Case No. VES-0094June 27, 2002
DECISION AND ORDER
OF THE DEPARTMENT OF ENERGYApplication for Stay
Name of Petitioner: Sithe Energies, Inc.
Date of Filing: June 4, 2002
Case Number: VES-0094
On June 4, 2002, Sithe Energies, Inc., (Sithe) of New York, New York, filed with the Office of Hearings and Appeals (OHA) of the U.S. Department of Energy (DOE) an Application for Exception and an Application for Stay under the provisions of 10 C.F.R. § 1003.20. The Sithe Application concerns annual revenues and sales data pertaining to the firm’s sale of electricity that the DOE Energy Information Administration (EIA) collects through Form EIA-861, “Annual Electric Power Industry Report.” EIA publishes this data, by state, in firm-specific form. In its exception request, Sithe seeks authorization to have its revenue and sales data withheld from public release on grounds of confidentiality. Sithe has also filed an Application for Stay of release of the information contained in Form EIA-861, pending resolution of the exception request. This determination considers only the Application 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). The Sithe submission does not satisfy these criteria and no stay is warranted in this case.
II. Analysis
Sithe has made no showing of irreparable injury or immediate hardship or inequity in the absence of a stay. Sithe seeks to avoid public release of the data, but EIA does not plan to publish any of the Form EIA-861 data until September or October 2002, two to three months from now. Immediate action on its submission is therefore unnecessary. Furthermore, as to harm or injury of a longer term nature, Sithe has not provided the kind of detailed factual material that would show that it would be harmed in any way by release of this very general data for its operations for the calendar year 2001.
In its Application for Exception, Sithe makes the general assertion that it will suffer a competitive disadvantage if this material is released. Sithe argues that, if the information were released, its competitor in sales to the United States Navy, San Diego Gas & Electric Company (SDG&E), could use the data, combined with knowledge of the price it charges Sithe for electricity, to calculate Sithe’s operating margin structure. Sithe also claims that SDG&E can derive the price Sithe charged for electricity sold to the Navy. This would impact its contract negotiations with SDG&E, Sithe claims. These very general assertions might be made by any firm that files corporate data with the federal government. Therefore, the arguments are insufficient to support the claim that Sithe will experience any injury or competitive
disadvantage. (1)
In the absence of this type of material, there is nothing in the record that would lead us to conclude the requested exception might be warranted. As a result, Sithe does not demonstrate that it will succeed on the merits of the Application for Exception, and the Stay request fails on these grounds as well. 10 C.F.R. § 1003.45 (b).
III. Conclusion
In accordance with the above discussion, we find that a Stay is not warranted in this case, because there is no immediate jeopardy to Sithe, and because Sithe has not shown that it will succeed on the merits of the underlying Application for Exception. Consequently, the Department of Energy has determined that the Application for Stay filed by Sithe Energies, Inc., on June 4, 2002, should be denied.
It Is Therefore Ordered That:
The Application for Stay filed by Sithe Energies, Inc., Case No. VES-0094, on June 4, 2002, is hereby denied.
George B. Breznay
Director
Office of Hearings and AppealsDate: June 27, 2002
(1) A claim of this type should include specific material and detailed, fact-based explanations as to how, specifically, in the case of Sithe, its doing 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.