Details for: 4011-E (Part 1 of 1).pdf


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Gary A. Stern, Ph.D.
Managing Director, State Regulatory Operations

June 7, 2019
PUBLIC VERSION
ADVICE 4011-E
(U 338-E)
PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
ENERGY DIVISION
SUBJECT:

Submission for Approval of the Marin Clean Energy Resource
Adequacy Capacity Swap Per Southern California Edison
Company’s Assembly Bill 57 Bundled Procurement Plan

PURPOSE
In accordance with Decision (D.) 12-01-033 and D.15-10-031 which adopted
Southern California Edison Company’s (SCE) 2010 and 2014 Assembly Bill 57
(AB 57) Bundled Procurement Plans (BPP), respectively; SCE submits this
advice letter seeking approval of a Resource Adequacy (RA) Swap, which is a
non-standard product not currently included in SCE’s BPP non-standard product
list.
INTRODUCTION
The Marin Clean Energy (MCE) RA Swap between SCE and MCE consists of
two concurrent transactions: a buy-transaction and a sell-transaction for
equivalent amounts of RA capacity between SCE and MCE, which was executed
during the first quarter of 2019 (Marin RA Swap). The Marin RA Swap consists
of a 61 MW South System RA capacity bilateral SCE buy-transaction with a
delivery period of July 1, 2019 through September 30, 2019, and an equivalent
corresponding North System 61 MW RA Capacity bilateral SCE sell-transaction
for an agreed-up price. Essentially, the Marin RA Swap is a transaction that
merely “swaps” North System RA capacity for South System RA capacity. SCE
hereby seeks approval of the Marin RA Swap as a non-standard product,
executed under the authority of SCE’s BPP. Also per SCE’s BPP, SCE
anticipates submitting a separate advice letter to add the RA Swap (as well as
additional non-standard products) to SCE’s authorized non-standard product list.1

1

SCE BPP, at sheet 54.

P.O. Box 800

8631 Rush Street

Rosemead, California 91770

(626) 302-9645

Fax (626) 302-6396





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ADVICE 4011-E (U 338-E) -2- June 7, 2019 REGULATORY AUTHORITY Pursuant to SCE’s Commission-approved BPP, SCE has the authority to enter into transactions for products that would be considered non-standard but currently are not on SCE’s approved non-standard product list. SCE’s BPP contemplates a transaction such as the Marin RA Swap by stating that “[b]ecause markets are dynamic and the approval of Advice Letters is not immediate, it is in the best interest of SCE’s customers for SCE to have the option of entering into transactions for non-standard products not included on the above list prior to making or receiving approval of an Advice Letter filing. Therefore, SCE will make such filings as soon as practicable after determining that the list should be revised, but may enter into transactions for non-standard products in advance of Commission approval of the Advice Letter.” (emphasis added).2 RELEVANT BACKGROUND Each year, the California Independent System Operator (CAISO) allocates Path 26 Rights to Load-Serving Entities (LSEs)/Scheduling Coordinators through its “Path 26 Counting Constraint” allocation process. The final allocation of Path 26 Rights is primarily based on an LSE’s load share and the number of MWs an LSE has contracted at that time for the year-ahead that are North of Path 26 (if the LSE serves load in the South) or that are South of Path 26 (if the LSE serves load in the North). The final allocation of Path 26 Rights will then give each LSE a fixed number of monthly Path 26 Rights that cannot be exceeded when counting for RA purposes. On February 15, 2019, SCE entered into the Marin RA Swap with MCE for the purchase of 61 MW of South System RA and the simultaneous sale of 61 MW of North System RA for the July 1, 2019 through September 30, 2019 timeframe. Prior to executing the Marin RA Swap, SCE consulted with its Procurement Review Group (PRG) during its quarterly in-person PRG meeting on February 6, 2019, to solicit feedback prior to executing the Marin RA Swap transaction. Also prior to executing the transaction, SCE contacted Pacific Gas & Electric Company, Calpine Energy Services, Pacific Energy Advisors, and Silicon Valley Clean Energy to expand the potential selection pool. After SCE conducted this market outreach, MCE was the only entity that could provide the necessary capacity, further buttressing the need to add RA Swaps to SCE’s BPP approved non-standard product list. At the time of the transaction, SCE forecasted that it would exceed its monthly Path 26 Right allocation during the Q3-19 timeframe and had a greater number of North System resources than it had Path 26 Rights. If SCE was unable to procure additional Path 26 Rights, or swap north resources for south resources, 2 SCE BPP, at sheet 54.
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ADVICE 4011-E (U 338-E) -3- June 7, 2019 then SCE would have been at-risk for stranding North of Path 26 system RA capacity, and potentially not meeting its RA compliance obligations. This RA Swap (purchase of South System RA, and the simultaneous sale of North System RA), ultimately assisted in loosening the Path 26 constraints faced by SCE. Additionally, and as discussed in further detail below, the Marin RA Swap benefits SCE’s customers because it enables SCE to mitigate the impacts Path 26 constraints have on SCE meeting its RA compliance obligations. SCE HAS AUTHORITY TO EXECUTE THE MCE RA SWAP As described in Section III above, SCE has authority to execute transactions for non-standard products not currently included in SCE’s approved non-standard product list prior to receiving approval of an Advice Letter. The Marin RA Swap is an example of a new non-standard product that developed in the evolving, dynamic California energy market. The Marin RA Swap represents execution of a transaction that was necessary and in the best interest of SCE’s customers. SCE’s BPP contains a list of authorized non-standard products and provides that “SCE will update this list via Advice Letter as traded markets evolve and SCE determines that revisions (additions or deletions) to this list are required.”3 As mentioned above, SCE anticipates submitting a separate advice letter to add, inter alia, RA Swaps to SCE’s authorized non-standard products list. FURTHER, THE MCE RA SWAP BENEFITS SCE’S CUSTOMERS The Marin RA Swap represents a benefit to SCE’s customers because SCE is mitigating the impacts of potential Path 26 Constraints that limit utilization of the RA contract capacity necessary to meet SCE’s compliance under the RA program. Moreover, this agreement enables a full value of the underlying RA capacity by avoiding stranding existing SCE system RA capacity due to the Path 26 Constraint and the associated Path 26 Rights. Additionally, the XXXXXXXXx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx for the transaction is cost-effective as compared to similar transactions executed for the same product. As an example, SCE executed a transaction with San Diego Gas & Electric Company within its 2019-2020 RA RFO where the premium paid for the similar product was xxxxxxxxxxx. 3 SCE BPP, at sheet 54.
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ADVICE 4011-E (U 338-E) -4- June 7, 2019 CONFIDENTIALITY In accordance with General Order (GO) 96-B, the confidentiality of information included in this advice letter is described below. This advice letter contains both confidential and public appendices as listed below. Confidential Appendix A: Contract – Marin RA Capacity Purchase Agreement Confidential Appendix B: Contract – Marin RA Capacity Sales Agreement Appendix C: Confidentiality Declaration Appendix D: Proposed Protective Order The information in this advice letter for which SCE requests confidential treatment, the pages on which the information appears, and the length of time for which the information should remain confidential, are provided in Appendix C. This information is entitled to confidentiality protection pursuant to D.06-06-066 (as provided in the Investor-Owned Utility (IOU) Matrix).4 The specific provisions of the IOU Matrix that apply to the confidential information in this advice letter are identified in Appendix C. The confidential version of this advice letter will be made available to appropriate parties (in accordance with SCE’s Proposed Protective Order, as discussed below) upon execution of the required non-disclosure agreement. Parties wishing to obtain access to the confidential version of this Advice Letter may contact Mario E. Dominguez in SCE’s Law Department at Mario.E.Dominguez@sce.com or 626-302-6522 to obtain a non-disclosure agreement. In accordance with GO 96-B, a copy of SCE’s Proposed Protective Order is attached as Appendix D. It is appropriate to accord confidential treatment to the information for which SCE requests confidential treatment in the first instance in the advice letter process because such information is entitled to confidentiality protection pursuant to D.06-06-066,5 and is required to be submitted by advice letter as part of the process for obtaining Commission approval. 4 5 Id., Appendix 1. D.06-06-066 at 80 (Ordering Paragraphs (OP) 1 and 2).
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ADVICE 4011-E (U 338-E) -5- June 7, 2019 SAFETY CONSIDERATIONS SCE is strongly committed to safety in all aspects of its business. No impacts to safety are anticipated as a result of this advice letter. Renewable sellers are responsible for the safe construction and operation of their generating facilities and compliance with all applicable safety regulations. REQUEST FOR COMMISSION APPROVAL The Marin RA Swap (purchase of South System RA and the simultaneous sale of North System RA), was executed on February 15, 2019 for the July 1, 2019 through September 30, 2019 timeframe. Accordingly, SCE respectfully requests that the Commission issue a resolution: 1. Approving the Marin RA Swap in its entirety with a finding that the Marin RA Swap was executed in compliance with, and under the authority, of SCE’s BPP, and represents a benefit to SCE’s customers. 2. Any other and further relief the Commission finds just and reasonable. TIER DESIGNATION Pursuant to GO 96-B, Energy Industry Rule 5.3, SCE submits this advice letter with a Tier 3 designation (effective after Commission approval). EFFECTIVE DATE This advice letter will become effective upon Commission approval. NOTICE Anyone wishing to protest this advice letter may do so by letter via U.S. Mail, facsimile, or electronically, any of which must be received by the Energy Division and SCE no later than 20 days after the date of this advice letter. Protests should be submitted to: CPUC, Energy Division Attention: Tariff Unit 505 Van Ness Avenue San Francisco, California 94102 E-mail: EDTariffUnit@cpuc.ca.gov Copies should also be mailed to the attention of the Director, Energy Division, Room 4004 (same address as above).
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ADVICE 4011-E (U 338-E) -6- June 7, 2019 In addition, protests and other correspondence regarding this advice letter should also be sent by letter and transmitted via facsimile or electronically to the attention of: Gary A. Stern, Ph.D. Managing Director, State Regulatory Operations Southern California Edison Company 8631 Rush Street Rosemead, California 91770 Telephone: (626) 302-9645 Facsimile: (626) 302-6396 E-mail: AdviceTariffManager@sce.com Laura Genao Managing Director, State Regulatory Affairs c/o Karyn Gansecki Southern California Edison Company 601 Van Ness Avenue, Suite 2030 San Francisco, California 94102 Facsimile: (415) 929-5544 E-mail: Karyn.Gansecki@sce.com With a copy to: Mario E. Dominguez Attorney Southern California Edison Company 2244 Walnut Grove Avenue, 3rd Floor Rosemead, California 91770 Facsimile: (626) 302-6016 E-mail: Mario.E.Dominguez@sce.com There are no restrictions on who may submit a protest, but the protest shall set forth specifically the grounds upon which it is based and must be received by the deadline shown above. In accordance with General Rule 4 of GO 96-B, SCE is furnishing copies of this Advice Letter to the interested parties shown on the attached R.13-12-010 and GO 96-B service lists. Address change requests to the GO 96-B service list should be directed to AdviceTariffManager@sce.com or (626) 302-3719. For changes to any other service list, please contact the Commission’s Process Office at (415) 703-2021 or Process_Office@cpuc.ca.gov. Further, in accordance with Public Utilities Code Section 491, notice to the public is hereby given by submitting and keeping the Advice Letter at SCE’s corporate
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ADVICE 4011-E (U 338-E) -7- June 7, 2019 headquarters. To view other SCE advice letters submitted with the Commission, log on to SCE’s web site at https://www.sce.com/wps/portal/home/regulatory/advice-letters. For questions, please contact Raffi Minasian at (626) 302-8905 or by electronic mail at Raffi.Minasian@sce.com. Southern California Edison Company /s/ Gary A. Stern Gary A. Stern, Ph.D. GAS:rm:cm Enclosures
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ADVICE LETTER SUMMARY ENERGY UTILITY MUST BE COMPLETED BY UTILITY (Attach additional pages as needed) Company name/CPUC Utility No.: Southern California Edison Company (U 338-E) Utility type: ELC GAS PLC HEAT ELC = Electric PLC = Pipeline WATER Contact Person: Darrah Morgan Phone #: (626) 302-2086 E-mail: AdviceTariffManager@sce.com E-mail Disposition Notice to: AdviceTariffManager@sce.com EXPLANATION OF UTILITY TYPE GAS = Gas WATER = Water HEAT = Heat (Date Submitted / Received Stamp by CPUC) Tier Designation: 3 Advice Letter (AL) #: 4011-E Subject of AL: Submission for Approval of the Marin Clean Energy Resource Adequacy Capacity Swap Per Southern California Edison Company’s Assembly Bill 57 Bundled Procurement Plan Keywords (choose from CPUC listing): Procurement, Agreements, Compliance AL Type: Monthly Quarterly Annual One-Time Other: If AL submitted in compliance with a Commission order, indicate relevant Decision/Resolution #: Decision 12-01-033 and 15-10-031 Does AL replace a withdrawn or rejected AL? If so, identify the prior AL: Summarize differences between the AL and the prior withdrawn or rejected AL: Confidential treatment requested? Yes No If yes, specification of confidential information: See Appendix C Confidential information will be made available to appropriate parties who execute a nondisclosure agreement. Name and contact information to request nondisclosure agreement/ access to confidential information: Mario Dominguez, 626-302-6522, Mario.E.Dominguez@sce.com Resolution required? Yes No Requested effective date: No. of tariff sheets: -0- Estimated system annual revenue effect (%): Estimated system average rate effect (%): When rates are affected by AL, include attachment in AL showing average rate effects on customer classes (residential, small commercial, large C/I, agricultural, lighting). Tariff schedules affected: None Service affected and changes proposed1: Pending advice letters that revise the same tariff sheets: None 1 Discuss in AL if more space is needed. Clear Form
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Protests and all other correspondence regarding this AL are due no later than 20 days after the date of this submittal, unless otherwise authorized by the Commission, and shall be sent to: CPUC, Energy Division Attention: Tariff Unit 505 Van Ness Avenue San Francisco, CA 94102 Email: EDTariffUnit@cpuc.ca.gov Name: Gary A. Stern, Ph.D. Title: Managing Director, State Regulatory Operations Utility Name: Southern California Edison Company Address: 8631 Rush Street City: Rosemead Zip: 91770 State: California Telephone (xxx) xxx-xxxx: (626) 302-9645 Facsimile (xxx) xxx-xxxx: (626) 302-6396 Email: advicetariffmanager@sce.com Name: Laura Genao c/o Karyn Gansecki Title: Managing Director, State Regulatory Affairs Utility Name: Southern California Edison Company Address: 601 Van Ness Avenue, Suite 2030 City: San Francisco State: California Zip: 94102 Telephone (xxx) xxx-xxxx: Facsimile (xxx) xxx-xxxx: (415) 929-5544 Email: karyn.gansecki@sce.com Clear Form
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ENERGY Advice Letter Keywords Affiliate Direct Access Preliminary Statement Agreements Disconnect Service Procurement Agriculture ECAC / Energy Cost Adjustment Qualifying Facility Avoided Cost EOR / Enhanced Oil Recovery Rebates Balancing Account Energy Charge Refunds Baseline Energy Efficiency Reliability Bilingual Establish Service Re-MAT/Bio-MAT Billings Expand Service Area Revenue Allocation Bioenergy Forms Rule 21 Brokerage Fees Franchise Fee / User Tax Rules CARE G.O. 131-D Section 851 CPUC Reimbursement Fee GRC / General Rate Case Self Generation Capacity Hazardous Waste Service Area Map Cogeneration Increase Rates Service Outage Compliance Interruptible Service Solar Conditions of Service Interutility Transportation Standby Service Connection LIEE / Low-Income Energy Efficiency Storage Conservation LIRA / Low-Income Ratepayer Assistance Street Lights Consolidate Tariffs Late Payment Charge Surcharges Contracts Line Extensions Tariffs Core Memorandum Account Taxes Credit Metered Energy Efficiency Text Changes Curtailable Service Metering Transformer Customer Charge Customer Owned Generation Mobile Home Parks Name Change Transition Cost Transmission Lines Decrease Rates Non-Core Transportation Electrification Demand Charge Non-firm Service Contracts Transportation Rates Demand Side Fund Nuclear Undergrounding Demand Side Management Oil Pipelines Voltage Discount Demand Side Response PBR / Performance Based Ratemaking Wind Power Deposits Portfolio Withdrawal of Service Depreciation Power Lines Clear Form
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CONFIDENTIAL Appendix A Contract – Marin RA Capacity Purchase Agreement Confidential Protected Materials – Public Disclosure Prohibited
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CONFIDENTIAL Appendix B Contract – Marin RA Capacity Sales Agreement Confidential Protected Materials – Public Disclosure Prohibited
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Appendix C Confidentiality Declaration
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DECLARATION OF JUSTIN DILLON REGARDING THE CONFIDENTIALITY OF CERTAIN DATA I, Justin Dillon, declare and state: 1. I am a Power Energy Advisor at Southern California Edison Company (SCE). As such, I have reviewed this Advice Letter, which requests that the California Public Utilities Commission (Commission or CPUC) approve the Marin Clean Energy (MCE) Resource Adequacy (RA) Swap (Marin RA Swap) between SCE and MCE. I make this declaration in accordance with Commission Decisions (D.) 06-06-066 and D.08-04-023, issued in Rulemaking 05-06-040. I have personal knowledge of the facts and representations herein and, if called upon to testify, could and would do so, except for those facts expressly stated to be based upon information and belief, and as to those matters, I believe them to be true. 2. In accordance with Decision (D.)91-05-007, D.06-06-066, which adopted the investor-owned utilities’ proposed Matrix (the IOU Matrix), D.08-04-023, issued in Rulemaking 05-06-040, D.11-07-028, General Order (GO) 96-B and California Public Utilities Code Section 454.5(g),1 which protects the confidentiality of market sensitive information, SCE requests confidential treatment of certain pages of the Advice Letter and Appendices A and B to the Advice Letter. 3. Listed in the below chart are the data in the Advice Letter and Appendices for which SCE seeks confidential treatment, the justification for that treatment as identified in the IOU Matrix appended to D.06-06-066, and the period of confidentiality for the data identified. 1 Section 454.5(g) provides: “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, including, but not limited to, proposed or executed power purchase agreements, data request responses, or consultant reports, or any combination, provided that the Office of Ratepayer Advocates and other consumer groups that are nonmarket participants shall be provided access to this information under confidentiality procedures authorized by the commission.” -1-
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Data Page Transaction Page 3 Premium Data Justification VII.B. Bilateral Contracts Terms and Conditions – Electric. Contracts and Power Purchase Agreements between utilities and non-affiliated third parties (except RPS). Cal. Pub. Util. Code Section 454.5(g) (maintaining the confidentiality of market sensitive information) Marin RA Capacity Purchase and Sales Agreements Appendix A and B VII.B. Bilateral Contracts Terms and Conditions – Electric. Contracts and Power Purchase Agreements between utilities and non-affiliated third parties (except RPS). Period of Confidentiality Contract summaries public, including counterparty, resource type, location, capacity, expected deliveries, delivery point, length of contract and online date. Other terms confidential for three years from date contract states deliveries to begin; or until one year following expiration, whichever comes first. Contract summaries public, including counterparty, resource type, location, capacity, expected deliveries, delivery point, length of contract and online date. Other terms confidential for three years from date contract states deliveries to begin; or until one year following expiration, whichever comes first. 4. I am informed and believe and thereon allege that the data in the table above cannot be aggregated, redacted, summarized, masked or otherwise protected in a manner that would allow partial disclosure of the data while still protecting confidential information. 5. I am informed and believe and thereon allege that the data in the table above has never been made publicly available. -2-
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I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 7, 2019 at Rosemead, California. -3-
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Appendix D Proposed Protective Order
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BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA ) Submission for Approval of the Marin Clean Energy Resource Adequacy Capacity Swap Per ) Southern California Edison Company’s Assembly Bill 57 Bundled Procurement Plan Advice 4011-E PROPOSED PROTECTIVE ORDER 1. Scope. This Protective Order shall govern access to and the use of Protected Materials, produced by, or on behalf of, any Disclosing Party (as defined in Paragraph 2 below) in this proceeding. 2. Definitions In addition to the terms defined and capitalized in other sections of this Protective Order, the following terms are defined for the purposes of this Protective Order: A. For purposes of this Protective Order, the term “Protected Materials” means: (i) trade secret, market sensitive, or other confidential and/or proprietary information as determined by the Disclosing Party in accordance with the provisions of Decision (“D.”) 06-06066 and subsequent decisions, including D.14-10-033 which governs the treatment of market sensitive greenhouse gas data and information, General Order 66-D, Public Utilities Code section 454.5(g), or any other right of confidentiality provided by law; or (ii) any other materials that are made subject to this Protective Order by the Assigned Administrative Law Judge (“Assigned ALJ”), Law and Motion Administrative Law Judge (“Law and Motion ALJ”), Assigned Commissioner, the California Public Utilities Commission (“Commission”), or any court or other body having appropriate authority. Protected Materials also include memoranda, handwritten notes, spreadsheets, computer files and reports, and any other form of information 1
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(including information in electronic form) that copies, discloses, incorporates, includes or compiles other Protected Materials or from which such materials may be derived (except that any derivative materials must be separately shown to be confidential). Protected Materials do not include: (i) any information or document contained in the public files of the Commission or any other state or federal agency, or in any state or federal court; or (ii) any information that is public knowledge, or which becomes public knowledge, other than through disclosure in violation of this Protective Order or any other nondisclosure agreement or protective order. B. The term “redacted” refers to situations in which Protected Material in a document, whether the document is in paper or electronic form, have been covered, blocked out, or removed. C. The term “Disclosing Party” means a party who initially discloses any specified Protected Material in this proceeding. D. The term “Requesting Party” means any party that is requesting receipt of Protected Material from a Disclosing Party. E. The term “Party” refers to the Requesting Party or the Disclosing Party and the term “Parties” refers to both the Requesting Party and the Disclosing Party. F. The term “Market Participant” refers to a Requesting Party that is: 1) A person or entity, or an employee of an entity, that engages in the wholesale purchase, sale or marketing of energy or capacity, or the bidding on or purchasing of power plants, or bidding on utility procurement solicitations, or consulting on such matters, subject to the limitations in 3) below. 2) A trade association or similar organization, or an employee of such organization, a) whose primary focus in proceedings at the Commission is to advocate for persons/entities that purchase, sell or market energy or capacity at wholesale; bid on, own, or purchase power plants; or bid on utility procurement solicitations; or 2
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b) c) formed for the purpose of obtaining Protected Materials; or d) 3) a majority of whose members purchase, sell or market energy or capacity at wholesale; bid on, own, or purchase power plants; or bid on utility procurement solicitations; or controlled or primarily funded by a person or entity whose primary purpose is to purchase, sell or market energy or capacity at wholesale; bid on, own, or purchase power plants; or bid on utility procurement solicitations. A person or entity that meets the criteria of 1) above is not a Market Participant for purpose of access to Protected Materials unless the person/entity seeking access to Protected Materials has the potential to materially affect the price paid or received for electricity if in possession of such information. An entity will be considered not to have such potential if: a) the person or entity’s participation in the California electricity market is de minimis in nature. In the resource adequacy proceeding (R.05-12-013) it was determined in D.06-06-064 § 3.3.2 that the resource adequacy requirement should be rounded to the nearest megawatt (MW), and load serving entities (LSEs) with local resource adequacy requirements less than 1 MW are not required to make a showing. Therefore, a de minimis amount of energy would be less than 1 MW of capacity per year, and/or an equivalent of energy; and/or b) the person or entity has no ability to dictate the price of electricity it purchases or sells because such price is set by a process over which the person or entity has no control, i.e., where the prices for power put to the grid are completely overseen by the Commission, such as subject to a standard offer contract or tariff price. A person or entity that currently has no ability to dictate the price of electricity it purchases or sells under this section, but that will have such ability within one year because its contract is expiring or other circumstances are changing, does not meet this exception; and/or c) the person or entity is a cogenerator that consumes all the power it generates in its own industrial and commercial processes, if it can establish a legitimate need for Protected Materials. 3
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G. The term “Non-Market Participant” refers to a Requesting Party that does not meet the definition of Market Participant. The California Independent System Operator is deemed a Non-Market Participant for purposes of this Protective Order. H. “Reviewing Representatives” are limited to person(s) designated in accordance with Paragraph 5 who meet the following criteria: 1) Reviewing Representatives may not currently be engaged in: (a) a transaction for the purchase, sale, or marketing at wholesale of electrical energy or capacity or natural gas (or the direct supervision of any employee(s) engagement in such a transaction); (b) the bidding on or purchasing of power plants (or the direct supervision of any employee(s) engagement in such a transaction); or (c) knowingly providing electricity or gas marketing consulting or advisory services to others in connection with a transaction for the purchase, sale, or marketing at wholesale of electrical energy or capacity or natural gas or the bidding on or purchasing of power plants (or the direct supervision of any employee(s) engagement in such a transaction or consulting). 2) Reviewing Representatives may not be an employee of a Market Participant. If the Market Participant or Non-Market Participant chooses to retain outside attorneys, consultants, or experts in the same law firm or consulting firm to provide advice in connection with marketing activities, then the attorney, consultant, or expert serving as a Reviewing Representative must be separated by an ethics wall consistent with the ethics wall requirements in D.11-07-028, as that decision may be subsequently modified or changed by the Commission, from those in the firm who are involved in wholesale commercial dealings. 3) Reviewing Representatives shall use Protected Materials only for the purpose of participating in the Commission proceeding in which they received the information. 4) Reviewing Representatives are permitted to participate in regulatory proceedings on behalf of Market Participants and Non-Market Participants. 5) All Reviewing Representatives are required to execute the Nondisclosure Certificate attached to this Protective Order and are bound by the terms of this Protective Order. 4
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I. The term “Authorized Reviewers” refers to: (1) a Requesting Party that is a Non-Market Participant; or (2) a Reviewing Representative of a Requesting Party. A Requesting Party that is a Market Participant is not an Authorized Reviewer but it may designate a Reviewing Representative in accordance with Paragraph 5. J. The term “Nondisclosure Certificate” refers to the Nondisclosure Certificate attached as Appendix A. 3. Designation, Filing, and Service of Protected Materials. When filing or providing in discovery any documents or items containing Protected Materials, a party shall physically mark such documents (or in the case of non-documentary materials such as computer diskettes, on each item) as “PROTECTED MATERIALS SUBJECT TO PROTECTIVE ORDER,” or with words of similar import as long as one or more of the terms “Protected Materials” or “Protective Order” is included in the designation to indicate that the materials in question are Protected Materials. All materials so designated shall be treated as Protected Materials unless and until: (a) the designation is withdrawn pursuant to Paragraph 14 hereof; (b) an Assigned ALJ, Law and Motion ALJ, Assigned Commissioner, or the Commission makes a determination that: (i) the document does not contain Protected Materials or does not warrant confidential treatment or (ii) denies a motion to file the document under seal; or (c) the document or information becomes public knowledge, other than through disclosure in violation of this Protective Order or any other nondisclosure agreement or protective order. However, the Disclosing Party has the burden of showing that the documents are Protected Materials, and merely marking a document “Protected Materials” is insufficient to meet that burden. All documents containing Protected Materials that are tendered for filing with the Commission shall be placed in sealed envelopes or otherwise appropriately protected and shall be tendered with a motion to file the document under seal pursuant to Rule 11.4 of the 5
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Commission’s Rules of Practice and Procedure. All documents containing Protected Materials that are served on parties in a proceeding shall be placed in sealed envelopes or otherwise appropriately protected and shall be endorsed to the effect that they are served under seal pursuant to this Protective Order. Such documents shall only be served upon Authorized Reviewers and persons employed by or working on behalf of the Commission. Service upon Authorized Reviewers and persons employed by or working on behalf of the Commission may either be: (a) by electronic mail in accordance with the procedures adopted in this proceeding; (b) by facsimile; or (c) by overnight mail or messenger service. Whenever service of a document containing Protected Materials is made by overnight mail or messenger service, the Assigned ALJ shall be served with such document by the same means and at the same time. 4. Redaction of Documents. Whenever a Party files, serves or provides in discovery a document that includes Protected Materials (including but not limited to briefs, testimony, exhibits, and responses to data requests), such Party shall also prepare a redacted version of such document. The redacted version shall enable persons familiar with this proceeding to determine with reasonable certainty the nature of the data that has been redacted and where the redactions occurred. The redacted version of a document to be filed shall be served on all persons on the service list, and the redacted version of a discovery document shall be served on all persons entitled thereto. 5. Designation of Reviewing Representatives. The Requesting Party shall provide written notice identifying its proposed Reviewing Representative(s) to the Disclosing Party before the Disclosing Party provides any Protected Materials to the Requesting Party’s Authorized Reviewers. The written notice shall include the information identified in this paragraph. If the Requesting Party decides to designate any additional Reviewing Representative(s) after the Requesting Party’s Authorized Reviewers receive Protected 6
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Materials, the Requesting Party shall identify the additional proposed Reviewing Representative(s) to the Disclosing Party before the Requesting Party provides Protected Materials to the additional Reviewing Representative(s). Within five (5) business days after receiving written notice of the identity of any Reviewing Representative, the Disclosing Party may provide the Requesting Party with a written objection to a specific Reviewing Representative stating the grounds for the objection. Any dispute concerning whether an identified person or entity is an appropriate Reviewing Representative shall be resolved through the dispute resolution procedures in Paragraph 11 of this Protective Order. If a Disclosing Party objects to a specific Reviewing Representative within five (5) business days after the Reviewing Representative is identified, the Parties shall not provide any Protected Materials to the disputed Reviewing Representative until the Parties are able to resolve the dispute consistent with the dispute resolution procedures in Paragraph 11. Failure by the Disclosing Party to object within five (5) business days does not waive the Disclosing Party’s right to later object to the Reviewing Representative, even if Protected Materials has already been disclosed. However, further disclosure of Protected Materials would be stayed until the parties are able to resolve the dispute consistent with the dispute resolution procedures in Paragraph 11. Reviewing Representative(s) have a duty to disclose to the Disclosing Party any potential conflict of interest that puts the Reviewing Representative in violation of D.06-12-030, as modified by subsequent decisions of the Commission. A resume or curriculum vitae is reasonable disclosure of such potential conflicts, and should be the default evidence provided in most cases. 6. Nondisclosure Certificates. A Reviewing Representative shall not inspect, participate in discussions regarding, or otherwise be granted access to, Protected Materials unless and until he or she has first completed and executed a Nondisclosure Certificate, attached hereto 7
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as Appendix A, and delivered the signed Nondisclosure Certificate to the Disclosing Party. The Disclosing Party shall retain the executed Nondisclosure Certificates pertaining to the Protected Materials it has disclosed and shall promptly provide copies of the Nondisclosure Certificates to Commission Staff upon request. 7. Access to Protected Materials and Use of Protected Materials. Subject to the terms of this Protective Order, Authorized Reviewers shall be entitled to access any Protected Materials and may make copies of Protected Materials, but such copies become Protected Materials. Authorized Reviewers may make notes of Protected Materials, which shall be treated as Protected Materials if such notes disclose any Protected Materials. Protected Materials obtained by a Party in this proceeding may also be requested by that Party in a subsequent Commission proceeding, subject to the terms of any nondisclosure agreement or protective order governing that subsequent proceeding, without constituting a violation of this Protective Order. 8. Maintaining Confidentiality of Protected Materials. Each Authorized Reviewer shall treat Protected Materials as confidential in accordance with this Protective Order and the Nondisclosure Certificate. Protected Materials shall not be used except as necessary for participation in this proceeding, and shall not be disclosed in any manner to any person except: (i) Authorized Reviewers; (ii) an Authorized Reviewer’s employees and administrative personnel, such as clerks, secretaries, and word processors, to the extent necessary to assist the Authorized Reviewer, provided that they shall first ensure that such personnel are familiar with the terms of this Protective Order and have signed a Nondisclosure Certificate; and (iii) persons employed by or working on behalf of the Commission. Authorized Reviewers shall adopt suitable measures to maintain the confidentiality of Protected Materials they have obtained pursuant to this Protective Order, and shall treat such Protected Materials in the same manner as they treat their own most highly confidential information. 8
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Authorized Reviewers shall be liable for any unauthorized disclosure or use by themselves and/or employees, paralegals, or administrative staff. In the event any Authorized Reviewer is requested or required by applicable laws or regulations, or in the course of administrative or judicial proceedings (in response to oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any of Protected Materials, the Authorized Reviewer shall immediately inform the Disclosing Party of the request, and the Disclosing Party may, at its sole discretion and cost, direct any challenge or defense against the disclosure requirement, and the Authorized Reviewer shall cooperate in good faith with such Party either to oppose the disclosure of the Protected Materials consistent with applicable law, or to obtain confidential treatment of the Protected Materials by the person or entity who wishes to receive them prior to any such disclosure. If there are multiple requests for substantially similar Protected Materials in the same case or proceeding where an Authorized Reviewer has been ordered to produce certain specific Protected Materials, the Authorized Reviewer may, upon request for substantially similar materials by another person or entity, respond in a manner consistent with that order to those substantially similar requests. 9. Return or Destruction of Protected Materials. Protected Materials shall remain available to Authorized Reviewers until an order terminating this proceeding becomes no longer subject to judicial review. If requested to do so in writing after that date, the Authorized Reviewers shall, within fifteen days after such request, return the Protected Materials to the Disclosing Party that produced such Protected Materials, or shall destroy the materials, except that copies of filings, official transcripts and exhibits in this proceeding that contain Protected Materials, and notes of Protected Materials may be retained, if such Protected Materials are maintained in accordance with Paragraph 8. Within such time period each Authorized Reviewer, if requested to do so, shall also submit to the Disclosing Party an affidavit stating that, to the best 9
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of its knowledge, all Protected Materials have been returned or have been destroyed or will be maintained in accordance with Paragraph 8. To the extent Protected Materials are not returned or destroyed, they shall remain subject to this Protective Order. In the event that a Reviewing Representative to whom Protected Materials are disclosed ceases to be engaged to provide services in this proceeding, then access to such materials by that person shall be terminated and the Reviewing Representative shall immediately return or destroy all Protected Materials, or provide an affidavit stating that all Protected Materials and all notes of Protected Materials will be maintained in accordance with Paragraph 8. Even if a Reviewing Representative is no longer engaged in this proceeding, every such person shall continue to be bound by the provisions of this Protective Order and the Nondisclosure Certificate. 10. Access and Use by Governmental Entities. A. In the event the Commission receives a request from the California Energy Commission (“CEC”) for a copy of or access to any Party’s Protected Materials, the procedure for handling such requests shall be as follows. Not less than five (5) business days after delivering written notice to the Disclosing Party of the request, the Commission shall release such Protected Materials to the CEC upon receipt from the CEC of an Interagency Information Request and Confidentiality Agreement (“Interagency Confidentiality Agreement”). Such Interagency Confidentiality Agreement shall: (i) provide that the CEC will treat the requested Protected Materials as confidential in accordance with this Protective Order; (ii) include an explanation of the purpose for the CEC’s request, as well as an explanation of how the request relates to furtherance of the CEC’s functions; (iii) be signed by a person authorized to bind the CEC contractually; and (iv) expressly state that furnishing of the requested Protected Materials to employees or representatives of the CEC does not, by itself, make such Protected Materials public. In addition, the Interagency Confidentiality Agreement shall include an express 10
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acknowledgment of the Commission’s sole authority (subject to judicial review) to make the determination whether the Protected Materials should remain confidential or be disclosed to the public, notwithstanding any provision to the contrary in the statutes or regulations applicable to the CEC. B. In the event the Commission receives a request for a copy of or access to a party’s Protected Materials from a state governmental agency other than the CEC that is authorized to enter into a written agreement sufficient to satisfy the requirements for maintaining confidentiality set forth in Government Code Section 6254.5(e), the Commission may, not less than five (5) business days after giving written notice to the Disclosing Party of the request, release such Protected Materials to the requesting governmental agency, upon receiving from the requesting agency an executed Interagency Confidentiality Agreement that contains the same provisions described in Paragraph 10.A above. C. The CEC may use Protected Materials when needed to fulfill its statutory responsibilities or cooperative agreements with the Commission. Commission confidentiality designations will be maintained by the CEC in making such assessments, and the CEC will not publish any assessment that directly reveals the data or allows the data submitted by an individual load serving entity to be “reverse engineered.” 11. Dispute Resolution. All disputes that arise under this Protective Order, including but not limited to alleged violations of this Protective Order and disputes concerning whether materials were properly designated as Protected Materials, shall first be addressed by the parties through a meet and confer process in an attempt to resolve such disputes. If the meet and confer process is unsuccessful, either party may present the dispute for resolution to the Assigned ALJ or the Law and Motion ALJ. 11
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12. Other Objections to Use or Disclosure. Nothing in this Protective Order shall be construed as limiting the right of a Party, the Commission Staff, or a state governmental agency covered by Paragraph 10 to object to the use or disclosure of Protected Materials on any legal ground, including relevance or privilege. 13. Remedies. Any violation of this Protective Order shall constitute a violation of an order of the Commission. Notwithstanding the foregoing, the parties and Commission Staff reserve their rights to pursue any legal or equitable remedies that may be available in the event of an actual or anticipated disclosure of Protected Materials. 14. Withdrawal of Designation. A Disclosing Party may agree at any time to remove the “Protected Materials” designation from any materials of such Party if, in its opinion, confidentiality protection is no longer required. In such a case, the Disclosing Party will notify all Requesting Parties that the Disclosing Party has agreed to withdraw its designation of Protected Materials for specific documents or material. 15. Modification. This Protective Order shall remain in effect unless and until it is modified or terminated by the Commission or the Assigned ALJ. The identity of the parties submitting Protected Materials may differ from time to time. In light of this situation, modifications to this Protective Order may become necessary. The Parties shall work cooperatively to develop such modifications and, to the extent the Parties are able to agree to modifications, shall file a motion with the Assigned ALJ or the Commission seeking approval of the modifications. To the extent Parties are unable to agree on modifications after a good faith effort, each party governed by this Protective Order has the right to seek modifications in it as appropriate from the Assigned ALJ or the Commission. 16. Interpretation. Headings are for convenience only and may not be used to restrict the scope of this Protective Order. 12
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Entered: __________________________________ Administrative Law Judge Date: __________________________________ 13
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APPENDIX A TO MODEL PROTECTIVE ORDER BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA Submission for Approval of the Marin Clean ) Energy Resource Adequacy Capacity Swap Per ) Southern California Edison Company’s Assembly Bill 57 Bundled Procurement Plan Advice 4011-E NONDISCLOSURE CERTIFICATE I hereby certify my understanding that access to Protected Materials is provided to me pursuant to the terms and restrictions of the Protective Order in this proceeding, that I have been given a copy of and have read the Protective Order, and that I agree to be bound by it. I understand that the contents of the Protected Materials, any notes or other memoranda, or any other form of information that copies or discloses Protected Materials shall not be disclosed to anyone other than in accordance with that Protective Order. I acknowledge that a violation of this certificate constitutes a violation of an order of California Public Utilities Commission. Signed: _______________________ Name ________________________ Title: _________________________ Organization: __________________ Dated: ________________________
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