Before the public utilities commission of the state of california

JJJ/eap 5/23/2000

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Application of Pacific Gas and Electric Company for an Ex Parte Order Approving Settlement Agreements Between Pacific Gas and Electric Company and Certain Winning Bidders In Pacific Gas and Electric Company’s Biennial Resource Plan Update Auction. (U-39-E)

Application 99-12-038 (Filed December 27, 1999)

ADMINISTRATIVE LAW JUDGE’S RULING

ON PROTECTIVE ORDERS
This ruling grants the motions for protective orders of Pacific Gas & Electric Company (PG&E) and Zond System’s Inc. (Zond) on the terms and conditions stated in this ruling.

The Motions

On December 27, 1999, PG&E filed a motion for protective order requesting that the following information be placed under seal:

• 
  the settlement demands made between PG&E and the two bidders in the Biennial Resource Plan Update (Update) auction with whom PG&E settled in its initial application, AES Pacific Inc. and Sea West Energy Corporation and Toyo Wind Power Corporation.;
  
• 
  the settlement amounts; and
  
• 
  the costs AES incurred in pursuing the development of a cogeneration facility in the Hunter’s Point Area of San Francisco.
  

On April 12, 2000, P&GE filed an amendment to the application which replaces and supersedes certain portions of the original application and adds new material to reflect a settlement PG&E has now reached with Zond. In the amended application, PG&E disclosed the aggregate principal total of the settlements as $9,525,000, but still requests that the individual settlement amounts remain confidential. Therefore, the amended application concedes that confidential treatment of the aggregate principal total of the settlements is not necessary.

On April 12, 2000, Zond filed an amended motion for protective order.¹ Zond’s amended motion overlaps with PG&E’s motion, and seeks to protect the following information:

• 
  the amount of the individual settlement demands made by any or all of the settling parties;
  
• 
  the individual amounts of each settlement; and
  
• 
  the cost information that the settling parties provided PG&E related to their individual responses to and settlements of their bids in PG&E’s Update auction.
  

PG&E and Zond make this motion pursuant to the Commission’s General Order 66-C. PG&E and Zond state that public disclosure of the above information would be adverse to the public interest since it would reveal information that is proprietary and commercially sensitive and place Zond and the other settling bidders at a competitive disadvantage in the electric resource development and generation market. PG&E and Zond also state that disclosure of the settlement demands and individual settlement amounts could adversely affect PG&E’s ability to negotiate effectively with Zond or any of the settling parties if the Commission does not approve any of the settlements with PG&E, because such disclosure could further compromise these parties’ rights in any future litigation.

In Application (A.) 97-05-027 and A.97-10-081 (Southern California Edison Company’s and San Diego Gas & Electric Company’s respective applications requesting Commission approval of settlement agreements between these utilities and certain bidders in their Update auctions), the Assigned Commissioner and Administrative Law Judge (ALJ) placed the individual amounts of the agreements, as well as the payment terms set forth in the text of the settlement agreements, under seal. A factor which influenced the ruling was that further disclosure of the settlement terms to all the settling bidders and other competitors could disadvantage the utility and, in turn, its ratepayers in future negotiations with qualifying facilities (QFs), especially if the Commission does not approve the application and the utility renegotiates with the settling, or other QFs.

This rationale is applicable to PG&E and Zond’s motions as well. No party opposes these motions. These motions for protective orders are granted on the terms set forth below. However, this ruling does not address treatment of this material or sealing the hearing room during hearings, if any are ultimately necessary. That issue will be addressed if and when it arises.

IT IS RULED that:

1. 
   PG&E’s December 27, 1999 motion, as amended by the disclosures made in its original application, and Zond’s April 12, 2000 motion for protective order, are granted to the extent set forth below.
   
2. 
   The following information in the application and amended application shall remain under seal for a period of two years from the date of this ruling, and during that period shall not be made accessible or disclosed to anyone other than Commission staff except on further order or ruling of the Commission, the Assigned Commissioner, the assigned ALJ, or the ALJ then designated as Law and Motion Judge:
   

• 
  the amount of the individual settlement demands made by any or all of the settling parties;
  
• 
  the individual amounts of each settlement; and
  
• 
  the cost information that the settling parties provided PG&E related to their individual responses to and settlements of their bids in PG&E’s Update auction.
  

3. 
   If PG&E or Zond, or another party, believes that further protection of the information protected by this ruling is needed after two years, they may file a motion stating the justification for further withholding the material from public inspection, or for such other relief as the Commission rules may then provide. This motion shall be filed no later than 30 days before the expiration of the protective orders.
   

Dated May 23, 2000, at San Francisco, California.

		Janet A. Econome Administrative Law Judge

CERTIFICATE OF SERVICE

I certify that I have by mail this day served a true copy of the original attached Administrative Law Judge’s Ruling on Protective Orders on all parties of record in this proceeding or their attorneys of record.

Dated May 23, 2000, at San Francisco, California.

Erlinda A. Pulmano

NOTICE
Parties should notify the Process Office, Public Utilities Commission, 505 Van Ness Avenue, Room 2000, San Francisco, CA 94102, of any change of address to insure that they continue to receive documents. You must indicate the proceeding number on the service list on which your name appears.
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The Commission’s policy is to schedule hearings (meetings, workshops, etc.) in locations that are accessible to people with disabilities. To verify that a particular location is accessible, call: Calendar Clerk [phone].
If specialized accommodations for the disabled are needed, e.g., sign language interpreters, those making the arrangements must call the Public Advisor at [phone] or TDD# [phone] five working days in advance of the event.

1 On February 4, 2000, Zond filed a motion for protective order. This motion is amended and superceded by the April 12, 2000 amended motion for protective order. This ruling only addresses the amended motion.

Additionally, at the March 27, 2000 prehearing conference, several of the bidders stated that they did not object to the total amount of each settlement being made public. However, the amended motion appears to supercede this statement because the bidders now request the individual settlement amounts to remain under seal. To date, the individual settlement amounts have not been made public.

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