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2012.07.23 letter to ferc detailing acquisition

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Hindenburg Research

This document is a letter from Kenneth G. Hurwitz, counsel for Regional Energy Holdings, Inc., to the Secretary of the Federal Energy Regulatory Commission regarding an application filed under Section 203 of the Federal Power Act. The letter notes that the original application filed on July 20, 2012 contained an incorrect date on page 2, and submits a revised application with the correct date. The letter requests that the Commission contact Mr. Hurwitz if there are any questions regarding the application.

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Kenneth G. Hurwitz Direct Phone Number: 202.654.4521 Fax Number: 202.654.4251 ken.hurwitz@haynesboone.com PUBLIC VERSION Privileged and Confidential Information Omitted Pursuant to 18 C.F.R. § 388.112 July 23, 2012 (VIA ELECTRONIC FILING) The Honorable Kimberly D. Bose Secretary FEDERAL ENERGY REGULATORY COMMISSION 888 First Street, N.E. Washington, D.C. 20426 Re: Public Power, LLC and Regional Energy Holdings, Inc., Docket No. EC12-123-000 Dear Secretary Bose: On July 20, 2012, Public Power, LLC, on behalf of itself and its wholly owned subsidiaries––Public Power & Utility of Maryland, LLC, Public Power & Utility of NY, Inc., Public Power & Utility of New Jersey, LLC, and Public Power, LLC (Pennsylvania)—and Regional Energy Holdings, Inc., on behalf of its wholly owned subsidiaries Viridian Energy, Inc., Viridian Energy PA, LLC, Viridian Energy NY, LLC, Cincinnati Bell Energy, LLC, FTR Energy Services, LLC and Fairpoint Energy, LLC, electronically filed an Application for Order Under Section 203 of the Federal Power Act, Request for Confidential Treatment, Request for Waivers and Request for 21-Day Comment Period. We filed the Application under Section 203(a)(1)(A) of the Federal Power Act1 and Part 33 of the Rules and Regulations of the Federal Energy Regulatory Commission.2 Page 2 of the Application set forth an incorrect date for the IPO Expiration Date. The date should be changed from January 21, 2012 to January 21, 2013. 1 16 U.S.C. § 824b(a)(1)(A). 2 18 C.F.R. Part 33 (2011).
Hon. Kimberly D. Bose July 23, 2012 Page 2 Accordingly, we are submitting a revised Application with this letter. The revised Application is precisely the same as the one submitted on July 20, but with the correct IPO Expiration date shown on page 2. Please contact the undersigned if you have any questions concerning this Application. Respectfully submitted, /s/ Kenneth G. Hurwitz Kenneth G. Hurwitz COUNSEL FOR REGIONAL ENERGY HOLDINGS, INC. Enclosure
PUBLIC VERSION Privileged and Confidential Information Omitted Pursuant to 18 C.F.R. § 388.112 UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Public Power, LLC ) Docket No. EC12-___-000 Regional Energy Holdings, Inc. ) APPLICATION FOR ORDER UNDER SECTION 203 OF THE FEDERAL POWER ACT, REQUEST FOR CONFIDENTIAL TREATMENT, REQUEST FOR WAIVERS AND REQUEST FOR 21-DAY COMMENT PERIOD Pursuant to Section 203(a)(1) of the Federal Power Act (“FPA”)1 and Part 33 of the Rules and Regulations of the Federal Energy Regulatory Commission (the “Commission” or “FERC”),2 Applicants Public Power, LLC (“Public Power”), on behalf of itself and its wholly owned subsidiaries––Public Power & Utility of Maryland, LLC, Public Power & Utility of NY, Inc., Public Power & Utility of New Jersey, LLC, and Public Power, LLC (Pennsylvania) (in combination with Public Power, the “Public Power MBR Entities”)—and Regional Energy Holdings, Inc. (“REH”), on behalf of its wholly owned subsidiaries Viridian Energy, Inc., Viridian Energy PA, LLC, Viridian Energy NY, LLC, Cincinnati Bell Energy, LLC, FTR Energy Services, LLC and Fairpoint Energy, LLC (the “REH MBR Entities”), respectfully request Commission authorization for two transactions—the Proposed Transaction and the Alternative Proposed Transaction—both of which involve dispositions of direct and indirect interests in Applicants. The market-based rate authorizations held by the Public Power MBR 1 16 U.S.C. § 824b(a)(1). 2 18 C.F.R. §§ 33.1-33.11 (2011).
2 Entities and the REH MBR Entities and associated books and records are the only jurisdictional facilities held by the foregoing entities, and the only such facilities involved in this Application.3 The Proposed Transaction will occur in four stages, consisting of (1) an exchange transaction, whereby approximately 75 percent of the direct ownership interests and shares in Public Power and REH, respectively, will be contributed by the owners to a new entity, Crius Energy LLC, in exchange for membership interests in the new entity (the “Exchange Transaction”);4 (2) the initial public offering of units in a Canada trust (the “Trust” or “Crius Energy Trust”) to the public (the “IPO”);5 (3) the acquisition by Crius Energy Corporation (an indirect wholly owned subsidiary of the Trust) of a portion of the ownership interests in Crius Energy LLC (the “Acquisition”); and (4) a redemption transaction under which REH and Crius Energy LLC will redeem, for cash, the Retained Interests (“Cash Redemption”). The Alternative Proposed Transaction will be pursued, after consummation of the Exchange Transaction, if the IPO does not occur by January 21, 2013 (the “IPO Expiration Date”). In that case, stages two and three, as described above, will not occur. In addition, the Retained Interests in REH and Public Power, respectively, will be exchanged for additional 3 Public Power, LLC (Pennsylvania), Public Power & Utility of Maryland, LLC, Public Power & Utility of NY, Inc., and Public Power & Utility of New Jersey, LLC applied for market-based rate authorization on July 17, 2012 in Docket Nos. ER12-2252, ER12-2253, ER12-2251, and ER12-2250, respectively. 4 As described in greater detail below in Section V.A., in stage one, the owners of the direct ownership interests and shares in Public Power and REH will retain a portion (approximately 25 percent) of such ownership interests and shares (the “Retained Interests”)—in other words, they will not contribute the Retained Interests to Crius Energy LLC pursuant to the Exchange Transaction. 5 Authorization for the IPO itself under FPA Section 203 or 204 is unnecessary because, at the time of the IPO, the Trust will neither directly or indirectly own nor operate any jurisdictional facilities.
3 ownership interests in Crius Energy LLC, which will be issued to the REH and Public Power owners (“Exchange Redemption”). The stage four Cash Redemption will not occur. With respect to the Proposed Transaction, Applicants specifically request authorization under Section 203(a)(1) of the FPA for the Exchange Transaction and the Acquisition, and further request blanket authorization under Section 203(a)(1) for any party to acquire, either individually or together with its affiliates, less than a ten percent interest in the Trust through ownership of its units following the IPO. Further, Applicants request authorization for the Cash Redemption, if and to the extent such authorization is required. As to the Alternative Proposed Transaction, Applicants specifically request authorization under Section 203(a)(1) of the FPA for the Exchange Transaction, as above, and, out of an abundance of caution, for the Exchange Redemption. (Approval of the Exchange Redemption might not be necessary because the transaction does not appear to effect a change in upstream control of either Public Power or the REH MBR Entities.)6 As demonstrated in this Application, neither the Proposed Transaction nor the Alternative Proposed Transaction will have an adverse effect on competition, rates or regulation, and neither will result in the cross-subsidization of a non-utility associate company or the pledge or encumbrance of utility assets for the benefit of an associate company. Accordingly, as specifically requested herein, the Proposed Transaction and the Alternative Proposed Transaction should be authorized by the Commission pursuant to Section 203 of the FPA as consistent with the public interest. 6 This issue is discussed in Section V.A below. For the avoidance of doubt, Applicants’ are not seeking a declaration or other determination by the Commission on the issue of whether the Commission’s approval is required for the proposed Exchange Redemption. See, e.g., Ocean State Power, 47 FERC ¶ 61,321 (1989) (“we are not making any determination whether the transfer . . . constitutes a disposition of jurisdictional facilities under section 203.”)
4 The Applicants request that the Commission grant limited waivers of its Part 33 filing requirements to the extent that the information required by Part 33 is not necessary to determine that the direct and indirect disposition of the jurisdictional assets of the Public Power MBR Entities and the REH MBR Entities resulting from the Proposed Transaction and the Alternative Proposed Transaction meet the statutory requirements of Section 203. Applicants provide below all information required by Part 33 of the Commission’s regulations except to the extent that Applicants request waiver of such requirements. Specifically, for the reasons described below, Applicants respectfully request that the Commission grant waiver of the requirement to file Exhibits A, D, F, G, H, J, K and L and the information required to be submitted therein to the extent not otherwise provided in this Application. The Commission’s practice is to grant such waivers when the application contains “sufficient information to evaluate the proposed transaction.”7 I. REQUEST FOR EXPEDITED REVIEW Applicants request a notice period of no longer than 21 days, expedited treatment of this Application, and a Commission order on this Application by August 20, 2012, to accommodate the closing of the proposed transactions8 as soon as possible thereafter. Expedited treatment is warranted because the proposed transactions are consistent with Commission precedent and require neither a competitive analysis screen nor a vertical competitive analysis.9 7 PSI Energy, Inc., 60 FERC ¶ 62,131 at 63,342 (1992); see Citizens Utils. Co., 41 FERC ¶ 62,064 at 63,180 (1987). 8 The lower case term “proposed transactions” as used in this Application means both the Proposed Transaction and the Alternative Proposed Transaction. 9 Revised Filing Requirements Under Part 33 of the Commission's Regulations, Order No. 642, FERC Stats. and Regs., Regs. Preambles 1996-2000 ¶ 31,111 at 31,877-78 (2000), order on reh'g, Order No. 642-A (March 23, 2001), 94 FERC ¶ 61,289 (2001) ("Order No. 642").
5 Pursuant to Section 203(a)(4) of the FPA, the Commission will approve a transaction if the Commission finds that it (i) is consistent with the public interest (i.e., it has no adverse effect on competition, rates or regulation) and (ii) will not result in the cross-subsidization of a non- utility associate company or a pledge or encumbrance of utility assets for the benefit of an associate company or, if the transaction will result in any of the foregoing, the Commission determines that it is consistent with the public interest. As demonstrated in this Application, the Proposed Transaction and the Alternative Proposed Transaction are consistent with the public interest and do not raise any cross-subsidization concerns. II. REQUEST FOR CONFIDENTIAL TREATMENT Pursuant to 18 C.F.R. §§ 33.9 and 388.112(b), Applicants request privileged and confidential treatment for Exhibit I, which contains the Term Sheet describing the agreement pursuant to which the Proposed Transaction and the Alternative Proposed Transaction will occur. The information in the Term Sheet is commercially sensitive and therefore not publicly available. Applicants are electronically filing confidential and public versions of this Application and ask that the confidential version be placed in the Commission’s non-public files. Applicants understand that the Commission staff will notify them in advance of any public disclosure of any information contained in Exhibit I. Any questions regarding this request for confidential treatment should be directed to the persons listed in Section III, below. A proposed protective order is included as Attachment 1. III. COMMUNICATIONS Applicants request that the following persons be placed on the official service list for this proceeding:
6 Kenneth G. Hurwitz Jan L. Fox Partner Vice President and General Counsel Haynes and Boone, LLP Regional Energy Holdings, Inc. 1615 L Street, NW, Suite 800 64 North Main Street Washington, DC 20036 Norwalk, CT 06854 Phone: (202) 654-4521 Phone: (203) 517-0130 Email: ken.hurwitz@haynesboone.com Email: JFox@viridian.com Robert Gries, Jr. Gerit F. Hull, Member Public Power, LLC Eckert Seamans Cherin & Mellott, LLC 4830 W. Kennedy Blvd. Suite 1200 Suite 445 1717 Pennsylvania Avenue, NW Tampa, FL 33609 Washington, DC 20006 Phone: (813) 902-9038 Phone: (202) 659-6657 Email: gries@griesinvfund.com Email: ghull@eckertseamans.com IV. DESCRIPTION OF APPLICANTS AND OTHER PARTIES TO THE PROPOSED TRANSACTION A. The Applicants This section sets forth a description of the Applicants. Their pre-transaction ownership structures are set forth in Exhibit C. 1. Regional Energy Holdings, Inc. Regional Energy Holdings, Inc., a Nevada corporation, owns each of the six REH MBR Entities, which, in addition to holding market-based rate authority, function as licensed competitive retail marketers of electricity and, in most cases, natural gas, in eleven states. REH is filing today’s Application on behalf of the REH MBR Entities, to authorize the disposition of the upstream direct and indirect interests in such entities, pursuant to the Proposed Transaction and the Alternative Proposed Transaction. Although each holds market-based rate authority, none of the REH MBR Entities currently makes any wholesale sales of electricity other than real-time balancing transactions in regional transmission organization (“RTO”) markets to offset minor and unavoidable divergences between day-ahead forecasts of retail load and actual retail sales.
7 2. The REH MBR Entities The pertinent facts as to each of the REH MBR Entities are set forth in the bullet points below:10 Viridian Energy, Inc. is a Nevada corporation. Viridian Energy, Inc. has been granted market-based rate authority by the Commission,11 is a member of ISO New England, and is licensed to sell electricity to retail customers in Connecticut and Massachusetts. Viridian Energy, Inc. will be converted into a limited liability company, Viridian Energy, LLC, after the Exchange Transaction. Viridian Energy PA, LLC is a Nevada limited liability company. Viridian Energy PA, LLC has been granted market-based rate authority by the Commission,12 is a member of the PJM Interconnection, L.L.C. (“PJM”), and is licensed to sell electricity and natural gas at retail in Pennsylvania and New Jersey, natural gas at retail in New York, and electricity at retail in Delaware, the District of Columbia, Illinois and Maryland. Viridian Energy NY, LLC is a New York limited liability company. Viridian Energy NY, LLC has been granted market-based rate authority by the Commission,13 is a member of the New York Independent System Operator 10 In addition to these entities, REH owns Viridian Network, LLC, whose sole business activity is to provide retail sales services through independent contractors for the REH MBR Entities. After this application is filed, the REH MBR entities will amend their Electric Quarterly Report submissions for the pertinent periods to disclose the real-time balancing sales, which were previously not included in the reports. 11 Viridian Energy, Inc., Docket No. ER11-3069 (unpublished letter order issued May 25, 2011). 12 Viridian Energy PA, LLC, Docket No. ER10-210 (unpublished letter order issued Jan. 27, 2010). 13 Viridian Energy NY, LLC, Docket No. ER10-2661 (unpublished letter order issued Nov. 8, 2010).
8 (“NYISO”), and is licensed to sell electricity and natural gas at retail in New York. Cincinnati Bell Energy, LLC is a Nevada limited liability company. Cincinnati Bell Energy, LLC’s predecessor was granted market-based rate authority by the Commission.14 Cincinnati Bell Energy, LLC is a member of PJM and is licensed to sell electricity and gas at retail in Ohio. FTR Energy Services, LLC is a Nevada limited liability company. An application for authority to sell electricity at market-based rates is pending,15 as is its membership application in PJM, the Midwest Independent Transmission System Operator (“MISO”), NYISO, and the California Independent System Operator Corporation (“CAISO”). FTR Energy Services LLC is licensed to sell electricity and natural gas at retail in Ohio and New York. License applications are pending to sell electricity and natural gas in California and Pennsylvania and to sell natural gas in Illinois, Michigan, and Indiana Fairpoint Energy, LLC is a Nevada limited liability company. Fairpoint Energy, LLC’s predecessor was granted market-based rate authority by the Commission.16 Fairpoint Energy, LLC is a member of ISO New England, and is licensed to sell electricity at retail in Maine and New Hampshire. 14 Viridian Energy New Jersey LLC, Docket No. ER11-2663 (unpublished letter order issued Feb. 28, 2011). 15 The application in that docket was filed by Viridian Energy NG, LLC. Viridian Energy NG, LLC changed its name to FTR Energy Services LLC, and notified the Commission of that change in a subsequent filing in that proceeding. 16 Viridian Energy MD LLC, Docket No. ER11-4326 (unpublished letter order issued Sept. 12, 2011). Fairpoint Energy, LLC filed a notice of succession with the Commission in Docket No. ER12-1938.
9 3. Public Power, LLC Public Power is a Connecticut limited liability company. The Commission granted Public Power’s predecessor market-based rate authority in 2007.17 Public Power is licensed to sell electricity at retail in Connecticut, the District of Columbia, Illinois, Massachusetts, New York and Ohio, and natural gas at retail in New York. Public Power wholly owns four entities—Public Power, LLC (a Pennsylvania limited liability company), Public Power & Utility of Maryland, LLC, Public Power & Utility of NY, Inc. and Public Power & Utility of New Jersey, LLC)18 —that are licensed to and sell electricity at retail and, in the case of the New Jersey entity, natural gas at retail in the indicated states. The four entities make no wholesale sales, except for real-time balancing sales in the pertinent RTO markets to offset minor and unavoidable divergences between day-ahead forecasts of retail load and actual retail sales.19 Ownership interests in Public Power are held by GF Power I, LLC (95 percent), a management company, and GF Factoring (5 percent) (the “Public Power Members”). GF Power I, LLC (95 percent), in turn, is owned by GF Power LLC (81.3 percent), Gries Investment Fund (14.7 percent) and various individuals. GF Power LLC and Gries Investment Fund are both owned by individuals, none of whom owns 10 percent or more of either entity. 17 Public Power & Utility, Inc., Docket No. ER07-1161 (unpublished letter order issued Sept. 17, 2007). Public Power & Utility, Inc. changed its name and legal form to Public Power, LLC and subsequently notified the Commission of that change. See Notice of Succession of Public Power, LLC, Docket No. ER12-75 (filed Oct. 14, 2011). 18 Public Power & Utility of Maryland, LLC is a Maryland limited liability company, Public Power & Utility of NY, Inc. is a New York corporation, and Public Power & Utility of New Jersey, LLC is a New Jersey limited liability company. 19 As stated above, applications for market-based rate authorizations for these four entities are pending.
10 B. Other Parties to the Proposed Transaction The Proposed Transaction is fully described in Section V below. This section of the Application describes the new entities that will be formed as part of the Proposed Transaction, all of which will be relevant if the IPO and the acquisition of an interest in Crius Energy LLC occur. Crius Energy LLC, unlike the other entities described in this section, will play a role whether or not the IPO closes before the IPO Expiration Date—in other words, it will play a role in either the Proposed Transaction or the Alternative Proposed Transaction. 1. Crius Energy Trust The Trust will be a newly formed, unincorporated, open-ended limited purpose trust established under the laws of the Province of Ontario, Canada. As more fully described below, the Trust will conduct an IPO. Following the IPO, the Trust will wholly own Crius Energy Holdings Inc., and will not carry on any other business activities. 2. Crius Energy Holdings Inc. Crius Energy Holdings Inc. will be a newly formed Canadian holding company incorporated under the laws of the Province of Ontario, Canada. Following the IPO, Crius Energy Holdings Inc. will own all of the shares of Crius Energy Corporation, and will not carry on any other business activities. 3. Crius Energy Corporation Crius Energy Corporation will be incorporated under the laws of the State of Delaware. Its sole function will be to acquire and hold a membership interest in Crius Energy LLC (the “Acquired Interest”), following the closing of the IPO. 4. Crius Energy LLC Crius Energy LLC will be a newly formed Delaware limited liability company.
11 Prior to the IPO, on the closing date of the Exchange Transaction, the Public Power Members and the REH Shareholders will each contribute a portion (approximately 75 percent) of their Public Power Membership Interests and their REH Common Stock, respectively, to Crius Energy LLC, each in exchange for 50 percent of the Crius Energy LLC interests.20 As stated above, immediately after the IPO, Crius Energy Corporation will contribute the net proceeds of the IPO to Crius Energy LLC in exchange for a portion of the ownership interests therein. The Alternative Proposed Transaction will take place in the event the Exchange Transaction is consummated, but the IPO has not occurred by the IPO Expiration Date. Given that one of the purposes of the IPO is to fund the acquisition of the Acquired Interest in Crius Energy LLC by Crius Energy Corporation, in the absence of the IPO, this acquisition will not occur. 5. Crius Energy Administrator Inc. Crius Energy Administrator Inc. (the “Administrator”) will be a newly formed corporation incorporated under the laws of the Province of Ontario, Canada. Pursuant to the terms of a voting agreement to be entered into between the Trustee, the Administrator and the Administrator Shareholder (as defined below), the business of the Administrator will be limited to acting as administrator of the Trust and performing certain ancillary activities. Among its other responsibilities, the Administrator will be entitled to vote the securities owned by the Trust. 20 As stated above, the owners of the direct ownership interests and shares in Public Power and REH will retain a portion (approximately 25 percent) of such ownership interests and shares (the “Retained Interests”)—in other words, they will not contribute the Retained Interests to Crius Energy LLC pursuant to the Exchange Transaction.
12 This prerogative, including the right to vote the voting shares of Crius Energy Holdings Inc., resides in the Administrator’s Board of Directors.21 The sole shareholder of the Administrator will be a newly-formed Canadian corporation (the “Administrator Shareholder”) whose shares will be owned by the Chief Executive Officer of Crius Energy LLC. The Administrator Shareholder will enter into a voting agreement with the Trustee, as agent for the unit holders, and the Administrator, relating to the shares of the Administrator owned by the Administrator Shareholder. Pursuant to the voting agreement, the Administrator Shareholder will, following the IPO, agree to vote its shares in the Administrator as directed by the Trustee, as agent for the unit holders, including in connection with the election, appointment or removal of the directors of the Administrator. As a result, following the IPO, the unit holders will have the power to elect, appoint or remove directors of the Administrator by way of ordinary resolution of the unit holders. Thus, while the Administrator will have legal authority to vote the securities owned by the Trust, the unit holders ultimately can override that right because, acting through the Trustee, they can remove members of the Administrator Board of Directors. V. REQUEST FOR AUTHORIZATION FOR THE DISPOSITION OF JURISDICTIONAL FACILITIES A. Description of the Proposed Transaction This section describes the basic steps that will be taken in connection with the Exchange Transaction, the IPO, the Acquisition, and the Cash Redemption Transaction. The purpose of the 21 Applicants believe the information pertaining to the Administrator in Section VI.A of the Application is relevant to demonstrating that the Proposed Transaction has no effect on wholesale competition. Specifically, the information relates to the determination of control, and therefore, which entities involved in the Proposed Transaction will be deemed to be affiliates of the Applicants.
13 Proposed Transaction is to consolidate the currently separate multistate retail gas and electric marketing businesses of Public Power and REH under the umbrella of a new corporate entity, Crius Energy LLC. In addition, through the IPO, the Proposed Transaction will infuse capital into that entity. Finally, the Applicants’ businesses will be reorganized to create a rational corporate framework for management of the businesses. The structure of the Proposed Transaction is primarily driven by Canadian and U.S. tax considerations and is complex as a result. However, for purposes of the Commission’s analysis, the transaction entails four discrete stages, as described below. The first stage is the Exchange Transaction, the purpose of which is to consolidate the REH and Public Power retail operating entities under the ownership of Crius Energy LLC. After Commission approval is obtained, but before the IPO, REH, Public Power and Crius Energy, LLC will implement an exchange agreement, the elements of which are described in the Term Sheet in Exhibit I. At closing, each of the REH stockholders and the Public Power members will contribute a portion (approximately 75 percent) of their interests in Public Power and the REH MBR Entities to Crius Energy, LLC, each in exchange for 50 percent of the Crius Energy LLC interests. (The REH Stockholders and the Public Power Members will also retain 25 percent of their respective ownership interests in Public Power and the REH MBR Entities (i.e., the Retained Interests)). The exchange, thus, effects a transfer of the ownership interests in the REH MBR Entities and Public Power to Crius Energy LLC, a disposition of interests in jurisdictional assets for which Commission approval is required under FPA Section 203(a)(1)(A). The post- Exchange Transaction ownership structure is shown in Exhibit C. The second and third stages of the Proposed Transaction are the IPO and the Acquisition of the Acquired Interest in Crius Energy LLC. Following the closing of the Exchange
14 Transaction, it is intended that a public offering will be made in Canada of units of the Trust and members of the public will purchase the units. Assuming the IPO is completed, the proceeds of the IPO will be used by the Trust to subscribe for additional shares of Crius Energy Holdings Inc., which in turn will use the net proceeds to subscribe for additional shares and debt of Crius Energy Corporation. Crius Energy Corporation will use the proceeds to acquire the Acquired Interest in Crius Energy LLC. As stated above, in connection with the IPO, Applicants request blanket authorization under Section 203(a)(1) for all dispositions involving any party acquiring, either individually or together with its affiliates, less than a ten percent interest in the Trust through ownership of its units following the IPO. The purchasers of any units in the Trust will be members of the general public in Canada and qualified institutional buyers in the U.S. pursuant to Rule 144A under the Securities Act of 1933, as amended. Under the Ontario Securities Commission Rule 62-504, disclosure of the purchase of any block of units exceeding 10 percent is required.22 If blocks of 10 percent or more are acquired, the Applicants will make a filing to disclose this information to the Commission, and will seek FPA Section 203(a)(1) authority for the acquisition of such blocks if required. The fourth stage of the Proposed Transaction is the Cash Redemption Transaction. In this stage, cash from the IPO, either in the form of loans or cash, is passed down to REH, which will acquire the Retained Interest of the REH owners in REH, and to Crius Energy LLC, which 22 Under these Canadian securities regulations, any person who, together with persons with whom they act jointly and in concert, beneficially owns 10 percent or more of the units in the Trust, or has the power to control or exercise any votes attached to such units, will be required to issue and file a public news release, as well as an “early warning report” with the Canadian securities regulators, disclosing such ownership or control promptly after exceeding the 10 percent threshold.
15 will acquire the Retained Interest held by the Public Power members.23 After the Cash Redemption Transaction, Crius Energy LLC will own 100 percent of the common shares of REH, and 100 percent of the ownership interests in Public Power, representing an increase from pre-redemption ownership levels of 75 percent in each of REH and Public Power, respectively. The Retained Interests in the owners of REH and Public Power will be eliminated. Applicants request authorization under FPA Section 203(a)(1)(A) for the Cash Redemption Transaction if and to the extent it results in a change in indirect control over the jurisdictional assets held by Public Power and REH, respectively.24 B. Description of the Alternative Proposed Transaction The Alternative Proposed Transaction is intended as a substitute for the Proposed Transaction if the IPO does not occur by the IPO Expiration Date. It would achieve the same purposes as the Proposed Transaction, with the exception of the capital raising aspect and the use of such capital to purchase the owners’ Retained Interests in cash. As described above, the Alternative Proposed Transaction will be pursued, after consummation of the Exchange Transaction, if the IPO does not occur by the IPO Expiration Date. In that case, stages two and three, as described above, will not occur. In addition, the Retained Interests (approximately 25 percent) in REH and Public Power, respectively, will be exchanged for additional ownership interests in Crius Energy LLC, which will be issued to the 23 It is theoretically possible that the IPO will not raise sufficient cash to purchase all of the Retained Interests in REH and Public Power. In that event, the redemption will be made partially for cash and partially through the issuance of additional Crius Energy LLC interests. 24 After stage four, or after the Alternative Proposed Transaction is completed, the ownership interests in Fairpoint Energy, LLC, FTR Energy Services, LLC and Cincinnati Bell Energy, LLC might be transferred from REH to Crius Energy LLC. Applicants believe that this transaction would be authorized as an internal corporate reorganization under the blanket authorization set forth in section 33.1(c)(6) of the Commission’s regulations. In the alternative, out of an abundance of caution, Applicants seek authorization for the transaction under FPA Section 203(a)(1).
16 REH and Public Power owners (“Exchange Redemption”). The stage four Cash Redemption will not occur. The net effect of the Exchange Redemption will be to eliminate the Retained Interests of the REH owners and the Public Power owners and convert them into indirect owners of such entities (and their respective jurisdictional assets) through the transfer to them of ownership of ownership interests in Crius Energy LLC. The percentage shares of the pre-existing owners of Crius Energy LLC will not be changed. For this reason, it does not appear that the Exchange Redemption will result in a change of control of the Public Power and REH jurisdictional assets. Hence, Applicants do not believe that authorization for the Exchange Redemption is necessary. Nevertheless, out of an abundance of caution, we seek such authorization.25 VI. THE TRANSACTIONS ARE CONSISTENT WITH THE PUBLIC INTEREST Under Section 203 of the FPA, the Commission will approve a transaction if the Commission finds that the transaction “will be consistent with the public interest.”26 In reviewing transactions under Section 203, the Commission applies a three-part test set forth in its Merger Policy Statement, as codified in Section 2.26 of the Commission’s regulations.27 Under this test, the Commission examines the effect of the proposed transaction on competition, rates and regulation. In addition, Section 203(a)(4) provides that a proposed transaction may not “result in cross-subsidization of a non-utility associate company or the pledge or encumbrance of 25 As stated supra, for the avoidance of doubt, Applicants’ are not seeking a declaration or other determination by the Commission on the issue of whether the Commission’s approval is required for the proposed Exchange Redemption. See, e.g., Ocean State Power, 47 FERC ¶ 61,321 (1989) (“we are not making any determination whether the transfer . . . constitutes a disposition of jurisdictional facilities under section 203.”) 26 16 U.S.C. § 824b(a)(4). 27 18 C.F.R. § 2.26 (2011).
17 utility assets for the benefit of an associate company, unless the Commission determines that the cross-subsidization, pledge or encumbrance will be consistent with the public interest.”28 As described below, the disposition of facilities resulting from the proposed transactions meets these statutory standards and should be authorized by the Commission. A. The Transactions Will Have No Adverse Effect on Competition 1. Affiliates of the Applicants As a threshold matter, to evaluate the impact of the proposed transactions on competition (which will be negligible, if any), one must identify the affiliates of the Applicants and discuss their ownership or control of any energy-related businesses. The affiliates fall into three basic categories: (i) the existing affiliates of REH, (ii) the existing affiliates of Public Power, and (iii) the affiliates that will be created in the context of the proposed transactions. Turning to the first category, and referring to the Pre-Transaction Ownership Structure of REH, shown in Exhibit C, we note that any person or entity shown in Exhibit C that owns 10 percent or more of the ownership interests in an entity constitutes an affiliate under the Commission’s definition of that term.29 None of such “10 percent” individuals or entities shown in the exhibit own or control any energy-related businesses, other than the retail electricity and natural gas marketer businesses owned by REH and the MBR Entities, which make no wholesale sales other than real-time balancing transactions in real-time markets. Second, turning to Public 28 16 U.S.C. § 824b(a)(4). 29 While the definition is set forth in the market-based rate subpart of the Commission’s regulations, Applicants believe the definition is pertinent in the context of this Application. See 18 C.F.R. § 35.36(a)(9). In one instance, such an ownership interest is deemed “passive” because it is superseded by an actual control arrangement. In that vein, it should be noted that control of JMEG Holdings LLC is exclusively vested in Johny Malohn, who owns a 51 percent ownership interest in the company and holds the position of Manager. The ownership interests of the remaining owners are passive interests. See May 29, 2012 Letter of Viridian Energy NG, LLC in Docket No. ER12-1769.
18 Power, LLC and Exhibit C, the same is true of any “10 percent” individuals or entities—none of them owns 10 percent or more or otherwise controls any energy-related businesses, other than the Public Power MBR Entities’ retail and wholesale sales activities. Finally, turning to the remaining entities described in Section IV.B of the Application,30 and except for Crius Energy LLC,31 100 percent of each entity’s ownership interests will be owned and controlled by its direct parent, up to the level of Crius Energy Trust, which will be owned by members of the general public in Canada. None of these entities or their parent companies will have any interests in energy-related businesses, other than the retail and de minimis wholesale businesses discussed above. 2. The Collective Impact of Applicants and their Affiliates on Competition will be Negligible. The proposed transactions will not have an adverse effect on competition in the markets in which the REH MBR Entities or the Public Power MBR Entities operate. Given that the REH MBR Entities and the Public Power MBR Entities make no wholesale sales of electricity other than real-time balancing transactions in real-time markets, the proposed transactions will not have any impact on the wholesale electricity product market in any geographic area. Moreover, none of the foregoing entities own or control, through power purchase agreements or otherwise, the output of any generating facilities. Nor does any one of them own transmission facilities. 30 The Administrator arguably (out of an abundance of caution) might be considered an affiliate of the Applicants under section 35.36(a)(9)(iii) of the Commission’s regulations. That provision gives the Commission discretion to consider as affiliates persons who “stand in such relation to the specified company that there is liable to be an absence of arm’s length bargaining between them.” Although, under the foregoing provision, the Administrator might be considered an affiliate of the Applicants, the Administrator Shareholder and the CEO of Crius Energy LLC should not be considered affiliates of the Applicants, because their interests are rendered passive by the authority of the unit holders acting through the Trustee. See Section IV.B.(5), supra. 31 To the extent the Public Power Members and the Regional Energy Stockholders retain ownership interests in Crius Energy LLC, their respective affiliates are described above.
19 Section 33.3(a)(2)(i) of the Commission’s regulations states that a horizontal competitive screen analysis is not required if the applicant “[a]ffirmatively demonstrates that the merging entities do not currently conduct business in the same geographic markets or that the extent of the business transactions in the same geographic markets is de minimis.”32 The analysis focuses on business combinations that involve consolidating control over electric generating facilities, the output of which is sold in jurisdictional wholesale markets. Neither Applicants nor Public Power, LLC own or control any electric generating facilities. Accordingly, the proposed transactions do not raise any horizontal market power concerns. To the extent the proposed transactions will have any impact on competition, it will be in retail markets in various states. The Commission stated in Order No. 642 that it will “consider retail market issues when circumstances warrant. “However,” the Commission stated, “it is our continuing position that our merger review should not, as a matter of course review a merger’s impact on retail markets in that state when a state is clearly able to do so.”33 Here, the retail competition issue is insignificant. There are nine states in which both a Public Power MBR entity and a Viridian MBR entity are licensed to sell electricity at retail: Connecticut, the District of Columbia, Illinois, Maryland, Massachusetts, New Jersey, New York, Ohio and Pennsylvania. Based on 2011 retail sales data, the combined retail sales of Public Power and Viridian in every one of these states was less than one percent, with the exception of Connecticut, where the combined share was four percent, and New Jersey, where the combined share was 1.5 percent. Based on these data, it is 32 18 C.F.R. § 33.3(a)(2)(i). See also Liberty Elec. Power, LLC, 110 FERC ¶ 62,152 (2005) (approving transfer of jurisdictional facilities without requiring horizontal competitive screen analysis where parties held only de minimis interests in relevant markets). 33 Order No. 642 at 31,919.
20 difficult to imagine that a state commission would be concerned with the impact of the proposed transactions on retail competition. In addition, the foregoing states require, either before or after the proposed transactions are consummated, that the holder of an retail electricity license notify or submit information concerning the transaction in accordance with their respective rules. If these state commissions wish to address the proposed transactions’ impact on retail competition, if any, it is unlikely that they would be precluded from doing so. Moreover, any state commission that is concerned about adverse effects, if any, on retail competition would be free to intervene in this docket. Section 33.4(a)(2)(i) of the Commission’s regulations states that a vertical competitive analysis is not required if the applicant can affirmatively demonstrate that “[t]he merging entities currently do not provide inputs to electricity products (i.e., upstream relevant products) and electricity products (i.e., downstream relevant products) in the same geographic markets or that the extent of the business transactions in the same geographic markets is de minimis.”34 The Proposed Merger does not raise any vertical market power concerns. Applicants do not own or control transmission facilities. Further, Applicants do not own or control any inputs to generation. Applicants have not sought to erect barriers to entry in any market, nor will they. Applicants do not own or control any intrastate natural gas transportation, intrastate natural gas storage or distribution facilities, or physical coal supply sources or coal transportation, or sites for development of electric generating facilities. Because the proposed transactions will have no adverse effect on wholesale competition, and because consideration of retail competition issues by the Commission is unwarranted, Applicants request that the Commission authorize the disposition of jurisdictional facilities 34 18 C.F.R. § 33.4(a)(2)(i).
21 resulting from the proposed transactions without requiring the filing of a horizontal or a vertical competitive screen analysis. B. The Transactions Will Have No Adverse Effect on Rates In assessing the effect that a proposed transaction could have on rates, the Commission’s primary concern is “the protection of wholesale ratepayers and transmission customers.”35 Simply stated, the proposed transactions will not have an adverse effect on rates because the Applicants have no wholesale ratepayers (other than RTOs in real-time balancing markets) or transmission customers. The proposed transactions will not affect the rates of any customer. Applicants sell electricity in competitive deregulated retail markets under the oversight of the state commissions and have no captive customers. Applicants buy electricity and sell de minimis volumes of electricity in the competitive deregulated wholesale markets under the Commission’s oversight. Applicants do not have any captive wholesale or retail customers. None of these arrangements will change as a result of the proposed transactions. None of the Applicants or their affiliates own any transmission facilities. Accordingly, the proposed transactions will have no affect on rates paid by any power customers or transmission customers. C. The Transactions Will Have No Adverse Effect on Regulation The proposed transactions will not affect the manner or extent to which the Commission, any state, or any other federal agency may regulate Applicants. Upon completion of the proposed transactions, the Applicants will continue to be subject to the jurisdiction of this Commission and the pertinent state utility commissions to the same extent as before the proposed 35 New England Power Co., 82 FERC ¶ 61,179 at 61,659 order on reh’g, 83 FERC ¶ 61,275 (1998). See also Merger Policy Statement, FERC Stats. & Regs. ¶ 31,044 at 30,123 (concern is to protect ratepayers from rate increases because of a merger).
22 transactions. As a consequence, the proposed transactions will have no adverse effect on regulation. D. The Transactions Will Not Result in Any Cross-Subsidization of a Non- Utility Company or Any Pledge or Encumbrance of Utility Assets for the Benefit of an Associate Company FPA Section 203(a)(4) provides that the Commission shall approve the proposed disposition if it finds that the proposed jurisdictional transaction will not result in cross- subsidization of a non-utility associate company or pledge or encumbrance of utility assets for the benefit of an associate company, unless the Commission finds that such cross-subsidization, pledge or encumbrance is consistent with the public interest.36 The Commission has stated that “the concern about cross-subsidization [in Section 203(a)(4)] is principally a concern over the effect of a transaction on rates,”37 and that the cross-subsidization requirements in Order No. 669 “apply where a traditional public utility has captive customers (defined as wholesale or retail electric energy customers served under cost-based regulation) and also where the public utility owns or provides transmission service over Commission-jurisdictional transmission facilities.”38 The Commission elaborated that “a public utility selling power only pursuant to market-based regulation will not be regarded as a ‘traditional public utility with captive customers’ and hence, customers served at market-based rates will not be considered ‘captive customers.’”39 As noted above, the proposed transactions will not have any adverse effect on rates because all wholesale (if any) and retail sales of electricity by the Applicants will continue to be made at market-based 36 See 16 U.S.C. § 824b(a)(4) (2000). 37 Transactions Subject to FPA Section 203, Order No. 669, FERC Stats. & Regs. ¶ 31,200 at P 167 (2005), order on reh’g, Order No. 669-A, FERC Stats. & Regs. ¶ 31,214, order on reh’g, Order No. 669-B, FERC Stats. & Regs. ¶ 31,225 (2006). 38 Order 669-A at P 147. 39 Id.
23 rates authorized by the Commission or in accordance with state utility commission rules. Accordingly, no detailed examination of cross-subsidization issues is required in connection with the proposed transactions. The proposed transactions are within the scope of the “safe harbor” for transactions in which “no franchised public utility with captive customers is involved in the transaction,” and thus raise no issue with respect to cross-subsidization. Furthermore, as explained in Exhibit M, based on facts and circumstances known to Applicants or those that are reasonably foreseeable, and pursuant to Order Nos. 669 and 669-A, Applicants hereby verify, with respect to them and each of their affiliates, that the proposed transactions will not result, at the time of the proposed transactions or in the future, in: (i) any transfer of facilities between a traditional utility associate company that has captive customers or that owns or provides transmission service over jurisdictional facilities, and an associate company; (ii) any new issuance of securities by a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities for the benefit of an associate company; (iii) any new pledge or encumbrance of assets of a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, for the benefit of an associate company; or (iv) any new affiliate contract between a non-utility associate company and a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, other than non-power goods and services agreements subject to review under Sections 205 and 206 of the FPA.40 Applicants verify that the proposed 40 See Order No. 669 at P 169 (stating that such verifications may be accepted in lieu of any other explanation with respect to cross-subsidization and encumbrance concerns).
24 transactions do not involve utility assets, and therefore there are no existing pledges or encumbrances that must be disclosed under 18 C.F.R. § 33.2(j)(l)(i). VI. INFORMATION REQUIRED BY PART 33 OF THE COMMISSION’S REGULATIONS Applicants are including with this Application the Exhibits and supporting information required by Part 33 of the Commission’s regulations.41 Consistent with Commission precedent and as described below, Applicants request waiver of the Part 33 regulations to the extent that such regulations request information that is not necessary to ensure that the proposed transactions meet the statutory requirements of Section 203 of the FPA.42 A. Section 33.2(a): Names and addresses of the Applicants’ principal business offices The exact legal names and addresses of the Applicants are:43 Public Power, LLC 39 Old Ridgebury Rd. Suite 14 Danbury, CT 06810 Public Power & Utility of Maryland, LLC 39 Old Ridgebury Rd. Suite 14 Danbury, CT 06810 Public Power & Utility of NY, Inc. 39 Old Ridgebury Rd. Suite 14 Danbury, CT 06810 41 18 C.F.R. §§ 33.2-33.4 (2011). 42 See, e.g., MACH Gen, LLC, 113 FERC ¶ 61,138 (2005); Boston Generating, LLC, 113 FERC ¶ 61,109 (2005); La Paloma Holding Co., LLC, 112 FERC ¶ 61,052 (2005); Lake Road Holding Co., LLC, 112 FERC ¶ 61,051 (2005). 43 The address of Crius Energy LLC will be 1055 Washington Boulevard, Suite 700, Stamford, CT 06901.
25 Public Power & Utility of New Jersey, LLC 39 Old Ridgebury Rd. Suite 14 Danbury, CT 06810 Public Power, LLC (Pennsylvania) 39 Old Ridgebury Rd. Suite 14 Danbury, CT 06810 Regional Energy Holdings Inc. 64 North Main Street Norwalk, CT 06854 Viridian Energy, Inc. 64 North Main Street Norwalk, CT 06854 Viridian Energy PA, LLC 64 North Main Street Norwalk, CT 06854 Viridian Energy NY, LLC 64 North Main Street Norwalk, CT 06854 Cincinnati Bell Energy, LLC 64 North Main Street Norwalk, CT 06854 FTR Energy Services, LLC 64 North Main Street Norwalk, CT 06854 Fairpoint Energy, LLC 64 North Main Street Norwalk, CT 06854 B. Section 33.2(b): Names, addresses, phone numbers, fax numbers, and e-mail addresses of persons authorized to receive notice and communications regarding this Application Applicants request that the persons listed in Section III, above, be placed on the official service list for this proceeding.
26 C. Section 33.2(c): Description of the Applicants, including: 1. All business activities of the Applicants, including authorizations by charter or regulatory approval Section IV of this Application sets forth a general description of the Applicants and their business activities. Accordingly, Applicants request waiver of the requirement to file Exhibit A. 2. A list of all energy subsidiaries and energy affiliates, percentage ownership interest in such subsidiaries and affiliates, and a description of the primary business in which each is engaged. Information pertaining to Applicants is provided in Section IV of this Application and in the attached Exhibit B. 3. Organizational charts depicting the Applicants’ current and proposed post-transaction corporate structures. Organizational charts illustrating the current and post transaction ownership structures of Applicants are attached as Exhibit C. 4. Description of all joint ventures, strategic alliances, tolling arrangements or other business arrangements, including transfers of operational control of transmission facilities to Commission approved Regional Transmission Organizations, both current, and planned to occur within a year from the date of filing, to which the Applicants or their parent companies, energy subsidiaries, and energy affiliates is a party, unless the Applicants demonstrate that the proposed transaction does not affect any of its business interests. Applicants request waiver of the requirement to file Exhibit D, to the extent otherwise deemed necessary, as the proposed transactions will not affect any business interests, except as described herein. 5. Identity of all common officers or directors of parties to the proposed transaction. This information is provided in Exhibit E. 6. Description and locations of wholesale power sales customers and unbundled transmission services customers served by the Applicants or parent companies, subsidiaries, affiliates and associate companies.
27 Applicants have no existing wholesale power sales customers, other than RTOs in real- time balancing markets, and provide no unbundled transmission services. Accordingly, to the extent otherwise deemed necessary, Applicants request waiver of the requirement to file Exhibit F. D. Section 33.2(d): Description of the jurisdictional facilities owned, operated, or controlled by the Applicants The Applicants’ jurisdictional facilities are their market-based rate authorizations and associated books and records. Accordingly, to the extent otherwise deemed necessary, Applicants request waiver of the requirement to file Exhibit G. E. Section 33.2(e): A narrative description of the proposed transaction for which Commission authorization is requested This information is set forth in Section V, above, and the Term Sheet included in confidential Exhibit I. Therefore, Applicants request waiver of the requirement to file Exhibit H. F. Section 33.2(f): Contracts related to the Transaction A Term Sheet included in confidential Exhibit I describes the proposed transactions. The proposed transactions will not deviate in any material manner from the Term Sheet included in Exhibit I. Pursuant to Section 388.112 of the Commission’s regulations, as discussed in Section II, above, Applicants request privileged and confidential treatment of Exhibit I. Applicants also request waiver of the requirements of Section 33.2(f) of the Commission’s regulations to the extent that they would require any other documents to be submitted in confidential Exhibit I. G. Section 33.2(g): Statement explaining the facts relied upon to demonstrate that the Transaction is consistent with the public interest The facts relied upon to show that the disposition of facilities resulting from the proposed transactions is consistent with the public interest are set forth in Section VI of this Application. Accordingly, Applicants request waiver of the requirement to file Exhibit J.
28 H. Section 33.2(h): Physical property A map would not provide the Commission with information relevant to the proposed transactions. Therefore, Applicants request waiver of the requirement to file Exhibit K. I. Section 33.2(i): Status of actions before other regulatory bodies No approvals are needed from any other regulatory bodies. Therefore, Applicants request waiver of the requirement to file Exhibit L. J. Section 33.2(j): Cross-subsidization, pledge, or encumbrance Applicants’ explanation as to how the proposed transactions will not result in cross- subsidization of a non-utility associate company or pledge or encumbrance of utility assets for the benefit of an associate company is found in Section VI.D and Exhibit M. VII. PROPOSED ACCOUNTING ENTRIES Applicants are not including accounting entries showing the effect of the proposed transactions on account balances because Applicants are not required to maintain their books and records in accordance with the Commission’s Uniform System of Accounts. VIII. VERIFICATION An authorized representative of each of the Applicants has provided the verification required under § 33.7 of the Commission’s regulations44 in Attachment 2. IX. CONCLUSION For the reasons stated herein, Applicants request that the Commission issue an order no later than August 20, 2012 authorizing the proposed transactions and granting waivers of its Part 44 18 C.F.R. § 33.7 (2011).
29 33 filing requirements to the extent that the information required by Part 33 is not necessary to determine that the proposed transactions meet the statutory requirements of FPA Section 203. Respectfully submitted, /s/ Kenneth G. Hurwitz /s/ Gerit F. Hull Kenneth G. Hurwitz, Partner Gerit F. Hull, Member Haynes and Boone, LLP Eckert Seamans Cherin & Mellott, LLC 1615 L Street, NW, Suite 800 Suite 1200 Washington, DC 20036 1717 Pennsylvania Avenue, N.W. (202) 654-4521 Washington, DC 20006 ken.hurwitz@haynesboone.com (202) 659-6657 Counsel for Regional Energy Holdings, Inc. ghull@eckertseamans.com and its subsidiaries Counsel for Public Power, LLC and its subsidiaries July 20, 2012
EXHIBIT B RELEVANT ENERGY-RELATED SUBSIDIARIES AND AFFILIATES OF REGIONAL ENERGY HOLDINGS, INC. AND PUBLIC POWER, LLC Other than the REH MBR Entities, the Public Power MBR Entities, and Viridian Network, LLC (described in Section IV.A.2, above), REH and Public Power have no energy- related subsidiaries.
EXHIBIT C ORGANIZATIONAL CHARTS
C-1 Notes: Market-based rate applications are pending at the Commission for Public Power, LLC (Pennsylvania), Public Power & Utility of NY, Inc., Public Power & Utility of Maryland, LLC, and Public Power & Utility of New Jersey, LLC. In each of the boxes above labeled “Individuals,” no person or entity owns 10 percent or more of the voting ownership interests in the relevant subsidiary.
C-2 Note: Control of the business and affairs of JMEG Holdings, LLC is exclusively vested in an individual, Johny Malohn, who is Manager of and owns a 51 percent ownership interest in the company. The remaining owners’ respective ownership interests in JMEG Holdings are merely passive. In the box above labeled “Individuals,” no person or entity owns 10 percent or more of the voting ownership interests in REH.
C-3 Notes: In the box above labeled “Public Power Members,” GF Power I, LLC will own 23.75 percent of Public Power, LLC and 47.5 percent of Crius Energy LLC, but otherwise no person or entity will own 10 percent or more of the voting ownership interests in Public Power, LLC or Crius Energy LLC. The ownership of GF Power I, LLC will be the same as shown on the chart on page C-1. In the box above labeled “Regional Energy Shareholders,” no person or entity owns 10 percent or more of the voting shares of Regional Energy Holdings, Inc. or Crius Energy LLC.
C-4 Notes: In the box above labeled “Public Power Members,” GF Power I, LLC will own 23.75 percent of Crius Energy LLC, but otherwise no person or entity no person or entity will own 10 percent or more of the voting ownership interests in Crius Energy LLC. The ownership of GF Power I, LLC will be the same as shown on the chart on page C-1. In the box above labeled “Regional Energy Shareholders,” no person or entity will own 10 percent or more of the voting ownership interests in Crius Energy LLC.
C-5 Notes: In the box above labeled “Public Power Members,” GF Power I, LLC will own 47.5 percent of Crius Energy LLC, but otherwise no person or entity will own 10 percent or more of the voting ownership interests in Crius Energy LLC. The ownership of GF Power I, LLC will be the same as shown on the chart on page C-1. In the box above labeled “Regional Energy Shareholders,” no person or entity will own 10 percent or more of the voting ownership interests in Crius Energy LLC.
EXHIBIT E COMMON OFFICERS AND DIRECTORS Regional Energy Holdings, Inc. and Public Power, LLC are the parties to the proposed transaction. There are no common officers or directors among (i) REH and any of its current affiliates and subsidiaries, and (ii) Public Power and any of its current affiliates and subsidiaries.
EXHIBIT I TRANSACTION AGREEMENTS PUBLIC VERSION ************************************************** PRIVILEGED, PROTECTED, CONFIDENTIAL INFORMATION HAS BEEN REMOVED **************************************************
EXHIBIT M STATEMENT REGARDING CROSS-SUBSIDIZATION As demonstrated in Section V.D of the Application and incorporated by reference into this Exhibit M, the proposed transactions raise no issues concerning cross-subsidization. The Applicants verify with respect to themselves, based on facts and circumstances known to them or that are reasonably foreseeable, that the proposed transactions will not result in, at the time of the proposed transactions or in the future: (1) any transfers of facilities between a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, and an associate company; (2) any new issuances of securities by a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, for the benefit of an associate company; (3) any new pledge or encumbrance of assets of a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, for the benefit of an associate company; or (4) any new affiliate contracts between a non-utility associate company and a traditional public utility associate company that has captive customers or that own or provide transmission service over jurisdictional transmission facilities, other than non-power goods and services agreements subject to review under Sections 205 and 206 of the Federal Power Act.
ATTACHMENT 1
UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Public Power, LLC ) Docket No. EC12-___-000 Regional Energy Holdings, Inc. ) PROTECTIVE ORDER (Issued ____________, 20__) 1. This Protective Order shall govern the use of all Protected Materials produced by, or on behalf of, any Participant. Notwithstanding any order terminating this proceeding, this Protective Order shall remain in effect until specifically modified or terminated by the Presiding Administrative Law Judge (“Presiding Judge”) or the Federal Energy Regulatory Commission (“Commission”). 2. This Protective Order applies to the following two categories of materials: (A) A Participant may designate as protected those materials which customarily are treated by that Participant as sensitive or proprietary, which are not available to the public, and which, if disclosed freely, would subject that Participant or its customers to risk of competitive disadvantage or other business injury; and (B) A Participant shall designate as protected those materials which contain critical energy infrastructure information, as defined in 18 C.F.R. § 388.113(c)(1) (“Critical Energy Infrastructure Information”). 3. Definitions -- For purposes of this Order: (a) The term “Participant” shall mean Public Power, LLC (“Public Power”) and Regional Energy Holdings, Inc. (the “Applicants”), any person or entity contemplating intervening in this proceeding to whom Protected Materials are provided by the Applicant or its affiliates prior to such intervention, and a Participant as defined in 18 C.F.R. § 385.102(b). (b)(1) The term “Protected Materials” means (A) materials (including depositions) provided by a Participant as part of any application or other pleading filed with the Commission or in response to discovery requests, and designated by such Participant as protected; (B) any information contained in or obtained from such designated materials; (C) any other materials which are made subject to this Protective Order by the Presiding Judge, by the Commission, by any court or other body having appropriate authority, or by agreement of the Participants; (D) notes of Protected Materials; and (E) copies of Protected Materials. The Participant producing the Protected Materials shall physically mark them on each page as “CONTAINS PRIVILEGED INFORMATION––DO NOT RELEASE” or “PROTECTED MATERIALS” or with words of similar import as long as the term “Protected Materials” is included in that designation to indicate that they are Protected Materials. If the Protected Materials contain Critical Energy Infrastructure Information, the Participant producing such information shall additionally mark on each page containing such information the words “Contains Critical Energy Infrastructure Information––Do Not Release.”
2 (2) The term “Notes of Protected Materials” means memoranda, handwritten notes, or any other form of information (including electronic form) which copies or discloses materials described in Paragraphs 3(b)(1) or 5. Notes of Protected Materials are subject to the same restrictions provided in this order for Protected Materials except as specifically provided in this order. (3) Protected Materials shall not include (A) any information or document contained in the files of the Commission, or any other federal or state agency, or any federal or state court, unless the information or document has been determined to be protected by such agency or court, or (B) information that is public knowledge, or which becomes public knowledge, other than through disclosure in violation of this Protective Order, or (C) any information or document labeled as “Non-Internet Public” by a Participant, in accordance with Paragraph 30 of FERC Order No. 630, FERC Stats. & Regs. ¶ 31,140. Protected Materials do include any information or document contained in the files of the Commission that has been designated as Critical Energy Infrastructure Information. (c) The term “Non-Disclosure Certificate” shall mean the certificate annexed hereto by which Participants who have been granted access to Protected Materials shall certify their understanding that such access to Protected Materials is provided pursuant to the terms and restrictions of this Protective Order, and that such Participants have read the Protective Order and agree to be bound by it. All Non- Disclosure Certificates shall be served on all parties on the official service list maintained by the Secretary in this proceeding. (d) The term “Reviewing Representative” shall mean a person who has signed a Non- Disclosure Certificate and who is: (1) Commission Litigation Staff; (2) an attorney who has made an appearance in this proceeding for a Participant; (3) an attorney, paralegal, or other employee associated for purposes of this case with an attorney described in Paragraph (2); (4) an expert or an employee of an expert retained by a Participant for the purpose of advising, preparing for or testifying in this proceeding; (5) a person designated as a Reviewing Representative by order of the Presiding Judge or the Commission; or (6) an employee or other representative of Participants appearing in this proceeding with significant responsibility for this docket. 4. Protected Materials shall be made available under the terms of this Protective Order only to Participants and only through their Reviewing Representatives as provided in Paragraphs 7-9.
3 5. Protected Materials shall remain available to Participants until the later of the date that an order terminating this proceeding becomes no longer subject to judicial review, or the date that any other Commission proceeding relating to the Protected Material is concluded and no longer subject to judicial review. If requested to do so in writing after that date, the Participants shall, within fifteen days of such request, return the Protected Materials (excluding Notes of Protected Materials) to the Participant that produced them, or shall destroy the materials, except that copies of filings, official transcripts and exhibits in this proceeding that contain Protected Materials, and Notes of Protected Material may be retained, if they are maintained in accordance with Paragraph 6, below. Within such time period each Participant, if requested to do so, shall also submit to the producing Participant an affidavit stating that, to the best of its knowledge, all Protected Materials and all Notes of Protected Materials have been returned or have been destroyed or will be maintained in accordance with Paragraph 6. To the extent Protected Materials are not returned or destroyed, they shall remain subject to the Protective Order. 6. All Protected Materials shall be maintained by the Participant in a secure place. Access to those materials shall be limited to those Reviewing Representatives specifically authorized pursuant to Paragraphs 8-9. The Secretary shall place any Protected Materials filed with the Commission in a non-public file. By placing such documents in a nonpublic file, the Commission is not making a determination of any claim of privilege. The Commission retains the right to make determinations regarding any claim of privilege and the discretion to release information necessary to carry out its jurisdictional responsibilities. For documents submitted to Commission Litigation Staff (“Staff”), Staff shall follow the notification procedures of 18 C.F.R. § 388.112 before making public any Protected Materials. 7. Protected Materials shall be treated as confidential by each Participant and by the Reviewing Representative in accordance with the certificate executed pursuant to Paragraph 9. Protected Materials shall not be used except as necessary for the conduct of this proceeding, nor shall they be disclosed in any manner to any person except a Reviewing Representative who is engaged in the conduct of this proceeding and who needs to know the information in order to carry out that person’s responsibilities in this proceeding. Reviewing Representatives may make copies of Protected Materials, but such copies become Protected Materials. Reviewing Representatives may make notes of Protected Materials, which shall be treated as Notes of Protected Materials if they disclose the contents of Protected Materials. 8. (a) If a Reviewing Representative’s scope of employment includes the marketing of energy, the direct supervision of any employee or employees whose duties include the marketing of energy, the provision of consulting services to any person whose duties include the marketing of energy, or the direct supervision of any employee or employees whose duties include the marketing of energy, such Reviewing Representative may not use information contained in any Protected Materials obtained through this proceeding to give any Participant or any competitor of any Participant a commercial advantage. (b) In the event that a Participant wishes to designate as a Reviewing Representative a person not described in Paragraph 3 (d) above, the Participant shall seek agreement from the Participant providing the Protected Materials. If an agreement is reached that person shall be a Reviewing
4 Representative pursuant to Paragraphs 3(d) above with respect to those materials. If no agreement is reached, the Participant shall submit the disputed designation to the Presiding Judge for resolution. 9. (a) A Reviewing Representative shall not be permitted to inspect, participate in discussions regarding, or otherwise be permitted access to Protected Materials pursuant to this Protective Order unless that Reviewing Representative has first executed a Non- Disclosure Certificate provided that if an attorney qualified as a Reviewing Representative has executed such a certificate, the paralegals, secretarial and clerical personnel under the attorney’s instruction, supervision or control need not do so. A copy of each Non- Disclosure Certificate shall be provided to counsel for the Participant asserting confidentiality prior to disclosure of any Protected Material to that Reviewing Representative. (b) Attorneys qualified as Reviewing Representatives are responsible for ensuring that persons under their supervision or control comply with this order. 10. Any Reviewing Representative may disclose Protected Materials to any other Reviewing Representative as long as the disclosing Reviewing Representative and the receiving Reviewing Representative both have executed a Non-Disclosure Certificate. In the event that any Reviewing Representative to whom the Protected Materials are disclosed ceases to be engaged in these proceedings, or is employed or retained for a position whose occupant is not qualified to be a Reviewing Representative under Paragraph 3(d), access to Protected Materials by that person shall be terminated. Even if no longer engaged in this proceeding, every person who has executed a Non-Disclosure Certificate shall continue to be bound by the provisions of this Protective Order and the certification. 11. Subject to Paragraph 17, the Presiding Administrative Law Judge or the Commission shall resolve any disputes arising under this Protective Order. Prior to presenting any dispute under this Protective Order to the Presiding Administrative Law Judge or the Commission, the parties to the dispute shall use their best efforts to resolve it. Any participant that contests the designation of materials as protected shall notify the party that provided the protected materials by specifying in writing the materials whose designation is contested. This Protective Order shall automatically cease to apply to such materials five (5) business days after the notification is made unless the designator, within said 5-day period, files a motion with the Presiding Administrative Law Judge or the Commission, with supporting affidavits, demonstrating that the materials should continue to be protected. In any challenge to the designation of materials as protected, the burden of proof shall be on the participant seeking protection. If the Presiding Administrative Law Judge or the Commission finds that the materials at issue are not entitled to protection, the procedures of Paragraph 17 shall apply. The procedures described above shall not apply to protected materials designated by a Participant as Critical Energy Infrastructure Information. Materials so designated shall remain protected and subject to the provisions of this Protective Order, unless a Participant requests and obtains a determination from the Commission’s Critical Energy Infrastructure Information Coordinator that such materials need not remain protected.
5 12. All copies of all documents reflecting Protected Materials, including the portion of the hearing testimony, exhibits, transcripts, briefs and other documents which refer to Protected Materials, shall be filed and served in sealed envelopes or other appropriate containers endorsed to the effect that they are sealed pursuant to this Protective Order. Such documents shall be marked “PROTECTED MATERIALS” or “CONTAINS PRIVILEGED INFORMATION-DO NOT RELEASE” and shall be filed under seal and served under seal upon the Presiding Judge and all Reviewing Representatives who are on the service list. Such documents containing Critical Energy Infrastructure Information shall be additionally marked “Contains Critical Energy Infrastructure Information - Do Not Release.” For anything filed under seal, redacted versions or, where an entire document is protected, a letter indicating such, will also be filed with the Commission and served on all parties on the service list and the Presiding Judge. Counsel for the producing Participant shall provide to all Participants who request the same, a list of Reviewing Representatives who are entitled to receive such material. Counsel shall take all reasonable precautions necessary to assure that Protected Materials are not distributed to unauthorized persons. 13. If any Participant desires to include, utilize or refer to any Protected Materials or information derived therefrom in testimony or exhibits during the hearing in these proceedings in such a manner that might require disclosure of such material to persons other than reviewing representatives, such participant shall first notify both counsel for the disclosing participant and the Presiding Judge of such desire, identifying with particularity each of the Protected Materials. Thereafter, use of such Protected Material will be governed by procedures determined by the Presiding Judge. Nothing in this Protective Order shall be construed as precluding any Participant from objecting to the use of Protected Materials on any legal grounds. 14. Nothing in this Protective Order shall preclude any Participant from requesting the Presiding Judge, the Commission, or any other body having appropriate authority, to find that this Protective Order should not apply to all or any materials previously designated as Protected Materials pursuant to this Protective Order. The Presiding Judge may alter or amend this Protective Order as circumstances warrant at any time during the course of this proceeding. 15. Each party governed by this Protective Order has the right to seek changes in it as appropriate from the Presiding Judge or the Commission. 16. All Protected Materials filed with the Commission, the Presiding Judge, or any other judicial or administrative body, in support of, or as a part of, a motion, other pleading, brief, or other document, shall be filed and served in sealed envelopes or other appropriate containers bearing prominent markings indicating that the contents include Protected Materials subject to this Protective Order. Such documents containing Critical Energy Infrastructure Information shall be additionally marked “Contains Critical Energy Infrastructure Information – Do Not Release.” 17. If the Presiding Judge finds at any time in the course of this proceeding that all or part of the Protected Materials need not be protected, those materials shall, nevertheless, be subject to the protection afforded by this Protective Order for three (3) business days from the date of issuance of the Presiding Judge’s decision, and if the Participant seeking protection files an interlocutory appeal or requests that the issue be certified to the Commission, for an additional seven (7)
6 business days. None of the Participants waives its rights to seek additional administrative or judicial remedies after the Presiding Judge’s decision respecting Protected Materials or Reviewing Representatives, or the Commission’s denial of any appeal thereof. The provisions of 18 C.F.R. §§ 388.112 and 388.113 shall apply to any requests for Protected Materials in the files of the Commission under the Freedom of Information Act. (5 U.S.C. § 552). 18. Nothing in this Protective Order shall be deemed to preclude any Participant from independently seeking through discovery in any other administrative or judicial proceeding information or materials produced in this proceeding under this Protective Order. 19. None of the Participants waives the right to pursue any other legal or equitable remedies that may be available in the event of actual or anticipated disclosure of Protected Materials. 20. The contents of Protected Materials or any other form of information that copies or discloses Protected Materials shall not be disclosed to anyone other than in accordance with this Protective Order and shall be used only in connection with this (these) proceeding(s). Any violation of this Protective Order and of any Non- Disclosure Certificate executed hereunder shall constitute a violation of an order of the Commission.
UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Public Power, LLC ) Docket No. EC12-___-000 Regional Energy Holdings, Inc. ) NON-DISCLOSURE CERTIFICATE I hereby certify my understanding that access to Protected Materials is provided to me pursuant to the terms and restrictions of the Protective Order in this proceeding, that I have been given a copy of and have read the Protective Order, and that I agree to be bound by it. I understand that the contents of the Protected Materials, any notes or other memoranda, or any other form of information that copies or discloses Protected Materials shall not be disclosed to anyone other than in accordance with that Protective Order. I acknowledge that a violation of this certificate constitutes a violation of an order of the Federal Energy Regulatory Commission. By: Title: Representing: Date:
ATTACHMENT 2
2012.07.23 letter to ferc detailing acquisition
2012.07.23 letter to ferc detailing acquisition

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2012.07.23 letter to ferc detailing acquisition

  • 1. Kenneth G. Hurwitz Direct Phone Number: 202.654.4521 Fax Number: 202.654.4251 ken.hurwitz@haynesboone.com PUBLIC VERSION Privileged and Confidential Information Omitted Pursuant to 18 C.F.R. § 388.112 July 23, 2012 (VIA ELECTRONIC FILING) The Honorable Kimberly D. Bose Secretary FEDERAL ENERGY REGULATORY COMMISSION 888 First Street, N.E. Washington, D.C. 20426 Re: Public Power, LLC and Regional Energy Holdings, Inc., Docket No. EC12-123-000 Dear Secretary Bose: On July 20, 2012, Public Power, LLC, on behalf of itself and its wholly owned subsidiaries––Public Power & Utility of Maryland, LLC, Public Power & Utility of NY, Inc., Public Power & Utility of New Jersey, LLC, and Public Power, LLC (Pennsylvania)—and Regional Energy Holdings, Inc., on behalf of its wholly owned subsidiaries Viridian Energy, Inc., Viridian Energy PA, LLC, Viridian Energy NY, LLC, Cincinnati Bell Energy, LLC, FTR Energy Services, LLC and Fairpoint Energy, LLC, electronically filed an Application for Order Under Section 203 of the Federal Power Act, Request for Confidential Treatment, Request for Waivers and Request for 21-Day Comment Period. We filed the Application under Section 203(a)(1)(A) of the Federal Power Act1 and Part 33 of the Rules and Regulations of the Federal Energy Regulatory Commission.2 Page 2 of the Application set forth an incorrect date for the IPO Expiration Date. The date should be changed from January 21, 2012 to January 21, 2013. 1 16 U.S.C. § 824b(a)(1)(A). 2 18 C.F.R. Part 33 (2011).
  • 2. Hon. Kimberly D. Bose July 23, 2012 Page 2 Accordingly, we are submitting a revised Application with this letter. The revised Application is precisely the same as the one submitted on July 20, but with the correct IPO Expiration date shown on page 2. Please contact the undersigned if you have any questions concerning this Application. Respectfully submitted, /s/ Kenneth G. Hurwitz Kenneth G. Hurwitz COUNSEL FOR REGIONAL ENERGY HOLDINGS, INC. Enclosure
  • 3. PUBLIC VERSION Privileged and Confidential Information Omitted Pursuant to 18 C.F.R. § 388.112 UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Public Power, LLC ) Docket No. EC12-___-000 Regional Energy Holdings, Inc. ) APPLICATION FOR ORDER UNDER SECTION 203 OF THE FEDERAL POWER ACT, REQUEST FOR CONFIDENTIAL TREATMENT, REQUEST FOR WAIVERS AND REQUEST FOR 21-DAY COMMENT PERIOD Pursuant to Section 203(a)(1) of the Federal Power Act (“FPA”)1 and Part 33 of the Rules and Regulations of the Federal Energy Regulatory Commission (the “Commission” or “FERC”),2 Applicants Public Power, LLC (“Public Power”), on behalf of itself and its wholly owned subsidiaries––Public Power & Utility of Maryland, LLC, Public Power & Utility of NY, Inc., Public Power & Utility of New Jersey, LLC, and Public Power, LLC (Pennsylvania) (in combination with Public Power, the “Public Power MBR Entities”)—and Regional Energy Holdings, Inc. (“REH”), on behalf of its wholly owned subsidiaries Viridian Energy, Inc., Viridian Energy PA, LLC, Viridian Energy NY, LLC, Cincinnati Bell Energy, LLC, FTR Energy Services, LLC and Fairpoint Energy, LLC (the “REH MBR Entities”), respectfully request Commission authorization for two transactions—the Proposed Transaction and the Alternative Proposed Transaction—both of which involve dispositions of direct and indirect interests in Applicants. The market-based rate authorizations held by the Public Power MBR 1 16 U.S.C. § 824b(a)(1). 2 18 C.F.R. §§ 33.1-33.11 (2011).
  • 4. 2 Entities and the REH MBR Entities and associated books and records are the only jurisdictional facilities held by the foregoing entities, and the only such facilities involved in this Application.3 The Proposed Transaction will occur in four stages, consisting of (1) an exchange transaction, whereby approximately 75 percent of the direct ownership interests and shares in Public Power and REH, respectively, will be contributed by the owners to a new entity, Crius Energy LLC, in exchange for membership interests in the new entity (the “Exchange Transaction”);4 (2) the initial public offering of units in a Canada trust (the “Trust” or “Crius Energy Trust”) to the public (the “IPO”);5 (3) the acquisition by Crius Energy Corporation (an indirect wholly owned subsidiary of the Trust) of a portion of the ownership interests in Crius Energy LLC (the “Acquisition”); and (4) a redemption transaction under which REH and Crius Energy LLC will redeem, for cash, the Retained Interests (“Cash Redemption”). The Alternative Proposed Transaction will be pursued, after consummation of the Exchange Transaction, if the IPO does not occur by January 21, 2013 (the “IPO Expiration Date”). In that case, stages two and three, as described above, will not occur. In addition, the Retained Interests in REH and Public Power, respectively, will be exchanged for additional 3 Public Power, LLC (Pennsylvania), Public Power & Utility of Maryland, LLC, Public Power & Utility of NY, Inc., and Public Power & Utility of New Jersey, LLC applied for market-based rate authorization on July 17, 2012 in Docket Nos. ER12-2252, ER12-2253, ER12-2251, and ER12-2250, respectively. 4 As described in greater detail below in Section V.A., in stage one, the owners of the direct ownership interests and shares in Public Power and REH will retain a portion (approximately 25 percent) of such ownership interests and shares (the “Retained Interests”)—in other words, they will not contribute the Retained Interests to Crius Energy LLC pursuant to the Exchange Transaction. 5 Authorization for the IPO itself under FPA Section 203 or 204 is unnecessary because, at the time of the IPO, the Trust will neither directly or indirectly own nor operate any jurisdictional facilities.
  • 5. 3 ownership interests in Crius Energy LLC, which will be issued to the REH and Public Power owners (“Exchange Redemption”). The stage four Cash Redemption will not occur. With respect to the Proposed Transaction, Applicants specifically request authorization under Section 203(a)(1) of the FPA for the Exchange Transaction and the Acquisition, and further request blanket authorization under Section 203(a)(1) for any party to acquire, either individually or together with its affiliates, less than a ten percent interest in the Trust through ownership of its units following the IPO. Further, Applicants request authorization for the Cash Redemption, if and to the extent such authorization is required. As to the Alternative Proposed Transaction, Applicants specifically request authorization under Section 203(a)(1) of the FPA for the Exchange Transaction, as above, and, out of an abundance of caution, for the Exchange Redemption. (Approval of the Exchange Redemption might not be necessary because the transaction does not appear to effect a change in upstream control of either Public Power or the REH MBR Entities.)6 As demonstrated in this Application, neither the Proposed Transaction nor the Alternative Proposed Transaction will have an adverse effect on competition, rates or regulation, and neither will result in the cross-subsidization of a non-utility associate company or the pledge or encumbrance of utility assets for the benefit of an associate company. Accordingly, as specifically requested herein, the Proposed Transaction and the Alternative Proposed Transaction should be authorized by the Commission pursuant to Section 203 of the FPA as consistent with the public interest. 6 This issue is discussed in Section V.A below. For the avoidance of doubt, Applicants’ are not seeking a declaration or other determination by the Commission on the issue of whether the Commission’s approval is required for the proposed Exchange Redemption. See, e.g., Ocean State Power, 47 FERC ¶ 61,321 (1989) (“we are not making any determination whether the transfer . . . constitutes a disposition of jurisdictional facilities under section 203.”)
  • 6. 4 The Applicants request that the Commission grant limited waivers of its Part 33 filing requirements to the extent that the information required by Part 33 is not necessary to determine that the direct and indirect disposition of the jurisdictional assets of the Public Power MBR Entities and the REH MBR Entities resulting from the Proposed Transaction and the Alternative Proposed Transaction meet the statutory requirements of Section 203. Applicants provide below all information required by Part 33 of the Commission’s regulations except to the extent that Applicants request waiver of such requirements. Specifically, for the reasons described below, Applicants respectfully request that the Commission grant waiver of the requirement to file Exhibits A, D, F, G, H, J, K and L and the information required to be submitted therein to the extent not otherwise provided in this Application. The Commission’s practice is to grant such waivers when the application contains “sufficient information to evaluate the proposed transaction.”7 I. REQUEST FOR EXPEDITED REVIEW Applicants request a notice period of no longer than 21 days, expedited treatment of this Application, and a Commission order on this Application by August 20, 2012, to accommodate the closing of the proposed transactions8 as soon as possible thereafter. Expedited treatment is warranted because the proposed transactions are consistent with Commission precedent and require neither a competitive analysis screen nor a vertical competitive analysis.9 7 PSI Energy, Inc., 60 FERC ¶ 62,131 at 63,342 (1992); see Citizens Utils. Co., 41 FERC ¶ 62,064 at 63,180 (1987). 8 The lower case term “proposed transactions” as used in this Application means both the Proposed Transaction and the Alternative Proposed Transaction. 9 Revised Filing Requirements Under Part 33 of the Commission's Regulations, Order No. 642, FERC Stats. and Regs., Regs. Preambles 1996-2000 ¶ 31,111 at 31,877-78 (2000), order on reh'g, Order No. 642-A (March 23, 2001), 94 FERC ¶ 61,289 (2001) ("Order No. 642").
  • 7. 5 Pursuant to Section 203(a)(4) of the FPA, the Commission will approve a transaction if the Commission finds that it (i) is consistent with the public interest (i.e., it has no adverse effect on competition, rates or regulation) and (ii) will not result in the cross-subsidization of a non- utility associate company or a pledge or encumbrance of utility assets for the benefit of an associate company or, if the transaction will result in any of the foregoing, the Commission determines that it is consistent with the public interest. As demonstrated in this Application, the Proposed Transaction and the Alternative Proposed Transaction are consistent with the public interest and do not raise any cross-subsidization concerns. II. REQUEST FOR CONFIDENTIAL TREATMENT Pursuant to 18 C.F.R. §§ 33.9 and 388.112(b), Applicants request privileged and confidential treatment for Exhibit I, which contains the Term Sheet describing the agreement pursuant to which the Proposed Transaction and the Alternative Proposed Transaction will occur. The information in the Term Sheet is commercially sensitive and therefore not publicly available. Applicants are electronically filing confidential and public versions of this Application and ask that the confidential version be placed in the Commission’s non-public files. Applicants understand that the Commission staff will notify them in advance of any public disclosure of any information contained in Exhibit I. Any questions regarding this request for confidential treatment should be directed to the persons listed in Section III, below. A proposed protective order is included as Attachment 1. III. COMMUNICATIONS Applicants request that the following persons be placed on the official service list for this proceeding:
  • 8. 6 Kenneth G. Hurwitz Jan L. Fox Partner Vice President and General Counsel Haynes and Boone, LLP Regional Energy Holdings, Inc. 1615 L Street, NW, Suite 800 64 North Main Street Washington, DC 20036 Norwalk, CT 06854 Phone: (202) 654-4521 Phone: (203) 517-0130 Email: ken.hurwitz@haynesboone.com Email: JFox@viridian.com Robert Gries, Jr. Gerit F. Hull, Member Public Power, LLC Eckert Seamans Cherin & Mellott, LLC 4830 W. Kennedy Blvd. Suite 1200 Suite 445 1717 Pennsylvania Avenue, NW Tampa, FL 33609 Washington, DC 20006 Phone: (813) 902-9038 Phone: (202) 659-6657 Email: gries@griesinvfund.com Email: ghull@eckertseamans.com IV. DESCRIPTION OF APPLICANTS AND OTHER PARTIES TO THE PROPOSED TRANSACTION A. The Applicants This section sets forth a description of the Applicants. Their pre-transaction ownership structures are set forth in Exhibit C. 1. Regional Energy Holdings, Inc. Regional Energy Holdings, Inc., a Nevada corporation, owns each of the six REH MBR Entities, which, in addition to holding market-based rate authority, function as licensed competitive retail marketers of electricity and, in most cases, natural gas, in eleven states. REH is filing today’s Application on behalf of the REH MBR Entities, to authorize the disposition of the upstream direct and indirect interests in such entities, pursuant to the Proposed Transaction and the Alternative Proposed Transaction. Although each holds market-based rate authority, none of the REH MBR Entities currently makes any wholesale sales of electricity other than real-time balancing transactions in regional transmission organization (“RTO”) markets to offset minor and unavoidable divergences between day-ahead forecasts of retail load and actual retail sales.
  • 9. 7 2. The REH MBR Entities The pertinent facts as to each of the REH MBR Entities are set forth in the bullet points below:10 Viridian Energy, Inc. is a Nevada corporation. Viridian Energy, Inc. has been granted market-based rate authority by the Commission,11 is a member of ISO New England, and is licensed to sell electricity to retail customers in Connecticut and Massachusetts. Viridian Energy, Inc. will be converted into a limited liability company, Viridian Energy, LLC, after the Exchange Transaction. Viridian Energy PA, LLC is a Nevada limited liability company. Viridian Energy PA, LLC has been granted market-based rate authority by the Commission,12 is a member of the PJM Interconnection, L.L.C. (“PJM”), and is licensed to sell electricity and natural gas at retail in Pennsylvania and New Jersey, natural gas at retail in New York, and electricity at retail in Delaware, the District of Columbia, Illinois and Maryland. Viridian Energy NY, LLC is a New York limited liability company. Viridian Energy NY, LLC has been granted market-based rate authority by the Commission,13 is a member of the New York Independent System Operator 10 In addition to these entities, REH owns Viridian Network, LLC, whose sole business activity is to provide retail sales services through independent contractors for the REH MBR Entities. After this application is filed, the REH MBR entities will amend their Electric Quarterly Report submissions for the pertinent periods to disclose the real-time balancing sales, which were previously not included in the reports. 11 Viridian Energy, Inc., Docket No. ER11-3069 (unpublished letter order issued May 25, 2011). 12 Viridian Energy PA, LLC, Docket No. ER10-210 (unpublished letter order issued Jan. 27, 2010). 13 Viridian Energy NY, LLC, Docket No. ER10-2661 (unpublished letter order issued Nov. 8, 2010).
  • 10. 8 (“NYISO”), and is licensed to sell electricity and natural gas at retail in New York. Cincinnati Bell Energy, LLC is a Nevada limited liability company. Cincinnati Bell Energy, LLC’s predecessor was granted market-based rate authority by the Commission.14 Cincinnati Bell Energy, LLC is a member of PJM and is licensed to sell electricity and gas at retail in Ohio. FTR Energy Services, LLC is a Nevada limited liability company. An application for authority to sell electricity at market-based rates is pending,15 as is its membership application in PJM, the Midwest Independent Transmission System Operator (“MISO”), NYISO, and the California Independent System Operator Corporation (“CAISO”). FTR Energy Services LLC is licensed to sell electricity and natural gas at retail in Ohio and New York. License applications are pending to sell electricity and natural gas in California and Pennsylvania and to sell natural gas in Illinois, Michigan, and Indiana Fairpoint Energy, LLC is a Nevada limited liability company. Fairpoint Energy, LLC’s predecessor was granted market-based rate authority by the Commission.16 Fairpoint Energy, LLC is a member of ISO New England, and is licensed to sell electricity at retail in Maine and New Hampshire. 14 Viridian Energy New Jersey LLC, Docket No. ER11-2663 (unpublished letter order issued Feb. 28, 2011). 15 The application in that docket was filed by Viridian Energy NG, LLC. Viridian Energy NG, LLC changed its name to FTR Energy Services LLC, and notified the Commission of that change in a subsequent filing in that proceeding. 16 Viridian Energy MD LLC, Docket No. ER11-4326 (unpublished letter order issued Sept. 12, 2011). Fairpoint Energy, LLC filed a notice of succession with the Commission in Docket No. ER12-1938.
  • 11. 9 3. Public Power, LLC Public Power is a Connecticut limited liability company. The Commission granted Public Power’s predecessor market-based rate authority in 2007.17 Public Power is licensed to sell electricity at retail in Connecticut, the District of Columbia, Illinois, Massachusetts, New York and Ohio, and natural gas at retail in New York. Public Power wholly owns four entities—Public Power, LLC (a Pennsylvania limited liability company), Public Power & Utility of Maryland, LLC, Public Power & Utility of NY, Inc. and Public Power & Utility of New Jersey, LLC)18 —that are licensed to and sell electricity at retail and, in the case of the New Jersey entity, natural gas at retail in the indicated states. The four entities make no wholesale sales, except for real-time balancing sales in the pertinent RTO markets to offset minor and unavoidable divergences between day-ahead forecasts of retail load and actual retail sales.19 Ownership interests in Public Power are held by GF Power I, LLC (95 percent), a management company, and GF Factoring (5 percent) (the “Public Power Members”). GF Power I, LLC (95 percent), in turn, is owned by GF Power LLC (81.3 percent), Gries Investment Fund (14.7 percent) and various individuals. GF Power LLC and Gries Investment Fund are both owned by individuals, none of whom owns 10 percent or more of either entity. 17 Public Power & Utility, Inc., Docket No. ER07-1161 (unpublished letter order issued Sept. 17, 2007). Public Power & Utility, Inc. changed its name and legal form to Public Power, LLC and subsequently notified the Commission of that change. See Notice of Succession of Public Power, LLC, Docket No. ER12-75 (filed Oct. 14, 2011). 18 Public Power & Utility of Maryland, LLC is a Maryland limited liability company, Public Power & Utility of NY, Inc. is a New York corporation, and Public Power & Utility of New Jersey, LLC is a New Jersey limited liability company. 19 As stated above, applications for market-based rate authorizations for these four entities are pending.
  • 12. 10 B. Other Parties to the Proposed Transaction The Proposed Transaction is fully described in Section V below. This section of the Application describes the new entities that will be formed as part of the Proposed Transaction, all of which will be relevant if the IPO and the acquisition of an interest in Crius Energy LLC occur. Crius Energy LLC, unlike the other entities described in this section, will play a role whether or not the IPO closes before the IPO Expiration Date—in other words, it will play a role in either the Proposed Transaction or the Alternative Proposed Transaction. 1. Crius Energy Trust The Trust will be a newly formed, unincorporated, open-ended limited purpose trust established under the laws of the Province of Ontario, Canada. As more fully described below, the Trust will conduct an IPO. Following the IPO, the Trust will wholly own Crius Energy Holdings Inc., and will not carry on any other business activities. 2. Crius Energy Holdings Inc. Crius Energy Holdings Inc. will be a newly formed Canadian holding company incorporated under the laws of the Province of Ontario, Canada. Following the IPO, Crius Energy Holdings Inc. will own all of the shares of Crius Energy Corporation, and will not carry on any other business activities. 3. Crius Energy Corporation Crius Energy Corporation will be incorporated under the laws of the State of Delaware. Its sole function will be to acquire and hold a membership interest in Crius Energy LLC (the “Acquired Interest”), following the closing of the IPO. 4. Crius Energy LLC Crius Energy LLC will be a newly formed Delaware limited liability company.
  • 13. 11 Prior to the IPO, on the closing date of the Exchange Transaction, the Public Power Members and the REH Shareholders will each contribute a portion (approximately 75 percent) of their Public Power Membership Interests and their REH Common Stock, respectively, to Crius Energy LLC, each in exchange for 50 percent of the Crius Energy LLC interests.20 As stated above, immediately after the IPO, Crius Energy Corporation will contribute the net proceeds of the IPO to Crius Energy LLC in exchange for a portion of the ownership interests therein. The Alternative Proposed Transaction will take place in the event the Exchange Transaction is consummated, but the IPO has not occurred by the IPO Expiration Date. Given that one of the purposes of the IPO is to fund the acquisition of the Acquired Interest in Crius Energy LLC by Crius Energy Corporation, in the absence of the IPO, this acquisition will not occur. 5. Crius Energy Administrator Inc. Crius Energy Administrator Inc. (the “Administrator”) will be a newly formed corporation incorporated under the laws of the Province of Ontario, Canada. Pursuant to the terms of a voting agreement to be entered into between the Trustee, the Administrator and the Administrator Shareholder (as defined below), the business of the Administrator will be limited to acting as administrator of the Trust and performing certain ancillary activities. Among its other responsibilities, the Administrator will be entitled to vote the securities owned by the Trust. 20 As stated above, the owners of the direct ownership interests and shares in Public Power and REH will retain a portion (approximately 25 percent) of such ownership interests and shares (the “Retained Interests”)—in other words, they will not contribute the Retained Interests to Crius Energy LLC pursuant to the Exchange Transaction.
  • 14. 12 This prerogative, including the right to vote the voting shares of Crius Energy Holdings Inc., resides in the Administrator’s Board of Directors.21 The sole shareholder of the Administrator will be a newly-formed Canadian corporation (the “Administrator Shareholder”) whose shares will be owned by the Chief Executive Officer of Crius Energy LLC. The Administrator Shareholder will enter into a voting agreement with the Trustee, as agent for the unit holders, and the Administrator, relating to the shares of the Administrator owned by the Administrator Shareholder. Pursuant to the voting agreement, the Administrator Shareholder will, following the IPO, agree to vote its shares in the Administrator as directed by the Trustee, as agent for the unit holders, including in connection with the election, appointment or removal of the directors of the Administrator. As a result, following the IPO, the unit holders will have the power to elect, appoint or remove directors of the Administrator by way of ordinary resolution of the unit holders. Thus, while the Administrator will have legal authority to vote the securities owned by the Trust, the unit holders ultimately can override that right because, acting through the Trustee, they can remove members of the Administrator Board of Directors. V. REQUEST FOR AUTHORIZATION FOR THE DISPOSITION OF JURISDICTIONAL FACILITIES A. Description of the Proposed Transaction This section describes the basic steps that will be taken in connection with the Exchange Transaction, the IPO, the Acquisition, and the Cash Redemption Transaction. The purpose of the 21 Applicants believe the information pertaining to the Administrator in Section VI.A of the Application is relevant to demonstrating that the Proposed Transaction has no effect on wholesale competition. Specifically, the information relates to the determination of control, and therefore, which entities involved in the Proposed Transaction will be deemed to be affiliates of the Applicants.
  • 15. 13 Proposed Transaction is to consolidate the currently separate multistate retail gas and electric marketing businesses of Public Power and REH under the umbrella of a new corporate entity, Crius Energy LLC. In addition, through the IPO, the Proposed Transaction will infuse capital into that entity. Finally, the Applicants’ businesses will be reorganized to create a rational corporate framework for management of the businesses. The structure of the Proposed Transaction is primarily driven by Canadian and U.S. tax considerations and is complex as a result. However, for purposes of the Commission’s analysis, the transaction entails four discrete stages, as described below. The first stage is the Exchange Transaction, the purpose of which is to consolidate the REH and Public Power retail operating entities under the ownership of Crius Energy LLC. After Commission approval is obtained, but before the IPO, REH, Public Power and Crius Energy, LLC will implement an exchange agreement, the elements of which are described in the Term Sheet in Exhibit I. At closing, each of the REH stockholders and the Public Power members will contribute a portion (approximately 75 percent) of their interests in Public Power and the REH MBR Entities to Crius Energy, LLC, each in exchange for 50 percent of the Crius Energy LLC interests. (The REH Stockholders and the Public Power Members will also retain 25 percent of their respective ownership interests in Public Power and the REH MBR Entities (i.e., the Retained Interests)). The exchange, thus, effects a transfer of the ownership interests in the REH MBR Entities and Public Power to Crius Energy LLC, a disposition of interests in jurisdictional assets for which Commission approval is required under FPA Section 203(a)(1)(A). The post- Exchange Transaction ownership structure is shown in Exhibit C. The second and third stages of the Proposed Transaction are the IPO and the Acquisition of the Acquired Interest in Crius Energy LLC. Following the closing of the Exchange
  • 16. 14 Transaction, it is intended that a public offering will be made in Canada of units of the Trust and members of the public will purchase the units. Assuming the IPO is completed, the proceeds of the IPO will be used by the Trust to subscribe for additional shares of Crius Energy Holdings Inc., which in turn will use the net proceeds to subscribe for additional shares and debt of Crius Energy Corporation. Crius Energy Corporation will use the proceeds to acquire the Acquired Interest in Crius Energy LLC. As stated above, in connection with the IPO, Applicants request blanket authorization under Section 203(a)(1) for all dispositions involving any party acquiring, either individually or together with its affiliates, less than a ten percent interest in the Trust through ownership of its units following the IPO. The purchasers of any units in the Trust will be members of the general public in Canada and qualified institutional buyers in the U.S. pursuant to Rule 144A under the Securities Act of 1933, as amended. Under the Ontario Securities Commission Rule 62-504, disclosure of the purchase of any block of units exceeding 10 percent is required.22 If blocks of 10 percent or more are acquired, the Applicants will make a filing to disclose this information to the Commission, and will seek FPA Section 203(a)(1) authority for the acquisition of such blocks if required. The fourth stage of the Proposed Transaction is the Cash Redemption Transaction. In this stage, cash from the IPO, either in the form of loans or cash, is passed down to REH, which will acquire the Retained Interest of the REH owners in REH, and to Crius Energy LLC, which 22 Under these Canadian securities regulations, any person who, together with persons with whom they act jointly and in concert, beneficially owns 10 percent or more of the units in the Trust, or has the power to control or exercise any votes attached to such units, will be required to issue and file a public news release, as well as an “early warning report” with the Canadian securities regulators, disclosing such ownership or control promptly after exceeding the 10 percent threshold.
  • 17. 15 will acquire the Retained Interest held by the Public Power members.23 After the Cash Redemption Transaction, Crius Energy LLC will own 100 percent of the common shares of REH, and 100 percent of the ownership interests in Public Power, representing an increase from pre-redemption ownership levels of 75 percent in each of REH and Public Power, respectively. The Retained Interests in the owners of REH and Public Power will be eliminated. Applicants request authorization under FPA Section 203(a)(1)(A) for the Cash Redemption Transaction if and to the extent it results in a change in indirect control over the jurisdictional assets held by Public Power and REH, respectively.24 B. Description of the Alternative Proposed Transaction The Alternative Proposed Transaction is intended as a substitute for the Proposed Transaction if the IPO does not occur by the IPO Expiration Date. It would achieve the same purposes as the Proposed Transaction, with the exception of the capital raising aspect and the use of such capital to purchase the owners’ Retained Interests in cash. As described above, the Alternative Proposed Transaction will be pursued, after consummation of the Exchange Transaction, if the IPO does not occur by the IPO Expiration Date. In that case, stages two and three, as described above, will not occur. In addition, the Retained Interests (approximately 25 percent) in REH and Public Power, respectively, will be exchanged for additional ownership interests in Crius Energy LLC, which will be issued to the 23 It is theoretically possible that the IPO will not raise sufficient cash to purchase all of the Retained Interests in REH and Public Power. In that event, the redemption will be made partially for cash and partially through the issuance of additional Crius Energy LLC interests. 24 After stage four, or after the Alternative Proposed Transaction is completed, the ownership interests in Fairpoint Energy, LLC, FTR Energy Services, LLC and Cincinnati Bell Energy, LLC might be transferred from REH to Crius Energy LLC. Applicants believe that this transaction would be authorized as an internal corporate reorganization under the blanket authorization set forth in section 33.1(c)(6) of the Commission’s regulations. In the alternative, out of an abundance of caution, Applicants seek authorization for the transaction under FPA Section 203(a)(1).
  • 18. 16 REH and Public Power owners (“Exchange Redemption”). The stage four Cash Redemption will not occur. The net effect of the Exchange Redemption will be to eliminate the Retained Interests of the REH owners and the Public Power owners and convert them into indirect owners of such entities (and their respective jurisdictional assets) through the transfer to them of ownership of ownership interests in Crius Energy LLC. The percentage shares of the pre-existing owners of Crius Energy LLC will not be changed. For this reason, it does not appear that the Exchange Redemption will result in a change of control of the Public Power and REH jurisdictional assets. Hence, Applicants do not believe that authorization for the Exchange Redemption is necessary. Nevertheless, out of an abundance of caution, we seek such authorization.25 VI. THE TRANSACTIONS ARE CONSISTENT WITH THE PUBLIC INTEREST Under Section 203 of the FPA, the Commission will approve a transaction if the Commission finds that the transaction “will be consistent with the public interest.”26 In reviewing transactions under Section 203, the Commission applies a three-part test set forth in its Merger Policy Statement, as codified in Section 2.26 of the Commission’s regulations.27 Under this test, the Commission examines the effect of the proposed transaction on competition, rates and regulation. In addition, Section 203(a)(4) provides that a proposed transaction may not “result in cross-subsidization of a non-utility associate company or the pledge or encumbrance of 25 As stated supra, for the avoidance of doubt, Applicants’ are not seeking a declaration or other determination by the Commission on the issue of whether the Commission’s approval is required for the proposed Exchange Redemption. See, e.g., Ocean State Power, 47 FERC ¶ 61,321 (1989) (“we are not making any determination whether the transfer . . . constitutes a disposition of jurisdictional facilities under section 203.”) 26 16 U.S.C. § 824b(a)(4). 27 18 C.F.R. § 2.26 (2011).
  • 19. 17 utility assets for the benefit of an associate company, unless the Commission determines that the cross-subsidization, pledge or encumbrance will be consistent with the public interest.”28 As described below, the disposition of facilities resulting from the proposed transactions meets these statutory standards and should be authorized by the Commission. A. The Transactions Will Have No Adverse Effect on Competition 1. Affiliates of the Applicants As a threshold matter, to evaluate the impact of the proposed transactions on competition (which will be negligible, if any), one must identify the affiliates of the Applicants and discuss their ownership or control of any energy-related businesses. The affiliates fall into three basic categories: (i) the existing affiliates of REH, (ii) the existing affiliates of Public Power, and (iii) the affiliates that will be created in the context of the proposed transactions. Turning to the first category, and referring to the Pre-Transaction Ownership Structure of REH, shown in Exhibit C, we note that any person or entity shown in Exhibit C that owns 10 percent or more of the ownership interests in an entity constitutes an affiliate under the Commission’s definition of that term.29 None of such “10 percent” individuals or entities shown in the exhibit own or control any energy-related businesses, other than the retail electricity and natural gas marketer businesses owned by REH and the MBR Entities, which make no wholesale sales other than real-time balancing transactions in real-time markets. Second, turning to Public 28 16 U.S.C. § 824b(a)(4). 29 While the definition is set forth in the market-based rate subpart of the Commission’s regulations, Applicants believe the definition is pertinent in the context of this Application. See 18 C.F.R. § 35.36(a)(9). In one instance, such an ownership interest is deemed “passive” because it is superseded by an actual control arrangement. In that vein, it should be noted that control of JMEG Holdings LLC is exclusively vested in Johny Malohn, who owns a 51 percent ownership interest in the company and holds the position of Manager. The ownership interests of the remaining owners are passive interests. See May 29, 2012 Letter of Viridian Energy NG, LLC in Docket No. ER12-1769.
  • 20. 18 Power, LLC and Exhibit C, the same is true of any “10 percent” individuals or entities—none of them owns 10 percent or more or otherwise controls any energy-related businesses, other than the Public Power MBR Entities’ retail and wholesale sales activities. Finally, turning to the remaining entities described in Section IV.B of the Application,30 and except for Crius Energy LLC,31 100 percent of each entity’s ownership interests will be owned and controlled by its direct parent, up to the level of Crius Energy Trust, which will be owned by members of the general public in Canada. None of these entities or their parent companies will have any interests in energy-related businesses, other than the retail and de minimis wholesale businesses discussed above. 2. The Collective Impact of Applicants and their Affiliates on Competition will be Negligible. The proposed transactions will not have an adverse effect on competition in the markets in which the REH MBR Entities or the Public Power MBR Entities operate. Given that the REH MBR Entities and the Public Power MBR Entities make no wholesale sales of electricity other than real-time balancing transactions in real-time markets, the proposed transactions will not have any impact on the wholesale electricity product market in any geographic area. Moreover, none of the foregoing entities own or control, through power purchase agreements or otherwise, the output of any generating facilities. Nor does any one of them own transmission facilities. 30 The Administrator arguably (out of an abundance of caution) might be considered an affiliate of the Applicants under section 35.36(a)(9)(iii) of the Commission’s regulations. That provision gives the Commission discretion to consider as affiliates persons who “stand in such relation to the specified company that there is liable to be an absence of arm’s length bargaining between them.” Although, under the foregoing provision, the Administrator might be considered an affiliate of the Applicants, the Administrator Shareholder and the CEO of Crius Energy LLC should not be considered affiliates of the Applicants, because their interests are rendered passive by the authority of the unit holders acting through the Trustee. See Section IV.B.(5), supra. 31 To the extent the Public Power Members and the Regional Energy Stockholders retain ownership interests in Crius Energy LLC, their respective affiliates are described above.
  • 21. 19 Section 33.3(a)(2)(i) of the Commission’s regulations states that a horizontal competitive screen analysis is not required if the applicant “[a]ffirmatively demonstrates that the merging entities do not currently conduct business in the same geographic markets or that the extent of the business transactions in the same geographic markets is de minimis.”32 The analysis focuses on business combinations that involve consolidating control over electric generating facilities, the output of which is sold in jurisdictional wholesale markets. Neither Applicants nor Public Power, LLC own or control any electric generating facilities. Accordingly, the proposed transactions do not raise any horizontal market power concerns. To the extent the proposed transactions will have any impact on competition, it will be in retail markets in various states. The Commission stated in Order No. 642 that it will “consider retail market issues when circumstances warrant. “However,” the Commission stated, “it is our continuing position that our merger review should not, as a matter of course review a merger’s impact on retail markets in that state when a state is clearly able to do so.”33 Here, the retail competition issue is insignificant. There are nine states in which both a Public Power MBR entity and a Viridian MBR entity are licensed to sell electricity at retail: Connecticut, the District of Columbia, Illinois, Maryland, Massachusetts, New Jersey, New York, Ohio and Pennsylvania. Based on 2011 retail sales data, the combined retail sales of Public Power and Viridian in every one of these states was less than one percent, with the exception of Connecticut, where the combined share was four percent, and New Jersey, where the combined share was 1.5 percent. Based on these data, it is 32 18 C.F.R. § 33.3(a)(2)(i). See also Liberty Elec. Power, LLC, 110 FERC ¶ 62,152 (2005) (approving transfer of jurisdictional facilities without requiring horizontal competitive screen analysis where parties held only de minimis interests in relevant markets). 33 Order No. 642 at 31,919.
  • 22. 20 difficult to imagine that a state commission would be concerned with the impact of the proposed transactions on retail competition. In addition, the foregoing states require, either before or after the proposed transactions are consummated, that the holder of an retail electricity license notify or submit information concerning the transaction in accordance with their respective rules. If these state commissions wish to address the proposed transactions’ impact on retail competition, if any, it is unlikely that they would be precluded from doing so. Moreover, any state commission that is concerned about adverse effects, if any, on retail competition would be free to intervene in this docket. Section 33.4(a)(2)(i) of the Commission’s regulations states that a vertical competitive analysis is not required if the applicant can affirmatively demonstrate that “[t]he merging entities currently do not provide inputs to electricity products (i.e., upstream relevant products) and electricity products (i.e., downstream relevant products) in the same geographic markets or that the extent of the business transactions in the same geographic markets is de minimis.”34 The Proposed Merger does not raise any vertical market power concerns. Applicants do not own or control transmission facilities. Further, Applicants do not own or control any inputs to generation. Applicants have not sought to erect barriers to entry in any market, nor will they. Applicants do not own or control any intrastate natural gas transportation, intrastate natural gas storage or distribution facilities, or physical coal supply sources or coal transportation, or sites for development of electric generating facilities. Because the proposed transactions will have no adverse effect on wholesale competition, and because consideration of retail competition issues by the Commission is unwarranted, Applicants request that the Commission authorize the disposition of jurisdictional facilities 34 18 C.F.R. § 33.4(a)(2)(i).
  • 23. 21 resulting from the proposed transactions without requiring the filing of a horizontal or a vertical competitive screen analysis. B. The Transactions Will Have No Adverse Effect on Rates In assessing the effect that a proposed transaction could have on rates, the Commission’s primary concern is “the protection of wholesale ratepayers and transmission customers.”35 Simply stated, the proposed transactions will not have an adverse effect on rates because the Applicants have no wholesale ratepayers (other than RTOs in real-time balancing markets) or transmission customers. The proposed transactions will not affect the rates of any customer. Applicants sell electricity in competitive deregulated retail markets under the oversight of the state commissions and have no captive customers. Applicants buy electricity and sell de minimis volumes of electricity in the competitive deregulated wholesale markets under the Commission’s oversight. Applicants do not have any captive wholesale or retail customers. None of these arrangements will change as a result of the proposed transactions. None of the Applicants or their affiliates own any transmission facilities. Accordingly, the proposed transactions will have no affect on rates paid by any power customers or transmission customers. C. The Transactions Will Have No Adverse Effect on Regulation The proposed transactions will not affect the manner or extent to which the Commission, any state, or any other federal agency may regulate Applicants. Upon completion of the proposed transactions, the Applicants will continue to be subject to the jurisdiction of this Commission and the pertinent state utility commissions to the same extent as before the proposed 35 New England Power Co., 82 FERC ¶ 61,179 at 61,659 order on reh’g, 83 FERC ¶ 61,275 (1998). See also Merger Policy Statement, FERC Stats. & Regs. ¶ 31,044 at 30,123 (concern is to protect ratepayers from rate increases because of a merger).
  • 24. 22 transactions. As a consequence, the proposed transactions will have no adverse effect on regulation. D. The Transactions Will Not Result in Any Cross-Subsidization of a Non- Utility Company or Any Pledge or Encumbrance of Utility Assets for the Benefit of an Associate Company FPA Section 203(a)(4) provides that the Commission shall approve the proposed disposition if it finds that the proposed jurisdictional transaction will not result in cross- subsidization of a non-utility associate company or pledge or encumbrance of utility assets for the benefit of an associate company, unless the Commission finds that such cross-subsidization, pledge or encumbrance is consistent with the public interest.36 The Commission has stated that “the concern about cross-subsidization [in Section 203(a)(4)] is principally a concern over the effect of a transaction on rates,”37 and that the cross-subsidization requirements in Order No. 669 “apply where a traditional public utility has captive customers (defined as wholesale or retail electric energy customers served under cost-based regulation) and also where the public utility owns or provides transmission service over Commission-jurisdictional transmission facilities.”38 The Commission elaborated that “a public utility selling power only pursuant to market-based regulation will not be regarded as a ‘traditional public utility with captive customers’ and hence, customers served at market-based rates will not be considered ‘captive customers.’”39 As noted above, the proposed transactions will not have any adverse effect on rates because all wholesale (if any) and retail sales of electricity by the Applicants will continue to be made at market-based 36 See 16 U.S.C. § 824b(a)(4) (2000). 37 Transactions Subject to FPA Section 203, Order No. 669, FERC Stats. & Regs. ¶ 31,200 at P 167 (2005), order on reh’g, Order No. 669-A, FERC Stats. & Regs. ¶ 31,214, order on reh’g, Order No. 669-B, FERC Stats. & Regs. ¶ 31,225 (2006). 38 Order 669-A at P 147. 39 Id.
  • 25. 23 rates authorized by the Commission or in accordance with state utility commission rules. Accordingly, no detailed examination of cross-subsidization issues is required in connection with the proposed transactions. The proposed transactions are within the scope of the “safe harbor” for transactions in which “no franchised public utility with captive customers is involved in the transaction,” and thus raise no issue with respect to cross-subsidization. Furthermore, as explained in Exhibit M, based on facts and circumstances known to Applicants or those that are reasonably foreseeable, and pursuant to Order Nos. 669 and 669-A, Applicants hereby verify, with respect to them and each of their affiliates, that the proposed transactions will not result, at the time of the proposed transactions or in the future, in: (i) any transfer of facilities between a traditional utility associate company that has captive customers or that owns or provides transmission service over jurisdictional facilities, and an associate company; (ii) any new issuance of securities by a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities for the benefit of an associate company; (iii) any new pledge or encumbrance of assets of a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, for the benefit of an associate company; or (iv) any new affiliate contract between a non-utility associate company and a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, other than non-power goods and services agreements subject to review under Sections 205 and 206 of the FPA.40 Applicants verify that the proposed 40 See Order No. 669 at P 169 (stating that such verifications may be accepted in lieu of any other explanation with respect to cross-subsidization and encumbrance concerns).
  • 26. 24 transactions do not involve utility assets, and therefore there are no existing pledges or encumbrances that must be disclosed under 18 C.F.R. § 33.2(j)(l)(i). VI. INFORMATION REQUIRED BY PART 33 OF THE COMMISSION’S REGULATIONS Applicants are including with this Application the Exhibits and supporting information required by Part 33 of the Commission’s regulations.41 Consistent with Commission precedent and as described below, Applicants request waiver of the Part 33 regulations to the extent that such regulations request information that is not necessary to ensure that the proposed transactions meet the statutory requirements of Section 203 of the FPA.42 A. Section 33.2(a): Names and addresses of the Applicants’ principal business offices The exact legal names and addresses of the Applicants are:43 Public Power, LLC 39 Old Ridgebury Rd. Suite 14 Danbury, CT 06810 Public Power & Utility of Maryland, LLC 39 Old Ridgebury Rd. Suite 14 Danbury, CT 06810 Public Power & Utility of NY, Inc. 39 Old Ridgebury Rd. Suite 14 Danbury, CT 06810 41 18 C.F.R. §§ 33.2-33.4 (2011). 42 See, e.g., MACH Gen, LLC, 113 FERC ¶ 61,138 (2005); Boston Generating, LLC, 113 FERC ¶ 61,109 (2005); La Paloma Holding Co., LLC, 112 FERC ¶ 61,052 (2005); Lake Road Holding Co., LLC, 112 FERC ¶ 61,051 (2005). 43 The address of Crius Energy LLC will be 1055 Washington Boulevard, Suite 700, Stamford, CT 06901.
  • 27. 25 Public Power & Utility of New Jersey, LLC 39 Old Ridgebury Rd. Suite 14 Danbury, CT 06810 Public Power, LLC (Pennsylvania) 39 Old Ridgebury Rd. Suite 14 Danbury, CT 06810 Regional Energy Holdings Inc. 64 North Main Street Norwalk, CT 06854 Viridian Energy, Inc. 64 North Main Street Norwalk, CT 06854 Viridian Energy PA, LLC 64 North Main Street Norwalk, CT 06854 Viridian Energy NY, LLC 64 North Main Street Norwalk, CT 06854 Cincinnati Bell Energy, LLC 64 North Main Street Norwalk, CT 06854 FTR Energy Services, LLC 64 North Main Street Norwalk, CT 06854 Fairpoint Energy, LLC 64 North Main Street Norwalk, CT 06854 B. Section 33.2(b): Names, addresses, phone numbers, fax numbers, and e-mail addresses of persons authorized to receive notice and communications regarding this Application Applicants request that the persons listed in Section III, above, be placed on the official service list for this proceeding.
  • 28. 26 C. Section 33.2(c): Description of the Applicants, including: 1. All business activities of the Applicants, including authorizations by charter or regulatory approval Section IV of this Application sets forth a general description of the Applicants and their business activities. Accordingly, Applicants request waiver of the requirement to file Exhibit A. 2. A list of all energy subsidiaries and energy affiliates, percentage ownership interest in such subsidiaries and affiliates, and a description of the primary business in which each is engaged. Information pertaining to Applicants is provided in Section IV of this Application and in the attached Exhibit B. 3. Organizational charts depicting the Applicants’ current and proposed post-transaction corporate structures. Organizational charts illustrating the current and post transaction ownership structures of Applicants are attached as Exhibit C. 4. Description of all joint ventures, strategic alliances, tolling arrangements or other business arrangements, including transfers of operational control of transmission facilities to Commission approved Regional Transmission Organizations, both current, and planned to occur within a year from the date of filing, to which the Applicants or their parent companies, energy subsidiaries, and energy affiliates is a party, unless the Applicants demonstrate that the proposed transaction does not affect any of its business interests. Applicants request waiver of the requirement to file Exhibit D, to the extent otherwise deemed necessary, as the proposed transactions will not affect any business interests, except as described herein. 5. Identity of all common officers or directors of parties to the proposed transaction. This information is provided in Exhibit E. 6. Description and locations of wholesale power sales customers and unbundled transmission services customers served by the Applicants or parent companies, subsidiaries, affiliates and associate companies.
  • 29. 27 Applicants have no existing wholesale power sales customers, other than RTOs in real- time balancing markets, and provide no unbundled transmission services. Accordingly, to the extent otherwise deemed necessary, Applicants request waiver of the requirement to file Exhibit F. D. Section 33.2(d): Description of the jurisdictional facilities owned, operated, or controlled by the Applicants The Applicants’ jurisdictional facilities are their market-based rate authorizations and associated books and records. Accordingly, to the extent otherwise deemed necessary, Applicants request waiver of the requirement to file Exhibit G. E. Section 33.2(e): A narrative description of the proposed transaction for which Commission authorization is requested This information is set forth in Section V, above, and the Term Sheet included in confidential Exhibit I. Therefore, Applicants request waiver of the requirement to file Exhibit H. F. Section 33.2(f): Contracts related to the Transaction A Term Sheet included in confidential Exhibit I describes the proposed transactions. The proposed transactions will not deviate in any material manner from the Term Sheet included in Exhibit I. Pursuant to Section 388.112 of the Commission’s regulations, as discussed in Section II, above, Applicants request privileged and confidential treatment of Exhibit I. Applicants also request waiver of the requirements of Section 33.2(f) of the Commission’s regulations to the extent that they would require any other documents to be submitted in confidential Exhibit I. G. Section 33.2(g): Statement explaining the facts relied upon to demonstrate that the Transaction is consistent with the public interest The facts relied upon to show that the disposition of facilities resulting from the proposed transactions is consistent with the public interest are set forth in Section VI of this Application. Accordingly, Applicants request waiver of the requirement to file Exhibit J.
  • 30. 28 H. Section 33.2(h): Physical property A map would not provide the Commission with information relevant to the proposed transactions. Therefore, Applicants request waiver of the requirement to file Exhibit K. I. Section 33.2(i): Status of actions before other regulatory bodies No approvals are needed from any other regulatory bodies. Therefore, Applicants request waiver of the requirement to file Exhibit L. J. Section 33.2(j): Cross-subsidization, pledge, or encumbrance Applicants’ explanation as to how the proposed transactions will not result in cross- subsidization of a non-utility associate company or pledge or encumbrance of utility assets for the benefit of an associate company is found in Section VI.D and Exhibit M. VII. PROPOSED ACCOUNTING ENTRIES Applicants are not including accounting entries showing the effect of the proposed transactions on account balances because Applicants are not required to maintain their books and records in accordance with the Commission’s Uniform System of Accounts. VIII. VERIFICATION An authorized representative of each of the Applicants has provided the verification required under § 33.7 of the Commission’s regulations44 in Attachment 2. IX. CONCLUSION For the reasons stated herein, Applicants request that the Commission issue an order no later than August 20, 2012 authorizing the proposed transactions and granting waivers of its Part 44 18 C.F.R. § 33.7 (2011).
  • 31. 29 33 filing requirements to the extent that the information required by Part 33 is not necessary to determine that the proposed transactions meet the statutory requirements of FPA Section 203. Respectfully submitted, /s/ Kenneth G. Hurwitz /s/ Gerit F. Hull Kenneth G. Hurwitz, Partner Gerit F. Hull, Member Haynes and Boone, LLP Eckert Seamans Cherin & Mellott, LLC 1615 L Street, NW, Suite 800 Suite 1200 Washington, DC 20036 1717 Pennsylvania Avenue, N.W. (202) 654-4521 Washington, DC 20006 ken.hurwitz@haynesboone.com (202) 659-6657 Counsel for Regional Energy Holdings, Inc. ghull@eckertseamans.com and its subsidiaries Counsel for Public Power, LLC and its subsidiaries July 20, 2012
  • 32. EXHIBIT B RELEVANT ENERGY-RELATED SUBSIDIARIES AND AFFILIATES OF REGIONAL ENERGY HOLDINGS, INC. AND PUBLIC POWER, LLC Other than the REH MBR Entities, the Public Power MBR Entities, and Viridian Network, LLC (described in Section IV.A.2, above), REH and Public Power have no energy- related subsidiaries.
  • 34. C-1 Notes: Market-based rate applications are pending at the Commission for Public Power, LLC (Pennsylvania), Public Power & Utility of NY, Inc., Public Power & Utility of Maryland, LLC, and Public Power & Utility of New Jersey, LLC. In each of the boxes above labeled “Individuals,” no person or entity owns 10 percent or more of the voting ownership interests in the relevant subsidiary.
  • 35. C-2 Note: Control of the business and affairs of JMEG Holdings, LLC is exclusively vested in an individual, Johny Malohn, who is Manager of and owns a 51 percent ownership interest in the company. The remaining owners’ respective ownership interests in JMEG Holdings are merely passive. In the box above labeled “Individuals,” no person or entity owns 10 percent or more of the voting ownership interests in REH.
  • 36. C-3 Notes: In the box above labeled “Public Power Members,” GF Power I, LLC will own 23.75 percent of Public Power, LLC and 47.5 percent of Crius Energy LLC, but otherwise no person or entity will own 10 percent or more of the voting ownership interests in Public Power, LLC or Crius Energy LLC. The ownership of GF Power I, LLC will be the same as shown on the chart on page C-1. In the box above labeled “Regional Energy Shareholders,” no person or entity owns 10 percent or more of the voting shares of Regional Energy Holdings, Inc. or Crius Energy LLC.
  • 37. C-4 Notes: In the box above labeled “Public Power Members,” GF Power I, LLC will own 23.75 percent of Crius Energy LLC, but otherwise no person or entity no person or entity will own 10 percent or more of the voting ownership interests in Crius Energy LLC. The ownership of GF Power I, LLC will be the same as shown on the chart on page C-1. In the box above labeled “Regional Energy Shareholders,” no person or entity will own 10 percent or more of the voting ownership interests in Crius Energy LLC.
  • 38. C-5 Notes: In the box above labeled “Public Power Members,” GF Power I, LLC will own 47.5 percent of Crius Energy LLC, but otherwise no person or entity will own 10 percent or more of the voting ownership interests in Crius Energy LLC. The ownership of GF Power I, LLC will be the same as shown on the chart on page C-1. In the box above labeled “Regional Energy Shareholders,” no person or entity will own 10 percent or more of the voting ownership interests in Crius Energy LLC.
  • 39. EXHIBIT E COMMON OFFICERS AND DIRECTORS Regional Energy Holdings, Inc. and Public Power, LLC are the parties to the proposed transaction. There are no common officers or directors among (i) REH and any of its current affiliates and subsidiaries, and (ii) Public Power and any of its current affiliates and subsidiaries.
  • 40. EXHIBIT I TRANSACTION AGREEMENTS PUBLIC VERSION ************************************************** PRIVILEGED, PROTECTED, CONFIDENTIAL INFORMATION HAS BEEN REMOVED **************************************************
  • 41. EXHIBIT M STATEMENT REGARDING CROSS-SUBSIDIZATION As demonstrated in Section V.D of the Application and incorporated by reference into this Exhibit M, the proposed transactions raise no issues concerning cross-subsidization. The Applicants verify with respect to themselves, based on facts and circumstances known to them or that are reasonably foreseeable, that the proposed transactions will not result in, at the time of the proposed transactions or in the future: (1) any transfers of facilities between a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, and an associate company; (2) any new issuances of securities by a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, for the benefit of an associate company; (3) any new pledge or encumbrance of assets of a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, for the benefit of an associate company; or (4) any new affiliate contracts between a non-utility associate company and a traditional public utility associate company that has captive customers or that own or provide transmission service over jurisdictional transmission facilities, other than non-power goods and services agreements subject to review under Sections 205 and 206 of the Federal Power Act.
  • 43. UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Public Power, LLC ) Docket No. EC12-___-000 Regional Energy Holdings, Inc. ) PROTECTIVE ORDER (Issued ____________, 20__) 1. This Protective Order shall govern the use of all Protected Materials produced by, or on behalf of, any Participant. Notwithstanding any order terminating this proceeding, this Protective Order shall remain in effect until specifically modified or terminated by the Presiding Administrative Law Judge (“Presiding Judge”) or the Federal Energy Regulatory Commission (“Commission”). 2. This Protective Order applies to the following two categories of materials: (A) A Participant may designate as protected those materials which customarily are treated by that Participant as sensitive or proprietary, which are not available to the public, and which, if disclosed freely, would subject that Participant or its customers to risk of competitive disadvantage or other business injury; and (B) A Participant shall designate as protected those materials which contain critical energy infrastructure information, as defined in 18 C.F.R. § 388.113(c)(1) (“Critical Energy Infrastructure Information”). 3. Definitions -- For purposes of this Order: (a) The term “Participant” shall mean Public Power, LLC (“Public Power”) and Regional Energy Holdings, Inc. (the “Applicants”), any person or entity contemplating intervening in this proceeding to whom Protected Materials are provided by the Applicant or its affiliates prior to such intervention, and a Participant as defined in 18 C.F.R. § 385.102(b). (b)(1) The term “Protected Materials” means (A) materials (including depositions) provided by a Participant as part of any application or other pleading filed with the Commission or in response to discovery requests, and designated by such Participant as protected; (B) any information contained in or obtained from such designated materials; (C) any other materials which are made subject to this Protective Order by the Presiding Judge, by the Commission, by any court or other body having appropriate authority, or by agreement of the Participants; (D) notes of Protected Materials; and (E) copies of Protected Materials. The Participant producing the Protected Materials shall physically mark them on each page as “CONTAINS PRIVILEGED INFORMATION––DO NOT RELEASE” or “PROTECTED MATERIALS” or with words of similar import as long as the term “Protected Materials” is included in that designation to indicate that they are Protected Materials. If the Protected Materials contain Critical Energy Infrastructure Information, the Participant producing such information shall additionally mark on each page containing such information the words “Contains Critical Energy Infrastructure Information––Do Not Release.”
  • 44. 2 (2) The term “Notes of Protected Materials” means memoranda, handwritten notes, or any other form of information (including electronic form) which copies or discloses materials described in Paragraphs 3(b)(1) or 5. Notes of Protected Materials are subject to the same restrictions provided in this order for Protected Materials except as specifically provided in this order. (3) Protected Materials shall not include (A) any information or document contained in the files of the Commission, or any other federal or state agency, or any federal or state court, unless the information or document has been determined to be protected by such agency or court, or (B) information that is public knowledge, or which becomes public knowledge, other than through disclosure in violation of this Protective Order, or (C) any information or document labeled as “Non-Internet Public” by a Participant, in accordance with Paragraph 30 of FERC Order No. 630, FERC Stats. & Regs. ¶ 31,140. Protected Materials do include any information or document contained in the files of the Commission that has been designated as Critical Energy Infrastructure Information. (c) The term “Non-Disclosure Certificate” shall mean the certificate annexed hereto by which Participants who have been granted access to Protected Materials shall certify their understanding that such access to Protected Materials is provided pursuant to the terms and restrictions of this Protective Order, and that such Participants have read the Protective Order and agree to be bound by it. All Non- Disclosure Certificates shall be served on all parties on the official service list maintained by the Secretary in this proceeding. (d) The term “Reviewing Representative” shall mean a person who has signed a Non- Disclosure Certificate and who is: (1) Commission Litigation Staff; (2) an attorney who has made an appearance in this proceeding for a Participant; (3) an attorney, paralegal, or other employee associated for purposes of this case with an attorney described in Paragraph (2); (4) an expert or an employee of an expert retained by a Participant for the purpose of advising, preparing for or testifying in this proceeding; (5) a person designated as a Reviewing Representative by order of the Presiding Judge or the Commission; or (6) an employee or other representative of Participants appearing in this proceeding with significant responsibility for this docket. 4. Protected Materials shall be made available under the terms of this Protective Order only to Participants and only through their Reviewing Representatives as provided in Paragraphs 7-9.
  • 45. 3 5. Protected Materials shall remain available to Participants until the later of the date that an order terminating this proceeding becomes no longer subject to judicial review, or the date that any other Commission proceeding relating to the Protected Material is concluded and no longer subject to judicial review. If requested to do so in writing after that date, the Participants shall, within fifteen days of such request, return the Protected Materials (excluding Notes of Protected Materials) to the Participant that produced them, or shall destroy the materials, except that copies of filings, official transcripts and exhibits in this proceeding that contain Protected Materials, and Notes of Protected Material may be retained, if they are maintained in accordance with Paragraph 6, below. Within such time period each Participant, if requested to do so, shall also submit to the producing Participant an affidavit stating that, to the best of its knowledge, all Protected Materials and all Notes of Protected Materials have been returned or have been destroyed or will be maintained in accordance with Paragraph 6. To the extent Protected Materials are not returned or destroyed, they shall remain subject to the Protective Order. 6. All Protected Materials shall be maintained by the Participant in a secure place. Access to those materials shall be limited to those Reviewing Representatives specifically authorized pursuant to Paragraphs 8-9. The Secretary shall place any Protected Materials filed with the Commission in a non-public file. By placing such documents in a nonpublic file, the Commission is not making a determination of any claim of privilege. The Commission retains the right to make determinations regarding any claim of privilege and the discretion to release information necessary to carry out its jurisdictional responsibilities. For documents submitted to Commission Litigation Staff (“Staff”), Staff shall follow the notification procedures of 18 C.F.R. § 388.112 before making public any Protected Materials. 7. Protected Materials shall be treated as confidential by each Participant and by the Reviewing Representative in accordance with the certificate executed pursuant to Paragraph 9. Protected Materials shall not be used except as necessary for the conduct of this proceeding, nor shall they be disclosed in any manner to any person except a Reviewing Representative who is engaged in the conduct of this proceeding and who needs to know the information in order to carry out that person’s responsibilities in this proceeding. Reviewing Representatives may make copies of Protected Materials, but such copies become Protected Materials. Reviewing Representatives may make notes of Protected Materials, which shall be treated as Notes of Protected Materials if they disclose the contents of Protected Materials. 8. (a) If a Reviewing Representative’s scope of employment includes the marketing of energy, the direct supervision of any employee or employees whose duties include the marketing of energy, the provision of consulting services to any person whose duties include the marketing of energy, or the direct supervision of any employee or employees whose duties include the marketing of energy, such Reviewing Representative may not use information contained in any Protected Materials obtained through this proceeding to give any Participant or any competitor of any Participant a commercial advantage. (b) In the event that a Participant wishes to designate as a Reviewing Representative a person not described in Paragraph 3 (d) above, the Participant shall seek agreement from the Participant providing the Protected Materials. If an agreement is reached that person shall be a Reviewing
  • 46. 4 Representative pursuant to Paragraphs 3(d) above with respect to those materials. If no agreement is reached, the Participant shall submit the disputed designation to the Presiding Judge for resolution. 9. (a) A Reviewing Representative shall not be permitted to inspect, participate in discussions regarding, or otherwise be permitted access to Protected Materials pursuant to this Protective Order unless that Reviewing Representative has first executed a Non- Disclosure Certificate provided that if an attorney qualified as a Reviewing Representative has executed such a certificate, the paralegals, secretarial and clerical personnel under the attorney’s instruction, supervision or control need not do so. A copy of each Non- Disclosure Certificate shall be provided to counsel for the Participant asserting confidentiality prior to disclosure of any Protected Material to that Reviewing Representative. (b) Attorneys qualified as Reviewing Representatives are responsible for ensuring that persons under their supervision or control comply with this order. 10. Any Reviewing Representative may disclose Protected Materials to any other Reviewing Representative as long as the disclosing Reviewing Representative and the receiving Reviewing Representative both have executed a Non-Disclosure Certificate. In the event that any Reviewing Representative to whom the Protected Materials are disclosed ceases to be engaged in these proceedings, or is employed or retained for a position whose occupant is not qualified to be a Reviewing Representative under Paragraph 3(d), access to Protected Materials by that person shall be terminated. Even if no longer engaged in this proceeding, every person who has executed a Non-Disclosure Certificate shall continue to be bound by the provisions of this Protective Order and the certification. 11. Subject to Paragraph 17, the Presiding Administrative Law Judge or the Commission shall resolve any disputes arising under this Protective Order. Prior to presenting any dispute under this Protective Order to the Presiding Administrative Law Judge or the Commission, the parties to the dispute shall use their best efforts to resolve it. Any participant that contests the designation of materials as protected shall notify the party that provided the protected materials by specifying in writing the materials whose designation is contested. This Protective Order shall automatically cease to apply to such materials five (5) business days after the notification is made unless the designator, within said 5-day period, files a motion with the Presiding Administrative Law Judge or the Commission, with supporting affidavits, demonstrating that the materials should continue to be protected. In any challenge to the designation of materials as protected, the burden of proof shall be on the participant seeking protection. If the Presiding Administrative Law Judge or the Commission finds that the materials at issue are not entitled to protection, the procedures of Paragraph 17 shall apply. The procedures described above shall not apply to protected materials designated by a Participant as Critical Energy Infrastructure Information. Materials so designated shall remain protected and subject to the provisions of this Protective Order, unless a Participant requests and obtains a determination from the Commission’s Critical Energy Infrastructure Information Coordinator that such materials need not remain protected.
  • 47. 5 12. All copies of all documents reflecting Protected Materials, including the portion of the hearing testimony, exhibits, transcripts, briefs and other documents which refer to Protected Materials, shall be filed and served in sealed envelopes or other appropriate containers endorsed to the effect that they are sealed pursuant to this Protective Order. Such documents shall be marked “PROTECTED MATERIALS” or “CONTAINS PRIVILEGED INFORMATION-DO NOT RELEASE” and shall be filed under seal and served under seal upon the Presiding Judge and all Reviewing Representatives who are on the service list. Such documents containing Critical Energy Infrastructure Information shall be additionally marked “Contains Critical Energy Infrastructure Information - Do Not Release.” For anything filed under seal, redacted versions or, where an entire document is protected, a letter indicating such, will also be filed with the Commission and served on all parties on the service list and the Presiding Judge. Counsel for the producing Participant shall provide to all Participants who request the same, a list of Reviewing Representatives who are entitled to receive such material. Counsel shall take all reasonable precautions necessary to assure that Protected Materials are not distributed to unauthorized persons. 13. If any Participant desires to include, utilize or refer to any Protected Materials or information derived therefrom in testimony or exhibits during the hearing in these proceedings in such a manner that might require disclosure of such material to persons other than reviewing representatives, such participant shall first notify both counsel for the disclosing participant and the Presiding Judge of such desire, identifying with particularity each of the Protected Materials. Thereafter, use of such Protected Material will be governed by procedures determined by the Presiding Judge. Nothing in this Protective Order shall be construed as precluding any Participant from objecting to the use of Protected Materials on any legal grounds. 14. Nothing in this Protective Order shall preclude any Participant from requesting the Presiding Judge, the Commission, or any other body having appropriate authority, to find that this Protective Order should not apply to all or any materials previously designated as Protected Materials pursuant to this Protective Order. The Presiding Judge may alter or amend this Protective Order as circumstances warrant at any time during the course of this proceeding. 15. Each party governed by this Protective Order has the right to seek changes in it as appropriate from the Presiding Judge or the Commission. 16. All Protected Materials filed with the Commission, the Presiding Judge, or any other judicial or administrative body, in support of, or as a part of, a motion, other pleading, brief, or other document, shall be filed and served in sealed envelopes or other appropriate containers bearing prominent markings indicating that the contents include Protected Materials subject to this Protective Order. Such documents containing Critical Energy Infrastructure Information shall be additionally marked “Contains Critical Energy Infrastructure Information – Do Not Release.” 17. If the Presiding Judge finds at any time in the course of this proceeding that all or part of the Protected Materials need not be protected, those materials shall, nevertheless, be subject to the protection afforded by this Protective Order for three (3) business days from the date of issuance of the Presiding Judge’s decision, and if the Participant seeking protection files an interlocutory appeal or requests that the issue be certified to the Commission, for an additional seven (7)
  • 48. 6 business days. None of the Participants waives its rights to seek additional administrative or judicial remedies after the Presiding Judge’s decision respecting Protected Materials or Reviewing Representatives, or the Commission’s denial of any appeal thereof. The provisions of 18 C.F.R. §§ 388.112 and 388.113 shall apply to any requests for Protected Materials in the files of the Commission under the Freedom of Information Act. (5 U.S.C. § 552). 18. Nothing in this Protective Order shall be deemed to preclude any Participant from independently seeking through discovery in any other administrative or judicial proceeding information or materials produced in this proceeding under this Protective Order. 19. None of the Participants waives the right to pursue any other legal or equitable remedies that may be available in the event of actual or anticipated disclosure of Protected Materials. 20. The contents of Protected Materials or any other form of information that copies or discloses Protected Materials shall not be disclosed to anyone other than in accordance with this Protective Order and shall be used only in connection with this (these) proceeding(s). Any violation of this Protective Order and of any Non- Disclosure Certificate executed hereunder shall constitute a violation of an order of the Commission.
  • 49. UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Public Power, LLC ) Docket No. EC12-___-000 Regional Energy Holdings, Inc. ) NON-DISCLOSURE CERTIFICATE I hereby certify my understanding that access to Protected Materials is provided to me pursuant to the terms and restrictions of the Protective Order in this proceeding, that I have been given a copy of and have read the Protective Order, and that I agree to be bound by it. I understand that the contents of the Protected Materials, any notes or other memoranda, or any other form of information that copies or discloses Protected Materials shall not be disclosed to anyone other than in accordance with that Protective Order. I acknowledge that a violation of this certificate constitutes a violation of an order of the Federal Energy Regulatory Commission. By: Title: Representing: Date: