Case No. VES-0094July 2, 2002
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGYApplications for Stay
Names of Petitioners: CPKelco Cogeneration, et al.
Dates of Filing: June 17, 2002, et al.
Case Numbers: VES-0088, et al.
On various dates in June 2002, the firms specified in the Appendix filed Applications for Exception and Applications for Stay with the Office of Hearings and Appeals (OHA) of the U.S. Department of Energy (DOE). The Applications concern electricity sales and revenue data that the DOE Energy Information Administration (EIA) requires the firms to provide annually on Form EIA-861, “Annual Electric Power Industry Report.” EIA in turn evaluates and publishes this individual firm data listed by state. The exception requests seek to have this data held as confidential and not released in any way. The Applications for Stay seek confidentiality pending resolution of the exception requests. For the reasons discussed below, we will deny the Applications for Stay.
I. Background
The evaluation of an Application for Stay is governed by Section 1003.45 (b):
(b) The criteria to be considered and weighed by the OHA in determining whether a stay should be granted are:
(1) Whether a showing has been made that an irreparable injury will result in the event that the stay is denied;
(2) Whether a showing has been made that a denial of the stay will result in a more immediate hardship or inequity to the applicant than a grant of the stay would cause to other persons affected by the proceeding;
(3) Whether a showing has been made that it would be desirable for public policy reasons to grant immediate relief pending a decision by OHA on the merits;
(4) Whether a showing has been made that it is impossible for the applicant to fulfill the requirements of an outstanding order or regulatory provision; and
(5) Whether a showing has been made that there is a strong likelihood of success on the merits.
10 C.F.R. § 1003.45 (b).
II. Analysis
The Applicants have made no showing of irreparable injury or immediate hardship or inequity in the absence of a stay. While the Applicants seek to avoid public release of various data to be submitted in their Form EIA-861s, the EIA does not plan to publish any of the data at issue until September or October 2002, two to three months from now. Immediate action in the form of a Stay is therefore unnecessary.
Each Application for Stay includes the general assertion that the Applicant will experience a competitive disadvantage if the Form-861 material is released. In general, the Applicants claim that if their EIA Form-861 data is released, competitors could closely calculate operating margin structures and thus know the price charged for the electricity that the Applicants sell. Each Applicant also claims disclosure of the information would place it at a competitive disadvantage in future transactions. However, these claims are unsupported, general assertions that might be made by any firm that files corporate data with the federal government. None of the Applicants has made the kind of specific, detailed factual showing that would demonstrate that it would be harmed in any way by release of this very general operating information for the calendar year 2001. Therefore, the arguments are not specific enough to support the claim that the Applicants will experience any injury or competitive disadvantage from the release of data from EIA Form-861.(1) Thus, the current stay submissions do not demonstrate a likelihood of success on the merits of the underlying Applications for Exception. 10 C.F.R. § 1003.45 (b)
The Applicants also each point out that they are party to commercial agreements that mandate that they keep the terms of their power sales agreements confidential. These assertions are unsupported. Moreover, the Energy Information Administration is authorized by federal law to collect and disseminate the information collected by EIA Form-861. See Federal Energy Administration Act of 1974, 15 U.S.C. § 761 et seq. The existence of a private contractual agreement cannot bar EIA’s collection or use of the EIA Form-861 data.
III. Conclusion
In accordance with the above discussion, we find that a Stay is not warranted for these Applicants because there is no immediate jeopardy to the Applicants, and because none of the Applicants have shown that it will succeed, based upon the information at hand, on the merits of the underlying Applications for Exception. Consequently, the Department of Energy has determined that these Applications for Stay filed should be denied.
It Is Therefore Ordered That:
The Applications for Stay, Case Nos. VES-0088, et al., filed by the firms listed in the Appendix to this Decision are hereby denied.
George B. Breznay
Director
Office of Hearings and Appeals
Date: July 2, 2002
(1) The Applicants, in pursuing their Applications for Exceptions, should supplement their applications with specific material and detailed fact-based explanations as to how, specifically, its ability to do business in its particular competitive market area and with its customers and competitors, will be harmed by the release of this data. Such a showing should include consideration of the fact that when the data is to be released it will be in aggregate form and, on average, more than one year old.
APPENDIX
VES-0088
CPKelco Cogeneration
c/o Andy Friedl, P.E.
2025 East Harbor Drive
San Diego, CA 92113VES-0089
Berry Petroleum Co.
c/o John E. Rosenbaum
White & Case
Two Embarcadero Center, Suite 650
San Francisco, CA 94111-3162VES-0090
Smurfit Stone Container Corp.
c/o John E. Rosenbaum
White & Case
Two Embarcadero Center, Suite 650
San Francisco, CA 94111-3162VES-0091
Jefferson Smurfit Corp.
c/o John E. Rosenbaum
White & Case
Two Embarcadero Center, Suite 650
San Francisco, CA 94111-3162VES-0095
OLS Energy-Chino
c/o Kenneth E. Smith
67 Park Place East
Morristown, NJ 07960