`BEFORE THE
`FEDERAL ENERGY REGULATORY COMMISSION
`Enron Power Marketing, Inc. )
` and Enron Energy Services, Inc., et al. ) Docket No. EL03180000, et al.
`Eugene Water & Electric Board ) Docket No. EL03188000
`MOTION OF THE
`EUGENE WATER & ELECTRIC BOARD
`TO LODGE ORDER
`Pursuant to Rule 212 of the Rules of Practice and Procedure of the Federal Energy
`Regulatory Commission (“FERC” or “Commission”), 18 C.F.R. § 385.212 (2003), the Eugene
`Water & Electric Board (“EWEB”) hereby moves to lodge the attached “Order on Rehearing”
`issued October 16, 2003, in Docket Nos. EL0095081, et al.1 As demonstrated herein, good
`cause exists to grant this motion to lodge.
`I. BACKGROUND
`On July 25, 2003, EWEB filed a timely request for rehearing of the June 25, 2003,
`Partnership Order2 in the abovereferenced proceedings. One of the specifications of error set
`forth in that pleading was the following:
`1 San Diego Gas & Electric Co. v. Sellers of Energy and Ancillary Services Into Markets Operated by the
`California Independent System Operator and the California Power Exchange, 105 FERC ¶ 61,066 (2003).
`2 Enron Power Mktg., Inc. and Enron Energy Servs., Inc., et al., 103 FERC ¶ 61,346 (2003).
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`The Commission erred because the basis by which the
`Commission has asserted jurisdiction over other governmental
`entities does not apply to EWEB because EWEB was not a
`participant in the California Power Exchange (“PX”) and the
`California Independent System Operator (“ISO”) central clearing
`price markets (“Organized Markets”).
`EWEB July 25 Rehearing Request at 2. In that pleading, EWEB explained that it was not a
`Market Participant in the California Markets and was not a signatory to either the CAISO
`Scheduling Coordinator or Participating Generator Agreements. Id. at 6. Thus, under the
`Commission’s reasoning in the Gaming Order, 3 the Commission lacks jurisdiction over EWEB.
`Id. at 78.
`On September 2, 2003, EWEB submitted its response to the directive to show cause
`contained in the Partnership Order. That response contained the sworn affidavit of Scott Spettel,
`which affirmed that EWEB was not a participant in either the CAISO or PX organized markets
`and did not sign either the CAISO Scheduling Coordinator or Participating Generator
`Agreements. Spettel Affidavit at 56.
`To date, the Commission has not ruled on EWEB’s July 25, 2003, request for rehearing in
`these proceedings.
`II. MOTION TO LODGE
`On October 16, 2003, the Commission issued an “Order on Rehearing,” which, inter alia,
`granted rehearing of the Commission’s prior assertion of jurisdictional over certain transactions
`entered into by Public Utility District No. 2 of Grant County (“Grant County”). See 105 FERC ¶
`61,066 P 177. In that Order, the Commission found that it does not have either personal
`3 American Elec. Power Serv. Corp., et al., 103 FERC ¶ 61,345 (2003).
`2
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`jurisdiction over Grant County or subject matter jurisdiction over Grant County’s sales. That
`ruling was premised on the facts that Grant County did not make sales under the CAISO Tariff
`into the CAISO's centralized, single clearing price auction markets and did not enter into any
`arrangement with the CAISO, such as a Scheduling Coordinator Agreement or a Participating
`Generator Agreement. Id. This ruling directly supports EWEB’s claim that the Commission does
`not have jurisdiction over EWEB in this case. Accordingly, this motion to lodge should be
`granted.
`III. CONCLUSION
`For the reasons set forth herein, the Eugene Water & Electric Board respectfully requests
`that the Commission grant this motion to lodge the “Order on Rehearing” issued October 16,
`2003, in Docket Nos. EL0095081 and consider the findings in paragraph 177 of that order in its
`deliberations concerning the jurisdictional arguments set forth at pages 68 of EWEB’s July 25,
`2003, request for rehearing of the Partnership Order.
`Dated: October 29, 2003 Respectfully submitted,
`/s/ Thomas M. Grim/klm /s/ Kathleen L. Mazure
`Thomas M. Grim Michael Postar
`Richard G. Lorenz Kathleen L. Mazure
`Cable Huston Benedict Haagensen Duncan, Weinberg, Genzer
`& Lloyd LLP & Pembroke. P.C.
`1001 SW Fifth Avenue 1615 M Street, N.W.
`Suite 2000 Suite 800
`Portland, Oregon 972041136 Washington, D.C. 20036
`Attorneys for
`Eugene Water & Electric Board
`3
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` 105 FERC ¶ 61, 066
`UNITED STATES OF AMERICA
`FEDERAL ENERGY REGULATORY COMMISSION
`Before Commissioners: Pat Wood, III, Chairman;
` William L. Massey, and Nora Mead Brownell.
`San Diego Gas & Electric Company, Docket Nos. EL0095081
`Complainant, EL0095074
`EL0095086
`v.
`Sellers of Energy and Ancillary Services
` Into Markets Operated by the California
` Independent System Operator and the
` California Power Exchange,
`Respondents
`Investigation of Practices of the California Docket Nos. EL0098069
` Independent System Operator and the EL0098062
` California Power Exchange EL0098073
`ORDER ON REHEARING
`(Issued October 16, 2003)
`1. In this order, the Commission acts on requests for rehearing and clarification of an order
`issued on March 26, 2003 concerning refunds for California.4 This order benefits
`customers by further clarifying the method for calculating refunds for electricity purchases
`made in the organized spot markets in California during the period October 2, 2000
`through June 20, 2001 (the Refund Period).
`Background
`4See San Diego Gas & Electric Company, et al., 102 FERC & 61,317 (2003)
`(Refund Order).
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`Docket Nos. EL0095081 et al 5
`2. In the Refund Order, the Commission adopted in part and modified in part the presiding
`administrative law judge's Proposed Findings issued on December 12, 2002.5 We also
`directed generators that wish to recover fuel costs above the MMCP for spot gas purchases
`made during the Refund Period in the California Independent System Operator Corporation
`(CAISO) and California Power Exchange (PX) markets to submit their actual daily cost of
`gas information. The Commission also directed its staff to convene an ontherecord
`technical conference, which its staff held on May 22, 2003, to address issues concerning
`the information submitted on generators' fuel cost allowance submissions.
`3. The following parties filed timely motions for rehearing and/or clarification of the
`Refund Order: Arizona Electric Power Cooperative, Inc. (AEPCO); Automated
`Power Exchange (APX); Bonneville Power Administration; CAISO; CA
`Generators;6 CA Parties;7 Californians for Renewable Energy; Calpine Corporation;
`Cities of Anaheim, Azusa, Banning, Colton and Riverside, California; City of
`Burbank, California; City of Glendale, California;8 City of Los Angeles
`Department of Water and Power; City of Pasadena, California; City of Seattle,
`Washington; City of Redding, California; City of Vernon, California; Competitive
`Supplier Group;9 Coral Power, L.L.C.; El Paso Merchant Energy, L.P.; Enron
`Power Marketing, Inc. and Enron Energy Services, Inc.; Modesto Irrigation
`District; Morgan Stanley Capital Group, Inc.; Northern California Power Agency;
`5See San Diego Gas & Electric Company, et al., 101 FERC & 63,026 (2002).
`6The CA Generators is composed of subsidiaries of Duke, Dynegy, Reliant,
`Mirant, and Williams.
`7The CA Parties is composed of the California Attorney General, the California
`Electricity Oversight Board, the California Public Utilities Commission, Southern
`California Edison Company, and Pacific Gas & Electric Company.
`8On April 28, 2003, the City of Glendale, California filed an errata to its timely
`filed April 25, 2003 request for rehearing.
`9The Competitive Supplier Group includes the following companies: Portland
`General Electric Company; Exelon Corporation (on behalf of Exelon Generation
`Company, LLC, PECO Energy Company and Commonwealth Edison Company); Public
`Service Company of New Mexico, Sempra Energy Trading Corp., IDACORP Energy
`L.P.; BP Energy Corporation; Tractebel Energy Marketing Inc.; Avista Energy, Inc.;
`Puget Sound Energy, Inc.; Powerex Corporation; PPL EnergyPlus, LLC; PPL Montana,
`LLC; TransAlta Energy Marketing (California) Inc.; TransAlta Energy Marketing (U.S.)
`Inc.; Constellation Power Source, Inc.; and Coral Power, L.L.C.
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`Docket Nos. EL0095081 et al 6
`PacificCorp; Powerex Corp.; PPL Montana, LLC and PPL EnergyPlus, LLC;
`Public Utility District No. 2 of Grant County, Washington; Puget Sound Energy,
`Inc.; Reliant Energy Power Generation, Inc. and Reliant Energy Services, Inc.;
`Sacramento Municipal Utility District; Salt River Project Agricultural
`Improvement and Power District; San Diego Gas & Electric Company; Sempra
`Energy Trading Corp.; Silicon Valley Power of the City of Santa Clara, California;
`State Water Contractors and the Metropolitan Water District of Southern
`California; TransAlta Energy Marketing (U.S.) Inc. and TransAlta Energy
`Marketing (California) Inc.; Tucson Electric Power Company; Turlock Irrigation
`District; and Williams Energy Marketing & Trading Company (Williams).
`4. On April 16, 2003, APX filed an answer to Coral's Motion for Clarification. On
`May 6, 2003, Avista Corporation d/b/a Avista Utilities filed a motion requesting
`that the Commission consider its February 3, 2003 comments as an answer to the
`Sacramento Municipal Utility District rehearing request. On May 12, 2003, the CA
`Generators filed an answer to the CAISO's request for clarification. On May 12,
`2003, the CAISO filed an answer to the CA Generators and Williams motions for
`clarification or requests for rehearing. On May 12, 2003, the CA Parties filed an
`answer to the Williams motion for clarification.
`Requests Denied on Procedural Grounds
`5. Several parties raise arguments on rehearing that are identical to those they have
`already raised and that the Commission has already thoroughly considered and
`rejected.10 Accordingly, we will deny rehearing of the following issues and
`reference the appropriate portions of the presiding judge's proposed findings or the
`Refund Order: (1) Seattle's contention that the presiding judge should not have
`struck from the record the portion of Seattle's testimony and evidence concerning
`Seattle's hourly transactions in California outside the CAISO and PX markets;11
`(2) Powerex's and Vernon's arguments regarding the method the PX proposed for
`handling congestion;12 (3) Salt River Project's argument that energy charges
`captured in neutrality charge types must be mitigated;13 (4) arguments concerning
`10In the March 26 Order, the Commission adopted many of the presiding judge's
`proposed findings and explanations.
`11See 101 FERC & 63,026 at paragraph 19 (2002).
`12Id. at paragraphs 65375.
`13Id. at paragraphs 55665.
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`Docket Nos. EL0095081 et al 7
`what units are eligible to set the MMCP for each 10minute interval in the Refund
`Period;14 (5) Vernon's proposal to use net purchase or sale amounts for an hour
`(rather than gross sales and purchases), where a participant has both sales and
`purchases within the same zone, within that same hour, and within the same market
`(e.g., PX DayAhead Market);15 (6) Pasadena's arguments that the Commission
`should not have required it to allocate the cost of purchased emissions credits pro
`rata to all nonnative load sales;16 (7) Pasadena's argument regarding the
`opportunity cost of lost sales of emissions credits;17 (8) CA Parties' arguments for
`bilateralization of refund obligations even though the CAISO and PX markets were
`not designed that way;18 (9) CA Parties' arguments against the classification of
`certain BPA, Powerex, and Dynegy transactions as nonspot and, thus, exempt
`from mitigation;19 (10) CA Parties' arguments regarding mitigation of energy
`exchange transactions;20 (11) CA Parties' arguments to expand the scope of
`transactions subject to mitigation to include those with durations of up to one
`month;21 (12) the arguments of LADWP, EPME, and Transalta that certain of their
`transactions should have been classified as longterm transactions exempt from
`mitigation;22 (13) Competitive Supplier Group's arguments against the adoption of
`the presiding judge's criteria for determining units eligible to set the MMCP based
`14Id. at paragraphs 94180.
`15Id. at paragraphs 709714.
`16See 102 FERC & 61,317 at paragraph 113 (2003).
`17Id.
`18See 101 FERC & 63,026 at paragraphs 76988 and 102 FERC & 61,317 at
`paragraphs 13132.
`19See 101 FERC & 63,026 at paragraphs 47585, 49192, and 51217.
`20See 102 FERC & 61,317 at paragraphs 15354. CA Parties also state that the
`Commission failed to address arguments concerning the CAISO's proposed accounting
`methodology for energy exchange transactions. We clarify that the Commission's prior
`approval of the CAISO's accounting methodology for energy exchange transactions in
`Docket No. ER012886000 was to be applied to all jurisdictional entities that are
`similarly situated, including those in this proceeding, for the reasons stated in
`paragraph 536 of the presiding judge's proposed findings.
`21See San Diego Gas & Electric Company, et al., 97 FERC & 61,275 (2001) at
`62,222.
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`Docket Nos. EL0095081 et al 8
`in part on whether they were incrementally or decrementally dispatched;23 (14)
`AEPCO's argument that CAISO and PX refunds and obligations should be
`aggregated instead of treated separately;24 (15) Burbank's argument regarding its
`claimed NOx costs;25 and (16) NCPA's argument that marketpriced Reliability
`MustRun contracts should not be mitigated.26
`6. We will also deny several parties' outoftime rehearing requests that the Commission
`reconsider its finding that outofmarket (OOM) sales, which these parties allege
`were bilateral sales, are subject to mitigation and refund liability. As we stated in
`the July 25, 2001 Order in this proceeding,27 spot market OOM transactions are
`subject to refund and subject to the hourly mitigated price established in the
`ordered hearing. Accordingly, we will deny these parties' requests for rehearing
`on this issue.
`MMCP Issues
`Should average and/or incremental heat rate curves be used in determination of the
`MMCP?
`Background
`7. The Commission directed the presiding judge to determine the marginal cost of the last
`unit dispatched to meet load in California's realtime market in each hour of the
`Refund Period and to set the MMCP at that marginal cost. The Commission
`provided the presiding judge with the following formula to calculate MMCP.28
`22Id. at paragraphs 493511.
`23Id. at paragraphs 181201.
`24Id. at paragraph 789.
`25Id. at paragraphs 74245 and Refund Order at paragraph 111.
`26Id. at paragraphs 64045.
`27See San Diego Gas & Electric Company, et al., 96 FERC & 61,120 at 61,515
`(2001).
`28See July 25 Order.
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`Docket Nos. EL0095081 et al 9
`MMCP=(Heat Rate x Gas Price + $6 for O&M) x 1.1(creditworthiness adder
`beginning 1/6/01).
`8. In the Refund Order, the Commission adopted the presiding judge's selection of the
`incremental heat rate approach as being the best means of replicating a competitive
`market outcome. The Commission also found no basis in the record to treat
`Pasadena differently from all other sellers and, thus, directed that incremental heat
`rate data be used for Pasadena's gas turbine. However, the Commission also
`adopted the presiding judge's finding that AEPCO's mixed average and incremental
`heat rate data for its outofstate units were acceptable for use in setting the
`MMCP.
`Comments
`9. CA Generators, Competitive Supplier Group, Modesto Irrigation District, and Calpine
`request rehearing of the Commission's decision to adopt the use of incremental heat
`rates in the determination of MMCP.29 CA Generators argue that the Refund
`Order's stated objective of attempting to replicate a competitive market outcome is
`a conclusory standard that sheds no light on the choice between average and
`incremental heat rates. CA Generators argue that the marginal generator would in
`fact bid its energy based on its average heat rate and that the Refund Order did not
`demonstrate why this would not be true.
`10. CA Generators also argue that incremental heat rates exclude minimum load fuel costs,
`which means that prices developed through use of incremental heat rates will be
`insufficient for the marginal generator to recover its full fuel cost. CA Generators
`also point out that the choice need not be between allaverage or allincremental
`heat rates because they have shown at hearing that a mixed approach, based on
`individual circumstances, may be a better approach. Under this approach, which
`CA Generators championed before the presiding judge, average heat rates would be
`used for units that would not have run in the interval but for the CAISO dispatch
`instruction, while incremental heat rates would be used for units that merely
`changed output levels in response to the CAISO dispatch. They contend that the
`mixed heat rate approach is appropriate because, according to them, the record
`demonstrates that minimum load fuel costs are a marginal cost when the decision at
`issue is whether to turn a unit on or off, but are not marginal costs when the
`decision at issue is whether to change a unit's output level.
`29Calpine adopts the arguments of CA Generators without further elaboration.
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`Docket Nos. EL0095081 et al 10
`11. Finally, CA Generators contend that the Refund Order appears to contradict itself.
`They contend that while the Refund Order rejects recovery of minimum load fuel
`costs through the MMCP, it appears to accept the proposition that generators
`should recover their minimum load fuel costs. This is because in the discussion of
`the fuel cost allowance the order states that the allowance ". . . provides a means to
`directly reimburse generators for their fuel costs. . ."30 Moreover, since the April 22
`Order clarified that the fuel cost allowance is also calculated based on incremental
`heat rates, CA Generators assert that the Commission has prevented even that
`avenue of full fuel cost recovery.
`12. Modesto Irrigation District makes similar points and also argues that the Commission
`did not acknowledge one of its arguments from its initial comments to the presiding
`judge's proposed findings. That argument was that the incremental heat rate
`methodology errs by treating the CAISO's real time market and the PX's dayahead
`and hourahead markets as if they were the same. Since the markets are dispatched
`separately, Modesto Irrigation District argued that there is no guarantee that the
`same units will be dispatched in each market. Accordingly, Modesto Irrigation
`District argued that realtime incremental heat rates are an unreliable factor for
`determining an accurate MMCP for all energy consumed during any time period.31
`AEPCO and Competitive Supplier Group make similar arguments.
`13. Regarding the Pasadena gas turbine heat rates, CA Generators argue that the
`Commission erred by not adopting the presiding judge's proposed finding. CA
`Generators opine that the Commission may have misunderstood the nature of the
`dispute between the CAISO and Pasadena. The dispute, according to CA
`Generators, was not over abandonment of incremental heat rates. Rather, it appears
`that the CAISO and Pasadena had different views as to how the incremental heat
`rate should be determined. Since Pasadena's gas turbines have only one operating
`level above zero, and move from zero to that operating point within one tenminute
`interval, Pasadena believed that the CAISO's attempt to define an intermediate
`operating point to use as the starting point for the incremental heat rate calculation
`was unsupported. Accordingly, Pasadena defined its incremental heat rate based
`on the change from zero output to the full operating level, which happens to be the
`same as its average heat rate at full operating level. According to CA Generators,
`this is what the presiding judge approved. CA Generators therefore request that the
`Commission, on rehearing, accept Pasadena's proposed heat rate as the appropriate
`incremental heat rate for its gas turbines.
`30Refund Order at P14.
`31Modesto Irrigation District Request for Rehearing at 3.
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`Docket Nos. EL0095081 et al 11
`14. Pasadena, itself, makes similar arguments on rehearing. CA Parties, on the other hand,
`request clarification that the Commission intended for the CAISO's incremental
`heat rates to be used for Pasadena's gas turbines.
`15. CA Parties continue to argue for rejection of AEPCO's heat rate data for the same
`reasons that they expressed before issuance of the Refund Order but now offer two
`additional arguments. The first new argument is that a key assumption used by
`AEPCO in order to determine which unit made a sale to the CAISO or PX,
`according to CA Parties has been rendered invalid by certain "admissions" AEPCO
`made in its responses to the Commission's data request in Docket No. PA022. The
`assumption in question involved AEPCO's assertion that the state requirement to
`serve its native load at leastcost meant that in any given interval in which it made
`an offsystem sale to the CAISO, its CAISO sales were served by its highest cost
`generation. CA Parties contend that in PA022, AEPCO admitted that it
`occasionally made offsystem sales to others besides the CAISO and occasionally
`purchased power to serve offsystem sales instead of generating it inhouse.
`16. The second new argument is that the Commission's handling of the AEPCO issue has
`violated CA Parties' due process rights. As noted at paragraph 46 of the Refund
`Order, the presiding judge initially struck testimony and exhibits dealing with this
`issue pursuant to the Commission's December 19 Order that did not permit outof
`state generators to set the MMCP. However, following issuance of the May 15
`Rehearing Order, the presiding judge restored this material to the record, set an
`abbreviated schedule for parties to file simultaneous briefs, and denied motions for
`discovery and to file additional rebuttal briefs. The Refund Order also noted at
`footnote 18 that (1) Trial Staff and CAISO each filed rebuttal testimony prior to the
`presiding judge's decision to strike; (2) testimony was subsequently restored to the
`record; and (3) CA Parties elected not to file such testimony prior to the May 15
`Rehearing Order.
`Discussion
`17. Most of the rehearing arguments against the use of incremental heat rates to set the
`MMCP were previously made before the presiding judge, then considered and
`rejected by him. In adopting his findings, the Commission adopted his reasoning
`as to those arguments and we see nothing in the requests for rehearing that
`invalidates that reasoning. Accordingly, we need only address the new arguments
`raised on rehearing.
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`Docket Nos. EL0095081 et al 12
`18. Regarding the contention that the Refund Order contradicts itself, we disagree.
`Incremental heat rates were adopted as the best means of replicating a competitive
`market outcome and the fuel cost allowance was not in any way meant to reimburse
`alleged costs that may not be recovered as a result of using incremental heat rates.
`Rather, the fuel cost allowance was adopted because in most cases generators paid
`the California spot gas index price.32 There is no contradiction. The Commission
`offered separate solutions for the separate problems identified.
`19. Regarding the argument that the use of incremental heat rates in the new fuel cost
`allowance mechanism will not allow generators to recover their actual fuel costs,
`we will address this concern in a subsequent order.
`20. Regarding Modesto Irrigation District's renewed argument that realtime incremental
`heat rates are an unreliable factor for determining an accurate MMCP for all energy
`consumed during any time period, we find the argument unpersuasive and possibly
`inappropriate at this stage of the proceeding. Even if we were to accept Modesto
`Irrigation District's argument that the incremental heat rate of the marginal unit in
`the realtime market may not be appropriate because different units may be on the
`margin in the different markets during any given interval, we can find no reason
`why Modesto Irrigation District's argument would not apply equally well to the
`average heat rate of the same realtime marginal unit. In both cases, under
`Modesto Irrigation District's argument, the heat rate characteristics of the marginal
`unit in the realtime market would not necessarily be representative of the heat rate
`characteristics of the marginal units in the other markets at issue. Accordingly, on
`its face Modesto Irrigation District's argument does not support its contention that
`use of average heat rates will result in more accurate MMCPs than use of
`incremental heat rates. Accordingly, we will reject this aspect of Modesto
`Irrigation District's request for rehearing.
`21. Regarding Pasadena's gas turbines, we will grant rehearing. The arguments on
`rehearing have convinced us that we were operating under a mistaken impression
`as to how the CAISO defined the intermediate operating points it proposed to use
`for Pasadena's gas turbines. Where a unit can move from zero output to full output
`in one tenminute interval, and was essentially either off or dispatched to its full
`output level during the Refund Period, we see no justification for any attempt to
`artificially subdivide the unit's operating range by defining additional intermediate
`operating levels. We believe that output changes from zero to full output in one
`32See Refund Order at paragraph 61.
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`Docket Nos. EL0095081 et al 13
`tenminute interval are essentially instantaneous. Accordingly, we agreed with the
`presiding judge's proposed finding that Pasadena's gas turbines had only one
`operating point besides zero and, thus, that the average heat rate should be the same
`as the incremental heat rate for Pasadena's gas turbines. In contrast, most other
`units require more time to respond, especially for startup from zero output, and
`frequently operate at intermediate output levels for extended periods of time.
`Pasadena's gas turbines, therefore, are distinguishable from other units at issue
`here. Accordingly, while as discussed above we will uphold our adoption of the
`CAISO's incremental heat rate approach in general, we will reverse our prior
`decision regarding Pasadena's gas turbines and adopt the presiding judge's
`exception to allow use of Pasadena's heat rate data for its gas turbines.
`22. Regarding AEPCO's heat rate data, we will deny rehearing. The presiding judge
`undertook a reasoned, factspecific analysis on this issue and AEPCO's general
`responses in Docket No. PA022 provide no basis to question that factspecific
`analysis. Furthermore, the arguments that due process was not served are belied by
`the fact that two parties submitted rebuttal testimony and exhibits on this issue that
`were considered by the presiding judge. Those two parties, trial staff and the
`CAISO, chose to file this rebuttal testimony under the trial schedule that applied to
`this issue. The CA Parties simply chose not to avail themselves of the opportunity
`to file rebuttal testimony under the trial schedule. Accordingly, CA Parties' due
`process rights were not impaired.
`What is the proper use of gas price indices for the calculation of the MMCP for each
`interval?
`Background
`23. In light of findings from the Staff Final Report that the prices established in the
`California spot gas markets were not solely the outcome of fundamental supply and
`demand forces, the Commission modified the mitigated marketclearing price
`formula in the California refund proceeding to use producingarea prices plus a
`tariff rate transportation allowance (including a fuel compression charge
`allowance) instead of California spot gas prices.
`24. The Commission also followed the Staff Final Report's recommendation to establish a
`fuel cost allowance mechanism to ensure that generators are able to recover their
`actual fuel costs, but found that a modification to Staff's proposal was necessary.
`To verify that generators paid spot gas prices, the Commission required each
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`Docket Nos. EL0095081 et al 14
`generator to base its fuel cost allowance on its actual daily cost of gas incurred to
`make spot power sales in the PX and CAISO spot markets. The Commission
`required that generators assign their shortest term gas purchases to their spot power
`sales by ranking their gas supplies by term and allocating those gas supplies to spot
`power fuel requirements starting with the shortest term gas supply, proceeding
`sequentially to the next shortest term supply, until the generator's spot power
`demand for gas is met. The average cost of this portion of the generator's gas
`supply portfolio would serve as the cost of gas for the additional fuel cost
`allowance.
`25. As recommended in the Staff Final Report, the Commission found that this cost
`allowance for generators should not be included in the MMCP, but should be
`separate.
`Comments
`26. A broad crosssection of sellers requested rehearing of this change to the MMCP
`methodology.33 Their main argument is that the Commission violated due process by
`adopting staff recommendations that were not addressed in the hearing in this case and
`about which the parties had no meaningful opportunity to respond or rebut. In this regard,
`Competitive Supplier Group argues that the Commission must vacate its reliance on the
`Staff Final Report and establish evidentiary procedures that provide the parties full due
`process rights under the FPA and APA, if it wishes to modify the MMCP methodology.
`27. Additionally, sellers argue that the conclusions of the Staff Final Report were not well
`supported and, thus, should not have been relied upon by the Refund Order. In this
`respect, Reliant's rehearing request includes a substantial analysis purporting to
`demonstrate why its gas marketing activities, as discussed in Chapter II of the Staff
`Final Report, were not only appropriate but had no effect on market prices. First,
`Reliant argues that gas market price volatility led to increased trading by Reliant,
`not the reverse as the Staff Final Report concluded. Reliant contends that the
`phenomenon of price volatility leading to increased trading is common across
`commodity markets, and that its own analysis prove that Reliant's trading trailed
`33Specifically, rehearing of this issue was requested by CA Generators, BPA,
`LADWP, Powerex, El Paso, Silicon Valley Power, Competitive Supplier Group,
`Redding, AEPCO, Turlock, Burbank, Glendale, NCPA, Calpine, PUD2 Grant, and
`Anaheim.
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`Docket Nos. EL0095081 et al 15
`the increase in volatility. Reliant also argues that it did not benefit from the
`increase in gas prices because it was not insulated from such increases. Reliant
`also asserts that the staff analysis of the impact of Reliant's trading activities on gas
`price indices was flawed in its construction because the model only included one
`variable, "churn" trading, out of the many variables that could have impacted price.
`Reliant's alternative analysis, which purports to correct this alleged deficiency,
`concludes that Reliant's trading activities had insignificant impact. Further, Reliant
`argues that its trading activities did not meet the criteria, or screens, established to
`prove market manipulation in any commodity or securities market.
`28. Meanwhile, CA Generators contend that the discussion and findings in Chapter III of
`the Staff Final Report regarding published natural gas price indices are based on an
`"enormous leap of logic" and, in any event, do not support the change in MMCP
`methodology. According to CA Generators, the leap of logic is that Chapter III
`appears to assume that the cited misreporting would have skewed prices higher.
`CA Generators argue that Staff's evidence actually shows that misreported prices
`were just as likely to be lower as higher. CA Generators next argue that the Staff
`Final Report inappropriately relied on data from outside the West and outside of
`the Refund Period without proving that this data was relevant in the West.
`Furthermore, according to CA Generators, staff's analysis of the difference between
`published index prices and actual prices is flawed because it focused
`inappropriately on only one component (fixedprice contracts) of generators' gas
`purchases and ignored the fact that actual trading occurs over a range of prices on
`any given day (or mo



