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<br />project Nos. 4024-000, -003, -3-
<br />-004, 6439-000, 6423-000,
<br />6424-000, 6425-000, 6426-000,
<br />6427-000 & 6428
<br />
<br />accept crnnpetin~ applications for the applications that have now
<br />been tiled. 5/ Uncompahgre reasons that this reduction of the
<br />one-year sanction would not undermine our competitive process,
<br />since Uncompahgre has now been stripped of any competitive advantage,
<br />a result sufticient to serve as an effective deterrent to others.
<br />
<br />The fact that other entities have filed applications for the
<br />sites at lssue does not allay all of our concerns about the
<br />viability ot our competitive process. While applications have
<br />been filed for these sites, they have not yet been accepted for
<br />processing. Even were the applications to be accepted, Uncompahgre
<br />could still enjoy a competitive edge over these and any other
<br />competinoJ applicants, by virtue of the information it gained as a
<br />result of its relationship with the City. We explained this fully
<br />in our ~ebruary 2 order. ~/
<br />
<br />uncompahgre's argument also ignores the need for adequate
<br />deterrence in the sanctions we apply here. As a deterrent to the
<br />abuse in question, we continue to find it appropriate that Uncom-
<br />pahlJre be precluded from competing for these sites where applications
<br />are filed by others and accepted early in thlS one-year period,
<br />such that the deadline for filing competing applications expires
<br />before Uncompahgre's one year disqualification. only if we
<br />~ftectively assure that competition proceeds in an orderly and
<br />fair fashion and that municipal preference under Section 7{a) is
<br />employed only in the manner intended, can we expect potential
<br />deVelopers to come forward with their proposals to best develop
<br />the nation's water resources.
<br />
<br />H. Energenics' Petition
<br />
<br />~nergenics claims that, had the Commission investigated at
<br />the permit staye its allegations that the City of Montrose was a
<br />hidden hybrid, ~nergenics would have obtained the permit. 2/
<br />
<br />~/ See 18 C.F.R. S-4.33{a)(1).
<br />~/ 26 ~ERC ~6111l3 at p. 61,276 (1984).
<br />
<br />7/
<br />
<br />As noted in our earlier orders, Energenics, in view of its
<br />first-to-file status, would have been the successful competitor
<br />but for the City's municipal preference status.
<br />
<br />.~
<br />
<br />project Nos. 4024-000, -003,
<br />-004, 6439-000,.6423-000,
<br />6424-000, 6425-000, 6426-000,
<br />6427-000 & 6428-000
<br />
<br />-4-
<br />
<br />while we have acknowledged that our own power to remedy
<br />preference abuse at the licensing stage cannot totall~
<br />eradicate all the consequences of that abuse, our pollCY has
<br />been shaped by balancing our curative and dettere~t ability ~t
<br />the licensing stage against considerations regardlng allocatlon
<br />of limited staff resources. 8/ In remedying the abuse at the
<br />licensing stage, we provide an opportunity both for d~feated
<br />permit competitors and "for dissuaded potential comp~t~tors
<br />to come forward with their proposals in open competltlon.
<br />Energenics further argues that, since those entities which
<br />had filed applications for the sites at issue (Energenics and
<br />Wilcox) were compromised by the arrangement between Unc?mpahgre
<br />and the City, we abused our discretion b~ failing to :elnstate
<br />those applications and to issue the permlt to Energenlcs. As we
<br />have discussed, our decision to reopen the sites for further
<br />competition was based on our determina~i?n that there ~ay ha~G
<br />been prospective applicants who were SImIlarly compromIsed, In
<br />that they were dissuaded from filing at the permit stage. ~e
<br />believe it is equally in the public interest to protect thelr
<br />fair opportunity to compete.
<br />C. wi,lcox 's ~tJ..!::.!..C?.l'!-.
<br />Wilcox also argues 9/ that he was wrongfully denied the
<br />permits when the CommissIon reopened the sites, and relies on our
<br />decision in City of Bedford, et ~., for support..lQ/ Howev:r, .
<br />wilcox states that he lS now prepared to file a lIcense applIcatIon
<br />for the site in which he had previously been denied a permit, and
<br />asks that the Commission either postpone reopening .the site for
<br />additional competition until 120 days after this order or waive
<br />the first-in-time rule. 11/
<br />
<br />.
<br />
<br />y
<br />
<br />Consolidated Hydroelectric, Inc., et ~, 26 FERC '61,192
<br />(1984). This policy was sustained in City of Bedford v.
<br />~ERC, 718 F.2d 1164 (D.C. Cir. 198~).
<br />
<br />.
<br />
<br />v
<br />
<br />To the extent WilcoX'S arguments are similar to those raised
<br />by Energenics, we reject them for the reasons given above.
<br />
<br />10/20 FERC ~61,360 (1982).
<br />!!/ See 18 C.~.R. S4.33(g) (1983).
<br />
<br />'.
<br />
<br />,;.
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<br />~...
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