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Texas PUC Staff File Recommended Proposal For Adoption Containing New Emergency Communication, Preparedness Requirements For Retail Electric Providers

February 23, 2022

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Copyright 2010-21
Reporting by Paul Ring •

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Staff of the Texas PUC have filed a recommended draft proposal for adoption to adopt new 16 TAC §25.53, relating to emergency operations plans and the implementation of SB 3

The Staff recommended proposal for adoption would require a market participant (including REPs) to file an Emergency Operations Plan (EOP) in its entirety with the Commission, and the draft rule outlines the required contents of an EOP. Under the current rules, entities could elect to file only a comprehensive summary of their emergency operations plan

Under the Staff recommendation, an entity (including REPs) must file an emergency operations plan (EOP) and executive summary by April 15, 2022.

Going forward, an entity (including REPs) must continuously maintain its EOP. Beginning in 2023, an entity must annually update information included in its EOP no later than March 15

The March date for the annual filing or update reflects a change in response to comments from stakeholders, including REPs, who noted that other regulatory reporting deadlines already exist for the originally proposed deadline of February 15

To the extent there is no material change to an EOP, the entity still must file annually a pleading that documents any changes to the list of emergency contacts and an attestation from the entity's highest-ranking representative, official, or officer with binding authority over the entity stating the entity did not make a change to its EOP that materially affects how the entity would respond to an emergency

In a change sought by certain REPs, the Staff recommended proposal for adoption would allow an entity to file a single EOP on behalf of its various companies

Specifically, under the Staff recommended proposal for adoption, an entity may file a joint EOP on behalf of itself and one or more other entities over which it has control provided that:

(i) the required executive summary identifies which sections of the joint EOP apply to each entity; and

(ii) the joint EOP satisfies the requirements of the rule for each entity as if each entity had filed a separate EOP.

Staff's recommended proposal provides that a person seeking registration as a PGC or certification as a REP must meet the EOP filing requirements at the time it applies for registration or certification with the commission and must submit the EOP to ERCOT if it will operate in the ERCOT power region, no later than ten days after the commission approves the person's registration or certification.

Under the proposal, an entity's EOP must address both common operational functions that are relevant across emergency types and annexes that outline the entity's response to specific types of emergencies, including those specifically listed in the rule

Apart from requirements applicable generally to all EOPs for all entities, Staff's proposal for adoption includes a specific requirement that EOPs for REPs address communication with customers during emergencies.

Specifically, under the Staff recommendation, a REP must describe the procedures for communicating during an emergency with the public, media, customers, the commission, and OPUC, and the procedures for handling complaints during an emergency.

Addressing stakeholder comments, Staff's draft preamble states, "The commission declines to remove the requirement that a REP's EOP describe procedures for handling complaints during an emergency as requested by ARM. ARM is correct that §25.485 gives a REP 21 days to respond to complaints, but it also requires that REPs provide reasonable access to service representatives and have a toll free line that affords customers a prompt answer during normal business hours. Depending on the severity of the emergency, customer complaints may rise dramatically during the emergency and there must be procedures in place for the REP to collect and respond to the increased number of complaints in a timely manner. A REP's communication plan should include the procedures that allow the REP to adapt to differing levels of complaints during an emergency. If, however, as ARM suggests, a REP believes that its standard complaint processing procedures can withstand the increased level of complaints associated with emergencies, it may submit its standard complaint handling procedures as its emergency procedure."

Octopus had recommended the commission add a requirement that a REP verify that it has a current phone number or email address for each of its customers in case emergency communications are necessary as well as specify the medium of such emergency communications. Staff's recommended proposal would reject Octopus's proposal.

Further, under the Staff recommendation, a REP must include in its EOP the following annexes:

(A) A pandemic and epidemic annex;

(B) A hurricane annex that includes evacuation and re-entry procedures if facilities are located within a hurricane evacuation zone, as defined by TDEM [Texas Division of Emergency Management];

(C) A cyber security annex;

(D) A physical security incident annex; and

(E) Any additional annexes as needed or appropriate to the entity's particular circumstances.

Further, the Staff recommendation provides that an entity (including REPs) must conduct or participate in at least one drill each calendar year to test its EOP. Following an annual drill the entity must assess the effectiveness of its emergency response and revise its EOP as needed

In comments on the proposal for publication, the Alliance for Retail Markets (ARM) had argued that the proposed rule significantly and unnecessarily adds to the requirements a REP must provide in its EOP and requested the commission revise the proposed rule so that the imposed requirements are not overly burdensome or risk disclosure of sensitive information.

In response, the Staff recommended preamble states, "The requirements of Tex. Util. Code §186.007 apply to retail electric providers. Therefore, the adopted rule applies to retail electric providers." The recommended proposal for adoption does further refine confidentiality protections for EOPs.

ARM had also recommended the definition of 'hazard' under the proposed rule be aligned with the definition of 'emergency' under the proposed rule as each definition includes references to 'information,' 'operations,' and 'the environment,' but not the continuity of electric service. ARM noted that such terms are both expansive and restrictive as they may require EOPs to include information that is not relevant to system or grid reliability, yet also limit the scope of hazards contemplated by EOPs.

Staff's recommendation does not delete or narrow the definition of hazard, but revises the definition to hazard to include (but not exclusively be) a condition that is potentially harmful to the continuity of electric service.

Specifically, the Staff proposal would define hazard as, "a natural, technological, or human-caused condition that is potentially dangerous or harmful to life, information, operations, the environment, or property, including a condition that is potentially harmful to the continuity of electric service."

In response to comments from stakeholders including REPs, Staff's recommendation deletes earlier language which would require that the EOP include common operational functions that can be used for, "every type of emergency," as stakeholders argued that such phrase is overly broad

The recommended proposal for adoption instead states that, "An entity’s EOP must address both common operational functions that are relevant across emergency types and annexes that outline the entity’s response to specific types of emergencies, including those listed in subsection (e) of this section."

In response to comments from REPs, in several areas of the proposed rule that require the identification of specific individuals who are accountable for modifying and implementing EOPs, the Staff recommended proposal would allow an entity to comply by listing the title or specific designations of such individual rather than an individual by name.

However, for the requirement to list emergency contacts who can be contacted by the PUC under the EOP, individuals must be listed by name

The Staff recommendation would reject proposals from REPs and other stakeholders to delete the proposed requirement that individuals responsible for interacting with government officials during emergencies must have received National Incident Management System (NIMS) training.

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