4. Petition for Modification
of D.06-12-030
4.1. Belated Filing of Petition Excused
AReM filed the Petition for Modification beyond the one-year deadline set forth in Commission Rule 16.4. When a petition is late, the petitioner must explain why the petition could not have been presented within one year of the effective date of the decision. (Rule 16.4(d).) We have considered AReM's arguments in this regard, and find the belated filing to be excusable.
AReM alleges that it expected to have a greater opportunity to address the ESP Matrix in Phase 2 of this proceeding, as it was originally scoped. It notes that it deferred preparation of the Petition for Modification on the assumption that the problems ESPs allegedly have encountered in complying with D.06-06-066 would be addressed in Phase 2. Once the assigned ALJ issued a ruling proposing to close the proceeding, AReM contends it first became aware that this opportunity might not arise. Second, AReM contends that it was only recently informed of the RPS compliance reporting requirements for ESPs (on August 6, 2007). Finally, AReM cites the press of other business as a reason for its delay.
We agree that the first two reasons for the late filing, in combination, allow us to consider the Petition for Modification here. (The press of other business is not a relevant factor.) It is true that as originally scoped, Phase 2 was to include an examination of how the Matrix process was working, and that the ALJ's April 2007 ruling proposing to close the proceeding made the second phase far less likely. Alone, however, this factor would be insufficient since AReM waited from April to September to file its Petition. The second factor - the development in August 2007 of reporting requirements for RPS - is also insufficient on its own, because AReM simply notes that it did not know the reporting requirements "with certainty" until August. This phrasing suggests AReM knew something about the reporting requirements earlier. Further, the Petition is not solely aimed at RPS-related data.
While it is a very close call, we find that the two cited factors in combination justify consideration of the Petition. We agree that the IOU Matrix is more detailed than the ESP Matrix and that this difference is in part because ESPs' reporting requirements were far less well known when we developed the Matrix approach. Thus, we will consider the Petition here.
4.2. Specific Proposed Changes
We address each proposed change to the ESP Matrix, and the reasons given for the change, below. We grant a few changes, but in large part deny AReM's petition.
4.2.1. Resource Adequacy Information
In its RA proceedings, R.08-01-025 and R.05-12-013, the Commission is evaluating the rules for determining whether the IOUs, ESPs and other "load serving entities" (LSEs) have adequate access to electric resources in the foreseeable future. In connection with this goal, the Commission requires all LSEs to make periodic filings that demonstrate the following:
1. The LSE has arranged for supplies to meet 90% of its forecast peak load plus a 15% planning reserve margin for each summer month of the following year.
2. The LSE, on a month-ahead basis, has procured sufficient capacity to meet 100% of its peak load plus the planning reserve margin for each month of the year.
3. The LSE has contracted for capacity to meet its local RA requirements on a year-ahead basis.
4. Recorded (historical) hourly loads and monthly peaks for each year.
AReM states that a fair amount of the data it submits to comply with this requirement should be confidential, including supply data. It is concerned that if power sellers know how much capacity the ESP needs and when and where it needs it, the ESP and its customers will pay more for power than they should due to market manipulation. AReM therefore asks for the following additional confidentiality provisions in the ESP Matrix:
Item |
Public/Confidential Treatment |
Explanation of Item |
II) Resource Adequacy Information | ||
B) Supply data (both year ahead and month ahead) |
Supply data for first three years of forecast period confidential |
Year ahead data show that ESP has secured adequate generation capacity to cover 90% of its forecast peak load for next year's summer months or 100% of its annual local RA requirements. Month ahead data show that ESP has secured adequate capacity to cover 100% of its forecast load plus a reserve requirement. |
We agree that the amount of supply data ESPs file publicly should mirror that of IOUs, as we stated in D.06-06-066: "No type of entity (e.g., IOU or ESP) shall receive greater confidentiality for its data merely because it is such an entity."5 AReM is also correct that we have protected IOUs' supply forecasts, for limited periods, in order to avoid the same type of market manipulation AReM fears. Thus, we grant AReM's proposed change, which covers the first three items (which are forecasts) on the list of RA compliance data above.
The fourth category of information above ("Recorded [historical] hourly loads and monthly peaks for each year") is historical in nature. AReM urges us to protect that data because an EPS's actual capacity requirements for the prior year may correspond very closely to their current RA requirements. AReM notes correctly that the equivalent IOU Matrix provision protects equivalent data submitted by the IOUs for one year.6 We grant AReM's proposal, as follows, on these grounds.
Item |
Public/Confidential Treatment |
Explanation of Item |
II) Resource Adequacy Information | ||
C) Recorded hourly loads and monthly peak loads |
Public after one year |
Recorded load data provided by ESPs for RA compliance |
Finally, AReM asks that we protect its monthly customer counts, on the ground that such counts are directly related to and constitute an integral part of an ESP's load forecast. It fails to justify its position in any further detail, to cite a comparable provision in the IOU Matrix, or to show how customer count could drive the price of power an ESP must procure. Thus, we deny the following modification to the ESP Matrix:
Item |
Public/Confidential Treatment |
Explanation of Item |
II) Resource Adequacy Information | ||
D) Customer counts by month |
Forecast monthly customer counts for first three years if forecast period confidential, actual monthly customer counts public after one year |
Monthly customer count data used to evaluate reliability of ESP load forecasts |
4.2.2. Demand Forecasting Methodology
AReM asks that the ESP Matrix category for demand forecasting methodology only require ESPs to reveal the methodology in general terms, rather than the specifics of how that methodology is applied. We disagree that there is an inconsistency in the IOU Matrix and ESP Matrix on this point. Both say, in the "Explanation of item column" (see IOU Matrix Section V.A and ESP Matrix Section III.A), that the information to be disclosed is general descriptive information regarding the methodology used by LSEs when estimating future electric capacity and energy needs. Thus, the ESP Matrix is already clear and requires no change, and we therefore deny AReM's Petition in this regard.
AReM contends that ESP contract information should receive greater confidentiality protection than the same information for IOUs, asserting that such information "provides precise information regarding existing and ongoing commercial relationships and could be used to calculate an ESP's total peak demand and corresponding capacity requirement...."7 AReM asks for the following changes:
Item |
Public/Confidential Treatment |
Explanation of Item |
I) RPS Information | ||
A) RPS contracts |
Contract summaries public, including Other terms confidential for three years, or until one year following expiration, whichever comes first. |
|
Item |
Public/Confidential Treatment |
Explanation of Item |
IV) Bilateral Contract Terms and Conditions - Electric | ||
A) Bilateral contracts |
Contract summaries public, including Other terms confidential for three years, or until one year following expiration, whichever comes first. |
Includes contracts of greater and fewer than five years in duration. |
We have already protected the contracts themselves, and simply required both IOUs and ESPs to publicly reveal high level summary data about their contracts. AReM has failed to justify that revealing the summary form of detail - counterparty, location, capacity, expected deliveries, delivery point, and length of contract - will cause it harm. We thus deny AReM's request in this regard, and leave the relevant ESP Matrix as is.
In R.06-05-027 and R.06-02-012,8 the Commission is engaged in ongoing implementation of the RPS program requirements of Pub. Util. Code § 399.11. That statute generally requires that 20% of total retail sales of electricity in California be from eligible renewable energy resources (e.g., wind, solar, small hydroelectric, geothermal, biomass/biogas and wave power) by December 31, 2010. In meeting this obligation, the IOUs and ESPs must submit periodic compliance reports demonstrating their progress toward meeting RPS goals.
AReM asks that its compliance information receive the same confidentiality treatment as we afford the IOUs, as follows (with additions to the current ESP Matrix underlined and deletions in strikethrough text):
Item |
Public/Confidential Treatment |
Explanation of Item |
1) RPS Information | ||
A) RPS compliance filings required by CPUC, by ESP |
|
Includes one-time and recurring reporting. Shows current and projected contents of an ESP's RPS portfolio, including sales and resource mix. |
B) Annual RPS compliance filings, by ESP |
|
Includes Annual Procurement Target (APT) reporting required in Rulemaking 04-04-026 and all other required reports. |
AReM explains it needs this protection because 1) RPS and non-RPS data should be treated the same, and 2) there are internal inconsistencies in the ESP Matrix. We disagree that D.06-06-066 requires that we treat RPS and non-RPS data identically (AReM's first point). Indeed, D.06-06-066 held just the opposite, making clear that the Matrices should, and did, afford greater access to RPS data: "Due to the strong public interest in RPS, we have provided in the attached appendices greater public access to RPS data than other data." D.06-06-066, mimeo. at 3.
We do agree with AReM that we should fix inconsistencies in the Matrix. To the extent that a forecast for RPS purposes reveals the ESP's total information, for example, it could reveal the ESP's total net short, which we have protected for IOUs. We agree with AReM that we should protect this information. However, we will protect it only if revealing the information for the ESP's RPS compliance would reveal the results for the ESP's entire energy portfolio.
Further, we will not require the ESP to seek confidentiality of regular compliance filings every time it files, but only the first time. Thereafter, it may simply cite a prior ruling or motion when making compliance filings. Thus, we grant AReM's Petition in part; the relevant portion of the Matrix will read as follows:
Item |
Public/Confidential Treatment |
Explanation of Item |
1) RPS Information | ||
A) RPS compliance filings required by CPUC, by ESP |
An ESP need not seek confidential treatment of the foregoing information (if not public) every time it makes a compliance filing, but rather need only cite a former ruling/motion when making subsequent compliance filings. |
Includes one-time and recurring reporting. Shows current and projected contents of an ESP's RPS portfolio, including sales and resource mix. |
B) Annual RPS compliance filings, by ESP |
An ESP need not seek confidential treatment of the foregoing information (if not public) every time it makes a compliance filing, but rather need only cite a former ruling/motion when making subsequent compliance filings. |
Includes Annual Procurement Target (APT) reporting required in R.04-04-026 and all other required reports. |
AReM notes that some ESPs may have few customers or contract counterparties and that revealing a customer's identity could reveal customer-specific energy costs and consumption information. It does not ask that we add a provision to the Matrix, but simply that we acknowledge ESPs' right to seek confidentiality "where there is a documented potential for sensitive customer data release." AReM also asks that we make the identity of all contract counterparties confidential.
We deny AReM's Petition in this regard, but do not preclude an ESP from seeking confidentiality as to the identity of its contract counterparty or customer on a case-by-case basis. Indeed, D.06-06-066 already provides for motions of confidentiality for data not contained in the IOU or ESP Matrix, and we do not see the need to modify the decision in this regard. As in all cases, the party seeking confidentiality bears the burden of proof to show, with particularity, that public release of the data will cause harm, violate trade secret protection, or cause some other ill effect. See, e.g., D.06-06-066, mimeo., Ordering Paragraphs 4-5.
As we note above, we allow RPS providers who submit the same compliance reports and filings on a regular basis to only file an initial motion and receive an initial confidentiality ruling. We extend this same rule to all ESP and IOU compliance filings in the proceedings covered by the Matrices. The IOU Matrix change appears as Appendix C to this decision. Where the ESP or IOU makes a compliance filing that is not initially accompanied by a motion - e.g., where the filing is made with the Energy Division - the ESP/IOU need only refer back to the initial showing it made to Energy Division in seeking confidentiality for subsequent filings of the same information.
5 D.06-06-066, Conclusion of Law 23.
6 D.06-06-066, Appendix 1, p. 21, Item X.C.
7 Petition at 20.
8 The predecessor proceeding was R.04-04-026.
