comments. Rather, both emphasized the need for substantial support of the settlement by the parties. Their complaint as to the allocations arose only in their reply comments. Even then, only Brooklyn Union addresses the proposed plan in detail. We know that both Brooklyn Union and PSEG would receive more gas under the settlement than they received last year and, in PSEG's case, more than was expected as recently as April of this year. Neither has made more than a vague representation that the amounts allocated would not be enough to cover their high priority needs. Moreover, Brooklyn Union in its assertion that the adverse impact on it of the proposed settlement compared with the Opinion No. 778 plan would be approximately $14 million has assumed in its comparison that the higher level of supply under the settlement plan would also apply to the Opinion No. 778 plan (Brooklyn Union reply at 9). At the lower levels of supply which would pertain under the 778 plan (at least for the next year) if it were to continue, the adverse impact on Brooklyn Union would be significantly reduced to something on the order of $5 million (assuming arguendo a $2.50 per Dt value for replacement gas). We consider even that figure to be speculative depending on Brooklyn Union's total pipeline supplies. The comparison should not have been of 75,712 Mdt (under 778) versus 70,028 Mdt (under the settlement), but rather 72,640 (under the existing 778 plan) versus the 70,028 Mdt they would receive under the settlement. (See appendix B to Elizabethtown's Initial Comments and Miller Affidavit attached to Transco Answer at p. 2). In terms of Brooklyn Union comments on volumes that would be received by other parties, one item is of interest. Brooklyn Union's comments, p. 10, show the volumes that North Carolina Natural, Piedmont and PSNC would receive. The column entitled excess allocation (5) includes 5,610 Mdt for North Carolina Natural. Objection on this point appears totally to ignore the fact that Farmers Chemical which presumably would be enti

tled to substantially increased supplies under the NGPA is served by North Carolina Natural. Moreover, North Carolina Natural noted that contrary to PGW's suggestion, that they in fact have advised Transco of possible need for emergency supplies.

27 See, Michigan Consolidated Gas Co. v. F.P.C., 283 F.2d 204, 224 (D.C. Cir. 1960).

28 State of North Carolina at 24.

29 PGW's other pipeline supplier, Texas Eastern, delivered 33,563 Mdt to PGW in the period September 1, 1977 to August 31, 1978. Texas Eastern projects deliveries to PGW for the same period in 1978-1979 of 34,056 Mdt. (Form 16, filed October 16, 1978).

30 Statement of H.J. Miller, Jr., Concerning Offer of Settlement in Docket No. RP72-99 at p. 2.

"Transco's affidavit, supra, n. 30, states that the settlement proposal "was developed as a means of allocating the available supplies on the Transco system for the next several years *." (Id., p. 1). Article II of the settlement establishes a base of 636 MMdt for CD, ACQ and firm direct customers and provides for continuation of the plan from year-to-year assuming availability of at least this base amount. Volumes in excess of 636 MMdt are allocated in accordance with specified factors. (Tariff sheets, pp. 223-224; 230-231). Under these circumstances, information on Transco's near-term supply situation (e.g., 1979-1982) would aid our evaluation of the settlement. Accordingly, Transco's submittal should encompass such information to the extent reasonably available at this time.

32 Unlike the requirement applicable to each customer for filing an affidavit on end-use impact (supra, p. 18), it is not mandatory that all parties file comments on this order.

"Parties having similar positions on the settlement should consolidate their positions and make a collective appearance through the use of a single spokesman. We reserve the right to limit participation in the oral argument to avoid repetitive presentations.

By order of May 9, 1978, 3 FERC ¶ 61,115, the Commission issued a certificate of public convenience and necessity in Docket No. CP77-363 pursuant to Section 7(c) of the Natural Gas Act to Columbia Gas Transmission Corporation (Columbia) and National Fuel Gas Supply Corporation (National Fuel) authorizing the transportation in interstate commerce of natural gas purchased by UGI Corporation, Gas Utility Division (UGI), from Jack L. Hennig and UGI Development Company (UGID), the producers of the gas.' The order of May 9, 1978 is conditioned upon the filing by the producers for a certificate of public convenience and

necessity pursuant to Section 7(c) of the Natural Gas Act authorizing the sale of natural gas in interstate commerce to UGI for resale. By order issued October 10, 1978, 5 FERC ¶ 61,020, the Commission denied rehearing of the order of May 9, 1978. By notice issued November 9, 1978, the time for UGID to file for certificate authorization was extended to December 8, 1978.

By petition filed December 8, 1978, UGID and UGI request a determination by the Commission that the filing of a certificate application by UGID has been rendered unnecessary by the Natural Gas Policy Act of 1978. UGID and UGI also request

that, pending such a determination, the Commission stay the requirement that UGID file an application.'

The Commission finds:

(1) Further time is required to consider the merits of the petition filed by UGI and UGID.

(2) A limited stay of the requirement that UGID file a certificate application is appropriate. The Commission orders:

In order to provide the Commission with sufficient opportunity to consider the merits of the petition filed by UGI and UGID on December 8, 1978, but without any determination of such merits notice is hereby given of the Commission's intent to consider the petition. Further, a limited stay of the requirement for the filing of a certificate application by UGID is hereby granted. This limited stay shall remain in effect until dissolved by the Commission

or until the Commission makes a determination on the merits of the petition filed by UGI and UGID or until the Commission expressly indicates that no determination will be made on the merits of the petition, whichever occurs first. In all other respects the orders of May 9, 1978 and October 10, 1978 shall remain in full force and effect.

-Footnotes

In a petition to amend filed June 8, 1978, in the instant docket, Columbia and National Fuel advise that UGID will be the sole seller of the gas under a superseding

contract.

2 In their prayer for relief (petition, p. 6) the petitioners request a stay of the filing requirement and a concurrent finding and conclusion by the Commission that such a filing is not required. Since a jurisdictional determination by the Commission would render unnecessary any request for a stay, the instant petition will be construed as requesting a stay pending a determination on the request for a jurisdictional interpretation.

On December 7, 1978, Public Service Company of Indiana (PSCI) filed a motion for stay of that portion of Ordering Paragraph (G) of our suspension order of August 25, 1978, 4 FERC ¶ 61,227, in which we granted intervenors' motions for summary disposition against PSCI's inclusion in its capital structure of accumulated deferred investment tax credits (ADITC) at the common equity rate of return, rather than at the overall rate of return. To implement this summary disposition, the Commission further required in Ordering Paragraph (G) that PSCI file revised rates treating ADITC at the company's overall rate of return. On October 24, 1978, PSCI made the required compliance filing, under protest. On September 25, 1978, PSCI filed an application for rehearing of the ADITC provisions of our order of August 25, 1978, (supra) and on December 1,1978,5 FERC ¶ 62,066, this application was denied by operation of law.

On December 7, 1978, PSCI filed a petition for review in the United States Court of Appeals for the District of Columbia of our disposition of ADITC, as contained in our suspension order of August 25, 1978 and in our denial of rehearing of October 23, 1978. Before us now is PSCI's motion for stay, filed simultaneously with its petition for review, in which PSCI seeks, pending completion of judicial review, a stay of the effects of our ADITC disposition upon its rate filing in this docket, which, pursuant to our

suspension order of August 25, 1978, will become effective January 28, 1979. We find no basis for granting PSCI's motion and shall deny it for the reasons set forth below.

We follow a general policy of denying motions for stays of our orders' and this policy is based upo consideration of giving definiteness and finality t deliberative decisions of this administrative agency The set of criteria upon which we determin appropriate instances to depart from this gener policy are set forth in Washington Metropolit Area Transit Commission v. Holiday Tours, In 559 F. 2d 841 (D.C. Cir. 1977), and in Virgin Petroleum Jobbers Ass'n v. F.P.C., 259 F. 2d 9 (D.C. Cir. 1958). PSCI does not meet these crite in this docket.

The key criterion in the seminal case Virginia Petroleum Jobbers and in Holiday Tours the granting of temporary injunctive relief aga an agency order pending completion of judi review is a showing by the movant that it wil irreparably injured in the absence of the stay. P in its motion for stay, makes no allegations th will be injured irreparably by complying with ADITC Ordering Paragraph (G) when ma effective on January 28, 1979 its rates filed in docket. The closest PSCI comes to alleging injury at all is its allegation that it "stands to k

tax credit" because of an interpretation by the Internal Revenue Service (IRS) of the relevant provision of the Internal Revenue Code, 26 U.S.C. § 46(f) (1976), contrary to the statutory construction underlying the Commission's summary disposition of ADITC in this docket. PSCI cites no ruling, regulation or other action by the IRS having the force of law and embodying an interpretation of the controverted IRC provisions contrary to ours. Nor does PSCI cite any administrative actions by the IRS denying ADITC to any utility, including PSCI, for treating ADITC as we required in our suspension order in this docket.' Thus, the injury which PSCI alleges is based upon the speculative possibility that IRS may adopt a position contrary to ours. This speculativeness of injury militates against our granting the stay. Should our disposition of ADITC in this docket eventually be overturned on PSCI's appeal, the Court would have authority to order the Commission to restore PSCI to the same position as if the Commission had accepted for filing PSCI's originally-filed ADITC-in-equity rates.' This restoration would include reinstitution of the proposed ADITC-in-equity rates in conformity with any controlling IRS position on the subject.*

In short, if the Court on review finds that PSCI should have been collecting rates since January 28, 1979, based, inter alia, upon a rate of return on ADITC equal to that earned on equity, judicial relief properly may include ordering a rate surcharge to recoup the foregone revenues and to put PSCI retroactively in compliance with the Court's opinion of the correct construction of the ADITC provisions of the IRC. PSCI thus makes no showing whatsoever that compliance with our order during the pendency of an ultimately successful appeal will result in injury which is irreparable.

Our decision to deny PSCI's motion for stay also is based upon our assessment that substantial injury will be inflicted upon PSCI's wholesale customers through the granting of the requested stay. Although the rates filed in this docket will be collected subject to refund, beginning January 28, 1979, the retail customers to whom these rates ultimately will be flowed through will not necessarily be the same customers to recover refunds in the

indeterminate future, should our disposition of ADITC eventually be vindicated upon judicial review. There is little practical limit to the rates and charges which a utility may file and make effective, subject to refund. Since the "* * * primary purpose of [the Federal Power Act] is the protection of consumers from excessive rates and charges *.", it is our obligation in fashioning a suspension order under the Act to make threshold determinations of the justness and reasonableness of proposed rates. This we did by summarily disposing of PSCI's treatment of ADITC.' We find in PSCI's motion for stay no substantial case on either the merits or the equities under Virginia Petroleum Jobbers and Holiday Tours as would justify our reversing our earlier judgment that the public interest lies in PSCI's being prohibited from collecting, albeit subject to refund, rates based upon an equity rate of return on ADITC.

The Commission orders:

PSCI's motion for stay is denied.

-Footnotes

'Maine Public Service Company, Docket No. E-8264, (Order Denying Stay Pending Judicial Review, April 14, 1978, 3 FERC ¶ 61,044).

In its past rate filings before us, PSCI has treated ADITC in its capital structure as we required in our suspension order here. PSCI does not allege that this treatment ever has resulted in any loss to it of the credit. › Boston Edison Co. v. F.P.C., 557 F. 2d 845 (D.C. Cir. 1977), cert. denied, 434 U.S. 956 (1977).

4

Metropolitan Edison Company, Docket Nos. ER76-209 and ER76-492, (Order Denying Application for Rehearing and Motion For Stay, February 13, 1978, 2 FERC 61,127).

'El Paso Natural Gas Co., Docket No. CP74–314, et al. (Order Denying Motions For Stay, September 20, 1977, 59 FPC 2115). Viewing as sound our summary disposition of ADITC, we give greater credence to this mismatch of usage and payments than to that which would occur should we deny the stay and our challenged suspension order be overturned on appeal.

On August 1, 1977, the Commission' issued Opinion No. 816, 59 FPC 1293 (1977), in this docket which fixed just and reasonable rates for certain of the resale customers of Illinois Power Company (IP). On August 30, 1977, the City of Oglesby, Village of Ladd and Cedar Point Light and Water Company, Illinois (Municipalities) filed a petition for rehearing urging that the Commission erred in its August 1, Opinion and order. On September 2, 1977, IP filed an untimely petition for rehearing. We will therefore construe it as a petition for reconsideration. By order dated October 26, 1977 the Commission granted rehearing for purposes of further consideration to Cities and to IP.

In their petition for rehearing the Municipalities contend that the Commission erred in failing to reject Illinois Power's rate filing as discriminatory; in its failure to direct IP to delete from its tariff proposed anticompetitive and non-cost justified terms and conditions; and by allowing IP to utilize interperiod income tax normalization. Municipalities also state that the Commission erred in allowing IP to add to its tariff a provision that was not included in the company's case-in-chief.

After review of the record we conclude that clarification regarding the "Conditions of Service" issue is required. Further, the Commission will consider Municipalities' contention that the Commission erred in adding a tariff provision not included in the company's case-in-chief. This objection goes to the Commission's acceptance of IP's request for authority to modify its tariff to require a customer to reimburse IP for any expenses incurred by it in modifying its system to allow that customer to transfer electric energy requirements either to or from the system served by IP, and for any unrecovered expenses that are specifically assignable to that customer. The Municipalities state that by inference they did object to any modification of their stated position. They point out the record is silent on the modification requested and therefore the record cannot support the additional clause. They also suggest briefs on exceptions are inappropriate for unilaterally suggesting changes to the terms and conditions of a contract.

We accepted the modification in the belief it was unopposed and appeared reasonable. Because Municipalities object to the modification and in the absence of record support for the modification we will grant rehearing and reject the IP modification. IP is free to propose such modification in a future filing where its merits may be tested on the record and the questions raised by Municipalities concerning the exact meaning of the language may be scrutinized.

The Municipalities further request the Commission to specifically direct IP to modify its tariff provision entitled "Conditions of Service" so as to delete language requiring a customer to isolate those portions of its distribution system served by IP from portions served by another Company and

prohibit the customer from transferring electric energy requirements either to or from the system served by IP.

Opinion No. 816, affirming the Judge, ordered clarification of the IP's "Conditions of Service" tariff provision to state that its intent is to require reasonable notice to IP prior to a customer's either transferring electric energy requirements to or from the system served by IP or serving part of its distribution system by another company. The Commission staff testified the provision could be construed to restrict the resale of energy purchased by a customer and prevent a customer of IP from interconnecting its own system with both the IP and a third utility system's generation or even the customer's own generation and would therefore lessen competition by forcing the customer to deal either entirely with IP or not at all where electrical isolation of the customer's system is not desirable.

Notwithstanding statements in IP briefs that the conditions relate to system reliability, an IP witness testified that IP is not concerned about system reliability, but rather, that if IP is to install facilities to meet all of a customer's requirements then that should be so stated in the rate schedule (Tr. 230). If the customers desire to install their own generation that is fine with IP (Tr. 231). Thus, the real purpose of the conditions is to secure adequate notice to IP if customers make other arrangements for obtaining some of their requirements. In consideration of this testimony the Commission ordered modification to conform to the intent of the provision.

Municipalities now point out that IP may misconstrue the Opinion and merely add a notice provision and leave intact the restrictive terms and provisions to which it and Staff object. Upon consideration, we will clarify the Opinion consistent with the logical intent of the modification. Th notice provision alone would protect IP from legitimate cost considerations whereas the additio of the notice provision to the other three paragraph of the provision not only fails to remove the restrictive prohibitions but actually increases th burden on the customer by also requiring noti before a customer can undertake to transfer ener or requirements which will still disqualify him f service under that schedule. We will therefo clarify the Opinion to state that the intent was t IP delete the three restrictive paragraphs objec to and order inserted therefor a provision requir the customers to give IP reasonable notice transfer or discontinuance of service. This no period will also serve to protect IP against havin supply service at a rate that is no longer appropr due to a customer's arrangement of a second so of supply, since the Company will have adeq time to ascertain the anticipated usage patter such a customer and to design and file with different, appropriate rate.

The petition for reconsideration of IP

issues which were urged by it in its brief on exceptions to the Initial Decision, and which were adequately considered by the Commission in Opinion No. 816. However, IP now urges that adoption by the Commission of the 12-month coincident peak method of demand allocation instead of the single annual peak method or the summer peak method is wrong in that it is not consistent with the Commission's disposition of the issue in Opinion No. 813, Louisiana Power and Light Co., Docket No. E-8615 (July 21, 1977, 59 FPC 968). We have reviewed Opinion No. 813 and Illinois Power's contentions and conclude that Opinion No. 816 is not inconsistent with the Commission's decision in Opinion No. 813. As we stated in Opinion No. 813 at page 980:

In many cases the Commission has found the 12 CP method appropriate where these factors are relevant. Thus in New England Power Company, Opinion No. 803, 58 FPC 2322 issued June 6, 1977, in Docket No. E-8641, et al., the Commission approved use of the 12 CP method where the monthly system peak loads ranged from 80% to 98% of NEPCO's annual system peak load.

However, the 12 CP method is not appropriate in all circumstances for all systems. For the reasons stated below, the Commission finds that the 12 CP method is not appropriate for use on the LP&L system and that an alternative method must be used.

The Commission orders:

(A) The petition for reconsideration of the Illinois Power Company is denied.

(B) The petition for rehearing of Municipalities is granted to the extent stated in this order and Opinion No. 816 is modified accordingly, and in all other respects, is denied.

-Footnotes-- ·

'This proceeding was commenced before the Federal Power Commission (FPC). By the joint regulation of October 1, 1977 (10 CFR 1000.1), it was transferred to the FERC. The term "Commission", when used in the context of action taken prior to October 1, 1977, refers to the FPC; when used otherwise, the reference is to the FERC.

'Municipalities' concern is not unfounded. A premature filing by IP in compliance with Opinion No. 816, filed October 11, 1977, did in fact seek to add a "notice" paragraph to that provision without deleting the original three objectionable paragraphs.

On December 11, 1978, Florida Gas Transmisson Company (Florida Gas) tendered for filing proposed changes in its FERC Gas Tariff, Original Volumes Nos. 1, 2 and 3.' The proposed rate changes would be effective January 12, 1979, and reled an increase in revenues of $18,479,200, or approximately 10.6%, from jurisdictional sales and service under Rate Schedules G, I, T-3 and X-6.

Public notice of Florida Gas' filing was issued con January 5, 1979, providing for protests or Petitions to intervene to be filed on or before January 18, 1979.

Florida Gas proposes an overall rate of return of 11.9%, and states that the need for higher rates 15 attributable to two principal factors: the terminaace of its original transportation services under

Rate Schedules T-1 and T-2, and a general increase in all its operating costs. Florida Gas' proposed rates' also include the cost impact of the Louisiana First Use Tax, which becomes effective April 1, 1979, prior to the end of the test period. Further, Florida Gas proposes to change the minimum annual bill provisions contained in Rate Schedule G,' to update the payment provision for make-up gas.

In addition, Florida Gas requests waiver of Section 154.63(e)(2)(ii), to permit the inclusion in its proposed rates of costs of gas purchase facilities which have not been certificated. It also seeks waiver of Sections 154.22, 154.51 and 154.64 of the Commission's Regulations to permit the filing of cancellation notices for Rate Schedules T-1 and