Energy Curtailment Specialists Says Texas NOV Should Be Dismissed

A PUCT Notice of Violation against Energy Curtailment Specialists, Inc. should be dismissed because ECS did not "wilfully (sic) and knowingly" violate PURA Sec. 39.151(d) and did not "wilfully (sic) and knowingly" intend for its loads not to curtail, ECS said in a list of issues prior to hearing (40127).

As previously reported, the NOV relates to allegations that ECS failed to meet its Emergency Interruptible Load Service (EILS) obligation on February 2, 2011

"The Commission's Notice of Violation against ECS must be dismissed as ECS did not violate Public Utility Regulatory Act (PURA) Sec. 15.03 by 'wilfully (sic) and knowingly' violate [sic] PURA Sec. 39.151(d). There is no allegation that ECS 'wilfully (sic) and knowingly' intended its Loads not to curtail. The facts will show that ECS properly notified its Loads of the Event and the Loads verbally told ECS that they were curtailing during the Event," ECS said.

"The Commission should not have exercised its discretion to subject ECS to an administrative penalty. ERCOT Protocol Sec. 8.1.3.3.1 (2) states that a QSE's alleged violation of Performance Criteria 'may be subject to an administrative penalty ... [emphasis by ECS].' Further, the 'administrative penalty would potentially be in addition to suspension by ERCOT of the QSE ... [emphasis by ECS].' ECS believes the facts of this case support its contention that imposition of an administrative penalty was not required or necessary and the matter should not have been subject to an administrative penalty," ECS said.

Furthermore, ECS said that, "[i]t is not possible for ECS to violate ERCOT Protocols Secs. 8.1.3.1 (6)(a) and (f) because those two Protocols govern EILS Loads, not QSEs. QSEs are subject to ERCOT Protocol Sec. 8.1.3.3.1, entitled 'Performance Criteria for EILS QSEs.'"

ECS further said that, "[a]t the time of the Event in February 2011, ERCOT Protocol Sec. 8.1.3.3.1 did not subject QSEs, including ECS, to the 10 minute response requirement. This position is supported by the fact that ERCOT revised this Protocol as of October 2011 to specifically include this requirement.

"A violation of more than one part of ERCOT Protocol Sec. 8.1.3.1 (6) still results in only one violation of ERCOT Protocol Sec. 8.1.3.3.1 ... Any number of violations of the ERCOT Protocols only results in one violation of PUC Subst. R. 25.503(f)(2)," ECS said.

"There is at most only one violation (if any) so the Commission can only impose one administrative penalty," ECS said.