Texas Staff Seeks Entry of Consent Order Revoking REP's Certificate

Staff of the Public Utility Commission of Texas have requested that Commission effectuate a consent order that was previously adopted as part of a settlement between Staff and Proton Energy that requires the revocation of Proton's REP certificate if certain milestones are not met.

Specifically, the settlement required Proton to file for a REP certificate amendment reflecting a change in control by July 14, or the revocation consent order would be adopted.

While Proton initially filed such an application, it was withdrawn by the new proposed owner last week, after Staff recommended denial of the application (see prior story).

"The withdrawal of the Application on August 14, 2014 had the same effect as if Proton had not filed an Application at all by July 1, 2014. There is now no application for change in ownership filed on or before July 1, 2014 in P.U.C. Docket No. 42450 for the Commission to review. Accordingly, entry of the consent order revoking REP Certificate No. 10191 and requesting immediate payment of the Remaining Balance from Proton's Letter of Credit is required pursuant to the Interim Order and the terms of the Agreement," Staff said.

"Asserted differently, Proton has materially breached the Agreement. As discussed above, Proton was required to file an application for change in ownership by July 1, 2014; failure to do so would result in entry of the Consent Order. By filing the Application on July 1, 2014, but then withdrawing the Application on August 14, 2014, the Commission no longer has a timely application for change of ownership to consider in P.U.C. Docket No. 42450. While the Agreement allows three business days for Proton to cure a 'material breach,' it is impossible for Proton to do so because any other application by Proton cannot be filed on or before July 1, 2014, as required by the Interim Order and the Agreement. The Application filed on July 1, 2014 is the only application filed in accordance with the Agreement. Any other application filed by Proton in an attempt to cure would be filed after July 1, 2014 in violation of the Interim Order and Paragraph 11 of the Agreement, thereby triggering entry of the Consent Order. Thus, pursuant to the Interim Order and Paragraph 17 of the Agreement, entry of the consent order revoking REP Certificate No. 10191 and requesting immediate payment of the Remaining Balance from Proton's Letter of Credit is warranted," Staff said.

Furthermore, Staff said that Proton was required to make an installment payment of $33,000 related to an administrative penalty by August 15, 2014, and alleged that Proton did not timely make such payment. While Proton has since made a payment of $37,000 to the Commission on August 18, 2014, "Proton's late payment is still a violation of the Interim Order and Settlement Agreement and Report to Commission in P.U.C. Docket No. 41848," Staff said.

Proton Energy sent this response (click here) to the three Commissioners, in which it seeks to continue operations under a probationary period, and alleges that it has been targeted for enforcement because of its low prices