2. Discovery Requests

The following section sets forth our rulings on all other pending discovery disputes. In most cases, the parties dispute whether the requested information may be discovered. We have resolved these disputes using, as guidance, the criteria of Code of Civil Procedure section 2017(a) (discovery of "any matter, not privileged, that is relevant to the subject matter involved in the pending
action . . . , if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence"). We are also guided by the public interest balance test, as described in the California Public Records Act (CPRA), as generally described here: 

Government Code Section 6255. "The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record."

That is, even if no express exemption for particular information within the CPRA applies, and no other law restricts access, Section 6255 allows an agency to withhold information on an ad hoc basis providing it can show that the public interest is better served by nondisclosure.

The Commission's avoided cost rulemaking stems from the requirements of the Public Utility Regulatory Policy Act of 1978 (PURPA). PURPA requires the Federal Energy Regulatory Commission (FERC) to prescribe and periodically revise rules that "require electric utilities to offer to.... (2) Purchase electric energy from [QFs]."³ PURPA also requires this Commission to "implement [the FERC QF rules] for each electric utility for which it has ratemaking authority."⁴ At issue in this rulemaking is the PURPA mandate that QFs receive payments that are just and reasonable, that do not discriminate against QFs, and that do not exceed the utilities avoided costs.⁵

As the QF parties note, up until 1996, short-run avoided costs (SRAC) were established pursuant to an annual proceeding in which the Commission conducted a detailed examination of the utilities' avoided costs. With electric restructuring, and Assembly Bill 1890, the process for determining SRAC was changed, as set forth in Public Utilities Code Section 390.

In their motions, the QF parties seek production of certain detailed information related to the utilities' avoided costs, including forecasted demand, load, and price data. The QF parties state that, in order to meaningfully participate in the Commission's avoided cost rulemaking, the QF parties must have access to the data necessary to calculate the utilities' avoided costs.

The utilities objected to the QF parties' discovery requests for the most part with a set of standard objections including: (1) the information is trade secret in that it derives independent economic value from not being known to market participants, such as the QF parties; (2) the information is protected from discovery by the California Evidence Code Section 1060; (3) Public Utilities Code Section 454.5(g) prevents disclosure of the information to market participants; (4) CPUC General Order (GO) 66-C prohibits disclosure; and (5), the Administrative Law Judges' Ruling Regarding Confidentiality of Information and Effective Public Participation issues on April 4, 2003 in R.01-10-024 prohibits disclosure. Each of the above objections has at its core, the purpose of preventing the release of information which, using G.O. 66-C as an example, "if revealed, would place the regulated company at an unfair disadvantage."⁶ The utilities also assert generally that the requested information is not necessary to the QF parties' participation in this rulemaking.

We grant the QF parties' motions in part, as discussed herein. First, on the issue of whether the information requested is necessary or reasonably likely to lead to the discovery of admissible evidence, we agree with the QF parties that the data sought is clearly subject to disclosure on that basis. We find no requirement that the QF parties are limited to requesting information pertaining to proposals made by the utilities or others in advance of filing testimony. The requested documents must only be reasonable likely to lead to admissible evidence related to the utilities' avoided costs. The QF parties are not prohibited from discovering relevant sources of avoided cost data simply because the utilities may recommend that the Commission rely on a different source of data. The test for relevancy is not whether the utilities rely upon a particular source, but rather whether the data source is relevant overall to the Commission's consideration of avoided costs. In this case, the Assigned Commissioner's Ruling and Scoping Memo in R.04-04-025 identified the SRAC issues as follows: "the Scope of Phase 2 of this proceeding should include all SRAC pricing issues, including, but not limited to: 1) whether or not the Commission's current SRAC energy price formula, including existing time-of-delivery and line loss factors, should be replaced, and if so, what changes should be made, and 2) updating the current as-available and as-delivered capacity prices. In addition, as the Commission noted in the OIR, the scope of this phase will include an assessment of whether the formula mandated by Section 390 of the Public Utilities Code allows us to assure just and reasonable rates for the power provided by QFs."⁷ We are unpersuaded by the utilities' arguments on this issue.

Next, we turn to the question of whether the information should be disclosed. The utilities argue that Public Utilities Code Section 454.5(g) requires both the utilities and the Commission to keep market sensitive information confidential. Section 454.5(g) provides in pertinent part:

The commission shall adopt appropriate procedures to ensure the confidentiality of any market sensitive information submitted in an electrical corporation's proposed procurement plan or resulting from or related to its approved procurement plan, . . . provided that the ORA and other consumer groups that are nonmarket participants shall be provided access to this information under confidentiality procedures authorized by the commission.

The utilities assert that the law does not provide for making market sensitive information available to market participants under any circumstances. The utilities argue that, with reference to the legal maxim of expression unius est exclusion alterius ("the expression of one possibility thereby excludes other possibilities"), the California legislature must be presumed to have intended, by specifically mentioning that the Commission must provide the data to non-market participant parties, that the Commission must exclude market participants from access to such information even under similar confidentiality requirements.

The section sets forth two requirements. First, the Commission must adopt "appropriate procedures" to ensure the confidentiality of market-sensitive information in procurement proceedings. Second, ORA and consumer groups have a guaranteed right to this information (i.e., "shall be provided"), so long as appropriate confidentiality procedures are in place. The Commission may choose to make this market-sensitive information available to parties other than ORA and consumer groups (but is not required to do so), so long as appropriate confidentiality procedures are in place. There is no convincing indication that the legislature intended otherwise. The question for us is whether the disclosure of such information to market participants is consistent with the statutory mandate to ensure its confidentiality.

Under PURPA, a utility's avoided cost is the cost to either generate or purchase additional power, specifically:

Sec. 292.101 (b)(6) Avoided costs means the incremental costs to an electric utility of electric energy or capacity or both which, but for the purchase from the qualifying facility or qualifying facilities, such utility would generate itself or purchase from another source. (Code of Federal Regulations)

Parties are generally in agreement that the cost of as-available energy and capacity can be determined with publicly available data. However, a complete set of publicly available data is not available with which to determine how much it might cost a utility to generate various increments of electric power. Utilities are concerned that the public availability of such information would allow market participants to more accurately determine when each utility may actually need power, which has been referred to as a utility's RNS or residual net-long (RNL) position. The Commission has previously described a utility's RNS position as "the difference between customer loads and the power already under contract to the utilities or generated from a utility-owned asset" (D.02-09-053, p.1).

Utilities are concerned that, the more market participants know about exactly when a utility has a need for a certain type or amount of power in a certain time period, the more of a price premium power sellers may attempt to extract. As part of the long-term procurement planning process, the utilities have disclosed some, but not all, information on a forecasted basis needed to calculate a utility's need for power. For example, as part of its 2004 Long-Term Procurement Plan Testimony, SCE has provided monthly forecasts of load, but did not publicly provide any forecasted energy or capacity forecasts of its resources with which to meet that load.

Further, with regard to publicly available data, we are aware that while FERC requires public utilities to file Electronic Quarterly Reports (EQRs) "summarizing the contractual terms and conditions in their agreements for all jurisdictional services (including market-based power sales, cost-based power sales, and transmission service) and transaction information for short-term and long-term market based power sales and cost-based power sales during the most recent calendar quarter" (99 FERC 61,107, p.1). We are not, however, aware of any FERC requirement that the utilities provide similar information on a forecast basis.

Our goal in resolving the remaining discovery disputes is to make available to the parties sufficient data from which utility avoided costs may be derived, without subjecting utility ratepayers to the risk of market manipulation stemming from the misuse of market-sensitive data. In issuing the protective order, Attachment A, we have adopted appropriate procedures concerning access to certain market-sensitive information in the context of an avoided cost proceeding where QFs must have certain market information in order to participate effectively and thereby assist the Commission in its decisionmaking.

CAC/EPUC Data Request SCE-01 #1:

CAC/EPUC seeks SCE's Contract Valuation Tool (CVT) model along with all associated documentation for running the model and support for the inputs used in the model. The CVT model is used to evaluate the most cost-effective periods for SCE to schedule its available contract and generation resources, identifying both optimum running periods and the value of new resources. CVT inputs include each resource's operating characteristics (minimum and maximum operating power limits, ramp rates, minimum up and down times, start up cost, shut down cost, production cost curve, etc.) and anticipated energy and ancillary services market prices. CAC/EPUC assert that access to SCE's CVT is directly relevant for determining both SRAC and long run avoided costs.

SCE argues that the CVT is a highly sensitive, trade secret model that would enable competitors to determine with high level of precision SCE's hourly procurement needs and costs. SCE is particularly concerned that release of the model would allow competitors to ascertain SCE's RNS position. The RNS reflects the amount of electricity the utility must procure from the market. The RNS can be calculated by subtracting a utility's resources (including both contractual and utility-owned resources) from hourly system demand. The CVT model and the associated inputs would reveal SCE's RNS position. Familiarity with both the utility's demand component and the supply component would also reveal the utility's RNS position. Knowledge of the utility's RNS position may enable market participants or competitors to manipulate bid prices, or offering amounts, or take other actions resulting in potentially significant harm to the utilities' ratepayers.

As discussed above, the Commission's rules and related policies require that we strike a balance between making information available to other parties in proceeding and protecting a company's proprietary interest. CAC/EPUC's request for release of this information is denied. SCE has appropriately established why the CVT model should remain confidential, as protected proprietary information.

CAC/EPUC Request SCE-01 Question #2:

CAC/EPUC Request PG&E -01 Question #2:

CAC/EPUC requests copies of the utilities' daily energy plans and the final version of the utilities' daily energy plans for the most recent 12-month period. The plans contain a complete daily dispatch level listing by hour of all the utilities' contractual and physical electricity resources as well as estimates of load and market pricing and natural gas needs. The difference between the resources available and the load estimate is essentially the amount of energy the utility has to buy or sell for each hour.

The utilities maintain that this information could be used in the market to the disadvantage of the utilities and their ratepayers, with market participants choosing to sell or not sell, or sell at a higher price at times of high demand, thus raising the price. This information should not be subject to disclosure because the risk to the ratepayers of releasing data delineating the utility's RNS positions outweighs the public interest in making this data available to market participants for purposes of the avoided cost rulemaking. CAC/EPUC's request for release of this information is denied.

CAC/EPUC Request - SCE-01 #3:

CAC/EPUC seek a fully functioning copy of the most current proprietary unit commitment models that determine the hourly dispatch level of all of SCE's physical and contractual generation resources. CAC/EPUC state that the most contentious issue in the annual determination of short-run avoided energy costs in ECAC proceedings was the commitment of a utility's resources, and that it requires the unit commitment models in order to assess the impact of the commitment of SCE's resources on its avoided costs.

SCE objects to this request by stating that the unit commitment models are trade secret, proprietary and extremely market-sensitive. SCE represents that it has not made the model public; and, if the model were made public, the information would provide market participants with hourly information regarding the likely commitment of SCE's resources under various market conditions.

This model determines the likely commitment and dispatch of SCE's resources, identifying SCE's RNS/RNL positions on an hourly basis. SCE has maintained the model as confidential and has shown why the model should remain confidential as protected proprietary information. CAC/EPUC's request for released is denied.

CAC/EPUC Request SCE-01 #4:

CAC/EPUC Request PG&E -01 #3:

CAC/EPUC request a copy, including all attachments and supporting documents, for the utilities' quarterly Short-Term Procurement Plan Compliance Reports filed to date (SCE Advice Letters 1753, 1774, 1794, 1815, and 1836; PG&E Advice Letters 2299, 2327, 2464, etc.) and any new filings that occur during the course of this rulemaking.

The utilities state that these filings contain detailed quarterly purchase and sale information submitted for review and approval by the Commission. The utilities argue that access to the historical purchase and sale information included in these filings would enable market participants to predict the utilities' RNS/RNL positions. This information is market-sensitive, in that access would provide market participants with the tools to predict the utilities' RNS/RNL positions in the near future. The data should be released only under the approved protective order.

CAC/EPUC Request SCE-01 #5:

CAC/EPUC Request PG&E-01 #4:

CAC/EPUC requests a copy of the Gas Supply Plans for the State of California Department of Water Resources (DWR) Tolling Agreements filed to date (e.g. SCE advice filings 1701, 1738, 1776, and 1817) and any new filings that occur during the course of this proceeding. CAC/EPUC argue that in order to determine if the current gas price based on the avoided gas being acquired at Malin and transported to Southern California over PG&E's gas transmission lines is still appropriate, parties must review SCE's gas procurement plans, including the location of historical or prospective purchases as well as the associated price.

Unlike in prior ECAC proceedings, the utilities now compete and negotiate directly with other market participants for contracts to acquire or provide gas or energy. These gas supply plans provide information regarding the transaction needs associated with the utilities' portfolio of DWR contracts, including dispatchable resources, for the next five years. This information is market-sensitive, and should be released only under the approved protective order.

CAC/EPUC Request - SCE-01 #6:

CAC/EPUC request a copy of the local reliability procurement proposal filed by SCE in Advice Letter 1832. This advice filing contains the parameters under which SCE will solicit up to 600 MW of capacity to ensure local reliability in its service territory in addition to seeking approval of a new contract form. CAC/EPUC maintain that information regarding locational benefits, including losses, is part of the avoided cost determination and therefore this advice filing contains information relevant to SCE's avoided costs.

In response, SCE argues that the confidential appendix of this filing contains the methodology SCE will use to value local area reliability contracts relative to the market. In SCE's opinion, release of this information would allow participants to devise methods to increase profits or increase the likelihood of being selected, at the expense of higher costs to ratepayers.

SCE's general statement regarding the appendix methodology is insufficient to support its request for confidentiality. We will allow SCE to submit additional comments explaining why each component of the local reliability procurement proposal filed in Advice Letter 1832 should remain confidential. SCE should attach copies of the documents sought, along with a motion for confidential treatment, for in camera review.

CAC/EPUC Request SCE-01 #7:

CAC/EPUC Request PG&E-01 #5:

CAC/EPUC request copies of transition capacity contracts executed by SCE and PG&E. CAC/EPUC explain that as this proceeding will judge the reasonableness of the utilities' avoided cost capacity prices, the utilities' capacity needs and capacity prices are relevant. Following the meet and confer sessions, PG&E and CAC/EPUC determined that the contracts CAC/EPUC sought were authorized in D.03-08-066 and contained in an ERRA filing that CAC/EPUC is seeking under CAC/EPUC Request PG&E-01 #6. CAC/EPUC modified its request to seek a complete, non-redacted copy of PG&E Advice Letter 2427-E. This advice letter contains the procedures under which PG&E was to acquire capacity to meet the needs for summer of 2004.

The utilities represent that market participants could use this capacity contract information to estimate the utilities' market position. In the case of expired contracts, however, the information may be up to three years old and reflects positions and the market conditions at that time. SCE's argument that expired contract information would benefit current participants is speculative. CAC/EPUC's request as modified is granted. Transition capacity contracts currently in effect should be released under the approved protective order. Expired transition capacity contracts shall be released without a protective order.

CAC/EPUC Request SCE-01# 8:

CAC/EPUC Request PG&E-01 #6:

CAC/EPUC requests complete, non-redacted versions of all documents filed by SCE in eight separate dockets. CAC/EPUC's request is too broad and its need for each of the documents is unsubstantiated. CAC/EPUC's request is denied without prejudice.

CAC/EPUC Request SCE-01 #9:

CAC/EPUC Request PG&E-01 #7:

CAC/EPUC initially requested a spreadsheet detailing monthly deliveries (kWhs), capacity payment and energy payment made to each QF for the last two years (2002 and 2003), including the QF identification number, contract termination date, and pricing options under which the project is being paid. Following the meet and confer sessions held on January 19-20, 2005, CAC/EPUC modified the request to limit it to kWh and payment data (energy and capacity) aggregated by two categories (thermal and renewable), three pricing provisions within each category (SRAC, fixed energy and LRAC) by month for 2005 and 2006. CAC/EPUC states that this data is necessary to determine the amount of resources needed by SCE in lieu of QF purchases.

The utilities assert that market participants armed with this information may be able to determine the utilities' net short positions. While the information requested is limited to QF purchases, to the extent that one component of the RNS calculation is publicly available, revealing the remaining components of the calculation would allow competitors to determine a utility's RNS position. In addition, the utilities argue that prior protective orders issued in R.01-10-024 protect this information from disclosure.

The utilities must respond, but should narrow their responses to only make available historical information regarding quarterly deliveries from the years 2002 and 2003 in kWhs, aggregated by thermal and renewable QFs and the three pricing provisions (SRAC, fixed energy and LRAC). The utilities are not required to including the QF identification number or contract termination date, unless otherwise required to do so by another entity such as the CEC. As aggregated, the information is no longer market sensitive, therefore, CAC/EPUC's request is granted as modified, and no protective order is required for release of the data.

CAC/EPUC Request SCE-02 #1:

CAC/EPUC requests a complete, non-redacted copy of Advice Letter 1770-E-B, dated December 22, 2004, and all associated workpapers. CAC/EPUC state that AL 1770-E-B contains information related to SCE's capacity needs and the capacity pricing for the period of 2005 through 2014 and is therefore relevant to the determination of the reasonableness of SCE's avoided cost capacity prices.

Both CAC/EPUC's request and SCE's response is insufficient for purposes of determining whether the document should be considered market sensitive, and therefore remain confidential, or should be released. While information related to SCE's capacity needs and pricing in the near future is arguably market-sensitive, the market sensitivity of the utilities' capacity needs and prices further into the future, and certainly as distant as the year 2014 is speculative, at best. At the same time, CAC/EPUC do not provide sufficient detail regarding the information requested and why it is necessary. CAC/EPUC's request is denied, without prejudice, as too broad. In the event CAC/EPUC renew their request, SCE will be required to explain, with particularity, why the data should remain confidential.

CAC/EPUC Request SCE-02-#2:

CAC/EPUC requested copies of all data requests received from other parties to this proceeding and SCE's responses, including those attachments and electronic materials, to those data requests. SCE objects as to the ongoing nature of the request. To expedite the discovery process, SCE shall provide copies of all data requests received from other parties, and the responses, provided that the data requests themselves do not contain information that should be subject to a protective order.

CAC/EPUC Request PG&E 01 #1:

CAC/EPUC seeks release of the current version of the utilities' economic dispatch models used to estimate QF generation for contracts with dispatch features, along with documentation for running the model and support for the inputs used in the model.

PG&E represents that the models are currently used for dispatch and procurement planning; and, if the model were made public, the information would provide competitors with the location and amount of PG&E's generation portfolio needs.

Consistent with our ruling with regard to CAC/EPUC Request SCE #01-03, above, CAC/EPUC's request is denied.

IEP Request PG&E #1:

IEP Request SCE #1:

IEP requests unredacted copies of all data requests received from other parties, the Energy Division, or PG&E's Procurement Review Group and all unredacted responses and data supplied in reply to those data requests in several Commission proceedings. SCE and PG&E object for several reasons, including that the request is overbroad, overly burdensome and seeks confidential, proprietary information.

We agree with the utilities that the request is overly broad. IEP's request is denied.

IEP Request - PG&E #2:

IEP Request SCE #2:

IEP's request in this case is similar to the request in #1, above, requesting all unredacted copies of all data requests received from other parties, the Energy Division or the utility's Procurement Review Group and all unredacted responses and data supplied in reply to those data requests in several specific advice letter filings. SCE and PG&E's response is identical to the response to #1. IEP's request is denied for the reasons set forth in #1.

IEP Request - PG&E #3:

IEP Request SCE #3:

IEP requests unredacted copies of all data requests received from other parties, the Energy Division, or the utility's PRG and all responses and data supplied in reply to those data requests in the transition capacity contracts pursuant to D.02-08-071. IEP's request is granted as modified. The utilities shall provide information concerning any transition capacity contracts that have expired. For transition capacity contracts that have not expired, the utilities shall provide the requested information subject to the approved protective order.

IEP Request - PG&E #4:

IEP Request - SCE #4:

IEP requests unredacted copies of all data requests received from other parties or the Energy Division and all unredacted responses and data supplied in reply to those data requests related to the gas supply plans for the DWR tolling agreements filed to date.

IEP's request is similar to CAC/EPUC Request CAC/EPUC Request
SCE-01 #5 and CAC/EPUC Request PG&E-01 #4 in that CAC/EPUC request in that IEP seeks information regarding the gas needs associated with the DWR portfolio, including dispatchable resources, for the next five years. As with the CAC/EPUC requests, above, this information should be maintained as confidential, and released only under the approved protective order.

IEP Request - PG&E #5:

IEP -SCE - 02 #6:

IEP requests that PG&E and SCE identify all purchases of electrical energy made from sources other than qualifying facilities during the period January 1, 2002 through the present date, requesting seller name, date of transaction, date and location of energy delivery, the quantity and price of energy delivered.

The utilities object to the information being disclosed out of concern that such disclosure will create a risk that market participants would use the information to ascertain and anticipate the utilities' procurement needs and tailor their own market activities to gain a competitive advantage, i.e., to extract higher prices that are ultimately passed on to ratepayers.

On an hourly or monthly basis, access to this information would provide market participants with the ability to discern the utilities' net short positions to the potential detriment of ratepayers. To reduce the risk of ratepayer harm, we will require the utilities to provide the requested information on an aggregated basis, broken down to identify type of resource, volumes and cost by quarter. The utilities shall release the requested information, in aggregated form as directed herein.

IEP Request - SCE #5:

IEP requests unredacted copies of all data requests received from other parties of the Energy Division and all unredacted responses and data supplied in reply to those date requests related to SCE's revised local reliability procurement proposal filed as Advice Letter 1832.

SCE objects to the request for the same reasons listed in IEP Request - SCE #1, above.

As noted above, release of information concerning the utilities' location-specific capacity needs shall be deemed confidential, and released subject to the approved protective order.

IEP Request - PG&E #6:

IEP Request - SCE-02 #7:

IEP requests information regarding all instances in which Reliability-Must-Run (RMR) units contracted by the California Independent System Operator (CAISO) were instructed to deliver energy to serve load in the utilities' service territory during the period January 1, 2002 through the present date, including the seller name, date of energy delivery, location of energy delivery, quantity (MWh) and the energy price ($MWh).

PG&E objects to the request as burdensome , stating that PG&E is unable to trace power that it may have purchased as a result of a unit owner delivering energy into the ISO Controlled Grid and selling into the market as a result of an ISO dispatch order. SCE maintains that information provided to SCE for ISO-dispatched RMR units is required to be confidential pursuant to the terms of the RMR-CAISO Pro Forma Must-Run Service Agreements. SCE notes that SCE's 2005 Reliability Services True-Up will be filed at the Federal Energy Regulatory Commission on 12/30/04, and made publicly available on FERC's website.

To the extent any RMR information is required to be publicly released to other agencies, such as the CEC, FERC, or the California Independent System Operator, the same information shall be released in a non-confidential manner in this proceeding.

IEP Request - PG&E #7:

IEP Request -SCE-02 #08:

IEP requests that PG&E and SCE identify all instances in which generating units or power suppliers under contract with DWR delivered energy to serve customers in PG&E's and SCE service territory during the period January 1, 2002 through the present date, including the seller name, date of delivery, location, quantity and the energy price.

PG&E maintains that the request is overly broad and seeks information that is confidential, proprietary, commercially sensitive, and which is protected under the Administrative Law Judges ruling protecting confidential information in PG&E's ERRA proceeding (A.03-08-004) as well as the protective order adopted in R.01-10-024.

SCE also states that the request is overly broad and burdensome, and exceeding the scope of permissible discovery. SCE also states that SCE is not authorized to release the information because the Commission's Operating Order, dated December 19, 2002, requires SCE to maintain the requested information as confidential.

The information requested is historical delivery information related to the DWR contracts and is not necessarily indicative of future deliveries. However, we are sensitive to the utilities' concerns regarding the potential for the QF parties to use such hourly, location, and price-specific data to calculate the utilities' net short or long positions. The utilities shall make available quarterly information regarding DWR deliveries, including aggregated location, quantity and price data.

IEP Request-PG&E #8:

IEP Request -SCE-02 #9:

IEP requests copies of any report, presentation or study completed by or for PG&E or SCE in the past two years analyzing wholesale electricity prices in the Western U.S.

The utilities object on the grounds that the request is overly broad, that the documents are protected under California Evidence Code Section 1060, PU Code 583, and Commission GO No. 66-C, and the information is subject to the attorney client privilege.

Both the request and the objections are overly broad. The utilities shall respond to the request by identifying any reports, presentations or studies that meet the requested criteria. Upon receipt of this information, the QF parties may submit a request for specific information, with sufficient justification as to why the requested information is necessary. The utilities may thereafter reassert any claim of confidentiality or privilege.

IEP Request PG&E #9:

IEP-SCE-02 #10:

IEP requests unredacted copies of all the forecasts of future wholesale electric prices prepared or used by PG&E or SCE since January 1, 2002.

PG&E objects to this request on the grounds that, to the extent the request call for current forecasts, the material has heretofore been protected from disclosure to market participants by the April 4, 2003, ALJ Ruling Regarding Confidentiality of Information and Effective Public Participation Commission Rulemaking, R.01-10-024, the procurement rulemaking preceding R.04-04-003, as well as in the ALJ ruling protecting confidential information in A.03-08-004, PG&E's ERRA filing. PG&E also notes that it does not use forecasts, per se, but relies upon broker quotes . PG&E is not aware whether the brokers would authorize release of their data or under what circumstances.

SCE argues that this request seeks disclosure of trade secrets or other proprietary business information. SCE also notes that, without waiving any confidentiality claims, it has already provided certain forecasted annual price data in response to this request.

Forecast prices, while not revealing the utilities' RNS/RNL positions, may also be market sensitive as they are a factor in determining the expected commitment and dispatch of a utility's resources. For example, to the extent market prices are lower than the cost of dispatching utility resources, the utility is likely to look to the market for resources. Historical forecast information does not present the same concern.

As PG&E and SCE note, however, the forecast information is often proprietary information received from brokers, who are in the business of selling such data to market participants. Although we will not require the utilities to disclose proprietary information received from brokers, it is reasonable to require the utilities to identify the circumstances in which broker information was utilized. The QF parties may then, at their discretion obtain independent access to the same type of information as necessary. Forecasts of future wholesale electric prices prepared by PG&E and SCE prior to the year 2004 shall be disclosed, as these forecasts concern market conditions present over a year ago and any current market sensitivity is speculative.

IEP Request PG&E#10:

IEP Request - SCE-02 #11:

IEP requests unredacted copies of all the forecasts of future wholesale natural gas prices prepared or used by PG&E/SCE since January 1, 2002.

PG&E and SCE object to this request for the same reasons as discussed in IEP Request PG&E #9/IEP -SCE-02 #10 above.

For the same reasons stated above concerning forecasts of future electric prices, we will not require the utilities to disclosure proprietary information received from brokers. Forecasts of future wholesale natural gas prices prepared by PG&E and SCE prior to the year 2004 shall be disclosed, as these forecasts concern market conditions present at that time and any current market sensitivity is speculative.

CCC Data Requests

The CCC and the utilities have communicated repeatedly since the initial CCC Data Requests were submitted on December 13, 2004. Based on the Motion to Compel Responses to Data Requests filed on March 4, 2005, the number of documents and information in dispute appears to have been reduced to six outstanding requests. In response to the CCC's requests, the utilities have each asserted essentially the same set of objections that were presented in response to the CAC/EPUC and IEP Motions.

CCC Data Request 01-02

CCC requests that the utilities provide their current forecast of hourly system demand for the period 2006 to 2010, including: (1) the most recent 8760 hour retail demand forecasts for each year in the period from 2006 through 2010 (in MWh, by hour), (2) the assumed levels of energy efficiency programs, direct access loads, customer migration to community choice aggregation programs, and load loss to distributed generation or municipalization. CCC also requested that the utilities indicate whether the forecast provided is from the R.04-04-003 procurement plan filing.

CCC states that it is developing and may propose an Incremental Energy Rate (IER) established using the Commission's adopted, pre-restructuring, methodology for determining the IER using production cost modeling, and that CCC needs certain detailed data concerning the utilities' systems that enable it to do so. CCC states that it is willing to accept historical hourly load data for the past two years, as well as monthly forecasts for the years 2006-2010. CCC notes that SCE provided historical data for 2002 and 2003, but will only provide monthly demand forecasts with a protective order, and will not provide any monthly forecasts for supply. PG&E provided historical data for 2003 and will produce 2004 historical data, but refuses to provide forecast data. SDG&E will produce historical data and will produce monthly forecasts with a protective order.

The information requested is highly market sensitive because, if combined with sufficient load information, it will enable recipients to determine the utilities' net short and net long positions. As such, any hourly or monthly information shall be deemed confidential, and shall be released only under the approved protective order, unless the information has been released publicly in another forum, such as at the CEC. The utilities shall provide quarterly demand forecasts without a protective order.

CCC Data Request 01-04/02-02

CCC is requesting monthly procurement costs for 2002, 2003 and 2004, identified by resource and contract type. CCC notes that the utilities have asserted in prior procurement proceedings that current SRAC energy prices exceed their avoided costs. CCC states that it needs historical monthly data on the utilities' procurement costs in order to determine whether and by how much, if at all, the utilities avoided costs are lower then current SRAC prices.

PG&E provided monthly data, but did not break down the data by resource type and contract. SDG&E only provided SONGS 2002-2003 costs, and SCE did not provide any information. The CCC argues that without this data, it cannot determine the monthly costs of each utility's marginal purchases, which provide an indication of its avoided costs.

The CCC is willing to accept monthly UMFOR reports and quarterly procurement transaction compliance filings for 2003 and 2004, monthly power purchase volumes and costs for on- and off-peak periods for 2003 and 2004, and monthly excess power sales into the wholesale market for 2003 and 2004.

This request is similar to the CAC/EPUC's requests SCE-01 #4 and PG&E -01 #3. Monthly information on procurement costs, resource and contract type is highly market sensitive, even on a historical basis, as it is an indicator of the utilities' net short and net long positions on a monthly basis. And, as discussed above, access to quarterly procurement transaction compliance filings would enable market participants to determine the utilities' long and short positions. The utilities confidentially claim for hourly information is sustained. This information should be considered confidential, and released only under the approved protective order.

The utilities shall make publicly available historical procurement cost data aggregated on a quarterly basis.

CCC Data Requests 01-05/02-03:

In its first data request, the CCC requested the utility forecast for 2005 and 2006 of monthly URG costs and MWh produced, broken down by resource type (hydro, coal, nuclear, QF gas, QF renewable, IOU gas-fired, and other). For purchased power separate DWR contracts long-term and short-term purchases. CCC also requested the monthly forecasted sales of power (MWhs) and sales revenues for 2005. CCC requested that the utilities indicate whether these forecasts are consistent with the utilities' ERRA forecast.

In the second data request, the CCC indicated that it was willing to accept data for 2005, only so long as it is provided in monthly on- and off-peak units. The CCC requested the utilities' most recent forecast for 2005 of monthly, on and off-peak purchased power volumes,(MWhs) and costs ($), separately broken down into DWR contracts, QF gas, QF renewable, RPS renewable, long-term bilateral contracts with other utilities, and other wholesale market purchases. CCC also requested the monthly on- and off-peak forecasted sales and revenues for excess power sold into the wholesale market in 2005. SCE refused to produce any monthly forecasts, and will only produce quarterly forecasts, without on- and off-peak data.

The utilities shall provide quarterly forecasts of URG costs and MWH produced.

CCC Data Request 01-07

CCC requested the utilities' natural gas price forecasts for 2006-2010, indicating whether the forecast is consistent with the procurement plan filing in R.04-04-003. CCC states that SDG&E fully complied with data request 7, providing a long-term gas forecast at many market centers in the West. PG&E provided annual forecasts for 2008 onward from its long-term procurement plan, but failed to provide any data for the years 2006 or 2007. SCE did not provide any data. CCC will accept annual forecasts rather than monthly forecasts for the years 2006 through 2010.

The utilities shall provide annual forecasts of natural gas market prices for the years 2006-2010.

CCC Data Request 01-08

CCC requests the utilities' electric market price forecasts for the years 2006-2010, and an indication of whether the forecasts are consistent with their procurement plan filing. CCC states that because PG&E has asserted in prior proceeding that its short-run avoided costs are represented by published electric wholesale market prices, it has a right to understand the utilities' future expectations for these prices. CCC states that while PG&E and SDG&E have provided annual forecasts for 2008 onward from their long-term procurement plans, neither has provided data for 2006 and 2007. CCC is willing to accept annual forecasts rather than monthly forecasts for the years 2006-2010.

The utilities shall provide annual forecasts of electric gas market prices for the years 2006-2010.

CCC Data Request 01-10

CCC requests the utilities monthly forecast of QF generation from 2006 through 2010, in MWhs. CCC explains that this information is necessary because standard production cost models require input data on every generating unit operating or expected to operate in the region over the forecast period. The CCC notes that data on QF generation is especially important given the Commission's past practice of setting the SRAC IER based on comparisons between two production cost runs, with QFs in the model and without QFs. This comparison requires knowledge of the amount of QF generation over the forecast period. SCE refuses to provide the requested data and will only produce quarterly forecasts with a protective order. PG&E committed to producing 2003 GRC information, which includes monthly QF forecasts through 2005, but will not produce any information for the years 2006-2010. SDG&E is willing to produce its FERC Form 714, which includes annual forecasts, but refuses to produce monthly forecasts.

The CCC is willing to accept monthly aggregated forecast data on QF generation for 2006-2010, disaggregated only by gas-fired and renewable QFs.

The utilities shall make available quarterly aggregated forecast data on QF generation for 2006-2010, disaggregated by gas-fired and renewable QFs subject to the approved protective order.

³ 16 U.S.C. § 824a-3(a).

⁴ 18 U.S.C. § 824a-3(f)(1).

⁵ 18 CFR 292.304.(a)(1 and 2).

⁶ General Order 66-C § 2.

⁷ January 4, 2005, ACR and Scoping Memo in R.04-04-025 at 4-5.