UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Astoria Generating Company, L.P)
and TC Ravenswood, LLC)
)
Complainants,)Docket No. EL11-50-000
)
vs.)
)
New York Independent System Operator,)
Inc.)
)
Respondent)
LIMITED ANSWER OF THE
NEW YORK INDEPENDENT SYSTEM OPERATOR, INC.
In accordance with Rule 213 of the Commission’s Rules of Practice and Procedure,1 the
New York Independent System Operator, Inc. (“NYISO”) respectfully requests leave to submit,
and submits, this limited answer to the Complainants Motion for Leave to Answer and Answer
(“Complainants’ Answer”)2 filed in this proceeding on August 19, 2011. In deference to the
Commission’s rules, and because the NYISO continues to favor expedited action in this case,
this pleading addresses only the most fundamental inaccuracies in the Complainants’ Answer
and does so as concisely as possible. The NYISO’s silence with respect to all of Complainants’
numerous new assertions and arguments should not be interpreted as agreement with them.
1 18 C.F.R. § 385.213 (2011).
2 Complainants’ Motion for Leave to Answer and Answer, Docket No. EL11-50-000 (filed August 19, 2011) (“Complainants’ Answer”).
I.REQUEST FOR LEAVE TO ANSWER
The Commission has discretion to accept answers to answers when they are helpful to its decision-making process.3 The Commission should accept the NYISO’s limited answer here because it has been narrowly drawn to help to clarify an important procedural issue and to
identify that there are basic factual errors in Complainants’ Answer.
II.ANSWER
The NYISO’s August 3 Answer and Request for Expedited Action (“August 3 Answer”)
explained that this proceeding raises a difficult procedural issue of first impression. The
Commission’s resolution of it will establish precedent that is likely to govern future proceedings
concerning buyer-side mitigation exemption determinations by the NYISO, and other organized
markets. The crux of the difficulty is that challenges to buyer-side mitigation determinations
necessarily require a review of extremely sensitive confidential information regarding potential
new entrants. The NYISO and the independent Market Monitoring Unit to the NYISO
(“MMU”) both explained the danger that making such information available to third parties
could discourage new entry.4 The August 3 Answer therefore proposed that the Commission
approach this proceeding in a manner that reasonably balanced all of the interests concerned.5
3 See e.g., New York Independent System Operator Inc., 133 FERC ¶ 61,178 at P 11 (2011)
(allowing answers to answers and protests “because they have provided information that have assisted [the Commission] in [its] decision-making process”); Morgan Stanley Capital Group, Inc. v. New York Independent System Operator, Inc., 93 FERC ¶ 61,017 at 61,036 (2000) (accepting an answer that was “helpful in the development of the record ”).
4 See Answer and Request for Expedited Action of the New York Independent System Operator, Inc. at 29-30, Docket No. EL11-50-000 (August 3, 2011) (“August 3 Answer”); Motion to Intervene Out of Time and Request for Leave to Answer and Answer of the New York ISO’s Market Monitoring Unit at 5-7, Docket No. EL11-50-000 (filed August 9, 2011) (“MMU August 9 Answer”).
5 See August 3 Answer at 2, 24-25.
2
Complainants mischaracterize the August 3 Answer as an attempt to “hide behind
assertions that it should be trusted to have properly implemented” the Pre-Amendment Rules.6
Their assertion is contradicted by the NYISO’s clear statements in the August 3 Answer.
Specifically, the NYISO proposed that if the Commission did not dismiss the Complaint
outright, that the Commission examine the confidential information, and if it deemed necessary
investigate, the NYISO’s mitigation exemption determinations.7 The NYISO also stated it was
prepared and willing to make information regarding its determinations available to the full extent that the Commission deems necessary, including by filing a supplemental answer.8
Complainants would have the Commission ignore the serious implications for future
investments that were identified by the August 3 Answer,9 and by the MMU,10 and simply find
the NYISO in default under Rule 213.11 Complainants’ argument rests on the faulty premise that Complainants’ have made a prima facie showing that the NYISO’s determinations could not
possibly have been consistent with the Services Tariff. Complainants’ premise is dependent on
their use of carefully selected and erroneous assumptions.
Complainants also ignore the fact that the August 3 Answer sought a waiver of Rule 213’s
requirements, to the extent necessary, “so that its decision to await Commission guidance on
whether it is necessary to submit a confidential supplement is not construed as a failure to answer
6 Complainants’ Answer at 4. Complainants’ Answer also misstates and mischaracterizes other plain and publicly available facts. For example, Complainants’ statement that “Astoria II changed the interconnection point for the Astoria II Project in 2010” is directly contradicted by the NYISO’s
interconnection queue, among other information.
7 August 3 Answer at 1-2, 24-25, 27-34.
8 Id. at 33-34.
9 Id. at 29-30.
10 MMU August 9 Answer at 5-7.
11 Complainants’ Answer at 16.
3
any element of the Complaint.”12 If the Commission were to conclude that Complainants have
made a prima facie case, which it should not, it should grant the NYISO’s pending request.
Neither Complainants’ nor any other party has opposed the request for a waiver should it be
determined to be necessary. Moreover, granting it would not materially harm Complainants, or
materially delay Commission action because the NYISO would submit its confidential
supplement to the August 3 Answer if directed to do so.13 At the same time, summarily granting
even the interim relief requested by the Complainants would harm new entrants,14 and
consumers, by subjecting economic new entry to mitigation until a “full evidentiary hearing” was
completed.15 It would also harm the entire market due to the uncertainty it would create.
Complainants’ attacks on the integrity of the Commission’s investigation procedures, and their potential suitability for use in this case, are without merit. Indeed, Complainants appear to take the untenable position that all confidential investigations are unlawful because they
contravene the Commission’s ex parte regulations.16 The reality is that the Commission has
ample discretion to use its confidential investigation procedures in this, and future exemption
determination cases. Nothing in the West Deptford17 decision prevents the Commission from
12 August 3 Answer at n. 70.
13 Complainants could not legitimately claim that the fact that the information was not included in the August 3 Answer somehow violated their due process rights because they were not entitled to answer that pleading under Rule 213.
14 See, e.g., Motion to Intervene and Protest of the New York Power Authority, City of New York,
Metropolitan Transportation Authority, The Port Authority of New York and New Jersey, New York State
Office of General Services, and New York City Housing Authority, Docket No. EL11-50-000 (filed
August 3, 2011); Protest of Bayonne Energy Center, LLC, Docket No. EL11-50-000 (filed August 3,
2011).
15 See Complainants’ Answer at 30.
16 See Complainants’ Answer at 33. Complainants’ also appear to imply that the Commission
might use an investigation to engage in improper communications with the NYISO. It is certainly not the NYISO’s expectation that the Commission would do so.
17 West Deptford Energy, LLC, 134 FERC ¶ 61,189 (2011).
4
taking this approach when it is warranted. Complainants’ opposition to a confidential review
once again reveals their desire to function as de facto market monitors and to make themselves
responsible for determining “whether the NYISO’s decision to exempt the Astoria II and
Bayonne Projects from mitigation was correct” based on their own “full examination of the
actual data used by the NYISO.”18 Complainants’ do, however, concede that an expedited paper
hearing would be the best way to resolve this proceeding if the Commission does not dismiss the
Complaint based solely on the pleadings and if it declines to initiate a confidential investigation.
They expressly acknowledge that a paper hearing would allow for timely Commission action.19
III.CONCLUSION
The NYISO respectfully requests that the Commission accept this limited answer and
renews its request that the Commission either deny the Complaint based solely on the pleadings or, in the alternative, that the Commission conduct a confidential review using the procedures outlined in the August 3 Answer.
Respectfully submitted,
/s/ Gloria Kavanah
Gloria Kavanah
Senior Attorney
New York Independent System Operator, Inc.
10 Krey Boulevard
Rensselaer, NY 12144 518.356.6103
gkavanah@nyiso.com
August 31, 2011
18 Complainants’ Answer at n. 122. Such statements, along with Complainants’ renunciation of their previous insistence that they do not seek access to confidential information, once again betray their desire to systematically review and second-guess exemption determinations after they are made by the NYISO with the MMU’s input. Allowing market participants to play such a role would be inappropriate and problematic for the reasons specified in the NYISO’s earlier pleadings.
19 Complainants’ Answer at 31.
5
CERTIFICATE OF SERVICE
I hereby certify that I have this day served the foregoing document upon each person
designated on the official service list compiled by the Secretary in this proceeding in accordance with the requirements of Rule 2010 of the Rules of Practice and Procedure, 18 C.F.R. §385.2010.
Dated at Rensselaer, NY this 31st day of August, 2011.
/s/ Joy Zimberlin
Joy Zimberlin
New York Independent System Operator, Inc
10 Krey Blvd.
Rensselaer, NY 12114 (518) 356-6207
