Duke Energy and Progress Energy on March 26 filed a revised wholesale market power mitigation plan with the Federal Energy Regulatory Commission (FERC) as part of their proposed merger.
The plan provides more details on the notice of intent to file a mitigation plan submitted to the North Carolina Utilities Commission (NCUC) on Feb. 22. It requests that the FERC issue orders approving the mitigation plan, the Joint Dispatch Agreement and the Joint Open Access Transmission Tariff within 60 days of the filing, and no later than June 8, 2012. The companies intend to seek final merger-related approvals from the NCUC and the Public Service Commission of South Carolina (PSCSC) prior to the July 8, 2012, merger agreement termination date.
“We believe this plan addresses the FERC’s concerns about market power in the Carolinas,” said Jim Rogers, chairman, president and CEO of Duke Energy. “We have also had constructive discussions about the mitigation plan and other merger-related issues with the North Carolina and South Carolina consumer advocates over the past several weeks, and those discussions will continue while the FERC considers this plan. We continue working to move this process forward, gain the necessary regulatory approvals and complete the transaction.”
“We believe the planned merger continues to offer substantial benefits for our customers, shareholders and communities,” said Bill Johnson, chairman, president and CEO of Progress Energy. “We are focused on securing the remaining approvals necessary to begin to deliver on the promises of this combination.”
The NCUC must also approve the merger and the Joint Dispatch Agreement in the Carolinas. The PSCSC must approve the Joint Dispatch Agreement.
The following are key elements of the mitigation plan:
The FERC filing features a permanent mitigation plan with seven transmission projects, estimated to cost approximately $110 million. The transmission projects significantly increase the power import capabilities into the Progress Energy Carolinas and Duke Energy Carolinas service areas and enhance competitive power supply options in the region.
The proposal also features a two-to-three-year interim mitigation plan with must-deliver, must-take power purchase agreements signed with Cargill Power Markets, LLC; EDF Trading North America, LLC; and Morgan Stanley Capital Group, Inc. The companies will sell 800 megawatts during summer off-peak hours, 475 megawatts during summer peak hours, 225 megawatts during winter off-peak hours, and 25 megawatts during winter peak hours. The agreements, or similar power purchase agreements, will be in place from the date the merger closes until the transmission projects are operational.
Potomac Economics will serve as Independent Monitor of the interim power purchase agreements and a component of the permanent mitigation plan.
For planning purposes, the companies are targeting closing the merger on July 1.
To date, the companies have received merger-related approvals from, or met the requirements of the U.S. Nuclear Regulatory Commission, Kentucky Public Service Commission, and the shareholders of both companies.
Additionally, the companies have met their obligations with the U.S. Department of Justice under the Hart-Scott-Rodino Act (HSR). However, because the merger will not close by April 26, 2012 – 12 months from the expiration of the waiting period of the initial HSR filing – new HSR filings are required. The companies made new HSR filings on March 22, 2012.
Consummation of the merger is contingent upon receipt of all regulatory approvals, agreement on state regulatory issues related to the merger, and satisfaction of all of the conditions to the merger in accordance with the terms of the merger agreement.