have any program or similar type of 19 activity under different names by which it instructs its 20 employees as to what. the antitrust laws are and what .
21 obligation the company might have?
22 X don't think so.
Now, this also may be a cause for a glare, but this is please, for the record, at footnote 14 at the Gainesville decision which you may recall, the officials of the power NEW YORK 'ATIONAL REPORTING SERVICE 14 COVRT ST. CCM&'w
ll companies deny the existence of a territorial agreement.
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)I Then the court goes on to say, "Nhere such tes ti-3 mony is in conf l ict with co ntempraneous documents, we can give it little weight."
Do you recall reading that?
I 'm sure I read it. I don' recall it.
Do you recall Opinion No. 57, the Federal Power Commission? Xt was a decision in the case where the company sought to revise its tariff.
10 Do you. recall any opinion do
. you recall in 1977 the company sought to limit eligibility under its tariff?
12 Do you recall that?
I seem to recall there was something like that, Mr.
Guttman, but X don!t .know. X don't recall any specifics about it.
- g. If there -was something like that, would you have apprised of it or
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been required to approve it?
18 No'9 MR.. GRIBBON: Approve the decision?
20 MR. GUTTMAN: Approve the filing. X was referring 21 to the filing.
22 THE HXTNESS:. To approve the filing?
(By Mr. Guttman) Yes, the decision to file.
24 No, I wouldn't have had to approve that.
25 Who would have had the authority to approve it?
MEVI YORK NATIONAL REPORTING SERVICE
)5 COVIN ST. MARTY
1 lf I don't really know who had the authority to approve any changes in FERC filings.
I' g If you look at the organization charts which we just discussed, the one in '76 or '79, because the filings made in '77 or '7&
That: thing makes my eyes buggy.
What boxes in the organization chart would have had 'he authority to finally approve to make the final approvement to change the tariff at the Federal Commission?
10 Well, Lloyd, Williams,, Director of Rates and Research reported to John Hudiberg.
12 Q. So in l977, '78, would Mr Hudiberg have been the.
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one to have final authority to approve the filing of the tariff change before the Power Commission?
It depends on. the power he delegated to Mr. William Do you recall;- you testified in the Vero Beach 17 case before the Federal Power Commission; is that correct?
18 I seem to have had that called to my attention by 19 some of the pleadings.
20 Do you recall the decision issued by the judge in 21 that proceeding?
22 L No, I really. don'.
Let me quote It was February 6th, l978 decisi'on.
by Judge McGowan. He stated that FP &L presented at times 20 reluctance and less than candid testimony.
NEVE YORK NATIONAL REPORTING SERVICE IS COUNT Sl'.
Do you recall--
ql A. I don' remember being less than candid and I don' recall his comment.
Well, in view of the X.'m not asking if you agreei but in view of what the Gainesville and the Judge McGowan's opinion stated, what action, if any, have you taken to insure that the testimony of FPGL in official proceedings is accurate and complete?
I have no reason to believe that they have not.
10 at all times been accurate.and complete".
- g. Do you know if in any opinion before the Federal 12 Power Commission in the last two or three years, the Commis-13 sion characterized the company's testimony as "incongruance with the documents "?
No, I am not. aware of that.
Would that be something that would concern you?
If I. believed-'.it;.
18 Would it likely: be brought. to your attention?
19 Not necessarily.
20 Have- you read the pleadings in the. current case 21 where your counsel is seeking to dismiss -the. motion of Talla-hassee excuse me.. Tallahassee requests .to I may have read it, but I don't recall it.
Would you characterize FP&L as a unique, innovative, resourceful or risk-taking company?
- NEVI YORK NATIONAL REPORTING SERVICE lO COUAf ST. MARTY LESHAW MIAMI
BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In The Matter Of Florida Power 8 Light. Company Docket No. 50-389-OL (St. Lucie Plant, Unit No. 2) Date: 7/2/81 CERTIFICATE OF SERVICE I hereby certify that the foregoing was- served on the following persons either by hand delivery (*) or by United States mail, first class, postage prepaid, this 2nd day of July, 1981
'hase Stephens, Chief (*) Alan S. Rosenthal, Esq. Chairman Docketing 6 Service Section Atomic Safety 6 zLicensing Appeal Nuclear Regulatory Commission Board Washington, D. C. 20555 Nuclear Regulatory Commission Washington,, D. C. 20555 Elizabeth S. Bowers, Esq,, Chairman Atomic Safety &, Licensing Board, Dr. John H. Buck Nuclear Regulatory Commission Atomic Safety 8 Licensing Appea1 Washington D. C. 20555 Board Nuclear Regulatory Commission Dr. Peter A. Morris Washington, D. C. 20555 Atomic Safety S Licensing Board Nuclear Regulatory Commission Christine Kohl, Esquire Washington, D. C.. 20555 Atomic Safety 6 Licensing Appeal Board Dr. Oscar A. 'aris Nuclear Regulatory Commission Atomic Safety S Licensing Board Washington, D. C. 20555 Nuclear Regulatory Commission Washington, D. C. 20555 Harold F. Reis, Esq.
Lowenstein, Newman, Reis Florida Power R Light Company Axelrad ATTN: Dr. Robert E. Uhrig 1025. Connecticut Avenue, N W Vice President Washington, D. C. 20036.
Advanced Systems S Tech.
- PE O. Box 529100 George R. Kucik, Esq.
Miami, Florida 33152 Mare Gary, Esq.>
Arent, Fox, Kintner, Plotkin Counsel for NRC Staff S Kahn Office of the Executive Legal Director 1815 H Street, N. W.
Nuclear Regulatory Commission Washington, D. C. 20006 Washington, D. C. 20555
Herbert Dym, Esq.
Covington 8 Burling 888 16th Street,, N. W.
Washington, D. C. 20006 Robert A. ablon, Esquire Attorney for the Gainesville Regional Utilities, the Lake Worth Utilities Authority, the Utilities Commission of New Smyrna Beach, the Sebring Utilities Commission, and the Cities of Alachua, Bartow, Fort Meade, Homestead, Key West; Kissimmee, Mount Dora, Newberry, St. Cloud, Starke, and Tallahassee, Florida.
July 2, 1981 Law offices of Spiegel 8 McDiarmid 2600 Virginia Avenue, N.
D. C. 20037 W'ashington, (202) 333-4500
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