UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION

Transcription

1 UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Midwest Independent Transmission ) Docket No. ER System Operator, Inc. ) MIDWEST INDEPENDENT TRANSMISSION SYSTEM OPERATOR, INC. S MOTION TO REJECT UNTIMELY MOTION TO INTERVENE AND PROTEST OF MAG ENERGY SOLUTIONS INC., OR IN THE ALTERNATIVE, MOTION FOR LEAVE TO ANSWER AND ANSWER Pursuant to Rules 212, 213 and 214 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (the Commission or FERC ), 18 C.F.R , , and (2009), the Midwest Independent Transmission System Operator, Inc. ( Midwest ISO ) hereby submits this Motion to Reject the Motion to Intervene Out Of Time and Protest of MAG Energy Solutions Inc. ( MAG ), filed on August 24, 2009, in the above captioned proceeding. In the alternative, the Midwest ISO seeks leave to file an Answer, and includes herein an Answer, to MAG s untimely protest. MAG s attempt to intervene and file a protest in this matter should be rejected because it is extremely tardy and disruptive, and wholly inexcusable. I. BACKGROUND On October 27, 2005, the Midwest ISO proposed revisions to Section a of the Midwest ISO s EMT in order to modify the calculation and allocation of RSG charges. On April 25, 2006, the Commission issued an Order that, inter alia, rejected the Midwest ISO s

2 proposal to exempt virtual transactions from RSG charges going forward, and to remove actual energy withdrawal as a condition for the imposition of RSG charges. 1 The proceeding resulted in several other orders on compliance and rehearing, culminating with the issuance of a November 7, 2008 Order in which the Commission, among other things, clarified that the current Tariff s RSG cost allocation formula should be construed as not involving any numerator-denominator mismatch or any under-recovery of costs. 2 The compliance requirements of the November 7 Order were addressed by the Midwest ISO s December 8, 2008 compliance filing, which initiated the instant sub-docket. In response to protests and comments, the Midwest ISO also filed an answer on January 13, Thereafter, the Commission issued a deficiency letter dated February 9, 2009 ( February 9 Letter ), requesting additional information on certain RSG exemptions that the December 8 compliance filing and the January 13 answer stated the Midwest ISO would exclude from the RSG denominator for purposes of the refund/resettlement required by the November 7 Order. On February 24, 2009, the Midwest ISO submitted its response to the February 9 Letter. The Midwest ISO provided a table listing the Tariff provisions, Commission orders, Business Practices Manual ( BPM ) provisions, and RSG Task Force materials supporting such RSG exemptions, which are based on exemptions from Uninstructed Deviation Penalties ( UDP ) Midwest Indep. Trans. Sys. Operator, Inc., 115 FERC 61,108 (2006). Midwest Indep. Trans. Sys. Operator, Inc., 125 FERC 61,156 (2008) ( November 7 Order ). UDPs are termed as Excessive/Deficient Energy Deployment Charges under the Midwest ISO s Open Access Transmission, Energy and Operating Reserve Markets Tariff ( ASM Tariff or Tariff ). Unless otherwise indicated, terms capitalized herein have the meanings set forth in the Tariff, the BPM for Definitions, and/or the BPM for Market Settlements. 2

3 On May 8, 2009, the Commission issued another deficiency letter ( May 8 Letter ), requesting additional information on how previous iterations of the Midwest ISO BPMs treated real-time RSG charge exemptions. On June 5, 2009, the Midwest ISO submitted its response to the May 8 Letter, including information regarding the provisions of the Midwest ISO s BPMs relating to the exemption of Intermittent Resources from RSG charges. Protests were filed against the June 5 data response, and the Midwest ISO filed answers on June 10, 2009 and July 20, II. MOTION TO REJECT MOTION TO INTERVENE OUT OF TIME AND PROTEST A. MAG s Tardiness is Extreme and Inexcusable MAG s motion to intervene out of time and protest should be denied for being filed unreasonably out of time and without adequate justification. The Commission s rules allow for the Commission to grant late interventions only for good cause shown. 4 In this case, MAG fails to provide any adequate basis upon which to grant its untimely intervention and to consider its protest as part of this proceeding. There is no good cause excusing MAG s excessive tardiness. Soon after this docket was initiated almost four-years ago, MAG was already a Market Participant in the Midwest ISO as of June 1, 2006, and should have intervened by then to the extent that this proceeding involves Tariff provisions that could affect its subjection to RSG charges and costs. Moreover, the Midwest ISO s December 8 compliance filing initiated this sub-docket over eight months ago, yet MAG gives no reason why it was not monitoring such RSG-related developments at the Midwest ISO (which have been discussed extensively in stakeholder forums, and reported on the Midwest ISO s web site) and/or at the Commission C.F.R (2009). 3

4 In fact, as early as December 22, 2008, the Midwest ISO notified all Market Participants that the Midwest ISO was then making available estimates of the RSG resettlements resulting, among other things, from the November 7 Order. In addition, MAG actually received RSG charges reflecting the corrected rate calculation on settlement statements reflecting the corrected rate calculation of its RSG charges starting on January 6, 2009 almost seven months before MAG sought to intervene in this proceeding but MAG offers no explanation or excuse for its inaction during that period. Moreover, MAG also started receiving resettlement statements published on March 6, 2009, reflecting RSG Charges based on the updated rate calculation reflecting the interim RSG rate established by the November 7 Order, in relation to the November 10 Order issued by the Commission in Docket Nos. EL07-86, EL07-88 and EL MAG has therefore failed to show good cause for the Commission to forgive MAG s protracted delay in seeking to intervene in this matter. B. MAG s Belated Intervention is Disruptive and Prejudicial MAG s exceedingly late intervention is disruptive of this proceeding and prejudicial to the Midwest ISO, as it comes long after the December 8 compliance filing, and the Midwest ISO s February 24 and June 5 data responses, and far beyond the permissible period for protesting such filings. Moreover, MAG does not truly accept the record of this proceeding as it stands, but instead seeks to introduce and discuss the August 7 Order issued in an entirely different proceeding, Docket No. ER09-411, which involves the ASM markets that commenced on January 6, 2009, not the pre-asm Energy Markets involved in this proceeding. The Commission should not allow the record and resolution of the present proceeding to be disturbed by such an extraneous consideration. 5 Midwest Independent Transmission System Operator, Inc., 125 FERC 61,161 (2008) ( November 10 Order ). 4

5 C. MAG s Alleged Interests Are Adequately Represented By Other Intervenors Contrary to its claim, MAG s interests appear to be sufficiently represented by other Market Participants, who are already parties to this proceeding. This is clearly demonstrated by the fact that MAG s protest, in essence, merely incorporates by reference the earlier protests and additional filings made in this proceeding by several existing intervenors (EPIC Merchant Energy, LP, SESCO Enterprises, LLC, Solios Power, LLC, Argo Navis Fundamental Power Fund, L.P., Jump Power, LLC, JJR Power, LLC, AI Funds, Inc., Olde Towne Energy Associates, LLC, Energy Endeavors LP, JPTC, LLC, GLE Trading LLC, and Franklin Power LLC). Indeed, MAG s sparse description of its alleged interests (i.e., as a Market Participant engaged in both virtual and physical transactions ) is very general, 6 and as such does not identify interests that are any different from those of the parties whose protests MAG seeks to parrot needlessly. Thus, MAG has no distinct interests that would warrant or excuse its tardy intervention. III. ALTERNATIVE MOTION FOR LEAVE TO ANSWER AND ANSWER In the alternative, if the Commission accepts MAG s late intervention and protest, the Midwest ISO seeks leave to incorporate by reference herein the Midwest ISO s answers to the other protests that MAG adopts as its own. IV. SERVICE The Midwest ISO has served all parties provided in the Commission s eservice list for the above-referenced docket. In addition, the Midwest ISO notes that it has served a copy of this filing electronically, upon all Tariff Customers under the ASM Tariff, Midwest ISO Members, Member representatives of Transmission Owners and Non-Transmission Owners, the Midwest 6 MAG at 4. 5

6 ISO Advisory Committee participants, as well as all state commissions within the Region. In addition, the filing has been posted electronically on the Midwest ISO s website at under the heading Filings to FERC for other interested parties in this matter. V. CONCLUSION WHEREFORE, the Midwest ISO respectfully requests that the Commission deny MAG s motion to intervene out of time, and strike MAG s protest from the record in this proceeding. Respectfully submitted, /s/ Michael L. Kessler Michael L. Kessler Sejal C. Shah Duane Morris LLP 505 Ninth Street, N.W. Suite 1000 Washington, D.C Telephone: (202) Arthur W. Iler Assistant General Counsel Midwest Independent Transmission System Operator, Inc. 701 City Center Drive Carmel, Indiana Telephone: (317) Counsel for the Midwest Independent Transmission System Operator, Inc. September 1,

7 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 and all parties that have filed interventions to date. Dated at Washington, D.C., this 1st day of September, /s/ Sejal C. Shah Sejal C. Shah Duane Morris LLP 7