Responsive Pleadings. 21. The Georgia System Operations Corporation (GSOC) argues that NERC’s pro forma Common Attributes governing the development of reliability standards are, in certain respects, vague and require clarification. GSOC submits, for example, that the term “functional classes of entities,” as used in Common Attribute 32,24 and the term “proxies,” as used in Common Attribute 33,25 are vague and require clarification. GSOC also recommends that NERC make additional editorial revisions.26 24 Common Attribute 32 provides: Clear identification of the functional classes of entities responsible for complying with the standard, noting any specific additions or exceptions. If not applicable to the entire [Regional Entity Name] area, then a clear identification of the portion of the Bulk-Power System to which the standard applies. Any limitation on the applicability of the standards based on electric facility requirements should be described.
Responsive Pleadings. 36. American Municipal Power-Ohio, Inc. (AMP-Ohio), Xcel, Edison Electric Institute (EEI), GSOC, and the American Public Power Association (APPA) request clarifications and revisions regarding the requirements governing the preparation of audit reports under sections 3.1.1 and 3.1.6. AMP-Ohio asserts that the final report should be provided to the audited entity and NERC simultaneously and that the audited entity should be given the right to submit its objections to NERC. Xxxx argues that the audited entity should be given the right to review and comment on the draft audit report before it is made final. GSOC argues that the statement, in footnote 1, that the compliance audit “normally completes within [60] days of the completion of the compliance audit” is circular and should be either revised or deleted. GSOC also asserts that to reduce potential confusion, time periods should consistently be stated as calendar days rather than sometimes referring to months which may vary in length (e.g., section 3.1.1) or to undefined “business days” (e.g. section 3.1.6).
Responsive Pleadings. 57. FirstEnergy Service Company (FirstEnergy), Xcel, and Progress Energy, Inc. (Progress Energy) argue that section 3.4 fails to comply with the ERO Certification Order requirement that NERC avoid overlapping investigations.45 Xcel and Progress Energy assert that section 3.4, in this regard, states only that compliance violation investigations will generally be led by the Regional Entity, while NERC may assume leadership of the investigation for good cause.
Responsive Pleadings. 80. Xcel requests that section 6.2 be revised, as it relates to the implementation milestones applicable to a mitigation plan.58 Xcel requests that NERC be required to provide flexibility in section 6.2 to establish implementation milestones for a mitigation plan that are more than three months apart, such as milestones for design and installation of certain equipment.
Responsive Pleadings. 112. Progress Energy and Xcel request that section 3.8 be revised to remove the right of a complainant to specify that its complaint be reviewed by NERC, rather than the 76 Id. at P 299. 77 See section 3.8.1, step one. The “other means” are not specified. applicable Regional Entity, and to delete the provision giving NERC the exclusive authority to review anonymous complaints. Progress Energy asserts that this allowance could invite “forum shopping” by any complainant seeking to avoid review by the Regional Entity before whom its complaint arises. AMP-Ohio also foresees the possibility of abuse with respect to the section 3.8 anonymous complaint procedures, particularly if a complainant is intent on interfering with another entity’s business activities or is otherwise indifferent to those concerns.
Responsive Pleadings. 124. GSOC, Xcel, and Progress Energy argue that NERC’s compliance filing fails to clarify the remedies available to an entity for breach of confidentiality or adequately explain the recourse available to entities threatened with a breach of confidentiality, as required by the ERO Certification Order.82 \ 80 ERO Certification Order, 116 FERC ¶ 61,062 at P 650-51, P 659-60, and P 398. 81 Second Compliance Filing Order, 118 FERC ¶ 61,030 at P 163-213 (accepting NERC’s proposed revisions, subject to conditions). 82 116 FERC ¶ 61,062 at P 668.
Responsive Pleadings. 130. GSOC argues that section 5.1(iv) should specifically require a notice of alleged violation to include an explanation of how a proposed penalty addresses whether the violator saw its violation as an economic choice or a cost of doing business. 131. FirstEnergy requests that section 5.1(iv) be amended to establish a safe harbor from enforcement actions resulting from situations in which a registered entity “excursion” from a reliability standard was directed or caused by an apparently conflicting legal requirement. FirstEnergy also requests that in such instances, the registered entity should not be deemed or found to have violated the reliability standard or be subject to penalties.
Responsive Pleadings. 137. AMP-Ohio, GSOC, Progress Energy, and Xcel argue that attachment 2 fails to address, with sufficient particularity, burden of proof, discovery (particularly discovery by registered entities against the compliance enforcement authority), and rights of third parties to intervene or have standing. GSOC adds that attachment 2 fails to specify the size of the hearing body or the law to be applied, the voting requirement applicable to the decision of the hearing body, the rules of procedure that will apply, or the rules of evidence that will apply.89 Xcel asserts that NERC’s attachment 2 hearing procedures should incorporate provisions of the NASD Rules of Procedure to address issues related to service of documents, filing of documents, computation and extensions of time, ex parte communications, rules of evidence, filing of motions, prehearing conferences and discovery.
Responsive Pleadings. 170. Xcel requests that NERC identify the “other mechanisms” it intends to rely upon to achieve consistency in penalty determinations. Xxxx also asks for an explanation of the statement in section 5 that NERC will work to achieve consistency among Regional Entities by direct oversight and review of penalties and sanctions.
Responsive Pleadings. 271. The Midwest Independent Transmission System Operator, Inc. (Midwest ISO) takes issue with the MRO bylaw provision combining ISOs and RTOs with other transmission operators in representation on the board.152 The Midwest ISO argues that this provision fails to provide separate stakeholder representation for ISOs and RTOs, as required by the ERO Certification Order.153 Specifically, the Midwest ISO points out that in the ERO Certification Order, the Commission required NERC to modify its governance structure to create a separate segment for ISOs and RTOs and to exempt ISOs and RTOs from a provision weighting the vote of segments with fewer than ten members. The Midwest ISO suggests that this ruling, which applied to NERC, should also apply to Regional Entities.
