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NY ALJ Rules ESCO Cost Data Must Be Disclosed In Utility Rate Case

August 25, 2016

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Copyright 2010-16 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

A New York ALJ has ruled that certain aggregate ESCO cost data must be produced by National Fuel Gas Distribution in response to discovery requests by consumer advocates in a current NFGD rate case (Case 16-G-0257).

Although an August 24 email only references the information requests by number, and does not excerpt the specific requested information, the information being sought, and which must be produced, is essentially an aggregate of ESCO charges billed to customers for supply, which will likely be compared to the default service cost.

The ALJ notes that in describing the IR, the Public Utility Law Project has said that it was not seeking, "information that would reveal specific ESCOs by name or the individual rates of any ESCO service. Rather, PULP is seeking aggregate information that could lead to relevant rate case information such as the impact of ESCO supply on NFGD’s uncollectibles or, as stated by the ALJ, "whether low income funds might be better allocated to better inform customers about the availability of ESCO supply service where the aggregated data may show that ESCO supply offers low income customers better prices or services relative to NFG’s bundled service."

"Such low income program design questions are expected to be at least considered in this case where the design of NFG’s existing programs may have to be altered to comply with recent Commission orders," the ALJ noted

Additionally, the information requested has been likened to aggregate ESCO cost information which was sought (and produced) in a 2012 NiMo rate case. In such case, PULP did not seek the ESCO-provided billing determinant; it sought (and was granted) a comparative analysis between the ESCO charges and what would have been charged by the utility for commodity service.

Indeed, the disparity between default service pricing and ESCO pricing from such data (over such specific portion of time) has been cited in numerous proceedings concerning the retail market in New York as justifying additional regulations, or in the more extreme case, prohibitions on ESCO service

In the instant proceeding, the National Energy Marketers Association has objected to certain portions of the IRs served on NFGD, on trade secret and relevance grounds.

However, the ALJ noted that the issue was not one of first impression (noting the NiMo case above), and noted that trade secret status was previously denied for similar aggregate data, and therefore ruled that the ESCO cost data should be required to be produced.

As in the NiMo case, the ALJ ruled that individual ESCO names shall not be identified or associated with the charges, ESCO names must be redacted (similar to the NiMo case where ESCO names were replaced with generic names such as ESCO #1).

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