BEFORE THE
ARKANSAS PUBLIC SERVICE COMMISSION .
*=.
IN THE MATTER OF THE PETITION OF
ENTERGY ARKANSAS, INC. FOR A
DECLARATORY ORDER APPROVING THE
DETERMINATION OF AVOIDED COSTS FOR
QUALIFIED COGENERATION FACILITIES
PURSUANT TO COGENERATION RULES
1
1
b
DOCKET NO. 04-1 13-U
)
)
)
)
PINE BLUFF ENERGY, LLC’S MOTION FOR MODIFICATION OF
INTERIM PROTECTIVE ORDER OR, IN THE ALTERNATIVE,
FOR APPROVAL OF “REVIEWING REPRESENTATIVE” STATUS
WITH RESPECT TO “HIGHLY SENSITIVE PROTECTED MATERIAL”
Pine Bluff Energy, LLC (“PBE”) respectfblly submits the following as its Motion for
Modification of Interim Protective Order or, in the Alternative, for Approval of “Reviewing
Representative” Status with respect to “Highly Sensitive Protected Material”:
I. Introduction and Procedural Posture
In Order No. 4, entered on February 25, 2005, the Commission established an interim
protective order establishing certain procedures $or and limitations on access to “Protected
Materials” and “Highly Sensitive Protected Materials” by the participants in this docket. Order No.
4 adopts many, but not all, of the proposals made by Entergy Arkansas, Inc. (“EAI”) in its Motion
for Protective Order filed herein on January 5,2005 in response to the Staffs Data Requests.
Among other things, the Interim Protective Order limits access to information unilaterally
determined by EA1 to be “Highly Sensitive Protected Material.” Such information can only be
reviewed by outside counsel for PBE with the kaw firm of Kutak Rock LLP and “outside
consultants working under the direction of Kutak .who do not otherwise represent any electric
market participant.” (Order No. 4, pg. 11 (emphasis added).)
1
The Interim Protective Order also
One of the three Commissioners, Randy Bynum, dissented in part to the Interim Protective Order. (Order No. 4,
pg. 13.) Commissioner Bynum’s partial dissent related to the extent of the access limitations imposed upon PBE
and its counsel with respect to “Highly Sensitive Protected Materials” under the Interim Protective Order. Id
10-106006.3
prohibits PBE’s legal counsel from making any “other copies [of Highly Sensitive Protected
Materials] without the express consent of [EAI]” and further provides that the one copy provided to
PBE’s legal counsel “shall not be removed from the Little Rock office of Kutak or electronically or
otherwise transmitted to any other person or party.” (Order No. 4, pg. 12.)
In ruling on EAI’s request for such a sweeping protective order, the Commission was clear
to frame its ruling as an “interim” decision and stated that it had “reserve[d] to the General Staff of
the Commission and Intervenors [Le., PBE] the right to contest at a hture date the Company’s [i.e.,
EAI’s] continuing entitlement to the protective order.” (Order No. 4, pgs. 8-9.) The Commission
further stated that “the Staff and Intervenors are encouraged to initiate an appropriate objection if it
determines that the scope of an interim protective order is too broad or has been applied too broadly
by the Company [i.e., EAI].” (Order No. 4, pg. 9.) “In the event of such a contest, the burden of
proof rests on the Company [Le., EAI].” Id. at fn 4. The Commission further directed the Company
to designate materials as highly sensitive only on
il
very limited basis (“Further, to protect the
public’s right of access to the maximum extent possible, the Company shall hold to an absolute
minimum the amount of data to be protected from public disclosure as well as the amount of data
designated as Highly Sensitive Protected Materials.”) (Order No. 4, pg. 12).
Subsequent to the entry of the Interim Protective Order, EA1 has begun to slowly produce
some of the information and documentation that F’BE has requested through discovery in this
docket.2 However, other than information provided
ils
a result of Staffs data requests, most of the
documents produced to PBE have been designated by EA1 as “Highly Sensitive Protected
* EA1 has withheld the more material and voluminous information and documentation pursuant to unfounded
relevancy objections. Those objections are the subject of PHE’s Motion to Compel filed herein on February 24,
2005. That motion has not yet been ruled on by the Commission, but once a ruling is obtained, PBE expects that
additional documents, including a large number of documents which EA1 considers to be “Highly Sensitive
Protected Materials,” will be produced by EA1 in this docket.
10-106006.3
2
Materials,” and as discussed below, EA1 has already demonstrated that, despite the limitations on
the use of such designation which the Commission sought to impose, it will seek to use such
designation broadly. Because of EM’S designation of these materials as highly sensitive, counsel
for PBE is precluded from disclosing or discussing the contents of these documents with the PBE
employees who retained the undersigned counsel to lmrsue its interests in this docket and who are
involved in making decisions about how PBE should proceed in this docket. Counsel for PBE also
cannot make copies of these documents, remove them from its Little Rock office or even provide
copies of those documents to its technical expert and other attorneys in the law firm, including
Robert W. George, co-counsel for PBE who works out of Kutak’s Fayetteville office. Finally,
because of the uncertainty created by the Order’s provision limiting access to outside consultants
“who do not otherwise represent any electric market participant,” counsel for PBE is not sure
whether it can even have these documents and similarly designated future documents reviewed by
its technical expert, Scott Nonvood.
11. Necessary Modifications of the Protective Order
As is discussed hereinafter in more detail, the: Interim Protective Order is indeed too broad
and PBE can already see that this order, unless modified, will be used by EA1 to prevent PBE from
fully and effectively participating in this docket and to prejudice the ability of counsel for PBE to
adequately represent PBE.
A.
The Interim Protective Order’s Provisions Regarding “Highly Sensitive Protected
Materials” Substantially Prejudice PBE’s Rights and, Therefore, those Restrictions
Should be Vacated.
The Interim Protective Order’s provision regarding “Highly Sensitive Protected Materials’’
contravenes PBE’s recognized right to access information relevant to EAI’s avoided cost
calculations. In its Response to EAI’s Motion for Protective Order, PBE explained why restrictions
10-106006.3
3
on access to materials unilaterally determined by EA1 to be “Highly Sensitive Protected Materials”
violated PBE’s rights as a qualifying facility under PURPA and its rights to full discovery and
participation in this docket under the Commission’s rules. See PBE Response to Mot. Prot. Order,
pgs. 2-3 (citing FERC Regulation 292.302, 18 CFR Part 292, Availability of Electric Utility Cost
Data; Arkansas Cogeneration Rule 3.2, Availability ofElectric UtilitySystem Cost Data; and APSC
Practice and Procedure Rule 13.05). PBE’s rights (not just its legal counsel’s rights) to access
information relevant to avoided costs (the central issue in this docket) was never disputed by EA1 or
by the Commission in its ruling on EAI’s Motion. Nevertheless, the Interim Protective Order
entered by the Commission effectively allows EA1 tal trample on PBE’s right to access information
by delegating to EAI the right to unilaterally declare information relevant to its avoided costs
calculation to be “Highly Sensitive Protected Materials” which PBE’s representatives, even those
limited to non-competitive functions, are not permitted to review under Order No. 4.
EAI’s intent to use the “Highly Sensitive Protected Materials” designation to deprive PBE
of its right to access information relevant to the avoided costs issue in this docket has already
manifested itself in the limited discovery that PBE has been able to obtain thus far in this docket.
On or about March3, 2005, EA1 finally produced some of the first documents sought by PBE.
Included within these recently produced documents were two spreadsheets containing some limited
information relating to prior transactions that EA1 had treated as “rejected purchases” or
“emergency sales” under its avoided cost calculation following the “refinements” made by EA1 to
its methodology in September 2003:
EAI’s disclosure that its avoided cost methodology, as
refined, would include “rejected purchases” or “emergency sales” is what prompted PBE to take the
legal action that ultimately resulted in this docket being opened. For EA1 to now claim that PBE
Because PBE’s counsel cannot make copies of these “Highly Sensitive Protected Materials” it cannot provide the
Commission with copies of these: documents for review. If EA1 will provide written consent to the copying and
filing of these documents under seal, PBE will supplement this Motion with such a sealed filing.
10-106 0 0 6 . 3
4
representatives (and possibly its experts) cannot review the limited information EAI has provided
about these central issues is a blatant example of how EA1 has already abused and will undoubtedly
continue to abuse the overly restrictive provisions of the Interim Protective Order pertaining to
Highly Sensitive Protected Materials.
Another example of EAI’s willingness to ignore the Commission’s direction that the
designation of materials as highly sensitive be kept to an absolute minimum arises from EM’S latest
“production” of information. On March 9, 2005, in response to PBE data request No. 7, Entergy
produced a report entitled “Qualified Facilities Project Preliminary Report” dated February 1,2002,
and an accompanying e-mail dated February 5, 2002 from Larry Ables, both of which EA1
designated as Highly Sensitive Protected Material. Yet those documents were made public and
produced, absent a HSPM designation, both in the avoided cost proceedings in Louisiana4 and
earlier in this docket in response to a Staff data re~luest.~
EAI’s attempt to now designate such
materials as highly sensitive is in direct contravention of Order No. 4 and has caused and will cause
delays and inefficiencies in the discovery process.
Finally, on this point, PBE respectfully suggests that the Commission should reconsider its
interim ruling on EAI’s request for a “Highly Sensitive Protected Materials” designation in light of
the recent decision by Judge William J. Cowan soundly rejecting EAI’s request for materially
identical protections in a FERC proceeding investigating Entergy’s AFC program. In In re Entergv
Services, Inc., FERC Docket No. EL05-22-000 (hereinafter referred to as the “the AFC Docket.’’)6
Participants in the AFC Docket had requested “information regarding generation resources and
Data request QF6-26, LPSC Docket No. U-27469. PBE notes that the version of the Report produced in
Louisiana and as noted in the text to footnote 5 below, contained 4 short underscored comments that were not
included in the version submitted to PBE and designated as HSPM; otherwise, the versions appear identical.
5
Response to data request APSE 1-2 produced to PBE pursuant to data request PBE No 1 1 .
A copy of Opinion rendered by Judge Cowan in the AFC Docket is attached hereto as Exhibit A.
10-106006.3
5
specific service transactions . . . [which they claimed was] necessary to evaluate the AFC
methodology and policies” being investigated by FERC. (ALJ March 2,2005 Order, 7 14.) Entergy
claimed that disclosure of “cost-related information” would cause harm to its retail customers
because it would “enable competitors to bid at prices tailored to the buyer’s cost . . , resulting in an
improperly functioning market.” (Id. at T[ 5.) Entergy’s proposal for resolving its concerns was to
establish a special category of information called “Highly Sensitive Protected Materials” and to
limit access to such information to the Commission’s staff, “outside counsel and those outside
experts who are not directly involved in, having direct supervisory responsibilities over, or
providing advice to other market participants concerning the purchase and sale, or marketing of
electricity.” (Id. at 7 4.)
In finding that EAI had no right to so severely limit access of parties (including QFs) to
relevant information, Judge Cowan reasoned as follows:
The information Entergy seeks to shield more thoroughly than other protected
information goes to the very heart of the Commission-ordered investigation. . . .The
need of the parties challenging the propriety of Entergy’s AFC program . . . to
information that Entergy would designate as HSPM would appear very strong. . . . It
would be odd indeed to initiate an investigation as to the concerns of certain parties
and to then deny access to information that is potentially relevant to employees and
experts of such parties who have particular knowledge of the possible problems.
*
*
*
Entergy argues that disclosure of cost data, operating characteristics, projected
outage schedules and similar information ;%boutits generating facilities in this
proceeding will lead to higher bid prices. Again, however, the company assumes
that this information will be disclosed publicly. In fact, the Model Protective Order
limits disclosure to individuals who have executed a non-disclosure certificate. . . .
Similarly, the potential harm of illegal coordination advanced by Entergy assumes
participant non-compliance with the terms of the Model Protective Order and an
intent to break the law. That argument goes way too far, and is simply not
persuasive.
( I . at 7’s 21 and 23.)
10-106 0 0 6 . 3
6
Judge Cowan’s reasoning in the AFC Docket applies with equal force in support of the right
of PBE representatives to access and review relevant information and documents produced by EA1
in discovery in this docket. Any representative of PBE reviewing the information produced by EA1
in this docket would execute the Affidavit of Non-Disclosure acknowledging that the confidential
information produced in this docket “shall be used !jolely for the purpose of pursuing the case at
hand, and shall not be used for any other purpose(s) whatsoever, and most especially shall not be
used for competitive business purposes.” (Commission’s Aff. of Non-Disclosure at f 4.) Should
PBE or its representatives misuse confidential information produced in this docket, then EA1 and
the Commission have remedies available against PB:E including, but not limited to, the imposition
of sanctions under the Protective Order. As Judge Cowan found, such protections are generally
sufficient to protect the interests of EAI, QFs participating in utility-related proceedings and
consumers. (ALJ March 2, 2005 Order, 7’s 24 and 26.) This Commission should not assume that
PBE and its representatives will misuse information produced in this docket and based upon that
assumption deprive them of their undenied rights of access to information.
PBE respecthlly submits that the Interim Protective Order’s provisions relating to Highly
Sensitive Protective Materials are improper and should be vacated or deleted from the protective
order governing this docket.
B.
If the Provisions Regarding “Highly Sensitive Protected Materials” Are Retained by
the Commission, then Several of the More Prejudicial Restrictions in the Interim
Order Should be Modified or Lifted.
If the Commission decides to retain the category of “Highly Sensitive Protected Materials,”
PBE requests that such the Interim Protective Order be modified to lift or provide relief to the PBE
from the restrictions specific restrictions discussed hereinafter.
10-106006.3
7
1.
The Prohibition Against Review of “Highly Sensitive Protected Materials” by
Outside Consultants Who Represent any Electric Market Participant Should
be Deleted.
In at least one instance, the Commission’s Interim Protective Order imposes a limitation that
is even more restrictive than the protection sought by EA1 in its Motion for Protective Order in this
docket. The restriction at issue pertains to the right of PBE to have “Highly Sensitive Protected
Materials” reviewed by experts retained by PBE to assist PBE and its legal counsel in this docket.
In its Motion, EAI acknowledged that PBE should have the right to have this information reviewed
by retained experts including “economists, statisticians, consultants or other persons employed or
retained by the Reviewing Party and directly engaged in these proceedings.” (EA1 Motion for
Protective Order, pgs. 4-5.) However, the Interim Protective Order entered by the Commission
included the additional limitation that even PBE’s “outside consultants” could not review Highly
Sensitive Protected Materials if those consultants “otherwise represent any electric market
participant.” (Order No. 4, pg. 11.) This additional restriction is highly prejudicial to PBE’s ability
to participate in this docket and should be lifted.
The issues in this docket are highly technical in nature and relate specifically to practices,
calculations and methodologies which are unique to the electric utility industry or market. To
expect PBE and its counsel to understand, let alone effectively address, these highly technical issues
without the assistance of technical experts who have education, experience and expertise specific to
the “electric market” is simply unreasonable. Furthermore, to expect PBE to find a technical expert
who has somehow gained the requisite education, experience and expertise specific to the “electric
market” without actively representing “electric market participants” is simply unrealistic.
Accordingly, PBE requests that the Commission grant PBE relief from this additional restriction by
allowing PBE’s outside consultants to review “Highly Sensitive Protected Materials” provided that
10-106006.3
8
those consultants first execute the Affidavit of Non-Disclosure approved by the Commission for this
docket.
2.
Counsel for PBE Should be Permitted to Make Two Copies of “Highly
Sensitive Protected Materials” Produced to it so that its Technical Expert and
both Kutak Attorneys Involved in this Docket can Maintain Copies in their
Offices in Austin, Texas and Fayetteville, Arkansas, Respectively.
The Interim Protective Order provides that EA1 must provide counsel for PBE (referred to
as “Kutak”) with “one copy of Highly Sensitive Protected Materials” which cannot be “copied by
Kutak without the express consent of EAI.” (Order No. 4, pg. 12.) The Interim Protective Order
further provides that the single copy of this material “shall not be removed from the Little Rock
office of Kutak or electronically or otherwise transmitted to any other person or party.” Id.
PBE’s representation in this docket is being managed by two different Kutak attorneys David Smith, a partner in Kutak’s Little Rock office and Robert George, a partner in Kutak’s
Fayetteville office. PBE’s retained technical consultant for this docket is Scott Nonvood, whose
office is located in Austin, Texas. Messrs. Smith, George and Nonvood have been actively
involved in the evaluation of the legal and technical issues presented in this docket and all three of
these individuals need to be involved in the review and evaluation of information produced by EA1
in discovery, including “Highly Sensitive Protected Materials.” Unless the provisions of the Interim
Protective Order are modified, Mr. George and Mr. Nonvood will be forced to travel from
Fayetteville or Austin to Little Rock each and every time “Highly Sensitive Protected Materials” are
produced or need to be consulted during this docket. This requirement will result in substantial
unnecessary increases in litigation costs to PBE.
If the Commission decides to retain the concept of additional restrictions for “Highly
Sensitive Protected Materials” under the protective order governing this docket, PBE requests that
the protective order be modified to provide that Kutak and Mr. Nonvood be allowed to maintain a
10-106006.3
9
total of three copies of the Highly Sensitive Protected Materials -- one copy in Kutak’s Little Rock
office, one copy in Kutak’s Fayetteville office and one copy in Mr. Norwood’s Austin office.
111. Alternative Request for Approval of “Reviewing Representative”
If the Commission decides to retain the category of “Highly Sensitive Protected Materials”
under a final protective order governing this docket and also retains the restriction that denies access
to such information to outside consultants who “otherwise represent any electric market
participant,” then PBE requests that the Commission expressly approve its technical expert, Scott
Nonvood as an outside consultant who is entitled to access such information pursuant to
“Modification (c)” of the Interim Protective Order. (Order No. 4, pg. 11). Request for express
approval is made by PBE because the Interim Protective Order does not clearly define what type of
work by a consultant would constitute “representation of an electric market participant.” For
example, the Interim Protective Order does not specify whether “the market” is limited to EAI’s
service territory or includes other geographically discreet markets. Who would be considered a
“participant” in the relevant “market” is equally unclear.
PBE retained Scott Nonvood to assist it and its legal counsel on the technical issues relating
to EAI’s avoided cost calculation methodology early in this docket. Mr. Norwood is a Registered
Professional Engineer with 24 years of experience in electric market analysis and regulatory
consulting. Mr. Nonvood is the founder of Nonvood Energy Consulting, LLC located in Austin,
Texas. A copy of Mr. Norwood’s resume summarizing his educational and professional experience
is attached hereto as Exhibit B and incorporated herein by reference. His resume also identifies
parties to whom Mr. Nonvood has provided consulting services in recent years and describes the
type of work performed by Mr. Nonvood on behalf of such clients. PBE does not believe that Mr.
Norwood’s current or prior representations are of a sufficient nature to create any risk of harm to
10-106006.3
10
EA1 or its retail customers from Mr. Nonvood having access to “Highly Sensitive Protected
Materials.” However, because the disqualiflmg language of the Commission’s Interim Protective
Order is undefined as to its intended scope, PBE submits this information for the Commission’s
review and evaluation.
Mr. Nonvood is a valuable and, in fact necessary, part of PBE’s planned participation in this
docket. He has been consulted regularly by PBE’s counsel throughout this docket and he has
already begun preparing written testimony to be offered on behalf of PBE. Mr. Nonvood has
executed the Affidavit of Non-Disclosure approved by the Commission for this docket. His
affidavit was filed with the Commission on March 3, 2005.
PBE requests that the Commission enter an order expressly approving Scott Nonvood as an
outside consultant who is entitled to access Highly Sensitive Protected Materials pursuant to
“Modification (c)” of the Interim Protective Order.
IV.
Conclusion
For the foregoing reasons, PBE respectfully requests that the Interim Protective Order be
modified to vacate the additional restrictions and limitations on PBE’s access to Highly Sensitive
Protective Materials. If the Commission decides to retain the category of “Highly Sensitive
Protected Materials” under the protective order governing this docket, PBE requests that such an
order provide relief to the PBE from the more prejudicial restrictions specifically identified herein.
Finally, if the Commission decides to retain the category of “Highly Sensitive Protected Materials”
under the protective order governing this docket and also retains the restriction which denies access
to such information to outside consultants who1 “otherwise represent any electric market
participant,” then PBE requests that the Commission expressly approve its technical expert, Scott
10-106006.3
11
Nonvood as an outside consultant who is entitled to access such information pursuant to
“Modification (c)” of the Interim Protective Order.
Respectfully submitted,
Robert W. George, Esq.
Kutak Kock LLP
2 14 West Dickson Street
Fayetteville, AR 7270 1
Telephone: (479) 973-4200
Facsimile: (479) 973-0007
E-mail:
robert.g;eorge@,kutakrock.com
-and-
[u\d
m
Da ‘d A. Smith, Esa.
Kutak Kock LLP
425 W. Capitol Avenue, Suite 1100
Little Rock, AR 72201
Telephone: (501) 975-3000
Facsimile: (501) 975-3001
david.smith@kutakrock.com
E-Mail:
I
COUNSEL TO PINE BLUFF ENERGY, LLC
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been served o all parties of record by
forwarding the same by first class mail, postage: prepaid, this /O
day of March, 2005.
&
$n Ih
Da ’d .4. Smith
10-106006.3
12
EXHIBIT A
I
2 0 0 5 0 3 3 2 - 3 0 5 2 Issued by FERC OSEC 0 3 / 0 2 / 2 0 0 5
in Docket#: E L 0 5 - 2 2 - 0 0 0
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Docket No. EL05-22-000
Entergy Services, Inc.
ORDER ADOPTING PROTECTIVE ORDER
(Issued March 2,2005)
1.
INTRODUCTION
By motion filed February 18,2005, Entergy Services, Inc. (“Entergy”) seeks
1.
adoption of a protective order designed to protect, to a greater extent than the materials
customarily designated for protection in Commission proceedings, what it claims are
“Highly Sensitive Protected Materials” (“HSPW’). This narrowly-defined class of
materials requires special protective measures, according to Entergy, “to ensure that
certain confidential and proprietary information is not produced to marketing personnel
of market participants in a way that will harm Entergy’s retail customers, the competitive
marketplace, or Entergy’s other transmission customers.”
Answers to Entergy’s motion were filed b:y the Commission’s Trial Staff (“Staff”),
2.
jointly by the Arkansas Public Service Commission, the Mississippi Public Service
Commission, and the Council of the City of New Orleans (“Retail Regulators”), and
jointly by Occidental Chemical Corporation, The Dow Chemical Company, Calpine
Corporation, Cottonwood Energy Company, LP, Union Power Partners, LP, NRG
Energy, Inc., Tractebel Energy Marketing, Inc., LtafayetteUtilities System, Municipal
Energy Agency of Mississippi, Louisiana Energy and Power Authority, Mississippi Delta
Energy Agency, Clarksdale Public Utilities Commission, Public Service Commission of
Yazoo City, Arkansas Electric Cooperative corporation, Southeast Electricity Consumers
Association, Dynegy Power Marketing, Inc., and ICalcasieu Power, LLC. (“Joint
Parties”).
3.
Entergy envisions two categories of HSPM, the first of which consists of marketsensitive generation-related information including cost information on participant-owned
generation, operating characteristics of generation owned, purchased or controlled by the
disclosing participant, projected outage and maintenance schedules for such resources,
market forecast data, or proprietary software. The second category includes prospective
source and sink data related to transmission service requests, and prospective scheduling
data related to such requests.
1
Motion of Entergy Sewices,Inc.for Adoption of Protective Order (“Entergy
Motion”), at p. 1.
EXHIBIT
I
300503i12-3052
I s s u e d by FERC OSEC 0 3 / 0 2 / 2 0 0 5
i n Docket#: EL05-22-000
2
Docket No. EL05-22-000
Entergy would limit access to these materials to reviewing representatives of the
Commission’s litigation staff, the staffs of state or local regulatory bodies, and “all
outside counsel, those outside experts who are not directly involved in,having direct or
supervisory responsibilities over, or providing advice to other market participants
concerning the purchase and sale, or marketing of electricity (including transmission
service) at retail or wholesale in the Entergy control area, the negotiation or development
of participation or cost-sharing arrangements for transmission or generation facilities in
the Entergy control area, or other activities or transactions of a type with respect to which
the disclosure of Highly Sensitive Protected Materials may present an unreasonable risk
of harm, and those inside employees that are not engaged in such competitive duties and
specifically designated as ‘ReviewingRepresentatives’.” Entergy Motion at pp. 2-3.
4.
11.
POSITIONS OF THE PARTIES
Entergy argues that disclosure of generation-related information would cause harm
to Entergy and its retail customers, even if subject to the terms of the Model Protective
Order. Entergy posits that disclosure of projected outage and maintenance schedules of
its generating facilities to marketing personnel of competitors may result in higher prices
of power sold to Entergy’s SPO group and its native load customers. Entergy envisions
competitors using information gleaned in this proceeding to obtain competitive
advantage. Similarly, it argues that disclosing cost-related information on Entergy
resources or procedures for procuring energy will enable competitors to bid at prices
tailored to the buyer’s cost and other information, resulting in an improperly functioning
market. The release of sensitive market data of this type will facilitate strategic
coordination or parallel pricing behavior, according to Entergy. Entergy cites to the U.S.
Dept. of Justice and Federal Trade Commission’s Horizontal Merger Guidelines for the
proposition that disclosure of such information facilitates cartelization and tacit
coordination. Entergy Motion at p. 9.
5.
6.
As for transmissim-related HSPM, Entergy proposes to treat with additional
protection specific transmission schedules of transmission customers (affiliates and nonaffiliates). This commercially sensitive information has been recognized as requiring
protection in the Commission’s Order No. 2000, and its disclosure to third parties could
lead to unfair competitive advantage, Entergy argues. In addition, source and sink
information related to praspective transmission service reservations has not been
“unmasked” under Commission regulations, Entergy contends. It proposes to follow
Commission policy and treat such infomation as HSPM until it is ultimately unmasked
in the OASIS process.
7.
Entergy argues that the Model Protective Order is ineffective as to the protection
of HSPM because it allows access to such information even to those directly engaged in
1
200503U2-3052 Issued by FERC OSEC 03/02/2005 in Docket#: EL05-22-000
Docket No. ELOS-24-000
3
the production and mwketing of electricity in Entergy’s service territory. The only
limitation is that such information gleaned in this proceeding not be used by a competitor
or any party to gain commercial advantage. Entergy argues that this is no protection at
all, because it is simply not realistic or reasonable to expect that market participants will
ignore such highly valuable information in the conduct of their daily commercial affairs.
Entergy Motion at p. 15. Entergy m e r asserts that it is impossible to police the “no
use” prohibition, sugaesting that compliance would require those exposed to such
information to forget the infomation in the conduct of their business, an unrealistic
expectation. Id.
8.
Entergy’s suggested fix for these problems is to limit access to HSPM as outlined
above, to personnel ndt involved in the purchase, sale or marketing of electricity and
transmission service @d the negotiation or development of participation or cost-sharing
arrangements for transmission or generation facilities or similar activities in the Entergy
control area.
9.
Entergy avers @at similar protective orders have issued in the Entergy System
Agreement proceeding pocket Nos. EL00-66 and EL01-88) and in the Entergy PPA
proceeding (Docket NQ.ER03-583),and well as in other proceedings. See e.g., Ameren
Energy Generating Co,, Docket No. EC03-53-000, issued May 29,2003, and San Diego
Gas & Electric Co., 96 FERC 1 63,035 (2001).
10. The Retail Regulators advocate the adoption of Entergy’s proposed protective
order. These parties bdlieve that disclosure, other than to regulators, of the information
Entergy defines as HSgM will provide market participants with a competitive advantage
and skew wholesale competitive markets to the detriment of Entergy’s retail rate payers.*
These parties conclude ithat Entergy’s proposed protective order represents the proper
balance of access to infbrmation that the intervenors need to prepare their cases and the
need for protection of proprietary information to ensure that retail payers benefit from
wholesale competition.
The Joint Parties and Staff oppose the adoption of Entergy’s proposed protective
order. The Joint Parties1request that the Commission’s Model Protective Order be
adopted in this case and argue that Entergy has not met its burden to justify any revisions
theretoe3 Staff also reqvcests that the Commission’s Model Protective Order be
implemented, but sugge$tsadding provisions defming HSPM and imposing more severe
11.
Answer ofthe Retail Regulators In Suppor,tof Motionfor Adoption of Protective
Order (“Retail Regulator’s Answer”), at p. 2
Joint Parties ’Answerto Entergy Services, Inc. 3 Motion for Adoption of
Protective Order (“Joint Parties’ Answer”), at p. 10.
il
I
300503‘d2-3052 Issued by FERC OSEC 03/02/2005 in Docket#: EL05-22-000
Docket No. EL05-22-000
4
sanctions in the event that the protective order is ~iolated.~
12. Under Entergy’s proposed protective order Staff would be allowed to review all
HSPM. Staff nevertheless argues that such a restrictive protective order would hamper
the intervenors’ ability to litigate their cases and states that it does not have the resources
to make the case on a11 the issues. Staffs Answer, at p. 4. The Joint Parties agree with
Staff, asserting that prphibiting any knowledgeable employees and outside experts from
reviewing HSPM would foreclose counsel from consulting, advising, and obtaining
direction from their clients, thereby having the same practical effect as withholding
HSPM altogether and restricting meaningful exploration of the bdamental issues in this
case. Joint Parties’ Answer, at p. 10.
13. Staff and the Joint Parties both contend that Entergy’s definition of HSPM is too
broad and vests too much discretion in Entergy to limit access to mformation necessary
for the Joint Parties to prepare their cases. The Joint Parties point to case precedent
suggesting that a protective order should be the least restrictive possible in order to
accomplish the protective purpose. Id., at p. 11, citing Ammo, 82 FERC at p. 61,883
(citing Transcontinentd, 38 FERC at p. 61,832) and Stingray Pipeline Co., 60 FERC
761,164 at p. 61,601-02 (1992). The Joint Parties argue that the Model Protective Order
is the least restrictive m a n s to balance protection of Entergy’s confidential information,
while providing the intervenors access to vital information that falls squarely within the
scope of this proceeding. Id, at p. 2, 11, 17.
14. Specifically, the Joint Parties assert that the: information regarding generation
resources and specific service transactions, which Entergy intends to classify as HSPM, is
necessary to evaluate tha AFC methodology and policies as well as access to short-term
transmission service thIl0;ugh such methodologies imd policies. Id., at p. 20, citing the
Order Determining Proacdural Schedule and Scope of Issues at PP. 25-28 (issued Feb. 4,
2005). They note that the Commission and Entergy have recognized that “such
information is relevant to understanding ATC calculations and can be disclosed under an
administrative order.” Id., at p. 21, citing Entergy Motion, at p. 12.
15. Staff and the Joirlt Parties dismiss Entergy’s arguments that it will suffer
competitive harms if tha Commission’s Model Protective Order is adopted. Staff submits
that if the market is competitive as Entergy implies, there should be numerous nonaffiliated suppliers, and if any one supplier raises its offer in negotiations with Entergy, it
would do so at its peril bacause there would be many substitute competitors available.
Additionally Staff states that there is nothing to suggest that competitors will share
confidential information with others so they can collude against Entergy in bilateral
4
Commission Trid Stars Answer to Entergy Services, Inc. ’s Motionfor Adoption
of Protective Order (“Sti&’s Answer”), at p. 1
1
300503‘J2-3052
Issued by FERC OSEC 0 3 / 0 2 / 2 0 0 5
in Docket#: EL05-22-000
I
5
Docket No. EL05-22-000
negotiations. Finally, Staff argues that even if such information was shared, it is doubtful
that the competitors would trust each other enough to offer to sell in a bilateral
negotiation at a highdr price than would otherwise be the case. Staffs Answer, at pp. 25.
16. The Joint Partiles submit that the need for their respective employees and outside
experts to review such HSPM far outweighs any of the competitive harms that Entergy
alleges will result if this information is made available to such persons within the
conditions of the Model Protective Order. They further point out that Entergy’s claims of
competitive harms a r d based on the assumption that individuals privy to such protected
information would unlawfully use it to obtain an unfair competitive advantage in the
marketplace, thereby violating the Commission’s Model Protective Order as well as antitrust laws by engagin$ in coordination between market participants. The Joint Parties
argue that Entergy’s pprported distrust of participant employees and outside experts
should not prevent them from preparing their cases. Id, at pp. 11-12, 15-16.
17. Staff and the Jaint Parties contend the fact that there have been protective orders
deviating from the M o k l Protective Order issued in other proceedings is irrelevant.
They aver that the need to deviate from the Commission’s Model Protective Order must
be proven on a case-by-case basis. Id., at p. 7 and Staffs Answer, at p. 4.
18. As a compromi$e, Staff suggests a protective order which identifies HSPM and
allows it to be reviewed by any non-affiliated expert as per the Model Protective Order,
but imposes severe sanictions on any expert who uses such HSPM for purposes other than
this litigation. Staffs Answer, at p. 4.
111.
DISCUSSION
19. Entergy has failed to convincingly demonstrate a need for the additional protection
it claims for what it describes as HSPM in this proceeding. It is true that limitations
similar to those requested here have been accepted in other cases. However, this
proceeding is a Commi$sion-ordered investigation of Entergy’s AFC program and
whether Entergy providies access to its transmission system in an unduly discriminatory
or preferential manner.’ As such, it stands on a very different footing than the cases
Entergy cites as precedent for its request.
20. It is perhaps best to review the Commission’s policy as to the protection afforded
to proprietary or confidantial materials.
“A determination of whether data that is claimed to be proprietary should be made
Entergy Senicas, Inc. 109 FERC 7 61,281, at p. 45. (“Hearing Order”)
I
1
20050x32-3052
Issued by FERC OSEC 0 3 / 0 2 / 2 0 0 5 i n Docket#: E L 0 5 - 2 2 - 0 0 0
Docket No. ELOS-22-000
6
available to parties in a proceeding, and if so, under what conditions, involves a
balancing of the competitive harm of releasing the information against the need of
the opposing plarty for the information in preparing its case. That inquiry is casespecific and depends on the facts and circumstances of the individual
2 1. The informatioa that Entergy seeks to shield more thoroughly than other protected
information goes to the very heart of the Commission-ordered investigation, as the Joint
Parties argue. The need of the parties challenging the propriety of Entergy’s AFC
program and its providion of transmission access to information that Entergy would
designate as HSPM would appear very strong. Indeed, the Commission itself included in
the scope of the investigation concerns raised and comments filed by many of the Joint
Parties in its technical conferences on Entergy’s AFC program and transmission access.
Hearing Order at p. 15. It would be odd indeed to initiate an investigation as to the
concerns of certain paaies and to then deny access to information that is potentially
relevant to employees and experts of such parties who have particular knowledge of the
possible problems.
22.
Moreover, the Joint Parties carry the burden in this Section 206 proceeding. The
need for their experts md employees to review information properly designated as
proprietary or confideutial outweighs any potential harm identified in Entergy’s motion.
As to the alleged harm, Entergy posits non-compliance with the use prohibitions in the
Model Protective Ordet.. In general, I find it unconvincing to argue that the prohibitions
against use contained im the Commission’s Model order cannot be enforced or are
somehow inherently impossible to comply with. If that were the case, there could be no
reliance on the Protective Order, and it would be recognized as generally ineffective. In
fact, the Model Protective Order has had wide acceptance and has been recognized as
providing sufficient prdtection for most confidential or proprietary materials requiring
protection against publiic disclosure.
23. Entergy argues @at disclosure of cost data, operating characteristics, projected
outage schedules and sitnilar information about its generating facilities in this proceeding
will lead to higher bid ptices. Again, however, the: company assumes that this
information will be discllosed publicly. In fact, the Model Protective Order limits
disclosure to individuals who have executed a non-disclosurecertificate. In addition, the
Commission intended this proceeding to investigate the AFC models and their inputs. As
Joint Parties argue, this i s an important element of the investigation that should not be
impeded by overly restrictive access to infomation uniquely in Entergy’s hands.
Similarly, the potential harm of illegal coordination advanced by Entergy assumes
participant non-compliadce with the terms of the Model Protective Order & an intent to
PG&E Texas Pbeline, L.P., 92 FERC 7 6 1,111, at p. 61,427-28 (2000).
200503U2-3052 Issued by FERC OSEC 03/02/2005 in Docket#: EL05-22-000
7
Docket No. EL05-22-000
break the law. That argument goes way too far, and is simply not persuasive.
24. Further, as Staff argues, the Entergy definition of HSPM is overly broad and
sweeping in its impact on the ability of those challenging Entergy to present their cases.
There may be highly sensitive material that requires special protective measures, but it
has not been identified with sufficient specificity to design a suitable protective
mechanism at this time. In general, the terms o f the Commission’s Model Protective
Order should provide adequate protection for most, if not all, confidential and proprietary
materials subject to disclosure in this Commission investigation.
25. While Entergy has failed to justify the blanket prohibition against access to the
broad categories of information set out in it motion, I recognize, as discussed
immediately above, that there may be particularly sensitive information that should be
shielded from certain individuals who operate in a capacity that would render it difficult,
if not impossible, to ensure against improper use of the disclosed sensitive data.
However, it is simply not possible at this juncture to identify the information or the
individuals who might be involved in such an information exchange. My denial of
Entergy’s motion for a wide category of protected materials with special protective
measures is without prejudice to its raising specific issues where it feels the need exists
for special protections as the discovery process unfolds. Should Entergy move for such
additional protection, I expect it to make a strong case for the need for such protection,
identifying the harm of disclosure and possible abuse with greater clarity and specificity
than it has in its motion. In addition, I expect the parties to negotiate lists of Reviewing
Representatives and the scope of data requests with an eye toward reducing the need for
such additional filings.
IV.
CONCLUSION
26. I hereby adopt the Commission’s Model Protective Order to be effective in this
proceeding without prejudice to Entergy’s raising in the future more specific concerns
about the provision of highly sensitive commercial information to certain representatives
of participants in this proceeding.
It is so ORDERED.
William J. Cowan
Presiding Administrative Law Judge
i
EXHIBIT B
Exhibit SN-1
Page 1 of 6
NORWOOD
ENERGYCONSULTING,
L.L.C.
P. 0. Box 310197
Aiisrin, Texas 78755-3197
(512) 343-9077
RESUlME OF SCOTT NORWOOD
SUMMARY
Mr. Norwood is a Registered Professional Engineer with 24 years of experience in
electric energy market analysis, regulatory consulting, and energy procurement.
Mr. Nonvood founded Norwood Energy Consulting, L.L.C. in January of 2004. The
firm specializes in energy regulation and procurement for consumers and consumerowned utilities. Before ibunding Norwood Energy Consulting, L.L.C., Mr. Norwood was
a Principal of GDS Associates, Inc., a Marietta,,Georgia based energy consulting firm.
He joined GDS shortly Beer the firm was founded in 1985, and in 18 years with GDS he
directed a wide range of consulting projects including merchant plant due diligence
studies; deregulated market price forecasts; power supply planning and procurement;
electric restructuring policy analysis; and studies of power plant dispatch and
production costs.
His clients include publicly-owned utilities, public service commissions, power
developers, financial institutions and various electric consumer interests.
Mr. Norwood has presented expert testimony on electric energy market and regulatory
matters before the Arkansas House of Representatives and in regulatory proceedings in
Arkansas, Georgia, Iowa, Illinois, Michigan, New Jersey, Oklahoma, South Dakota,
Texas, Virginia and Wisconsin. His most recent work has been focused on helping
investors, developers and consumers evaluate and address business risks and
opportunities arising from the restructuring and deregulation of electric power markets.
Before joining GDS,Mr. Norwood served as Manager of Power Plant Engineering for the
Staff of the Public Utility Commission of Texas from 1984 through 1986 where he was
responsible for directing analysis and testimony on power plant construction and
operational issues and cogeneration avoided cost filings. He began his career in 1980 as
Staff Electrical Engineer with the City of Austin's Electric Utility Department where he
was responsible for electrical maintenance and design projects at three gas-fired power
plants.
EDUCATION
B.S. Electrical Engineering, December 1980, University of Texas at Austin. Broad
engineering curriculum with emphasis on Electric Power Systems Analysis and Design.
Flll
EXHIBIT
Exhibit SN-1
Page 2 of 6
EXPERIENCE
Electric Restructuring Analyses
EZectric Power Research Institute - Evaluated regional resource planning and
power market dispatch impacts on rail transportation and coal supply
procurement strategies and costs.
City of Houston - Evaluated and recommended adjustments to Reliant Energy’s
stranded cost proposal before the Public Utility Commission of Texas.
Oklahoma Attorney General - Evaluated and advised the Attorney General on
technical, econamic and regulatory policy issues arising from various electric
restructuring pnoposals considered by the Oklahoma Electric Restructuring
Advisory Committee.
Arkansas House of Representatives - Critiqued proposed electric restructuring
legislation and identified suggested amendments to provide increased protections
for small consumers.
Georgia Public Service Commission - Developed models and a modeling process
for preparing initial estimates of stranded costs for major electric utilities serving
the state of Georgia.
State of Hawaii Department of Business.,Economics and Tourism - Evaluated
electric restructuring proposals and developed models to assess the potential
savings from deregulation of the Oahu power market.
Virginia Attorney General - Served as the Attorney General’s consultant and
expert witness in the evaluation of electric restructuring legislation, restructuring
rulemakings and utility proposals addressing retail pilot programs, stranded
costs, rate unbundling, functional separation plans, and competitive metering.
-
Western Public Power Producers, Inc. Evaluated operational, cost and regional
competitive impacts of the proposed merger of Southwestern Public Service
Company and Public Service Company of Colorado.
Iowa Department of Justice, Consumer Advocate Division - Analyzed stranded
investment and fuel recover issues resulting from a market-based pricing
proposal submitted by MidAmerican Energy Company.
Cullen Weston Pines & Bach/Citizens’ UtiZity Board - Evaluated estimated costs
and benefits of the proposed merger of Wisconsin Energy Corporation and
‘NorthernStates Power Company (Primergy).
Exhibit SN-1
Page 3 of 6
-
City of EZ Paso Evaluated merger synergies and plant valuation issues related to
the proposed aoquisition and merger of El Paso Electric Company and Central &
Southwest Company.
Rio Grande Electric Cooperative, Inc. - Analyzed stranded generation investment
issues for Central Power & Light Company.
Energy Planning and Procurement Services
Dell Computer Corporation - Negotiated retail power supply agreement for
Dell’s Round Rock, Texas facilities producing annual savings in excess of $2
million.
Texas Association of School Boards Electric Aggregation Program - Serve as
TASB’s consultant in the development, marketing and administration of a retail
electric aggregation program consisting of 2,500 Texas schools with a total load
of over 300 M W . Program produced annual savings of more than $30 million in
its first year.
S.C. Johnson - M y z e d and presented testimony addressing Wisconsin Electric
Power Company‘s $4.1 billion CPCN application to construct three coal-fired
generating units in southeast Wisconsin.
Community Energy Electric Aggregation Program - Served as Community
Energy’s consultant in the development, marketing and start-up of a retail
electric aggregation program consisting of major charitable organizations and
their donors in Texas.
Austin Energy
-
Conducted competitive solicitation for peaking capacity.
Developed request for proposal, administered solicitation and evaluated bids.
Austin Energy - Provided technical assistance in the evaluation of the economic
viability of the City of Austin‘s ownership interest in the South Texas Project.
- Assisted with regional production cost modeling analysis to
assess production cost savings associated with various public power merger and
power pool alternatives.
Austin Energy
Sam Rayburn G&T Electric Cooperative - IConducted competitive solicitation for
peaking capacity. Developed request for proposal, administered solicitation and
evaluated bids.
- Directed preparation of power supply
solicitation and conducted economic and technical analysis of offers.
Rio Grande Electric Cooperative, Inc.
City of Chicago, Illinois Attorney General, Illinois
Citizens’ Utility Board -
Exhibit SN-1
Page 4 of 6
Analyzed Commonwealth Edison's proposed divestiture of the Kincaid and State
Line power plants to SEI and Dominion Resources.
Georgia Public Service Commission - Analyzed and presented testimony on
Georgia Power Company's integrated resource plan in a certification proceeding
for an eight unit, 640 MW combustion turbine facility.
South Dakota Public Service Commission - Evaluated integrated resource plan
and power plant certification filing of Black Hills Power & Light Company.
Shell Leasing Co. - Evaluated market value of 540 MW western coal-fired power
plant.
Regulatory Consulting
New York Public Service Commission - Conducted inter-company statistical
benchmarking analysis of Consolidated Edison Company to provide the New York
Public Service Commission with guidance in determining areas that should be
reviewed in detailed management audit of the company.
Georgia Public Service Commission - Presented testimony before the Georgia
Public Service Cammission in Docket 3840-u,providing recommendations on
nuclear O&M levels for Hatch and Vogtle and recommending that a nuclear
performance standard be implemented in the State of Georgia.
Georgia Public Service Commission - Analyzed and provided recommendations
regarding the reasonableness of nuclear 0&M costs, fossil O&M costs and coal
inventory levels reported in GPC's 1990 Stirveillance Filing.
New York Public Service Commission Conducted inter-company statistical
3 Electric Company to provide the New
benchmarking analysis of Rochester Gas i
York Public Service Commission with guidance in determining areas which
should be reviewed in detailed management audit of the company.
a-
Oklahoma Attorneu General - Analyzed and presented testimony regarding fuel
and purchased power, depreciation and other expense items in Oklahoma Gas &
Electric Company's 2001 base rate case before the Oklahoma Corporation
Commission.
City of Houston - Analyzed and presented testimony regarding fossil plant O W
expense levels in Houston Lighting & Power Company's rate case before the
Public Utility Commission of Texas.
City of EZ Paso
- Analyzed
and presented testimony regarding regulatory and
technical issues related to the Central & Southwest/El Paso Electric Company
merger and rate proceedings before the PUCT, including analysis of merger
Exhibit SN-1
Page 5 of 6
synergy studies, fossil O&M and purchased power margins.
Residential Ratepayer Consortium - Analyzed Fermi 2 replacement power and
operating performance issues in 1994 and 1995 fuel reconciliation proceedings
for Detroit Edison Company before the Michigan Public Service Commission.
Residential Ratepayer Consortium - Analyzed and prepared testimony
addressing coal plant outage rate projections in the Consumer's Power Company
fuel proceeding before the Michigan Public Service Commission.
.City of El Paso - Analyzed and developed testimony regarding Palo Verde
operations and maintenance expenses in El Paso Electric Company's 1991 rate
case before the Public Utility Commission of Texas.
City of Houston - Analyzed and developed testimony regarding the operations
and maintenance expenses and performance standards for the South Texas
Nuclear Project, and operations and maintenance expenses for the Limestone and
Parish coal-fired power plants in HL&P's 1991rate case before the PUCT.
City of EZ Paso - Analyzed and developed testimony regarding Palo Verde
operations and maintenance expenses in El Paso Electric Company's 1990 rate
case before the Public Utility Commission of Texas. Recommendations were
adopted.
Power Plant Management
City of Austin Electric Utility Department - Analyzed the 1994 Operating Budget
for the South Texas Nuclear Project (STNP) and assisted in the development of
long-term performance and expense projections and divestiture strategies for
Austin's ownership interest in the STNP.
City of Austin Electric Utility Department - Analyzed and provided
recommendations regarding the 1991 capital and O&M budgets for the South
Texas Nuclear Project.
Sam Rayburn G&T Electric Cooperative - Developed and conducted operational
monitoring program relative to minority owner's interest in Nelson 6 Coal Station
operated by Gulf States Utilities.
KkMO Electric Cooperative, City of Brownsville and Oklahoma Municipal
Power Agency - Directed an operational audit of the Oklaunion coal-fired power
plant.
Sum Rayburn G&T Electric Cooperative .- Conducted a management/technical
assessment of the Big Cajun I1 coal-fired power plant in conjunction with
ownership feasibility studies for the project.
Exhibit SN-1
Page 6 of 6
Kamo Electric Power Cooperative - Developed and conducted operational
monitoring program for client's minority interest in GRDA Unit 2 Coal Fired
Station.
Northeast Texas Electric Cooperative .- Developed and conducted operational
monitoring program concerning NTEC's interest in Pirkey Coal Station operated
by Southwestern Electric Power Company and Dolet Hills Station operated by
Central Louisiana Electric Company.
Corn Belt Electric Cooperative/Central Iowa Power Cooperative - Perform
operational monitoring and budget analysis on behalf of co-owners of the Duane
Arnold Energy Center.
PRESENTATIONS
Quantijijng Impacts of Electric Restructuring: Dynamic Analysis of Power
Markets, 1997 NARUC Winter Meetings, Committee on Finance and Technology.
Quanhfying Costs and Benefits of Electric Utility Deregulation: Dynamic
Analysis of Regional Power Markets, International Association for Energy
Economics, 1996 Annual North American Conference,
Railroad Rates and Utility Dispatch Case Studies, 1996 EPRI Fuel Supply
Seminar.
Quantzfjring Potentially Stranded Costs: Modeling and Policy Issues, 1996
NASUCA Annual Meeting.
Ill0/2005
TESTIMONY PRESENTED I N REGULATORY AND COURT PROCEEDINGS
DURING LAST TEN YEARS
NO. OF
DATE
REGULATORY AGENCYICOURT
UTILITY INVOLVED
DOCICETICASE
ISSUES
ow1994
Tems Public Utility Commission
127M)
fl Pam Elecbicand CMI Corporation
Analysis of costs and benefits of proposed merger.
PAGES
11/15/94
Texas PuMk Utility Commission
12065
Hwston ughting &Power Company
Purchased power and plant performance issues.
OW1995
South Dakota Public Utilities Cornminion
EL95-003
Black Hilk power & Light Company
07/11/96
Texas Public Utility Commission
14965
Central Power & Light Company
Integrated resource plan evaluation.
Method and Level of Potential Stranded Gemtion Cast Wmates
07/22/96
Public Service Commission of Wisconsin
6630-UR-109
kVbomii Power & tight Company (Direct)
RevitalizationPrqram Savings, A&G Expnses,
08/07/96
Illinois Commerce Commission
96-0245
Commonwealth Edlson (Directand Rebuttal)
R-ableness
Illinois Commerce Gnnmission
96-9248
Commwealth Mison ( O i and Rebuttal)
Market Valuation of Kincaid &State Line Power Planks
08/08/96
Mihian Public Service Cornmission
U-l(l702-R
COtn-
09/17/96
Iowa Deparbnentof Commwce U t i l i Baard
APP-96-1
Mimerkan Energy Company (Direct and Rebuttal)
io/a7/%
Public sgvice Commission of Wisconsin
6680-UM-100
W m i n Power &Light Company
Edlson (Direct and Supplement Direct)
of ComEd's pmposed Sale &
Fermi 2 Replacement Power costr
Mark&-based Pricing Proposal and PotentialStranded
Cmt Investment Estimates
Forecasted Primergy Merger Costs and b!efits
47%-UM-101
11/21/96
Iowa OepamWt of Commerce Utilities b a r d
APP-96-1
MidAmericanEnergy Company (Surrebuml)
Market-based Prfcing proposal and PotentialStranded
Cost Investment Estimates
05/14/97
Public service Commission of Wisconsin
6680UM-1000
Mnt: WPC Holdings, Inc, and
Market-based Pricing Proposaland PatenUal Sm&d
Wisconsin Power &Light Company
Cost investment Estimates
Potentiil Sbanded Cam, fmcasted Market W i ,
07/31/97
Arkanw Public Service Commission
96.360-u
Enmy &kansas,Inc. (Direct)
Gr;jEj97
Tiiciilpan Public Service Commission
U-11453
ConsumenEwgy Company (Direct)
Competitive Transitim Plan provisions
Restructuring Policy, Prcqnsed Abolition of
power supply Cost pemfely Factw
06/29/97
Michigan Public Service Commission
u-11449
09/19/97
Arkansas Public Service Commission
96-360-u
12/23/97
State torporation Commission of Virginia
PUE960296
she Demit Mison Company (Direct)
Elecbic Resbucturing Policy, ProposedAbolition of
Power Supply Cost Recovery Factor
Potential Sbanded Costs, ForecastedMarket prices,
competitive Transition Pbn hovibns
Vwinia E k d r i c & Power Company
PUE96w36
stranded Corn, Altemat'w Rate Plan Pmvisions,
Transmission Constraints and Market Power kw.
NUG Contract Cost Mtigatbn
01/26/98
02/17/98
State of New Ierrey Office of Adminis4mtii Law
Illindr Commerce Commission
02/17/98
03/09/98
Texas State OMce of Administmtive Hearings
Illiwk Commerce Commission
05/29/98
G q ' a Public Service Commission
EO97070461
EO9707462
9&ooo5
98-0036
473-97-1561 and 17751
98-0005
h r b k Service E W K & Gas Company (Surrebuttal)
Analysis of Potential Impaas of Remocturing
20
CRY of C h i i J o i n t Petitioners(Direct)
WJP=l
Electric Reliabiitiy Rulemaking
29
Tew~
New Mexico Power Company
City of Chbz!?jo/Ioint Petitloners(Rebuttal)
Analysis of Market Value of Geneiating Units and Evaluation of ECOM
Attributable to Generating Pssets and Purchased Power Conbach
uecbx Reliibikiy Rukmaking
43
18
EvahMtI of the 1998IRP Filing
63
98-0036
11/25/98
03/05/99
05/21/99
State Corpmtion Cwnmission of Virginia
Michigan Public Senrice Commission
State Corporation Commission of Virginia
8708-U
87094
PUE9BW62
u-11800
WE980814
Savannah E&K
& Power Company ( D i c t )
Georgia Power Company
Virginia Oectric &Power Company ( D i m )
lhe Detfuit E d i i Company (Direct)
American E W Power-Vrginia ( O m )
Page 1 of 4
Applicable Bidding Rules and the Appropriateness of Prop&
Turbine Pmjxts
ReasoMbleness of1999 PSCR Pian
Rebit Access Pilot Program
Ccmbustlon
30
43
123
.
.
111012005
DURING LAST TEN YEARS
NO. OF
12/06/99
03/03/00
REGULATORY AGENCYICOURT
State Cwpcration Commission of Viinia
Michin PublicseniKe Commisssn
State cwpwationCwnmission of V i i n i a
CorpwaCh Commission of the State of Okhhama
cwpwationCommission of the State of OWahoma
Michigan Public Service Commiaion
04/06/0Q
WK%-dice
04/25/00
05/19/00
DATE
07/16/99
07/29/99
UTILITY INVOLVED
DOCKET/CASE
PUE980813
U-11528-R
PUE980814
PUD 590000417
Vhginii Electric &mer
Company (Direct)
The Detroit M i n Company (Drect)
ISSUES
PUD 990000417
Wl2121
Amrican Elearic Power-Virginia (!Supplemental)
Okhhoma Gas & E W i Company (Direct)
Oklahana Gas & E W i Company (Rebuttal)
The Detrdt Edm
l Company (Dim)
EC-99-553
Kansas City h e r & Lbht Company (Surrebuttal)
Fluctuatian Revlew and F W Fuel Cost Qlcuhtion
Reambleness of moo PSCR pian
Analysis and ConcIusions of Benchmarking and Evaluatim of Generating
Assets Owned and Operated by KCPL
CapOratiM Commission of Oklahoma
CMporationCommisicm of Oklahoma
PUD 200000020
WD 20000M)20
wow00
09/26/00
09/19/00
09/26/00
09/26/00
10/03/00
Texas Public Utility Commission
Texas Public Utility Commissim
Texas Pubk UWiV Commission
Texas State offre of AdministratiieHBaFings
Arkansas Public Service Commission
Texas Public U t l i Commission
22344
Oklahoma Gas & Elecbic Company (Direct)
Mdahoma Gas & Electric Company (Rebuttal)
Generic Issues Assodates with Unbundled Cost of Service
Rate
Texas New Mexim Power Cwnpanv (Direct *)
Reliant Energy HL&P(Direct)
Texas New Mexko Power Company
Entergy Arkansas, Inc.
Cenhal Power and Upht Company (Direa)
Generation Efficiency Performance Rider
Generation E f f i i Performance Rider
Proposed Gas Prie Solicitatin PRxess used to Update K
CIM Gas Prices and
Market Rkes
ECOM Modeling Proecess, Assumptions, and Results
Updated ECOM Calculations and RecommendedAdjustments
Updated ECOM Cakulat%ns and Recommended Adjustments
Updated Stranded Cost Analysis and Stranded Cost Mitigation Measures
ECOM Modeling Proecen, Assumptions, and Resuits
12/12/00
01/09/01
02/16/01
04/24/01
Texas Public Utility Commission
Texas State Wce of Adminisbtive Hearings
Michigan PuMic Service Commission
Texas Public U t i l i C o r n r n k
22355
473-W-1017
u-12604
Reliant Energy HL&P (Supplemental)
Excess Mitigation and Methodsfor Crediting Excess Mitigationto Ratepayers
2 1l a
07/05/01
Texas State Office of Adminishtive Hearings
wow01
Texas State Office of Adminisbathre Hearings
08/24/01
10/14/99
11/29/99
Commission of the State of Missouri
22349
22355
473-00-1014
w-in-u
22352
Entergy Gulf States,
Inc. (Direct)
PAGES
Retail Access Pibt Program
ReamaMeness of 1998 PSCR Reconciliation Pmposl
Retail Aness Pibt Program
Retail Access Pibt Prcqram
94
27
109
68
7
65
29
52
6
82
80
54
32
27
Upper Peninsula Power Company ( O i )
SouthwesternPublic Service Company (arect)
ECOM Calculations
2Mll PSCR W r
Reasonableness of WEPCO's Application forWised Fuel Factor
118
30
95
473-01-2667
Want Energy, Inc. (Dim)
Reconcilable Fuel Costs and Headrown Admhnents to the PTB
40
473-01-2825
TXU E!ectrk Company (DlreCr)
PTB Fuel Factor Calculatii and Rate Year Recondbbk Fuel Cask
40
State CaporationCommission of Virginia
PUEo00584
03/07/01
State Corporation Commission of Virginia
PUEolOoll
Virginia Electric &Power Company (Dim)
Unbundled Rate and Capped Rate Fuel Cost Adjusbnent Proposal
AppalaChin Power Company d/b/a American ElecMc Power
Virginia (Direct)
APCo's Unbundled Rate Proposal
09/17/01
Terns State O f f i i of Administrative Hearings
473-01-3394
l0/12/01
Texas Pubk Utility Commission
24460
10/26/01
Texas Public Utility Commission
10/26/01
Texas State office of Administrative Hearings
10/26/01
LI
-.*"
4s
29
Gas Price Update to PT6 Fuel Fadur Pmpxal
31
24460
Entergy Gulf States, Inc (Direct)
proceedhg to IrnpiementWC Subst R. 25.41(f)(3)(D)
(Direct)
Proceeding to Implement WC Subst. R. 25.41(f)(3)(D)
(Direct)
Gas Price Update b, PTB Fuel Fartw Proposal and Initial Headroom
15
473-01-2825
nu Heuric cornPam/
( D i )
Gas price Update to PTB Fuel Factor Pmposal and Initial Headroom
14
Texas PuML Utility Commission
24236
TXU Electric Company (Direct)
Gas Price Update to PTB Fuel Factor hoposal and Inltial Headmrn
14
10/26/01
Texas State Office of Administrative Hearings
473-01-2667
Reliant Energy, Inc. (Direct)
Gas Price Update to PTB Fuel F x b r Proposaland Initial Headroom
13
05/29/02
Texas Public utility Commisskm
23320
ERCOT (Cirect)
Pmposed Rates and Reambleness Standard set in PURA 539.151(e);
E R m 5 Functional Amounting
44
Oklahoma Gas and Elecbic ( O W )
Owahoma Gas and E W i (Surrebuttal)
Proposed Revenue Requirement;ReasonaMenessof CUP W r , TIR Rider, and
Rate Mwdtaium Propo~ls;Modlfmtions to Rider For Off-System Sales and
Implementation of PPC4 Mer
Review and Rewnciliah of Off-System Sales Margin Credit Calculations
06/11/02
08/tS/02
Oklahoma Corporation Commission
Oklahoma Corporation Commission
PUD 200100455
PUD 200100455
Page 2 of 4
PTB Fuel F a d o r Calculationand Rate Year Reconcilable Fuel Cask
110
175
69
-.
i/l0/2005
TESTIMONY PRESENTED I N REGULATORY AND COURT PROCEEDINGS
DURING LAST TEN YEARS
NO. OF
DATE
REGULATORYAGENCYICOURT
Texas State OMce of Administratbe Heerings
VOCKETICASE
10/03/02
11/07/02
12/03/02
Texas State OfFke of Adminishatbe Hearings
Texas Public Utility Commission
473-02-3169
473-02-3169
26933
12/31/02
Tems F'ubli utility Commission
26195
UTILITY INVOLVED
West Texas Utilities Company ( O M )
West Texas utilities Company (2nd Supplemental)
Reliant Energy Retail Services, LLC (Direct)
Texas two and CenterPoint Energy (Direct)
ISSUES
ReasonablenessofFinalFuelRecwiliition
Reasonablenenof Final Fuel Recoxiliati
Reasonallbless of Proposed Adjustments to !TEl Fuel Factor
Reasonablenessof Estimated Gxk and Benetits under a Joint Operating
Agreement
PAGES
121
39
46
150
01/27/03
Texas Public Utility Commission
26186
SMlMweZtem Public ServiceCninpany (Direct)
02/10/03
Texas Public Utility Commission
27320
Reliant Energy Retail Sewices, LLC (Drect)
ReannaMenessof Reconcilable Fuel and Purchased Power Expenses for 24monthRgawiliiahPerbd
Reasonableness of Proposed Increase to FTB Fuel Factor and the
Reasonableness of Rate Case Expenses
04/09/03
Texas Public W l i i cbmnkbn
27035
Cenbal Power and Light Company ( D i )
Reasonableness of CPCs Request to Reconcile Fuel Costs
159
04/10/03
Texas Public Utility Commission
26194
El PaM Electric Company ( O m )
Reasonableness of E P k Request to Rernndle Fuel costs
142
06/26/03
Texas Public Utili& Commisskm
27956
Reliant Enerpy, and Retail services. LCC (Direct)
32
07/07/03
Pubtic Service Commission of Wkcomin
05-CE-130
Wixnnsh Elecblc Power Company (Direct)
Reasonableness of Reliant's Proposal to Increase PTB Fuel Facton
Reasonableness of InputAssumptiom and Results of Economic Analysis of
ERGS
07/18/03
Texas Public Utility Commission
27576
Terns-New Mexico Power Company (Direct)*
87
08/19/03
Texas PUbrK Utility Cwnmksbn
26000
West Texas Utilities Company (Remand Direct)
08/19/03
Tews Public Utility Commission
26000
West Texas U t U i t i Company (Remand Direct)
Reasonableness of TNMP's Application for Final Reconciliation d Fuel Costs
Reamablenessof W s Application to Reconcile Eligible Fuel Expenses and
Fuel Factw Revermes
Reasonableness of W'S
Application to Reconcile Eligible Fuel Expenses and
Fuel Factor Revenues
08/26/03
Public Service Commission of Wisconsin
O~-CE-~O
Wixonsin EIecGic Power Company !R&J@!)
.%?a%CiSbkrS5.of FEiS EconOmiC Analysis of ERGS
20
08/26/03
Public Servloe Commission of Wisconsin
05-CE-130
W;mnsin Electric Power Company (Surrebuttal)
ReasmablenessOF Input AmJmptbns and Results of E m o m k Analps of
ERGS
29
09/05/03
State Corporation Commission of Virginia
PUE-HX)3-00285
Vignia Ekcbic and Power Company (Direct)
10/28/03
11/05/03
11/06/03
Texas Public Utility Cwnmission
Texas Publii Utility Commission
Texas Public Utllity Commissii
26195
Texas Gena, and GnterPoint Energy (Refikd Direct)
28045
28045
S a h m t e m P&~KSetvii Company ( D W )
SWthWestem PUblK SetviCe COmpa~Iy(Wwkpapers)
Reasonableness OF VEPCO's naturalgas, mi, and purchased energy price
for%ash underlying the Company's Fuel Factor Proposal
ReasonablenW Of Estimated Costs and Benefits under a Joint Operating
Agreement
ReasooaMeness ofSWEPCO'S A p p l i n for Reanciliation of F w l Costs
Reamnableress ofSWEPCO's Applietion for Reconciliation ofF H Costs
12/12/03
M i c h i i PuM~KService Comminbn
U-l3W
m e Detroit Edison Company (Direct)
Analysis and RwDmmendahs regardii DECO's pmposed 7.004 PjCR Plan
apphtions and PSCR factor
02/27/04
Oklahoma Corporatian Commission
PUD 2owOOOW
Okbhoma Gas and Electric ( D i )
Request for Approval of McCbin PPA
03/26/04
Michiian Public Service Commission
U-13808
lhe Detroit Edison Company (Direct)
Rebuttal Testimony Addressing DEC0's proDosed 2004 PSCR Plan applications
andPSCRFactor
03/29/04
Texas Publk Utility Cwnmission
29206
Texas New M a k o Power Company
Reasonableness of TNMP's Application for Final Trueup of Stranded Costs
06/01/04
Texas Public Utility Commission
29526
CenterPoint, E N , Rdnnt
R m b l e n e s s of Applicants' Appllcatian for Final True-up of Stranded Costs
07/19/04
State of Wixonsin Dvisbn of Hearings and &peals'
Wkmsin Electric Power Campany
Authority fa con&ction
Page 3 of 4
__.--
of ERGS facilities in Lake Michigan lakebed.
183
30
84
39
39
34
152
111
97
43
ill W200.5
TESTIMONY PRESENTED I N REGULATORY AND COURT PROCEEDINGS
DURING LAST TEN YEARS
NO. OF
DATE
REGULATORY AGENCYICOURT
U T U l l Y INVOLVED
DOCKFT/CASE
ISSUES
Comparison of environmental, ~ c i a l capital
,
and operating costs of proposed
ERG'S SCPC units to IGCC alternatives
07/24/04
State of Wisconsin Division of Hearings and Appeals
IHd4-03
8/9/04
State of Wisconsin Division of Hearingsand
3-SE-01-41-0005-M)19 Wisconsin E W c Power Company
WEPCo's failure to omduct a pradkable alternatives a n a w i for wetlands
impact of the ERGS.
8/18/04
Texas Publit Utility Commission
29526
centerpaint, TGN, Reliint
Reasonableness of Applicants' reqwst for interest on claimed stranded costs;
conbiiutionof capacity a d i true-up to return on stranded cosh.
09/02/04
Texas Public Utility Commission
29526
Centerpoint, TGN, Reliant
Reasonablenessof Applicants' reqwst for interest on claimed stranded costs;
contributiMI of capacity auction true-up to return M standed costs.
9/10/04
Texas Public Utility Commission
27035
AEP Ttc
Wisconsin Electiu: Power Company
Level and cost of capacty included in TCC's summer on-peak block energy
PU-
Page 4 of4
PAGES