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JEA subpoenas Moody's, US DOE, other utilities for documents in Vogtle lawsuit

Florida municipal utility JEA has served subpoenas to six organizations, including the credit rating agency Moody's and the U.S. Department of Energy, for documents related to its litigated contract with Municipal Electric Authority of Georgia, or MEAG, for power from the Alvin W. Vogtle Nuclear Plant.

On Oct. 7, JEA notified the U.S. District Court for the Northern District of Georgia that it gave various requests to Moody's, the DOE, Alabama Municipal Electric Authority, Flint Electric Membership Corp., Orrick Herrington & Sutcliffe LLP and Gulf Power Co. JEA is asking Moody's, the DOE and law firm Orrick Herrington & Sutcliffe to produce certain documents and communications that refer to JEA and MEAG, Vogtle's operating and unfinished nuclear reactors, and in some cases, JEA's power purchase agreement with MEAG, which has a 22.7% stake in the Vogtle plant.

JEA also wants Alabama Municipal Electric Authority, Flint Electric Membership Corp. and Gulf Power to provide documents and communications on the two electric member cooperatives and the NextEra Energy Inc. subsidiary's interactions with MEAG regarding a potential power contract with Vogtle.

The subpoenas are the latest development in JEA's ongoing legal battle with MEAG over the validity of JEA's power purchase agreement for output from Vogtle units 3 and 4, two unfinished nuclear reactors that have faced cost overruns and construction delays.

The dispute between JEA and MEAG stems from August 2018, when Vogtle project partner Oglethorpe Power Corp. disclosed that the total project costs to finish the two reactors would increase by $1.5 billion for MEAG, Oglethorpe, Southern Co. subsidiary Georgia Power Co. and the City of Dalton, Ga. The new reactors, units 3 and 4, are now slated to come online in 2021 and 2022, later than initial projected commercial operation dates in 2016 and 2017. The delays and increased costs prompted JEA to call on MEAG to vote against continuing Vogtle's construction and allow JEA to exit the power contract, but MEAG declined to do so.

The two companies sued each other in September 2018 over the Vogtle power contract. A judge dismissed MEAG's lawsuit against JEA in the Georgia district court in April 2019 while JEA's legal claims against MEAG continue in U.S. District Court for the Middle District of Florida. However, a judge later ordered to move the case to Georgia.

Orrick Herrington & Sutcliffe served as bond counsel for both JEA and MEAG when the two parties were structuring the original PPA in 2008, JEA said in court documents. The law firm is currently representing MEAG in JEA's case against the utility, and JEA has asked the court to disqualify Orrick Herrington & Sutcliffe.

JEA asked Moody's to "produce all communications with MEAG or its agents relating to the Vogtle Project or the PPA" between Jan. 1, 2006, and present-day as one of 33 document requests in its subpoena. The utility also asked the company to provide documents on specific issues, such as Vogtle's construction costs and timeline and Moody's Aug. 31, 2017, comment that Vogtle majority project partner Georgia Power's decision to move forward with finishing the nuclear reactors was a credit negative.

JEA also wants the DOE to release all communication from Jan. 1, 2017, to the present between the federal agency and all Vogtle co-owners and between the DOE and MEAG regarding the department's $578 million loan guarantee for bonds tied to the unfinished nuclear reactors.

Marian McLemore, Flint Electric's vice president of cooperative communications, said JEA wants information regarding the electric co-op's discussions with MEAG in 2007 regarding its power supply needs. Flint Energies is cooperating with JEA's requests for documents.

Moody's and Alabama Municipal Electric Authority declined to comment on their respective subpoenas. The DOE, Orrick and Gulf Power did not respond to a request for comment.

According to the subpoenas, the firms have until Oct. 21 to hand over the requested materials to JEA.