New York ALJs Allow Discovery on NiMo Comparison of ESCO, Utility Costs

Two New York ALJs will allow a comparison of ESCO and utility costs provided by Niagara Mohawk to be used in discovery and litigation during NiMo's rate cases, but have not yet ruled substantively on whether such information should be released publicly, and accordingly afforded the data confidential protection in the interim.

As previously reported, the NiMo analysis compared utility and ESCO costs using ESCO rates as provided by ESCOs under the consolidated billing services agreement. Retail suppliers had objected to the use of this information for this purpose, and the release of billing information to third parties, citing language under the billing services agreement (BSA) and the confidential nature of the underlying rates.

Consumer advocates have said that the information supports proposals for NiMo to provide customers with a comparison of ESCO and utility rates

In an email to parties, two ALJs first ruled that the data is relevant, and thus subject to discovery.

Second, the ALJs found that the billing services agreement does not prohibit NiMo's release of the requested information.

The Public Utility Law Project, in seeking the data in dispute, "is not attempting to exercise any rights under the BSA," the ALJs said.

The ALJs said that they will expound on both the issue of relevance and the BSA more fully in a forthcoming written ruling.

Regarding confidential treatment of the information, the ALJs did not make an immediate ruling, and said that they will address this issue in their written ruling. In the interim, confidential protection shall be provided to the information, unless otherwise directed by the ALJs.