CN8855 Ruling on Motion to Compel

IN THE MATTER OF THE COMPLAINT OF * BEFORE THE GIANT FOODS, INC. VS. BALTIMORE GAS PUBLIC SERVICE COMMISSION AND ELECTRIC COMPANY. * OF MARYLAND

* CASE NO. 8855 *

July 18, 2002

HEARING EXAMINER'S RULING ON JUNE 14, 2002 MOTION TO COMPEL

On June 14, 2002, Giant Foods, Inc. ("Giant") filed a

Motion to Compel certain discovery from Baltimore Gas and Electric

Company ("BGE"). Specifically, Giant requested BGE be directed to provide further responses to data requests that were follow-up data requests to Giant Data Request No. 4, Item Nos. 6 and 7.

Item No. 6 concerns a response by BGE wherein it noted that "BGE does not have an electric supply obligation" to

Customer D,1 to which Giant requested follow-up information designed to clarify the May 20, 2002 response of BGE as to how

BGE's lack of electric supply obligation at fixed prices distinguishes Customer D with respect to the Competitive Transition

Charge ("CTC") allocation.2 Specifically, Giant made the following follow-up data request:

1 Customer D was the designation for a customer who has since been pub- licly identified as Bethlehem Steel Corporation. 2 As noted in previous rulings in this matter, this complaint by Giant against BGE concerns the CTC of Giant, as Giant is a member of a group (including Customer D) with a total CTC payment obligation of $59.5 million. This request sought (among other things) an explanation of BGE's statement that it does not have an electric supply obligation for Customer D. BGE's response states (among other things) that the statement means that BGE does not have an electric supply obligation "in the sense that there is no firm electric supply obligation at fixed prices and therefore no electric supply risk to BGE." This response is not completely clear; hence, Giant has the following follow-up questions designed to clarify the response:

1. Please state whether BGE provides Customer D with any backup, minimum firm service, standard offer service ("SOS"), or any similar and/or required service and, if so, please state the type of service, provide a complete description of the service, and state the current rate for such service.

a. Please state whether BGE is required to furnish any type of supply service to Customer D, and, if so, please state the type of service, provide a complete description of the service, and state the current rate for such service.

2. Please state whether Customer D may purchase default service or any similar service from BGE and, if so, please state the type of service, provide a description of the service, and state the current rate for such service.

3. Please provide a copy of the language of any provision or specific agreement between Customer D and BGE concerning any electric supply obligation (firm, interruptible, or other) which BGE has to Customer D.

4. Please provide a copy of the language of any provision or specific agreement between Customer D and BGE which exempts BGE from any electric supply obligation (firm, interruptible, or other) to Customer D.

2 BGE responded as follows in its June 11, 2002 response:

This request is seeking detailed information about the terms and conditions of electric generation supply contained in BGE's confidential contract with Customer D. Giant's previous requests to have access to the details of BGE's contract with Customer D have been denied by the Commission. The PSC's Order has been upheld on appeal by the courts.

Item No. 7 concerns a request for monthly records of CTC or other transition or stranded cost payments from each customer in the "contract customer class" (i.e., those customers responsible for payment of a portion of the $59.5 million "class" payment obligation). BGE's May 20, 2002 response noted the group was not properly referred to as the "contract customer class," and provided information as to the determination of each customer's CTC responsibility. In this follow-up data request, Giant reiterated its request for the actual payment information as follows:

Giant Data Request No. 7 requested the following information:

Please provide, by month, a copy of the records of CTC or other transition or stranded cost payments received from each of the customers in the contract customer class (that is, those customers responsible for payment of a portion of the $59.5 million in transition or stranded costs, including those customers on Schedule PL) since the effective date of those payments for each customer.

It appears that BGE may have misunderstood the request. Giant did not request the CTC rates, nor did it seek a formula which would

3 provide an approximation of the payments (CTC times electricity sale). Giant requested the records of the actual CTC or other transition or stranded cost payments. Please respond to this request as written."

BGE responded as follows in a June 11, 2002 response:

Giant appears to be requesting a copy of the actual records of CTC payments received from each of the customers responsible for payment of a portion of the $59.5 million in competitive transition costs, including those customers on Schedule PL, since the effective date of those payments for each customer.

This is a request for the actual monthly bill for each customer account for almost a two- year period. This request is overly burdensome. However, Giant may examine a sample of the requested monthly bills at BGE's offices. Customer bills contain confidential information relating to individual customers and all such confidential information will be redacted. Please contact counsel for BGE to make arrangements.

In its Motion, Giant requests BGE be compelled to respond in full to the two data requests noted above. With respect to Item No. 6, Giant disputes BGE's characterization that the

Commission order denying access to Customer D's contract was upheld on appeal to the courts, noting the Court decision dismissed the interlocutory appeal of Giant without prejudice as being premature.

Furthermore, as to the data now requested, Giant contends Items 1,

1a and 2 do not seek Customer D contract language, but a full description of services Customer D does or does not receive. Giant acknowledges Items 3 and 4 seek contract language, but only

4 "certain relevant portions." Giant argues its data request is consistent with prior Order No. 76066,3 which required BGE to provide Giant on a confidential basis "all details concerning the portion of the $59.5 million allocated to each customer, including the formula utilized and whether any other consideration, such as a discount, was given to that customer in exchange for payment."

Giant contends the information requested is the type of data BGE was directed to produce, and further contends it can present its case only if it knows what portion of the transition costs the other members of the "class" have been allocated and why, failure of which may violate its due process rights.

With respect to Item No. 7, Giant notes BGE's objection is that the request is "burdensome." Giant believes BGE has mis- interpreted the request, as Giant requests only a record of actual payments rather than the rates or full monthly bills.

BGE filed an Answer in opposition to Giant's Motion on

June 28, 2002. In its Answer, BGE raises the timeliness of Giant's

Motion, considering Giant's discovery to be late-filed in regard to the procedural schedule agreed by the parties in this case, and BGE further opposes the Motion on its merits. BGE contends it has provided all relevant, non-burdensome data called for in Giant's data requests, and offered to make additional voluminous material available to Giant, which Giant chose not to review.

3 Order No. 76066 was issued on December 4, 2000 with respect to a prior discovery dispute in this case between Giant and BGE.

5 As to the specific items in dispute, BGE contends Item

No. 6 is a "rehash" of Giant's failed interlocutory appeal. BGE cites Order No. 77072,4 which denied Giant's request for provision of the BGE-Customer D contract, which Order was denied reconsideration by the Commission on August 23, 2001. Giant's

Petition for Judicial Review was then denied, without prejudice, by the Circuit Court's Order dated January 25, 2002. BGE argues that

Giant has been provided all details of the allocation of CTC charges to customers, including annual revenues, annual kilowatts, all details concerning allocations (including any discounts), whether any customer has been excused from payment, and amount of

CTC payments by customers (without naming the customer). Order No.

77072 confirms this information has been provided (Order at p. 2), and BGE argues Giant is essentially "rehashing" this issue in contravention of the Order.

With respect to Item No. 7, BGE alleges Giant seeks voluminous information that was offered to be available for inspection, but Giant has not sought to inspect. BGE states this payment information is not kept in any readily available, non- burdensome form where customer confidentiality is protected, but

BGE offers to pull the information (with customer identity

4 Order No. 77072 was issued on June 29, 2001 in this proceeding, and noted the Commission's orders with respect to discovery disputes supported Giant's efforts to discover CTC payment information, while protecting identity and confidential matters between BGE and other members of the group, including confidentiality of actual contracts. Accordingly, Giant's request for the actual contract of Customer D was denied. Order No. 77072 at pp. 8-9.

6 protected) from files and show it to Giant representatives at BGE offices.

Giant filed a Response to the BGE Answer on July 10,

2002. In addition to responding to the procedural matters raised in this dispute, Giant reiterates its prior points regarding the merits of the contested discovery requests, while noting that the

BGE offer to permit review of bills reflecting all CTC payments in an office visit is acceptable to Giant.

Upon consideration of the arguments of the parties contained in their respective pleadings, I note that this discovery dispute concerns Giant's request for information regarding

Customer D (Item No. 6), and information regarding payments of other members of the CTC "class" (Item No. 7). With respect to data concerning Customer D, Customer D was involved in the prior discovery disputes between Giant and BGE which were resolved by earlier rulings, such as Order No. 77072, which clearly enunciated the Commission's support for allowing Giant to obtain discovery regarding CTC payment information of the group members, while also protecting the identity and confidential matters between BGE and the other members of the group, including the actual contracts.

(Order No. 77072 at p. 8.)

In the pending dispute, I find and conclude that Giant should not be precluded from continuing discovery on the basis that such requests are beyond the scope of the procedural schedule, as I note the schedule provides for further discovery and the specific requests are considered "follow-up" requests to earlier data

7 requests. I also find that certain requests that are follow-up data requests seeking clarification that do not seek the actual contract provisions should be provided as being in conformance with the prior Commission rulings, while requests seeking the actual contract provisions will be denied. With respect to the payment information, to which objection was based upon burdensomeness, it appears the parties are in essential agreement to provide access to the information at BGE's offices.

Accordingly, I rule as follows to the specific matters in dispute:

1. As a preliminary matter, the implication in BGE's Response that the discovery be denied as violating the procedural schedule is not accepted. This disputed discovery is follow-up to prior discovery, as noted by Giant. In addition, the procedural schedule agreed by the parties and established in the May 10, 2002 Notice of Procedural Schedule provides for further data requests by all parties through August 26, 2002, although that deadline concerns data requests concerning reply testimony. Therefore, rejection of a data request for timeliness at this time may in fact only delay the request to a later period, when it may be permissible. As the requested information are "follow-up" requests and the schedule allows for future data requests by Giant, I find the follow-up requests should not be precluded at this time for timeliness reasons, but as noted in the June 17, 2002 conference call, these data requests did not change the responsibility of Giant to file direct testimony on June 17, 2002.5

5 In that conference call, the schedule remained intact, although supple- mental filings may be permitted.

8 2. BGE shall present further responsive answers to Requests 1, 1a and 2 of Item No. 6 (regarding whether BGE provides any back-up, minimum firm service, standard offer service, any similar and/or required service, supply service, or default service to Customer D).6 However, the rates for such service need not be disclosed at this time. This data request is granted as a permissible follow-up to the asser- tion that BGE does not have an electric supply obligation to Customer D, but rate information appears to constitute poten- tial confidential information which need not be disclosed unless there is some bearing upon the CTC allocation or payment.

3. Requests 3 and 4 of Item No. 6 seeking copies of language in the specific agreement between BGE/Customer D are denied, as such specific contract provisions violates the confidentiality of the agreement and contravenes Order No. 77072's protective provisions governing the contract.

4. The parties shall consult within the next 10 days to attempt to work out acceptable provisions for Giant to review CTC payment information at the offices of BGE as a resolution of Item No. 7, as it appears there is basic agreement of the parties on this issue. If this matter remains in dispute following the consultation, the parties shall inform the Hearing Examiner.

Joel M. Bright Hearing Examiner

6 As Customer D is the subject of this data dispute, a copy of the Ruling will be sent to its counsel.

9 July 18, 2002

In the matter of the complaint of * Giant Foods, Inc., vs. Baltimore * Case No. 8855 Gas And Electric Company. * *

Thomas C. Gorak, Esq. Gorak & Bay, L.L.C. 400 East Pratt Street, Suite 800 Baltimore, Maryland 21202

Dear Mr. Gorak:

Enclosed please find a copy of the "Hearing Examiner's Ruling on June 14, 2002 Motion to Compel" issued today in the above-entitled matter.

Very truly yours,

Kathleen Berends Management Associate kab Enclosure July 18, 2002

Daniel P. Gahagan, Esq. Kelly D. Hewitt, Esq. Baltimore Gas and Electric Company 39 West Lexington Street, 20th Floor Baltimore, MD 21201

Dear Mr. Gahagan and Ms. Hewitt:

Very truly yours,

Sarah R. Lazarus, Esq. Lloyd J. Spivak, Esq. Office of Staff Counsel Maryland Public Service Commission William Donald Schaefer Tower 6 St. Paul Street Baltimore, MD 21202-6806

Dear Ms. Lazarus and Mr. Spivak:

Very truly yours,

Michael J. Travieso, Esq. People's Counsel William Donald Schaefer Tower 6 St. Paul Street, Suite 2102 Baltimore, MD 21202-6806

Dear Mr. Travieso:

For your information, enclosed is a copy of the "Hearing Examiner's Ruling on June 14, 2002 Motion to Compel" issued today in the above-entitled matter.

Very truly yours,

Jeral A. Milton, Esq. 111 South Calvert Street, Suite 2700 Baltimore, MD 21202-3200

Dear Ms. Milton:

For your information, enclosed is a copy of the "Hearing Examiner's Ruling on June 14, 2002 Motion to Compel" issued today in the above-entitled matter.

Very truly yours,

Kathleen Berends Management Associate kab Enclosure