MISO asked the Federal Energy Regulatory Commission to dismiss a complaint filed last month alleging it billed more than $21 million in excessive transmission rates, saying Southern Co. and three Missouri utilities have misinterpreted its Tariff (EL15-66).
MISO transmission owners, which joined the RTO last week in asking for dismissal, were blunter, saying the utilities’ claims amount to “misrepresentations” of the Tariff.
Both maintain the utilities’ complaint is duplicative to a proceeding already underway before FERC that involves similar issues (EL14-19).
In their complaint filed last month, the utilities alleged that MISO improperly shifted and reallocated sunk costs and network upgrade costs from its legacy region in the Midwest to Entergy export customers in the South following Entergy’s integration into MISO in 2013. (See Utilities Accuse MISO of ‘Massive’ Overcharges.)
Bringing the case were Kansas City Power & Light’s Greater Missouri Operations Co., The Empire District Electric Co., Associated Electric Cooperative Inc. (AECI) and five Southern Co. affiliates: Alabama Power, Georgia Power, Gulf Power, Mississippi Power and Southern Power.
Entergy Integration
The utilities were receiving transmission service from Entergy before it joined MISO under the terms of the Entergy Tariff. When MISO succeeded Entergy as the transmission provider, they became subject to MISO’s Tariff.
Long-term, firm point-to-point transmission service rates under the Entergy OATT vs. MISO OATT.
The utilities contend that MISO’s drive-out and drive-through charges are not applicable to their transmission service reservations and that if they were applicable they should be declared unjust and unreasonable. They claim that Attachment FF-6 of the MISO Tariff provides a broad exemption for their through-and-out transaction charges. They say the allocations violate MISO’s Tariff and FERC findings that — with the exception of certain multi-value projects — point-to-point export services are provided under a no-cost-sharing rule.
Exemption Argument
In its response, MISO counters that the Tariff is clear that the utilities are not entitled to an exemption. The RTO maintains that FERC “has confirmed on several occasions” that through-and-out rates in question are applicable to transactions in the MISO South region.
“Over the past several years, the complainants have created an extensive paper trail in various proceedings, which casts doubt on their current Tariff violation claims. While the complainants have filed numerous pleadings to block and devalue the MISO South integration, those pleadings did not argue, until the instant complaint was filed, that MISO is violating the Tariff,” MISO said. “On the contrary, the complainants sought FERC action precisely because these rates were applicable.”
The RTO also said any dispute over its through-and-out rate should be resolved in the section 206 proceeding FERC initiated in February 2014 (EL14-19).
Increased Scope
MISO also said the fact that the charges may have increased does not render them unjust and unreasonable. Prior to the MISO South integration, service was limited to the Entergy transmission system. But now the utilities may redirect points of receipt or delivery on a region-wide basis, MISO counters.
“Not surprisingly, the complainants’ new charges reflect these benefits of scope, as well as many other unique benefits that a Day 2 RTO provides to its customers,” MISO said.
Finally, MISO contends that the utilities are seeking a preferential rate at the expense of other market players.
The Organization of MISO States voted last week to convene discussions on ways to improve the RTO’s stakeholder process and address friction between the RTO and some of its members.
OMS President Libby Jacobs noted that MISO has several efforts under way already, including a white paper that MISO’s Steering Committee will discuss Thursday on concerns that the stakeholder process has become “cumbersome and inefficient.” The MISO Advisory Committee has made stakeholder process improvement the “hot topic” for its October meeting.
“We certainly applaud MISO for their efforts,” Jacobs, of the Iowa Utilities Board, told OMS board members on June 11.
Richard Doying, EVP of MISO (L) and Elizabeth (Libby) Jacobs, IUB Commissioner and OMS President at MARC 2015 Annual Meeting
But she said, “We had some concerns that it didn’t appear there was a formal outreach to all the stakeholder groups to really weigh in on the process.”
OMS would convene the dialog but will likely hire an outside facilitator to moderate the discussions, she said.
The effort could help better document how the stakeholder and governance process works, look at best practices at other RTOs and help stakeholders identify priorities.
MISO’s white paper cites overlapping responsibilities among committees and insufficient focus on the most important issues as weaknesses in the current process.
Tensions
Tensions between some MISO stakeholders and the RTO have flared in recent months.
Transmission developers objected earlier this year to MISO’s approval of Entergy’s request for $217 million in out-of-cycle transmission projects in Louisiana. As out-of-cycle projects, they were excluded from competition.
The Consumer Advocates sector complained it was being disenfranchised after MISO denied its request for $200,000 in funding to help cover legal costs in a case before the Federal Energy Regulatory Commission on MISO transmission owners’ return on equity rates.
ISO-NE’s power prices dropped by more than 40% in the first quarter of 2015 thanks to lower natural gas costs, the Internal Market Monitor reported last week.
In a filing with the Federal Energy Regulatory Commission, the Monitor said a 43% decrease in the cost of natural gas from the previous year was largely responsible for the power price decline (ZZ15-4). Natural gas prices averaged $11.37/MMBtu, a drop from $19.95.
Day-ahead energy market prices averaged $84.84/MWh at the Massachusetts hub, down 41% from a year ago, while real-time prices averaged $81.97/MWh, a drop of 43%.
Also lower were real-time reserve payments (-80%), regulation payments (-56%) and net commitment period compensation payments (-67%).
Total wholesale market costs of $3.14 billion were down 41%. “Overall, market prices reflected the cost of providing energy, and energy market outcomes were competitive,” the Monitor said.
Pricing Flexibility
The IMM said generators are taking advantage of the flexibility resulting from the RTO’s Dec. 3 rule change allowing market offers to be made hourly and changed during the operating day. The energy market offer flexibility (EMOF) rule, which allows resources to respond to changes in production and opportunity costs, has been used primarily by natural gas generators.
“There has been a reduction in the volume of self-scheduling, in which generators assume a price-taking role, and to the extent to which generators vary economic minimum parameters to reach desired levels of output,” the Monitor said.
Some generators also took advantage of EMOF rules allowing them to offer negative prices to signal their desire to maintain minimum output levels.
Only hydro and wind resources offered negative prices in the day-ahead market. They were joined by some natural gas, biomass and coal resources in offering negative prices in the real-time market.
“On average, the amount of capacity offered in the real-time market at negative prices was equal to roughly 3% to 4% of load,” the Monitor said.
VALLEY FORGE, Pa. — This winter bumped aside last year’s peak load record, but PJM’s system experienced a fraction of the stress brought on by the January 2014 polar vortex. Generator outage rates, which exceeded 20% in 2014, were generally less than 15% in 2015.
Peak loads grew more gradually in Feb. 2015 than in Jan. 2014.
To figure out why, PJM researchers “did a deeper dive in different areas so we could understand the differences from last winter, and while we hit a new winter peak, why we did so much better,” Chantal Hendrzak, executive director for operations support, told the Operating Committee in presenting the 2015 Cold Weather Report.
Last year, recommendations for follow-up on winter preparedness filled pages. This year, there were five recommendations, all contained on one page.
A lot of the conversation, she said, revolved around whether this winter was colder, noting that it was most relevant to compare this past February with January 2014.
“We poked at weather in all sorts of different ways to understand what some of the differences were,” she said.
One of the findings was that while temperatures were colder this winter, the wind chill factors weren’t as severe in some areas. Including the wind chill factor, the low temperatures for Cleveland, Chicago and Columbus, Ohio, all were at least 14 degrees warmer this year.
Generator outage rates, which exceeded 20% in 2014, were generally less than 15% in 2015.
Wind chill can have more of an impact — and more quickly — on generators than temperature alone, depending on how insulated they are and if the units are not enclosed in structures, she said.
Staff also looked at the days leading up to peak loads. This year, she said, “we kind of baby-stepped into the peak load” as opposed to the large incline seen before last year’s peak.
In addition, she said, wind capability increased over the previous winter.
This winter, she said, pipelines were more proactive in making sure pressure was maintained for their firm customers, generation owners took a number of precautions to ensure their availability and more units were running on alternate fuel.
In addition to PJM’s initiatives to introduce the Capacity Performance product and improve gas-electric coordination, the new report recommended continuing efforts to improve the ability of generators to communicate their operational parameters to grid operators; building on the testing program for seldom-run units and winter preparation checklist; and continuing efforts to reduce energy market uplift.
This winter’s success led a number of stakeholders to question the need for PJM’s new Capacity Performance product, which aims to strengthen reliability by penalizing underperforming units and rewarding overperforming participants. (See FERC OKs PJM Capacity Performance Proposal; Bay Dissents.)
Hendrzak said the changes the RTO saw this winter were voluntary. “PJM believes we need a more sustainable approach, so we are continuing to move forward with CP,” she said.
Talen Energy, the merchant generation company formed by spinning off much of PPL’s generating assets and combining it with those of Riverstone Holdings, began trading on the New York Stock Exchange on June 2. The company issued shares at $20 but ended its first day at the $18.50 mark.
Trading under the symbol TLN, Talen has only hovered around $19/share through its first two weeks of trading and experienced a dip on Thursday and Friday to close out last week, finishing at $18.13/share. The company is now one of the country’s largest merchant generators, with about 15,000 MW in its fleet. Most of the assets are in PJM, along with some in ERCOT. To allay concerns from competitors, the company agreed to divest about 1,300 MW in PJM in a settlement with the Federal Energy Regulatory Commission.
Amazon.com announced that it is partnering with Community Energy Inc. to build an 80-MW solar farm in Virginia to help power its data centers in the state.
The $200 million solar farm, to be built on the Eastern Shore’s Accomack County, will be called Amazon Solar Farm U.S. East and should be operating by October 2016. When completed, the 250,000-panel solar farm will increase the state’s solar capacity by a factor of five. Virginia currently ranks 30th in the U.S. for solar capacity.
Amazon says it eventually wants to use renewable energy to power all its data centers.
DTE to Drop Renewable Energy Surcharge, Reducing Rates $15M Annually
DTE Electric has proposed dropping a 43-cent/month customer surcharge that pays for renewable energy.
Under changes in the utility’s renewable energy plan filed early this month with the Michigan Public Service Commission, DTE said the request would reduce electric rates by a total of $15 million a year. DTE also said it will be in compliance with Michigan’s renewable portfolio standard requiring electric utilities to supply 10% of their power from renewable sources.
Parent DTE Energy has a 1,000-MW renewable portfolio that it acquired from Michigan developers. DTE began assessing the renewable surcharge in 2009. Last year it reduced the charge to 43 cents from $3.
Meanwhile, DTE said it will explore the potential of a voluntary pilot program for customers who want to pay for more than 10% of their electricity from renewables.
Xcel Energy’s Southwestern Public Service last week scaled back its rate-increase request in Texas by nearly $23 million.
SPS last year filed for an annual revenue increase of $64.8 million, or 6.7%. On June 10, SPS revised its request to $42 million, or 4.4%. A number of interveners have been pressuring regulators for a rate decrease and in May the Public Utility Commission of Texas staff recommended a decrease of $2.6 million.
SPS is also seeking a waiver of PUCT’s post-test year adjustment rule, which would allow the company to include $392 million additional capital investment for the July-December 2014 period.
Duke Ordered to Stop Groundwater Contamination from Coal Ash Site
North Carolina environmental regulators ordered Duke Energy to stop one of its retired coal-fired power plant sites from polluting groundwater after tests showed heavy metals in nearby drinking water wells. The contamination, including boron, was found in three wells near the retired Sutton Steam Plant near Wilmington, N.C. Boron is an indicator of coal ash contamination.
The state gave Duke until July 9 to stop the spread of the contamination at the Sutton site. If it can’t, it could face further fines than the $25 million the state has already assessed the company in relation to leaching from the plant’s coal ash basin. Duke is appealing the fine. The company also recently reached a $102 million settlement with federal regulators concerning coal ash spills relating to the January 2014 spill at the Dan River.
North Carolina has hired a private law firm to assist it in its ongoing cases against Duke. “It is evident that Duke Energy is choosing to spend its virtually limitless legal resources to fight fines for clearly documented groundwater contamination stemming from its coal ash impoundments near the Sutton plant,” said Sam Hayes, general counsel for the state environmental department.
Fallout Grows Following Accusations Dynegy Manipulated MISO Auction
At least 16 stakeholders have filed notices at the Federal Energy Regulatory Commission to intervene in a request by a consumer group and the Illinois Attorney General for an investigation into whether Dynegy illegally manipulated MISO’s Planning Resource Auction last April.
The Illinois AG and the group Public Citizen Inc. point to a nine-fold price increase resulted in Zone 4, which includes much of downstate Illinois. (See Public Citizen to FERC: Investigate Dynegy Role.) Among those filing to intervene at FERC is the Illinois Citizens Utility Board, a public advocacy group that this week claimed that electric bills for downstate Illinois customers rose more than 10%.
Dynegy says it followed all the auction rules and the results were verified by an independent monitor.
Opponents to Exelon’s Medway Generating Plant Air Concerns at Meeting
Exelon Generation’s plan to build a two-unit, 195-MW generating station in the Boston suburb of West Medway drew opponents last week at a public information meeting.
Exelon plans to build the natural gas-fired units on the existing 94-acre site of the West Medway Generating Station, a three-unit, oil-fired 117-MW peaking station built by Boston Edison following the 1965 East Coast blackout. The oil-fired units only run about 100 hours a year, but the new gas-fired generators would operate about 14 hours a day.
Several residents said they were concerned about the plant’s needs for cooling water. According to the company, the units would need 97,000 to 197,000 gallons of cooling water each day. This would come at a time, said resident Brian Adams, when he and his neighbors “are told every day that we can’t water our lawns.”
Invenergy’s Proposed Jessup Plant Opponents Meet with Gov. Wolf
Pennsylvania Gov. Tom Wolf listened to the concerns of a small group of residents who are worried about Invenergy’s plans to build a 1,500-MW combined-cycle natural-gas plant in the Northeastern town of Jessup.
Four members of Citizens for a Healthy Jessup said the plant is being pushed through the siting and permitting process too quickly. They also expressed concerns that the plans for the plant seem to change. Wolf didn’t offer his own position on the plant.
Invenergy announced the project last November and said the site’s proximity to both the new Susquehanna-Roseland transmission line and shale gas supplies made it an attractive location. It was originally proposed to be a 1,300-MW facility. If built, it would be the state’s second-largest natural gas-fired plant, after PPL’s 1,722-MW Martins Creek plant in Northampton County.
Dominion Questions Zoning Ordinance’s Effect on Proposed Virginia Wind Energy Facility
Dominion Virginia Power is concerned that a proposed local zoning ordinance would create roadblocks to its proposed wind energy facility near Bluefield, Va. Dominion wants to build an industrial-sized wind farm on 2,600 acres it purchased near East River Mountain in 2009.
Opponents say the wind-turbine towers would ruin the view. Dominion, in a letter to Tazewell County officials, said that a recent proposed zoning ordinance change that would limit industrial expansion in the area, coupled with an existing tall structure ordinance, “significantly deters wind development” in the area.
County officials think the zoning issue could spell the end of the project. “This ordinance in my opinion is a death blow to that project,” said Charles Stacy, a member of the board of supervisors in Tazewell County’s Eastern District.
Options Limited for County Opposed to Dominion Tx Line Proposal
Orange County, Va., is considering making an attempt to block a proposed 230-kV transmission line between two rural areas near Culpeper, but the county attorney says little can be done to stop it.
Dominion Virginia Power has proposed running the line between Remington and Pratt, but local opponents fear the line would detract from the area’s scenic beauty. The alliance asked Orange County officials to see if there was a way to block the project.
County Attorney Tom Lacheney said last week that a review of existing laws and ordinances seems to indicate that Dominion will probably be successful in its attempts to build the line.
Duke Energy to Introduce ‘Swine Waste’ Gas into Plants’ Fuel Stream
Duke Energy has applied to the North Carolina Utilities Commission to buy gas produced from Midwestern swine farms for two of its North Carolina plants in order to comply with a state biofuel mandate.
Duke and other power producers say there are insufficient in-state supplies of gas produced from swine waste to comply with a state law, which mandates that 0.07% of energy be derived from pig manure. The mandate steps up to 0.2% by 2020.
The fuel would come from hog farms in Missouri and Oklahoma, where manure and other waste is deposited in a digester, which then collects the gas. The fuel would be used at Duke’s Dan River combined-cycle plant near Eden and its Buck combined-cycle plant near Salisbury.
Eight Utilities Joining Together to Form Emergency Equipment Stockpile
Eight U.S. utility companies are forming a consortium called Grid Assurance to stockpile large transformers, circuit breakers and other special equipment so they are available for emergencies. The venture will help the companies to more economically meet a Federal Energy Regulatory Commission mandate to have vital backup equipment available.
“Restoration of the transmission grid can be hampered by long lead times required to design, build and deliver” such equipment, one of the companies, American Electric Power, said in a statement. “Subscribers can call on equipment when they experience … physical attacks, electromagnetic pulses, solar storms, cyberattacks, earthquakes and severe weather events,” it said. The equipment would be stored at warehouses throughout the country.
In addition to AEP, the other companies in the program are Berkshire Hathaway Energy, Duke Energy, Edison International, Eversource Energy, Exelon, Great Plains Energy and Southern Co.
The Federal Energy Regulatory Commission on Tuesday approved PJM’s dramatic restructuring of its capacity market, saying the changes were justified by “the combination of deteriorating resource performance and the ongoing change in the resource mix in the PJM region.”
The proposal, a response to the poor generator performance during the January 2014 polar vortex, increases reliability expectations of capacity resources with a new Capacity Performance product. It is intended to result in larger capacity payments for the most reliable resources (including performance bonus payments for overperforming participants) and higher penalties for non-performers (non-performance charges).
The changes will be phased in beginning with the 2018/19 and 2019/20 delivery years, when PJM hopes to make at least 80% of capacity procured Capacity Performance, with the remainder “Base Capacity” subject to lower performance expectations. The transition will be complete for 2020/21, when PJM expects 100% of capacity to be Capacity Performance resources. PJM also is changing energy market rules regarding operating parameters, force majeure and generator outages under a “no excuses” policy.
PJM’s Board of Managers filed the proposal Dec. 12 following its first-ever “enhanced liaison process,” under which it accepted comments on the proposal but made no attempt to reach stakeholder consensus.
Although it rejected some of PJM’s related proposals for changes to the energy market, the commission otherwise approved the RTO’s changes with only limited modifications (EL15-29, ER15-623). (See related story, What is Changing in PJM’s Proposal?)
The commission cited evidence of increased generator forced outage rates since 2007, saying that capacity resources “are not being properly incented to make the investments required to perform reliably, including during extreme weather conditions.”
(Click to zoom.)
It accepted PJM’s prediction that resource performance will continue to worsen without changes as the RTO sees much of its coal fleet retire, replaced largely by natural gas-fired generation.
The commission rejected the arguments of opponents who said the changes were not necessary because generator performance improved last winter following more modest changes, including testing of seldom-used units.
“While encouraging, this does not assuage the long-term reliability concerns raised by historical unit performance,” the commission said. “Moreover, it is not uncommon for performance to improve after an event, only to trail off later. PJM has shown that, although its capacity market construct has been successful in procuring commitments three years in the future, it has not been successful in ensuring that resources actually perform when called upon.”
Stocks for PJM’s largest generators traded higher Wednesday following news of the ruling. Dynegy’s share prices jumped almost 9%, while NRG Energy and Exelon prices rose about 4%. As of Monday morning, NRG Energy had given back most of its gain, up 1% from before the order.
Bay Dissents
Chairman Norman Bay issued a stinging dissent, raising objections that are likely to be cited in any court challenges. Bay said the proposal will continue to allow generators to profit from poor performance while potentially saddling ratepayers with billions in excessive capacity costs annually.
“The majority today accepts a flawed, complex, highly technical market construct in which there is a potential mismatch between incentives and penalties [and] in which mitigation has largely been eliminated in a market characterized by structural non-competitiveness,” he wrote. (See related story, Bay’s Dissent: ‘Two Carrots and a Partial Stick.’)
PJM CEO Terry Boston, attending the Mid-America Regulatory Conference in Milwaukee, said he was “very pleased” by the ruling.
Exelon also applauded the ruling, saying it “will result in hundreds of millions of dollars in investments across the PJM fleet to harden power plants to operate — and reduce outages — during extreme weather.”
America’s Natural Gas Alliance, which represents independent exploration and production companies, said it was happy that the order provides way for combined-cycle generators to recover costs for securing fuel and investing in infrastructure.
Ruth Price, deputy Delaware Public Advocate, said the changes are unnecessary. “Last winter shows that we can get by without CP,” she said. “Clearly it’s going to be a cost burden on” ratepayers.
Dan Griffiths, executive director for the Consumer Advocates of PJM States, said the group was reviewing the order and had no immediate reaction.
Two Dockets
PJM made its proposal Dec. 11 in filings that totaled nearly 1,300 pages in two dockets.
One, EL15-29, filed under sections 205 and 206 of the Federal Power Act, contained proposed changes to PJM’s Operating Agreement and Tariff to correct “deficiencies” regarding resource performance in PJM markets.
FERC responded with a deficiency notice March 31 questioning 10 areas of the proposal. PJM’s answers largely satisfied the majority, although FERC’s order required the RTO to make a compliance filing within 30 days incorporating changes on some details.
Base Residual Auction
The new rules, which will be phased in over five years, will be reflected in the Base Residual Auction for the 2018/19 delivery year, which will begin Aug. 10.
“We are obviously still digesting the order,” senior vice president for operations Mike Kormos told the Market Implementation Committee on Wednesday. But he said he saw nothing in the ruling that would keep PJM from going ahead with the BRA as planned on Aug. 10.
“We fully expect to make the compliance filings as we were directed,” he said. “We will do that within 30 days, sooner if we can.”
Manual changes to accommodate the new product will be discussed at a special meeting of the Markets and Reliability Committee being planned for June 18, time and location to be announced.
Training will be held June 24, and the MRC will be asked to endorse the manual changes June 25.
PJM also released a schedule for deadlines leading up to the BRA.
Need for Change
FERC agreed with PJM that current capacity rules subject poorly performing resources to minimal penalties, placing most of the risk of under-performance on load. During the 2013/14 delivery year such penalties totaled less than $39 million, 0.6% of total capacity revenues. “Without more stringent penalties, PJM has shown there is little incentive for a seller to make capital improvements or increase its operating maintenance for the purpose of enhancing the availability of its unit during emergency conditions,” FERC said.
PJM’s rules also limited capacity resources’ ability to recover costs needed to improve performance, allowing recovery of capital costs for dual-fuel capability but denying expenses for natural gas firm transportation contracts.
“PJM has shown that its existing payment features not only inadequately incent resource performance, but may perversely select less reliable resources over more reliable resources because a capacity seller’s decision to forego investments that would improve resource performance allows it to offer in PJM’s capacity market at a lower price and be paid the clearing price while providing less reliable service,” FERC said.
The commission was not persuaded by opponents who argued that PJM could provide incentives for improved performance through changes to energy and ancillary services rules. “For example, although better alignment of electric market and natural gas pipeline scheduling deadlines would improve operations, it would not provide capacity market sellers the incentive to perform,” it said.
Fixed Resource Requirements
Although some intervenors argued that Fixed Resource Requirement entities are already subject to strong performance incentives from state regulators, the commission approved PJM’s decision not to exempt them from Capacity Performance penalties. “While Fixed Resource Requirement entities do not procure their capacity commitments through PJM’s capacity auctions, the ability of these resources to perform is equally critical to system reliability,” the commission said. It rejected an argument by the Organization of PJM States Inc. (OPSI) that PJM’s proposal infringed on state authority by effectively eliminating states’ choice to opt out of the capacity auction process.
The commission did, however, require PJM to modify how it calculates penalties for FRR entities.
Eliminating 2.5% Holdback
FERC approved PJM’s controversial proposal to eliminate its 2.5% capacity holdback effective with the Base Residual Auction for delivery year 2018/19. PJM said the change, which the Market Monitor has long urged, will ensure that it has obtained committed capacity and is not reliant on short-term procurement.
The commission rejected consumer groups’ contention that the holdback should be retained as a counter to PJM’s consistently overstated load forecasts. “We are not persuaded that a holdback requirement is necessary to address load forecast errors, or that the historical overstatements experienced to date are unavoidable or likely to recur at a level that requires mitigation,” the commission said.
It also rejected the Pennsylvania Public Utility Commission’s argument that the holdback is necessary to incent demand resources’ participation, saying it was “not convinced that the benefit of any incremental demand resource participation resulting from retaining the holdback requirement will necessarily outweigh the economic efficiency benefit of no longer withholding demand from the Base Residual Auction, an action that can suppress market clearing prices.”
Force Majeure
FERC approved PJM’s changes to its force majeure rule, under which a resource will be excused for non-performance only “in the event that all, or substantially all, of the electric transmission or fuel delivery infrastructure in the PJM region is incapacitated.”
“Without a replacement provision narrowing the reach of a force majeure event to excuse performance only in the most unforeseen and catastrophic circumstances, a market participant would be able to escape its obligations under circumstances not contemplated by the design of PJM’s markets,” the commission said.
FERC rejected arguments that the new definition was too narrow. “The risk of capacity resource non-performance must be borne by either capacity suppliers or consumers, and capacity suppliers are in the best position to assess and price the performance risk associated with their resources, including performance risks beyond a resource owner’s control, such as weather-related outages,” it said.
Accommodations to Demand Response
FERC approved PJM’s proposal to replace its current demand response products with an annual product that meets Capacity Performance requirements. Most of PJM’s current DR is available only in summer, including limited DR, which is available for only six hours daily up to for 10 days.
The commission required PJM to modify its proposal consistent with its response to the deficiency notice, which clarified that storage, intermittent resources, energy efficiency and DR may submit capacity offers based on their average expected output during peak hours.
FERC said it was permissible for PJM to allow such resources to make offers based on aggregate capacity while limiting traditional resources to unit-specific offers.
“The aggregated offer allowance is designed to provide an avenue to Capacity Performance participation by resources that otherwise may be unable or unwilling to participate on a stand-alone basis because no reasonable amount of investment in the resource can mitigate non-performance risk to an acceptable level,” the commission said. “Generally speaking, other resource types do not face this same limitation.”
The commission rejected the Market Monitor’s complaint that PJM’s proposal discriminated in favor of DR.
The Monitor contended that DR resources should have their output metered in five-minute intervals rather than estimated and be dispatched nodally to ensure that all capacity is performing as required. The commission said PJM’s concessions are “minor but reasonable accommodations” that allow DR to participate in the capacity market.
FERC also rejected the Monitor’s contention that DR should be subject to a must-offer requirement in the day-ahead energy market. The commission said PJM’s plan to exempt intermittent resources, storage, energy efficiency and DR from the must-offer requirement was reasonable because “they do not raise the same physical withholding concerns as do existing generation resources because their ownership is not concentrated.”
Increased use of renewable energy will depress energy prices, increase capacity prices and lead to early retirement of some baseload plants, according to a discussion paper by ISO-NE.
Conceptual illustration of potential transmission for 12,000 MW wind scenario. (Click to zoom)
The RTO said renewables’ low operating costs, combined with state and federal subsidies, reduce the energy market clearing prices, requiring competing traditional resources to make up that shortfall in the capacity market.
“State subsidies for renewable resources will put downward pressure on energy market prices, but this action is not without consequences: it will put upward pressure on prices in the capacity market. The capacity market will help balance the revenue needs for resources as the energy market provides fewer opportunities for resources to recover their fixed costs,” the paper says.
In 2014, the region’s 800 MW of wind power produced nearly 1% of its electricity. Solar penetration had reached 900 MW at that time, with projections of nearly 2,500 MW by 2024.
Developers have proposed 4,000 MW of additional wind power, with studies suggesting 12,000 MW of onshore and offshore wind could supply a quarter of the six states’ electricity needs.
Increased renewables are expected to impact technology choices, even as the region continues its inexorable march to natural gas, which accounts for about half of New England’s power generation. “That might mean a shift from gas-fired combined cycles toward gas-fired peaking resources,” the report said.
A decrease in energy revenues may cause combined-cycle generators — which expect to earn double the energy and ancillary market revenue of a combustion turbine — to become less competitive. At the same time, more gas peakers will be needed to provide additional reserves as the penetration of intermittent renewables grows.
Baseload Coal and Nuclear
The report said renewables will put the most pressure on baseload coal and nuclear units, noting that Entergy cited low energy market revenues in closing Vermont Yankee.
“With the expected increased penetration of renewable resources, more such retirements should be expected in the future. For example, at current energy and capacity prices, nuclear units might earn almost 10 times more revenue from the energy market than they earn from the capacity market. Modest changes in energy market revenues could have large impacts on the bottom line of a nuclear unit or baseload coal unit. This may be especially true for nuclear units, which have very high fixed operating costs and typically operate at very high capacity factors.”
No Changes Recommended
Nevertheless, ISO-NE said it does not believe its market rules need to be changed to accommodate these developments. It previously noted that higher capacity prices in recent auctions attracted new generation resources into the region. (See Prices up One-Third in ISO-NE Capacity Auction.)
“In the medium- to long-term, the capacity market will enable the region to achieve necessary levels of resource adequacy and resource performance while transitioning toward a system with greater levels of renewable resources,” the report concludes.
Former Federal Energy Regulatory Commission Chairman Jon Wellinghoff improperly shared in public a video excerpt of a deposition taken during a 2013 commission investigation, according to a report released Tuesday by Department of Energy Inspector General Gregory Friedman.
But Wellinghoff on Tuesday told RTO Insider the video snippet in question was not “nonpublic” information when he played it during an industry conference on March 9.
While disclosing information is forbidden during an investigation, certain portions of it become public after an investigation is completed, Wellinghoff said.
“I’m kind of bemused by [the report] in the sense that, No. 1, this information is not confidential at all. I don’t understand where they get this,” Wellinghoff said.
The Inspector General also faulted FERC for inadequate safeguards inside the agency to prevent such disclosures and has asked current Chairman Norman Bay to do more to prevent disclosure of nonpublic information and strengthen post-employment guidance.
Perhaps ominously for Wellinghoff, Friedman asked Bay to determine if the former FERC chairman violated a Confidentiality of Investigations requirement at the agency “and ascertain what, if any, sanctions are available to address the former chairman’s actions.”
‘How Not to Behave’
Wellinghoff, who served as chairman from 2009 to 2013, is currently a partner at the energy law firm of Stoel Rives. He’s been widely sought after as a speaker and panelist at various utility industry conferences.
Jon Wellinghoff (Source: FERC)
It was at such a conference on March 9 when, Friedman said, Wellinghoff shared a video excerpt of a nonpublic deposition taken during a “major” Office of Enforcement investigation resolved in a July 2013 agreement.
The video clip showed a trader being evasive while questioned by investigators. Wellinghoff presented the clip during the conference “as an example of how not to behave in front of regulators,” Friedman wrote.
Wellinghoff said the point of showing the video during the conference was instructional, in the context of “don’t do this” if you’re being questioned by regulators.
“But the snippet had no substantial information at all” concerning the underlying case, he insisted.
Records show that Wellinghoff was on the agenda to moderate a panel on “FERC and CFTC Enforcement” at the Western Systems Power Pool’s spring operating committee meeting, in Sonoma, Calif. After the panel discussion, a FERC employee, along with an attorney for the energy trading firm targeted in the 2013 investigation, “expressed concerns to the commission that the disclosure may have been unauthorized and in violation of federal law regulation,” according to the report.
FERC Integrity at Stake?
The Inspector General “confirmed the essence of the allegation, finding that Mr. Wellinghoff had, in fact, disclosed nonpublic OE information in a public setting. We concluded that the disclosure of such information could threaten the integrity of FERC’s regulatory and enforcement process.” Under FERC regulations, Friedman said, “virtually all of the information gathered during the course of an investigation is nonpublic.”
The report faults FERC management for failing “to take action to positively ascertain the scope of information still in possession of the former chairman.”
“In our view, the seriousness of this matter required more aggressive intervention and involvement by the commission,” the report said.
Friedman said FERC staff were focused on preventing future disclosures and failed to determine whether the former chairman possessed other nonpublic, sensitive commission material. FERC attorneys spoke with Wellinghoff on March 20, asking him to call the commission before releasing any other material in public so they could determine whether or not it was nonpublic, according to the report.
The report said Wellinghoff agreed, but he informed the attorneys that his computer had crashed in February and that all of his documents had been permanently lost. “However, we were told that Mr. Wellinghoff used a personal computing device to show the video clip during the March 9 presentation, despite having told commission attorneys that all of his documents were lost due to the computer crash,” the report said.
On April 29, the day before the Inspector General announced its investigation into the matter, FERC asked Wellinghoff to destroy any remaining commission material he possessed. Wellinghoff confirmed that he had on May 4.
The Inspector General said Wellinghoff has declined repeated requests to discuss the matter.
FERC Policies Faulted
Also faulted were FERC’s post-employment guidance and exit processes, such as how employees leaving FERC should treat information. The review did cite steps taken since the public release of the deposition came to light. For example, in an April email to current employees, FERC’s ethics official outlined potential criminal penalties for unlawful removal and distribution of federal records.
But Friedman said the risk of unauthorized disclosure by current and former FERC employees “remains unacceptably high.”
He recommended that Bay:
Determine if Wellinghoff violated the Confidentiality of Investigations requirement and whether sanctions are available;
Determine if the commission has necessary safeguards in place to prevent disclosure and propose statutory or regulatory changes; and
Expedite the effort to strengthen post-employment guidance and exit processes, including a better understanding of what constitutes nonpublic information.
Major Enforcement Case
Neither the conference nor the firm whose traders were targeted in the FERC investigation are identified in Friedman’s report.
According to FERC records, there were two major enforcement cases resolved in July 2013. One involved Barclays Bank, which FERC determined had violated the Anti-Manipulation Rule involving electricity trades in the western U.S. The commission assessed penalties of more than $435 million.
The public record of the case includes the names of traders found to have run askew of federal laws and includes summaries of depositions they’d made.
The other case resolved that month involved make-whole payments and related bidding strategies of JP Morgan Ventures Energy. Again finding a violation of the Anti-Manipulation Rule, FERC levied massive sanctions that included a $285 million civil penalty.
Wellinghoff declined to confirm to RTO Insider whether it was from one of these two July 2013 cases that he pulled the video deposition. The former FERC chairman said he did not identify the case at the March 9 conference.
Bay on Board
In a letter to Friedman, Bay said he agreed the video excerpt shared by Wellinghoff constituted nonpublic information.
“I have directed appropriate senior commission staff to explore whether further steps are available to address this situation and to share their findings on that issue with me by Sept. 1,” Bay wrote.
Wellinghoff has stepped on toes within FERC previously since leaving the post. In 2014, commissioners criticized their former colleague for publicizing information from a FERC analysis on grid security. Wellinghoff was attempting to demonstrate more could be done to safeguard the nation’s electrical infrastructure. (See FERC Criticism of Ex-Chair Mounts.)
MILWAUKEE — A top Environmental Protection Agency official on Monday gave the most detailed hints yet about how the agency will revise its proposed carbon emission regulations on existing power plants when the final rule is released this summer.
Janet McCabe
Janet McCabe, acting assistant administrator for EPA’s Office of Air and Radiation, indicated that the final rule will include relaxed interim goals and informal ways for states in the Midwest and elsewhere to combine their efforts to ease compliance.
McCabe made her comments at the opening session of the Mid-America Regulatory Conference, where Wisconsin officials promised that they will be among the states filing legal challenges to the Clean Power Plan.
McCabe has appeared frequently before gatherings of state regulators and also testified at the Federal Energy Regulatory Commission’s technical conferences on the reliability impacts of the proposed rule. In previous appearances, McCabe made vague promises that the agency was listening to the feedback it has received on EPA’s proposal. (See MISO, SPP Stakeholders Developing Trading Plan to Comply with EPA Carbon Rule.)
Rule Sent to White House
With the final rule nearing release — it was sent to the White House for review last week — McCabe was a bit more forthcoming.
She indicated support for the Midcontinent States Environmental and Energy Regulators (MSEER), which has been developing a mechanism that would allow utilities to trade emission allowances within and across state lines. McCabe said efforts by MSEER and others to create “trading ready” compliance plans that don’t require time-consuming memoranda of understanding among governors have been “very instrumental in our thinking.”
“What an excellent idea that is, and we’re certainly pursuing that,” McCabe said.
McCabe acknowledged the widespread opposition to EPA’s proposal that states meet most of their 2030 emission targets by 2020, which critics have said would impede regional compliance and result in stranded costs for generators shuttered before the end of their economic lives. “We certainly, certainly heard that. We heard that loud and clear,” she said.
She also acknowledged fears that the rule might subject state energy efficiency and renewable portfolio standards to federal oversight, saying, “I think you’ll see more thought on that.”
Wisconsin’s Welcome
McCabe spoke after Mid-Atlantic Conference of Regulatory Utilities Commissioners attendees received a welcome from Wisconsin Lt. Gov. Rebecca Kleefisch, who warned that the EPA rule will dramatically raise electric prices, damaging the state’s ability to use its lower rates to attract industry from Illinois and other states. Under the proposed rule, Wisconsin would be required to cut its carbon emissions by 32% from its 2012 levels.
Brad Schimel, Wisconsin Attorney General
Kleefisch introduced Attorney General Brad Schimel, who all but guaranteed that the state would be among those challenging the final rule. Schimel said EPA’s proposal had “serious legal flaws” and set unfairly harsh goals for the state, whose economy is dependent on energy-intensive industry.
McCabe acknowledged the Midwest’s heavy reliance on coal, and promised that “affordability is very much on our minds as well.” She said the agency has proven that environmental regulation is compatible with economic growth, saying air pollution has been reduced by 70% since 1970 while the economy grew “by orders of magnitude.”
She also responded to criticism that the proposed state targets — which require some states to cut emissions much more than others — are inequitable, saying “we’re looking hard at that.”
She rejected suggestions that the agency was overreaching, saying it was charged with enforcing laws enacted by Congress. She said the rule would withstand legal challenges, saying it was “very solidly based in the Clean Air Act.”
“EPA is not an energy agency. We’re not trying to be an energy agency,” she continued. “We are an agency that protects the public health, and in this case that means addressing air pollution that contributes to climate change.”
In a brief interview afterward, Schimel said he heard nothing from McCabe that made it less likely that Wisconsin will challenge the rule. “She conflates clean air with climate change. That’s not a good sign for where they’re going,” he said.
FERC Commissioner Plays Peacemaker
Commissioner Colette Honorable (Source: FERC)
Federal Energy Regulatory Commissioner Colette Honorable, who spoke after McCabe, urged state officials not to take absolutist stands.
She said states challenging the rule’s legality should also be prepared to respond if it is upheld in the courts. Some opponents have urged states not to file compliance plans; EPA has said it will impose a federal implementation plan for such states.
“I don’t want to do anything to harm jobs; I know you don’t either. I don’t want to do anything that harms reliability or ensuring just and reasonable costs; I know you don’t either. Having said that, we have a job to do,” Honorable said.
“There’s a saying that metal sharpens metal. If we continue to stay engaged we will be in the best possible position to be prepared for whatever happens with the Clean Power Plan. I’m … convinced that we will be able to strike the right balance because of what we continue to hear from you.”
Rule Survives First Legal Challenge
The Clean Power Plan survived its first legal challenge on Tuesday. In a unanimous decision, the three-judge D.C. Circuit Court of Appeals found that a challenge to the rule by 12 states was brought too early, as it is still being finalized.
“Petitioners are champing at the bit to challenge EPA’s anticipated rule restricting carbon dioxide emissions from existing power plants,” Judge Brett Kavanaugh said. “But EPA has not yet issued a final rule. It has issued only a proposed rule.
“They want us to do something that they candidly acknowledge we have never done before: review the legality of a proposed rule. But a proposed rule is just a proposal. … We do not have authority to review proposed agency rules.”
The court’s remarks in its ruling mirrored the skepticism it expressed when it heard oral arguments in April. (See Federal Briefs, “Judges Appear Skeptical of Challenge to EPA Air Rules.”)
WASHINGTON — The Federal Energy Regulatory Commission was the subject of intense criticism Wednesday and Thursday as members of a congressional subcommittee considered legislation to rein in the agency’s Office of Enforcement.
The House of Representatives Energy and Commerce Committee is considering a legislative package that would institute a wide variety of changes to energy policy. This week’s Energy and Policy subcommittee’s hearing focused on Title IV, which would make changes to FERC’s enforcement procedures, along with Department of Energy efficiency standards and the Public Utility Regulatory Policy Act (PURPA).
Under Section 4212 of the title, FERC would be required to disclose to investigation subjects “any exculpatory materials, potentially exculpatory materials, or materials helpful or potentially helpful to the defense” within a week of issuing preliminary findings.
Brady Doctrine
The provisions are in response to criticism by defense attorneys — embraced by some congressional Republicans — that Enforcement has denied subjects due process. The allegations were highlighted in the Powhatan Energy Fund case, in which brothers Richard and Kevin Gates claim that FERC withheld exculpatory evidence from them in violation of the Brady doctrine. (See Gates, Powhatan Say FERC Enforcers Didn’t Share Crucial Info.)
Larry Parkinson, FERC
Responding to a question on Wednesday from Rep. Jerry McNerney (D-Calif.) about the implications of the phrase “helpful or potentially helpful” in the section, FERC Enforcement Director Larry Parkinson called it “a pretty dramatic rewrite” of the Brady doctrine.
The doctrine, stemming from the 1963 case Brady v. Maryland, holds that the prosecution may not withhold evidence that could aid a defendant.
Under the proposed language, “essentially what it would end up being is an open-file discovery policy,” Parkinson said. “If you say you’re entitled to information in possession of FERC that is ‘helpful or potentially helpful’ to the defense, I don’t know what wouldn’t be, whether it’s inculpatory, exculpatory or anything even neutral.” He also noted that Brady doesn’t apply to civil cases, even though FERC voluntarily adopted the doctrine in 2009.
These comments incensed Rep. Morgan Griffith (R-Va.), who flung his hands in the air and stood up in exasperation. When it was his turn for questioning the witnesses, he blasted Parkinson’s remarks.
“I don’t know how y’all did it wherever you worked, but the really good prosecutors … they gave you the open file because it helped you reach a settlement,” said Griffith, who referred to himself as a “simple country lawyer.”
Rep. Morgan Griffith
“So I don’t understand the resistance. I’m having a real hard time sitting here listening to you talk about how this a problem.”
“This is not a hide-the-ball kind of process,” Parkinson responded. “We lay out in extraordinary detail for the subjects of our investigations everything we’ve concluded, both factually and legally.”
On Thursday, the subcommittee heard from William Scherman, a former FERC general counsel who has led the attack on the agency, making his case in a law review article, Wall Street Journal op-ed and National Association of Regulatory Utility Commissioners conference. Senate Republicans quoted from his critique during the confirmation hearings for former Enforcement Director Norman Bay last May. (See LaFleur Cruises, Bay Bruises in Confirmation Hearing.)
Scherman told the subcommittee that it was “shocking” that Parkinson would say the language was not necessary. He suggested replacing “helpful” with “favorable.”
“There is no possible way that [FERC] could object to that,” Scherman said.
Commissioners’ Role
The proposed legislation would also allow investigative subjects “to communicate with the commissioners regarding the substance of settlement considerations to the same extent as such communications occur between the commissioners and the investigatory staff of the commission.”
Parkinson said that such a change would “impede the ability of the enforcement staff to regularly communicate with the commission or with others in the agency. It is simply unworkable to restrict the enforcement staff from those communications unless we ignore the fact that the commission itself owns and manages its enforcement program.”
Bill Scherman, former FERC General Counsel
“I don’t know how a commission effectively oversees an enforcement program if the enforcement staff isn’t able to regularly communicate with them without having to put it in writing, or without having to give the investigative subject the opportunity to address the commission in the same way.”
Griffith, however, criticized what he saw as the dual role of FERC commissioners as prosecutors and judges. Griffith compared this to a building code investigator going to the judge and asking how he should investigate and lay out his case against a potential violator.
Scherman noted that because Enforcement staff has regular communication with commissioners, “human nature would suggest that cannot be a fair adjudication. It has nothing to do with the integrity of the commissioners personally. But if you’re told for five years that somebody is guilty of fraud, if you’re told for five years that somebody has manipulated the markets, if you’re told for five years that somebody has unjustly enriched themselves at the detriment of consumers, and at the very last part you then have to sit, where only one party has had access to you, where only one party knows what you’re thinking and only one party has had a free exchange, that is a problem.”
Griffith suggested allowing the commissioners to retain their power to settle cases but said adjudication should occur in federal court “where you can have a legitimate, due process-filled trial.”
Scherman thought it would be a good idea — if FERC recognized that de novo review meant a new trial. “The commission is taking the absurd position that the words ‘de novo review’ does not lead to a full trial, does not lead to discovery, does not lead to the right to confront witnesses,” he said. “They’re taking the position that de novo review is essentially no different than a court review, where the commission gets deference on the record that they built on a flawed process.”
‘Neutering’ Enforcement
McNerney, who noted that California is still dealing with the aftermath of the Enron scandal, expressed concern that the section went too far in “neutering FERC’s investigative authority.”
Sue Kelly, APPA
With no one from FERC on Thursday’s witness panel, Sue Kelly, CEO of the American Public Power Association, attempted to defend the agency.
“I would just note that what they’re trying to do is protect consumers in these electric markets,” she said. “And if you look at the orders that have come out, if you look at the entities that are being chastised, if you look at the behaviors that are being engaged in, I think a case could be made that it’s really important to have a strong enforcement at the FERC because consumers are otherwise going to be taken to the cleaners.”
Scherman countered that “It is easy to say ‘don’t do this’ when your members are not subject to the very regulations that are violating due process. Ms. Kelly’s members are not subject to these rules. They’re not subject to this enforcement process.”
Kelly interjected: “Not true.”
“Well it is true, Sue. Other than [the North American Electric Reliability Corp.], what are you subject to?” Scherman replied.
Kelly noted that there was an enforcement case against an APPA member in ISO-NE. But “generally speaking, we don’t engage in behavior that would require” the enforcement process, she said to laughter. Kelly, however, was not smiling.
