DEPARTMENT
Power Enterprise
AGENDA NO.
7 MEETING DATE November 14, 2023
AGENDA ITEM
Public Utilities Commission
City and County of San Francisco
Authorize Settlement of Litigated Claims with Pacific Gas & Electric Company
Summary of
Proposed
Commission Action:
Authorize settlement of claims for damages caused by the refusal of Pacific Gas & Electric (PG&E) to provide the SFPUC secondary voltage service under PG&E’s Wholesale Distribution Tariff ( Tariff) for some 30 megawatts (MW) of City load.
Background: In 2019, the City filed a complaint against PG&E with the Federal Energy Regulatory Commission (FERC) for PG&E’s refusal to allow the City to interconnect its new loads at secondary voltage unless the total electricity demand would be less than 75 kilowatts (kW). The vast majority of the City’s loads are small loads that can take wholesale distribution service from PG&E at secondary voltage levels. Typically, PG&E will c onnect its own retail loads of that are
up to 3MW at
secondary voltages.
The City claimed that this practice: (1) was unjust, unreasonable, and unduly discriminatory in violation of the Federal Power Act, and (2) violated the terms of the Tariff on file with FERC. The City alleged that the Tariff did not contain a 75 kW (or any) size limit on loads eligible for secondary service but required PG&E to evaluate applications for secondary voltage service when requested, and to expand its infrastructure when necessary to provide such service. The City further alleged that PG&E had categorically denied its applications for secondary-voltage service for demands above 75 kW while granting secondary-voltage service for much larger loads for its own retail customers and other wholesale customers.
FERC denied the City’s complaint without a hearing. FERC ruled that PG&E had the discretion to determine what level of service is most appropriate for a customer because the provider “is ultimately responsible for the safety and reliability of its distribution system.” FERC accepted PG&E’s argument that “primary service is the norm for utility-to-utility interconnections,” and distinguished the secondary service provided to retail customers and other wholesale customers whose service was governed by a settlement agreement . The City requested rehearing, which FERC denied. The City then appealed FERC’s decision to the United States Court of Appeals for the D.C.
Circuit. On appeal, the court overturned FERC’s denial of the complaint. The court found that PG&E’s 75 kW threshold for secondary service could not be enforced because it was not contained in the Tariff Agreement: Authorize Settlement of Litigated Claims in Excess of $25,000 in Favor of the City and County of San Francisco Against Pacific Gas & Electric Company
Commission Meeting Date: November 14, 2023
and had not been filed with FERC . While the court agreed primary voltage may be the industry norm for utility-to-utility interconnections, it found that FERC did not explain why an industry norm involving much larger electrical demands should apply to the much smaller City loads at issue in this case. The court also noted that this case, along with another one it addressed at the same time, “present a troubling pattern of inattentiveness to potential anticompetitive effects of PG&E ’s administration of its open -access Tariff.” The court vacated FERC’s order and remand ed the matter to FERC for further proceedings . On remand from the D.C. Circuit, FERC granted San Francisco’s complaint and set the case for a hearing to establish a factual record.
FERC subsequently granted t he City’s request for clarity on the potential remedies for the Complaint, stating that it had the authority to grant “ any remedy that may be appropriate based on the record developed through hearing procedures.”
The City’s complaint alleged PG&E harmed the City by: (1) requiring the City to incur unnecessary and excessive costs to serve its loads; (2) forcing the City to use space for unnecessary switchgear that could be used for critical facilities and functions; (3) caus ing excessive delays, and related costs, in bringing service to its loads; (4) forcing the City to allow some of its customers to take retail service from PG&E; and (5) requiring the City to install facilities in insecure and unreliable locations. The City alleged that the unnecessary costs
it incurred to
comply with PG&E’s demand that it take primary service exceeded $8 million.
The City and PG&E engaged in settlement discussions supervised by FERC and have agreed to settle this matter. In exchange for the City dismissing its complaint and waiving any claim for monetary relief, PG&E has agreed to allow the City to interconnect 30 MWs of secondary voltage service over the next five years . These loads must be metered and be one of the following: (1) existing points of delivery interconnected to PG&E at secondary voltage that undergo changes (e.g., an increase in electric demand or other change in electric service), (2) City departments or related public entities , or (3) private entities using City-owned property. Only 5 MWs of the 30 MW cap may be used to serve private entities on City-owned property.
Result of Inaction: Failing to approve this resolution would mean that the SFPUC could not seek Board of Supervisors approval for the proposed sett lement.
The matter would then be set for FERC hearings in which the City would have the burden of proving that PG&E’s violation of its Tariff caused the City to suffer compensable harm, proposing a form of relief, and proving that the nature and quantity of that relief is just and reasonable.
Budget & Costs: If the matter is not settled, the SFPUC will be required to take this matter to hearing at FERC and incur attorneys’ fees and costs.
Agreement: Authorize Settlement of Litigated Claims in Excess of $25,000 in Favor of the City and County of San Francisco Against Pacific Gas & Electric Company
Commission Meeting Date: November 14, 2023
Environmental
Review:
This action does not constitute a “project” under the California Environmental Quality Act (CEQA) Guidelines section 15378(a) because there would be no physical change in the environment.
Recommendation: SFPUC staff recommends that the Commission adopt the attached resolution.
Attachments: 1. 2019 City Complaint
2. FERC and Court Decisions
PUBLIC UTILITIES COMMISSION
City and County of San Francisco
RESOLUTION NO.
WHEREAS, The San Francisco Public Utilities Commission ( SFPUC) has jurisdiction over and operates and maintains the City and County of San Francisco (City) municipal electric distribution and service facilities; and
WHEREAS, Hetch Hetchy Power provides electric service to City departments; and WHEREAS, The vast majority of Hetch Hetchy Power customers are small loads that can take service at secondary voltage levels; and
WHEREAS, In 2017, PG&E started refusing to allow the City to take service at secondary voltages unless the loads were under 75 kilowatts (kW). Typically, PG&E will connect its own retail loads that are up to 3 megawatts (MW) at secondary voltages; and WHEREAS, In 2019, the City filed a complaint against PG&E with the Federal Energy Regulatory Commission (FERC) in which the City alleged that PG&E consistently refused to allow the City to interconnect its customers at secondary voltage unless the total electricity demand was less than 75 kW. The City alleged that PG&E refused to allow the City to take secondary voltage service for some 30 MWs of City load; and
WHEREAS, FERC denied the City’s complaint without a hearing.; and WHEREAS, The City requested rehearing, which FERC denied. Then the City appealed FERC’s decision to the United States Court of Appeals for the D.C. Circuit. On appeal, the court overturned FERC’s denial of the complaint. The court vacated FERC’s order and remanded the matter to FERC for further proceedings; and
WHEREAS, On remand from the D.C. Circuit, FERC granted San Francisco’s complaint and ordered the matter be set for hearing and settlement procedures before a FERC Administrative Law Judge; and
WHEREAS, The City and PG&E have agreed to settle this matter. In exchange for the City dismissing its complaint and waiving any claim for monetary relief, PG&E has agreed to allow the City to interconnect 30 megawatts of secondary voltage service over the next five years. The loads must be metered and in one of the following categories: (1) existing points of delivery interconnected to PG&E at secondary voltage that undergo changes (e.g., an increase in electric demand or other change in electric service), (2) City departments or related public entities, or (3) private entities using City-owned property. Only 5 MWs of the 30 MW cap may be used to serve private entities on City-owned property; and
WHEREAS, Pursuant to San Francisco Administrative Code section 10.24, the Board of Supervisors must approve the settlement of this claim; and WHEREAS, This action does not constitute a “project” under the California Environmental Quality Act (CEQA) Guidelines Section 15378(a) because there would be no phys ical change in the environment; and
WHEREAS, The settlement must also be approved by the FERC; now, therefore, be it RESOLVED, That this Commission finds that the terms of the settlement are reasonable and will benefit the San Francisco Public Utilities Commission and City departments that are its customers; and be it
FURTHER RESOLVED, That this Commission hereby authorizes the General Manager to seek Board of Supervisors approval of the settlement; and be it
FURTHER RESOLVED, That, upon approval of the Board of Supervisors, this Commission hereby authorizes the General Manager to execute such documents that may be necessary to effectuate the settlement approved herein , to enter into any amendments or modifications to the such documents that the General Manager determines, in consultation with the City Attorney, are in the best interest of the City; do not materially increase the obligations or liabilities of the City or materially diminish the benefits to the City; are necessary or advisable to effectuate the purposes and intent of the resolution; and are in compliance with all applicable laws, including the City Charter; and be it
FURTHER RESOLVED, That this Commission hereby authorizes the General Manager to work with PG&E to obtain any required approval of the settlement from FERC that is necessary under federal law.
I hereby certify that the foregoing resolution was adopted by the Public Utilities Commission at its meeting of November 14, 2023.
Secretary, Public Utilities Commission
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
City and County of San Francisco
Complainant
v.
Pacific Gas and Electric Company
Respondent
Docket No. EL19-___
COMPLAINT OF
THE CITY AND COUNTY OF SAN FRANCISCO
CHALLENGING INTERCONNECTION PRACTICES
OF PACIFIC GAS AND ELECTRIC COMPANY
UNDER WHOLESALE DISTRIBUTION TARIFF
TABLE OF CONTENTS
Page
I. INTRODUCTION AND SUMMARY .....................................................................2 II. COMMUNICATIONS .............................................................................................5 III. BACKGROUND ......................................................................................................5 A. The Parties .........................................................................................................5
1. The City and County of San Francisco .......................................................5
2. Pacific Gas and Electric Company .............................................................6 B. San Francisco’s and PG&E’s Overlapping Service Territories.........................7 C. PG&E’s Wholesale Distribution Tariff .............................................................7 D. San Francisco’s 2014 Wholesale Distribution Service Complaint and PG&E’s Replacement Agreements .............................................................8 IV. FACTUAL AND LEGAL BASIS FOR COMPLAINT ...........................................10 A. San Francisco’s Recent Efforts to Connect Customers Under the WDT .................................................................................................................. 10 1. PG&E Has Routinely Denied San Francisco’s Applications for Secondary Service ................................................................................12
2. PG&E Has Likewise Not Provided Primary Plus Service. .........................16
3. San Francisco Has Been and Will Continue to Be Harmed by PG&E’s Refusals to Provide Secondary Service or Primary Plus Service and Unreasonable Requirements for WDT
Service ................................
........................................................................17 B. PG&E’s Implementation of the WDT Violates the FPA, the WDT, and the WDT SA. ................................................................................... 20 1. PG&E’s Practice of Rejecting San Francisco’s Applications for Secondary Service Is Improper Under the WDT. .................................22 a) PG&E’s Tariff Requires It to Offer Secondary Service to San Francisco ................................................................ ......................23
ii
b) PG&E is Obligated to Upgrade or Expand its Secondary Distribution System in Order to Provide Secondary
Service under the WDT .......................................................................26
2. PG&E’s Tariff Requires PG&E to Provide Primary Plus
Service to San Francisco ............................................................................27
3. PG&E Has Imposed Impermissible Delays on Service to
San Francisco Loads. ..................................................................................31 V. REMEDIES ..............................................................................................................33 VI. THIS CASE IS RIPE FOR ADJUDICATION. ........................................................37 VII. OTHER INFORMATION REQUIRED BY RULE 206 ..........................................38 A. Good Faith Estimate of Financial Impact or Harm
(Rule
206(b)(4)) .................................................................................................38 B. Operational or Nonfinancial Impacts (Rule 206(b)(5)) .....................................39 C. Related Matters Pending in any Other FERC Case or Other Proceeding (Rule 206(b)(6)) .............................................................................. 39 D. Specific Relief or Remedy Requested (Rule 206(b)(7)) ...................................40 E. Documents Supporting the Complaint (Rule 206(b)(8)) ...................................40 F. Alternative Dispute Resolution (Rule 206(b)(9)) ..............................................41 G. Form of Notice (Rule 206(b)(10)) .....................................................................41 VIII. CONCLUSION .......................................................................................................41
EXHIBITS
Exhibit 1: Declaration of Barbara Hale
Exhibit 1, Attachment A: May 4, 2018 Letter from PG&E to Moser Exhibit 1, Attachment B: November 7, 2018 SFPUC Quarterly Report to the Board of Supervisors
Exhibit 2: Declaration
of Rod Maslowski
Exhibit 2, Attachment A: Electric Rule 2
Exhibit 3: Form of Notice of Complaint
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
City and County of San Francisco
Complainant
v.
Pacific Gas and Electric Company
Respondent
Docket No. EL19-___
COMPLAINT OF
THE CITY AND COUNTY OF SAN FRANCISCO
CHALLENGING INTERCONNECTION PRACTICES
OF PACIFIC GAS AND ELECTRIC COMPANY
UNDER WHOLESALE DISTRIBUTION TARIFF
Pursuant to Sections 206, 306, and 309 of the Federal Power Act (“FPA”), 16 U.S.C. §§ 824e, 825e, 825h, and Rule 206 of the Commission’s Rules of Practice and Procedure, 18 C.F.R. § 385.206, the City and County of San Francisco (“San Francisco” or the “City”) brings this Complaint against the Pacific Gas and Electric Company (“PG&E”). San Francisco requests that the Commission find that PG&E has unreasonably denied service to the City in violation of its open-access Wholesale Distribution Tariff (“WDT” or “Tariff”), and that it is implementing that Tariff in an unjust, unreasonable, and unduly discriminatory manner. As discussed below, the Commission should: (1) direct PG&E to comply with its Tariff by offering San Francisco the secondary and primary-plus wholesale distribution service provided for by the WDT; (2) direct PG&E to pay refunds to San Francisco consistent with the filed rate; and (3) take any such other actions that the Commission finds necessary or appropriate to address PG&E’s tariff violations and to assure that the WDT and PG&E’s implementation of that Tariff are just, reasonable, and not unduly discriminatory. - 2 -
I. INTRODUCTION AND SUMMARY
PG&E and San Francisco both serve loads within the City and County of San Francisco and have done so for nearly a century. San Francisco, however, lacks a c
omprehensive distribution system within the City and relies on PG&E to distribute the City’s electricity to its customers. As a result, PG&E has always served a dual role—both as a competitor of the City and as a provider of wholesale distribution service that the City must use to serve its customers. When PG&E imposes “unjust, unreasonable, unduly discriminatory or preferential,” 16 U.S.C. § 824e(a), requirements on wholesale distribution service that prevent San Francisco from serving a customer, that customer becomes a PG&E retail customer.
For decades, San Francisco purchased transmission and distribution services from PG&E pursuant to a series of
bilateral agreements that allowed it to deliver power to individual customers scattered throughout the City. The last such agreement terminated on June 30, 2015. Since then, San Francisco has relied on PG&E’s WDT for service over PG&E’s distribution facilities.
San Francisco has not seen the fairer, less discriminatory service the Commission intended from open access tariffs, like the WDT. Instead, the City has encountered barriers to service that are neither required by PG&E’s WDT nor imposed on PG&E’s other WDT customers. PG&E has imposed requirements that are contrary to the express terms of its Tariff and unnecessary from a technical standpoint, improperly burdening the City’s efforts to interconnect its loads. These discriminatory requirements constitute an effective denial of service to San Francisco in violation of PG&E’s Tariff. - 3 -
The most egregious of these denials of service is PG&E’s refusal to provide San Francisco with the secondary and primary plus WDT service offered by the Tariff for small City customers, and its corresponding demand that San Francisco instead take primary WDT service. Primary service connections require facilities that are substantially more expensive, take much longer to construct, and occupy more space than the facilities required for secondary connections. While primary service connections are appropriate for large loads, there is no technical, safety, or reliability purpose for requiring primary service connections for much smaller loads. Nor is there a basis for requiring primary service connections for small loads in PG&E’s Tariff. Most of San Francisco’s thousands of points of delivery within the City are small loads for which secondary connections are appropriate—e.g., individual schools, health clinics, libraries, affordable housing buildings, playgrounds, swimming pools, police stations, and public restrooms (indeed,
these currently receive secondary service at hundreds of locations).
Moreover, PG&E does not impose this blanket requirement for primary service on other wholesale customers or on its own retail loads. PG&E is demanding primary service—and thus large, primary facilities—for City loads as small as 75 kW, and sometimes even smaller. Yet for its own retail customers, PG&E does not require this same large, expensive equipment unless the load is 3,000 kW or larger—40 times the 75- kW threshold above which PG&E routinely applies the requirement to the City’s loads.
When pressed, PG&E has referred to these primary facilities as equipment that, in PG&E’s view, utilities like San Francisco should own.1 But the terms and conditions of
1 See May 4, 2018 Letter from PG&E to Deputy Chief Bob Moser, City and County of San Francisco Police Department, Attachment A to Exhibit 1, Declaration of Barbara Hale, to this Complaint (“May 4, 2018 Letter”) (“In our view, project delays, like those being described at 350 Amber, derive directly from - 4 -
wholesale distribution service are defined under PG&E’s Tariff on file with the Commission—not PG&E’s view of what it means to be a “utility.” San Francisco stands ready to comply with the requirements in PG&E’s Tariff regarding eligibility for WDT service, but it should not need to install costly additional equipment that is not required by the Tariff and that is unnecessary from a technical perspective to get service under the Tariff.
At heart, PG&E’s actions are predatory and anticompetitive. PG&E’s blanket requirement of primary service for new loads and for existing customers whenever they modify their electric service has resulted in significant cost differences and service delays compared to what PG&E is obligated to provide under its Tariff. PG&E is using its position as administrator of an open-access tariff to inflate the costs to San Francisco of serving City customers and to delay service to the City. This leaves City customers that need service within a reasonable timeframe—i.e., the timeframe contemplated by the Tariff—or that seek to avoid exorbitant and unexpected interconnection costs, with no option but to become PG&E retail customers. This competitive harm, which open-access tariffs were intended to eliminate, is not just theoretical. San Francisco has already lost customers to PG&E as a result of these practices. Nor is it unintended; PG&E has been clear in communications to at least one San Francisco customer that it can provide PG&E retail service more quickly than San Francisco can obtain WDT service from PG&E.
[San Francisco Public Utilities Commission’s (“SFPUC”)] refusal to take on the obligations required of any other utility, in this case owning primary switchgear.”); San Francisco Government TV, Board of Supervisors – Public Safety and Neighborhood Services Committee – Regular Meeting (June 13, 2018), http://sanfrancisco.granicus.com/player/clip/30791?view_id=178 (“June 13, 2018 Public Safety and
Neighborhood Services Committee Hearing”) at 57:35 (Testimony of Jess Brown, PG&E) (“In our view, these project delays derive from SFPUC’s desire to have PG&E deliver energy to the City at lower cost wholesale rate without the SFPUC having to take on the obligations required of any other utility.”). - 5 -
The Commission should find that PG&E’s implementation of the WDT with respect to San Francisco is unjust and unreasonable, unduly discriminatory, and anticompetitive; and it should direct PG&E to modify those practices as described herein.
II. COMMUNICATIONS
The names and addresses of the individuals to whom communications related to this proceeding should be addressed are as follows:2
Thomas C. Trauger
William S. Huang
Katharine M. Mapes
Jeffrey M. Bayne
SPIEGEL & MCDIARMID LLP
1875 Eye Street, NW
Suite 700
Washington, DC 20006
Phone: (202) 879-4000
[email protected]
[email protected]
[email protected]
[email protected]
Dennis J. Herrera, City Attorney
Theresa L. Mueller
Deputy City Attorney
William K. Sanders
Deputy City Attorney
SAN FRANCISCO CITY ATTORNEY’S OFFICE
City Hall, Room 234
San Francisco, California 94102
Phone: (415) 554-4640
[email protected]
[email protected]
Pamela M. Husing
Director, Wholesale and Retail Services, Power
SAN FRANCISCO PUBLIC UTILITIES COMMISSION
525 Golden Gate Avenue, 7th Floor
San Francisco, California 94102
Phone: (415) 554-2469
[email protected]
III. BACKGROUND
A. The Parties
1. The City and County of San Francisco
The City is a municipal corporation organized and existing under the laws of the State of California. San Francisco owns and operates an electric utility that is managed by
2 To the extent necessary, San Francisco respectfully requests waiver of Rule 203(b)(3) of the Commission’s regulations, 18 C.F.R. § 385.203(b)(3), so that a copy of any communications in this proceeding may be served on all persons listed.
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the San Francisco Public Utilities Commission (“SFPUC”), a City department that is responsible for the construction, management, operation, and use of all City properties, assets, and facilities used to provide utility services, including water, wastewater, and power.
The Raker Act of 1913 gave the City the right and obligation to develop a water and power supply system on City-owned and federal lands in and near Yosemite National Park and the Stanislaus National Forest.3 Pursuant to the Raker Act, San Francisco owns and operates the Hetch Hetchy system, a non-jurisdictional water and power project consisting on the power side of three reservoirs and three hydroelectric generating plants in Tuolumne County, California, as well as transmission and distribution facilities.
The
Raker Act requires San Francisco to use power from the system first to serve its municipal public purposes, both within and outside of San Francisco. The Raker Act also allows San Francisco to use the power generated by Hetch Hetchy facilities to serve any other end-use customers. San Francisco’s customer base is largely City departments and related public entities, entities providing service on behalf of or in coordination with the City, and tenants on City property.
2. Pacific Gas and Electric Company
PG&E is an investor-owned utility subject to the Commission’s jurisdiction. It has numerous tariffs and agreements on file with the Commission, including the WDT, which is relevant to this Complaint. PG&E serves about 5.1 million electricity distribution
3 H.R. 7207, 63d Cong. (2d Sess. 1913).
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customers in Northern and Central California, and it reported gross electricity sales within the City of over $770 million in 2016 (the most recent year reported).4 B. San Francisco’s and PG&E’s Overlapping Service Territories PG&E and the City are competitors. For nearly 100 years, both have served customers within San Francisco. PG&E does so pursuant to a franchise agreement with the City. The City does so under authority granted to it in the State of California Constitution (art. XI, § 9), the Raker Act, and the San Francisco Charter (§§ 4.112, 8B.120-127, 16.101).
Since 1925, the City has purchased transmission and distribution service under various agreements with PG&E to serve its customers in San Francisco. The last of those agreements expired on June 30, 2015 (“1987 IA”).5 Since then, San Francisco has purchased transmission service under the California Independent System Operator (“CAISO”) Tariff and distribution service under PG&E’s WDT.
C. PG&E’s Wholesale Distribution Tariff
PG&E’s WDT became effective on April 1, 1998, when the CAISO assumed operational control of PG&E’s transmission facilities. According to PG&E, the WDT “was designed to provide eligible wholesale customers interconnected to PG&E’s distribution system with open-access, non-discriminatory service necessary to reach the
4 City & Cty. of S.F., Office of the Controller, City Services Auditor, Pacific Gas and Electric Company Properly Paid Its Franchise Fees and Surcharges for 2015 and 2016 7 (Dec. 21, 2018), http://openbook.sfgov.org/webreports/details3.aspx?id=2661. 5 The 1945 Interconnection Agreement followed the United States Supreme Court’s finding that a prior agreement between the City and PG&E violated the Raker Act, because it required the City to sell its electricity directly to PG&E for delivery to PG&E customers within the City. U.S. v. City & Cty. of S.F., 310 U.S. 16 (1940).
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CAISO-controlled grid to make wholesale sales and purchases.”6 The “WDT is based on the Commission’s Order No. 888-A Open Access Transmission Tariff.”7 It provides two different distribution service rates: one rate for points connected at higher-level “primary voltage,” either directly or via dedicated facilities; and a second rate for points connected at lower “secondary voltage.” WDT, Schedule WD-1, Section 2. It also provides for “Cost of Ownership” charges to compensate PG&E for the costs of owning and operating any dedicated “Direct Assignment Facilities” for the specific point. Id. Section 3.
PG&E filed revisions to its WDT most recently in 2013, at which time it substantially revised its terms, conditions, and rates. San Francisco was a party to that proceeding and, along with other participants, reached a settlement with PG&E as to the rates and terms of the Tariff. The Commission accepted that settlement in July 2015.8 D. San Francisco’s 2014 Wholesale Distribution Service Complaint and PG&E’s Replacement Agreements
On November 27, 2013, San Francisco applied for distribution service under the WDT for the distribution loads that were being served under the expiring 1987 IA. On October 9, 2014, after nearly a year of unsatisfactory progress in PG&E’s processing of San Francisco’s
application for WDT service, San Francisco filed a complaint against PG&E with this Commission, alleging that PG&E had improperly failed to tender service agreements to San Francisco pursuant to its WDT (“2014 Complaint”).9 PG&E
6 Pac. Gas & Elec. Co., Proposed Rate and Non-rate Changes to the Wholesale Distribution Tariff, FERC Electric Tariff Volume No. 4 and Related Service Agreements for Wholesale Distribution Service 2, Pac.
Gas & Elec. Co., Docket No. ER13-1188-000 (Mar. 29, 2013), eLibrary No. 20130329-5091. 7 Id.
8 Pac. Gas & Elec. Co., 152 FERC ¶ 61,010 (2015).
9 San Francisco, Formal Complaint, City & Cty. of S.F. v. Pac. Gas & Elec. Co., Docket No. EL15-3-000 (Oct. 9, 2014), eLibrary No. 20141010-5047.
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subsequently unilaterally filed a set of unexecuted replacement agreements, including a Wholesale Distribution Tariff Service Agreement (“WDT SA”); a Wholesale Distribution Tariff Interconnection Agreement (“WDT IA”); a Transmission Interconnection Agreement (“TIA”); and five Transmission Facilities Agreements for specific transmission-level interconnections between the PG&E and San Francisco systems.10 After San Francisco protested the unexecuted agreements, the Commission suspended those agreements for a nominal period to become effective July 1, 2015, subject to refund, and consolidated the unexecuted agreement dockets with San
Francisco’s 2014 Complaint docket.11
In May 2016, the Commission held a hearing in the consolidated proceedings.
While numerous issues were contested, the central issue concerned San Francisco’s eligibility for service under the WDT for certain loads under Section 212(h) of the FPA, 16 U.S.C. § 824k(h). PG&E and San Francisco disagreed, in particular, on which City customers are eligible for wholesale distribution service without the need for intervening facilities and on the type of intervening facilities required for other customers.
The
Honorable Steven L. Sterner issued an Initial Decision in the case on November 15, 2016.12 Briefs on and opposing exceptions by San Francisco, PG&E, and Commission Trial Staff are currently pending before the Commission in Docket Nos. EL15-3, et al.13
10 Pac. Gas & Elec. Co., Docket Nos. ER15-704-000 and ER15-705-000. 11 City & Cty. of S.F. v. Pac. Gas & Elec. Co., 150 FERC ¶ 61,255 (2015). 12 City & Cty. of S.F. v. Pac. Gas & Elec. Co., 157 FERC ¶ 63,021 (2016). 13 The issues identified in this complaint were not addressed in the 2014 Complaint and will not be decided by the Commission’s decision in that matter. In Part VI, below, San Francisco details why this Complaint is ripe for adjudication despite the pendency of that proceeding. - 10 -
IV. FACTUAL AND LEGAL BASIS FOR COMPLAINT
A. San Francisco’s Recent Efforts to Connect Customers Under the WDT
Since July 1, 2015, when San Francisco began taking distribution service under the WDT, PG&E has delayed service and created unnecessary barriers for San Francisco to interconnect new customers and to serve existing customers when the City has requested even small modifications to their interconnections to accommodate changes to their facilities. In particular, as discussed below, PG&E has rejected a substantial portion of the City’s applications for secondary service under the WDT since July 2015, and nearly every secondary service application since November 2017 for loads above 75 kW.
In each of those cases, PG&E has taken the position that the City must apply for and agree to take primary service if it wants to serve those loads.
Primary service requires the City to install facilities that are inappropriate and disproportionately large and expensive given the size and nature of the City loads in question.14 San Francisco has applied for primary service for large loads and has planned for and constructed the large, expensive facilities required for those City customers. But PG&E has consistently insisted that the City also take primary service for City loads over 75 kW, and for some smaller loads,15 even though PG&E requires its own retail customers to install similar facilities only when their loads reach the neighborhood of 3,000 kW.16
14 Declaration of Rod Maslowski, Exhibit 2 to this Complaint, PP 12-18. (“Maslowski Declaration”). 15 See November 7, 2018 SFPUC to the Board of Supervisors (Attachment B to Exhibit 1, Declaration of Barbara Hale, to this Complaint), Att. A, which summarizes the City’s attempts to obtain WDT service (“SFPUC Report”).
16 Maslowski Declaration, PP 7-8.
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For the relatively small City loads at issue, there is no technical, safety, or reliability purpose for requiring primary service.17 PG&E does not dispute this; it testified before the San Francisco Board of Supervisors Public Safety and Neighborhood Services Committee that “it doesn’t really come down to . . . a technical question . . . it’s a policy question.”18 But PG&E’s “policy” on how to implement WDT service to San Francisco—which appears nowhere in the WDT—imposes substantial and unjustified costs on the City and the services it provides. Secondary switchgear generally costs about $50,000, but primary switchgear generally costs about $500,000.19 Primary service with secondary metering (which, as described below, the City has sometimes offered when PG&E has denied secondary service) requires secondary switchgear plus about $75,000 for an interrupter.
20 In addition, in San Francisco’s dense, built-up urban environment, installing such costly, oversized facilities requires time-consuming and expensive redesign of the interconnection and, in many instances, the buildings intended to be served.
21 Whereas secondary facilities can be about the size of half of a parking space, primary facilities can be the size of a one-bedroom apartment.22 In some cases it has been impossible to find space to install the equipment PG&E is demanding.23
17 Maslowski Declaration, PP 12-13.
18 June 13, 2018 Public Safety and Neighborhood Services Committee Hearing at 1:05:35 (Testimony of John Klavdianos, PG&E).
19 Declaration of Barbara Hale, Exhibit 1 to this Complaint, P 5 (“Hale Declaration”). 20 Id.
21 Hale Declaration, P 8.
22 Barbara Hale, Public Safety Committee Hearing, Affordable Access to the Power Distribution Grid 8 (June 13, 2018), https://sfgov.legistar.com/View.ashx?M=F&ID=6317715&GUID=FB46AE21-B2F8- 4B1E-AA7A-43312E7AD851 (“June 13, 2018 SFPUC Presentation”). 23 Hale Declaration, P 10.
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Because of this PG&E practice, San Francisco has paid excessive and unnecessary costs and experienced extended delays in receiving WDT service. And in several cases, because the San Francisco customers at issue provide critical services— like affordable housing, public safety, and homeless services—the City could not afford to wait for resolution of disputes with PG&E. Instead, the City was forced to give up serving those customers, either temporarily or permanently allowing them to be served by P
G&E to avoid the delay and costs associated with PG&E’s demands if the customer were served by the City. In other instances, the City has been able to obtain WDT service from PG&E, but only because of the City’s persistence and, more importantly, acceptance of burdensome terms and conditions that PG&E has demanded even though they are not required by the WDT.
1. PG&E Has Routinely Denied San Francisco’s Applications for Secondary Service
During the more than three years the City has been applying to connect new and modified loads under PG&E’s WDT, a consistent pattern has developed. First, when the City applies for secondary service, PG&E will routinely deny the application or say it is
incomplete, insisting that secondary service is not available under the WDT and/or that PG&E’s existing facilities do not have sufficient capacity to provide secondary service to the new or modified loads. PG&E will demand that San Francisco take primary service inst
ead. As discussed in the attached Declaration of Barbara Hale, this has happened for 50 out of 122 of the secondary service applications that the City has submitted to PG&E since July 2015, and an even higher percentage since November 2017.24 Since November
24 Hale Declaration, P 7. To be clear, PG&E’s increasing refusal to provide WDT secondary service is not based on any change in its Tariff on file with the Commission; there have been no changes to PG&E’s - 13 -
2017, PG&E has consistently required primary service for all loads over 75 kW.25 From July 2018 through October 2018, two that two-thirds of the City’s active applications for new or modified WDT service fell into this category, including applications for construction or renovations of parks, schools, housing projects, water and wastewater facilities, and
police and public safety facilities.26
Second, to avoid further delays in service, the City has sometimes modified its service request by: (1) offering to install a new transformer, which the City will own; and (2) asking PG&E to allow for the use of secondary switchgear and metering.27 Although these modifications are not required under PG&E’s Tariff, the City has offered them in attempts to move forward critical projects,
including projects for public housing, public
schools, public safety, and homeless services. PG&E will again reject this modified offer and insist that the City install primary switchgear and metering, in addition to a new transformer, despite the substantial increase in cost and space requirements this imposes and, in many cases, the resulting need to redesign the structures that will receive the electric service.28
Third, the City will inform PG&E that it has inspected the site and determined that there is no space for the primary switchgear PG&E is insisting on, or that such
WDT since July 2015.
25 Hale Declaration, P 7.
26 See SFPUC Report. The SFPUC Report does not address every instance of a WDT service dispute, but it details the 45 projects for the reporting period of July 2018 through October 2018 experiencing interconnection issues due to delays, arbitrary requests, or increased project costs. SFPUC Report, Attachment A, B, and D. Id. Att. A rows 1-4, 6, 9, 14-15, 18, 24-30, and 45 show projects where San Francisco has requested a new secondary service, and PG&E has required primary service. Rows 7-8, 21 -23, 33, and 35-41 show instances where the City has sought to relocate, replace, and/or upgrade existing secondary service, and PG&E has required primary service. 27 Hale Declaration, P 9.
28 Id.
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switchgear would have to be located in an inappropriate or unsafe location.29 For example, with projects involving renovations or improvements to schools, the City has explained that the California Department of Education enforces certain classroom and physical education space requirements.
30 Open space around educational facilities is
necessary to meet building code standards or is designated recreational space for students, and placing large, primary switchgear adjacent to recreational spaces would raise concerns for student
safety.31 Space concerns for the oversized equipment PG&E is demanding have also affected projects related to affordable housing,32 healthcare,33 and law enforcement.34
Ultimately, after months of delays and mounting costs, PG&E may agree either to provide secondary service using PG&E’s common facilities or a secondary voltage connection using a PG&E-owned transformer dedicated to the City (as discussed below, PG&E and the City refer to the latter as “primary plus” service). Or PG&E may agree to allow the City to install its own transformer but use secondary metering and switchgear.35 The number of instances where PG&E has agreed to provide secondary service or primary plus service is small. Of the projects covered in the SFPUC Report that involved disputes over PG&E’s initial insistence on primary service, two of the disputed locations
29 Id., P 10.
30 Id.
31 Id.
32 SFPUC Report, Att. A, rows 1-4.
33 Id. Att. A, row 6.
34 Id. Att. A, row 9.
35 In such instances, the City has made it clear that it will compensate PG&E for any unmetered loses due to the use of secondary metering, so that PG&E is made whole financially. - 15 -
are moving forward at secondary service.36 More often, PG&E has agreed to allow the project to move forward with a City-owned dedicated transformer and secondary metering and switchgear, but only after lengthy and costly delays.37 In other cases, PG&E continues to insist on primary service and primary switchgear, and those projects remain at a standstill.38 This is true for a variety of projects related to education, healthcare,39 law enforcement,40 and affordable housing,41 where the oversized equipment PG&E demands would take up significant and unacceptable space at those locations. These concerns about space restrictions would not exist had PG&E granted San Francisco’s initial request for secondary service, as is provided for under PG&E’s Tariff.
In still other instances, San Francisco could no longer wait for PG&E to agree to provide WDT service, and the City therefore was forced to drop its WDT application.
Those City customers will instead become PG&E retail customers.42 Indeed, for one project, PG&E staff informed electrical staff at the City’s Public Works Department that
36 SFPUC Report, Att. A, rows 21, 45
37 This happened at 14 of the disputed applications listed in the SFPUC Report. Id. Att. A, rows 8 (project moving forward at secondary metering); 15 (same), 18 (same), 23 (same), 25 (same), 26 (same), 30 (same), 33 (PG&E has recently indicated project can move forward at secondary metering), 35 (same), 36 (project moving forward at secondary metering), 37-41 (same).
38 See, e.g., SFPUC Report, Att. A, row 7.
39 See, e.g., id. Att. A, row 6 (“If required, primary switchgear will take the place of several parking spaces in an already constrained lot.”).
40 See, e.g., id. Att. A, row 9 (“If required, primary switchgear will take the space of parking spaces for [San Francisco Police Department] vehicles.”).
41 See, e.g., id. Att. A, row 2-4 (If required, primary switch gear would take the place of “a community room,” “childcare space,” and “on-site supportive services” at the three projects, respectively). 42 Id. Att. A, rows 1-4, 19, 20, and 35 (showing examples where temporary construction power served by PG&E at retail). Id. Att. D shows that these projects have a combined $280,000 increase in costs due to PG&E’s higher retail rates.
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retail service could begin sooner than WDT service.43 PG&E retail service to all of those customers has not yet commenced; but for those that are already receiving power from PG&E or for which PG&E has provided interconnection specifications, PG&E is not installing the same oversized, inappropriate interconnection facilities that it was de
manding that San Francisco install to serve those loads.44 To date, PG&E’s discriminatory primary facilities requirement has affected the City’s efforts to develop new low-income housing,45 upgrade educational facilities,46 and affected many other types of projects as well.47
2. PG&E Has Likewise Not Provided Primary Plus Service.
Even were secondary service not appropriate in a given case, the WDT provides for another option—“primary plus” service. Under that arrangement, San Francisco pays the WDT’s lower primary service rate, plus Cost of Ownership charges for any Direct Assignment Facilities owned by PG&E and used only to serve San Francisco. Primary plus service would be preferable to primary in many cases in which PG&E has rejected San Francisco’s secondary service applications. But, PG&E has routinely refused to construct or o
wn the directly assigned facilities needed to provide “primary plus” tariff service to San Francisco.48
43 Hale Declaration, P 28.
44 Id., PP 26-28(discussing the Central Waterfront Navigation Center, which the City ultimately was forced to allow PG&E to serve as a retail customer because of the lack of progress). 45 SFPUC Report, Att. A, rows 1-4, 18-23.
46 Id. Att. A, rows 7, 34, 37-39.
47 Id. Att. B (showing a map of the housing, infrastructure, health, institutional, and recreation projects facing interconnection issues).
48 PG&E has agreed to Primary Plus service in few instances after months of negotiations. See Hale Declaration, P 11.
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3. San Francisco Has Been and Will Continue to Be Harmed by PG&E’s Refusals to Provide Secondary Service or
Primary Plus Service and Unreasonable Requirements for
WDT Service
PG&E’s requirement that San Francisco take primary service for small loads has harmed and will continue to harm San Francisco by denying it service as provided for under PG&E’s Tariff. Primary service for small loads can (1) require San Francisco to incur unnecessary and excessive costs to serve its loads; (2) force San Francisco to use space for unnecessary switchgear that could be used for critical facilities and functions; (3) cause excessive delays, and related costs, in bringing service to its loads; (4) force San Francisco to allow some of its customers to take retail service from PG&E; and (5
) require San Francisco to install facilities in less secure and reliable locations. Because of PG&E’s unreasonable, extra-tariff requirements, San Francisco has paid excessive and unnecessary costs and experienced extended delays in receiving WDT service.49 PG&E’s arbitrary requirements make it unduly expensive or impractical for customers to take electric service from the City. By refusing to make secondary service or primary plus service available under its WDT, PG&E has forced the City and its c
ustomers to spend time and resources to develop and propose to PG&E alternative designs in an attempt to move important projects forward (despite the fact that these alternative designs are more burdensome than what is required for secondary service under PG&E’s tariff). The redesign costs alone total $372,000, and there have been close
49 For the projects covered in the SFPUC Report, the SFPUC estimates total additional project costs of $4,773,000 at the time of the report. This figure does not include lost revenue to the SFPUC or the increase in carbon dioxide emissions caused by projects taking PG&E retail services rather than service from the SFPUC.
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to $1 million in additional construction and project management costs due to delays.50 This is on top of the additional costs for equipment and construction due to PG&E’s refusal to provide WDT secondary service. At an affordable housing project at 1950 Mission Street, for example, the developer had to spend an additional $545,000 to design and install primary equipment
after PG&E rejected a reasonable request for secondary
service.51 In addition, the developer had to use 720 square feet of space for the primary equipment—space that the developer had planned to use for a childcare facility.52 PG&E’s practices have also caused excessive delays, well beyond the timeline for processing applications required under the Tariff. At least eight projects where PG&E refuses to allow secondary service under the WDT remain at a standstill.53 Some of these applications have been pending for nearly a year,54 despite the much shorter timeline provided for under the WDT.55 Even in the few instances where PG&E ultimately agreed to secondary service after initially stating that primary service was required, the projects faced substantial delays that should not have occurred in the first place. For example, WDT service to a low-income housing project was in dispute for 20 months before PG&E agreed to allow the project to move forward with secondary service, resulting in delays to “[s]tructural, safety, security, and aesthetic upgrades” and $240,000 in costs
50 SFPUC Report, Att. D.
51 Id. Att. D, row 1.
52 Id. Att. A, row 1.
53 Id. Att. A, rows 2-4, 6-7, 9, 19-20.
54 See, e.g., id. Att. A, row 2 (a project with an initial application submittal date of January 16, 2018). 55 See id. Att. D (outlining the process timeline under the WDT); WDT §§ 15.4, 15.5, 15.6, 16.1, 16.3, 16.4,
16.7. - 19 -
related to redesign and delay.56 And even where the City and PG&E have reached agreement on certain projects, PG&E has delayed providing service agreements within the time period required by the WDT.57
The City is also harmed when the delays and obstacles that PG&E has imposed on open-access WDT service have forced the City to withdraw its secondary service applications entirely and to allow the loads at issue to be served by PG&E as retail customers instead.
58 For example, PG&E has repeatedly denied the City’s secondary service applications for temporary construction loads and demanded that the City take primary service instead. Because these construction projects are on a tight schedule, and in light of PG&E’s long delays in processing the City’s WDT service requests, San
Francisco has dropped its WDT applications for these loads, and the City’s customers will instead purchase more expensive retail electric service from PG&E.59 Because San Francisco’s municipal public purpose loads serve critical public ne
eds, in order to expedite service San Francisco has made substantial efforts, at substantial cost, to resolve its disagreements with PG&E regarding WDT service. The City’s lengthy negotiations and delays for individual points of delivery, acceptance of
56 SFPUC Report, Att. A, row 21.
57 Hale Declaration, P 6 (discussing examples where PG&E has failed to provide service agreements in a timely manner); WDT § 15.6 (requiring PG&E to send a customer a draft Service Agreement no later than ninety days after the customer is notified that an application is complete if no System Impact Study is required); WDT § 16.1(requiring PG&E to notify a customer a draft System Impact Study Agreement within thirty days of notifying the customer that its application is deemed complete); WDT § 16.3 (requiring PG&E to send the customer a draft Service Agreement no later than thirty days after sending the customer the completed System Impact Study).
58 See, e.g., SFPUC Report, Att. A, row 35 (project taking PG&E retail service due to delays to San Francisco’s WDT service request).
59 Id. Att. A, rows 1-4, 19, 20, and 35 (showing examples where temporary construction power served by PG&E at retail). Id. Att. 4 shows that these projects have a combined $280,000 increase in costs due to PG&E’s higher retail rates.
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expensive and unwarranted equipment requirements,60 and withdrawal of applications to allow customers to be served by PG&E at retail would not occur if PG&E provided secondary service or primary plus service under the terms and conditions of its Tariff.
These unnecessary costs are borne either by the City, or passed onto the City’s customers—
schools, police stations, low-income housing, and other municipal public purpose loads.
B. PG&E’s Implementation of the WDT Violates the FPA, the WDT, and the WDT SA.
The Commission adopted its open-access policies in order to “remove impediments to competition in the wholesale bulk power marketplace and to bring more efficient, lower cost power to the Nation’s electricity consumers” and to “remedy undue discrimination in access to the monopoly owned transmission wires that control whether and to whom electricity can be transported in interstate commerce.” 61 Contrary to these
goals, PG&E is using its position as administrator of its open-access WDT to impose unjus
t, unreasonable, and unduly discriminatory requirements on San Francisco, which competes with PG&E for retail customers.
PG&E’s denials of the secondary and primary plus service provided for by the WDT, and its long delays in processing San Francisco’s WDT service applications, have created artificial barriers to the WDT’s open-access service, significantly increasing the
60 Id. Att. D (showing total additional project costs of $4,773,000 for the projects reported on for July 2018 to October 2018).
61 Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities , Order No. 888, 75 FERC ¶ 61,078, FERC Stats. & Regs. ¶ 31,036, at 31,634, clarified, 76 FERC ¶ 61,009 (1996), modified, Order No. 888-A, 78 FERC ¶ 61,220, order on reh’g, Order No. 888-B, 81 FERC ¶ 61,248 (1997), order on reh’g, Order No. 888-C, 82 FERC ¶ 61,046 (1998), aff’d in part and remanded in part sub nom. Transmission Access Policy Study Grp. v. FERC, 225 F.3d 667 (D.C. Cir. 2000), aff’d sub nom. New York v. FERC, 535 U.S. 1 (2002) (“Order 888”).
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City’s costs of serving its customers. And if San Francisco is unable or cannot afford to serve a particular load due to the improper, non-Tariff restrictions PG&E has imposed upon WDT service, that San Francisco retail customer will become a PG&E retail customer instead.62 San Francisco has already lost customers to PG&E as a result of PG&E’s practices.63
These PG&E practices are: (1) contrary to the FPA, PG&E’s WDT, and the terms of the unexecuted WDT SA PG&E filed in 2014; (2) inconsistent with the requirements that PG&E imposes on itself and other customers to which it provides distribution service; (3) not justified by any engineering, safety, or reliability concerns; and (4) not reasonably related to any other legitimate Tariff objectives.64 The Commission should reject them and direct PG&E to comply with its Tariff.65 Further, the Commission should
62 This is not accidental. PG&E does not separate functions under the WDT, so in many cases the same PG&E employees are responsible for connecting San Francisco customers under the WDT and PG&E retail customers. At the same time those employees delay or deny WDT service to San Francisco, they have reached out to San Francisco’s customers promising them faster connections if the customer becomes a PG&E retail customer instead. Hale Declaration, P 28.
63 Hale Declaration, PP 25-30.
64 See Mid-Continent Area Power Pool Agreement, 58 F.P.C. 2622, 2635 (1977), in which the Commission rejected Mid-Continent Area Power Pool’s (“MAPP”) proposed membership criteria that provided full membership and access to certain MAPP services only to generation-owning electric systems configured with two or more interconnections to other utilities. The Commission’s ruling, which the D.C. Circuit upheld, was that the two-interconnection requirement was not “reasonably related to the MAPP objectives” as Systems with only one interconnection were therefore entitled to become full MAPP members, so long as they provided compensation for the value of the transmission service they received under the MAPP Agreement. Id.; Cent. Iowa Power Coop. v. FERC, 606 F.2d 1156, 1170-1172 (D.C. Cir. 1979); see also Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities, Recovery of Stranded Costs by Public Utilities and Transmitting Utilities; Proposed Rulemaking and Supplemental Notice of Proposed Rulemaking, 60 Fed. Reg. 17662, at 17677 (proposed Apr. 7, 1995) (“Order 888 NOPR”) (noting that “allow[ing] access, but only . . . on terms and conditions
that have no operational or financial basis” is a “way for transmission-owning utilities to frustrate access and competition,” and adopting open access reforms to prevent such abuses). 65 See, e.g., Transcontinental Gas Pipe Line Corp., 71 FERC ¶ 61,266, at 61,059 (1995); Nine Mile Point Nuclear Station, LLC v. Niagara Mohawk Power Corp., 105 FERC ¶ 61,336, PP 38-39 (2003); Am. Elec.
Power Serv. Corp., 106 FERC ¶ 61,020, P 21 (2004) (recognizing the Commission’s authority to enforce compliance with the tariffs).
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ensure that PG&E’s business practices, and the technical requirements it imposes as a condition of receiving WDT service, are just and reasonable.66
1. PG&E’s Practice of Rejecting San Francisco’s Applications for Secondary Service Is Improper Under the WDT.
PG&E’s actions described above are not based on the requirements of its Tariff.
Instead, it has characterized these actions as “deriv[ing] directly from SFPUC’s refusal to take on the obligations required of any other utility.”67 But PG&E cannot deny tariff service on the basis of what it believes other utilities should own or the services they ought to take; it must abide by the terms of its Tariff. PG&E’s reflexive denials of San Francisco’s applications for secondary service violate the Tariff and are inconsistent with the WDT SA, PG&E’s testimony before the Commission on how PG&E would
administer the Tariff, and PG&E’s practices with other WDT customers. Denying
66 FPA § 206(a), 16 U.S.C. § 824e(a) provides:
Whenever the Commission, after a hearing held upon its own motion or upon complaint, shall find that any rate, charge, or classification, demanded, observed, charged, or collected by any public utility for any transmission or sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order.
See also FERC v. Elec. Power Supply Ass’n, 136 S.Ct. 760, 767 (2016) (“EPSA”) (the FPA obligates the Commission to ensure that practices “affecting” wholesale rates are just and reasonable); Cal. Indep. Sys.
Operator v. FERC, 372 F.3d 395, 403 (2004) (FPA empowers the Commission to assess the justness and reasonableness of “practices” “that directly affect the rate or are closely related to the rate”). See also, Merricourt Power Partners, LLC v. Midcontinent Indep. Sys.
Operator, Inc., 153 FERC ¶ 61,082, P 35
(2015) (transmission provider must “implement its Tariff on a non-discriminatory basis” in exercising its discretion under the standard Generator Interconnection Agreement); Puget Sound Energy, Inc., 143 FERC ¶ 61,157, P 36 (finding Puget Sound’s business practice for curtailment of conditional firm service discriminatory and inconsistent with Order Nos. 888-A and 890, and directing change to that practice), clarified, 144 FERC ¶ 61,198 (2013). As the Commission ruled in Order 888, under FPA sections 205 and 206 “we must determine whether any rule, regulation, practice, or contract affecting [Commission- jurisdictional] rates … is unduly discriminatory or preferential, and we must disapprove those contracts and practices that do not meet this standard.” Order 888, FERC Stats. & Regs. at 31,676. 67 May 4, 2018 Letter.
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secondary service to San Francisco allows PG&E to reserve capacity on its secondary distribution system for PG&E’s own use, while effectively denying San Francisco access to PG&E’s distribution system unless San Francisco builds new primary and secondary facilities
to serve San Francisco’s load—precisely the type of monopolistic behavior open access tariffs are intended to prevent.68
a) PG&E’s Tariff Requires It to Offer Secondary Service to San Francisco
PG&E’s unsupported contentions about the type of service appropriate to a utility cannot override PG&E’s open-access Tariff, which requires PG&E to offer wholesale distribution service to small loads and low-voltage facilities. As part of this, the WDT provides for distribution service at the secondary level. The Tariff states that PG&E “will provide Distribution Service pursuant to the applicable terms and conditions contained in this Tariff and Service Agreement,” and that the “Tariff is applicable for the transportation of capacity and energy.
. . using the Distribution Provider’s Distribution
System.” WDT § 1.2. PG&E is the Distribution Provider (WDT § 2.14), and “PG&E’s Distribution System” is expressly defined as “broadly consist[ing] of the stepdown substations, the primary distribution circuits, and the secondary distribution system” (WDT § 11, emphasis added).
Other portions of the Tariff further illustrate the availability of both primary and secondary service. Section 2 of “Schedule WD-1: Distribution Service” of the WDT
68 Order 888, FERC Stats. & Regs. at 31,745 (limiting the transmission provider’s ability to withhold capacity from wholesale transmission customers by only allowing the transmission provider to “reserve in its calculation of ATC transmission capacity necessary to accommodate native load growth reasonably forecasted in its planning horizon” (emphasis added) and requiring the transmission provider “to provide transmission service to others under the Final Rule pro forma tariff out of capacity reserved for native load growth up to the time the capacity is actually needed for such future needs”); see also id. at 31,693-94, - 24 -
establishes specific “generic” tariff rates for both primary service and secondary service at “$5.728 and $9.813 per kW-month respectively.” Section 14.2.1 of the WDT, entitled “Intervening Facilities,” also identifies the types of facilities required for non- grandfathered loads to obtain service under the WDT. It provides that: “For each of the scenarios described in the chart below, there will be a rebuttable presumption that the Intervening Distribution Facilities identified and associated with each scenario are required for that type of service.”
The “chart below” describes the facilities required for “[o]verhead” and “[u]nderground” connections for both “primary” and “secondary” service. Provisions related to secondary service are also in San Francisco’s specific agreements with PG&E.69
Moreover, San Francisco is not the only PG&E WDT customer that obtains secondary service under the Tariff. As of 2015, the Western Area Power Administration (“WAPA”), which like San Francisco has numerous points of delivery, took secondary service at 970 points of delivery (out of a total of 1,271).70 Moreover, the WAPA Wholesale Distribution Tariff Service Agreement expressly provides that secondary
69 Id. The WDT SA identifies the “Delivery Voltage” for most of San Francisco’s loads as “secondary,” and the “Distribution Charge” for most of those loads is the “secondary-energy based rate.” And Appendix F to the WDT SA, which includes five “Sketches of Common Service Configuration,” includes one entitled “Secondary” (showing “a secondary service, where there are no PG&E-owned Direct Assignment Facilities and therefore no Cost of Ownership charges”) and another entitled “Secondary Plus” (showing a secondary service, where the PG&E-owned Direct Assignment Facilities are secondary facilities, such as an overhead or underground service from a shared transformer. The Direct Assignment Facilities are subject to Cost of Ownership charges.).
70 Service Agreement No. 17 under Pacific Gas and Electric Company’s FERC Electric Tariff Volume No. 4, as filed in Pac. Gas & Elec. Co., Docket No. ER16-400-000 (Nov. 25, 2015), eLibrary No. 20151125-5324; see also Maslowski Declaration, P 27 (providing further details about WAPA’s WDT service).
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service is available at new points of delivery, even where “all secondary voltage facilities serve one customer.”71
Because secondary service is provided for under the WDT, the filed rate doctrine requires that the rates and terms and conditions for secondary service cannot differ from those contained in the Tariff itself. “The filed rate doctrine’s purpose is to ensure that the filed rates are the exclusive source of the terms and conditions by which the [regulated entity] provides .
. . the services covered by the tariff.”72 Here, PG&E has not justified its refusal to provide secondary service to San Francisco based on any provision in the WDT. The Commission has explained that tariff service cannot be denied because of requirements that are
not based in the terms or conditions of the tariff.73 Thus, PG&E’s denial of secondary service to San Francisco is contrary to its WDT and violates the filed rate doctrine.
71 Service Agreement No. 17 under PG&E FERC Electric Tariff Volume No. 4, Service Agreement for Wholesale Distribution Service between PG&E & WAPA, Contract No. 04-SNR-00789 & Settlement Agreement, App. F § 2.2 (“WAPA WDT SA”).
72 Although these services were reached through settlement, settlements are not immune from scrutiny when determining whether a utility is unduly discriminating among customers. See Cities of Bethany, et al. v. FERC, 727 F.2d 1131, 1139 (D.C. Cir. 1984) (“When a settlement is reached in good faith, by means of proper conduct by the parties, and when the resulting rate disparity is not unduly burdensome to a customer group, a rate difference caused by a private settlement may survive the anti-discrimination mandate of section 205(b).”) (emphasis added).
72 Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 853 (quoting Brown v. MCI WorldCom Network Servs., Inc., 277 F.3d 1166, 1170 (9th Cir. 2002)), amended, 387 F.3d 966 (9th Cir. 2004) (internal quotation marks omitted).
73 Wis. Pub. Power Inc. SYS. v. Wis. Pub. Serv. Corp., 83 FERC ¶ 61,198, at 61,855 (holding that a utility could not deny transmission service where the denial was “not on the basis of any term or condition of its open access tariff, but on its view that [the customer] could, and should, obtain the service through its existing agreement with [another utility].”), on reh’g, 84 FERC ¶ 61,120 (1998). - 26 -
b) PG&E is Obligated to Upgrade or Expand its Secondary Distribution System in Order to Provide Secondary Service under the WDT
In certain instances, PG&E has asserted that its existing distribution system cannot accommodate the secondary WDT service that San Francisco has requested. But even in those cases (and even if PG&E provided the City with support for such assertions, which it has not) the Tariff does not allow PG&E to summarily reject San Francisco’s applications for secondary service. Instead, the Tariff requires PG&E to “use due diligence to expand or modify its Distribution System to provide the requested Distribution Service.” WDT § 13.4; see also WDT § 12.6. As noted above, the Tariff explicitly defines PG&E’s “Distribution System” to include “the secondary distribution system.”
WDT § 11.
PG&E’s upgrade and expansion obligations under WDT Sections 12.6 and 13.4 are contingent on the wholesale distribution customer agreeing to compensate PG&E for the costs of upgrades and modifications “to the extent consistent with Commission policy.”
WDT § 23. PG&E, however, has immediately rejected San Francisco’s secondary service applications—without attempting to determine what upgrades and expansions to its existing secondary distribution system, if any, would be necessary to provide the requested service, let alone whether San Francisco would agree to compensate PG&E for all or part of the costs for such facilities. And in instances in which PG&E has asserted that its secondary system has inadequate capacity, PG&E has - 27 -
offered nothing to support those claims and has refused to provide information on capacity in the area which might enable the City to plan a work-around.74
2. PG&E’s Tariff Requires PG&E to Provide Primary Plus
Service to San Francisco
PG&E’s refusal to make primary plus service available to San Francisco likewise violates the WDT and is unjust, unreasonable, and unduly discriminatory. Although the Tariff does not explicitly define the term “primary plus” service, it clearly anticipates that PG&E will provide that service. The WDT expressly contemplates that PG&E will own and operate directly assigned facilities to provide wholesale distribution service. The term “Direct Assignment Facilities” is defined in Section 2.1175 and appears throughout the Tariff.76 The Tariff authorizes PG&E to charge WDT customers like San Francisco for the costs of installing Direct Assignment Facilities and the costs of owning and operating those facilities.77
Schedule WD-1 of the Tariff. Section 2 of Schedule WD-1, “Distribution Service Charge,” contemplates the use of Direct Assignment Facilities in the context of primary service. It states:
Where (1) the point of interconnection of the Direct
Assignment Facilities to PG&E’s Distribution system is at primary voltage and (2) the PG&E-owned secondary
facilities are all Direct Assignment Facilities, i.e., for the
74 Maslowski Declaration, PP 19-20.
75 WDT § 2.11 defines the term to mean: “Facilities or portions of facilities that are constructed by the Distribution Provider for the sole use/benefit of a particular Distribution Customer requesting service under this Tariff. Direct Assignment Facilities shall be specified in the Service Agreement that governs service to the Distribution Customer.”
76 See, e.g., WDT §§ 12.6, 14.2.1, 15.7, 16.3, 16.4, Schedule WD-1. 77 WDT, Schedule WD-1, Att. A §§ 3 (“Cost of Ownership Charge”), 10.1 (describing “Installation Charge”).
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sole use and benefit of the Distribution Customer, the
service shall be primary service.
Section 3 of Schedule WD-1 provides that the “Cost of Ownership reflects the Distribution Provider’s on-going cost liabilities of owning and operating Direct Assignment Facilities. . . .”
As discussed above, Sections
12.6 and 13.4 of PG&E’s Tariff also provide that
PG&E must expand or upgrade its system if necessary to provide wholesale distribution service. Those obligations are contingent on the distribution customer agreeing to compensate PG&E for the costs of the upgrades and modifications, to the extent consistent with Commission policy (WDT §§
12.6, 13.4, 23). Since San Francisco has
consistently agreed to pay the full costs of transformers and appropriate secondary facilities that are directly assigned to San Francisco, that contingency is satisfied.
The Tariff also makes clear that dedicated transformers are among the Direct Assignment Facilities that PG&E will provide under the Tariff. In describing the Intervening Facilities required in various scenarios for primary and secondary service, for example, a footnote in the Section
14.2.1 of the Tariff states that customer ownership of
the transformer would not be required for primary service where (emphasis added):
[T]he transformer is a PG&E owned Direct Assignment
Facility and the Distribution Customer contributes or
c
ontributed to the cost of such facility (typically in the case of a conversion from existing distribution service that is not provided under this Tariff to Distribution Service provided under this Tariff).
Many of the disputes
referenced in this Complaint are precisely the sort of conversions that are referenced in this Tariff provision.
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Section 16.3 (emphasis added)—which concerns PG&E’s preparation of a “System Impact Study” and a “Facilities Study”—provides that the “System Impact Study shall identify any distribution system constraints and redispatch options, additional Direct Assignment Facilities or upgrades required to provide the requested service.” Section 16.4 provides that: “When completed, the Facilities Study will include a good faith estimate of (i) the cost of Direct Assignment Facilities to be charged to the Eligible Customer. . . .”
“Primary p
lus” service is also explicitly called for in the unexecuted WDT SA PG&E filed for San Francisco in December 2014. Three of the Appendix F diagrams of “Common Service Configurations” show “Primary Plus” Tariff service. In Scenario 2, “PG&E owns the transformer” and “the PG&E-owned Direct Assignment Facilities,” are described as “secondary facilities,” that would be “subject to Cost of Ownership charges.” In Scenario 3, there is no transformer and “the PG&E-owned Direct Assignment Facilities,” which are described as “primary facilities,” would be “subject to Cost of Ownership charges.” In Scenario 1
, San Francisco would own the transformer
and the “PG&E-owned Direct Assignment Facilities” are described as “primary facilities.
”
Likewise, other statements from PG&E belie its current position. In testimony to the Commission, PG&E stated that San Francisco has the option to convert from secondary to primary WDT service at certain locations where the “service was previously designed with what can be identified now as the equivalent of Direct Assignment - 30 -
Facilities under the WDT.”78 PG&E acknowledged that such a conversion would be for “Primary plus service.”79
PG&E claims that in denying the City’s request for primary plus service PG&E is merely complying with its “obligation to treat all of our customers equitably, and to avoid providing any customer with preferential treatment”80 According to PG&E, San Francisco’s requests for “retail-type electric distribution service at a wholesale rate . . . ultimately shifts costs that should be borne by the City to the remainder of PG&E’s customers.”81 Despite this rhetoric, PG&E has not—and cannot—explain how the WDT’s primary plus rates—the WDT’s full stated rate for primary service, plus Cost of Ownership charges for any PG&E-owned Direct Assignment Facilities—fail to recover its costs of providing WDT service to San Francisco and inappropriately shift costs to PG&E’s retail customers.
Finally, there is also no evidence that the City is seeking some sort of preferential treatment by requesting primary plus service. Indeed, San Francisco understands that
78 Ex. PGE-5, Prepared Answering Testimony of Yilma Hailemichael at 22:4-6, corrected, Ex. PGE-60, City & Cty. of S.F. v. PG&E, Docket Nos. EL15-3-002, et al. (Nov. 15, 2016), eLibrary Nos. 20161115- 5061 (“Ex. PGE-5”). According to PG&E, this conversion would “require that the meter be relocated to the low-side of the PG&E-owned service transformer,” and Cost of Ownership charges would be imposed for all PG&E-owned Direct Assignment Facilities below primary voltage (which would include the PG&E-owned service transformer). Ex. PGE-60, Correction to Prepared Answering Testimony of Yilma Hailemichael, City & Cty. of S.F. v. PG&E, Docket Nos. EL15-3-002, et al. (Nov. 16, 2016), eLibrary No. 20161116-5074; Ex. PGE 5 at 22:2-6.
79 Ex. SF-165, CCSF Complaint and Replacement Agreements Data Response, City & Cty. of S.F. v.
PG&E, Docket Nos. EL15-3-002, et al. (Apr. 11, 2016), eLibrary No. 20160411-5309. PG&E explained that such conversions are available to San Francisco because “[t]he WHOLESALE DISTRIBUTION TARIFF does contemplate . . . primary service where the dedicated transformer could be a Direct Assignment Facility and not an INTERVENING FACILITY.” Id. In support of the latter statement, PG&E referred San Francisco to WDT Section 14.2.1 (PG&E Letter to SFPUC April 25, 2018) — the same section that San Francisco has identified above as a basis for primary plus service under PG&E’s WDT. 80 May 4, 2018 Letter.
81 Id.
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PG&E routinely uses Direct Assignment Facilities to serve other WDT customers. For example, PG&E is charging WAPA a primary plus rate at some 95 points of delivery.82 A number of these appear large enough to require a dedicated PG&E-owned transformer.83
It thus appears that PG&E provides primary plus service to another WDT c
ustomer that connects to PG&E’s distribution system at secondary-level voltage (i.e., connecting at primary voltage via direct assignment facilities)—WAPA.84 PG&E’s refusal to offer primary plus service in the case of San Francisco, and only in the case of San Francisco, is unduly discriminatory. Transwestern Pipeline Co., 26 FERC ¶ 61,112, at 61,273 (1984); see also San Diego Gas & Elec. Co., 133 FERC ¶ 61,249, P 43 (2010).
PG&E has introduced precisely the type of variation in the treatment of customers that open access was intended to avoid.
3. PG&E Has Imposed Impermissible Delays on Service to
San Francisco Loads.
PG&E’s repeated initial denials of secondary service, unreasonable metering and switchgear requirements, and lengthy site-specific negotiations have imposed undue burdens and costs on San Francisco. These actions are improper obstacles to
82 PG&E, Filing to Re-file Existing Tariff Records Currently Filed Under Tariff ID 2000 to New Tariff ID 2100, Pac. Gas & Elec. Co., Docket No. ER15-2246-000 (July 23, 2015), eLibrary No. 20150723-5002 (showing points of delivery as of 2015); see also Maslowski Declaration, P 27. 83 Maslowski Declaration, P 27. PG&E use of Direct Assignment Facilities to provide WDT service is not unique to WAPA, although other customers do not connect at voltages or configurations that would make a Primary Plus rate appropriate. PG&E’s recently terminated WDT Service Agreement with Shelter Cove listed some two miles of PG&E-owned conductor that is directly assigned to Shelter Cove. Service Agreement No. 40 under PG&E FERC Electric Tariff Volume No. 4, § 11.2 (Construction Responsibilities of Distribution Customer), as filed in Pac. Gas & Elec. Co., Docket No. ER15-480-000 (Nov. 25, 2014), eLibrary No. 20141125-5204. This Service Agreement was terminated by a Letter Order issued November 21, 2017. Pac. Gas & Elec. Co., Docket No. ER17-2578 -000, Letter Order (Nov. 21, 2017),
eLibrary No. 20171121-3074.
84 See WAPA WDT SA, App. F §§ 1.2, 2.2.
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San Francisco taking WDT service and, therefore, they appear to be for the primary purpose of enabling PG&E to take San Francisco’s electricity customers for itself. PG&E used similar tactics to stop the City from providing electric service to a new City-owned facility providing homeless services and to stop the City from powering construction activities for new low-income housing.85 These delays undermine the timely process for applying for and receiving WDT service required by PG&E’s Tariff.
The Commission has specifically recognized that delay tactics are among the mechanisms that transmission-owning utilities use to improperly deny access (Order 888, FERC Stats. & Regs. at 31,646-49, 31,673, 31,682-84) and it ordered open access reforms to prevent those abuses (id. at 31,634-36, 31,669-76, 31,682-87).86 Indeed, in Order 888, the Commission specifically cited PG&E’s use of such delaying tactics to frustrate transmission access and avoid the commitments it made to the California owners of the California-Oregon Transmission Project, calling it a “prime example” of the ways in which “transmission-owning utilities have discriminated against others seeking transmission access in a variety of ways, most often subtly and indirectly. ” Order 888,
85 See Hale Declaration, PP 12, 30.
86 See also Order 888 NOPR, 60 Fed. Reg. at 17676-77 (footnote omitted):
More often, however, discrimination is likely to be manifested more subtly and indirectly. One such way would be for transmission owners to adopt a negotiating strategy that involves a sequence of informational and other requirements over a protracted period of time.
By the time all of the requirements are finally satisfied, the window for the customer’s trade opportunity has closed. Another way of frustrating access is to substantially change the terms of negotiated agreements through protracted delay, including filings with regulatory agencies.
Another way for transmission-owning utilities to frustrate access and competition is to allow access, but only on non-comparable or unsupportable terms and conditions that are inferior to the conditions under which the transmission owners themselves use or could use the transmission grid or on terms and conditions that have no operational or financial basis.
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FERC Stats & Regs. at 31,683. The pro forma open access transmission tariff—upon which PG&E’s WDT is patterned—was specifically adopted by the Commission to address such “[d]enials of access (whether they are blatant or subtle), and the potential for future denials of access.” Id. at 31,652.
The Commission should likewise reject PG&E’s adoption of similar unjust, unreasonable, and unduly discriminatory WDT implementation practices, which seek to frustrate access by San Francisco and eliminate competition.
V. REMEDIES
The Commission has the authority and the obligation under FPA Section 206 to ensure that rates are just, reasonable, and not unduly discriminatory.87 It also has the authority and duty to ensure that rules or practices “affecting” wholesale rates are just and reasonable.88 And it has exclusive authority to enforce tariffs on file with the Commission and to assure that public utilities comply with the terms of their filed rates.89 The Commission should exercise its authority here to direct PG&E to comply with its WDT and the unexecuted WDT SA on file with the Commission by offering San
Francisco the secondary service and primary-plus service provided for by the WDT.
PG&E should also be directed to modify its business practices for implementing its Tariff, so that the metering and switchgear requirements and other terms and conditions
87 16 U.S.C. § 824e.
88 16 U.S.C. §§ 824d(a), 824e(a); EPSA at 764.
89 See, e.g., Cal. ex. rel. Lockyer, 375 F.3d at 853 (recognizing the Commission’s exclusive authority to enforce filed tariffs); 71 FERC at 61059; 105 FERC ¶ 61336, PP 38-39; 106 FERC ¶ 61,020, P 21 (recognizing the Commission’s authority to enforce compliance with the tariffs). Section 309 of the FPA also provides that “[t]he Commission shall have power to perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions” of the FPA.
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of secondary, primary plus, and primary WDT service are just and reasonable and appropriate to the size and character of the San Francisco being loads served.
To end the pattern of delays and lengthy site-specific negotiations for each San Francisco load, San Francisco proposes the following specific solutions for pending and future San Francisco requests for WDT service.90
For an application for service with maximum demand load less than 3000 kW, or an increase to an existing maximum demand load that is less than 3000 kW, San Francisco shall have the option of applying for secondary service, primary-plus service, or primary service under the WDT:
If San Francisco applies for secondary service, PG&E will assess its common system in the area of the new service to determine if there are adequate facilities to serve the load, or if those facilities need to and can be upgraded to serve the load.
o For an application for new service, PG&E will provide secondary service if it is not necessary to install a new dedicated transformer. o For an application to
change an existing service, PG&E will provide
secondary service if the existing transformer is adequate or if it can be upgraded.
If (i) a new dedicated transformer is required for a new service, or (ii) it is not possible to serve the changed existing service from the existing transformer or by upgrading the existing transformer, then San Francisco will have the two following options:
90 See Maslowski Declaration, PP 22-26.
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o San Francisco can install a dedicated transformer at its expense, which the City will own. San Francisco will install primary protection and be allowed, where the City determines that primary metering and switchgear is infeasible,
to install secondary metering and switchgear91 (San
Francisco will compensate PG&E for un-metered losses because of the remote location of the meter). San Francisco will pay the primary service rate.
o PG&E will install a dedicated transformer (which PG&E will own), primary protection, and secondary metering.
San Francisco will receive
primary plus service and pay the primary service rate and Cost of Ownership charges for Direct Assignment Facilities.
For any service with maximum demand load over 3000 kW, San Francisco shall apply for primary service under the WDT. San Francisco can chose Primary service from PG&E as set forth below:
San Francisco will install a new dedicated transformer, if necessary, and primary, protection, switchgear and metering; or
San Francisco will install a dedicated transformer, primary protection, and PG&E will accept secondary metering on the building switchgear if San Francisco determines that installing primary metering is not feasible.92
91 PG&E’s WDT does not require installation of metering and switchgear equipment at the types of locations where PG&E has been demanding they be installed. But even if there were such a provision for metering equipment, the WDT specifically contemplates “a variance of the standard metering requirements if the physical characteristics of a particular Point of Delivery make installation of standard metering impractical.” WDT § 20.1. In the City’s dense, built-up urban environment, interconnections for existing buildings qualify for such a variance.
92 See WDT § 20.1.
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San Francisco will compensate PG&E for unmetered losses because of the remote meter location.
PG&E should also be required to refund the excess costs the City has incurred to comply with the improper interconnection, metering, and switchgear requirements that PG&E has imposed as a condition of San Francisco receiving service. Although San Francisco has agreed to certain of these conditions to move particular projects forward, this was only because of PG&E’s initial refusal to comply with the terms of its Tariff, and some of these agreements were entered into under protest. 93 The Commission has
broad “remedial” authority under section 309 where the Commission finds that remedial action is “necessary or appropriate to carry out the provisions of” the FPA—which includes both “statutory and tariff” violations. Pub. Utils. Comm’n of State of Cal. v. FERC, 462 F.3d 1027, 1047-48 (9th Cir. 2006). See also Niagara Mohawk Power Corp. v. FPC, 379 F.2d 153, 158 (D.C. Cir. 1967) (the Commission has “broad authority to take effective action to achieve regulation in the public interest”); Columbia Gas Transmission Corp. v. FERC, 750 F.2d 105, 109 (D.C. Cir. 1984) (the Commission has “broad authority to fashion remedies so as to do equity consistent with the public interest”); In re Idaho Power Co., 46 F.P.C. 384 (1971) (awarding compensation to an electric company that had overly contributed to construction of infrastructure); In re Enron Corp., 2005 Bankr. LEXIS 3470, *9-10 (N.Y. Bankr. Ct. 2005) (“FERC possesses broad remedial authority to address anti-competitive behavior, specifically through profit disgorgement and refunds.”).
Where, as here, the evidence supports a finding that PG&E is, and has been, violating its Tariff in an effort to deny San Francisco open access
93 Hale Declaration, P 11.
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wholesale distribution service, PG&E should be required to pay San Francisco the difference between: (1) the costs that San Francisco has incurred as a direct result of the improper requirements that PG&E has imposed as conditions of receiving WDT service, including the costs for developing alternative designs and for the construction of oversized and redundant switchgear equipment, and (2) the costs San Francisco would have incurred if PG&E had properly compiled with its Tariff.
Finally, the Commission should take any such other actions that it finds necessary or appropriate to remedy PG&E’s tariff violations, and to assure that the WDT and PG&E’s implementation of the WDT is just, reasonable, and not unduly discriminatory.
VI. THIS C
ASE IS RIPE FOR ADJUDICATION.
Because this Complaint references the on-going litigation in Dockets No. EL15-3, et al., it is worth separately noting that the issues discussed herein were not litigated in that case and will not be decided there. In particular, nothing in the prior complaint proceeding addressed PG&E’s demand that San Francisco take primary service for small loads. Only after the complaint was filed, as PG&E was implementing the WDT, did PG&E take the position that WDT secondary service would be unavailable to San Francisco in almost every case in which San Francisco requested it.
Certain topics related to this Complaint were discussed in that case. Namely, the testimony of both PG&E’s and San Francisco’s engineering witnesses discussed the issue of Direct Assignment Facilities. San Francisco witness Rod Maslowski argued for the availability of Primary Plus service; PG&E witness Robert Malahowski argued that Direct Assignment Facilities should be rare.
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However, the Parties’ Joint Statement of Issues did not include the PG&E practices at issue in this compliant. The Initial Decision issued in that proceeding did not address the issues raised in this Complaint, and neither party took exception to the fact that the Initial Decision did not address these issues.
The issue of PG&E’s unreasonable metering and switchgear requirements was raised in San Francisco’s protests in Docket Nos. ER17-910 and ER17-1509. However, San Francisco did not brief the issue fully in those cases. Moreover, those cases involve only the specific points of delivery included within PG&E’s quarterly filings to, among other things, add new points of delivery, and PG&E only included in those filings points of delivery for which it has agreed to provide WDT service to San Francisco. This Complaint affords the Commission the opportunity to address the issue generally and not merely within the context of particular interconnections. Finally, the partial settlement filed in those dockets specifically reserved this issue for a later time.94 VII. OTHER INFORMATION REQUIRED BY RULE 206
To the extent not already provided herein, Complainant provides the following additional information required by Rule 206(b) of the Commission’s Rules of Practice and Procedure, 18 C.F.R. § 385.206(b).
A. Good Faith Estimate of Financial Impact or Harm
(Rule
206(b)(4))
As discussed above, the financial impact of PG&E’s unduly burdensome requirements is on the order of several hundred thousand dollars per affected customer.
The SFPUC Report estimates that the City incurred additional project costs of $4,773,000
94 PG&E Joint Offer of Partial Settlement art. 13.1, Pac. Gas & Elec. Co., Docket No. ER17-910-001 (Dec. 13, 2018), eLibrary No. 20181214-5000.
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for the projects experiencing issues for the reporting period of July 2018 through October 2018.95 The total financial harm is even higher, as there are more projects experiencing issues since then.
B. Operational or Nonfinancial Impacts (Rule 206(b)(5)) San Francisco has lost and will continue to lose customers to PG&E as a result of its imposition of these requirements. In other cases, San Francisco has been able to serve the customer in question (sometimes at secondary voltages), but only after extensive delays, the City was required to incur unnecessary expenses, or the customer was required to devote
significant space on its property to installing unnecessary primary service equipment.
C. Related Matters Pending in any Other FERC Case or Other Proceeding (Rule 206(b)(6))
A number of questions about what Section 212(h) of the Federal Power Act requires for service under PG&E’s Wholesale Distribution Tariff are pending in Docket Nos. EL15-3, et al.
Questions about the justness and reasonableness of costs associated with specific interconnections and related matters are pending in Docket Nos. ER17-910, ER17-1509, and ER17-2181, which concern quarterly filings made by PG&E to, among other things, add Points of Delivery under its Tariff. San Francisco has raised this issue briefly in its protests for Docket Nos. ER17-910 and ER17-1509. However, it did not brief the issue fully. The parties in those dockets have filed a Joint Offer of Partial Settlement that
95 SFPUC Report, Att. D.
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addresses other, separate issues raised in those dockets. That Joint Offer of Partial Settlement expressly states that: 96
San Francisco raised issues associated with the level of service (primary or secondary) and PG&E’s metering and
switchgear requirements (primary or secondary) .
. . . This
Settlement does not address those issues. Neither San
Francisco nor PG&E shall be deemed to have prejudiced in any way its position on these issues by joining this Offer of Settlement.
D. Specific Relief or Remedy Requested (Rule 206(b)(7)) San Francisco requests that the Commission find that PG&E has unreasonably denied service to the City in contravention of the provisions of its Wholesale Distribution Tariff and that it has imposed impermissible extra-tariff requirements on San Francisco.
San Francisco’s requested remedy is discussed in greater detail above in Part V of this Complaint.
E. Documents Supporting the Complaint (Rule 206(b)(8))
In support of this Complaint, the City
submits:
Exhibit 1: Declaration of Barbara Hale (“Hale Declaration”) Exhibit 1, Attachment A: May 4, 2018 Letter from PG&E to Moser (“May 4, 2018 Letter”)
Exhibit 1, Attachment B: November 7, 2018 SFPUC Quarterly Report to the Board of Supervisors (“SFPUC Report”)
Ex
hibit 2: Declaration of Rod Maslowski (“Maslowski Declaration”) Exhibit 2, Attachment A: Electric Rule 2
Exhibit 3: Form of Notice of Complaint
96 PG&E Joint Offer of Partial Settlement art. 13.1, Pac. Gas & Elec. Co., Docket No. ER17-910-001 (Dec. 13, 2018), eLibrary No. 20181214-5000.
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F. Alternative Dispute Resolution (Rule 206(b)(9))
The City has not used the Enforcement Hotline, Dispute Resolution Service, tariff-based dispute resolution procedures, or other dispute resolution procedures. It has had informal discussions with PG&E regarding these issues, but the parties have not been able to reach a mutually acceptable resolution.
Although San Francisco believes that ADR procedures can be valuable in some cases, its experience to date with respect to this dispute suggests that they would be of limited value in this instance.
G. Form of Notice (Rule 206(b)(10))
A Form of Notice of Complaint suitable for publication in the Federal Register accompanies this Complaint as Exhibit 3.
VIII. CONCLUSION
For the reasons set forth above, the Commission should: (1) direct PG&E to comply with its WDT and offer San Francisco secondary service and primary-plus service as provided for under its Tariff; (2) direct PG&E to pay refunds to San Francisco consistent with the filed rate; and (3) take any such other actions that the Commission finds necessary or appropriate to address PG&E’s tariff violations and to assure that the WDT and PG&E’s implementation of that Tariff are just, reasonable, and not unduly discriminatory.
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Respectfully submitted,
/s/ Katharine M. Mapes
Thomas C. Trauger
William S. Huang
Katharine M. Mapes
Jeffrey M. Bayne
Attorneys for
City and County of San Francisco
Law Offices of:
Spiegel & McDiarmid
LLP
1875 Eye Street, NW
Suite 700
Washington, DC 2000
6 (202) 879-4000
January 28, 2019
CERTIFICATE OF SERVICE
I hereby certify that I have on this 28 th day of January, 2019 served the foregoing document on the following contacts listed for respondent Pacific Gas & Electric Company:
Joshua Levenberg
Attorney
PACIFIC GAS AND ELECTRIC COMPANY
PO Box 7442
San Francisco, CA 94120
Email: [email protected]
Joanne M. Myers
Manager, Electric Transmission Rates
PACIFIC GAS AND ELECTRIC COMPANY
77 Beale Street, Room 1351, MC-BL13L
Post Office Box 770000
San Francisco, CA 94177
Tel: 415-973
-3397
Email: [email protected]
/s/ Jeffrey M. Bayne
Jeffrey M. Bayne
Law Offices of:
Spiegel & McDiarmid LLP
1875 Eye Street, NW
Suite 700
Washington, DC 20006
(202) 879
-4000
EXHIBIT 1
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
City and County of San Francisco
v.
Pacific Gas and Electric Company
Docket No. EL19-___
DECLARATION OF BARBARA HALE IN SUPPORT
OF THE COMPLAINT OF THE
CITY AND COUNTY OF SAN FRANCISCO
CHALLENGING INTERCONNECTION PRACTICES
OF PACIFIC GAS AND ELECTRIC COMPANY
UNDER WHOLESALE DISTRIBUTION TARIFF
I, Barbara Hale, declare:
1. I am presently employed as an Assistant General Manager of the San Francisco Public Utilities Commission (“SFPUC”). The SFPUC operates San Francisco’s municipal utilities that provide water, sewer, and power service. I submit this declaration in support of the complaint filed in this matter by the City and County of San Francisco (“San Francisco” or “City”). I have personal knowledge of the following facts. If called upon to testify, I could and would testify competently to the contents of this declaration.
2. The purpose of my testimony is to provide an overview of the City’s efforts to take service under Pacific Gas & Electric Company’s (“PG&E”) Wholesale Distribution Tariff (“WDT”) since 2015. During this time, particularly since November 2017, PG&E has insisted that San Francisco take primary service, even though PG&E’s WDT provides for secondary service and
primary plus service. This practice has imposed
on San Francisco unnecessary costs, delays, and other burdens.
2 I. QUALIFICATIONS
3. As the Assistant General Manager, Power, I am responsible for operating San Francisco’s municipal power utility, the Hetch Hetchy Power Enterprise. We provide electric service to municipal departments, facilities, and tenants, including hospitals, wastewater and water utilities, fire and police stations, municipal transit services, and SFO. We serve these customers with a portfolio of generation, dominated by the 380- MW of hydroelectric generation the City owns and operates. In addition, we serve the residential and commercial electric and gas customers on Treasure and Yerba Buena Islands; and the residential and commercial electric customers at The Shipyard, both of which are former military bases being redeveloped by the City. We also buy and sell electricity products in the wholesale market, offer our customers on-site generation and energy efficiency services, and are responsible for the City’s street light systems.
We also
operate the City’s CleanPowerSF program, a community choice aggregator for customers in the City. My staff and I represent the City’s interests in state and federal electric proceedings and legislative venues. Hetch Hetchy Power Enterprise employs 120 professional and skilled craft workers with $145 million in annual operating and capital program costs. I have been employed in this capacity since October of 2004.
4. Prior to my current position, I was employed by the California Public Utilities Commission as an Energy Analyst (1988-1990), as an Advisor to the President of the Commission (1990-1995), as an Administrative Law Judge (1995-2001), and finally, as Director of Strategic Planning for the agency (2001-2004). Though I was assigned work on all utilities regulated by the Commission, I developed my expertise in the electric industry.
3 II. INTERCONNECTIONS UNDER THE WDT SINCE JULY 2015
5. Since the SFPUC started taking service under the WDT on July 1, 2015, we have experienced a pattern of delay from PG&E resulting in a long list of projects that did not move forward on a timely basis. These delays have grown longer and PG&E’s demands more burdensome as the parties continue to operate under the WDT. PG&E has a pattern of finding San Francisco’s applications “incomplete” on the ground that San Francisco applied for secondary rather than primary service. PG&E’s WDT, however, does not provide for only primary service; it also provides for secondary service and primary plus service. There are significant cost differences in the facilities required for primary compared to secondary switchgear. Secondary service requires secondary switchgear, which generally costs about $50,000. Primary service requires primary switchgear, which generally costs about $500,000. A reasonable compromise, in many cases, is
primary service with secondary metering—a configuration the City has offered and agreed to in order to move some projects forward where PG&E refuses to provide secondary service. That includes secondary switchgear and an interrupter, which generally costs about $75,000.
6. PG&E’s insistence on primary service kicks off months of delays as San Francisco attempts to negotiate reasonable service parameters. Even if those negotiations are completed satisfactorily, San Francisco then faces long delays to get a service agreement from PG&E, in violation of the WDT’s deadlines.
7. Throughout the period that we have been taking WDT service, PG&E has regularly denied our applications for secondary service. Out of 122 applications for secondary service, PG&E has denied 50 on the ground that the City should take primary
4 service instead. This includes almost every application made from November 2017 to July 2018, and nearly every application for a load above 75 kW since November 2017.
8. This is not in accord with PG&E’s past practices with respect to San Francisco. Most City facilities receive secondary service at locations throughout the City. Many of these facilities have been located in the same space for decades, refurbishing and modernizing their facilities as they get funding to do so. PG&E now requires such a facility that seeks to increase its load or change the service entrance to switch to primary service even if the total load is still well below the size that typically receives primary service, or which is required to do so under PG&E’s rules for its own retail customers. The difference between primary and secondary service is significant and usually requires a redesign of both the electric service and other aspects of the project. Primary facilities cost substantially more and take up more space.
9. In many cases, we have spent months in discussions with PG&E trying to reach agreement so that important projects for the City can move forward. The City has sometimes offered to change its service request in an effort to move these projects forward, even though we do not believe this is required under PG&E’s WDT. For certain projects the City has offered
to install a new transformer, which the City will own, and requested that PG&E allow for the use of secondary switchgear and metering. PG&E, however, will often reject these offers and insist on primary switchgear and metering.
10. Often, inspection of the particular sites in question shows that there is simply no space for the primary equipment that PG&E is insisting on, or that they would need to be located in inappropriate or unsafe places. For instance, several projects have involved renovations and improvements to public schools. Placing large, primary
5 switchgear near recreational spaces would raise safety concerns for students and others in the community or would eliminate recreation space. Moreover, open space is required to meet building code standards, and the California Department of Education enforces certain classroom and physical education space requirements.
11. San Francisco has been able to reach agreements with PG&E so that certain projects can receive service. A number of projects were eventually able to move forward with secondary metering and switchgear. In a few instances PG&E ultimately agreed to provide secondary service or primary plus service. But although these projects are moving forward, this has come
at a cost of lengthy case-by-case negotiations that
force the City to choose between insisting on the service provided for under the WDT and reaching agreement with PG&E so that these projects can receive any service at all.
For some of these projects, San Francisco has entered agreements under protest.
12. Many of the affected facilities were affordable housing or facilities providing homeless services, because like many other cities, San Francisco has inadequate affordable housing and a growing homeless population. The City is working
hard to improve its housing options, but PG&E’s practices are hindering this effort. The housing projects included
both refurbishing of existing housing units and construction of new facilities. In both cases, PG&E insisted on primary service for facilities with loads well below the size for which primary service is generally required. In addition to the requirement for primary service, PG&E added requirements that seemed to serve no purpose other than delay, such as requirements that the City submit needless design packages.
6 13. In other instances, PG&E’s actions have affected facilities related to public safety, such as the San Francisco Police Academy. PG&E has claimed that the delays are because of San Francisco’s “refusal to take on the obligations required of any other utility, in this case owning primary switchgear.” 1 PG&E also wrongly characterizes
the City’s attempt to receive service under PG&E’s WDT as “San Francisco’s continued desire to obtain retail-type electric distribution service at a wholesale rate.” 2 In reality,
San Francisco is simply seeking to receive WDT service under the terms of that Tariff.
14. The SFPUC has received many complaints from the departments and agencies we serve about delays, changing requirements for service, increased costs, and increased space requirements.
3 This has led to inquiries from elected officials about the problems with getting service to City customers on a reasonable timeline and for a reasonable cost.
15. These inquiries led to a hearing on June 13, 2018 in the Public Safety and Neighborhood Services Committee of the Board of Supervisors.4 The Board of Supervisors adopted a resolution addressing the problem and required SFPUC to provide
1 May 4, 2018 Letter from PG&E to Deputy Chief Bob Moser, City and County of San Francisco Police Department, included as Attachment A to this Declaration. 2 Id.
3 See, e.g., Emily Green, Clash Over Power Supply Holds Up Opening of SF Public Sites, S.F. Chronicle (Apr. 13, 2017), https://www.sfchronicle.com/politics/article/Clash-over-power-supply-holds-up-opening- of-SF-11069557.php (describing a homeless shelter, children’s museum, and public plaza delayed because of PG&E’s practices); Emily Green, Brighter Days Ahead for SF Museum, Shelter After Power Dispute, S.F. Chronicle (Apr. 18, 2017), https://www.sfchronicle.com/politics/article/Brighter-days-ahead-for-SF- museum-shelter-after-11082140.php (describing San Francisco and PG&E’s agreement regarding service to a children’s museum and homeless shelter after months of delay). 4 San Francisco Government TV, Board of Supervisors – Public Safety and Neighborhood Services Committee – Regular Meeting (June 13, 2018),
http://sanfrancisco.granicus.com/player/clip/30791?view_id=178.
7 quarterly updates on interconnection disputes with PG&E (Resolution No. 227-18).5 We submitted the first report, covering the third quarter of 2018 on Nov. 7, 2018 (“SFPUC Report,” which is included as Attachment B to this Declaration). Since July 24, 2018 we have held regular meetings with PG&E to discuss delayed projects. Very few of those projects have seen progress, and PG&E is still insisting on primary service for new projects.
III. DELAYS TO PARKS AND RECREATION FACILITIES
16. San Francisco voters recently approved a large bond measure to refurbish Recreation and Parks Department properties. A number of these projects, however, have been delayed because of PG&E’s improper implementation of its WDT.
A. Balboa Pool
17. One of the projects that was substantially delayed was the Balboa Pool.
The details surrounding the Balboa Pool refurbishment are a good example of how PG&E has frustrated San Francisco’s attempts to connect its loads. The Balboa Pool and associated park have served the community for over 100 years. In addition to the pool, the approximately 1.1
million square foot park has multiple fields for soccer and baseball, tennis and basketball courts, a children’s play area, and a skateboard park. The Recreation and Parks Department
began the $7 million renovation of the Balboa Park and
Pool in the fall of 2016.6
18. In order to accommodate the increased load from the renovation, the Recreation and Parks Department is replacing the existing switchboard and moving the
5 Resolution No. 227-18, S.F. Board of Supervisors (July 20, 2018) https://sfbos.org/sites/default/files/r0227-18.pdf.
6 See Balboa Park Pool Improvement Project, S.F. Recreation & Parks, http://sfrecpark.org/project/balboa- pool-improvements/ (last visited Jan. 25, 2019).
8 wet utilities further away, so as to comply with updated utility standards. To meet the new load, the City requested a new reserved capacity of 220 kW. On August 9, 2017, PG&E notified the City that the City would need a primary level connection to serve the load because PG&E did not have the capacity to serve the load from its existing secondary system.
19. On September 11, 2017, San Francisco advised PG&E that, in light of PG&E’s statement that it did not have the capacity to serve the load, the City would install and own a new transformer, an interrupter, and secondary switchgear. San Francisco requested a December 2017 service date for this project to allow the project to achieve its planned completion date of March 2018.
20. In an email dated October 26, 2017, PG&E reiterated that it considered this a new service application and would require the City to take primary service. On November 20, 2017, the City sent PG&E a second request to use a City-owned dedicated transformer and secondary switchgear. On January 10, 2018, PG&E responded by denying the request and insisting that space could be found for primary switchgear, because the City “is remodeling the site.”
21. Following press reports concerning the dispute,7 on February 14, 2018 PG&E suggested that it would consider a different configuration for service to this load.
On February 15, 2018, San Francisco wrote to PG&E
to reiterate its prior offer to install
and own a transformer and interrupter while using secondary switchgear. In March 2018, PG&E agreed to this configuration provided the load did not exceed 75 kW. While San
7 Wilson Walker, Conflict Between PG&E, SF Public Utilities Commission Bogs Down More Projects , CBS SF Bay Area (Feb. 14, 2018), https://sanfrancisco.cbslocal.com/2018/02/14/conflict-between-pge-sf- public-utilities-commission-bogs-down-more-projects/.
9 Francisco had previously asked for a reserved capacity of 220 kW, San Francisco agreed to reduce it to 75 kW in an attempt to move the project forward. This lower reserved capacity, however, has impacts on the pool’s operations.
22. PG&E’s steadfast refusal to allow secondary service at the Balboa Pool caused the project to be in dispute for 18-19 months, which caused “a domino effect on [Recreation and Parks Department]’s plans to renovate a group of community pools.”8 The delay also forced the City to undertake about $20,000 in redesign costs, $670,000 in additional construction costs, and $500,000 in additional construction and project management costs due to delay.9
B. Randall Museum
23. Another Recreation and Parks Department facility that experienced such delays is the Randall Museum, a City-owned museum operated by the Recreation and Parks Department. The Randall Museum had received secondary service in its existing location since 1951 with a maximum load of 55 kW. The Randall planned for a $6 million renovation of the facility funded by a State grant, City funds, and money raised by the Friends of the Randall Museum, a
private non-profit. The museum closed for
renovations in summer of 2015, expecting to reopen in February 2017. The reopening was delayed by one year due to the dispute over PG&E’s refusal to provide secondary service. In addition to the direct cost increases due to PG&E’s demand for primary service, this delay threatened the receipt of the state grant funds and affected the ability of
8 SFPUC Report, Att. A, row 8.
9 SFPUC Report, Att. D, row 8.
10 the Friends of the Randall to raise money for future projects. Planned children’s day camps for the summer 2017 were curtailed, reducing revenue and angering residents.
24. San Francisco submitted an application for WDT service to the Randall in July 2016, requesting switchgear and meter replacement to serve load up to 167 kW (which was later reduced to 100 kW). PG&E denied this request, requiring primary service. On October 25, 2016, San Francisco submitted an updated application for a primary service level connection,
even though it disagreed with PG&E’s requirement of
primary service. In February 2017 PG&E required a System Impact Study, despite the fact that the application
was for a relatively small increase in load. PG&E required San Francisco to pay estimated costs of $25,000 to undertake what should have been at most a simple study (assuming engineering rates of $250, this would mean San Francisco was
charged for 100 hours of engineering time). PG&E has since indicated to San Francisco that the cost of the study was actually $2,000. PG&E took 31 days to complete the study.
The study report that PG&E conveyed to San Francisco had very little substance, and PG&E would not provide any back up documentation or work papers. PG&E later agreed to serve the Randall Museum using a secondary service level connection, but the disagreement jeopardized the project’s timeline. In addition, San Francisco asked to own the service lateral to meet the intervening facilities requirement, but PG&E refused to permit this. PG&E has also required San Francisco to pay for conductors, an interrupter, and
a transformer, which the City must deed over to PG&E and pay Cost of Ownership charges on.
IV. CITY LOSSES TO PG&E
25. Some City departments have asked us to allow them to take retail service from PG&E in order to avoid the delays, costs, and space requirements that PG&E
11 imposes when customers are served by the City. The City has reluctantly agreed to allow some projects to take PG&E retail service when delays imposed by PG&E on City service became simply too costly and burdensome.
26. One such project was the Central Waterfront Navigation Center. This was a new facility consisting of portable modular units providing temporary housing and services for homeless people. In summary, PG&E’s requirements for this project would have delayed the opening by at least 90 days. We initially tried to accommodate PG&E’s requirements, providing diesel generators so that the project could open while we worked with PG&E. We were not able to make progress with PG&E, so the City allowed PG&E to serve this facility as a retail
customer starting in June 2017.
27. This dispute began on July 25, 2016, when the City submitted a WDT application for secondary service to serve 325 kW commencing March 1, 2017. PG&E responded on September 29, 2016 that primary service was required. While disagreeing with this requirement, the City submitted an application on November 7, 2016 for primary service to begin in March 2017. On January 4, 2017 PG&E added a requirement that the City submit design packages for both fused and recloser designs so that PG&E could determine which design was required. The City submitted those designs on February 15 and 17, 2017. The City obtained all necessary equipment for both designs and was ready to commence construction upon receiving a decision from PG&E. PG&E still would not move forward, and on March 20, 2017
it informed the City that a system
impact study was required, which would take 60 days followed by a design period of 30 days.
12 28. At the same time, PG&E staff represented to electrical staff at the City’s Public Works Department that retail service could start in just six weeks. Eventually, the City withdrew its request for WDT service under protest and requested service for the Navigation Center as a PG&E retail customer. 10 PG&E is not using primary facilities for its service to this site.
29. For many projects, the City was unable to provide power for project construction due to PG&E’s requirements. It is common for construction power to begin before the electrical equipment for permanent service is in place. PG&E has refused to provide the City WDT service for construction, claiming that the WDT does not allow temporary service. The City understands the WDT to allow for service terms shorter than the standard five-year term, which would accommodate service for project construction over several months
or years.
30. In addition, PG&E would not agree to provide WDT service to support construction power unless the City had in place the primary service facilities PG&E has unreasonably demanded for small loads. Adhering to this requirement would cause long
delays at the start of a project for design and construction of facilities not required for other, similarly-sized facilities. Even if PG&E ultimately agreed to a more reasonable outcome, the negotiations to get there would take months at best. In order to avoid construction delays and the costs that would be owed to contractors in many cases, the City withdrew its request for construction power in several cases, allowing PG&E to provide retail power service.
10 Kevin Fagan, SF’s Newest Navigation Center Opens in Dogpatch Neighborhood , SF Gate (May 24, 2017), https://www.sfgate.com/bayarea/article/SF-s-newest-Navigation-Center-open-in-Dogpatch- 11171369.php#item-85307-tbla-3.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on January 28, 2019. 13 EXHIBIT 1
ATTACHMENT A
Pacific Gas and
Electric Company·
May 4, 2018
Deputy Chief Bob Moser
City and County of San Francisco
Police Depaitment
Headquaiters
1245 3rd Street
San Francisco, CA 9415 8
Dear Deputy Chief Moser:
David Gabbard
Senior Director
Transmission Asset
Management
245 Market Street, Room 936
San Francisco, CA 94105
Mailing Address:
Mail Code N9G
P.O. Box 770000
San Francisco, CA 94177
Tel: 415.973.8996
Fax: 415.973.5228
[email protected]
Thank you for your letter to Kevin Dasso, Vice President of Electric Asset Management at PG&E, dated April 27, 2018. As Senior Director of the team working on these issues, Kevin asked me to respond.
We share your concern regarding delays to the SF Police Academy at 350 Amber, and agree that the upgrades to the facility described in your letter are extremely imp01tant.
As you may know, the business arrangement between PG&E and the City falls under the auspices of the Federal Power Act. This law requires a utility such as the SFPUC to own or control its own facilities in order to receive lower cost wholesale electric service when it serves new customers.
The rule exists to balance the dual goals of ensuring that all utilities have access to the existing grid infrastructure to deliver energy and making sure that each utility bears the financial and infrastructure responsibilities associated with serving its own customers.
In our view, project delays, like those being described at 350 Amber, derive directly from SFPUC's refusal to take on the obligations required of any other utility, in this case owning primary switchgear. Under both Federal and State law, PG&E has an obligation to treat all of our customers equitably, and to avoid providing any customer with preferential treatment. For this reason, PG&E cannot accommodate San Francisco's continued desire to obtain retail-type electric distribution service at a wholesale rate, because doing so ultimately shifts costs that should be borne by the City to the remainder of PG&E's customers, including those who live within San Francisco.
Representatives from PG&E and SFPUC are working hard and in good faith to tty to resolve some of the concerns and issues related to delays like this. We are taking these efforts seriously. ?tl~,n
~
SC:ea
cc: Kevin Dasso
EXHIBIT 1
ATTACHMENT B
London N. Breed
Mayor
Vince Courtney
President
Ann Moller Caen
Vice President
Francesca Vietor
Commissioner
Anson Moran
Commissioner
Ike Kwon
Commissioner
Harlan L Kelly, Jr.
General Manager
O
San Francisco
Water Power Sewer
Services of the San Francisco Public Utilities Commission 525 Golden Gate Avenue, 13th Floor
San Francisco, CA 94102
T 415.554.3155
F 415.554.3161
rry 415.554.3488
November 7, 2018
Ms. Angela Calvillo
Clerk of the Board of Supervisors
City 1-ta11, Room 244
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102-4689
RE: San Francisco Public Utilities Commission's Quarterly Report to the Board of Supervisors on the Status of Applications to PG&E for Electric Service.
Dear Ms. Calvillo:
The attached quarterly report has been prepared for the Board of Supervisors in accordance with Resolution No. 227-18, approved by the Board on July 10, 2018 (File No. 180693) and enacted on July 20, 2018.
Pursuant to the terms of Resolution No. 227-18, the San Francisco Public Utilities Commission (SFPUC) shall "provide the Board a quarterly report for the next two years that identifies the following: status of all City projects with applications to SFPUC for electric service, including project schedules and financing and other deadlines; project sponsor and SFPUC concerns in securing temporary and permanent power, including obstacles that could increase costs or delay service to City customers; and the status of disputes with PG&E before the Federal Energy Regulatory Commission (FERC) or in other forums."
BACKGROUND:
As discussed at the Public Safety and Neighborhood Services Committee hearing held on June 13, 2018, Pacific Gas and Electric (PG&E) has delayed and obstructed service provision by making unnecessary and/or untimely requests for information, such as requiring system impact studies for very small loads. Furthermore, this quarterly report details denied requests for secondary (low-voltage) service for City projects. In many of these cases, PG&E contends that the City should provide primary (high-voltage) service for facilities with small electric loads that are typically served with secondary service.
As the SFPUC has previously conveyed, and as is detailed in this report, PG&E's requirement for City projects to use primary (high-voltage) power service has caused OUR MISSION: To provide our customers with high-quality, efficient and reliable water, power and sewer services in a manner that values environmental and community interests and sustains the resources entrusted to our care.
months of delay in meeting project timelines; and in some cases, PG&E has granted secondary power service after the SFPUC has already applied for primary service at additional cost.
REPORT HIGHLIGHTS:
For the reporting period of July 2018 through October 2018, the SFPUC has identified 45 projects experiencing interconnection issues due to delays, arbitrary requests or increased project costs, as listed in Attachment A. Attachment B contains a map providing the location of each project.
Attachment C depicts a comprehensive timeline of the process for projects from application submittal to energization. Delays can potentially occur at any point in time during this process. This report lists 19 projects with applications for service that have been deemed complete by PG&E, allowing these applications to proceed onto the evaluation phase of the process required before a service agreement contract will be issued by PG&E. Of these projects, however, none have been deemed complete within the timeline requirements of PG&E's Wholesale Distribution Tariff (WDT).
Attachment D contains a detailed report of each category of additional incurred costs and impacts to the City per project, such as redesign costs, construction and equipment costs, and additional staff time (also included in the 'Impacts' column of Attachment A). Estimates show more than $2 million in primary/secondary metering equipment costs, close to $1 million in additional construction and project management costs, and $3.6 million in lost gross revenue to the SFPUC.
EFFORTS TO DATE:
The SFPUC has remained committed to working with PG&E to improve the working relationship between the utilities. In spring of 2018, the SFPUC provided PG&E leadership with a list of current projects with interconnection issues dated as of April 20, 2018.
On July 24, 2018, SFPUC and PG&E staff convened a joint working group to discuss on-going project issues and monitor the progress of projects in the short-term. PG&E staff has since identified a subset of twelve (12) projects (indicated in Column N of Attachment A) that they have committed to energizing through 2018.
STATUS OF DISPUTES WITH PG&E BEFORE FERC:
Confidential settlement discussions are underway in 10 FERC cases related to disputes in 2017 and 2018. FERC has not yet issued a decision on the City's 2014 complaint and related cases that were litigated in 2016.
Please find attached copies of the following documents related to this report:
• Attachment A: List of projects with active interconnection applications to PG&E for electric service as of October 2018
• Attachment B: Map of projects with PG&E power connection delays as of October 2018
• Attachment C: Process timeline for projects from application submittal to energization
• Attachment D: Cost impacts
Should you have any questions, please contact Barbara Hale, SFPUC Assistant General Manager for Power, at BHale@sf‘vater.org and 415-554-2483.
Sincerely,
Harlan L. Kelly, Jr.
General Manager
Attachment A: BOS Quarterly Report for October 2018
A B C D E F G H I J K L M N O
PG&E NN# Project Location District # Client
Organization Project Description
Initial
Application
Submittal Date
App Deemed
Complete
Date
Initial
Service
Need Date
Did PG&E
require
Primary?
Load Size/Can
Be Served at
Secondary
PG&E
committed to
work w/ SF to
energize in
2018
Impacts
1 114248007 1950 Mission Street -
Affordable Housing 9 BRIDGE & Mission
Housing
New primary service
(intially requested
secondary)
Delays caused by
dispute over primary
vs. secondary. Project
moving forward as
primary.
PG&E reviewing
application. 1/18/2018 9/2/19 Yes 1661 kW/Yes
Project delayed - project was in dispute from Jan. 2018 - Sept. 2018 (8-9 months) Primary switchgear will take 720 sq ft. that was planned as childcare space.
Costs for primary redesign- $45k
Added costs for primary equipment - $500k
Temp. construction power service by PG&E at retail - $294k in lost gross revenue to SFPUC ($81k in additional costs to the project due to PG&E's higher rates) 623,000 lbs. of CO2 emissions (construction period of 18 months) 2 114232705
490 South Van Ness
Avenue - Affordable
Housing
9 BRIDGE & Mission
Housing New secondary service
Delays caused by
dispute over primary
vs. secondary. Project is
still in dispute.
Project is at a
standstill. PG&E and SF
working on a
resolution.
1/16/2018 10/1/19 Yes 867 kW/Yes
Project delayed - project has been in dispute since Feb. 2018. (8-9 months) Costs for redesign (primary service with secondary metering) - $15k Temp. construction power service by PG&E at retail - $145k in lost gross revenue to SFPUC ($43k in additional costs to project due to PG&E's higher rates) 294,000 lbs. of CO2 emissions (construction period of 16 months) If required, primary switchgear will take the place of a community room. 3 114345033 1990 Folsom Street -
Affordable Housing 9 MEDA New secondary service
Delays caused by
dispute over primary
vs. secondary. Project is
still in dispute.
Project is at a
standstill. PG&E and SF
working on a
resolution.
2/26/2018 9/1/20 Yes 920 kW/Yes
Project delayed - project has been in dispute since Mar. 2018. (7-8 months) Temp. construction power service by PG&E at retail - $563k in lost gross revenue to SFPUC ($29k in additional costs to project due to PG&E's higher rates) 927,000 lbs. of CO2 emissions (construction period of 22 months) If required, primary switchgear will take the place of childcare space. 4 114671141 2060 Folsom Street -
Affordable Housing 9 MEDA New secondary service
Delays caused by
dispute over primary
vs. secondary. Project is
still in dispute.
Project is at a
standstill. PG&E and SF
working on a
resolution.
5/18/2018 1/15/20 Yes 1387 kW/Yes
Project delayed - project has been in dispute since Jun. 2018 (4-5 months) Temp. construction power service by PG&E at retail - $581k in lost gross revenue to SFPUC ($8k in additional costs to project due to PG&E's higher rates) 922,000 lbs. of CO2 emissions (construction period of 22 months) If required, primary switchgear will take the place of on-site supportive services. 5 112828717 2 Rankin Street - Central
Bayside Pump Station 10 SFPUC-
Wastewater New primary service
Delays caused by PG&E
failing to provide
service agreement on
time.
Service agreement
issued by PG&E. SFPUC
reviewing agreement
and design with PG&E.
5/1/2017 8/17/2017 6/1/19 N/A 7000 kW/No
Project delayed - SFPUC granted a time extension to PG&E of one extra month to provide service agreement. PG&E took an extra 4 months but committed to have the project energized on time (Jun. 2019).
6 114546573 2401 Keith Street -
Southeast Health Center 10 SFPW for SFDPH New secondary service Delays caused by
dispute over primary
vs. secondary. Project is
still in dispute.
Project is at a
standstill. 4/27/2018 7/26/20 Yes 200 kW/Yes
Project delayed - project has been in dispute since May 2018 (5-6 months) The opening of a new wing at the health center will be delayed, pushing back plans to integrate a more family-oriented primary care model.
If required, primary switchgear will take the place of several parking spaces in an already constrained lot.
7 114713666 2110 Greenwich Street -
Tule Elk Elementary 2 SFUSD
Upgrading and relocating
existing secondary
service
Delays caused by
dispute over primary
vs. secondary. Project is
still in dispute.
Project is at a
standstill. 6/15/2018 6/1/19 Yes 300 kW/Yes
Project delayed - project has been in dispute since Jun. 2018 (4-5 months) The timeline is very constrained as the school needs to remain open. Delays will push back much needed health and safety improvements to the facility.
If required, primary switchgear will take the place of outdoor education space that is required by the state.
Further design delays will impact the project construction budget and timeline. 8 113752930 51 Havelock Street -
Balboa Pool 11 SFRPD
Replace and relocate
existing secondary
service
PG&E initially required
primary. Project is
moving forward at
secondary metering.
PG&E started
construction. 7/5/2016 3/14/2018 8/2/17 Yes 75 kW/Yes
Project delayed - project was in dispute from Jan. 2017 - Jun. 2018 (18-19 months) Electrical Redesign (to include interrupter): $20k
Additional Construction Cost: $670k
Additional Construction and Project Management Cost due to schedule delay: $500k Lost gross revenue to SFPUC due to delays: $14k
Many swim programs were cancelled due to the project delay. The delay had a domino effect on RPD's plans to renovate a group of community pools.
9 114671200 1995 Evans - Traffic
Controls and Forensics 10 SFPW for SFPD New secondary service Delays caused by
dispute over primary
vs. secondary. Project is
still in dispute.
Project is at a
standstill. 5/18/2018 3/1/20 Yes 2100 kW/Yes
Project delayed - project has been in dispute since Jun. 2018 (4-5 months). There are also pending issues regarding the franchise.
Delays will affect the timeline of moving SFPD's Traffic Company and Forensic Services Division.
If required, primary switchgear will take the space of parking spaces for SFPD vehicles. 10 Stockton btwn Ellis &
O'Farrell - Central
Subway Streetlight
Reinstallation
3 SFMTA Streetlight re-installation Franchise dispute
Some issues remain,
but SF and PG&E are
working together to
ensure proper
streetlight installation.
N/A N/A N/A N/A N/A PG&E and the City are in disagreement on who is responsible for re-installing the foundations for the historic streetlights. The City believes this scope of work falls under the franchise agreement.
Project Status
Attachment A: BOS Quarterly Report for October 2018
A B C D E F G H I J K L M N O
PG&E NN# Project Location District # Client
Organization Project Description
Initial
Application
Submittal Date
App Deemed
Complete
Date
Initial
Service
Need Date
Did PG&E
require
Primary?
Load Size/Can
Be Served at
Secondary
PG&E
committed to
work w/ SF to
energize in
2018
ImpactsProject Status
11 113167478 1909 16th Street -
Streetlights 10 SFPUC - Power Streetlight attachment on traffic signal
Delays caused by
dispute over the "Okay
to Serve" process.
PG&E has recently
indicated that this
streetlight attachment
can be connected
without issues.
Dispute is still ongoing,
but project is able to
move forward.
8/17/2017 1/12/18 N/A N/A
PG&E is requiring an "Okay to Serve" process which can cause delays to getting streetlights put up. The streetlight attachment load is really small (less than 1 kW) and remains significantly lower than what SF has paid for at that service point.
12 Transbay Transit Center -
Transbay Joint Powers
Authority
6 SFPUC - Power Two new primary
services (5 MW each)
Potential dispute over
reserved capacity.
Energized - PG&E
reviewing SF's request. N/A N/A N/A N/A 10 MW/No PG&E is currently reviewing SF's request to use 10 MW of reserved capacity that SF applied and paid for. If PG&E denies request, SF may incur additional costs or have to limit the tenants. 13 Multiple Locations - Guy
Wires (Franchise Issue) 9 & 10 SFMTA, SFPW, &
SFPUC
PG&E's guy wires are
impeding on SF projects. Franchise dispute Project is at a standstill. N/A N/A N/A N/A N/A
PG&E's unresponsiveness in removing guy wires is an obstruction to SF projects. 1) SFMTA cannot install a pole replacement to promote safety. 2) SFPW cannot construct a new ADA curb ramp. 3) SFPUC cannot finish parts of construction at the Southeast Water Treatment Plant. 14 114088011 Lake Merced Blvd &
Sunset Blvd - Restroom 4 SFRPD New secondary service
Delays caused by
dispute over primary
vs. secondary.
PG&E sent options for
service, SF is reviewing
options.
12/8/2017 1/15/19 Yes 10 kW/Yes
Project delayed - project has been in dispute since late Aug. 2018. (2-3 months) Bathroom will not be available for public use at Lake Merced.
Primary switchgear will cost the project an additional $500k in equipment costs and take the space of parking spots.
15 114571079 50 Bowling Green Drive -
GGP Tennis Center 5 SFRPD New secondary service
PG&E initially required
primary. Project is
moving forward at
secondary metering.
PG&E reviewing
application. 5/3/2018 2/1/19 Yes 160 kW/Yes X
Project delayed - project was in dispute from May-July. 2018. (2-3 months) Additional project costs - $75k (interrupter, #7 box, & installation) Lost gross revenue to SFPUC due to delays: $1k
16 114713787 1001 22nd Street - Bus
Electrification Pilot 10 SFMTA New primary service Project is moving forward.
PG&E reviewing
application. 6/18/2018 5/1/19 N/A 2000 kW/Yes Initially, PG&E was unresponsive in scheduling a pre-application meeting which has caused some delays.
17 113135002
49 South Van Ness
Avenue - Building
Inspection Office
5 SFPW for SFDBI New primary service
Delays caused by PG&E
failing to provide
service agreement on
time.
SF reviewing service
agreement. 8/7/2017 11/10/2017 1/1/19 N/A 5848 kW/No
Project delayed - SFPUC granted a time extension to PG&E of one extra month to provide service agreement. PG&E took an extra 4 months but committed to have the project energized on time (Jan. 2019).
18 113161547
1296 Shotwell Street -
Affordable Senior
Housing
9 MEDA New secondary service
PG&E initially required
primary. Project is
moving forward at
secondary metering.
Service agreement
returned with payment
by SFPUC.
7/26/2017 11/9/2017 2/1/18 Yes 340 kW/Yes Project delayed - project was in dispute from August 2017-Oct 2017 (2-3 months).
Additional project costs - $75k (interrupter, #7 box, & installation) 19 88 Broadway -
Affordable Housing 3 BRIDGE Housing New secondary service Delays caused by
dispute over primary
vs. secondary. Project is
still in dispute.
Project at a standstill.
PG&E and SF working
on a resolution.
10/1/2018 12/2/19 N/A 1674 kW/Yes
Temp. construction power service by PG&E at retail - $618k in lost gross revenue to SFPUC ($79k in additional costs to PG&E's higher rates)
1,090,000 lbs. of CO2 emissions (construction period of 18 months) 20 735 Davis - Affordable
Housing 3 BRIDGE Housing New secondary service
Delays caused by
dispute over primary
vs. secondary. Project is
still in dispute.
Project at a standstill.
PG&E and SF working
on a resolution.
10/1/2018 12/2/19 N/A 683 kW/Yes
Temp. construction power service by PG&E at retail - $335k in lost gross revenue to SFPUC ($18k in additional costs to the project due to PG&E's higher rates) 554,000 lbs of CO2 emissions (construction period of 19 months) 21 110833085
838 Pacific Avenue - Ping
Yuen North Affordable
Housing
3 CCDC Replacing and relocating
existing service
PG&E initially required
primary. Project is
moving forward at
secondary service.
SF reviewing service
agreement. 11/3/2015 6/20/2018 6/1/16 Yes 500 kW/Yes
Project delayed - project was in dispute from Sept. 2016 - May 2018 (20 months). Structural, safety, security, and aesthetic upgrades to the development have been delayed as a result.
Lost gross revenue to SFPUC due to delays: $186k
Project/construction costs related to redesign and delay: $240k 22 111904415 350 Ellis Street -
Affordable Housing 6 TNDC Relocating service &
adding fire pump
Delays caused by
dispute over
"grandfathering" and
design requirements
for secondary service.
PG&E started
construction. 7/21/2016 1/5/2017 7/1/17 Yes 200 kW/Yes
Project delayed - project was in dispute from Sept. 2016 - June 2017 (10 months). Renovations that included spaces for community space, supportive services, and building management offices have been delayed as a result.
Lost gross revenue to SFPUC due to delays: $110k
23 111912344
2451 Sacramento Street -
JFK Towers Affordable
Housing
2 Mercy Housing Replacing existing service
PG&E initially required
primary. Project is
moving forward at
secondary metering.
Energized - PG&E and
SF discussing issues
regarding the
transformer.
8/1/2016 1/1/17 Yes 432 kW/Yes
Project delayed - project was in dispute from July 2017 - Feb. 2018. (7 months). Seismic retrofits and the addition of a community room have been delayed as a result.
Lost gross revenue to SFPUC due to delays: $15k
Attachment A: BOS Quarterly Report for October 2018
A B C D E F G H I J K L M N O
PG&E NN# Project Location District # Client
Organization Project Description
Initial
Application
Submittal Date
App Deemed
Complete
Date
Initial
Service
Need Date
Did PG&E
require
Primary?
Load Size/Can
Be Served at
Secondary
PG&E
committed to
work w/ SF to
energize in
2018
ImpactsProject Status
24 114088015
16th & Terry Francois
Blvd. - Mission Bay Ferry
Landing
6 SFPORT New secondary service
PG&E would not
provide the requested
service.
SF revised electrical
design and is working
on a new application.
12/8/2017 6/14/19 Yes 70 kW/Yes
Project delayed - PG&E will not provide 3-phase secondary service.
Additional project costs - $75k (interrupter, #7 box, & installation) Additional staff time for Port - $70k
Costs of redesign - $30k
25 111772188 Ferry Terminal 3 SFPORT for WETA New secondary service PG&E initially required
primary. Project is
moving forward at
secondary metering.
Engineering estimation
by PG&E 7/5/2016 6/8/2018 6/18/17 Yes 150 kW/Yes X
The Downtown Ferry Terminal is currently using power from the Agriculture Building. Delays of this service request could delay the redevelopment of the Agriculture Building. This would cause a delay to a build out of a new shorepower connection which would result in significant air pollution from up to 6 ferries idling in the berth.
Additional project costs - $75k (interrupter, #7 box, & installation) Additional staff time for Port - $32k
Additional staff time for WETA - $64k
Costs of redesign - $32k
26 113934715
2241 Jerrold Avenue -
Ambulance Deployment
Facility
10 SFPW for SFFD New secondary service
PG&E initially required
primary. Project is
moving forward at
secondary metering.
Pre-construction
meeting scheduled. 3/9/2017 2/8/2018 1/1/18 Yes 300 kW/Yes Project delayed- project was in dispute from May 2017 - Nov 2017 (6 months). Construction plans for the new ambulance deployment facility have been delayed as a result.
Additional project costs - $75k (interrupter, #7 box, & installation) Costs of redesign - $100k
Costs of construction delays - $250k
Additional Staff Time for SFPW - $100k
Lost gross revenue to SFPUC due to delays: $110k
27 112173182 Pier 26 - Fire Boat
Berthing 6 SFPW for SFFD New secondary service
PG&E initially required
primary. Project is
moving forward at
secondary service.
PG&E started
construction. 10/28/2016 3/2/2017 2/20/17 Yes 216 kW/Yes The dispute with PG&E lasted a month and had no material impact on project. The project is delayed due to other factors.
28 111975801 800 Amador Street - Pier
94 - Backlands 10 SFPORT New secondary service
PG&E required primary.
Project is moving
forward with primary
service.
Engineering estimation
by PG&E 8/19/2016 1/26/2017 2/1/17 Yes 166 kW/Yes X
Added costs for primary equipment (overhead) - $500k
The Port is investing over $8M in upgrading the 16-acre parcel in the Backlands project site. The Port is expected to generate approximately $250k in monthly rent revenue from this site. Significant delays to this project can cause the Port to lose $3M in revenue annually.
Additional staff time for Port - $50k
Costs of redesign - $50k
29 112847828 801 Illinois Street - Crane
Cove Park Building 10 SFPORT New secondary service
PG&E initially required
primary. The project
team found a way to
internally provide
service for the near
future.
Application on hold as
SF is redesigning
service request.
5/5/2017 1/1/18 Yes 50 kW/Yes X
The project team found alternative solution for short term which resulted in significant staff time expense at the Port and Consultant project design team.
Staff time for the Port - $50k
Costs of redesign - $75k
Depending on how the future service is finalized, there may be additional impacts. 30 113764870 2301 San Jose Avenue -
Geneva Car Barn 11 SFRPD New secondary service
PG&E initially required
primary. Project is
moving forward at
secondary metering.
Pre-construction
meeting held. 8/24/2016 5/23/2018 9/20/17 Yes 1330 kW/Yes Project delayed- project was in dispute from Oct 2016 - Oct 2017 (1 year). Construction plans for the new community arts center have been delayed as a result.
Costs of redesign: $5k
Additional project costs - $75k (interrupter, #7 box, & installation) Lost gross revenue to SFPUC due to delays: $13k
Additional Staff Time for SFRPD: $15k
31 112129708
45th & Lincoln -
Restroom for Golden
Gate Boat Park
1 SFRPD New secondary service Delays caused by PG&E
error in estimating. Energized 10/20/2016 12/9/2016 3/1/17 No 24 kW/Yes PG&E caused a 3-month delay due to an estimating error. No monetary impact. 32 111729695 6 Berry Street -
Substation 6 SFMTA Upgrade existing primary
service
Delays caused by PG&E
being unresponsive,
changing requirements,
and being non-
transparent with costs
and design changes.
Pre-construction
meeting held.
However, PG&E now
wants to make design
changes to contract.
6/17/2016 12/12/2016 5/1/17 N/A 2000 kW/Yes
Parties disagree on costs and design requirements.
SFMTA is incurring delay claims costs from contractor due to PG&E's failure to approve design and equipment submittals. (actual costs are to be determined but have been estimated to be $5,000/day) 33 112434942
3455 Van Ness Avenue -
AWSS Pump Station No.
2 2 SFPUC - Water
Remove two existing
services and replace with
one secondary service
Delays caused by PG&E
requiring primary.
PG&E has recently
indicated that this
project can move
forward at secondary
metering.
Due to the delays, the
project team is
deciding on how to
move forward.
12/9/2016 8/1/17 Yes 144 kW/Yes X Seismic improvements and architectural upgrades to increase reliability of the pumping station have been delayed - impacts TBD.
Attachment A: BOS Quarterly Report for October 2018
A B C D E F G H I J K L M N O
PG&E NN# Project Location District # Client
Organization Project Description
Initial
Application
Submittal Date
App Deemed
Complete
Date
Initial
Service
Need Date
Did PG&E
require
Primary?
Load Size/Can
Be Served at
Secondary
PG&E
committed to
work w/ SF to
energize in
2018
ImpactsProject Status
34 113826990 750 Brannan - Main
Library Repository 6 SFPW for SFPL Increase load request (237 kW to 500 kW)
Dispute over how to
process increase in load
request.
Service agreement
returned with payment
by SFPUC.
11/14/2017 1/18/2018 1/1/18 No 500 kW/Yes
Plans for a new HVAC system at the library repository have been delayed.
No monetary impact - however, SF believes that PG&E's requirements for approving load increase for muni loads is extensive and will cause delays to projects. 35 112774763
Illinois St. & Terry
Francois - Mariposa
Pump Station
10 SFPUC -
Wastewater
Relocate existing
secondary service (for
construction)
Delays caused by PG&E
requiring primary.
PG&E has recently
indicated that this
project can move
forward at secondary
metering.
Due to the delays, the
project is going to take
PG&E retail service.
4/13/2017 6/1/18 Yes 169 kW/Yes X
Temp. construction power service by PG&E at retail - $588k in lost gross revenue to SFPUC ($22k in additional costs to the project due to PG&E's higher rates) 554,000 lbs of CO2 emissions (construction period of 36 months) 36 113135782 350 Amber Drive - Police
Academy 8 SFPW for SFPD Upgrading existing
secondary service
PG&E initially required
primary. Project is
moving forward at
secondary metering.
SF is reviewing the
service agreement. 8/8/2017 5/22/2018 6/15/18 Yes 160 kW/Yes X Project delayed - project was in dispute from Dec 2017-May 2018. (6 months). Health and safety upgrades to the Police Academy building have been delayed as a result.
Additional project costs - $75k (interrupter, #7 box, & installation) Lost gross revenue to SFPUC due to delays: $18k
37 113826565 3630 Divisadero - Claire
Lilenthal School 2 SFUSD Upgrading existing
secondary service
PG&E initially required
primary. Project is
moving forward at
secondary metering.
Service agreement
returned with payment
by SFPUC.
11/14/2017 5/24/2018 5/1/18 Yes 461 kW/Yes X
Project delayed - project was in dispute from Nov. 2017 - Apr. 2018. (5-6 months). The construction of a new building on campus has been delayed as a result.
Additional project costs - $75k (interrupter, #7 box, & installation) Lost gross revenue to SFPUC due to delays: $3k
Further design delays will impact the project construction budget and timeline. 38 114315107
4235 19th Street -
Harvey Milk Civil Rights
Academy
8 SFUSD
Upgrading and relocating
existing secondary
service
PG&E initially required
primary. Project is
moving forward at
secondary metering.
SF working on redesign
required by PG&E. 2/12/2018 9/1/19 Yes 300 kW/Yes X
Project delayed - project was in dispute from Feb. 2018 - Jun. 2018. (3-4 months). Safety improvements and the construction of a new building have been delayed as a result.
Additional project costs - $75k (interrupter, #7 box, & installation) Lost gross revenue to SFPUC due to delays: $6k
Further design delays will impact the project construction budget and timeline. 39 114449998
600 32nd Avenue -
George Washington High
School
1 SFUSD
Upgrading and relocating
existing secondary
service
PG&E initially required
primary. Project is
moving forward at
secondary metering.
SF working on redesign
required by PG&E. 3/27/2018 9/1/18 Yes 500 kW/Yes X
Project delayed - project was in dispute from Feb. 2018 - Jun. 2018. (3-4 months). Safety improvements and the construction of a new building have been delayed as a result.
Additional project costs - $75k (interrupter, #7 box, & installation) Lost gross revenue to SFPUC due to delays: $6k
Further design delays will impact the project construction budget and timeline. 40 114149145 1271 Treat Avenue -
Garfield Pool 9 SFRPD Relocating existing
secondary service
PG&E initially required
primary. Project is
moving forward at
secondary metering.
Engineering estimation
by PG&E 12/28/2017 8/17/2018 5/1/18 Yes 200 kW/Yes X
Project delayed - project was in dispute from Jan. 2018 - May 2018. (3-4 months) Additional project costs - $250k (interrupter, #7 box, transformer, main switchboard, installation, & trenching)
This project is affected by 51 Havelock's delayed timeline as RPD does not want to have more than one pool closed at a time.
41 114427596 950 Golden Gate Avenue -
Margaret Hayward Park 3 SFRPD
Remove existing
secondary services and
replace with single
secondary service
PG&E initially required
primary. Project is
moving forward at
secondary metering.
SF is reviewing the
service agreement. 3/15/2018 6/5/2018 8/1/18 Yes 100 kW/Yes X Project slightly delayed - project was in dispute from Mar. 2018 - May 2018. (2-3 months) Additional project costs - $75k (interrupter, #7 box, & installation) 42 199 Museum Way/122
State Street - Corona
Heights Restroom
5 SFRPD
Return service to a
bathroom that was de-
energized unknowingly
PG&E accidentally cut
the cable to a restroom
during construction of
Randall Museum.
Project is at a
standstill. N/A N/A N/A N/A N/A The bathroom has been out of power for over a year. Re-energization of the bathroom is still TBD. 43 110162018 750 Phelps - Southeast
Plant 10 SFPUC-
Wastewater New primary service
Potential delay as PG&E
is late in providing SIS
agreement.
Application deemed
complete. PG&E is
drafting the System
Impact Study
Agreement.
IN FLIGHT (Prior
to July 2015) 7/14/2018 5/20/2020 N/A 12000 kW/no Potential risk of delay - no impacts to report. 44 114727202 1595 Davidson - Bruce
Flynn Pump Station 10 SFPUC-
Wastewater New primary service
Potential delay as PG&E
was late in providing
Work Performance
Agreement.
Service agreement
issued by PG&E. SFPUC
reviewing agreement.
6/14/2018 7/16/2018 5/1/2019 N/A 2813 kW/Yes Potential risk of delay - no impacts to report. 45 112434155 3133 Van Ness Ave. -
SFMTA Restroom 2 SFMTA New secondary service
PG&E initially required
primary. Project moved
forward with an "Okay
to Serve".
Energized 12/2/2016 4/14/2017 6/1/17 Yes 24 kW/Yes Project delayed - project was in dispute from Jan. 2017 - Mar. 2017. (2-3 months). The opening of a single-use bathroom for SFMTA drivers was delayed as a result.
Attachment A: BOS Quarterly Report for October 2018
A B C D E F G H I J K L M N O
PG&E NN# Project Location District # Client
Organization Project Description
Initial
Application
Submittal Date
App Deemed
Complete
Date
Initial
Service
Need Date
Did PG&E
require
Primary?
Load Size/Can
Be Served at
Secondary
PG&E
committed to
work w/ SF to
energize in
2018
ImpactsProject Status
Notes:
1. Secondary metering is not the same as secondary service. Secondary metering requires extra equipment costs (i.e. an interrupter, approx $75k). The SFPUC believes that many of these loads should be served with secondary service, but has compromised with PG&E to move projects forward.
2. Cost impacts related to lost revenue are estimates calculated off of projected load values.
3. Not all cost impacts are reflected here as increased facility and construction costs are still to be determined.
3. CO2 emissions are calculated using estimated loads with PG&E's 2016 emissions factor.
4. Delay impacts are only calculated off of the time in which PG&E and SF were in dispute. (Other delays are not included)
5. Primary switchgear is estimated to cost an additional $500k.
Key
Project is currently being disputed or has been delayed due to a dispute/issue and is past the Initial Service Need Date (Column K).
Energized, but still facing issues.
Project is moving forward, but not yet energized. Some are still facing major delays. Please review the impact column for further descriptions.
Project has been energized - no outstanding issues.
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Ferry
Terminal
Crane Cove Park Building
Bus
eleCTriCiFiCaTi
on
PiloT
Housing in FrasTr uCTure HealTH insTiTuTion reCreaTi on Tule elk
sCHool
aWss PumP
sTaTi
on 2
amBulanCe
dePlo
ymenT F
aCiliTy
mariPosa PumP
sTaTi
on
PoliCe
aCademy
Claire
lili
enTHal
sCHool
Building
insPeCTion
oFFiCe
garField
P
ool
geor
ge
WasHingTon
HigH sCHool
16TH sTreeT
sTreeTli
gHTs
Harvey milk
Civil rigHTs
aCademy
margareT
HayWard
Park
838 P
aCiFiC
avenue
ggP Tennis
CenTer
CenTral
Bay
side PumP
sTaTi
on
1990, 2060
Folsom
490 souTH
van ness
350 ellis
mission Bay
Ferry landi
ng
souTHeasT
HealTH CenTer
BalBoa Pool
TraFFiC
ConTr
ol &
ForensiCs
1296
sHoTWell
CenTral
suB
Way
sTreeTli
gHT
TransBa y
TransiT CenTer
1950 mission
88 BroadWay
735 davis
2451
saCramenTo
BaCklands
PoWer
Pier 26
geneva Car Barn
king
suBsTaTi
on
BruCe Flynn
PumP s
TaTi
on
liBrary
rePosiTor
y
Corona
HeigHTs
BaTHr
oom
souTHeasT
P
lanT
sFPuC meTered
ser
viCe PoinT
aTTaCHmenT B – Map of
Inter
connectIon Issues
ggP resTr oom
renovations or upgrades
t
o any of these service
points could trigger service
disputes and delays.
as of october 2018
sFmTa
resTr
oom
lake merCed
Bl
vd. & sunseT
Bl
vd. - BaTHr
oom
ATTACHMENT C: Process Timeline for Projects from Application Submittal to Energization
Key
Application and Contract Phase
Construction Phase
Energization Phase
PG&E has 15 days to respond
by:
1) deeming application
complete or
2) providing a comprehensive
list of application deficiencies
with request for additional
information.
PUC has 15 days to execute SIS
agreement. PG&E has 60 days to
complete SIS and determine if
Facility Study (FS) is needed, and if
so, to provide FS agreement.
PG&E has 60 days to
provide a service
agreement (30 days if SIS
or FS is performed),
during which PG&E
begins engineering
estimation.
Additional
documentation
required?
Once application is deemed
complete, PG&E has 30 days
to determine if a System
Impact Study (SIS) is needed
(typically required for larger
projects), and if so, to provide
SIS agreement.
PUC has 15 days to
execute service
agreement and return
with payment.
If PG&E requests additional
information due to application
deficiency, PUC has 45 days to
respond.
Energization date
scheduled.
FS required?
Pre-construction
meeting held.
Inspections begin.
NO SIS required?
PUC reviews and
submits complete
application to PG&E.
YES
Note: In practice, PG&E restarts
the 15-day timeline with each
request for additional
information, with no limit to the
number of requests for
information. YES
Client organization
submits service
request to PUC.
Project energized.
If PG&E requests additional
information due to
application deficiency, PUC
has 45 days to respond.
NO
Pre-construction
meeting scheduled.
If PG&E requests
additional
information due to
application
deficiency, PUC has
45 days to respond.
YES
If PG&E requests
additional information
due to application
deficiency, PUC has 45
days to respond.
NO
PUC has 15 days to execute FS
agreement. PG&E has 60 days
to complete FS.
PG&E starts
construction.
Attachment D: Cost Impacts
A B C D E F G H I J
Project Location Redesign Costs
Primary or
Secondary
Metering
Equipment
Costs
Additonal
Construction
Costs
Additional
Costs to
Project for
PG&E retail
service
Additional
Const./Project
Mgmt Costs
Due to Delay
Additional
Staff Time
Costs
Total
Additional
Project Costs
(B+C+D+E+F+G)
Lost gross
revenue to
SFPUC
CO2 Emissions
(lbs) from PG&E
retail service
1950 Mission Street - Affordable Housing 45,000$ 500,000$ 81,000$ 626,000$ 294,000$ 623,000 490 South Van Ness Avenue - Affordable Housing $ 15,000 $ 43,000 $ 58,000 $ 145,000 294,000 1990 Folsom Street - Affordable Housing $ 29,000 $ 29,000 $ 563,000 926,652 2060 Folsom Street - Affordable Housing $ 8,000 $ 8,000 $ 581,000 922,000 2 Rankin Street - Central Bayside Pump Station $ - 2401 Keith Street - Southeast Health Center $ - 2110 Greenwich Street - Tule Elk Elementary $ - 51 Havelock Street - Balboa Pool $ 20,000 670,000$ $ 500,000 $ 1,190,000 $ 14,000 1995 Evans - Traffic Controls and Forensics $ - Stockton btwn Ellis & O'Farrell - Central Subway Streetlight Reinstallation $ - 1909 16th Street - Streetlights $ - Transbay Transit Center - Transbay Joint Powers Authority $ - Multiple Locations - Guy Wires (Franchise Issue) $ - Lake Merced Blvd & Sunset Blvd - Restroom $ - 50 Bowling Green Drive - GGP Tennis Center $ 75,000 $ 75,000 $ 1,000 1001 22nd Street - Bus Electrification Pilot $ - 49 South Van Ness Avenue - Building Inspection Office $ - 1296 Shotwell Street - Affordable Senior Housing $ 75,000 $ 75,000 88 Broadway - Affordable Housing $ 79,000 $ 79,000 $ 618,000 1,090,000 735 Davis - Affordable Housing $ 18,000 $ 18,000 $ 335,000 584,000 838 Pacific Avenue - Ping Yuen North Affordable Housing $ 240,000 $ 240,000 $ 186,000 350 Ellis Street - Affordable Housing $ - $ 110,000 2451 Sacramento Street - JFK Towers Affordable Housing $ - $ 15,000 16th & Terry Francois Blvd. - Mission Bay Ferry Landing $ 30,000 $ 75,000 $ 70,000 $ 175,000 Ferry Terminal $ 32,000 $ 75,000 $ 96,000 $ 203,000 2241 Jerrold Avenue - Ambulance Deployment Facility $ 100,000 $ 75,000 $ 250,000 $ 100,000 $ 525,000 $ 110,000 Pier 26 - Fire Boat Berthing $ -
800 Amador Street - Pier 94 - Backlands $ 50,000 $ 500,000 $ 50,000 $ 600,000 801 Illinois Street - Crane Cove Park Building $ 75,000 $ 50,000 $ 125,000 2301 San Jose Avenue - Geneva Car Barn $ 5,000 $ 75,000 $ 15,000 $ 95,000 $ 13,000 45th & Lincoln - Restroom for Golden Gate Boat Park $ - 6 Berry Street - Substation $ 5,000 $ 5,000 3455 Van Ness Avenue - AWSS Pump Station No. 2 $ - 750 Brannan - Main Library Repository $ - Illinois St. & Terry Francois - Mariposa Pump Station $ 22,000 $ 22,000 $ 588,000 554,000 350 Amber Drive - Police Academy $ 75,000 $ 75,000 $ 18,000 3630 Divisadero - Claire Lilenthal School $ 75,000 $ 75,000 $ 3,000 4235 19th Street - Harvey Milk Civil Rights Academy $ 75,000 $ 75,000 $ 6,000 600 32nd Avenue - George Washington High School $ 75,000 $ 75,000 $ 6,000 1271 Treat Avenue - Garfield Pool $ 250,000 $ 250,000 950 Golden Gate Avenue - Margaret Hayward Park $ 75,000 $ 75,000 Other Impacts to SF Additional Costs to Project
Attachment D: Cost Impacts
A B C D E F G H I J
Project Location Redesign Costs
Primary or
Secondary
Metering
Equipment
Costs
Additonal
Construction
Costs
Additional
Costs to
Project for
PG&E retail
service
Additional
Const./Project
Mgmt Costs
Due to Delay
Additional
Staff Time
Costs
Total
Additional
Project Costs
(B+C+D+E+F+G)
Lost gross
revenue to
SFPUC
CO2 Emissions
(lbs) from PG&E
retail service
Other Impacts to SF Additional Costs to Project
199 Museum Way/122 State Street - Corona Heights Restroom $ - 750 Phelps - Southeast Plant $ -
1595 Davidson - Bruce Flynn Pump Station $ - 3133 Van Ness Ave. - SFMTA Restroom $ - TOTAL $ 372,000 $ 2,075,000 $ 670,000 $ 280,000 $ 995,000 $ 381,000 $ 4,773,000 $ 3,606,000 $ 4,993,652 $ 4,773,000.00
$ 3,606,000.00
$ 8,379,000.00
4,993,652
Note: These represent estimates of the costs that the City is aware of at at the moment. The projects may incur additional costs going forward.
Total Cost Impact to SF (Project Costs + Lost Revenue)
Total Additional Project Costs
Total Lost Gross Revenue to SFPUC
Total C02 Emissions (lbs.)
EXHIBIT 2
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
City and County of San Francisco
Complainant
v.
Pacific Gas and Electric Company
Respondent
Docket No. EL19-___
DECLARATION OF ROD MASLOWSKI IN
SUPPORT OF THE COMPLAINT OF THE
CITY AND COUNTY OF SAN FRANCISCO
CHALLENGING INTERCONNECTION PRACTICES
OF PACIFIC GAS AND ELECTRIC COMPANY
UNDER WHOLESALE DISTRIBUTION TARIFF
I, Rod Maslowski, declare:
1. I am presently employed as a senior consultant with Flynn Resource Consultants Inc. I submit this declaration in support of the complaint filed in this matter by the City and County of San Francisco (“San Francisco” or “City”). I have personal knowledge of the following facts. If called upon to testify, I could and would testify competently to the contents of this declaration.
2. The purpose of my declaration is to address the interconnection, metering, and switchgear requirements that the Pacific Gas and Electric Company (“PG&E”) is imposing on San Francisco under its Wholesale Distribution Tariff (“WDT”).
Specifically, PG&E has denied San Francisco’s applications for secondary distribution service under the WDT and demanded that the City take primary distribution service at those locations—
both at new points of delivery and at existing points of delivery currently taking secondary service that are being modified—even though the sizes of those loa
ds do not require primary service as an engineering matter. In the process, by requiring primary service, PG&E has imposed excessive metering and switchgear
2 requirements on San Francisco for those loads, far in excess of what is technically necessary, thus requiring San Francisco to incur extraordinary and unnecessary expense and in some instances preventing San Francisco from providing service to its customers due to space and other limitations.
3. As I will discuss below, lower-cost service installations, including secondary service and alternate metering locations, are valid alternatives from an engineering and technical perspective to what PG&E is demanding. These options would not require PG&E to incur any uncompensated costs. In some instances, PG&E has, after significant delay, accepted these alternatives in locations where it initially stated that primary service was required. Since nothing had changed at these locations from a technical or engineering perspective, it is clear that the primary service requirement that PG&E is attempting to impose is not driven by valid technical or engineering requirements.
I. QUALIFICATIONS
4. I have a Bachelor of Science degree in Electrical Engineering from the University of California, Berkeley, and a Master of Business Administration degree from St. Mary’s College. I am a Registered Electrical Engineer in California. I have more than 45 years of expe
rience working with electric utilities, including 35 years at PG&E. I retired from PG&E in 2005.
5. At PG&E, I worked as San Francisco division electric engineer. During this time I worked on distribution planning and engineering, as well as provided technical supervision for PG&E work in San Francisco. I later became the division superintendent for PG&E’s San Francisco Division.
As division superintendent, I was responsible for all
matters related to the distribution of electricity in San Francisco, including customer
3 connections, planning/engineering, construction, operations, emergency response, and other functions. While employed at PG&E, in other assignments I was active in external transmission and distribution industry groups, including the Edison Electric Institute and the Western Electricity Coordinating Council, where I chaired the Operating Committee for several years.
II. SAN FRANCISCO’S RECENT EFFORTS TO CONNECT
CUSTOMERS UNDER THE WDT
6. I have been working with San Francisco since September 2013 on matters related to the WDT and San Francisco’s receipt of service from PG&E. San Francisco presently takes service from PG&E under its WDT at over 2,200 individual metered points of delivery. PG&E previously provided service to San Francisco at most of those points of delivery pursuant to the 1987 Interconnection Agreement between the parties.
When that agreement expired on June 30, 2015, San Francisco began taking service under the WDT at those same points of delivery. Of these existing services, over 96% receive secondary distribution service from PG&E.
7. Pursuant to PG&E’s Electric Rule 2 on file with the California Public Utilities Commission,1 PG&E considers a connection at 12 kilovolts (“kV”) (or 12,000 volts (“V”)) or 34 kV (34,000v) to be a primary service. Primary service is reserved for large distribution loads. Electric Rule 2 makes primary service optional for loads above 500 kilowatts (“kW”) and required for loads above 3000 kW. 2 But this requirement is not for technical, safety, or reliability concerns; instead, it appears to be based on the
1 A copy of Electric Rule 2 is attached hereto as Attachment A. 2 San Diego Gas and Electric Company and Southern California Edison are the other large investor-owned utilities in California. They each have an Electric Rule 2 that establishes similar thresholds for primary and secondary services.
4 standard size transformers that PG&E chooses to stock. When a customer takes primary service, the customer must own the transformer and primary protection, which protects the transformer and serves to protect PG&E from faults on the downstream distribution facilities.
PG&E owns the meter but the customer must provide the facilities to house the meter, typically primary switchgear. PG&E may add its own primary protection at or near the delivery point. These large loads may justify the higher expense and complexity of primary metering, protection, and transformer ownership because the customer will save money over the long term with higher electric usage at the lower primary electric service rates.
In order for a customer to take primary service, however, the customer must also have space available on its property to accommodate all the primary service equipment
(in addition to having a large enough load).
8. Under Electric Rule 2, a connection below 600v (used for loads up to 3000 kW) is a secondary service. When providing secondary distribution service, PG&E will own the transformer. At PG&E’s option, the transformer can be either: (1) a common transformer, which serves more than one customer, or (2) a dedicated transformer, which serves only a single customer. A dedicated transformer is usually used for loads greater than 75 kW. PG&E will also install primary protective devices (“protection”), which are typically fuses. In addition, PG&E will install secondary metering on the building’s electrical switchgear.
9. Although not available to retail customers, wholesale customers taking service under the WDT may also take “primary plus” service. A primary plus service is a secondary voltage connection in which the customer will: (1) pay PG&E to install, own, and maintain dedicated facilities connected to the PG&E primary system (e.g., primary
5 line extension, protection, and a transformer),3 and (2) pay cost of ownership (“CoO”) charges for PG&E to maintain and also replace those dedicated facilities if needed.
PG&E will charge the customer its lower wholesale primary service rate for electrical usage. The “plus” refers to the CoO charges the primary plus customer will incur. In other words, primary plus service is a secondary connection with the primary rate plus cost of ownership charges.
10. Since July 2015, San Francisco has been applying for secondary distribution service4 under the WDT at most new points of delivery. San Francisco has applied for secondary service about 120 locations in San Francisco. This includes applications for both new services and for existing points of delivery where San Francisco seeks either to increase the reserved capacity or to make changes to the service entry to accommodate renovations to the properties being served.5
11. PG&E has refused to provide secondary service to about 40 percent of these applications, including most applications since November 2017.6 Since November 2017, it has denied nearly every application for secondary service for a load above 75 kW, as well as some applications for smaller loads.7 As explained in more detail in the
3 With primary plus service there is generally a transformer dedicated to the customer. If PG&E owns a dedicated transformer for the customer, the customer will have paid for the transformer and a mark-up for ITCC Tax.
4 As used in this Declaration, secondary service refers to service where PG&E owns the transformer and San Francisco pays the secondary rate specified in the WDT. Primary service refers to service where San Francisco owns the transformer and pays the primary rate specified in the WDT. Primary plus service refers to service where PG&E owns the dedicated transformer and San Francisco pays the primary rate plus cost of ownership charges for the transformer.
5 See Declaration of Barbara Hale, Exhibit 1 to the Complaint (“Hale Declaration”). 6 See Hale Declaration.
7 See Hale Declaration.
6 Declaration of Barbara Hale,8 upon receipt of an application for secondary service, PG&E will typically assert that the application is incomplete and will require San Francisco to resubmit an application for primary service. At some of these locations, after protracted negotiations and delays, PG&E has eventually agreed to provide a secondary (or primary plus) service or an alternative primary service configuration with secondary metering.9 Others, however, remain at a standstill.
III. PG&E’S DEMAND THAT SAN FRANCISCO TAKE PRIMARY
WDT SERVICE FOR SMALL LOADS
12. PG&E’s demand that San Francisco take primary service for its smaller loads is excessive and not driven by any technical, safety, or reliability requirements.
Those customer connections could readily be served with a secondary-connected service, with either a dedicated transformer or a common transformer.
13. Indeed, the most common existing service from PG&E for San Francisco load is a secondary-connected service for a smaller load (usually below 500 kW, but in some cases larger), with PG&E owning the dedicated or common transformer and associated primary facilities and the secondary service line. The customer’s load is metered at secondary, at the customer secondary switchgear in its building. More than 96% of San Francisco’s existing metered service points currently receive this type of secondary service. This configuration has been, and can continue to be, used to provide safe, reliable service to the bulk of San Francisco’s loads. And i n most locations with an
existing secondary service, PG&E should be able to provide the secondary service for
8 See Hale Declaration.
9 See Hale Declaration; see also November 7, 2018 SFPUC Quarterly Report to the Board of Supervisors, Attachment B to Exhibit 1, Hale Declaration, to the Complaint (detailing 45 projects in dispute during the period of July 2018 through October 2018).
7 which San Francisco has applied by using or upgrading the existing PG&E transformer at its current location and/or relocating the service as needed.
14. The use of a secondary-connected service for these new and existing smaller San Francisco loads is also consistent with the PG&E retail electric service requirements that have been in place for many years. Those PG&E requirements have evolved to right-size the utility and customer facilities for the distribution load being served. PG&E’s
requiring San Francisco to take primary service for its smaller loads under the WDT is arbitrary and forces a primary service for most installations that would never be the option chosen by the customer if they were given the choice. Nor are they the installations PG&E chooses for its own
similarly-sized retail customers.
15. By requiring San Francisco to take primary service, PG&E is significantly increasing the cost of service for San Francisco service connections. To comply with that demand, San Francisco would need to install and own a dedicated distribution transformer,
along with primary metering, protection, and switchgear and any other secondary voltage facilities needed for service at the location. PG&E has been requiring this even where there is already a PG&E-owned transformer that could be used as-is or upgraded or relocated, or where no dedicated transformer is needed. For dedicated services where a transformer serves only the San Francisco customer, a PG&E-owned transformer for a secondary service or primary plus service should be roughly comparable in cost to a San Francisco-o
wned transformer for a primary service. Costs for
other secondary voltage facilities should also be roughly comparable between primary and secondary service.
8 16. However, a primary service also includes primary metering, switchgear, and a protection/disconnect device. The protection and disconnect device required for a primary service is more expensive and complicated than the protection for a dedicated secondary service. That is because, in addition to protecting the transformer, it also protects the upstream utility from the downstream utility’s distribution facilities and acts as a disconnect point between the two utilities.
This level of protection/disconnect is not
required for a secondary service (served from either a common transformer or a PG&E- owned dedicated transformer) or a primary plus service.
17. Primary metering is also more expensive than secondary metering, and there are physical space concerns associated with installing primary metering for smaller loads. A significant footprint is needed to house primary metering and switchgear, but space constraints may make this infeasible for the smaller sites and facilities typically associated with smaller loads. This primary metering and switchgear requirement is especially problematic when PG&E will be providing service from its underground distribution system to a San Francisco load. Because metering cannot be located underground, it must be installed in an aboveground meter cabinet. And for a primary service, locating the meter at the point of common connection between PG&E and San Francisco often would require placing the cabinet on a public sidewalk or other outdoor location. Conversely, secondary metering is typically and routinely incorporated in the building secondary switchgear, so there no added space burden from the metering.
18. San Francisco agrees that, where feasible and cost-effective, it is appropriate to install the meter at the point of connection between the PG&E-owned facilities and City-owned facilities. Such a meter location measures all the customer’s
9 usage and electrical losses beyond the point of connection. However, there is no technical reason that metering cannot be located away from the point of connection (such as in the building utility room, which is a safer and more secure location for a meter), provided a calculated loss adjustment is programmed into the meter to account for losses. PG&E’s retail Electric Rule 2 recognizes that it may not be feasible for the point of delivery and the point of metering to be in close proximity to each other and explains the meter reading adjustment needed to correct for losses. PG&E’s Greenbook, Electric and Gas Service requirements, in Appendix C, notes that it is not an absolute requirement for metering for a primary service to be at the POS (point of service) and indicates a 2% loss factor for low-side metering. Some existing San Francisco loads currently have metering located away from the point of connection, including the DeYoung Museum and Academy of Sciences, where the point of connection is at the low side of the transformer, but the meter is located hundreds of feet away in the building electrical room. Recently, in order to provide primary service to the City’s Balboa Park and Pool following a major renovation, PG&E increased the meter values by 2
percent for billing purposes in order to
account for losses between the primary point of connection and the metering. This is an appropriate solution where metering cannot safely or practically be located at the point of common connection. And in a dense, built-out urban area like San Francisco, there are many circumstances in which metering cannot be located at the point of common connection.
IV. PG&E’S HAS MISHANDLED SYSTEM IMPACT STUDIES.
19. If San Francisco submits an application for a new service or to increase the load at one of its existing secondary points of delivery, PG&E must determine whether it has sufficient capacity to provide service to the load from its existing facilities.
10 In some instances, this can require a System Impact Study (“SIS”). If PG&E determines that additional or larger facilities are necessary, PG&E could consider upgrading its existing common or dedicated service facilities. What PG&E has been doing, however, is requiring the San Francisco to install its own dedicated service facilities instead (i.e., it is requiring the City to take a new primary service).
20. It is common for PG&E to prepare an SIS, at San Francisco’s expense, when evaluating a new or upgraded service request, particularly if there is a concern about primary system capacity. In several of the SIS’s I have reviewed, PG&E has asserted that there is not adequate capacity in the existing system to serve the load requested by San Francisco.
However, no detail is provided in the SIS to support this assertion. While the WDT states that PG&E is required to provide the work papers that support an SIS, PG&E has declined to provide its work papers or details supporting its determination in response to San Francisco’s requests. In conjunction with a service request, San Francisco has also requested that PG&E provide circuit information and capacity in the area of the service. This information on PG&E facilities in the vicinity of the property being served might allow San Francisco to make adjustments to its service request to avoid triggering large upgrades. PG&E has also declined to provide this information.
V. PG&E SHOULD MODIFY ITS WDT IMPLEMENTATION
PRACTICES
21. To address the issues of mandated dedicated transformers and resulting primary service, San Francisco proposes the following arrangements for new services, expanded existing services, or re-located existing services. San Francisco proposes that
11 these options be available at the start of each project and not depend on lengthy and contested negotiations to achieve these options.
22. For any new service over 3000 kW San Francisco will take primary service from PG&E. Secondary metering at certain locations will be accepted by PG&E if San Francisco determines that the installation of Primary Metering is not feasible.
23. For service applications under 3000 kW, the following guidelines would apply: If San Francisco applies for secondary service, PG&E will assess its common system in the area of the new service to determine if there are adequate facilities to serve the load, or if those facilities need to and can be upgraded to serve the load.
A. For an application for new service, PG&E will provide secondary service if it is not necessary to install a new dedicated transformer.
B. For an application to
change an existing service, PG&E will provide
secondary service if the existing transformer is adequate or if it can be upgraded.
24. If (i) a new dedicated transformer is required for a new service, or (ii) it is not possible to serve the changed existing service from the existing transformer or by upgrading the existing transformer, then San Francisco will have the two following options:
A. San Francisco can install a dedicated transformer at its expense, which the City will own. San Francisco will install primary protection and be allowed to install secondary metering and switchgear10 (San Francisco will
10 PG&E’s WDT does not require installation of metering and switchgear equipment at the types of locations where PG&E has been demanding they be installed. But even if there were such a provision for metering equipment, the WDT specifically contemplates “a variance of the standard metering requirements
12 compensate PG&E for un-metered losses because of the remote location of the meter). San Francisco will pay the primary service rate.
B. PG&E will install a dedicated transformer (which PG&E will own), primary protection, and secondary metering. San Francisco will receive primary plus service and pay the primary service rate and Cost of Ownership charges for Direct Assignment Facilities.
25. Finally, where a physical modification of a point of connection affects an existing underground secondary service without a load increase, PG&E will relocate its service facilities as needed to
maintain the secondary service.
26. These proposals for new, upgraded, or re-located services comply with the WDT, are fair to both San Francisco and PG&E, are consistent with past practice and treatment of other wholesale customers, would provide timely and predictable service requirements to meet customer schedules for service, would fully compensate PG&E, and would allow San Francisco to serve its customers with the type of service that best suits the needs of San Francisco and its customers.
27. These proposals would not be out of the ordinary for PG&E. For example, PG&E provides wholesale distribution service to the Western Area Power Administration (“WAPA”). In 2015, WAPA received secondary service at 970 points of delivery and primary plus service at 95 points of delivery (approximately 84% of the total 1,271
WAPA service connections).11 Through December 2018, WAPA has added 50 and
if the physical characteristics of a particular Point of Delivery make installation of standard metering impractical.” WDT § 20.1. In the City’s dense, built-up urban environment, interconnections for existing buildings qualify for such a variance.
11 Service Agreement No. 17 under Pacific Gas and Electric Company’s FERC Electric Tariff Volume No. 4, as filed in Pac. Gas & Elec. Co., Docket No. ER16-400-000 (Nov. 25, 2015), eLibrary
13 deleted 21 secondary points of delivery, and added 75 and deleted 3 primary plus points of delivery (approximately 85% of the total 1,372 WAPA service connections at the end of 2018).12 For example, the additions in 2017 included 6 new secondary points of delivery, several of which appear large enough to require a dedicated PG&E-owned transformer.13 Moreover, the WAPA Wholesale Distribution Tariff Service Agreement expressly provides that secondary service is available at new points of delivery where “all secondary voltage facilities serve one customer.”
14 PG&E allows the customer to choose
the “Primary Plus Option or the Secondary Option.” If the customer opts for secondary service, the customer will not incur any cost of ownership charges but will pay the higher
No. 20151125-5324.
12 Service Agreement No. 17 under Pacific Gas and Electric Company’s FERC Electric Tariff Volume No. 4, a filed in Pac. Gas & Elec. Co., Docket No. ER16-400-000 (Nov. 25, 2017), eLibrary No. 20151125-5324; Modification Other than Rate Increase (Type of Filing Code 10): Service Agreement No. 17 under Pacific Gas and Electric Company’s FERC Electric Tariff Volume No. 4, as filed in Pac. Gas & Elec. Co., Docket No. ER16-1822-000 (May 31, 2016), eLibrary No. 20160531-5542; Modification Other than Rate Increase (Type of Filing Code 10): Service Agreement No. 17 under Pacific Gas and Electric Company’s FERC Electric Tariff Volume No. 4, as filed in Pac. Gas & Elec. Co., Docket No. ER17-432-000 (Nov. 30, 2016), eLibrary No. 20161130-5207; Modification Other than Rate Increase (Type of Filing Code 10): Service Agreement No. 17 under Pacific Gas and Electric Company’s FERC Electric Tariff Volume No. 4, as filed in Pac. Gas & Elec. Co., Docket No. ER17-1715-000 (May 31, 2017), eLibrary No. 20170531-5168 (“May 31, 2017 filing in Docket No. ER17-1715-000”); Service Agreement No. 17 under Pacific Gas and Electric Company’s FERC Electric Tariff Volume No. 4, as filed in Pac. Gas & Elec. Co., Docket No. ER18-357-000 (Nov. 30, 2017), eLibrary No. 20171130-5153 (“November 30, 2017 filing in Docket No. ER18-357-000”); Modification Other than Rate Increase (Type of Filing Code 10): Service Agreement No. 17 under Pacific Gas and Electric Company’s FERC Electric Tariff Volume No. 4, a filed in Pac. Gas & Elec. Co., Docket No. ER18-1713-000 (May 31, 2018), eLibrary No. 20180531-5384; Service Agreement No. 17 under Pacific Gas and Electric Company’s FERC Electric Tariff Volume No. 4 Modification Other than Rate Increase (Type of Filing Code 10), a filed in Pac. Gas & Elec. Co., Docket No. ER19-452-000 (Nov. 30, 2018), eLibrary No. 20181130-5264. 13 May 31, 2017 filing in Docket No. ER17-1715-000; Errata to the May 2017 Western Area Power Administration Biannual Filing, Service Agreement No. 17 under Pacific Gas and Electric Company’s FERC Electric Tariff Volume No. 4, as filed in Pac. Gas & Elec. Co., Docket No. ER17-1715-000 (June 15, 2017), eLibrary No. 20170615-5144; November 30, 2017 filing in Docket No. ER18-357-000. 14 Service Agreement No. 17 under PG&E FERC Electric Tariff Volume No. 4, Service Agreement for Wholesale Distribution Service between PG&E & WAPA, Contract No. 04-SNR-00789 & Settlement Agreement, App. F § 2.2 (“WAPA WDT SA”).
secondary distribution rate.15 Where some secondary "common" facilities and some direct assigned facilities will be used to provide secondary service, PG&E includes a cost of ownership charge for "those facilities that are Direct Assigned."16 These approaches are reasonable solutions to the problems San Francisco has raised in this complaint. Yet, PG&E has rejected every application in which San Francisco requests these types of service. PG&E will on occasion offer these types of service to San Francisco's customers, but only as accommodations after months of negotiations.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on January 28, 2019. 15 WAPA WDT SA, App. F § 2.2.
16 WAPA WDT SA, App. F § 2.3.
Rod Maslowski
14 EXHIBIT 2
ATTACHMENT A
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 11257-E
Cancelling Revised Cal. P.U.C. Sheet No. 6925-E
ELECTRIC RULE NO. 2 Sheet 1
DESCRIPTION OF SERVICE
(Continued)
Advice 1303-E Issued by Date Filed June 21, 1990
Decision Robert S. Kenney Effective July 31, 1990
Vice President, Regulatory Affairs Resolution
A. GENERAL
1. The type of service available at any particular location should be determined by inquiry at PG&E's local office.
2. Alternating-current service will be regularly supplied at a frequency of approximately 60 Hertz (cycles per second).
3. In areas where a certain standard secondary voltage is presently being served to one or more customers, an applicant applying for new service in such areas may be required by PG&E to receive the same standard voltage supplied to existing customers.
4. All electric service described in this rule is subject to the conditions in the applicable rate schedule and other pertinent rules.
5. It is the responsibility of the applicant to ascertain and comply with the requirements of governmental authorities having jurisdiction.
6. Service to an applicant is normally established at one delivery point, through one meter, and at one voltage class. Other arrangements for service at multiple service delivery points, or for services at more than one voltage class, are permitted only where feasible and with the approval of PG&E. For purposes of this rule, distribution service voltage classes, delta or wye connected, are described as:
a. 0-300 volt source, single- or three-phase.
b. 301-600 volt source, three-phase.
c. 601-3,000 volt source, three-phase.
d. 3,001-5,000 volt source, three-phase.
e. 5,001-15,000 volt source, three-phase.
f. 15,001-25,000 volt source, three-phase.
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 11896-E*
Cancelling Revised Cal. P.U.C. Sheet No. 11496-E*
ELECTRIC RULE NO. 2 Sheet 2
DESCRIPTION OF SERVICE
(Continued)
Advice 1393-E Issued by Date Filed April 21, 1992
Decision Robert S. Kenney Effective July 1, 1992
Vice President, Regulatory Affairs Resolution E-3278
A. GENERAL (Cont'd.)
7. New direct-current (d-c) or two-phase service is not available. Direct-current service and two-phase service is supplied only to existing customers who continue to operate existing d-c or two-phase equipment. Such service is being gradually replaced by standard alternating-current service.
B. SERVICE DELIVERY VOLTAGES
1. Following are the standard service voltages normally available, although not all of them are or can be made available at each service delivery point:
Distribution Voltages
Transmission
Voltages
Single-phase
Secondary
Three-phase
Secondary
Three-phase
Primary
Three-phase
120/240, 3-wire 240/120, 4-wire 2,400, 3-wire* 60,000, 3-wire
120/208, 3-wire 240, 3-wire* 4,160, 3-wire* 70,000, 3-wire 208Y/120, 4-wire 4,160Y/2,400, 4-wire* 115,000, 3-wire 480/3-wire** 12,000, 3-wire 230,000, 3-wire (T)
480/277, 4-wire 12,000Y/6,930, 4-wire* (T)
480Y/277, 4-wire 17,200, 3-wire
20,780, 3-wire
20,780Y/12,000, 4-wire
_______________
* Limited availability, consult PG&E.
** This service is no longer available for new or rebuilt installations.
(N)
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 11611-E
Cancelling Revised Cal. P.U.C. Sheet No. 11259-E
ELECTRIC RULE NO. 2 Sheet 3
DESCRIPTION OF SERVICE
(Continued)
Advice 1330-E-A Issued by Date Filed March 1, 1991
Decision Robert S. Kenney Effective April 1, 1991
Vice President, Regulatory Affairs Resolution
B. SERVICE DELIVERY VOLTAGES (Cont'd.)
2. The following non-standard distribution voltages exist in certain limited areas but their use is not being expanded and they are gradually being replaced with an appropriate standard voltage listed in Section B.1:
a. 4,800 volts, 3-wire
b. 22,900 volts, 3-wire
c. 44,000 volts, 3-wire
3. All voltages referred to in this rule and appearing in some rate schedules are nominal service voltages at the service delivery point. PG&E's facilities are designed and operated to provide sustained service voltage at the service delivery point, but the voltage at a particular service delivery point, at a particular time, will vary within fully satisfactory operating range limits established in Section C.
4. The point of delivery and point of metering will normally be at the same voltage and within close proximity to each other. When PG&E determines it is not feasible for the point of delivery and point of metering to be at the same voltage and within close proximity to each other, the demand and energy meter readings used in determining the charges will be adjusted to correct for transformation and line losses.
An estimated transformer loss adjustment factor of two percent will be applied to the demand and energy meter readings for each stage of transformation between the point of delivery and the point of metering, unless PG&E and the customer agree that specific transformer manufacturer test data support a different transformer loss adjustment.
Line losses will be calculated as a function of the current through, and the electrical characteristics of, the line between the point of delivery and point of metering. Line loss adjustments will apply only to customers whose bills are currently adjusted for line losses or to services established after April 1, 1991.
C. VOLTAGE AND FREQUENCY CONTROL
1. CUSTOMER SERVICE VOLTAGES
a. Under all normal load conditions, PG&E’s distribution circuits will be operated so as to maintain secondary service voltage levels to customers within the service voltage ranges specified below:
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U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 14079-E
Cancelling Revised Cal. P.U.C. Sheet No. 13061-E
ELECTRIC RULE NO. 2 Sheet 4
DESCRIPTION OF SERVICE
(Continued)
Advice 1588-E Issued by Date Filed July 2, 1996
Decision Robert S. Kenney Effective August 11, 1996
Vice President, Regulatory Affairs Resolution
C. VOLTAGE AND FREQUENCY CONTROL (Cont’d.)
1. CUSTOMER SERVICE VOLTAGES (Cont’d.)
a. (Cont’d.)
Nominal
Two-Wire And
Multi-Wire
Minimum
Voltage To
Maximum Service
Voltage On
Residential And
Commercial
Distribution Circuits
Maximum Service
Voltage On
Agricultural And
Industrial
Service Voltage All Services Class A Class B Distribution Circuits 120 114 120 126 126
208 197 208 218 218
240 228 240 252 252
277 263 277 291 291
480 456 480 504 504
1) For purposes of energy conservation, PG&E's distribution voltage will be regulated to the extent practicable to maintain service voltage on residential and commercial distribution circuits within the minimum and maximum voltages specified above for Class A circuits. 2) The residential and commercial distribution circuits that cannot be operated within the minimum and maximum voltages for Class A circuits shall be regulated to the extent practicable to maintain service voltage within the minimum and maximum voltages for Class B circuits and, whenever possible, within the minimum and maximum voltages for Class A circuits.
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U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 11261-E
Cancelling Revised Cal. P.U.C. Sheet No. 7682-E
ELECTRIC RULE NO. 2 Sheet 5
DESCRIPTION OF SERVICE
(Continued)
Advice 1303-E Issued by Date Filed June 21, 1990
Decision Robert S. Kenney Effective July 31, 1990
Vice President, Regulatory Affairs Resolution
C. VOLTAGE AND FREQUENCY CONTROL (Cont'd.)
1. CUSTOMER SERVICE VOLTAGES (Cont'd.)
b. Exceptions to Voltage Limits
Voltage may be outside the limits specified when the variations:
1) Arise from the temporary action of the elements.
2) Are infrequent momentary fluctuations of a short duration. 3) Arise from service interruptions.
4) Arise from temporary separation of parts of the system from the main system.
5) Are from causes beyond the control of PG&E.
c. It must be recognized that, because of conditions beyond the control of PG&E or customer, or both, there will be infrequent and limited periods when sustained voltages outside of the service voltage ranges will occur.
Utilization equipment may not operate satisfactorily under these conditions, and protective devices may operate to protect the equipment. d. The sustained service delivery voltages are subject to minor momentary and transient voltage excursions which may occur in the normal operation of PG&E's system. Subject to the limitations of C.1.a. above, the voltage balance between phases will be maintained by PG&E as close as practicable to 2½ percent maximum deviation from the average voltage between the three phases.
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 11262-E
Cancelling Revised Cal. P.U.C. Sheet No. 9313-E
ELECTRIC RULE NO. 2 Sheet 6
DESCRIPTION OF SERVICE
(Continued)
Advice 1303-E Issued by Date Filed June 21, 1990
Decision Robert S. Kenney Effective July 31, 1990
Vice President, Regulatory Affairs Resolution
C. VOLTAGE AND FREQUENCY CONTROL (Cont'd.)
1. CUSTOMER SERVICE VOLTAGES (Cont'd.)
e. Where the operation of the applicant's equipment requires unusually stable voltage regulation or other stringent voltage control beyond that supplied by PG&E in the normal operation of its system, the applicant, at his own expense, is responsible for installing, owning, operating, and maintaining any special or auxiliary equipment on the load side of the service delivery point as deemed necessary by the applicant.
f. The applicant shall be responsible for designing and operating his service facilities between the service delivery point and the utilization equipment to maintain proper utilization voltage at the line terminals of the utilization equipment.
2. CUSTOMER UTILIZATION VOLTAGES
a. All customer-owned utilization equipment must be designed and rated in accordance with the following utilization voltages specified by the American National Standard C84.1 if customer equipment is to give fully satisfactory performance:
Nominal
Utilization
Voltage
Minimum
Utilization
Voltage
Maximum
Utilization
Voltage
120 110 125
208 191 216
240 220 250
277 254 289
480 440 500
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 11263-E
Cancelling Revised Cal. P.U.C. Sheet No. 9313-E
ELECTRIC RULE NO. 2 Sheet 7
DESCRIPTION OF SERVICE
(Continued)
Advice 1303-E Issued by Date Filed June 21, 1990
Decision Robert S. Kenney Effective July 31, 1990
Vice President, Regulatory Affairs Resolution
C. VOLTAGE AND FREQUENCY CONTROL (Cont'd.)
2. CUSTOMER UTILIZATION VOLTAGES (Cont'd.)
b. The differences between service and utilization voltages are allowances for voltage drop in customer wiring. The maximum allowance is 4 volts (120 volt base) for secondary service.
c. Minimum utilization voltages from American National Standard C84.1 are shown for customer information only as PG&E has no control over voltage drop in customer's wiring.
d. The minimum utilization voltages shown in a. above, apply for circuits supplying lighting loads. The minimum secondary utilization voltages specified by American National Standard C84.1 for circuits not supplying lighting loads are 90 percent of nominal voltages (108 volts on 120 volt base) for normal service.
e. Motors used on 208 volt systems should be rated 200 volts or (for small single-phase motors) 115 volts. Motors rated 230 volts will not perform satisfactorily on these systems and should not be used. Motors rated 220 volts are no longer standard, but many of them were installed on existing 208 volt systems on the assumption that the utilization voltage would not be less than 187 volts (90 percent of 208 volts).
3. FREQUENCY
PG&E will exercise reasonable diligence and care to regulate and maintain its frequency within reasonable limits but does not guarantee same.
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 31319-E
Cancelling Revised Cal. P.U.C. Sheet No. 27763-E
ELECTRIC RULE NO. 2 Sheet 8
DESCRIPTION OF SERVICE
(Continued)
Advice 4004-E Issued by Date Filed February 6, 2012
Decision Brian K. Cherry Effective March 7, 2012
Vice President Resolution
Regulation and Rates
D. GENERAL LOAD LIMITATIONS
1. SINGLE-PHASE SERVICE
a. Single-phase service normally will be three-wire, 120/240 volts (or three-wire 120/208 volts at certain locations as now or hereafter established by PG&E) where the size of any single motor does not exceed 7.5 horsepower (larger motors may be permitted at the option of PG&E). For any single-phase service, the maximum demand as determined by PG&E is limited to the capability of a 100 kVa transformer unless otherwise approved by PG&E. If the load requires a transformer installation in excess of 100 kVa, the service normally will be three-phase.
b. In locations where PG&E maintains a 120/208 volt secondary system, 3-wire single-phase service normally shall be limited to that which can be supplied by a main switch or service entrance rating of 200 amperes. Single-phase loads in these locations in excess of that which can be supplied by a 200 ampere main switch or service entrance rating normally will be supplied with a 208Y/120-volt, three-phase, 4-wire service.
(T)
(T)
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 27764-E
Cancelling Revised Cal. P.U.C. Sheet No. 11498-E
ELECTRIC RULE NO. 2 Sheet 9
DESCRIPTION OF SERVICE
(Continued)
Advice 3353-E Issued by Date Filed October 16, 2008
Decision Brian K. Cherry Effective November 15, 2008
Vice President Resolution
Regulatory Relations
D. GENERAL LOAD LIMITATIONS (Cont'd.)
2. THREE-PHASE SERVICE (2,000 VOLTS OR LESS)
Nominal Voltage
Minimum Load Requirements
Maximum Demand
Load Permitted
a. Secondary service normally available from overhead primary distribution systems (this may require the installation of underground primary to supply a transformer at ground level.):
208Y/120 Demand load justifies a
75 kVa transformer
1,000 kVa (T)
|
240* 5 hp, 3-phase connected 300 kVa |
240/120 5 hp, 3-phase connected 300 kVa |
480 30 kVa, 3-phase demand 3,000 kVa |
480Y/277 30 kVa, 3-phase demand 3,000 kVa (T)
b. Secondary service from underground primary distribution systems (where PG&E maintains existing 3-phase primary circuits):
208Y/120 Demand load justifies a
75 kVa transformer
1,000 kVa (T)
|
240 10 hp, 3-phase connected 300 kVa |
240/120 10 hp, 3-phase connected 300 kVa |
480Y/277 Demand load justifies a
75 kVa transformer
3,000 kVa |
(T)
c. Secondary service from underground network systems (only in portions of downtown San Francisco and Oakland):
208Y/120 None 2,000 kVa (T)
480Y/277 1,200 kVa demand load As required (T)
_______________
* Limited availability, consult PG&E.
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 27765-E
Cancelling Revised Cal. P.U.C. Sheet No. 11266-E
ELECTRIC RULE NO. 2 Sheet 10
DESCRIPTION OF SERVICE
(Continued)
Advice 3353-E Issued by Date Filed October 16, 2008
Decision Brian K. Cherry Effective November 15, 2008
Vice President Resolution
Regulatory Relations
D. GENERAL LOAD LIMITATIONS (Cont'd.)
2. THREE-PHASE SERVICE (2,000 VOLTS OR LESS) (Cont'd.)
d. Where three-phase service is supplied, PG&E reserves the right to use banks of single-phase transformers or three-phase transformers. e. Three-phase service will be supplied on request for installations aggregating less than the minimums listed above but not less than 3 hp, three-phase, where existing transformer capacity is available. If three-phase service is not readily available, or for service to loads less than 3 hp, service shall be provided in accordance with either Section H or I of this rule regarding Connected Load Ratings and Special Facilities.
f. Three-phase metering for one service voltage supplied to installations on one premise at one delivery location normally is limited to a maximum of a 4,000 ampere service rating. Metering for larger installations, or installations having two or more service switches with a combined rating in excess of 4,000 amperes, or service for loads in excess of the maximum demand load permitted, may be installed provided approval of PG&E has been first obtained as to the number, size, and location of switches, circuits, transformers and related facilities. Service supplied to such approved installations in excess of one 4,000 ampere switch or breaker at one service delivery point may be totalized for billing purposes.
(T)
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 27766-E
Cancelling Revised Cal. P.U.C. Sheet No. 11267-E
ELECTRIC RULE NO. 2 Sheet 11
DESCRIPTION OF SERVICE
(Continued)
Advice 3353-E Issued by Date Filed October 16, 2008
Decision Brian K. Cherry Effective November 15, 2008
Vice President Resolution
Regulatory Relations
D. GENERAL LOAD LIMITATIONS (Cont'd.)
3. THREE-PHASE SERVICE (OVER 2,000 VOLTS)
a. Following are three-phase voltages that are transformed from higher existing primary distribution voltages and provided only as isolated services for a single applicant where the applicant's demand load justifies, as determined by PG&E, the installation of the minimum size transformer bank used by PG&E:
Nominal Voltage
Minimum Size
Bank Installed
Maximum Demand
Load Permitted
2,400 (See Note 1) 500 kVa 5,000 kVa
(T)
4,160 (See Note 1) 500 kVa 5,000 kVa |
12,000 (See Notes 1 and 2) 1,000 kVa 10,000 kVa (T)
b. Following are the standard primary voltages, one of which may be available without transformation from existing primary distribution lines in the area:
4,160 100 kVa 4,000 kVa (T)
12,000 (See Note 1) 500 kVa 12,000 kVa |
17,200 500 kVa 15,000 kVa |
20,780 500 kVa 20,000 kVa (T)
Note 1: Not available in the network areas in portions of downtown San Francisco and Oakland.
Note 2: Not available where existing primary is 17,200 volts.
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 27767-E
Cancelling Revised Cal. P.U.C. Sheet No. 11499-E
ELECTRIC RULE NO. 2 Sheet 12
DESCRIPTION OF SERVICE
(Continued)
Advice 3353-E Issued by Date Filed October 16, 2008
Decision Brian K. Cherry Effective November 15, 2008
Vice President Resolution
Regulatory Relations
D. GENERAL LOAD LIMITATIONS (Cont'd.)
3. THREE-PHASE SERVICE (OVER 2,000 VOLTS) (Cont'd.)
c. Applicants with minimum demand loads of 4,000 kVa may elect to take delivery at the available transmission voltage and provide their own substation facilities. The availability of transmission voltages shall be determined by PG&E. Where a substation on an applicant's property is supplied from a transmission voltage source, the metering may be installed, at PG&E's option, on the secondary side of the transformers and may be subject to a transformer loss adjustment in accordance with Section B.4 of this Rule.
d. For its operating convenience and necessity, PG&E may elect to supply an applicant whose demand load is in excess of 2,000 kVa from a substation on the applicant's premises supplied from a transmission source. Refer to Rule 16 for additional information regarding transformers located on the applicant's premises.
e. Three-phase service outside the limits of Section D.3 may be available but only if feasible and approved by PG&E.
f. PG&E reserves the right to change its distribution or transmission voltage to another standard service voltage when, in its judgment, it is necessary or advisable for economic reasons or for proper service to its customers.
Where a customer is receiving service at the voltage being changed, the customer then has the option to: (1) accept service at the new voltage, (2) accept service at the secondary side of an additional stage of transformation to be supplied by PG&E at a location on the customer's premises in accordance with PG&E's requirements, or (3) contract with PG&E for an additional stage of transformation to be installed as special facilities (including any applicable Contributions in Aid of Construction taxes) under the provisions of Section I, below, whereby the customer will be considered as accepting service at the primary side of the additional stage of transformation. Metering not relocated to the primary side of the additional stage of transformation will be subject to a transformer loss adjustment in accordance with Section B.4 of this Rule. The option to contract with PG&E for an additional stage of transformation (option 3, above) is available only once in conjunction with a change in standard voltage by PG&E.
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U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 11269-E
Cancelling Revised Cal. P.U.C. Sheet No. 10831-E
ELECTRIC RULE NO. 2 Sheet 13
DESCRIPTION OF SERVICE
(Continued)
Advice 1303-E Issued by Date Filed June 21, 1990
Decision Robert S. Kenney Effective July 31, 1990
Vice President, Regulatory Affairs Resolution
D. GENERAL LOAD LIMITATIONS (Cont'd.)
4. LOAD BALANCE
The applicant must balance his demand load as nearly as practicable between the two sides of a three-wire single-phase service and between all phases of a three-phase service. The difference in amperes between any two phases at the customer's peak load should not be greater than 10 percent or 50 amperes (at the service delivery voltage), whichever is greater; except that the difference between the load on the lighting phase of a four-wire delta service and the load on the power phase may be more than these limits. It will be the responsibility of the customer to keep his demand load balanced within these limits.
E. PROTECTIVE DEVICES
1. It shall be the applicant's responsibility to furnish, install, inspect and keep in good and safe condition at his own risk and expense, all appropriate protective devices of any kind or character, which may be required to properly protect the applicant's facilities. PG&E shall not be responsible for any loss or damage occasioned or caused by the negligence, or wrongful act of the applicant or of any of his agents, employees or licensees in omitting, installing, maintaining, using, operating or interfering with any such protective devices.
2. It shall be the applicant's responsibility to select and install such protective devices as may be necessary to coordinate properly with PG&E's protective devices to avoid exposing other customers to unnecessary service interruptions.
3. It shall be the applicant's responsibility to equip his three-phase motor installations with appropriate protective devices, or use motors with inherent features, to completely disconnect each such motor from its power supply, giving particular consideration to the following:
a. Protection in each set of phase conductors to prevent damage due to overheating in the event of overload.
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 11270-E
Cancelling Revised Cal. P.U.C. Sheet No. 10831-E
ELECTRIC RULE NO. 2 Sheet 14
DESCRIPTION OF SERVICE
(Continued)
Advice 1303-E Issued by Date Filed June 21, 1990
Decision Robert S. Kenney Effective July 31, 1990
Vice President, Regulatory Affairs Resolution
E. PROTECTIVE DEVICES (Cont'd.)
3. (Cont'd.)
b. Protection to prevent automatic restarting of motors or motor driven machinery which has been subjected to a service interruption and, because of the nature of the machinery itself or the product it handles, cannot safely resume operation automatically.
c. Open-phase protection to prevent damage due to overheating in the event of loss of voltage on one phase.
d. Reverse-phase protection where appropriate to prevent uncontrolled reversal of motor rotation in the event of accidental phase reversal. (Appropriate installations would include, but are not limited to, motors driving elevators, hoists, tramways, cranes, pumps, conveyors, etc.)
4. The available short-circuit current varies from one location to another, and also depends on the ultimate design characteristics of PG&E's supply and service facilities. Consult PG&E for the ultimate maximum short-circuit current at each service termination point.
5. Where an applicant proposes to use a ground-fault sensing protective system which would require special PG&E-owned equipment, such a system may be installed only where feasible and with written approval of PG&E.
6. Any non-PG&E-owned emergency standby or other generation equipment that can be operated to supply power to facilities that are also designed to be supplied from PG&E's system shall be controlled with suitable protective devices by the applicant to prevent parallel operation with PG&E's system in a fail-safe manner, such as the use of a double-throw switch to disconnect all conductors, except where there is a written agreement or service contract with PG&E permitting such parallel operation.
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 11271-E
Cancelling Revised Cal. P.U.C. Sheet No. 6931-E
ELECTRIC RULE NO. 2 Sheet 15
DESCRIPTION OF SERVICE
(Continued)
Advice 1303-E Issued by Date Filed June 21, 1990
Decision Robert S. Kenney Effective July 31, 1990
Vice President, Regulatory Affairs Resolution
F. INTERFERENCE WITH SERVICE
1. GENERAL
PG&E reserves the right to refuse to serve new loads or to continue to supply existing loads of a size or character that may be detrimental to PG&E's operations or to the service of its customers. Any customer who operates or plans to operate any equipment such as, but not limited to, pumps, welders, saw mill apparatus, furnaces, compressors or other equipment where the use of electricity is intermittent, causes intolerable voltage fluctuations, or otherwise causes intolerable service interference, must reasonably limit such interference or restrict the use of such equipment upon request by PG&E. The customer is required either to provide and pay for whatever corrective measures are necessary to limit the interference to a level established by PG&E as reasonable, or avoid the use of such equipment, whether or not the equipment has previously caused interference.
2. HARMFUL WAVE FORM
Customers shall not operate equipment that superimposes a current of any frequency or wave form upon PG&E's system, or draws current from PG&E's system of a harmful wave form, which causes interference with PG&E's operations, or the service to other customers, or inductive interference to communication facilities.
3. CUSTOMER'S RESPONSIBILITY
Any customer causing service interference to others must diligently pursue and take timely corrective action after being given notice and a reasonable time to do so by PG&E. If the customer does not take timely corrective action, or continues to operate the equipment causing the interference without restriction or limit, PG&E may, without liability, after giving five days written notice to customer, either install and activate control devices on its facilities that will temporarily prevent the detrimental operation, or discontinue electric service until a suitable permanent solution is provided by the customer and it is operational.
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 11272-E
Cancelling Revised Cal. P.U.C. Sheet No. 6931-E
ELECTRIC RULE NO. 2 Sheet 16
DESCRIPTION OF SERVICE
(Continued)
Advice 1303-E Issued by Date Filed June 21, 1990
Decision Robert S. Kenney Effective July 31, 1990
Vice President, Regulatory Affairs Resolution
F. INTERFERENCE WITH SERVICE (Cont'd.)
4. MOTOR STARTING CURRENT LIMITATIONS
a. The starting of motors shall be controlled by the customer as necessary to avoid causing voltage fluctuations that will be detrimental to the operation of PG&E's distribution or transmission system, or to the service of any of PG&E's customers.
b. If the starting current for a single motor installation exceeds the value listed in Table 1, and the resulting voltage disturbance causes or is expected to cause detrimental service to others, reduced voltage starters or other suitable means must be employed, at the customer's expense, to limit the voltage fluctuations to a tolerable level, except as otherwise provided under subsections 4.d., 4.e., 4.f., and 4.g.
c. The starting current shall be considered to be the current defined in Note 2 of Table 1. At its option, PG&E may determine the starting current of a motor by test, using a stop ammeter with not more than 15 percent overswing, or an oscillograph, disregarding the value shown for the first ten cycles after energizing the motor.
d. Where service conditions permit, subject to PG&E's approval, motor starters may be deferred in the original installation. PG&E may later order the installation of a suitable starter or other devices when it has been determined that the operation of the customer's motors interfere with service to others.
Also, PG&E may require starting current values lower than those set forth herein where conditions at any point on its system require such reduction to avoid interference with service to other customers.
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 27768-E
Cancelling Revised Cal. P.U.C. Sheet No. 11273-E
ELECTRIC RULE NO. 2 Sheet 17
DESCRIPTION OF SERVICE
(Continued)
Advice 3353-E Issued by Date Filed October 16, 2008
Decision Brian K. Cherry Effective November 15, 2008
Vice President Resolution
Regulatory Relations
F. INTERFERENCE WITH SERVICE (Cont'd.)
4. MOTOR STARTING CURRENT LIMITATIONS (Cont'd.)
e. In the case of room and unitary air conditioners, heat pumps or other complete unit equipment on which the nameplate rating is expressed in kVa input and not in hp output, the nameplate kVa input rating shall be considered to be the hp rating for use of Table 1. If the nameplate does not show kVa input, then it may be determined for single-phase motors by taking the product of the running input line current in amperes times the input voltage rating divided by 1,000. For three-phase motors, multiply this product by the square root of three (1.73).
f. The starting current values in Table 1 apply only to the installation of a single motor. Starters may be omitted on the smaller motors of a group installation when their omission will not result in a starting current in excess of the allowable starting current of the largest motor of the group. Where motors start simultaneously, they will be treated as a single unit equal to the sum of their individual starting currents.
g. PG&E may limit the maximum size and type of any motor that may be operated at any specific location on its system to that which will not be detrimental to PG&E's system operations or to the service of its customers, as determined by PG&E.
h. Where the design or operation of the customer's motor is such that unequal starting currents flow in PG&E's service conductors, the largest starting current in any one set of phase conductors shall be considered the motor starting current.
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(T)
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 11274-E
Cancelling Revised Cal. P.U.C. Sheet No. 6932-E
ELECTRIC RULE NO. 2 Sheet 18
DESCRIPTION OF SERVICE
(Continued)
Advice 1303-E Issued by Date Filed June 21, 1990
Decision Robert S. Kenney Effective July 31, 1990
Vice President, Regulatory Affairs Resolution
F. INTERFERENCE WITH SERVICE (Cont'd.)
4. MOTOR STARTING CURRENT LIMITATIONS (Cont'd.)
i. For installations of motors where the equipment is started automatically by means of float, pressure, or thermostat devices, such as with pumps or wind machines for frost protection, irrigation pumps or other similar installations, PG&E may require the customer to install, at his own expense and in accordance with PG&E's operating requirements, suitable preset time-delay devices to stagger the automatic connection of load to the supply system and to prevent simultaneous start-up for any reason.
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 11275-E
Cancelling Revised Cal. P.U.C. Sheet No. 6932-E
ELECTRIC RULE NO. 2 Sheet 19
DESCRIPTION OF SERVICE
(Continued)
Advice 1303-E Issued by Date Filed June 21, 1990
Decision Robert S. Kenney Effective July 31, 1990
Vice President, Regulatory Affairs Resolution
F. INTERFERENCE WITH SERVICE (Cont'd.)
4. MOTOR STARTING CURRENT LIMITATIONS (Cont'd.)
TABLE 1
NORMAL MAXIMUM ALLOWABLE MOTOR STARTING CURRENTS
ALTERNATING-CURRENT MOTORS
Rated HP
Single-Phase
Voltage
Motor Rating
(Service Voltage)
Three-Phase Voltage
Motor Rating (Service Voltage)
Output 230v (240v) 200v (208v) 230v (240v) 460v (480v) 2 60 amps – – –
3 80 74 amps 64 amps 32 amps
5 120 106 92 46
7.5 170 146 127 63
10 – 186 162 81
15 – 267 232 116
20 – 347 302 151
25 – 428 372 186
30 – 508 442 221
40 – 669 582 291
50 – 830 722 361
60 – – – 431
75 – – – 536
100 – – – 711
Over 100—See Note 3
Table 1 Notes:
1. See Section F.4. for details on the use of this table.
2. Motor starting current is defined as the steady state current taken from the supply line with the motor rotor or rotors locked, with all other power consuming components, including a current-reducing starter, if used, connected in the starting position, and with rated voltage and frequency applied.
3. The applicant shall consult PG&E for design criteria information for selecting suitable starting equipment for three-phase a-c motors not shown on Table 1, for d-c motors supplied directly from existing d-c systems, and for motors that operate at higher voltage ratings.
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 27769-E
Cancelling Revised Cal. P.U.C. Sheet No. 11276-E
ELECTRIC RULE NO. 2 Sheet 20
DESCRIPTION OF SERVICE
(Continued)
Advice 3353-E Issued by Date Filed October 16, 2008
Decision Brian K. Cherry Effective November 15, 2008
Vice President Resolution
Regulatory Relations
G. POWER FACTOR
When lighting devices, such as neon, fluorescent, luminous gaseous, mercury vapor, and other lighting equipment having low power factors are served on street lighting or area lighting schedules, the customer shall provide, at his own expense, power factor corrective equipment to increase the power factor of each complete lighting device to not less than 90 percent.
H. CONNECTED LOAD RATINGS
1. The connected load is the sum of the rated capacities of all of the customer's electric utilization equipment that is served through one metering point and that may be operated at the same time, computed to the nearest one-tenth of a horsepower, kilowatt or kilovolt-ampere. Motors will be counted at their nameplate ratings in horsepower output and other devices at their nameplate input ratings in kw or kVa, except that resistance welders will be rated in accordance with the section of this rule regarding "Welder Service." Unless otherwise stated in the rate schedule, conversions between horsepower, kw and/or kVa ratings will be made on a one-to-one basis.
2. The normal operating capacity rating of any motor or other device may be determined from the nameplate rating. Where the original nameplate has been removed or altered, the manufacturer's published rating may be used or the rating determined by test at the expense of the customer.
3. Motor-generator sets shall be rated at the nameplate rating of the alternating- current drive motor of the set.
4. a. X-ray equipment shall be rated at the maximum nameplate kVa input operating at the highest rated output amperes. If the kVa input rating is not shown, it will be determined for single-phase loads by taking the product of the amperes input rating times the input voltage rating divided by 1,000. For three-phase equipment, multiply this product times the square root of three (1.73).
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(T)
(T)
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U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 27770-E
Cancelling Revised Cal. P.U.C. Sheet No. 11277-E
ELECTRIC RULE NO. 2 Sheet 21
DESCRIPTION OF SERVICE
(Continued)
Advice 3353-E Issued by Date Filed October 16, 2008
Decision Brian K. Cherry Effective November 15, 2008
Vice President Resolution
Regulatory Relations
H. CONNECTED LOAD RATINGS (Cont'd.)
4. (Cont'd.)
b. Where X-ray equipment is separately metered and supplied from a separate transformer installed by PG&E to serve the X-ray installation only, the kVa rating of PG&E's transformer or the total X-ray equipment input capacity, whichever is smaller, will be considered the load for billing purposes.
5. Where a customer operates a complete unit of equipment connected for three- phase service but consisting of single-phase components which cannot be readily reconnected for single-phase service, PG&E shall consider the connected load of such a unit as three-phase load.
6. Where a customer has, or expects to have, permanently-connected, three-phase load that is used infrequently or for short durations, such as, but not limited to, equipment for fire pumps, frost protection, flood control, emergency sirens or other similar installations which make it impractical to record proper demands on a monthly basis for billing purposes, the customer may, for his own reasons and with PG&E's approval, guarantee an appropriate billing demand or connected three-phase load for billing purposes in order to reserve suitable capacity in PG&E's facilities.
I. SPECIAL FACILITIES
1. PG&E normally installs only those standard facilities which it deems are necessary to provide regular service in accordance with the tariff schedules.
Where the applicant requests PG&E to install special facilities and PG&E agrees to make such an installation, the additional costs thereof shall be borne by the applicant, including such continuing ownership costs as may be applicable.
(T)
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 11278-E
Cancelling Revised Cal. P.U.C. Sheet No. 6933-E
ELECTRIC RULE NO. 2 Sheet 22
DESCRIPTION OF SERVICE
(Continued)
Advice 1303-E Issued by Date Filed June 21, 1990
Decision Robert S. Kenney Effective July 31, 1990
Vice President, Regulatory Affairs Resolution
I. SPECIAL FACILITIES (Cont'd.)
2. Special facilities are (a) facilities requested by an applicant which are in addition to or in substitution for standard facilities which PG&E would normally provide for delivery of service at one point, through one meter, at one voltage class under its tariff schedules, or (b) a pro rata portion of the facilities requested by an applicant, allocated for the sole use of such applicant, which would not normally be allocated for such sole use. Unless otherwise provided by PG&E's filed tariff schedules, special facilities will be installed, owned and maintained or allocated by PG&E as an accommodation to the applicant only if acceptable for operation by PG&E and the reliability of service to PG&E's other customers is not impaired.
3. Special facilities will be installed under the terms and conditions of a contract in the form on file with the Commission. Such contract will include, but is not limited to, the following terms and conditions:
a. Where new facilities are to be installed for applicant's use as special facilities, the applicant shall advance to PG&E the estimated additional installed cost of the special facilities over the estimated cost of standard facilities. At PG&E's option, PG&E may finance the new facilities. b. A monthly cost-of-ownership charge shall be paid by applicant for the special facilities:
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 41100-E
Cancelling Revised Cal. P.U.C. Sheet No. 35850-E
ELECTRIC RULE NO. 2 Sheet 23
DESCRIPTION OF SERVICE
(Continued)
Advice 5176-E Issued by Date Filed November 6, 2017
Decision 07-07-019 Robert S. Kenney Effective January 1, 2018 Vice President, Regulatory Affairs Resolution
I. SPECIAL FACILITIES (Cont’d.)
3. (Cont’d.)
b. (Cont’d.)
TYPE OF FACILITY FINANCING MONTHLY CHARGE
Transmission (60kv and over)* Customer 0.31% of the amount advanced
PG&E 1.14% of the additional cost
Distribution Customer 0.53% of the amount advanced (R) PG&E 1.22% of the additional cost (R)
c. Where existing facilities are allocated for applicant’s use as special facilities, the applicant shall pay a monthly Cost of Ownership charge. This monthly Cost of Ownership cha rge shall be based on the estimated installed cost of that portion of the existing facilities which is allocated to the customer. d. Where PG&E determines the collection of continuing monthly Cost of Ownership charges is not practicable, the applicant wi ll be required to make an equivalent one-time payment in lieu of the monthly Cost of Ownership charges.
e. All monthly Cost of Ownership charges shall be reviewed and re -filed with the Commission when changes occur in PG&E’s cost of providing such service.
_______________
* For the purposes of applying the special transmission facilities charge, special transmission facilities are those facilities in the "100 series" of the standard PG&E system of accounts (FERC Account Nos. 352-359).
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 27771-E
Cancelling Revised Cal. P.U.C. Sheet No. 11280-E
ELECTRIC RULE NO. 2 Sheet 24
DESCRIPTION OF SERVICE
(Continued)
Advice 3353-E Issued by Date Filed October 16, 2008
Decision Brian K. Cherry Effective November 15, 2008
Vice President Resolution
Regulatory Relations
J. WELDER SERVICE
1. RATING OF WELDERS
Electric welders will be rated for billing purposes as follows:
a. MOTOR-GENERATOR ARC WELDERS – The horsepower rating of the motor driving a motor-generating type arc welder will be taken as the horsepower rating of the welder.
b. TRANSFORMER ARC WELDERS – Nameplate maximum kVa input (at rated output amperes) will be taken as the rating of transformer type arc welders.
c. RESISTANCE WELDERS – Resistance welder ratings will be determined by multiplying the welder transformer nameplate rating (at 50 percent duty cycle) by the appropriate factor listed below:
(T)
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 27772-E
Cancelling Revised Cal. P.U.C. Sheet No. 11281-E
ELECTRIC RULE NO. 2 Sheet 25
DESCRIPTION OF SERVICE
(Continued)
Advice 3353-E Issued by Date Filed October 16, 2008
Decision Brian K. Cherry Effective November 15, 2008
Vice President Resolution
Regulatory Relations
J. WELDER SERVICE (Cont'd.)
1. RATING OF WELDERS (Cont'd.)
FACTOR
TYPE OF WELDER
TRANSFORMER
NAMEPLATE RATING
@ 50% Duty Cycle**
PG&E-
Owned
Distrib.
Transf.
Customer
Owned
Distrib.
Transf.
1. Rocker Arm, Press or
Projection Spot
20 kVa or less 0.60 0.50
(T)
2. Rocker Arm, Press Spot
Project Spot
Flash or Butt
Seam or Portable Gun
Over 20 kVa
21 to 75 kVa, inclusive
100 kVa or over
All sizes
0.80 0.60
(T)
(T)
(T)
3. Flash or Butt 67 to 100 kVa, inclusive *** ***
(T)
4. Projection Spot
Flash or Butt
Over 75 kVa
66 kiva or less
1.20 0.90
(T)
_______________
** The kVa rating of all resistance welders to which these rating procedures are applied must be at or equivalent to 50 percent duty cycle operation. Duty cycle is the percent of the time welding current flows during a given operating cycle. If the operating kVa nameplate rating is for some other operating duty cycle, then the thermally equivalent kVa rating at 50 percent duty cycle must be calculated. *** Each flash or butt welder in this group will be rated at 80 kVa where distribution transformer is owned by PG&E or 60 kVa where distribution transformer is owned by the customer.
(T)
(T)
(T)
(T)
(T)
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 27773-E
Cancelling Revised Cal. P.U.C. Sheet No. 11282-E
ELECTRIC RULE NO. 2 Sheet 26
DESCRIPTION OF SERVICE
(Continued)
Advice 3353-E Issued by Date Filed October 16, 2008
Decision Brian K. Cherry Effective November 15, 2008
Vice President Resolution
Regulatory Relations
J. WELDER SERVICE (Cont'd.)
1. RATING OF WELDERS (Cont'd.)
d. Ratings prescribed by a., b. and c. above, normally will be determined from nameplate data or from data supplied by the manufacturer. If such data are not available or are believed by either PG&E or customer to be unreliable, the rating will be determined by test at the expense of the customer. e. If established by seals approved by PG&E, the welder rating may be limited by the sealing of taps which provide capacity greater than the selected tap and/or by the interlocking lockout of one or more welders with other welders. f. When conversion of units is required for tariff application, one welder kVa will be taken as one horsepower for tariffs stated on a horsepower basis and one welder kVa will be taken as one kilowatt for tariffs stated on a kilowatt basis.
2. BILLING OF WELDERS
Welders will be billed at the regular rates and conditions of the tariffs on which they are served, subject to the following provisions:
a. CONNECTED LOAD TYPE OF SCHEDULE
Welder load will be included as part of the connected load with ratings as determined under Section 1, above, based on the maximum load that can be connected at any one time, and no allowance will be made for diversity between welders.
(T)
(T)
U 39 San Francisco, California
Revised Cal. P.U.C. Sheet No. 27774-E
Cancelling Revised Cal. P.U.C. Sheet No. 11283-E
ELECTRIC RULE NO. 2 Sheet 27
DESCRIPTION OF SERVICE
Advice 3353-E Issued by Date Filed October 16, 2008
Decision Brian K. Cherry Effective November 15, 2008
Vice President Resolution
Regulatory Relations
J. WELDER SERVICE (Cont'd.)
2. BILLING OF WELDERS (Cont'd.)
b. DEMAND METERED TYPE OF SCHEDULE
Where resistance welders are served on these schedules, the computation of diversified resistance welder load shall be made as follows:
Multiply the individual resistance welder ratings, as prescribed in Sections 1.c. to 1.f. inclusive, above, by the following factors and adding the results thus obtained:
1.0 times the rating of the largest welder
0.8 times the rating of the next largest welder
0.6 times the rating of the next largest welder
0.4 times the rating of the next largest welder
0.2 times the ratings of all additional welders
If this computed, diversified, resistance welder load is greater than the metered demand, the diversified resistance welder load will be used in lieu of the metered demand for rate computation purposes.
3. USE OF WELDERS THROUGH RESIDENTIAL SERVICE
Any welder exceeding three kVa capacity at 50 percent duty cycle supplied through a residential service requires advance approval by PG&E.
(T)
EXHIBIT 3
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
City and County of San Francisco
Complainant
v.
Pacific Gas and Electric Company
Respondent
Docket No. EL19-___
NOTICE OF COMPLAINT
(January 28, 2019)
Take notice that on January 28, 2019, the City and County of San Francisco (“San Francisco”) filed a formal complaint against Pacific Gas and Electric Company (“PG&E”) pursuant to Sections 206, 306, and 309 of the Federal Power Act, 16 U.S.C. §§ 824e, 825e, 825h, and Rule 206 of the Commission’s Rules of Practice and Procedure, 18 C.F.R. § 385.206. San Francisco alleges that PG&E has violated its open-access Wholesale Distribution Tariff (“WDT”) and that it is implementing its WDT in a manner that is unjust, unreasonable, and unduly discriminatory. San Francisco requests that the Commission (1) direct PG&E to comply with its Tariff by offering San Francisco the secondary and primary-plus wholesale distribution service provided for by the WDT; (2) direct PG&E to pay refunds to San Francisco consistent with the filed rate; and (3) take any such other actions that the Commission finds necessary or appropriate to address PG&E’s tariff violations and to assure that the WDT and PG&E’s implementation of that Tariff are just, reasonable, and not unduly discriminatory.
San Francisco certifies that copies of the complaint were served on contacts for PG&E as listed on the Commission’s list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission’s Rules of Practice and Procedure (18 C.F.R. §§ 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent’s answer and all interventions, or protests must be filed on or before the comment date. The Respondent’s answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426.
This filing is accessible on-line at http://www.ferc.gov, using the “eLibrary” link and is available for review in the Commission’s Public Reference Room in Washington, DC. There is an “eSubscription” link on the web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected], or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.
Comment Date: 5:00 pm Eastern Time on (insert date).
Kimberly D. Bose,
Secretary.
171 FERC ¶ 61,021
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Before Commissioners: Neil Chatterjee, Chairman;
Richard Glick, Bernard L. McNamee,
and James P. Danly.
City and County of San Francisco
v.
Pacific Gas and Electric Company
Docket No. EL19-38-000
ORDER ON COMPLAINT
(Issued April 16, 2020)
On January 28, 2019, the City and County of San Francisco (San Francisco) filed a complaint (Complaint) pursuant to sections 206, 306, and 309 of the Federal Power Act (FPA)1 against Pacific Gas and Electric Company (PG&E) alleging that PG&E unreasonably denied service to the City in violation of its Wholesale Distribution Tariff (WDT), and that it is implementing the WDT in an unjust, unreasonable, and unduly discriminatory manner.2 For the reasons discussed below, we deny the Complaint.
I. Background and Complaint
A. Background
The WDT, which became effective when the California Independent System Operator Corporation assumed operational control of PG&E’s transmission facilities on April 1, 1998, contains the rates, terms, and conditions for wholesale distribution service over PG&E’s distribution facilities. San Francisco became a WDT customer on July 1, 2015, following the expiration of a bilateral interconnection agreement between PG&E and San Francisco. As relevant here, the WDT provides two different distribution service rates: one rate for interconnection points connected at higher-level “primary voltage,”
1 16 U.S.C. §§ 824e, 825e, 825h (2018).
2 Complaint at 1.
Docket No. EL19-38-000 - 2 -
either directly or via dedicated facilities; and a second rate for interconnection points connected at a lower “secondary voltage.”3
B. Complaint
San Francisco alleges that PG&E has unreasonably denied service to San Francisco in violation of the WDT, and that PG&E is implementing the WDT in an unjust, unreasonable, and unduly discriminatory manner.4 As discussed below, San Francisco contends that PG&E has refused to provide it with secondary service for San Francisco’s small customers (as well as another form of service, which is termed “primary plus” service).5 San Francisco contends that since July 1, 2015, when it started taking wholesale distribution service under the WDT, PG&E has delayed service and created barriers for San Francisco to interconnect new customers and service existing customers when San Francisco has requested modifications to their interconnections.
San Francisco alleges that PG&E has rejected a substantial portion of San Francisco’s applications for secondary service since that time, including nearly every secondary service application since November 2017 for loads above 75 kW. 6 San Francisco argues that primary service requires it to install facilities that are inappropriate and disproportionately large and expensive, given the size and nature of the loads at issue.
7 While San Francisco states that it has taken primary service for larger loads, it claims that PG&E has insisted that it also take primary service for loads over 75 kW, as well as for some smaller loads.8 Meanwhile, according to San Francisco, PG&E requires its own retail customers to install similar facilities only when their loads are around 3,000 kW.9 San Francisco argues that there is no technical or reliability reason for requiring primary service for the small city loads, as PG&E conceded in
3 Id. at 8.
4 Id. at 1.
5 Id. at 3.
6 Id. at 10.
7 Id.
8 Id.
9 Id. The 3,000 kW delineation is found in PG&E’s Electric Rule No. 2, which is on file with the California Public Utilities Commission. See id., Maslowski Decl. ¶¶ 7-8.
Docket No. EL19-38-000 - 3 -
testimony at a local hearing.10 San Francisco also asserts that PG&E has consistently required primary service for all loads over 75 kW since 2017.11 San Francisco argues that it has requested secondary service from PG&E and has been told repeatedly that it must have primary service with the accompanying bulky equipment, including primary switchgear, for which there is often no space, even though the WDT does not require primary service.12 San Francisco claims that there is a routine pattern in the denials of service, consisting of San Francisco requesting secondary service, PG&E refusing that request, San Francisco offering secondary service modifications, and PG&E continuing to ignore or refuse San Francisco’s offer.13 After some delays, San Francisco states that it may receive secondary service in some cases, but is required to take primary service in others.14 And in other instances, San Francisco contends that projects have been indefinitely delayed.15 The Complaint includes a declaration from Ms. Barbara Hale, the Assistant General Manager of the San Francisco Public Utilities Commission that describes City projects involving the Balboa Pool and the Randall Museum San Francisco asserts were delayed as a result of PG&E’s alleged improper implementation of the WDT.
16 Ms. Hale’s declaration also details delays
associated with the Central Waterfront Navigation Center, which resulted in San Francisco allowing PG&E to serve the facility as a retail customer. 17 San Francisco also argues that it has not received “primary plus” service, under which it would pay the WDT’s lower primary service rate, plus cost of ownership charges for any directly assigned facilities owned by PG&E used only to serve
10 Id. at 11 n.18 (citing PG&E testimony at a June 13, 2018 San Francisco Board of Supervisors Public Safety and Neighborhood Services Committee Hearing, where PG&E stated that requiring primary service for loads of 75 kW “doesn’t really come down to . . . a technical question…it’s a policy question.”). 11 Id. at 13.
12 Id. at 13-16.
13 Id. at 13-14.
14 Id. at 15.
15 Id. at 15-16.
16 Id., Hale Decl. ¶¶ 17-24.
17 Id., Hale Decl. ¶¶ 25-30.
Docket No. EL19-38-000 - 4 -
San Francisco. San Francisco asserts that PG&E has refused to construct or own the directly-assigned facilities needed to provide primary plus service.18 San Francisco contends that the requirement that it take primary service rather than secondary or primary plus service means that it has incurred unnecessary costs, been forced to use space for unnecessary equipment that could be used for critical facilities and functions, and experienced extended delays in receiving WDT service. San Francisco states that by forcing primary service on it, instead of the secondary service, PG&E has forced San Francisco and its customers to spend time and resources that they should not have had to move projects forward.19
Given the foregoing, San Francisco asserts that PG&E’s actions violate the FPA, the WDT, and the WDT Service Agreement between PG&E and San Francisco.
San Francisco alleges that PG&E is denying service based not on the WDT, but on its characterization of San Francisco’s refusal to take on the obligations required of any other utility.20 San Francisco also contends that PG&E is reserving capacity on its secondary distribution system for its own use, while effectively denying San Francisco access to PG&E’s distribution system unless San Francisco builds new primary and secondary facilities to serve San Francisco’s load, which San Francisco argues is monopolistic behavior that Order No. 888 was intended to prevent. 21 In addition,
San Francisco asserts that the WDT requires PG&E to offer wholesale distribution service to small loads and low-voltage facilities, and that includes secondary service.22 San Francisco notes that it is not the only WDT customer that obtains secondary service,
18 Id. at 16.
19 Id. at 17-18.
20 Id. at 22.
21 Id. (citing Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities, Order No. 888, FERC Stats. & Regs. at 31,745, 31,693-94, order on reh’g, Order No. 888-A, FERC Stats. & Regs. ¶ 31,048 (cross-referenced at 78 FERC ¶ 61,220), order on reh’g, Order No. 888-B, 81 FERC ¶ 61,248 (1997), order on reh’g, Order No. 888-C, 82 FERC ¶ 61,046 (1998), aff’d in relevant part sub nom. Transmission Access Policy Study Group v. FERC, 225 F.3d 667 (D.C. Cir. 2000), aff’d sub nom. New York v. FERC, 535 U.S. 1 (2002)). 22 Id. at 23.
Docket No. EL19-38-000 - 5 -
pointing out that the Western Area Power Administration (Western) took secondary service at 970 points of delivery.23
Next, San Francisco asserts that PG&E has not justified its refusal to provide secondary service based on any provision in the WDT.24 Instead, San Francisco argues that, because secondary service is provided for under the WDT, the filed rate doctrine requires that the rates and terms and conditions for secondary service cannot differ from those contained in the WDT itself. San Francisco explains that “[t]he filed rate doctrine’s purpose is to ensure that the filed rates are the exclusive source of the terms and conditions by which the [regulated entity] provides . . . the services covered by the tariff.”
25 San Francisco also contends that tariff service cannot be denied because of requirements that are not based in the terms or conditions of the tariff.26 In addition, San Francisco argues that PG&E is obligated to upgrade or expand its secondary distribution system in order to provide secondary service under the WDT.27 San Francisco asserts that PG&E has immediately rejected San Francisco’s secondary service applications—without attempting to determine what upgrades and expansions to its existing secondary distribution system, if any, would be necessary to provide the requested service, let alone whether San Francisco would agree to compensate PG&E for all or part of the costs for such facilities.
28 San Francisco also argues that PG&E’s
refusal to make “primary plus” service available violates the WDT.29 According to San Francisco, although the WDT does not explicitly define “primary plus” service, it does contemplate that PG&E will own and operate directly assigned facilities to provide wholesale distribution service.
30 San Francisco also states that the WDT authorizes
23 Id. at 24.
24 Id. at 25.
25 Id. (citing Cal. ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 853 (9th Cir. 2002)).
26 Id.
27 Id. at 26.
28 Id. at 26-27.
29 Id. at 20.
30 San Francisco explains that direct assignment facilities are defined in the WDT and the term appears throughout it. See, e.g., WDT §§ 2.11, 12.6, 14.2.1, 15.7, 16.3,
16.4, sched. WD-1.
Docket No. EL19-38-000 - 6 -
PG&E to charge customers for the costs of installing direct assignment facilities and the costs of owning and operating those facilities.31 San Francisco notes that section 2 of WDT Schedule WD-1 contemplates the use of direct assignment facilities in the context of primary service.32 San Francisco goes on to assert that dedicated transformers are among the direct assignment facilities that PG&E will provide under the WDT.33 San Francisco points out that, in describing the intervening facilities required in various scenarios for primary and secondary service, WDT section 14.2.1 states that customer ownership of the transformer would not be required for primary service where:
[T]he transformer is a PG&E owned Direct Assignment Facility and the Distribution Customer contributes or contributed to the cost of such facility (typically in the case of a conversion from existing distribution service that is not provided under this WDT to Distribution Service provided under this Tariff).
34 San Francisco goes on to state its understanding that PG&E routinely uses direct assignment facilities to serve other WDT customers, noting that PG&E charges Western a primary plus rate at 95 points of delivery, a number of which appeared large enough to require a dedicated PG&E-owned transformer. Accordingly, San Francisco asserts that PG&E’s refusal to provide it with primary plus service is unduly discriminatory.35 San Francisco next asserts that PG&E’s repeated initial denials of secondary service, unreasonable metering and switchgear requirements, and lengthy site-specific negotiations have imposed undue burdens and costs causing San Francisco to lose customers to PG&E.36 San Francisco argues the Commission has specifically recognized
31 Complaint at 27-28.
32 Id. at 28. Section 2 of WDT Schedule WD-1 states: “[W]here (1) the point of interconnection of the Direct Assignment Facilities to PG&E’s Distribution system is at primary voltage and (2) the PG&E-owned secondary facilities are all Direct Assignment Facilities, i.e., for the sole use and benefit of the Distribution Customer, the service shall be primary service.”
33 Id. at 28.
34 Id.
35 Id. at 31.
36 Id. at 31-32.
Docket No. EL19-38-000 - 7 -
that delay tactics are among the mechanisms that transmission-owning utilities use to improperly deny access, and it ordered open access reforms to prevent those abuses.37 As a remedy, San Francisco asks that the Commission direct PG&E: (1) to comply with the WDT, as well as the WDT Service Agreement, by offering San Francisco secondary and primary plus service; (2) to modify its business practices for implementing the WDT, so that certain terms and conditions of primary, secondary, and primary plus service are just and reasonable and appropriate for the size and character of the San Francisco loads being served; and (3) refund the excess costs incurred by San Francisco to comply with the allegedly improper requirements imposed by PG&E pursuant to FPA section 309. San Francisco also suggests specific solutions for pending and future requests for WDT service, including suggested requirements for service with maximum demand load less than 3,000 kW (or an increase to an existing demand load that is less than 3,000 kW), as well as for service with maximum demand load over 3,000 kW.38
II. Notice of Complaint and Responsive Pleadings
A. Notice of Complaint
Notice of the Complaint was published in the Federal Register, 84 Fed. Reg. 1723 (Feb. 5, 2019), with interventions and protests due on or before February 19, 2019. On February 19, 2019, Turlock Irrigation District filed a motion to intervene.
On February 19, 2019, PG&E filed a notice that argued that its pending bankruptcy proceeding automatically stayed this proceeding (Notice of Bankruptcy Filing). On February 27, 2019, San Francisco filed a response to PG&E’s Notice of Bankruptcy Filing. The parties continued to exchange correspondence on this issue.
Ultimately, San Francisco sought relief from the Bankruptcy Court to pursue its Complaint. On May 15, 2019, the Bankruptcy Court granted San Francisco’s motion, permitting San Francisco to continue to prosecute the case before the Commission.
PG&E subsequently filed an answer to the Complaint on May 30, 2019.
San Francisco filed a response to PG&E’s answer on June 14, 2019.
37 Id. at 32.
38 Id. at 33-37.
Docket No. EL19-38-000 - 8 -
On June 17, 2019, following the Bankruptcy Court’s ruling, an additional notice of the Complaint was published in the Federal Register, 84 Fed. Reg. 294,199 (June 21, 2019), with interventions and protests due on or before June 27, 2019.
San Francisco supplemented its June 14, 2019 response on July 18, 2019.
San Francisco again supplemented its response on February 26, 2020. On March 9, 2020, PG&E filed a response to San Francisco’s second supplement.
B. PG&E’s Answer
PG&E argues that San Francisco has not met its burden of proof under FPA section 206. PG&E denies that it has been engaging in a discriminatory, unjust, or unreasonable application of its WDT.39 PG&E asserts that San Francisco has submitted insufficient evidence to support its complaint and argues that the declarations submitted by San Francisco are themselves unsupported and contain factual inaccuracies that do not demonstrate that PG&E is violating any provisions of its WDT.40 According to PG&E, no provision in the WDT allows the customer to dictate its service level at either the higher (primary) or lower (secondary) voltage level. Rather, PG&E asserts that it must retain discretion, as the service provider, to determine the appropriate service level based on existing infrastructure.41
PG&E asserts it has neither refused requests for secondary service nor forced San Francisco to take primary service for nearly all loads above 75 kW, and claims, rather, that most San Francisco interconnections have been interconnected at secondary voltages.
42 PG&E argues that there are technical, safety, and reliability justifications for requiring primary service levels for small loads. Further, according to PG&E, secondary service approximates a retail wheeling arrangement, and that San Francisco, as a wholesale electric utility, should take primary service unless there is a reason it is not possible.
43 PG&E claims that it has granted 72 out of 122 requests for secondary service without dispute since 2015, and notes that San Francisco’s witness Mr. Maslowski concedes that 96% of the more than 2,200 metered points of delivery receive secondary service. PG&E cites its own exhibits demonstrating a majority of secondary service for
39 PG&E Answer at 2.
40 Id. at 5.
41 Id. at 5-6.
42 Id. at 7.
43 Id. at 8.
Docket No. EL19-38-000 - 9 -
new interconnections since 2015.44 PG&E provides charts indicating that in 2017 and 2018, it provided secondary service to 11 out of 28 interconnections for loads over 75 kW.45 PG&E states that it also considers other requests for variances from primary service, including low-side metering, on a case-by-case basis.
PG&E states that its preference to serve at primary voltage levels is not inherently unjust and unreasonable, and that primary service is typical for utility-to-utility interconnections.46 PG&E’s asserts that secondary voltage interconnections between utilities present engineering challenges because secondary service devices are not designated unique Operating Numbers, such as protective equipment, and thus PG&E’s operational engineers are unable to write guides for operating those devices in the field. 47 PG&E explains that protective equipment that allows the isolation of one utility from the other and is identified by an Operating Number at the primary voltage level, does not have such designation at secondary voltage. According to PG&E, this establishes an engineering and operational basis for interconnection at primary voltage.
PG&E also disputes San Francisco’s reference to PG&E’s Electric Rule No. 2, which outlines service levels for its non-jurisdictional retail customers, stating that San Francisco is not taking retail service or paying retail rates. PG&E differentiates retail customers from wholesale distribution customers, explaining that it maintains its distribution system to ensure reliability and capacity for retail customers, whose rates pay for system maintenance and upgrades. In contrast, PG&E explains, wholesale distribution customers must pay the actual costs for any PG&E facilities required to interconnect them and any costs associated with upgrades to serve them at the requested capacity.48 PG&E explains that it reasonably requires wholesale distribution customers with utility-to-utility interconnections to take responsibility for ownership, maintenance, and operations of all step-down facilities on its own side of the interconnection.49 PG&E takes issue with San Francisco’s assertion that PG&E’s service options have required San Francisco to redesign projects due to space constraints. PG&E alleges that San Francisco has taken an irresponsible approach to planning for and facilitating
44 Id. at 9-10.
45 Id. at 11.
46 Id. at 15.
47 Id. at 16.
48 Id. at 16.
49 Id. at 17.
Docket No. EL19-38-000 - 10 -
customer interconnections and has either failed to inform or intentionally misinformed customers about space requirements, noting that San Francisco should have designed projects for primary service at the outset.
50 PG&E thus concludes that project delays
are a result of San Francisco’s own actions. PG&E also states that it has made accommodations for San Francisco loads that are expanding their service capacity but are space constrained. PG&E argues that San Francisco failed to design interconnections to meet space requirements for new developments that were not inherently space constrained. PG&E claims that San Francisco’s description of the space requirements for service are generally exaggerated and suggests that San Francisco should use its own franchise area to locate primary service facilities for space-constrained customers. 51 In addition, PG&E notes that the WDT does not require it to provide temporary service to San Francisco for projects that do not meet the WDT requirements, but that San Francisco may elect shorter terms of service as long as certain requirements are met.
52 PG&E’s offer to provide temporary retail service while San Francisco arranges to meet the WDT requirements, in PG&E’s view, does not constitute an appropriation of San Francisco’s customers or anti-competitive behavior. PG&E disputes San Francisco’s allegations that it has engaged in a pattern of delay; instead, argues PG&E, it experiences undue administrative burdens as a result of San Francisco’s incomplete applications and scope modifications.
53 According to PG&E, its practice of providing “primary plus” service to Western and not San Francisco is not discriminatory because service to Western is provided pursuant to a non-precedential settlement agreement between PG&E and Western.54 PG&E argues that the provision in the WDT that it must upgrade its system if necessary to provide WDT service does not govern the level of service PG&E must provide. 55 C. San Francisco’s Reply and Supplements
San Francisco asserts that PG&E concedes the fundamental basis of the Complaint, namely, that the WDT “does include secondary service as a possible service
50 Id. at 18.
51 Id. at 21.
52 Id. at 21-22.
53 Id. at 24-26.
54 Id. at 28.
55 Id. at 30.
Docket No. EL19-38-000 - 11 -
option,” and that “if the requested load exceeds 75 kW, PG&E informs [San Francisco] that it will need to take primary service.”56 San Francisco argues that PG&E admits to a blanket rule of requiring primary service for loads above 75kW and ignores its obligation under the WDT to build its system to meet the needs of the customer (at the customer’s expense).57 San Francisco asserts PG&E admits to a “new standard” for offering secondary service: load under 75 kW.58 San Francisco asserts that rejecting applications for secondary service because they are over 75 kW is not just and reasonable if they otherwise meet WDT requirements for secondary service.
59 San Francisco argues PG&E cannot insulate its settlement with Western to treat San Francisco differently. It further contends that same settlement shows that PG&E’s reasons for requiring San Francisco’s small loads to connect at primary voltage levels do not have merit on the grounds of any technical, safety, or reliability need. San Francisco also reiterates arguments against PG&E’s claims regarding technical requirements, saying at most there are issues of fact raised and a hearing should be established. 60 San Francisco invokes filed rate complaints against PG&E’s apparent view that it is free to dictate technical interconnection requirements and the service that customers like San Francisco must take, because the WDT does not specify the service level that each point of delivery should receive, and it does not expressly state that the customer can choose the service it wants, stating this argument is flawed for several reasons. 61 First, San Francisco claims that PG&E misrepresents San Francisco as stating that it can unilaterally dictate all technical aspects of interconnection not specified in the WDT or associated agreements; instead, San Francisco argues, it has previously stated that PG&E must apply technical criterial for interconnections under its tariffs reasonably and in a not unduly discriminatory manner.
62 Second, San Francisco asserts that, were PG&E’s
position correct, customers would have no recourse regardless of what technical requirements were imposed upon them by the tariff administrator—any requirement, no matter how burdensome, would be justified as “administrator’s choice,” so long as it
56 San Francisco Answer at 2 (citing PG&E Answer at 29, 31). 57 Id. at 5.
58 Id. at 6.
59 Id. at 8-9.
60 Id. at 9-10.
61 Id. at 11.
62 Id. at 12.
Docket No. EL19-38-000 - 12 -
were not contrary to something specified in the tariff.63 Third, San Francisco argues that PG&E’s approach defeats the purpose of open access tariffs because it can treat one of its customers as it likes so long as the requirements it sets are not specifically barred by the WDT.
64 And, according to San Francisco, this is the sort of anti-competitive and discriminatory actions that open access tariffs were intended to eliminate.65 Finally, San Francisco asserts that PG&E’s factual allegations are inaccurate.66 According to San Francisco: (1) PG&E has not justified primary service for small loads from a technical, operational, or reliability standpoint; (2) San Francisco has been required to sacrifice space to primary facilities; (3) San Francisco has been refused secondary service and forced to engage in protracted negotiations for any concession; (4) PG&E’s insistence on primary service has led to significant delays; (5) PG&E has used delays to assume service of San Francisco’s customers; and (6) installing facilities in San Francisco’s franchise area is not a reasonable solution. 67 In its first supplement to its reply, San Francisco asserts that PG&E is refusing to give any accommodations regarding granting secondary service to delivery points as mentioned in its reply.68 San Francisco attaches a letter from PG&E to San Francisco, in which PG&E seeks documentation to process certain projects for primary service.
In its second supplement to its reply, San Francisco asserts that PG&E provided misleading information regarding the size of compact equipment that San Francisco could install to address its concerns regarding the space needed to install primary metering equipment.69 San Francisco argues that such equipment does not exist, and complains that PG&E subsequently told it that the equipment it described was hypothetical.70
63 Id.
64 Id. at 11-12.
65 Id.
66 Id. at 15.
67 Id. at 15-27.
68 First Supplement to Reply at 2-3.
69 Second Supplement to Reply at 2 (citing PG&E Answer, Thibault Decl. at ¶ 16). 70 Id.
Docket No. EL19-38-000 - 13 -
D. PG&E’s Second Answer
In response to San Francisco’s second supplement, PG&E disagrees with San Francisco’s characterization of the discussions the parties had regarding the size of the equipment that San Francisco could install to address its concerns regarding the space needed to install primary metering equipment. PG&E also states that it is not its responsibility to develop engineering solutions to accommodate San Francisco’s desire to use a more compact primary metering design. PG&E argues that this is San Francisco’s responsibility and as such it should either work with equipment manufacturers following PG&E’s Greenbook,
71 or install existing primary metering equipment when the interconnection requires primary distribution voltage.72 PG&E explains that it agreed to review and consider any equipment that San Francisco and the vendor it selected might develop and submit to PG&E for approval.73
III. Discussion
A. Procedural Matters
Pursuant to Rule 214 of the Commission’s Rules of Practice and Procedure, 18 C.F.R. § 385.214 (2019), Turlock Irrigation District’s timely, unopposed motion to intervene serves to make it a party to this proceeding.
Rule 213(a)(2) of the Commission’s Rules of Practice and Procedure, 18 C.F.R. § 385.213(a)(2) (2019), prohibits an answer to an answer unless otherwise ordered by decisional authority. We accept San Francisco’s reply and supplements to PG&E’s answer, as well as PG&E’s second answer, because they provided information that assisted us in our decision-making process.
B. Commission Determination
We deny the Complaint. For the reasons discussed herein, we find, based upon the record here, that PG&E has not violated the terms of the WDT and has not unreasonably denied San Francisco wholesale distribution service at secondary voltage levels.
71 PG&E, Electric and Gas Service Requirements (Greenbook) (2017-2018), https://www.pge.com/en_US/large-business/services/building-and-renovation/greenbook- manual-online/greenbook-manual-online.page.
72 PG&E Second Answer at 5.
73 Id. at 6.
Docket No. EL19-38-000 - 14 -
At the outset, we note that there is no dispute that secondary service is available under WDT section 14.2.1,74 and that a customer such as San Francisco can request that service.75 In fact, San Francisco has received secondary service under the WDT for the majority of its interconnections with PG&E.76 We also agree that PG&E can and has offered what is termed “primary plus” service to San Francisco and other customers in limited circumstances.77
Although PG&E has provided San Francisco and a limited number of other customers with secondary service and primary plus service, we agree with PG&E that primary service is the industry norm for utility-to-utility interconnections, and secondary service is an exception.78 Apart from San Francisco and Western, all of PG&E’s WDT interconnection customers take service at primary voltage.79 And, as discussed herein, PG&E’s provision of secondary service to Western resulted from a settlement. Even as San Francisco argues that PG&E is treating it in an unduly discriminatory manner, it
74 This provision of the WDT sets forth the different intervening facilities (e.g., transformers, disconnect switches, protective devices, poles, and other facilities) that may or may not be required for primary and secondary service. 75 See, e.g., PG&E Answer at 5-6 (explaining that the WDT provides for primary and secondary service and that a customer can request such service, although PG&E may not be able to provide the level of service requested). 76 Id. at 8 (“[E]ven by [San Francisco’s] own account, PG&E has been providing secondary service to [San Francisco] under the WDT, and has granted a substantial majority (72 out of 122) of the requests…for secondary service without any disagreement.”); id. at 9 (explaining that, since San Francisco started taking WDT service effective July 1, 2015, 91 of the 112 distribution interconnections initiated by San Francisco were at secondary voltage levels, while 21 were at primary voltage). 77 Id. at 14-15, 29; Complaint at 14.
78 PG&E Answer, Thibault Decl. ¶ 11.
79 Id., Thibault Decl. ¶¶ 11-12 (explaining that secondary interconnections between utilities create ambiguity and operational and engineering challenges, and thus, outside of the historical circumstances in San Francisco, are not permitted elsewhere).
PG&E also provides secondary service to two points of interconnection between PG&E and the Power and Water Resources Pooling Authority (Pooling Authority); however, the Pooling Authority has not been found to be an eligible WDT customer, though it receives WDT service for specified points of interconnection, pursuant to a settlement between the parties. See Power and Water Resources Pooling Auth. v. Pac. Gas & Elec. Co., 132 FERC ¶ 61,263 (2010) (approving settlement).
Docket No. EL19-38-000 - 15 -
“does not, of course, dispute that most utility-to-utility interconnections are at primary voltage.”80 Nonetheless, the record evidence shows that PG&E not only provided secondary service to a number of San Francisco’s loads pursuant to the WDT, but has also provided variances, such as low-side metering or primary plus service, for other loads for which San Francisco sought interconnection.81 Based on the record evidence, we are not persuaded by San Francisco’s claim that PG&E’s treatment of San Francisco violates the filed rate doctrine.
While the WDT does not preclude a WDT customer from requesting the level of service that it wishes to take, PG&E, as the wholesale distribution service provider, is ultimately responsible for the safety and reliability of its distribution system.
Accordingly, we find that it is appropriate for PG&E, as that provider, to have discretion to determine what level of service is both appropriate and available based upon the status and configuration of its existing wholesale distribution system facilities and the nature and location of the interconnection request.82 Although San Francisco suggests that PG&E could accommodate secondary service for loads of up to 3,000 kW, as it does for retail customers under Electric Rule No. 2 in its retail tariff,83 we find that Electric Rule No. 2 is a retail-level standard that is not necessarily congruent with the requirements of interconnecting wholesale customers such as San Francisco, and we decline to require
80 San Francisco Answer at 15-16. San Francisco’s further argument in this regard – that most of PG&E’s other WDT customers have only a couple of points of interconnection – does not answer why there should be different standards for different WDT customers as a general matter. See id. at 16. We address San Francisco’s specific argument about Western’s arrangements with PG&E below.
81 See PG&E Answer at 13-14 (chart detailing where PG&E has provided secondary service and low-side metering for a number of San Francisco interconnections that were greater than 75 kW); see also id., attach. PGE-0001-2 (describing timelines for Geneva Car Barn project, where PG&E granted a variance to San Francisco and offered primary plus service).
82 Id. at 6.
83 Complaint at 10. We recognize that San Francisco is not asking that Electric Rule No. 2 be binding in the wholesale distribution context, but rather believes that it is an objective standard that the Commission should apply here. See San Francisco Answer at 17. We disagree with San Francisco that we should apply Electric Rule No. 2 here.
Electric Rule No. 2 was adopted to meet the requirements of serving PG&E’s retail customers and it is therefore not necessarily an objective standard that should be applied for wholesale distribution service.
Docket No. EL19-38-000 - 16 -
PG&E to adopt it. We do not find that PG&E is violating the Commission’s open access principles by declining to apply non-jurisdictional retail tariff provisions in the WDT.84 We recognize San Francisco complains about delays that it alleges were caused by PG&E’s refusal to provide secondary service for certain of San Francisco’s projects at the outset, as well as its allegations that it has lost retail customers to PG&E as a result of such delays.85 Our review of the record reveals that such delays were largely a consequence of requesting interconnection for projects with loads greater than what PG&E has normally accepted for secondary service under the WDT.86 We believe it is reasonable that secondary service requests under those circumstances may lead to further negotiations and, consequently, delay.87
Moreover, we find that the record shows that none of the specific examples San Francisco provides – Randall Museum, Balboa Pool, and Central Waterfront Navigation Center – demonstrate a pattern of unreasonable delays on PG&E’s part, especially when there have been mitigating circumstances such as San Francisco’s own delays in responding to PG&E. We note that, in Mr. Hailemichael’s declaration, he describes San Francisco’s incomplete applications and PG&E’s repeated efforts to obtain information required to engineer and build out requested services.88 Further, PG&E ultimately accommodated San Francisco’s scope change and request for secondary service at the Randall Museum and provided for a variance with low-side metering at the
84 San Francisco asserts that vesting PG&E with such discretion will negatively impact the interconnection of distributed energy resources in the future. San Francisco Answer at 14-15. We find San Francisco’s argument to be beyond the scope of this complaint proceeding.
85 See, e.g., Complaint, Hale Decl. ¶¶ 17-24 (describing delays associated with the Randall Museum and Balboa Pool projects, as well as the loss of a retail customer to PG&E as a result of delays associated with the Central Waterfront Navigation Center). 86 See, e.g., PG&E Answer at 18-19.
87 Indeed, San Francisco implies that it only seeks primary service for loads of more than 2,000 kW. San Francisco Answer at 16 (“In fact, San Francisco has applied for primary service where its loads exceed 2,000 kW.”). 88 PG&E Answer, Hailemichael Decl. ¶ 8. For example, as Mr. Hailemichael points out, with respect to the Randall Museum project (which San Francisco had provided as an example of delays caused by PG&E’s unwillingness to provide San Francisco with secondary service), after PG&E rejected San Francisco’s initial application as incomplete, it took San Francisco nearly six months to provide all of the requested and necessary information to PG&E. Id., Hailemichael Decl. ¶¶ 9-10.
Docket No. EL19-38-000 - 17 -
Balboa Pool. Moreover, with respect to San Francisco’s argument that it lost a retail customer to PG&E as a result of PG&E’s delays, we find that PG&E’s response that some San Francisco customers have taken retail temporary construction power service under PG&E’s retail tariff is reasonable and does not show that San Francisco “lost” a customer to PG&E.
89 Therefore, we find, based on our review of the record, especially with respect to the specific examples provided by San Francisco in its Complaint, that PG&E has not unreasonably denied service or implemented the WDT in an unjust, unreasonable, or unduly discriminatory manner as it relates to providing WDT interconnection service to San Francisco.90
With regard to San Francisco’s assertion that PG&E’s service options have required San Francisco to redesign projects due to space constraints, we agree with PG&E that San Francisco should plan its projects from the outset to provide the space needed for the necessary service.
91 Again, while a WDT customer may request
secondary service, it is not guaranteed that the customer will receive secondary service and should plan accordingly. The record here shows that San Francisco failed to design interconnections to meet space requirements for projects that were not inherently space constrained.92 The record also shows that PG&E has worked with San Francisco when there have been actual physical space issues.93
89 PG&E Answer at 22-23.
90 San Francisco argues in its July 18, 2019 supplement that PG&E is no longer providing any accommodation for San Francisco’s projects, appending a letter from PG&E purporting to do just that. We do not find San Francisco’s contention persuasive.
First, the letter is primarily in reference to specific projects. Second, while the letter also states that PG&E is not willing to make further accommodations without a long-term solution, San Francisco’s claim regarding potential future projects is speculative. For example, San Francisco and PG&E may reach such a “long-term solution” or come to some other agreement. In any event, for the reasons discussed in this order, we find that PG&E has not misapplied the WDT or treated San Francisco in an unduly discriminatory manner.
91 PG&E Answer at 17-21. Regarding San Francisco’s complaint in its February 26, 2020 supplement that PG&E provided misleading information about the availability of smaller-sized primary metering equipment, we understand that this was a suggestion offered by PG&E, based on equipment that could be sized in accordance with PG&E’s technical guidelines.
92 PG&E Answer at 18.
93 E.g., id. at 19 (“PG&E has always articulated to [San Francisco] that existing loads serving City governmental entities are entitled to a variance if the City can
Docket No. EL19-38-000 - 18 -
We are not persuaded by San Francisco’s assertion that PG&E’s provision of secondary service to Western pursuant to a settlement dictates that San Francisco also should receive that same service. First, as noted above, the record indicates that San Francisco is the only eligible WDT customer besides Western that receives secondary service.94 Second, to the extent that San Francisco contends that PG&E not extending the arrangement it agreed to with Western in that settlement to other WDT customers is unduly discriminatory, we disagree. The settlement between PG&E and Western reflects a bargained-for agreement between PG&E and Western and resolved issues related to them. San Francisco is not a party to that settlement and thus has not shown San Francisco and its customers are similarly situated to Western and its customers, or that the terms of that settlement should apply to all of PG&E’s WDT customers.
Finally, we disagree with San Francisco that PG&E’s criteria for determining whether a WDT customer will receive requested secondary service should be included in the WDT, consistent with the Commission’s “rule of reason.”95 As noted above, the WDT does address primary and secondary service and PG&E does not dispute that a WDT customer can request secondary service. However, as also discussed above, primary service is the industry norm for utility-to-utility interconnections and nearly all of PG&E’s WDT customers are interconnected at primary voltages. San Francisco is one of two WDT customers that have loads served at secondary voltages and the only WDT customer served at secondary voltages that did not result from a settlement. Moreover, we believe that it is appropriate that PG&E, as the service provider, be able to determine, based on the exigencies of each case (based on load size, location, and other factors), whether it is appropriate to grant a request for secondary service. 96 demonstrate that there is insufficient space for upgrade facilities.”). PG&E notes that the Balboa Pool example raised by San Francisco is one such instance where PG&E made this accommodation. Id.
94 As noted above, the Pooling Authority, which has not been found to be a WDT-eligible customer, also receives secondary service at two points of interconnection, pursuant to a settlement with PG&E.
95 See San Francisco Answer at 8-9.
96 Indeed, while PG&E has used a standard of 75 kW, it has applied it flexibly to San Francisco’s benefit in many cases, as discussed above. Further, PG&E has been able to work with San Francisco in a number of instances to provide variances for other loads.
Docket No. EL19-38-000 - 19 -
The Commission orders:
The Complaint is hereby denied, as discussed in the body of this order.
By the Commission.
( S E A L )
Kimberly D. Bose,
Secretary.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 1, 2021 Decided January 25, 2022
No. 20-1084
THE CITY AND COUNTY OF SAN FRANCISCO,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
PACIFIC GAS AND ELECTRIC COMPANY,
INTERVENOR
Consolidated with 20-1297
On Petitions for Review of Orders
of the Federal Energy Regulatory Commission
Katharine M. Mapes argued the cause for petitioner. With her on the briefs were William S. Huang and Jeffrey M. Bayne.
Scott Ray Ediger , Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on the brief were Matthew R. Christiansen, General Counsel, and Robert H. Solomon, Solicitor.
USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 1 of 26 2 Joshua S. Levenberg argued the cause for intervenor
Pacific Gas and Electric Company in support of respondent.
With him on the brief was Alexandra J. Ward. Alyssa T. Koo entered an appearance.
No. 20-1313
CITY AND COUNTY OF SAN FRANCISCO,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
Consolidated with 20-1458
On Petitions for Review of Orders
of the Federal Energy Regulatory Commission
Katharine M. Mapes argued the cause for petitioner. With her on the briefs were William S. Huang and Jeffrey M. Bayne.
Scott Ray Ediger , Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on the brief were Matthew R. Christiansen, General Counsel, and Robert H. Solomon, Solicitor.
USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 2 of 26 3 Alexandra J. Ward argued the cause for intervenor Pacific Gas and Electric Company in support of respondent. With her on the brief were Joshua S. Levenberg, Laura Edelstein, Steven J. Ross, and Shaun M. B oedicker. Alyssa T. Koo entered an appearance.
Before: SRINIVASAN, Chief Judge , ROGERS and T ATEL,
Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: San Francisco petitions for review of orders by the Federal Energy Regulatory Commission
denying its complaints and requests for rehearing regarding its delivery of electricity to end users . San Francisco purchases distribution services from the Pacific Gas & Electric Company (“PG&E”) under the terms of its open-a ccess Tariff. It challenged PG&E’s refusal to : (1) offer secondary -voltage service in lieu of more burdensome primary-voltage service to certain San Francisco sites and (2) provide service to delivery points that San Francisco maintains are eligible for s ervice under the Tariff’s grandfathering provision. San Francisco contends that the Commission erred both when it found that PG&E’s denial of secondary- voltage service was consistent with Tariff requirements and the Federal Power Act, and when it interpreted the Tariff’s grandfathering provision narrowly to allow PG&E’s interpretation. For the following reasons, the court grants San Francisco’s petitions.
I.
Electricity flows from generators to end users in two
stages: transmission and distribution. Transmission lines transport bulk power from generators across long distances.
That power is reduced to a lower voltage by a transformer and USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 3 of 26 4 flows to consumers through distribution lines. U.S. Dep’t of Energy, United States Electricity Primer , DOE/OE-0017, at 13, 21 (July 2015). Distribution lines operate at higher (primary) and lower (secondary) voltages. Because consumers typically cannot use electricity at primary voltages, consumers that receive primary -voltage service require a transformer to reduce the electricity’s voltage in addition to primary metering and other equipment. Therefore, primary- voltage service involves relatively high fixed costs, but is cheaper per unit of electricity provided . By contrast, secondary- voltage service has lower fixed costs but higher unit costs. See Complaint (No. 20-1313), Decl. of Rod Maslowski, Senior Consultant with Flynn Resource Consultants, ¶¶ 7-8.
San Francisco’s publicly owned utility, the San Francisco Public Utilities Commission, owns a power supply system in the Hetch Hetchy Valley and transmission lines that transmit power to San Francisco. Id. at 5-6. San Francisco sells Hetch Hetchy power directly to the end-users in the city. It obtained the property rights to develop the Hetch Hetchy System under the Raker Act of 1913, Pub. L. No. 63-41, 38 Stat. 242 (1913).
There, “Congress was motivated by a desire to provide the people of San Francisco with the advantages of cheap power and City competition with private power companies such as Pacific Gas and Electric.” City & Cnty. of San Francisco v.
United Airlines, 616 F.2d 1063, 1068 (9th Cir. 1979).
San Francisco does not own distribution lines, however, and relies on PG&E’s distribution system to serve its end-users.
Complaint (No. 20-1313) at 2. It prefers to receive secondary voltage from PG&E’s distribution system because electricity from PG&E is delivered to over 2,200 metered interconnection points, most of which serve a single building. Id. at 3, Maslowski Decl. ¶ 6. Because a relatively small amount of electricity is required at many points, San Francisco prefers to USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 4 of 26 5 avoid the high fixed costs of receiving primary-voltage service at each point . Id. at 17. And because PG&E’s retail service area covers the city, the San Francisco Commission is b oth a customer and competitor of PG&E.
From 1945 to 2015, San Francisco purchased wholesale
distribution service from PG&E under a series of bilateral agreements, the most recent of which was signed in 1987.
While San Francisco was receiving service purs uant to the 1987 agreement, the Federal Energy Regulatory Commission (the “Commission”) approved PG&E’s Tariff, which stated the generally applicable terms for “open-access” wholesale
distribution service. Pac. Gas & Elec. Co., Wholesale
Distribution Tariff , FERC Electric Tariff Volume No. 4 , Docket Nos. EL15-3-002, et al., Ex. PGE-7.
II.
San Francisco’s complaint in No. 20- 1313 concerns
PG&E’s refusal to provide secondary- voltage distribution service at certain interconnection points.
A.
In 2015, San Francisco entered a new contract with PG&E for service under its open-access Tariff. Complaint at 2. Under their previous agreement, 96% of its end-users were connected to PG&E’s distribution system at secondary voltage. Id., Maslowski Decl. ¶ 6. PG&E allows retail customers to receive secondary voltage if their demand is below 3,000 kW.
Complaint, Maslowski Decl. ¶ 7. PG&E currently provide s secondary-voltage service to the Western Area Power
Administration (“Western”) and the Power and Water
Resources Pooling Authority (“Pooling Authority”) for
demands as high as 428 kilowatts (“kW”) for Western and USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 5 of 26 6 1,296 kW for the Pooling Authority. Request for Rehearing at 16-17.
On January 28, 2019, San Francisco filed a complaint with the Commission pursuant to Sections 206, 306, and 309 of the Federal Power Act (“FPA”), 16 U.S.C. §§ 824e, 825e, 825h.
San Francisco alleged that PG&E has “consistently” refused to make new interconnections at secondary voltage unless the total electricity demand is less than 75 kW. Complaint at 10.
This practice, it claimed, (1) was unjust, unreasonable, and unduly disc riminatory, and (2) violated the terms of the Wholesale Distribution Tariff. Id. at 1. Further, it alleged that PG&E had categorically denied San Francisco’s applications for secondary-voltage service for demands above 75 kW while granting secondary-voltage service for much larger demands for its own retail customers and other wholesale customers such as Western. Id. at 3, 21, Maslowski Decl. ¶ 27. PG&E’s denials of secondary-voltage service, allegedly, “have imposed undue burdens and costs on San Francisco,” including
“delays.” Id. at 31-32. Yet PG&E’s Tariff required it to offer secondary service whenever requested, and to expand its infrastructure when such service was initially infeasible. Id. at 23-27. San Francisco also objected to PG&E’s refusal to provide “primary plus” service in the alternative, where San Francisco would receive secondary voltage while paying
PG&E for maintaining the facilities necessary to provide secondary voltage. Id. at 16, Maslowski Decl. ¶ 9.
PG&E acknowledged that its Tariff provides for two levels of service but maintained that it had not given customers the right to dictate the level of service to be received. Answer to Complaint at 5-6. It also denied that it had a categorical 75 kW threshold for secondary-voltage applications, noting that most of San Francisco’s new interconnections were at secondary voltage, including many above 75 kW, and that it had regularly USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 6 of 26 7 granted variances to San Francisco. Id. at 7-15. Any denials of secondary-voltage service, it asserted were supported by “technical, safety, reliability, and operational reasons .” Id. at
15. Further, PG&E claimed that San Francisco was to blame for many of the delays in service, id. at 23, and that Western’s secondary-voltage service was governed by a settlement
agreement to which San Francisco is not a party, id. at 28-29.
Evidence before the Commission showed that since 2015,
many of San Francisco’s new interconnection requests
exceeding 75 kW have been denied secondary service by
PG&E, and that the proportion of new interconnections above 75 kW receiving primary service has increased since 2015. See id. at 11 (chart 3). Specifically, PG&E had stated that “if the requested [demand] exceeds 75 kW, PG&E informs [San
Francisco] that it will need to take primary service.” Id. at 30.
In some instances, San Francisco was initially denied
secondary-voltage service, but negotiated for secondary voltage or a “secondary metering” arrangement, reducing its costs of receiving primary voltage. Complaint at 13-14; Decl. of Barbara Hale, Asst. Gen. Mgr. , San Francisco Public Utilities Commission, ¶¶ 9-11. In July 2019, PG&E advised San Francisco that it “is not willing to make additional accommodations without a long- term solution.” Letter from Yilma Hailemichael, PG&E Mgr., to Ramon Abueg, Dep. Mgr.
Operations at San Francisco Pub. Utils. Comm’n, at 3 (July 1, 2019) (hereinafter, the July 1, 2019 Letter).
The Commission denied San Francisco’s complaint, ruling that PG&E should retain discretion to determine what level of service is most appropriate for a customer because the provider “is ultimately responsible for the safety and reliability of its distribution system .” Order, 171 FERC ¶ 61,021 at P 38 (2020). It found that San Francisco received secondary service for the “majority of its interconnections with PG&E,” id. P 36, USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 7 of 26 8 as well as variances for other interconnections. Id. P 37 .
Noting that “primary service is the norm for utility -to-utility interconnections,” id., the Commission distinguished the service provided to retail customers and wholesale customers whose service was governed by a settlement agreement. Id. PP 37-38, 42. In its view, San Francisco was to blame for delays, which were “largely a consequence of requesting
interconnection for projects with [demands] greater than what PG&E has normally accepted for secondary service” and “San Francisco’s own delays in responding to PG&E.” Id. PP 39-
40. The Commission denied San Francisco’s request for
rehearing. Order Addressing Arguments Raised on Rehearing, 172 FERC ¶ 61,021 (2020) (Rehearing Order).
San Francisco petitions for review of the Order and
Rehearing Order (collectively, the “Voltage Orders”).
B.
San Francisco contends in petitioning for review that (1) the Commission’s Voltage Orders were arbitrary and
capricious in deeming PG&E’s secondary-service practice just and reasonable, (2) the Commission failed to meet its mandate under the FPA to prevent undue discrimination, and (3) the Voltage Orders are i nconsistent with PG&E’s Tariff and the filed-rate doctrine.
1. As a threshold matter, PG&E maintains that San
Francisco’s first and second challenges are moot in light of PG&E’s proposal of a revised tariff that offers only primary service. Thus, ruling in San Francisco’s favor on either of the two issues would have no remedial effect, it claims, because PG&E “no longer has discretion . . . to allow secondary voltage USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 8 of 26 9 interconnections.” PG&E Br. 15. PG&E concedes that San Francisco’s claim that PG&E violated its original tariff is not moot because retrospective relief is still available . PG&E Br.
19. PG&E’s mootness argument is unpersuasive given the provisional nature of the proposed tariff revision.
A “case is moot if the dispute is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights.” Already, LLC v. Nike, Inc. , 568 U.S. 85, 91 (2013) (internal quotation marks omitted). San Francisco petition ed for review of the Order denying its complaint on August 17, 2020. On September 15, 2020, PG&E filed proposed tariff changes, which the Commission accepted on November 13,
2020, while expressing no view on whether the revised tariff was just, reasonable, and nondiscriminatory. Pac. Gas & Elec.
Co., 173 FERC ¶ 61,140 at P 42 (2020). The Commission
suspended the proposed revisions for five months, to be effective April 15, 2021, and ordered an evidentiary hearing on its legality. Id. The hearing was held in abeyance to encourage settlement discussions, which, as of November 23, 2021 , are ongoing. Status Report of Settlement Judge, FERC Docket No.
ER20-2878 (Nov. 23, 2021).
The Commission’s “[a]cceptance of a filing decides
nothing concerning the merits of a case; it merely reserves the issues pending a hearing.” Papago Tribal Util. Auth. v. FERC, 628 F.2d 235, 240 (D.C. Cir. 1980). There, the court held that the Commission’s refusal to reject a rate fi ling was an interlocutory decision that was not final, reviewable agency action. Id. Under PG&E’s logic, a utility could moot any challenge to its conduct by filing a revised tariff with the Commission that would require that conduct. Because the Commission has not ruled on the legality of the revised tariff, and because San Francisco also seeks retrospective relief, its claims are not moot.
USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 9 of 26 10 2.
Turning to the merits, San Francisco contends that the
Commission did not identify any “safety or reliability risks” that would arise from providing secondary- voltage service to San Francisco. SF Br. 28. Rather, it maintains that the Commission “offers only vague conclusory statements about PG&E’s general need to assure safety and reliability,” which are not grounds on which the Voltage Orders can be upheld.
Id. at 29.
The court reviews the Commission’s orders under the
arbitrary and capricious standard. See, e.g. , Emera Me . v.
FERC, 854 F.3d 9, 21 (D.C. Cir. 2017). A court “must uphold a rule if the agency has ‘examine[d] the relevant
[considerations] and articulate[d] a satisfactory explanation for its action[,] including a rational connection between the facts found and the choice made.” FERC v. Elec . Power Supply Ass’n, 577 U.S. 260, 292 (2016) (quoting Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983)).
PG&E identified two concerns in its Answer to the
Complaint. Firs t, the request for secondary- voltage service might be too far from the necessary infrastructure. Answer to Complaint at 6. Second, secondary- voltage equipment lacks unique operating numbers, making it more difficult to service.
Id. at 16. The Commission’s Voltage Orders, however, do not reference any specific risks to safety or reliability with respect to San Francisco’s requests. The Commission concluded only that PG&E is “ultimately responsible for the safety and reliability of its distribution system” and should have “discretion to determine what level of service is both
appropriate and available based upon the status and
USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 10 of 26 11 configuration of its . . . facilities and the nature and location of the interconnection request.” Order P 38. For support, t he Commission cites page 6 of PG&E’s Answer with out
explanation. Id. P 38 n.82.
The Commission’s “passing reference to relevant factors,” such as safety and reliability, “is not sufficient to satisfy the Commission’s obligation to carry out ‘reasoned’ and
‘principled’ decisionmaking. ” Mo. Pub. Serv. Comm’n v.
FERC, 234 F.3d 36, 41 (D.C. Cir. 2000). That is so when the Commission refers only generally to safety and reliability without explaining what the risks are, much less examining PG&E’s claims . A declaration by PG&E engineer Michael Thibault stated that “interconnection at the secondary voltage level between utilities is not at all typical and . . . is not ‘Good Utility Practice,’” and that “secondary interconnections between utilities create ambiguity and operational and
engineering challenges.” Order P 37 n.79 (citing Answer to Complaint, Thibault Decl. ¶¶ 11- 12). Although this suggests that providing secondary service to a utility may present challenges for PG&E , the declaration does not concretely describe the challenges with respect to San Francisco’s requests for secondary service.
Further, the Commission’s conclusion that PG&E should
have discretion to determine which voltage level is most appropriate is belied by the record to the extent PG&E would apply a categori cal rule. The July 1, 2019 Letter hardly indicates that PG&E intends to evaluate San Francisco’s applications on a case-by-case basis. See July 1, 2019 Letter at
3. Although the Commission viewed PG&E’s statement to be “primarily in reference to specific projects” and that San Francisco’s concerns about being denied accommodations
were “speculative,” Order P 40 n.90, the Commission cited no portion of the Letter that limits its relevance to specific projects USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 11 of 26 12 and provided no reason that a “long-term solution” is possible or probable.
San Francisco also contends that the Commission was
arbitrary and capricious in concluding that PG&E may deny secondary-voltage service to San Francisco because the
industry norm for utility -to-utility interconnections is primary voltage. Here, it contends that the Commission failed to address the fact that San Francisco interconnects to PG&E at numerous small points of interconnection , rather than a few large points as is typical for a utility-to-utility interconnection.
Reply to Answer at 15 -16; Request for Rehearing at 30 -31.
Neither of the Voltage Orders explain why deference to industry norms is reasonable in light of San Francisco’s geographical configuration, which differs from that of other utilities. See Request for Rehearing at 30 -31. Rather, t he Commission applied the industry norm with no explanation beyond stating that such norms “inform expectations.”
Rehearing Order P 9 n.23. Maybe so. But the Commission does not explain why San Francisco should have expected to be bound by an industry norm involving much higher demands than it has historically required, or why its expectations are a valid basis for PG&E’s denials of its requests. Again, t he Commission’s passing reference to “ambiguity and operational or engineering challenges” arising from secondary
interconnections between utilities with out further elaboration, does not provide sufficient justification for its conclusion.
Order P 37 n.79 ( citing Answer to Complaint , Thibault Decl. ¶¶ 11 -12). Consequently, the Voltage Orders do not satisfy arbitrary-and-capricious review. See State Farm , 463 U.S. at
43. USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 12 of 26 13 3.
Additionally, San Francisco contends that the Commission failed to meet its mandate to prevent undue discrimination, because PG&E offers secondary service to two wholesale
customers, Western and the Pooling Authority, at higher voltages than 75 kW, and to retail customers at voltages up to 3,000 kW. When faced with a claim of undue discrimination, the Commission “must reasonably explain how the existing suppliers and new entrants are not similarly situated and in what respects the reasons are material.” New Eng. Power Generators Ass’n v. FERC, 881 F.3d 202, 213 (D.C. Cir. 2018) (citing Edison Mission Energy, Inc. v. FERC , 394 F.3d 964, 968-69 (D.C. Cir. 2005)).
The Commission has adequately explained why San
Francisco is not similarly situated to Western and the Pooling Authority, noting that both of them receive secondary service under settlement agreements with PG&E, and that the Pooling Authority is not eligible for Tariff service. Order P 37 & n.79.
Western’s settlement “reflects a bargained -for agreement between PG&E & Western,” and San Francisco has not shown that it and its customers are similarly situated to Western and its customers. Id. P 42. But the Commission’s response to San Francisco’s claims regarding retail customers was inadequate.
On the other hand, the Commission views “a retail -level standard . . . [a]s not necessarily congruent with the
requirements of interconnecting wholesale customers such as San Francisco,” id. P 38, and that San Francisco’s “mere assertion of [the retail standard’s] relevance is not sufficient to satisfy San Francisco’s section 206 burden of proof,”
Rehearing Order P 13. Beyond asserting “relevance,” San Francisco cited instances when its customers began retail service with PG&E during San Francisco’s wholesale service negotiations with PG&E. See Complaint, Hale Decl. ¶¶ 25-30.
USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 13 of 26 14 The Commission accepted PG&E’s explanation that these San Francisco customers only took temporary retail constr uction power service from PG&E, Order P 40, but this fact confirms that PG&E can compete with San Francisco through its retail offerings. The Commission’s conclusion that retail service is “not necessarily congruent” does not meet its burden of reasoned decision-making.
4. San Francisco further contends that the Voltage Orders are inconsistent with the terms of PG&E’s Tariff, which it
interprets to r equire PG&E to provide secondary-voltage service whenever requested, and that PG&E’s contrary practice violates the filed-rate doctrine. The filed rate objection is more problematic.
a.
When San Francisco filed its petition, PG&E’s Tariff
stated that PG&E will “provide Distribution Service pursuant to the applicable terms and conditions contained in this Tariff and Service Agreement.” Tariff § 1.2. After receiving an application for service, PG&E must “make a determination of available distribution capacity.” Tariff § 15.5. Section 13.4 of the Tariff stated:
If the Distribution Provider determines that it
cannot accommodate a Completed Application
for Distribution Service because of insufficient
capability on its Transmission System or
Distribution Facilities, the Distribution Provider
will use due diligence to expand or modify its
Distribution System to provide the requested
Distribution Service, provided the Distribution
USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 14 of 26 15 Customer agrees to compensate the Distribution
Provider for such costs . . . .
San Francisco thus alleged that because the Tariff defines “Distribution System” to include the secondary distribution system, Complaint at 23 (citing Tariff § 11), PG&E must expand its secondary distribution system to meet any customer request for secondary- voltage service, pursuant to Tariff Section 13.4.
The Commission concluded that “[w]hile the [Tariff] does not preclude a [Tariff] customer from requesting the level of service that it wishes to take,” PG&E should retain “discretion to determine what level of service is both appropriate and available based upon the status and configuration of its existing . . . facilities and the nature and location of the interconnection request.” Order P 38. As a result, “PG&E has not violated the terms of the [Tariff].” Id. P 35. The court has long held that the Commission’s interpretation of a tariff receives “Chevron- like deference.” Consol. Edison Co. of New York v. FERC, 347 F.3d 964, 972 (D.C. Cir. 2003) (internal citations omitted). If the terms of the tariff are unambiguous, the court need not defer to the Commission’s interpretation. If the text is ambiguous, there the court must defer if the Commission’s interpretation is reasonable. Id. The Tariff then in effect unambiguously confirms the Commission’s inter pretation. Although PG&E must use due diligence to adjust its system to provide the “requested Distribution Service,” Tariff § 13.4, “Distribution Service” is defined as “[t]he transporting of electric power over and through various PG&E facilities for delivery to a
Distribution Customer.” Tariff § 2.15. The fact that PG&E must provide wholesale distribution service when requested does not necessarily imply that it is required to provide the voltage San Francisco requests.
USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 15 of 26 16 b.
On the other hand, San Francisco correctly notes that
PG&E’s practice of requiring primary -voltage service for demands above 75 kW is not stated in its Tariff and therefore may violate the filed -rate doctrine. Under that doctrine, “utilities are forbidden to charge any rate other than the one on file with the Commission,” West Deptford Energy LLC v.
FERC, 766 F.3d 10, 12 (D.C. Cir. 2014), a prohibition that is understood to extend to other utility practices that affect rates and service. See Keyspan -Ravenswood, LLC v. FERC , 474 F.3d 804, 811 (D.C. Cir. 2007). The “rule of reason” requires “utilities [to] file ‘only those practices that affect rates and service significantly, that are realistically susceptible of specification, and that are not so generally understood in any contractual arrangement as to render recitation superfluous.’” Id. (quoting City of Cleveland v. FERC , 773 F.2d 1368, 1376 (D.C. Cir. 1985)). Contrary to PG&E’s view, San Francisco did not waive this argument but, in fact, raised it in requesting rehearing. See Request for Rehearing at 11-12; see also Reply to Answer at 8-9. But see PG&E Br. 25 (citing 16 U.S.C. § 825l(b); Allegheny Power v. FERC, 437 F.3d 1215, 1220 (D.C.
Cir. 2006)).
On rehearing, t he Commission stated that the 75 kW
threshold is merely a “guidepost,” Rehearing Order P 10, while reaffirming its position that PG&E makes case-by- case
determinations of which voltage to provide, Order P 43 & n.96.
Yet, as noted, the record suggests that PG&E intends to apply a categorical rule going forward. July 1, 2019 Letter at 3; Answer to Complaint at 30. Even if the 75 kW threshold is a guidepost, however, that kind of numerical threshold is the type of requirement that the “rule of reason” requires be stated in the Tariff, as a numerical threshold is “realistically susceptible of specification,” Keyspan-Ravenswood, 474 F.3d at 811.
USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 16 of 26 17 PG&E’s policy significa ntly “ affect[s] rates and service” because it affects which voltage level San Francisco may receive, and different voltages have different rates. Id. It also cannot be “so generally understood . . . as to render recitation superfluous,” given PG&E’s secondary- voltage connections for demands above 75 kW and its provision of secondary- voltage service to San Francisco prior to the 2015 transition to Tariff service. Id. Although primary voltage may be the industry norm for utility-to-utility interconnections, and PG&E should have discretion to provide secondary voltage on a case- by-case basis, see Order P 43, the Commission does not explain why these factors exempt the guidepost from specification in the Tariff under the “rule of reason.”
Because the Commission did not adequately explain any
operational or engineering rationale justifying PG&E’s 75 kW “guidepost” and did not explain why that guidepost did not need to be in the filed tariff, the court vacates the Voltage Orders and remands the case to the Commission for further proceedings consistent with this opinion.
III.
San Francisco’s complaint in No. 20-1084 concerns the
proper interpretation of a section of PG&E’s Tariff on grandfathering.
A.
Section 14.2 requires customers to demonstrate “bona fide ownership or control of . . . Intervening Distribution Facilities . . . except in the case where an Eligible Customer meets the criteria for grandfathering in 16 USC § 824k(h)(2) [ Section 212(h)(2) of the FPA]” (emphasis added). This section was added as the result of a 2015 Commission-approved settlement USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 17 of 26 18 between PG&E and its Tariff customers. Offer of Settlement, FERC Docket No. ER13-1188- 037, eLibrary No. 20150331-
5502 (Mar. 31, 2015). Although PG&E and San Francisco
agree that PG&E is bound by Section 212(h)(2) of the FPA, 16 U.S.C. § 824k(h)(2), they disagree about its scope.
On October 9, 2014, San Francisco filed a complaint with the Commission alleging, among other claims, that PG&E was improperly denying Tariff service to some of San Francisco’s delivery points. San Francisco argued that PG&E was required to serve any San Francisco customer served in 1992, regardless of whether the customer stayed at the same location.
Complaint at 18-20. PG&E responded that it would serve any of San Francisco’s locations that it had served in 1992 but would not serve delivery points of 1992 customers that had relocated or opened new locations. Answer to Complaint at 35-36 .
FPA Section 212(h) provides:
No order issued under this chapter shall be
conditioned upon or require the transmission of
electric energy:
(1) directly to an ultimate consumer, or
(2) to, or for the benefit of, an entity if such
electric energy would be sold by such entity
directly to an ultimate consumer, unless:
(A) such entity is a . . . State or any political
subdivision of a State (or an agency, authority,
or instrumentality of a State or a political
subdivision) . . . [listing other categories]; and
USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 18 of 26 19 (B) such entity was providing electric service to
such ultimate consumer on October 24, 1992, or
would utilize transmission or distribution
facilities that it owns or controls to deliver all
such electric energy to such electric consumer.
(emphasis added)
On December 23, 2014, PG&E filed with the Commission
a proposed replacement agreement under which PG&E would provide Tariff service to any San Francisco delivery point that received service in 1992 . Proposed Service Agreement, App.
C. So any delivery point that did not receive service in 1992 but did receive service in 2015 (when the bilateral agreement would expire) would r eceive what PG&E calls T ariff-
equivalent service, if the delivery point was a “municipal load,” id., App. D. PG&E defined “municipal load” as:
“Municipal Public Purpose End-Use Customers”
(“Muni Load”) are served at metered Points of
Delivery providing power to [San Francisco’s]
governmental departments and agencies, public
housing tenants, municipal transportation system,
police stations, fire departments, public schools,
city parks and public libraries. Non-
governmental private persons (other than [San
Francisco] public housing tenants) and non-
governmental private corporations are not
Municipal Public Purpose End- Use Customers.
Small Unmetered Street Loads served under
Appendix E [such as streetlights o r traffic
signals] are not Municipal Public Purpose End-
Use Customers.
Id., App. D § D.1.1 . Non-municipal loads served in 2015 but not in 1992 would receive Tariff-equivalent service if the USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 19 of 26 20 delivery point continues to serve the same end-use customer as in 2015 and the electricity demand does not exceed 125 percent of the customer’s average annual demand on June 30, 2015.
Id., App. D §§ D.1.2, D.2.
An Administrative Law Judge interpreted FPA
Section 212(h)(2)(B) in light of the Commission’s decision in Suffolk County Electric Agency, 96 FERC ¶ 61,349, at 62,301 (Nov. 15, 2001). There, the Commission concluded that
Section 212(h) grandfathered the “ class of customers eligible to receive service.” Id. The ALJ determined that “the Commission’s orders and opinions . . . support San Francisco’s argument that grandfathering applies to the class of customers that was eligible to receive wholesale distribution service on October 24, 1992, regardless of where in the City those customers may be located now or in the future.” Initial Decision P 135 (internal citations omitted). Therefore, the ALJ defined the “class” of customers as all “municipal public purpose load[s] .” Id. P 142. He also concluded that he was “without authority” to define a “municipal public purpose” for the Commission. Id. P 146.
In Opinion No. 568, the Commission reversed. 169 FERC ¶ 61,128 at P 67 (Nov. 21, 2019) . Distinguishing its FPA Section 212(h) precedent as involving proceedings seeking an order of mandatory service under FPA §§ 210 and 211, the Commission noted that San Francisco filed its complaint under § 206 and PG&E filed its proposed replacement agreements under § 205, id. P 67 n.154 . Further, the Commission stated that it was not “interpreting the scope of section 212(h),” but instead only interpreting PG&E’s Tariff. Id. Noting that other provisions of the Tariff referenced “points of delivery,” the Commission viewed th e “points of delivery framework” to favor PG&E’s interpretation of Section 14.2. Id. PP 69-70. By contrast, in the Commission’s view, San Francisco’s
USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 20 of 26 21 interpretation “would automatically grandfather all San Francisco customers, thereby negating the point of delivery framework.” Id. P 69. The Commission also accepted PG&E’s definition of “municipal load” as “effectively distinguish[ing] between what is to be considered municipal load . . . and what is not.” Id. P 72. In denying San Francisco ’s petition for rehearing, the Commission offered a clarification, stating that PG&E’s interpretation of the Tariff was consistent with Suffolk County’s “class -based approach” because PG&E was still providing service to the “class of customer [San Francisco] was appropriately serving as of October 24, 1992,” but “only for the universe of delivery points as they existed on June 30, 2015.” Rehearing Order, 171 FERC ¶ 61,196 at P 28 (June 4, 2020).
San Francisco petitions for review of Opinion No. 568 and the Rehearing Order (collectively, the “ Grandfathering Orders”). The Court accords the Commission’s interpretation of filed tariffs Chevron-like deference. See supra Subsection II.B.4.a. Alt hough the Court will defer to the Commission’s interpretation of its own precedent, the Commission must acknowledge that it is departing from its precedent and provide a reasoned explanation indicating that prior policies and standards are being deliberately changed, not casually ignored.
ESI Energy, LLC v. FERC, 892 F.3d 321, 329 (D.C. Cir. 2018).
A.
Section 14.2 of the Tariff provides, by its plain terms, an exception to the required ownership or control of intervening Distribution facilities for customers that “meet[] the criteria for grandfathering in 16 USC § 824k(h)(2).” The text
unambiguously indicate s that the Tariff incorporates the requirements of FPA Section 212(h)(2). The parties had agreed in a Joint Brief to the Commission that they “referenced Section 212(h) of the FPA to define the requirements and USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 21 of 26 22 boundaries of eligibility for service under PG&E’s [Tariff],” and that “[t]he intent of [that reference] in the [Tariff] as it pertains to grandfathering was to ensure that the Commission’s interpretation of the statute was incorporated into the [Tariff’s] eligibility rules.” Joint Brief at 2 -3 (Sept. 24, 2018) . The Commission, however, expressly disclaim ed that it was “interpreting the scope of [Section] 212(h) or the precedent thereunder beyond the salient point that they are not applicable in this [Section 206] proceeding.” Opinion No. 568 P 67 n.154.
Because the Commission based its decision in Opinion No. 568 on requirements other than those in Section 212(h), the court owes no deference to its interpretation of unambiguous Tariff text.
The Commission’s attempts to defend its interpretation are unpersuasive. First, the Commission states that “the [Tariff] frames [PG&E’s] distribution service in terms of delivery points,” and that service should therefore be grandfathered on a location-by-location basis. Opinion No. 568 P 70 & n.160.
Tariff Section 14.2 itself requires applicants to prove that the criteria of FPA Section 212(h)(2) are met “for each Point of Delivery,” and Tariff Section 15.5.1 states that a distribution provider may reject service on the ground that “it disputes that the Point of Delivery qualifies .” T hat the Tariff references “points of delivery” does not necessarily imply that only specific points of delive ry may be grandfathered , and those references to “points of delivery” do not change the fact that the Tariff expressly references the criteria of Section 212(h)(2).
Second, the Commission views PG&E’s narrow
interpretation of Section 212(h)(2) to employ the class-based approach used by the Commission in Suffolk County because it effectively grandfathers “each delivery point it was serving (as of June 30, 2015), as long as the customer at that delivery point is a member of the class of customer [San Francisco] was USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 22 of 26 23 appropriately serving as of October 24, 1992.” Rehearing Order P 28 (quoting PG&E Brief on Exceptions at 13-14). This is true in the sense that PG&E has proposed to provide Tariff service or Tariff -equivalent service to all municipal loads it served in 2015. B ut this is not the same as ruling those loads are Tariff-eligible. PG&E’s voluntary accommodations for the excluded delivery points do not just ify the Commission’s interpretation of the Tariff, and the Commission acknowledged that applying Suffolk County supports San Francisco’s
approach. Opinion No. 568 P 69.
Third, the Commission viewed San Francisco’s
interpretation of the grandfathering exception to render Section
14.2 meaningless, “because all customers within the class of customers taking service on October 24, 1992 would be
grandfathered in perpetuity.” Rehearing Order P 24. Not so.
Under San Francisco’s interpretation, PG&E’s customers must satisfy the criteria of Section 212(h)(2) to qualify for grandfathering: be an eligible entity that served end -use customers as of October 24, 1992. Any end-use customers San Francisco did not serve in 1992 could not qualify for the Section 14.2 exception.
Fourth, as PG&E notes, the court will generally defer to the Commission’s interpretation of its own precedent. But not when the Commission “depart [s] from those rulings without provid[ing] a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.” ESI Energy , 892 F.3d at 329 (internal quotation marks and citation omitted). The Commission attempts to distinguish its precedent on the ground that San Francisco filed its complaint under FPA § 206 while the cases in Suffolk County concerned proceedings for mandatory interconnection under FPA §§ 210 and 211. Opinion No. 568 P 67 n.154. Here, however, the Commission expressly declined to interpret USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 23 of 26 24 Section 212(h), ignoring the unambiguous terms of the Tariff.
Id. Even interpreting the Grandfathering Orders to create different interpretations of Section 212(h) for § 210 and 211 proceedings and another for § 205 and 206 proceedings, the Commission failed to explain why Section 212(h)(2)’s criteria would have different meanings in those contexts.
B.
San Francisco also contends that the Commission was
arbitrary and capricious in accepting PG&E’s definition of “municipal load” because it excludes from grandf athering certain customers that were receiving service in 1992 . Under the Commission’s Section 212(h) precedent, the Tariff’s grandfathering clause covers “the class of customers eligible to receive service” on October 24, 1992. Suffolk County , 96 FERC ¶ 61,349, at 62,301 (2001). That is, the Tariff allows grandfathering of a customer San Francisco served under the prior interconnection agreement even though th at custom er seeks Tariff service at a new delivery po int. Therefore, the court must address whether the Commission’s definition of “municipal load” excludes customers San Francisco served prior to the grandfathering date.
As noted, the Commission accepted PG&E’s definition
because it “effectively distinguishes between what is to be considered municipal load . . . and what is not,” and that although PG&E’s definition of “municipal load” differed from the definition in San Francisco and PG&E’s 1987 bilateral agreement, “a new contract may well have new terms and
definitions.” Opinion No. 568 P 72; see Rehearing Order PP 33-34. True, but the Commission’s analysis of “municipal load,” like its interpretation of Section 14.2 of the Tariff, failed to address the grandf athering criteria of Section 212(h)(2) , much less the Commission’s precedent interpreting it. The USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 24 of 26 25 Commission acknowledged that Suffolk County would require grandfathering of a customer San Francisco served under the prior interconnection agreement in 1992 even though that customer seeks Tariff service at a new delivery point. Opinion No. 568 P 69. And the Commission expressly accepted
PG&E’s definition to “describe the class of customers that San Francisco was serving as of October 24, 1992.” Rehearing Order P. 18. Yet PG&E’s definition would exclude entities served in 1992, including private parking garages on City property, tenants at San Francisco International Airport, and SOMArts, a neighborhood arts program partially funded by the San Francisco Arts Commission. See Ex. SF-2 at 14, 15; Ex.
SF-6 at 7 -11; Ex. PGE -5 at 10. Because the Commission’s Grandfathering Orders do not acknowledge the conflicts
between PG&E’s definition of “municipal load” and its own precedent interpreting Section 212(h)(2) criteria , the Grandfathering Orders are arbitrary and capricious.
Finally, the court notes that the orders on review present a troubling patte rn of inatte ntiveness to potential anti - competitive effects of PG&E’s administration of its open - access Tariff. More than a century ago, Congress authorized the Hetch Hetchy System not only to provide San Francisco with a source of cheap power but also to ensure competition in its retail power market. Faced with claims that PG&E was frustrating that competition by treating its own retail service preferentially and refusing service for customers San Francisco had served for decad es, the Commission fell short of meeting its “duty” to ensure that rules or practices affecting wholesale rates are “just and reasonable.” Elec. Power Supply Ass’n, 577 U.S. at 277.
Accordingly, the court grants San Francisco’s petitions challenging the Voltage Orders in No. 20-1313 and the
Grandfathering Orders in No. 20-1084, vacates those orders, USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 25 of 26 26 and remands to the Commission for further proceedings consistent with this opinion.
USCA Case #20-1084 Document #1932113 Filed: 01/25/2022 Page 26 of 26 181 FERC ¶ 61,222
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Before Commissioners: Richard Glick, Chairman;
James P. Danly, Allison Clements,
Mark C. Christie, and Willie L. Phillips.
City and County of San Francisco v. Pacific Gas and
Electric Company
Docket No. EL19-38-002
ORDER ON REMAND AND ESTABLISHING HEARING AND SETTLEMENT
JUDGE PROCEDURES
(Issued December 15, 2022)
On January 25, 2022, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued a decision1 vacating and remanding Commission orders issued in 2020 denying a complaint filed by the City and County of San Francisco (San Francisco) concerning Pacific Gas and Electric Company’s (PG&E) provision of wholesale distribution service to San Fr
ancisco (Voltage Orders).2 At issue on remand is
whether PG&E unreasonably denied San Francisco’s requests for secondary voltage distribution service (secondary service) for customers requesting service for loads above 75 kilowatts (kW) under the Wholesale Distribution Tariff (WDT).3 The D.C. Circuit
1 City & Cty. of San Francisco v. FERC, 24 F.4th 652 (D.C. Cir. 2022) (San Francisco v. FERC).
2 The “Voltage Orders” are City & Cty. of San Francisco v. Pac. Gas & Elec. Co., 171 FERC ¶ 61,021 (Order on Complaint),
order denying reh’g, 172 FERC ¶ 61,237
(2020) (Rehearing Order). The D.C. Circuit also vacated and remanded a separate set of Commission orders that denied San Francisco’s complaint against PG&E regarding the denial of grandfathered WDT service to San Francisco customers. These orders—termed the “Grandfathering Orders” by the court—were consolidated with San Francisco’s appeal of the Voltage Orders. The remanded Grandfathering Orders were addressed in the Commission’s October 20, 2022 order in Docket Nos. EL15-3-004 and ER15-704- 026. City & Cty. of San Francisco v. Pac. Gas & Elec. Co., 181 FERC ¶ 61,036 (2022). 3 Unless otherwise indicated, “WDT” refers to the version of PG&E’s Wholesale Distribution Tariff in effect at the time San Francisco’s complaint was filed. As discussed below,
PG&E submitted proposed revisions to the WDT as part of its 2021 WDT rate case, which, among other things, eliminated secondary service as a service Document Accession #: 20221215-3061 Filed Date: 12/15/2022 Docket No. EL19-38-002 - 2 -
rejected the Commission’s argument that the 75 kW threshold serves as an initial guidepost and is not required to be part of the WDT because, as the court explained, the Commission had not “adequately explained any operational or engineering rationale justifying PG&E’s 75 kW ‘guidepost.’”4 The court also found that the “rule of reason” requires the PG&E guidepost5 to be stated in the WDT.6
As discussed below, based on reexamination of the record and the court’s direction on remand, we determine that PG&E’s WDT has not been shown to be just and reasonable, and may be unjust, unreasonable, or unduly discriminatory or preferential.
Accordingly, we grant San Francisco’s complaint, finding that it has demonstrated that PG&E’s criteria for determining whether a WDT customer’s point of delivery should be required to take primary service must be part of the WDT. We also find that the complaint raises issues of material fact that cannot be resolved on the existing record and, accordingly, we set this matter for hearing and settlement judge procedures, as discussed herein.
I. Background
A. The Voltage Orders
The WDT, which became effective when the California Independent System Operator Corporation assumed operational control of PG&E’s transmission facilities on April 1, 1998, contains the rates, terms, and conditions for wholesale distribution service over PG&E’s distribution facilities. San Francisco became a WDT customer on July 1, 2015, following the expiration of a bilateral interconnection agreement between PG&E and San Francisco. As relevant here, the WDT provides two different distribution service rates: one rate for interconnection points connected at higher-level “primary voltage,” either directly or via dedicated facilities, and a second rate for interconnection points connected at a lower “secondary voltage.”7 Primary service comes with higher fixed costs, but lower service rates, while secondary service has lower fixed costs, but higher service rates. The WDT also provides for “
primary plus service,” a hybrid approach that
category. This filing was accepted, suspended for five months, effective April 15, 2021, and set for hearing and settlement judge procedures in Docket No. ER20-2878-000. 4 San Francisco v. FERC, 24 F.4th at 661.
5 Throughout these proceedings, the terms “threshold” and “guidepost” are used to describe the kilowatt demarcation between primary service and secondary service. 6 San Francisco v. FERC, 24 F.4th at 661.
7 PG&E, WDT, § 11 Service Availability (0.0.0).
Document Accession #: 20221215-3061 Filed Date: 12/15/2022 Docket No. EL19-38-002 - 3 -
offers the secondary service rate plus cost of ownership charges for direct assignment facilities.8
On January 28, 2019, San Francisco filed a complaint in Docket No. EL19-38-000 pursuant to sections 206, 306, and 309 of the Federal Power Act (FPA).9 San Francisco alleged that since it became a WDT customer in 2015, PG&E has refus ed to provide San
Francisco secondary and primary plus service to small loads at new interconnection points, forcing those customers to take on more financially burdensome primary service instead. San Francisco alleged that PG&E denied secondary and primary plus service to San Francisco’s new and modified delivery points unless the total electricity load was less than 75 kW—a threshold not stated in the WDT—while simultaneously granting secondary service to much larger loads for its own retail customers and other wholesale customers, such as Western Area Power Administration (Western).10 San Francisco argued that PG&E’s denial of secondary service for relatively small loads above 75 kW lacked any technical, safety, or reliability justification. 11 San Francisco also alleged that PG&E’s repeated initial denials of secondary service, unreasonable metering and switchgear requirements, and lengthy site -specific negotiations “imposed undue burdens and costs on San Francisco,” all of which San Francisco argued are improper obstacles to it taking WDT service. 12 Even where secondary service may have been inappropriate, San Francisco argued that it should have been offered primary plus service, which San Francisco asserts PG&E provides to other WDT customers.13 San Francisco requested that the Commission order PG&E to:
(1) end its improper categorical denial of secondary service to loads above 75 kW, and (2) refund the excess costs San Francisco incurred to comply with improper requirements that PG&E impo
sed as a condition of receiving service. 14
8 San Francisco Complaint, Ex. 1 (Declaration of Barbara Hale) at 3. 9 16 U.S.C. §§ 824e, 825e, 825h.
10 San Francisco v. FERC, 24 F.4th at 656; San Francisco Complaint at 10, 21, Ex. 2 (Maslowski Declaration) at 27.
11 San Francisco Complaint at 11.
12 San Francisco v. FERC, 24 F.4th at 656 (citing San Francisco Complaint at 31-32). 13 Id. (citing San Francisco Complaint at 16).
14 San Francisco Complaint at 33-37.
Document Accession #: 20221215-3061 Filed Date: 12/15/2022 Docket No. EL19-38-002 - 4 -
PG&E filed an answer, arguing that the premise of San Francisco’s complaint was based on incorrect facts and ignored technical, safety, reliability, and operational concerns that PG&E as the service provider must consider.15 PG&E argued that San Francisco, as the distribution customer, was attempting to dictate the level of service to its loads, which PG&E said was “absurd” because PG&E must retain the discretion to determine what level of service is both appropriate and available, based upon the status and configuration of its existing distribution system facilities and the nature and location of the interconnection request.16 PG&E explained that it believed that a wholesale electric utility like San Francisco should take wholesale service at primary voltage unless there is a reason that it is not possible or practicable. 17 In support, PG&E stated that the industry standard for utility-to
-utility interconnection is at primary voltage. PG&E
countered that it has tried to accommodate San Francisco’s numerous requests for interconnection under the WDT in accordance with San Francisco’s preferences.18 However, PG&E asserted that the focus should not be on what type of service San Francisco prefers, but on whether PG&E’s implementation of the terms of the WDT are just and reasonable and not unduly discriminatory.
The Commission denied San Francisco’s complaint, first noting that the industry standard for utility-to-utility interconnections was primary service, not secondary service.19 Further, the Commission found that PG&E, as the distribution service provider, should retain discretion to determine the appropriate service level for customers to ensure the safety and reliability of the distribution system. 20 Among other things, the Commission concluded that PG&E’s unwritten 75 kW threshold did not need to be part of the WDT under the rule of reason, and noted that PG&E had applied the 75 kW threshold flexibly to San Francisco’s benefit in many cases. 21 The Commission also distinguished PG&E’s treatment of San Francisco with its treatment of Western, noting that PG&E and Western had entered into a settlement agreement under which PG&E
15 PG&E Answer at 5, 15-17.
16 Id. at 6.
17 Id. at 8.
18 Id. at 15.
19 Order on Complaint, 171 FERC ¶ 61,021 at P 37.
20 Id. P 38.
21 Id. P 43 & n.96.
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would provide Western with secondary service, whereas PG&E and San Francisco had no such agreement.22
Thereafter, the Commission denied San Francisco’s request for rehearing, concluding that PG&E had not violated the terms and conditions of the WDT and that PG&E has discretion to determine whether to provide primary or secondary serv ice on a case-by-case basis.23 The Commission also rejected San Francisco’s arguments that PG&E treated it in an unduly discriminatory manner. The Commission concluded that the record contained examples where San Francisco had received secondary service f or
loads above 75 kW, contrary to San Francisco’s assertions that PG&E was denying such service to San Francisco, but granting it to other customers. 24 Finally, the Commission disagreed with San Francisco’s argument that it was subject to anti -competitive effects resulting from PG&E’s improper administration of the WDT. The Commission ruled that PG&E had properly implemented the WDT and, therefore, found no merit to San Francisco’s allegations of anti-competitive harm.25
B. D.C. Circuit Remand and Vacatur
San Francisco appealed the Voltage Orders to the D.C. Circuit, which held that the Voltage Orders were arbitrary and capricious because the Commission had failed to engage in reasoned and principled decision-making, providing only ‘“passing reference to relevant factors’ such as safety and reliability, without a deeper examination of ‘the challenges for PG&E . . . with respect to San Francisco’s requests for secondary service.’”26 The court also concluded that the Commission did not provide sufficient justification for why San Francisco should be held to industry norms for the use of
22 Id. P 42. The court in San Francisco v. FERC concluded that the Commission appropriately distinguished San Francisco’s situation from Western’s situation, pointing to the Commission’s explanation that Western was provided secondary service pursuant to the terms of a settlement agreement. San Franci
sco v. FERC, 24 F.4th at 659.
23 Rehearing Order, 172 FERC ¶ 61,237 at PP 9-10.
24 Id. P 12.
25 Id. P 15.
26 San Francisco v. FERC, 24 F.4th at 658 (quoting Mo. Pub. Serv. Comm’n v.
FERC, 234 F.3d. 36, 41 (D.C. Cir. 2000)).
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primary voltage for utility-to-utility interconnection when San Francisco’s geographic configuration differs from that of other utilities. 27
In response to San Francisco’s contention that the Commission had not adequately met its mandate to prevent undue discrimination with respect to retail service, the court concluded that the Commission had not met its burden of reasoned decision-making, observing that PG&E had provided temporary retail construction power service to San Francisco’s customers as the parties were negotiating wholesale service. 28 The court also held that the Commission failed to adequately explain why San Francisco is not similarly situated to PG&E retail customers that receive secondary service , stating that
the Commission’s explanation that there may be differences between wholesale and retail customers warranting different voltage levels was insufficient.29 The court also held that PG&E’s unofficial 75 kW threshold for secondary service violated the filed rate doctrine.30 The court explained that even if 75 kW is a guidepost, “that kind of numerical threshold is the type of requirement that the ‘rule of reason’ requires be stated in the [WDT], as a numerical threshold is ‘realistically susceptible of specification,’”31 and that “PG&E’s policy significantly ‘affect[s] rates and service’ because it affects which voltage level San Francisco may receive, and different voltages have different rates.”32 While the court acknowledged that primary voltage may be the industry norm for utility
-to-utility interconnections, and that PG&E should have discretion to provide secondary service on a case-by case basis, the court concluded that the Commission did not explain why these factors exempt the voltage guidepost from specification in the WDT under the “rule of reason.” 33 The court held that the Commission had not adequately explained any operational or engineering rationale to justify PG&E’s guidepost nor why that guidepost did not need to be in the filed WDT.
27 Id.
28 Id. at 660.
29 Id. at 659.
30 Id. at 661.
31 Id. (quoting Keyspan -Ravenswood, LLC v. FERC, 474 F.3d 804, 811 (D.C. Cir. 2007)).
32 Id. (quoting Keyspan -Ravenswood, LLC v. FERC, 474 F.3d at 811). 33 Id.
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The court vacated the Voltage Orders and remanded this matter to the Commission for further proceedings.34
C. WDT Proceeding in Docket No. ER20 -2878
In the 2021 WDT rate case, PG&E proposed to migrate its ratemaking approach from a stated rate to a formula rate. PG&E also proposed additional revisions to its WDT to limit new wholesale distribution service to primary voltage only 35 and proposed revisions to each service agreement under the WDT.
San Francisco objected to the
limitation in the revised WDT, arguing that the limitation would impede the deployment of distributed energy resources and asserting that PG&E had not demonstrated any safety or reliability risks arising from providing secondary voltage distribution service. The Commission accepted and suspended for five months PG&E’s proposed formula rate and revisions to the WDT, effective April 15, 2021, subject to refund, and established hearing and settlement judge procedures.36 PG&E subsequently filed, and the Commission approved, two uncontested settlements resolving certain rate-related issues.37 The second partial settlement provided that unresolved issues, including the elimination of secondary service and the treatment of “legacy” secondary points of delivery , would be addressed at
hearing.38 The hearing is ongoing.
34 Id. at 661.
35 Section 1.2 (Applicability) of the WDT was revised to state:
No new Distribution Service or Distribution Service to additional Point(s) of Receipt or Delivery will be provided at secondary voltage under this Tariff. However, existing Points of Receipt and Points of Delivery that were receiving wholesale distribution service at secondary voltage on the day prior to the Effective Date of this Tariff (Legacy Secondary) can continue to receive secondary voltage service provided that there is no change to such service as described in Section 10.1.1.
36 Pac. Gas & Elec. Co., 17 3 FERC ¶ 61,140 (2020).
37 Pac. Gas & Elec. Co., 176 FERC ¶ 61,012 (2021); Pac. Gas & Elec. Co., 179 FERC ¶ 61,167 (2022).
38 PG&E Offer of Partial Settlement and Stipulation, Docket No. ER20-2878-013 at § 2.3 (filed Mar. 31, 2022).
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II. Discussion
As discussed below, on reexamination of the record and relevant Commission precedent in light of the D.C. Circuit’s directions on remand, we reach the following conclusions. First, we find that PG&E’s application of an unofficial and unwritten 75 kW threshold for providing secondary service for San Francisco customers violates the filed rate doctrine, and that the criteria by which PG&E determines service level must be included in its WDT. Second, we conclude that there is insufficient support in the record for the Commission to find that a 75 kW threshold is just and reasonable and not unduly discriminatory or preferential, and that the record needs to be further developed to determine the just and reasonable and not unduly discriminatory or preferential criteria for determining when primary service is required under the WDT. We therefore grant San Francisco’s complaint and set this matter for hearing and settlement judge procedures.
The filed-rate doctrine states that “utilities are forbidden to charge any rate other than the one on file with the Commission,”39 and extends to utility practices that affect rates and service.40 Relatedly, the rule of reason requires public utilities to file for Commission approval “practices that affect rates and service significantly, that are realistically susceptible of specification, and that are not so generally understood in any contractual arrangement as to render recitation superfluous.”41 The Commission had previously determined that the 75 kW threshold did not need to be included in the WDT because the Commission viewed the threshold as an “initial guidepost for which primary service can be expected,” noting that the
record includes documentation of multiple
occasions where PG&E granted requests for secondary service exceeding 75 kW. 42 The D.C. Circuit rejected that argument, concluding that even as a “guidepost” the 75 kW threshold is “the kind of numerical threshold that the ‘rule of reason’ requires to be stated in the [WDT].”43 Given the court’s direction on remand, we find that under the rule of reason PG&E must include in the WDT the thresholds and other criteria used to determine whether a customer receives primary, primary plus, or sec ondary service.
39 West Deptford Energy LLC v. FERC , 766 F.3d 10, 12 (D.C. Cir. 2014). 40 San Francisco v. FERC, 24 F.4th at 661.
41 Keyspan-Ravenswood, LLC v. FERC, 474 F.3d at 811 (quoting City of Cleveland v. FERC, 773 F.2d 1368, 1376 (D.C. Cir. 1985)). 42 Rehearing Order, 172 FERC ¶ 61,237 at P 10.
43 San Francisco v. FERC, 24 F.4th at 661.
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We also find that the existing record does not show that PG&E’s 75 kW guidepost is a just and reasonable and not unduly discriminatory or preferential threshold for determining which points of delivery should receive primary service and whi ch should receive secondary service or primary plus service under the WDT. For example, while we recognize that the WDT serves a different purpose and applies to different customers than PG&E’s retail tariff, and while that retail tariff is not subject to the Commission’s jurisdiction, PG&E has not sufficiently explained why the 3,000 kW threshold it applies in the retail context is not appropriate for determining the type of wholesale distribution service available to a point of delivery under the WDT. Even if a 3,000 kW threshold is not the appropriate threshold for determining the type of wholesale distribution service available to a point of delivery under the WDT, the record does not indicate why there is such a significant gap between the 3,000 kW threshold that PG&E uses for its own retail customers and the 75 kW guidepost it applies in the WDT context.
At the same time, it is not clear that a kW threshold by itself is sufficient – or even necessary – to determine whether a particular point of delivery should be served using primary, secondary, or primary plus service. For example, it is unclear whether specified reliability, safety, or operational criteria should be considered by themselves or in conjunction with a kW threshold to determine the appropriate type of service for a delivery point under the WDT, or whether different kW thresholds or criteria should be considered for different types of points of delivery, depending on location, electric topology, or the criticality of the load.
For these reasons, we find that San Francisco has demonstrated that the WDT must include the specific criteria that PG&E uses to determine whether a wholesale distribution service customer is eligible to receive primary, primary plus, or secondary service at a requested point of delivery. We also find that the complaint raises issues of material fact that cannot be resolved based on the record before us and that are more appropriately addressed in the hearing and settlement judge procedures ordered below.
As discussed above, we find that these issues of material fact include the specification of the criteria, including any voltage thresholds, that PG&E uses to determine the appropriate type of wholesale distribution service for a requested point of delivery under the WDT. In addition, the hearing should explore what specific San Francisco points of delivery, if any, that were provided primary service should have been provided secondary service or primary plus service during the locked-in period from the date of the complaint until the revised WDT became effective, as well as the appropriate amount of refunds owed to San Francisco as a result.44
44 As noted above, PG&E filed revisions to the WDT eliminating secondary service as a service category, which the Commission accepted and suspended effective April 15, 2021, pending the outcome of ongoing hearing and settlement procedures in Docket No. ER20-2878
. The provisions of the WDT at issue in this matter are thus no Document Accession #: 20221215-3061 Filed Date: 12/15/2022 Docket No. EL19-38-002 - 10 -
While we are setting these matters for a trial-type evidentiary hearing,45 we encourage efforts to reach settlement before hearing procedures commence. To aid settlement efforts, we will hold the hearing in abeyance and direct that a settlement judge be appointed, pursuant to Rule 603 of the Commission’s Rules of Practice and Procedure.46 If parties desire, they may, by mutual agreement, request a specific judge as the settlement judge in the proceeding. The Chief Judge, however, may not be able to designate the requested settlement judge based on workload requirements which determine judges’ availability.47 The settlement judge shall report to the Chief Judge and the Commission within 60 days of the date of the appointment of the settlement judge, concerning the status of settlement discussions. Based on this report, the Chief Judge shall provide addition
al time to continue settlement discussions or provide for commencement of a hearing by assigning the case to a presiding judge.
Section 206(b) of the FPA provides that upon the filing of a complaint, the Commission must establish a refund effective date that is no earlier than the date of the complaint and no later than five months subsequent to the date of the complaint. In such cases, in order to give maximum protection to customers, and consistent with our precedent, we have historically tended to establish the section 206 refund effective date at the earliest date allowed by section 206, and we do so here as well.48 That date is January 28, 2019, the date of the complaint.49
longer in effect. Accordingly, the hearing and settlement judge procedures ordered herein will address the locked-in period from January 28, 2019, the date of the complaint, until April 15, 2021.
45 Trial Staff is a participant in the hearing and settlement judge procedures. See 18 C.F.R. § 385.102(b), (c) (20
21).
46 18 C.F.R. § 385.603.
47 If parties decide to request a specific judge, they must make their joint request to the Chief Judge by telephone at (202) 502-8500 within five days of this order. The Commission’s web
site contains a list of Commission judges available for settlement proceedings and a summary of their background and experience. (https://www.ferc.gov/available-settlement-judges).
48 See, e.g., Idaho Power Co., 145 FERC ¶ 61,122 (2013); Canal Elec. Co ., 46 FERC ¶ 61,153, order on reh’g, 47 FERC ¶ 61,275 (1989). 49 In its complaint, San Francisco invokes FPA section 309, which does not contain the time limits imposed in section 206
, in support of its argument that PG&E
should be “required to refund the excess costs [San Francisco] has incurred to comply with the improper interconnection, metering, and switchgear requirements that PG&E Document Accession #: 20221215-3061 Filed Date: 12/15/2022 Docket No. EL19-38-002 - 11 -
Section 206(b) of the FPA also requires that, if no final decision is rendered b y the conclusion of the 180-day period commencing upon initiation of the section 206 proceeding, the Commission shall state the reason why it has failed to render such a decision and state its best estimate as to when it reasonably expects to make such a decision. As we are setting the section 206 proceeding in Docket No. EL19-38-002 for hearing and settlement procedures, we expect that, if the proceeding does not settle, we would be able to render a decision within eight months of the date of filing of br iefs opposing exceptions to the Initial Decision. Thus, if the Presiding Judge were to issue an Initial Decision by October 31, 2023, we expect that, if the proceeding does not settle, we would be able to render a decision by August 31, 2024.
The Commission orders:
(A) San Francisco’s complaint is hereby granted, as discussed in the body of this order.
(B) Pursuant to the authority contained in and subject to the jurisdiction conferred on the Federal Energy Regulatory Commission by section 402(a) of the Department of Energy Organization Act and the FPA, particularly sections 205 and 206 thereof, and pursuant to the Commission’s Rules of Practice and Procedure and the regulations under the FPA (18 C.F.R. Chapter I), a public hearing shall be held concerning the issues identified in the body of this order. However, the hearing will be held in abeyance to provide time for settlement judge procedures, as discussed in Ordering Paragraphs (C) and (D) below.
(C) Pursuant to Rule 603 of the Commission’s Rules of Practice and Procedure, 18 C.F.R. § 385.603 (2021), the Chief Judge is hereby directed to appoint a settlement judge in this proceeding within 45 days of the date of this order. Such settlement judge shall have all powers and duties enumerated in Rule 603 and shall convene a settlement conference as soon as practicable after the Chief Judge designates the settle ment judge.
If parties decide to request a specific judge, they must make their request to the Chief Judge within five days of the date of this order.
(D) Within 60 days of the appointment of the settlement judge, the settlement judge shall file a report with the Commission and the Chief Judge on the status of the settlement discussions. Based on this report, the Chief Judge shall provide participants with additional time to continue their settlement discussions, if appropriate, or assign this
imposed as a condition of San Francisco receiving service.” San Francisco Complaint at
36. We are not persuaded to depart in this proceeding from the Commission’s usual practice of establishing a refund effective date at the earliest date permissible under section 206(b).
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case to a presiding judge for a trial-type evidentiary hearing, if appropriate. If settlement discussions continue, the settlement judge shall file a report at least every 60 days thereafter, informing the Commission and the Chief Judge of participants’ progress toward settlement.
(E) If settlement judge procedures fail and a trial-type evidentiary hearing is to be held, a presiding judge, to be designated by the Chief Judge, shall, within 45 days of the date of the presiding judge’s designation, convene a prehearing conference in these proceedings in a hearing room of the Commission, 888 First Street, NE, Washington, DC 20426, or remotely (by telephone or electronically), as appropriate. Such a conference shall be held for the purpose of establishing a procedural schedule. The presiding judge is authorized to establish procedural dates, and to rule on all motions (except motions to dismiss) as provided in the Commission’s Rules of Practice and Procedure. (F) The refund effective date established pursuant to section 206(b) of the FPA is January 28, 2019, as discussed in the body of this order.
By the Commission.
( S E A L )
Debbie-Anne A. Reese,
Deputy Secretary.
Document Accession #: 20221215-3061 Filed Date: 12/15/2022 Document Content(s)
EL19-38-002.docx..........................................................1 Document Accession #: 20221215-3061 Filed Date: 12/15/2022
182 FERC ¶ 61,149
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Before Commissioners: Willie L. Phillips, Acting Chairman; James P. Danly, Allison Clements,
and Mark C. Christie.
City and County of San Francisco v. Pacific Gas and
Electric Company
Docket No. EL19-38-003
ORDER ON REHEARING AND CLARIFICATION
(Issued March 23, 2023)
On December 15, 2022, the Commission issued an order on remand1 in response to a decision from the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit),2 vacating and remanding, as relevant here, two Commission orders denying a complaint filed by the City and County of San Francisco (San Francisco) concerning Pacific Gas and Electric Company’s (PG&E) provision of wholesale distribution service to San Francisco (Voltage Orders).3 In the December 2022 Order, the Commission granted San Francisco’s complaint, found that the complaint raised issues of material fact that cannot be resolved on the existing record, and, accordingly, established
1 City & Cnty. of S. F. v. Pac. Gas & Elec. Co., 181 FERC ¶ 61,222 (2022) (December 2022 Order).
2 City & Cnty. of S. F. v. FERC, 24 F.4th 652 (D.C. Cir. 2022) (San Francisco v.
FERC).
3 The “Voltage Orders” are City & Cnty. of S. F. v. Pac. Gas & Elec. Co., 171 FERC ¶ 61,021 (Order on Complaint), order denying reh’g, 172 FERC ¶ 61,237 (2020) (Rehearing Order). The D.C. Circuit also vacated and remanded a separate set of Commission orders that denied San Francisco’s complaint against PG&E regarding the denial of grandfathered Wholesale Distribution Tariff (WDT) service to San Francisco customers. These orders—termed the “Grandfathering Orders” by the court—were consolidated with San Francisco’s appeal of the Voltage Orders. The remanded Grandfathering Orders were addressed in the Commission’s October 20, 2022 order in Docket Nos. EL15-3-004 and -005 and ER15-704-026 and -027. City & Cty. of San Francisco v. Pac. Gas & Elec. Co., 181 FERC ¶ 61,036 (2022), order on reh’g, 182 FERC ¶ 61,167 (2023).
Docket No. EL19-38-003 - 2 -
hearing and settlement judge procedures.4
On January 17, 2023, San Francisco timely filed a request for clarification or, in the alternative, request for rehearing of the December 2022 Order. Pursuant to Allegheny Defense Project v. FERC,5 the rehearing request filed in this proceeding may be deemed denied by operation of law. However, as permitted by section 313(a) of the Federal Power Act (FPA),6 we are modifying the discussion in the December 2022 Order and continue to reach the same result in this proceeding, as discussed below.7 We also dismiss San Francisco’s request for rehearing as moot, in part, and grant, in part, and dismiss, in part, San Francisco’s request for clarification.
I. Background
A. The Voltage Orders
At issue in this proceeding on remand is whether PG&E unreasonably denied San Francisco’s requests for secondary voltage distribution service (secondary service) for customers requesting service for loads above 75 kilowatts (kW) under the WDT.8 As explained in the December 2022 Order, the WDT provides two different distribution service rates: one rate for interconnection points connected at higher-level “primary voltage,” either directly or via dedicated facilities, and a second rate for interconnection
4 December 2022 Order, 181 FERC ¶ 61,222 at P 2.
5 964 F.3d 1 (D.C. Cir. 2020) (en banc).
6 16 U.S.C. § 825l(a) (“Until the record in a proceeding shall have been filed in a court of appeals, as provided in subsection (b), the Commission may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it under the provisions of this chapter.”).
7 Allegheny Def. Project, 964 F.3d at 16-17. The Commission is not changing the outcome of the December 2022 Order. See Smith Lake Improvement & Stakeholders Ass’n v. FERC, 809 F.3d 55, 56-57 (D.C. Cir. 2015).
8 Unless otherwise indicated, “WDT” refers to the version of PG&E’s Wholesale Distribution Tariff in effect at the time San Francisco’s complaint was filed. That version of the WDT was in effect through April 15, 2021, when, as discussed below, the revised WDT that PG&E submitted as part of its 2021 WDT rate case in Docket No. ER20-2878- 000 became effective. See infra n.30.
Docket No. EL19-38-003 - 3 -
points connected at a lower “secondary voltage.”9 Primary service comes with higher fixed costs, but lower service rates, while secondary service has lower fixed costs, but higher service rates. The WDT also provides for “primary plus service,” a hybrid approach that offers the secondary service rate plus cost of ownership charges for direct assignment facilities.10
On January 28, 2019, San Francisco filed a complaint in Docket No. EL19-38-000 pursuant to FPA sections 206, 306, and 309.11 San Francisco alleged that since it became a WDT customer in 2015, PG&E has refused to provide San Francisco secondary and primary plus service for small loads at new interconnection points, forcing those customers to take more financially burdensome primary service instead. San Francisco alleged that PG&E denied secondary and primary plus service to San Francisco’s new and modified delivery points unless the total electricity load was less than 75 kW—a threshold12 not stated in the WDT—while simultaneously granting secondary service to much larger loads for its own retail customers and other wholesale customers, such as Western Area Power Administration (Western).13 San Francisco argued that PG&E’s denial of secondary service for relatively small loads above 75 kW lacked any technical, safety, or reliability justification.14
San Francisco also alleged that PG&E’s repeated initial denials of secondary service, unreasonable metering and switchgear requirements, and lengthy site-specific negotiations “imposed undue burdens and costs on San Francisco,” all of which San Francisco argued are improper obstacles to its taking WDT service.15 Even where secondary service may have been inappropriate, San Francisco argued that it should have been offered primary plus service, which San Francisco asserted PG&E provides to other
9 PG&E, WDT, § 11 (Service Availability) (0.0.0).
10 San Francisco Complaint, Ex. 1 (Declaration of Barbara Hale) at 3. 11 16 U.S.C. §§ 824e, 825e, 825h.
12 Throughout these proceedings, the terms “threshold” and “guidepost” are used to describe the kilowatt demarcation between primary service and secondary service. 13 San Francisco v. FERC, 24 F.4th at 656; San Francisco Complaint at 10, 21, Ex. 2 (Maslowski Declaration) at 27.
14 San Francisco Complaint at 11.
15 San Francisco v. FERC, 24 F.4th at 656 (citing San Francisco Complaint at 31-32).
Docket No. EL19-38-003 - 4 -
WDT customers.16 San Francisco requested that the Commission order PG&E to:
(1) end its improper categorical denial of secondary service to loads above 75 kW; and (2) refund the excess costs San Francisco incurred to comply with improper requirements that PG&E imposed as a condition of receiving service.17 The Commission denied San Francisco’s complaint, noting that the industry standard for utility-to-utility interconnections was primary service and finding that PG&E should retain discretion to determine the appropriate service level for customers to ensure the safety and reliability of the distribution system.18 Among other things, the Commission concluded that PG&E’s unwritten 75 kW threshold did not need to be part of the WDT under the rule of reason, and noted that PG&E had applied the 75 kW threshold flexibly to San Francisco’s benefit in many cases.19 The Commission also distinguished PG&E’s treatment of San Francisco from its treatment of Western, noting that PG&E and Western had entered into a settlement agreement under which PG&E would provide Western with secondary service.20 Thereafter, the Commission denied San Francisco’s request for rehearing, concluding that PG&E had not violated the terms and conditions of the WDT and that PG&E has discretion to determine whether to provide primary or secondary service on a case-by-case basis.21 B. D.C. Circuit Remand and Vacatur
In its January 25, 2022 decision, the D.C. Circuit held that the Voltage Orders were arbitrary and capricious because the Commission had failed to engage in reasoned and principled decision-making, providing only ‘“passing reference to relevant factors’ such as safety and reliability, without a deeper examination of ‘the challenges for PG&E . . . with respect to San Francisco’s requests for secondary service.’”22 The court also
16 Id. (citing San Francisco Complaint at 16).
17 San Francisco Complaint at 33-37.
18 Order on Complaint, 171 FERC ¶ 61,021 at PP 37-38.
19 Id. P 43 & n.96.
20 Id. P 42. The court in San Francisco v. FERC concluded that the Commission appropriately distinguished San Francisco’s situation from Western’s situation.
San Francisco v. FERC, 24 F.4th at 659.
21 Rehearing Order, 172 FERC ¶ 61,237 at PP 9-10.
22 San Francisco v. FERC, 24 F.4th at 658 (quoting Mo. Pub. Serv. Comm’n v.
FERC, 234 F.3d. 36, 41 (D.C. Cir. 2000)).
Docket No. EL19-38-003 - 5 -
concluded that the Commission did not provide sufficient justification for why San Francisco should be held to industry norms for the use of primary voltage for utility-to-utility interconnection when San Francisco’s geographic configuration differs from that of other utilities.23
In response to San Francisco’s contention that the Commission had not adequately met its mandate to prevent undue discrimination with respect to retail service, the court concluded that the Commission had not met its burden of reasoned decision-making, observing that PG&E had provided temporary retail construction power service to San Francisco’s customers as the parties were negotiating wholesale service. 24 The court also held that the Commission failed to adequately explain why San Francisco is not similarly situated to PG&E retail customers that receive secondary service, stating that the Commission’s explanation that there may be differences between wholesale and retail customers warranting different voltage levels was insufficient.25 The court also held that PG&E’s unofficial 75 kW threshold for secondary service violated the filed rate doctrine.26 The court explained that even if 75 kW is a guidepost, “that kind of numerical threshold is the type of requirement” that must be set forth in the WDT under the “rule of reason,” “as a numerical threshold is ‘realistically susceptible of specification,’”27 and that “PG&E’s policy significantly ‘affect[s] rates and service’ because it affects which voltage level San Francisco may receive, and different voltages have different rates.”28 While the court acknowledged that primary voltage may be the industry norm for utility-to-utility interconnections, and that PG&E should have discretion to provide secondary service on a case-by case basis, the court concluded that the Commission did not explain why these factors exempt the voltage guidepost from specification in the WDT under the “rule of reason.”29 The court held that the Commission had not adequately explained any operational or engineering rationale to justify PG&E’s guidepost nor why that guidepost did not need to be in the filed WDT.
23 Id.
24 Id. at 660.
25 Id. at 659.
26 Id. at 661.
27 Id. (quoting Keyspan-Ravenswood, LLC v. FERC, 474 F.3d 804, 811 (D.C. Cir. 2007)).
28 Id. (quoting Keyspan-Ravenswood, LLC v. FERC, 474 F.3d at 811). 29 Id.
Docket No. EL19-38-003 - 6 -
The court therefore vacated the Voltage Orders and remanded this matter to the Commission for further proceedings.30
II. December 2022 Order
The Commission in the December 2022 Order found that PG&E’s application of an unofficial and unwritten 75 kW threshold for providing secondary service for San Francisco customers violates the filed rate doctrine, and that the criteria by which PG&E determines service level must be included in its WDT. The Commission concluded that there is insufficient support in the record for the Commission to find that a 75 kW threshold is just and reasonable and not unduly discriminatory or preferential, and that the record needs to be further developed to determine the just and reasonable and not unduly discriminatory or preferential criteria for determining when primary service is required under the WDT. The Commission therefore granted San Francisco’s complaint and set this matter for hearing and settlement judge procedures. 31 As relevant here, the Commission in the December 2022 Order found that the hearing should explore what specific San Francisco points of delivery, if any, that were provided primary service should have been provided secondary service or primary plus service during the locked-in period from the date of the complaint until the revised WDT became effective (i.e., January 28, 2019 until April 15, 2021), as well as the appropriate amount of refunds owed to San Francisco as a result.32 The Commission, pursuant to FPA section 206(b),33 established a refund effective date of January 28, 2019, the date of
30 Id. at 661. As relevant here, in Docket No. ER20-2878-000 and prior to the remand of the Voltage Orders, PG&E filed proposed revisions to the WDT to, among other things, limit new wholesale distribution service to primary voltage only.
San Francisco and others protested that filing. The Commission accepted that filing effective April 15, 2021, subject to refund, suspended it for five months, and set it for hearing and settlement judge procedures. See Pac. Gas & Elec. Co., 173 FERC ¶ 61,140 (2020). The Commission subsequently approved two related partial uncontested settlements filed by PG&E in that proceeding. Pac. Gas & Elec. Co., 176 FERC ¶ 61,012 (2021); Pac. Gas & Elec. Co., 179 FERC ¶ 61,167 (2022). Among the issues addressed in the ongoing hearing are the elimination of secondary service and the treatment of “legacy” secondary points of delivery. See PG&E Offer of Partial Settlement and Stipulation, Docket No. ER20-2878-013, at § 2.3 (filed Mar. 31, 2022). 31 December 2022 Order, 181 FERC ¶ 61,222 at P 13.
32 Id. P 17 & n.44.
33 16 U.S.C. § 824e(b).
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the complaint.34 In response to San Francisco’s request that the Commission, pursuant to its authority under FPA section 309,35 require PG&E to refund alleged excess costs San Francisco has incurred to comply with the improper interconnection metering and switchgear requirements that PG&E imposed as a condition of San Francisco receiving service, the Commission stated that it was “not persuaded to depart in this proceeding from the Commission’s usual practice of establishing a refund effective date at the earliest date permissible under section 206(b).”36
III. Discussion
A. Scope of Harms to San Francisco to be Addressed at Hearing
1. Request for Clarification and Rehearing
San Francisco requests that the Commission confirm that the hearing should address all of the kinds of harm that San Francisco has alleged it has suffered due to PG&E’s WDT violations, and is not restricted to facts related to San Francisco loads interconnected to PG&E at primary voltage.37 San Francisco states that granting this clarification would be consistent with the allegations in its complaint that it has suffered various harms due to PG&E’s violations of its filed rate and the WDT.38 Specifically, San Francisco states that PG&E’s denial of secondary voltage service under the WDT:
(1) require[s] San Francisco to incur unnecessary and
excessive costs to serve its loads; (2) force[s] San Francisco to use space for unnecessary switchgear that could be used for critical facilities and functions; (3) cause[s] excessive delays, and related costs, in bringing service to its loads; (4) force[s] San Francisco to allow some of its customers to take retail service from PG&E; and (5) require[s] San Francisco to
install facilities in less secure and reliable locations.39
34 December 2022 Order, 181 FERC ¶ 61,222 at P 19.
35 16 U.S.C. § 825h.
36 December 2022 Order, 181 FERC ¶ 61,222 at P 19 n. 49. 37 Request for Clarification and Rehearing at 2, 3, 4-5. 38 Id. at 5.
39 Id. (quoting San Francisco Complaint at 17).
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According to San Francisco, the harms it incurred extended beyond “those projects that were forced to receive WDT service at unnecessarily high, primary voltage levels” and at some times “prevented San Francisco from receiving any service under the WDT and thus forced customers to take PG&E retail service in order to receive power.”40 San Francisco states that allowing it to provide evidence of these harms at hearing is consistent with the court’s statements in San Francisco v. FERC regarding San Francisco’s customers starting retail service with PG&E during San Francisco’s wholesale service negotiations with PG&E and the potential anti-competitive effects of PG&E’s tariff administration.41 San Francisco urges the Commission to permit San Francisco to address at hearing “loads that were forced to take PG&E retail service or that were otherwise affected by PG&E’s improper denials of secondary voltage and primary plus WDT service to San Francisco.”42 San Francisco requests that the Commission clarify that the December 2022 Order did not restrict the issues to be addressed at hearing to include “only those points of delivery improperly required to take primary voltage service.”43
Should the Commission deny San Francisco’s requested clarification, San Francisco argues in the alternative that the Commission erred in restricting the scope of the hearing in this proceeding to San Francisco’s points of delivery interconnected to PG&E at primary voltage and therefore eliminating consideration of other impacts from PG&E’s filed rate doctrine and WDT violations alleged by San Francisco. 44 San Francisco asserts that prohibiting consideration of the anti-competitive impacts of PG&E’s WDT would flout the D.C. Circuit’s opinion in San Francisco v. FERC and the Commission’s FPA obligations.45
2. Commission Determination
As discussed below, we grant San Francisco’s request for clarification regarding the issues set for hearing in this proceeding. As relevant here, in granting San Francisco’s complaint in this proceeding and setting it for hearing and settlement judge
40 Id.
41 Id. at 6 (citing San Francisco v. FERC, 24 F.4th at 660, 665-66). 42 Id.
43 Id.
44 Id. at 4.
45 Request for Clarification and Rehearing at 7.
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procedures, the Commission directed that the hearing address “what specific San Francisco points of delivery, if any, that were provided primary service should have been provided secondary service or primary plus service during the locked-in period from the date of the complaint until the revised WDT became effective, as well as the appropriate amount of refunds owed to San Francisco as a result.”46 We do not regard this description of the issues to be addressed at hearing as exhaustive; rather, this description represents some of the key issues that the Commission wants to ensure that the parties address at hearing. The Commission in the December 2022 Order set San Francisco’s entire complaint for hearing and settlement judge procedures. We therefore clarify that San Francisco may at hearing present evidence of harm that is reflected in its complaint.47 Because we are granting San Francisco’s request for clarification, we dismiss its alternative request for rehearing on this issue as moot.
B. The Commission’s FPA Section 309 Authority
1. Request for Clarification and Rehearing
San Francisco requests that the Commission confirm that the Commission reserves “its full authority under FPA section 309 to address PG&E’s violations of the filed rate doctrine and WDT as appropriate, based on the facts developed at hearing.”48 San Francisco urges the Commission to clarify that the December 2022 Order does not prevent the Commission from using its FPA section 309 authority to address PG&E’s WDT and filed rate violations even though the FPA section 206(b) refund effective date is the date of San Francisco’s complaint.49 While San Francisco does not request that the
46 December 2022 Order, 181 FERC ¶ 61,222 at P 17.
47 See Request for Clarification and Rehearing at 5 (arguing that PG&E’s denial of secondary service: “(1) require[s] San Francisco to incur unnecessary and excessive costs to serve its loads; (2) force[s] San Francisco to use space for unnecessary switchgear that could be used for critical facilities and functions; (3) cause[s] excessive delays, and related costs, in bringing service to its loads; (4) force[s] San Francisco to allow some of its customers to take retail service from PG&E; and (5) require[s] San Francisco to install facilities in less secure and reliable locations.”) (quoting San Francisco Complaint at 17).
48 Request for Clarification and Rehearing at 3.
49 Id. at 7-8.
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Commission decide at this juncture “the extent or manner of [FPA] section 309 relief,” San Francisco asks the Commission to clarify that such relief is possible. 50 San Francisco represents that FPA section 309 relief is appropriate in this proceeding because Commission precedent permits refunds for tariff violations to predate the allowable refund effective date under FPA section 206(b). San Francisco also argues that FPA section 309 relief is appropriate here because San Francisco requested this relief in its complaint and the Commission in the December 2022 Order recognized that PG&E’s unofficial and unwritten 75 kW threshold for eligibility for secondary service violates the filed rate doctrine.51
Should the Commission deny San Francisco’s requested clarification, San Francisco argues that the Commission erred in declining to consider FPA section 309 relief based on the facts and issues developed at hearing.52 San Francisco states that the December 2022 Order does not elaborate on why the Commission has ruled out addressing PG&E’s violations at hearing, especially when the factual issues have not yet been addressed at hearing.53
2. Commission Determination
As discussed below, we grant, in part, and dismiss, in part, San Francisco’s request for clarification regarding the Commission’s FPA section 309 authority. First, we dismiss, as unnecessary, San Francisco’s request that the Commission expressly reserve its authority under FPA section 309. FPA section 309 provides the Commission the “power to perform any and all acts . . . as it may find necessary or appropriate to carry out
50 Id. at 8.
51 Id. at 8-10 (citing Verso Corp. v. FERC, 898 F.3d 1, 10 (D.C. Cir. 2018); TNA Merch. Projects, Inc. v. FERC, 857 F.3d 354, 362 (D.C. Cir. 2017); Canadian Ass’n of Petrol. Producers v. FERC, 254 F.3d 289, 299-300 (D.C. Cir. 2001); Idaho Power Co., 145 FERC ¶ 61,122, at PP 1 n.6, 17 (2013); Puget Sound Energy, Inc. v. All Jurisdictional Sellers of Energy and/or Capacity at Wholesale into Elec. Energy and/or Capacity Mkts. in the Pac. Nw., Including Parties to the W. Sys. Power Pool Agreement, 143 FERC ¶ 61,020, at P 32 (2013); Cent. Me. Power Co., 56 FERC ¶ 61,200 (1991); Prior Notice & Filing Requirements Under Part II of the Fed. Power Act, 64 FERC ¶ 61,139, clarified, 65 FERC ¶ 61,081 (1993)).
52 Id. at 4.
53 Id. at 10.
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the provisions of” the FPA.54 Because we have section 309 authority in order “to carry out the provisions” of the FPA,55 contrary to San Francisco’s request for clarification,56 we do not need to expressly “reserve” that authority. Second, we grant San Francisco’s request for clarification that the December 2022 Order did not preclude the consideration of any remedy that may be appropriate following the further development of the record.
In such clarification, we note that the Commission in the December 2022 Order granted San Francisco’s complaint and established a January 28, 2019, refund effective date pursuant to FPA section 206(b), consistent with its normal practice.57 It is premature at this stage of the proceeding, given that hearing and settlement judge procedures are ongoing, for the Commission to decide whether remedies under FPA section 309 are appropriate for carrying out the provisions of the FPA.58 Because we grant, in part, and dismiss, in part, San Francisco’s request for clarification and confirm that the December 2022 Order does not preclude consideration of any remedy that may be appropriate based on the record developed through hearing procedures, we find moot San Francisco’s alternative request for rehearing on this issue.
The Commission orders:
(A) In response to the request for rehearing, the December 2022 Order is hereby modified and the result sustained, as discussed in the body of this order. (B) San Francisco’s request for clarification is hereby granted, in part, and dismissed, in part, as discussed in the body of this order.
54 16 U.S.C. § 825h.
55 16 U.S.C. § 825h.
56 See Request for Clarification and Rehearing at 3, 9. 57 As the December 2022 Order explains, “consistent with our precedent, we have historically tended to establish the section 206 refund effective date at the earliest date allowed by section 206, and we do so here as well. That date is January 28, 2019, the date of the complaint.” December 2022 Order, 181 FERC ¶ 61,222 at P 19 (footnotes omitted).
58 We note that San Francisco is not seeking relief under section 309 at this time.
Request for Clarification and Rehearing at 8 (“San Francisco is not asking the Commission to issue any ruling at this time on the extent or manner of section 309 relief, but requests that the Commission clarify that the [December 2022] Order does not foreclose the possibility of such relief.”).
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(C) San Francisco’s request for rehearing is hereby dismissed, in part, as discussed in the body of this order.
By the Commission.
( S E A L )
Debbie-Anne A. Reese,
Deputy Secretary.