Duke Energy Asked to Allow Release of Data

The chairman of a Senate committee probing suspected price gouging during the California energy crisis charged Monday that Duke Energy is refusing to allow him to make public information key to his investigation.

Sen. Joe Dunn (D-Santa Ana) said Duke has made the price bidding information from its Chula Vista plant available to committee members and staffers. But under a federal confidentiality rule, the data cannot be made public without Duke’s consent.

The documents concern the Chula Vista plant, which former employees have alleged was ramped up and down to drive up power prices during three days in January. However, state records show that the agency overseeing the electricity grid ordered those gyrations to keep the power flowing throughout the state.

Dunn said Duke’s refusal thwarts the committee’s investigation and efforts to enact possible remedial legislation because the confidential information cannot be shared with others in the Legislature or the public.

Dunn said Duke cited a rule of the Federal Energy Regulatory Commission that gives the company the authority to decide which records it makes public and which stay secret.

“The only one who can release the data is Duke. We agreed to be bound by what is provided in the FERC tariff, nothing more or less,” he said.

Former Employees Tell of Maneuvers

Dunn noted that the committee is considering trying to obtain the information elsewhere and “release it over Duke’s objections.”

Three former workers at the Duke plant near Chula Vista testified last month under oath that the plant, among other things, was ramped up and down in what seemed to be an effort to maximize revenue during the Jan. 16-18 emergency.

But Duke countered immediately that it had merely obeyed orders of the California Independent System Operator, which keeps the state’s electricity grid in balance. Duke later provided Cal-ISO documents backing up its explanation.

Duke executives insisted that the former employees failed to provide a full picture of the plant’s operation during the three days.

But Dunn, chairman of the select Senate committee on alleged price gouging, said Monday that by refusing to authorize release of all the subpoenaed data, Duke was guilty of the same tactics.

“Duke is trying to draw the impression that it has [provided] the full picture. But they are fully aware that we cannot draw any final conclusions until all that data has been released. That hasn’t occurred,” Dunn said.

To make a determination whether the Chula Vista power was withheld to drive up prices, Dunn said, the committee must publicly examine “the bids Duke submitted from which the ISO issued orders to the plant.” They include the expensive hour-ahead and day-ahead markets, he said.

Duke, a North Carolina-based wholesaler that operates several plants in California, noted that it considers the information proprietary and off-limits to legislators not on the committee.

Duke spokesman Tom Williams insisted that the generator is attempting to comply with the committee’s demands. But he was unable to say whether Duke would agree to make the bidding documents public along with other records the committee plans to turn over.

“We are complying now,” Williams said. “There is some suggestion that we are leaving stuff out when we have not had a chance to testify. . . . I don’t know what we are ultimately going to do.”

The committee had threatened to cite eight wholesale generators unless they provide pricing and bidding documents by Wednesday. Six, including Duke, have said they would comply to avoid a contempt citation. Two, Enron and Mirant, were cited.

Dunn said the committee on Wednesday likely will give companies that are trying to comply an extra week to do so, but others probably will be formally charged with contempt in a report to the full Senate. The upper house is the final arbiter of such issues.

Although there is scant precedent for levying penalties against those cited for contempt, Dunn said he favors imposing severe fines. In 1929, the most recent case, a cement company executive was sent to jail.