Legalectric

Delaware has an IRP docket open thanks to a legislative mandate that brought back IRP. Here’s the utility’s site, Delmarva (sounds like laundry detergent). Their site asks “What would you like to do?” but the options suck.

There are three competing projects which, deja vu all over again, probably aren’t even needed. There’s gas, wind and NRG’s coal gasification proposal. But you ought to see their proposal:

ALL THE DELAWARE PROPOSALS

Good Luck! Click on the NRG ones and try to see your way around the cheezy “redaction” job. NRG’s black magic marker crossing out the juicy parts lead to a Motion and more biomass flying around, and that’s at the bottom of the “ALL THE DELAWARE PROPOSALS” link.

A little birdie told me that NRG’s been told they have until Monday at high noon to come up with some better and more specific reasoning for their many redactions of stuff that, given what I know about IGCC now, seems bizarre, overly secretive. Stay tuned, because it’s gonna get interesting. Now I sure hope that the Delaware PSC staff is on this and reading the record for the Excelsior proposal here.

Here’s the word to NRG:

February 20, 2007

Mr. Houghton:

Staff has reviewed your submission dated February 16th, 2007, consisting
of your support for the continued redaction of extensive portions of
your bid.  After considerable thought Staff does not believe that your 4
page “explanation” follows either the spirit or letter of our guidance
with respect to the support requested relative to the scope of claimed
confidential materials.  The use of “broad categories” and the
contention that it would be “impractical and inefficient to draft a
point by point analysis of each redaction made” is unresponsive to our
request.  Because of the nature of the response, Staff is unable to
ascertain what data should retain its confidential protection.

Please be advised that absent a more comprehensive and detailed itemized
analysis, which would allow the Commission to make informed judgments on
the NRG redactions, Staff is prepared to recommend to the Commission
that the entire NRG bid be made public.  Staff is willing to provide you
until noon Monday to comply with its request, consistent with both the
oral and written communications that have occurred on this matter.  We
look forward to a responsive filing no later than Noon, Monday, February
26th, 2007.

Michael Sheehy

==============================

They’re going to hold meetings around the state, maybe it’s window dressing, or maybe it’s a reason to get out into the communities, or maybe it’s a lead-in to a decision that might not please the corporate Dogs, or maybe it’s something to keep us all busy and out of trouble…

Another coal gasification bites the dust — yes, it took a coon’s age to get this posted, what can I say, the CapX hearings are taking up a lot of time… This was the best news in ages, continuing the theme that IGCC is a bad idea, too risky, too costly. This plant was one that seemed to have a lot of backing, which to me means that IGCC is done. When I’d posted about it, it garnered some wild NRG employee comments on this blog, ones that I hope that those employees’ bosses are aware of! I know NRG is watching, but I think some of their employees need to have their typing fingers taped together and/or not operate a computer while soused!

Here are a few articles with some choice comments:

From the Buffalo News:

Power Authority stops $1.6 billion plans for advanced coal plant at Tonawanda’s Huntley Station

Power Authority officials estimate that it would take an additional $175 million to $200 million per year in subsidies – on top of the significant aid already promised for the project – to bring the price of the electricity produced at the advanced coal plant down to the point where it could compete with other conventional sources of generation.

From newsday.com:

NYPA halts plans for clean-coal plant in Tonawanda

After pursuing various state grants and tax incentives, NYPA determined it is not possible to fully close the gap between what NYPA would have to pay for electricity and competitive market rates.

And from the Post Journal:

NYPA withdraws support for North Tonawanda clean coal project

”The economic, technological and regulatory obstacles are too great to warrant any further efforts at this time,” said Christine Pritchard, a NYPA spokeswoman.

… and…

NYPA officials were also uneasy about the technology. According to the company, there are only two IGCC plants operating nationwide, and 11 IGCC plants were either delayed or cancelled in 2007. In addition, the largest sequestration operation in the world is burying only 1 million tons of carbon dioxide underground annually, a third of what the NRG plant would be required to sequester – and carbon capture and storage technology has never been demonstrated off a clean coal power plant.

… and…

”It is also clear that an explicit and rigorous regulatory process with public support is a prerequisite for sequestration on a large scale. And while some amount of risk is necessary to prove new technology, the financial and environmental risk associated with this large-scale commercial power plant is simply too great,” the report concludes.

… and…

”Simply, at this time, the price gap is too large to overcome” said Pritchard of NYPA.

Tell us something we didn’t already know!!!

NRG forced to unveil secret emissions information

By Rachel Swick
Cape Gazette staff

NRG Energy’s attempt to keep emissions data secret failed this week when the Court of Chancery declined to issue a restraining order to prevent release of the information.

NRG, which proposes to build a new $1.5 million plant near Millsboro to provide the state with new power, submitted a petition to keep trade secrets out of the public light. After a four-hour hearing Tuesday, March 27, in Georgetown, Chancellor William “Bill” Chandler III refused to grant the restraining order.

The information on emissions data was released this week, but energy watchdogs are still skeptical, saying more information is needed.

The state’s Public Service Commission released four binders of information on NRG’s proposed coal gasification plant Wednesday, March 28. The information did not include how much energy the plant would use, even though it noted the plant would produce 201 pounds of carbon dioxide for every million pounds of energy used.

John Austin, a member of Citizens for Clean Power and a former scientist for the Environmental Protection Agency, said he supports the Bluewater Wind proposal to build a wind farm in the Atlantic Ocean.

Carbon dioxide emissions are linked to global warming, but even knowing how much will be released by the new plant does not tell the public how much energy the plant will consume, which is vital information, said Austin.

“Even if sequestration at 65 percent were possible, the carbon dioxide emissions of a 220 megawatt unit would go uncontrolled,” said Austin. “[Coal gasification] units have not turned out to be the better alternative they have been touted to be. [Coal gasifiNRG
Continued from page 1
cation] is just a way to mine and burn coal faster. I conclude that the NRG bid is not in conformance with the Coastal Zone Act and should be removed from further consideration.”

Austin’s concerns were echoed by Green Delaware’s Alan Muller, who said NRG continues to try and withhold information the public needs to know before making an informed decision about the future of power in Delaware. Muller said the company continually holds back emissions information and has not cleaned up the existing plant. NRG is also going to court over the multi-pollutant emissions regulations passed by the Delaware Department of Natural Resources and Environmental Control (DNREC) last year, seeking more time to comply with the regulations.

“We’re still nowhere near where we need to be, and the only solution to this is to unwrap the entire bid,” said Muller.

Proposals for future

Faced with a steep rise in electric bills in 2005, state officials ordered Delmarva Power, in conjunction with the Public Service Commission, to search for new power suppliers. A request for proposals was issued and three proposals are now under consideration, including NRG’s coal gasification plant, Bluewater Wind’s offshore wind farm, and Conectiv’s natural gas plant. The request for proposals called for new power that would generate 400 megawatts of electricity– enough to power more than 300,000 homes.

When the public first requested copies of the three proposals, all three companies, Conectiv, Bluewater Wind and NRG, released heavily redacted copies. Later, both Conectiv and Bluewater released more in-depth information, but NRG refused, stating the requested information contained trade secrets. Conectiv plans to build a 200-megawatt natural gas plant in Wilmington, while Bluewater Wind proposes a 600-megawatt wind farm in the Atlantic Ocean. Bluewater later filed a petition with Chancery Court to block the release of information regarding its equipment supplier, Vestas Offshore. Even though Bluewater had earlier signed a nondisclosure agreement with Vestas, without informing the Public Service Commission, Chancery Court granted Bluewater’s petition to prevent disclosure.

NRG officials said they are concerned that the release of the entire proposal will only lead to a loss of trade secrets to competing companies.

Caroline Angoorly, senior vice president for NRG’s northeast division, said the court filing was in response to ongoing requests for information, which she says are trade secrets.

“The more than 1,100-page bid NRG submitted to the PSC is the culmination of two years of focused effort, as well as significant funding to support development of NRG’s IGCC project at Indian River,” said Angoorly. “We have disclosed the vast majority of information contained within our bid and seek only to protect vital and proprietary details that, if released, could potentially harm NRG’s ability to most effectively structure and bring its proposed generation projects to fruition – both in Delaware and elsewhere.”

Chandler disagreed, stating that the Public Service Commission (PSC) had done its job and given NRG as much room as possible to protect trade secrets.

“It’s obvious to me that the commission made its decision in an informed and deliberate matter,” said Chandler. He said NRG had no right to challenge the PSC’s fairness in the power-bid process, because the final decision on future power has yet to be made.

NRG officials said they would continue to pursue financing for a coal gasification plant in Delaware.

“NRG continues to stand behind our proposal and we remain firm in our belief that [coal gasification] is the answer to providing energy reliably and in an environmentally responsible manner,” said Lori Neuman, spokeswoman for NRG.

Contact Rachel Swick at: rswick@capegazette.com

EEEEEEEEEE-HA!!! NRG got told what they can do with their attempt at secrecy. They wanted to keep their emissions info secret… HUH??? How would their info be any different than Mesaba? And if they’re wanting to keep it secret, how could that mean anything but that their emissions profile is worse than Mesaba’s? Here’s the Mesaba Info:

MPCA – Final

But what yesterday’s hearing and PSC record thus far reveal is that:

1) It appears that NRG’s technology vendor, is likely to be Mitsubishi Heavy Industries (MHI), referred to as “a Japanese technical provider.” MHI lacks a demonstrated IGCC technology at this point. Their first gasifier runs are scheduled for the second half of 2007, per their website. Therefore, MHI has no emissions data.

2) NRG expressly stated that there is no technology vendor contract at this point, they are “contracting” but have not “contracted,” and again, therefore, they have NO emissions data.

3) The focus of NRG’s motion was to protect THEIR contracting ability with potential vendors, not a competitive issue with other utilities.

4) No confidentiality agreement, no contractual obligation, therefore information will be released.

And here’s Gas Turbine World on the Mitsubishi IGCC technology — thanks to Harry Jaeger for insight into their development timeline:

Japan 250MW coal based IGCC demo plant set for 2007 start up

Here’s the poop from the News Journal:

NRG loses bid to keep emissions secret
Delaware court clears the way for information on new plant

By JEFF MONTGOMERY, The News Journal
Posted Wednesday, March 28, 2007

Chancery Court on Tuesday refused to block the release of more details about NRG Energy Inc.’s more than $1.5 billion plan for a new power plant near Millsboro.

NRG sought a temporary restraining order last week, after the Public Service Commission voted to make public bid information the company had declared confidential. Company officials said the release could “irreparably harm” NRG, giving competitors insights into the company’s business strategies and damaging NRG efforts elsewhere.

But Chancellor William B. Chandler III ruled, after more than an hour of testimony in Georgetown, that NRG had failed to prove the PSC acted arbitrarily with its order — issued in connection with a Freedom of Information Act request from The News Journal.

“It’s obvious to me that the commission made its decision in an informed and deliberate manner,” Chandler said.

The ruling will allow the PSC to release the information today.

James M. Geddes, staff counsel to the commission, said the public had “clamored” for release of more information from NRG’s proposal, particularly details about emissions.

“There are members of the public who want this type of information so they can file written information that can assist the decision-makers,” Geddes said.

Caroline Angoorly, NRG northeast vice president, said the company would continue to seek state backing for a contract to build the plant and sell most of the electricity to Delmarva Power.

“We have a good project. We are nondeterred,” Angoorly said. “We think it’s part of the solution for Delaware.”

Chandler cautioned that his decision was based on the court’s right to consider fairness and equity claims, rather than on Freedom of Information Act terms. He also said that NRG had no right to challenge the PSC’s action under state administrative rules because the agency’s decision on which company would be chosen to provide the state with energy has yet to be made.

The PSC and three other state agencies have been wrestling for months with bids for a new Delmarva Power generating contract. State lawmakers ordered the company to seek new in-state electricity supplies last year, after the long-delayed effects of utility deregulation pushed customer bills sharply higher.

Dogging the process have been complaints about bidder “blackouts” that prevented the public from seeing details about potential rate-payer impacts, project costs, likely pollution emissions and other details.

In a separate ruling, Chandler agreed to temporarily block release of information from Bluewater’s bid involving wind-turbine manufacturer Vestas Offshore .

Bluewater signed a nondisclosure agreement with Vestas, but failed to notify the PSC.

Contact Jeff Montgomery 678-4277 or jmontgomery@delawareonline.com.

So, once more with feeling — will someone explain to me why the cost information is not at issue? Why the cost of the NRG proposal is not public? Nearly all of the cost information for Excelsior Energy’s Mesaba Project is public in Minnesota! That information has been provided to the Delaware PSC!

Green Delaware had a representative at the hearing who sent the following (lightly edited) comments:

Carol Dobson’s notes from Chancery Court’s hearing the case brought by NRG against the PSC to block the release of more details about their energy bid.

Georgetown, DE
March 27, 2007.

2:00pm -2:35pm NRG Lawyer, Mr. Scaggs, presenting case before Chancellor William B. Chandler, III ( JUDGE): Do the RFP instructions include that bidders can withdraw?
Now that the information is with the PSC, if a party walks away, what happens to that information?

NRG: The PSC should have determined if the information was G2. They didn’t. They claim public interest.

JUDGE: Hearing the records indicate a balance of testimony.

NRG: If the PSC determination stands, there is a concrete threat of TRO.
Instructions to bidders was that information would be treated confidentially except what is authorized by law.

JUDGE: There are two judicial remedies before me:
1. A first for the State of Delaware: Any citizen can challenge this action, a reference to open
meetings.
2. If you look at case law, a claim under FOIA, and exception that applies by PSC with Chrysler
Corporation. Non-public information should not be released except as required by law.

NRG: G2 is further defined in a National Parks case. (The NRG lawyer then provided the Judge with an Issues Sheet prepared by PSC staff on 3/7/07.) They send the message that confidential information would be respected as such. This led NRG to provide a very detailed proposal and now we will be punished for this. This is a court of equity and an abuse of discretion has occurred. ( And there is no other authority for an appeal.) There are examples we cite: The PSC, after an executive session, stated no basis for this decision. An irrational or arbitrary decision was made by the PSC.
NRG argues that the release of information by the other bidders was rational. These bidders are very different. Blue Wind has no emissions data to withhold. Connectiv is building a pretty typical (natural gas) plant. The assertion that the other bidders released emissions data is irrational.

JUDGE: This is a pre-bid award. Haven’t you negotiated with your vendors? They would know your hold-up point in this pre-award context?

NRG: This is at a negotiation stage. Emissions performance criteria would be set before we hire and sub-contract with vendors where emissions levels would be agreed upon with them.

JUDGE: I’ve read all the documents and have some questions when you are finished.

NRG: I would like to discuss the road map. Contacts for getting other contractors…all items are important, not just individual items, but as a whole. NRG spent two years developing this proposal. NRG is currently competing and contracting with the NY Power Authority, a Japanese technical provider and seeking federal loan guarantees.

We can’t see any harm to the PSC if the Court issues this restraining order. There is a May 8^th meeting with other public reviewing agencies. We are not here to destruct this process, we propose a time frame with another submission to the judge and another decision.

JUDGE: Are you able to tell me that NRG has an obligation of confidentiality with vendors? Are there agreements?

NRG: Yes

JUDGE: I assume you advised the PSC staff of these confdential contracts. Did you give them notice of these?

NRG: We have made heavy redactions. Yet there are other areas of documents where information was revealed that would reveal company information.

JUDGE: The legal locus of you claim, the first claim, is reverse FOIA. The second claim is an arbitrary action of the PSC.

PSC Lawyer, Mr. Geddes defends PSC’s actions to JUDGE

PSC: This is a private right of action looking for a home…but not here!
FOIA is a one-edged sword. A mandatory disclosure statute with exceptions. Mr. Scaggs has tried to wrap the rules of PSC around FOIA. Under FOIA a commissioner’s determination is mandatory. This has gone on for a month and a half, not something done on the back of an envelope. What they’ve done is looked for a mandatory non-disclosure statment. If you look at Rule 1, Practice and Procedure. Option 2, Rules.

The News Journal asked for this documents, we didn’t cause this. The FOIA request was
made in this context. HB6 is the first time the PSC ever required to work with three other agencies. The Commission met on Feb. 6, NRG tried several times with redactions. The public is very concerned. 120 people came and spoke in Georgetown two weeks ago. The FOIA request is clear: PSC has an obligation, a reasonably quick turn-around required staff to work weekends and analyze line by line. On March 20 when Commissioner Clark stated “I don’t see that this information (Form H) is confidential, however, knowing the level of public interest and that other bidders have released this information, this should be released.”

***(My notes are sketchy now.)

Delaware has APA. Gap decisions. If you can establish a constitutional right. If you look
at 11A and B, it puts on submitter to demonstrate information is confidential under state law. This is a FOIA request and reapplied a reverse FOIA.

The Commission followed its rules in making its decision. This Court cannot substitute its review of the proposal made by the PSC. On the merits of case…? Would there be irrepairable harm? This requires a balancing. This Form H material is important. From March 23^rd to April 6^th the time for public comment has been extended. This reflects a lot of concern for public input to have written comments. It is important to have information to comment on. A May 8^th decision.

JUDGE: Isn’t this a pre-bid. Why reveal now? Once the four agencies look at all the proposals, a decision would be made then.

PSC: This isn’t pre-bid. It’s pre-evaluation. The public input is important the file written documents. That there would be public comment. And maybe subject to legal discovery. (FOIA request).
Getting information in front of the public is doing the public good. The PSC doesn’t want to have decision made without public having access. Form H would not establish that this information is confidential.

JUDGE: Is there a walk-away of and release of the proposal?

PSC: Biding price is not being disclosed. Redactions are upheld. The potential for harm in releasing that could be established.

JUDGE: Mr. Geddes, there has been notice to the bidders to provide information. If confidential contractual information is included, and where there was evidence that information was released and it was confidential, what would you do if you were NRG?

PSC: This is a legal problem for the bidder.

Final Statement by NRG lawyer to JUDGE: Nothing being contested is in a confidentiality agreement with a vendor. We are not here on speculation, this is information. Keep in mind, the parties with the most innovative bids will not bid in Delaware in the future.

NRG regarding the process of the PSC: They repeatedly did not accept offers by V.P. Angorly to meet with staff. We hear that the public is clamoring for information. The road map is compromised. The emissions performance criteria they would be required to give to the public would be given to vendors.

JUDGE: 3:15pm It’s too bad given the exemplary job both of you have gentlemen have done that I can’t issue a tie. I’ll decide and be back in five minutes.

3:40pm JUDGE returns. FOIA exists so the public has a right to information. 105 Statute is enforcement of it. I decline to rule on the reverse FOIA. I do conclude, NRG has the right and ability to challenge in Chancery Court. Chancery Court will review an administrative decision if arbitrary or an abuse of discretion and will grant relief. NRG has not provided considerable burden. If claim of confidentiality is challenged, NRG should have petitioned the PSC. Ironically, the federal U.S. Dept. Of National Parks vs. Morton Case would hinder State from obtaining future innovative technology in the future. The assertion that the PSC decision is made with so little investigation is not so. The PSC made its decision in an informed and thorough manner. The PSC is free to dsiclose it. A TRO whould not be issued.

If I had my druthers, I’d call it a draw.

Carol Dobson, March 28, 2007

NRG sues in Chancery Court to withhold emissions data

By Rachel Swick
Cape Gazette staff

Local watchdog group Green Delaware is calling for NRG’s bid proposal for coal gasification to be disqualified from consideration as Delaware officials review plans for a new energy supply. The company is refusing to publicly reveal detailed emissions data for its proposed plant, and Green Delaware says making that information public is critical.

NRG filed a petition late in the afternoon Wednesday, March 21, in the Court of Chancery to keep emissions data and “trade secrets” from the eyes of the public.

Alan Muller, president of Green Delaware, along with many Sussex County residents, has been calling for full disclosure of the NRG bid proposal to build a 600-megawatt coal gasification system at Indian River Generating Station in Millsboro.

“Let me take this opportunity to reiterate that emissions data of the sort NRG is fighting so hard to conceal has been published elsewhere for proposed and existing [coal gasification] projects,” said Muller, citing a Wisconsin project that fully released all data in its bid. “This information, along with pricing information, is so fundamental to the public’s consideration of the bids that refusal to release it should be considered equivalent to withdrawal of the NRG bid, and NRG should be disqualified.”

NRG first threatened to file suit to ensure the secrecy of certain parts of its proposal during a five-hour meeting of the Public Service Commission, Tuesday, March 20, in Dover. The threat became reality the next day.

In the petition, NRG officials state that the material sought by the public includes “certain proprietary and confidential information contained within NRG’s comprehensive bid to build an advanced coal gasification facility at its Indian River Generating Station.”

Caroline Angoorly, senior vice president for NRG’s northeast division, said, “The more than 1,100-page bid NRG submitted to the PSC is the culmination of two years of focused effort, as well as significant funding to support development of NRG’s [coal gasification] project at Indian River. We have disclosed the vast majority of information contained within our bid and seek only to protect vital and proprietary details that, if released, could potentially harm NRG’s ability to most effectively structure and bring its proposed generation projects to fruition.”

NRG’s bid was submitted in response to Delmarva Power’s request for proposals, which called for proposals that would generate 400 megawatts of electricity – enough to power more than 300,000 homes. When the public first requested copies of the three proposals, all three companies – Conectiv, Bluewater Wind and NRG – released heavily redacted copies. Later, both Conectiv and Bluewater released more in-depth information, but NRG refused, stating the requested information contained trade secrets. Conectiv plans to build a 200-megawatt natural gas plant in Wilmington, while Bluewater Wind proposes a 600-megawatt wind farm in the Atlantic Ocean.

Muller sent a letter to the Public Service Commission Wednesday, March 21, stating that he is challenging NRG’s ability to withhold the emissions data. He says the information is required under state law. “Green Delaware respectfully puts staff and the commission on notice regarding this point: secret filings, absent service, must not be accepted and considered by the commission. Filings claiming confidentiality must attest to the justification for secrecy. These violations are issues that taint the RFP process.

“Green Delaware feels a remedy for this situation must be sought. We propose that NRG Energy be declared disqualified from further participation in the RFP process.”

Contact Rachel Swick at: rswick@capegazette.com