PSC rules redacted information must be disclosed

Oct 21, 2013

The state Public Service Commission (PSC) has come under scrutiny in recent weeks with claims that there’s a lack of transparency in its proceedings.

The commission’s handling of plans for the future of two coal-fired power plants in upstate New York has been particularly criticized.

Opposing solutions for the Cayuga and Dunkirk power plants are being considered. The options are to either upgrade transmission lines or repower the facilities with natural gas.

Now, the PSC has ruled that heavily redacted cost and pricing data contained in both plans must be disclosed to the public in full.

Attorney Helen Slottje, who filed a Freedom of Information request to access the additional information, says the ruling is a step in the right direction.

“It’s encouraging that the PSC did not simply deny our request and sort of blindly accept that all of these documents are trade secrets. What remains a concern, there’s only one other state in the nation that doesn’t require disclosure and doesn’t apply lobbying rules to their PSC.”

Trade secrets

The information was originally withheld because of energy company claims that it contained sensitive trade secrets and proprietary details, but the commission’s ruling disputes that.

Both companies vying to repower the coal-plants with natural gas, NRG Energy and Cayuga Operating Company, are appealing the decision.

NRG spokesman David Gaier says their company, bidding to repower the Dunkirk power plant, believes they have good grounds for disputing the ruling.

He says they do not require that all information remains redacted, but it’s crucial to the company’s competitiveness in the market place that some information remains undisclosed.

In a statement, he said:

“Protecting confidential, competitive and trade secret information is something any competitive company in our position should do.”

Gaier says there are several reasons that they’re appealing the decision.

“First, our proposal includes information about the costs of the equipment, goods and services that we’ll be going out to the market to purchase if and when we receive a contract to repower Dunkirk. This kind of information includes our construction costs, ongoing operations and maintenance spending, and labor costs.”

“In addition, NRG is currently involved in a competitive proceeding to repower other sites, and we’ll need to contract with various vendors for the same or similar types of equipment, goods and services at those facilities as well as Dunkirk. Releasing this information would be very damaging to our competitive position and interests on those projects as well. For example, if potential vendors know how much NRG has budgeted to repower Dunkirk, they are likely to conform their bids to those numbers, depriving NRG the opportunity to obtain the lowest possible prices for goods and services.”

Gaier says NRG is also requesting the ability to keep “sensitive commercial information” from being disclosed as it could give competitors an insight into the company’s energy bidding strategies.

The ruling

The PSC ruling states that the companies involved have so far failed to show that disclosure of pricing and cost information would in fact be detrimental to their commercial position.

“Because the overall purpose of FOIL is to ensure that the public is afforded greater access to governmental records, FOIL exemptions are interpreted narrowly. To meet its burden, the party seeking the exemption must present specific, persuasive evidence that disclosure will cause it to suffer a competitive injury; it cannot merely rest on a speculative conclusion that disclosure might potentially cause harm. Here, the Companies have failed to meet this burden. The arguments suggesting that they will suffer competitive disadvantage is theoretical at best. The Companies’ key argument is that if they are forced to reveal certain cost and pricing information, competitors might use this information to gain an advantage in the transmission or generation market. It has not been shown that release of the information at issue, without more, would necessarily put the transmission operators or the generators at a competitive disadvantage.”

But, Gaier says they’re confident their appeal presents a strong case for some information to remain redacted.

Attorney Helen Slottje says if any financial risk is to be worn by the public, it’s only fair that people are allowed access to pricing data.

“Originally these filings completely redacted all of the financial information, the cost information from the filings, which if these were private companies building their own private power plants would be one thing. But, here the power plants are asking for permission to repower as part of a reliability systems surcharge and this reliability surcharge is passed on entirely to the ratepayers. So all ratepayers of National Grid and all ratepayers of NYSEG are going to be paying for whatever the PSC approves, whether it’s transmission upgrades or converting these power plants to run on natural gas. Because the public is being asked to pay for the power plant and pay for the transmission upgrades, it seems only fair that the public be told what these are going to cost.”

Gaier says 100 percent of the cost for building the new plant in Dunkirk, if the PSC rules in favor of repowering, will be fronted by NRG shareholders.