Level 2 Appeal Foundation for Resilient Societies, Inc.

276 Pages·2015·8.18 MB·English

by  Courtney Baughan

Level 2 Appeal
Foundation for Resilient Societies, Inc.
TPL-007-1 - Transmission System Planned Performance for Geomagnetic
Disturbance Events
(Project 2013-03 Geomagnetic Disturbance Mitigation)

TABLE OF CONTENTS

I. Notice of Meeting of Level 2 Appeals Panel
II. Agenda
III. Guidelines for Conduct of Level 2 Appeals Panel
IV. Record of Appeal:
a. Corrected Complaint of Foundation for Resilient Societies, Inc. initiating Level 1 Appeal
dated January 5, 2015 (with appendices)
b. Response from the NERC Senior Director of Standards dated February 18, 2015
c. Letter from Foundation for Resilient Societies, Inc. to the NERC Senior Director of
Standards Initiating Level 2 Appeal dated February 26, 2015
d. Letter from the NERC Senior Director of Standards to Foundation for Resilient Societies,
Inc. regarding Appointment of Level 2 Appeals Panel dated March 31, 2015
Notice of Meeting of
Level 2 Appeals Panel
TPL-007-1 - Transmission System Planned
Performance for Geomagnetic Disturbance Events
(Project 2013-03 Geomagnetic Disturbance
Mitigation)

Click here for: Posted Materials
Click here for: Submission of Written Comments
Teleconference: [phone]| Conference ID/Passcode: 48631574

In accordance with Section 8.2 of the NERC Standard Processes Manual (“SPM”), notice is hereby provided
that the Level 2 Appeals Panel shall meet via teleconference on June 29, 2015 at 1:00 p.m. Eastern time to
hear the Level 2 Appeal of Foundation for Resilient Societies, Inc. (the “Appellant”). The meeting of the
Level 2 Appeals Panel shall be open to the public in “listen only” mode using the dial-in information
provided above.

On January 4, 2015, the Appellant submitted a Level 1 Appeal related to the development of proposed
Reliability Standard TPL-007-1 (Project 2013-03 Geomagnetic Disturbance Mitigation), to which NERC
responded on February 18, 2015. On February 26, 2015, the Appellant initiated a Level 2 Appeal.

In accordance with Section 8 of the SPM, the review of the Level 2 Appeals Panel shall be limited to those
issues that implicate a procedural action or inaction involving the processes or procedures described in the
SPM. Issues relating to the technical content of a Reliability Standards action are outside the scope of the
appeals process. In particular, the Level 2 Appeals Panel shall consider:
1. whether the Appellant is an entity with “directly and materially affected interests” with respect to
the development or approval of proposed Reliability Standard TPL-007-1;
2. whether the Appellant has been or will be adversely affected by any procedural action or inaction
related to the development or approval of proposed Reliability Standard TPL-007-1; and
3. whether the purported procedural action(s) or inaction(s) described by the Appellant relate to the
NERC Reliability Standards processes as defined in the SPM, and not the technical content of the
Reliability Standards action.
The Level 2 Appeals Panel shall not consider any expansion of the scope of the appeal that was not
presented in the Level 1 Appeal.

In accordance with Section 8.2 of the SPM, the Level 2 Appeals Panel may find for the Appellant and
remand the issue to the Standards Committee with a statement of the issues and facts in regard to which
fair and equitable action was not taken, or may find against the Appellant with a statement of the facts that
demonstrate fair and equitable treatment of the Appellant and its objections. The panel may not revise,
approve, disapprove, or adopt a Reliability Standard, as these responsibilities remain with the ballot pool
and Board of Trustees.

The Appellant’s Level 1 Appeal complaint, NERC’s response, and other relevant materials are posted here.

Section 8.2 of the SPM provides an opportunity for entities that are directly and materially affected by the
procedural action(s) or inaction(s) referenced in the Appellant’s Level 1 Appeal complaint to present their
concerns to the Level 2 Appeals Panel. The Level 2 Appeals Panel will accept written comments from such
entities until 8:00 p.m. Eastern time on June 8, 2015. Comments should be submitted
to [email protected]. Comments submitted to the Level 2 Appeals Panel shall be made a part of the
public record of this appeal.

For more information or assistance, please email [email protected].
3353 Peachtree Road NE
Suite 600, North Tower
Atlanta, GA 30326
404-446-2560 | www.nerc.com
Agenda
Meeting of Level 2 Appeals Panel
Level 2 Appeal of Foundation for Resilient Societies, Inc.
TPL-007-1 - Transmission System Planned Performance for Geomagnetic
Disturbance Events
(Project 2013-03 Geomagnetic Disturbance Mitigation)

June 29, 2015 | 1:00 – 4:00 p.m. Eastern
Teleconference: [phone]| Conference ID/Passcode: 48631574

Introduction and Guidelines for Conduct

NERC Antitrust Compliance Guidelines and Public Announcement

Presentation of Arguments
1. Appellant Foundation for Resilient Societies, Inc. (30 minutes)
2. Response by Chair of Project 2013-03 Geomagnetic Disturbances Standard Drafting Team (or His
Designee) (30 minutes)
3. Discussion of Response to Level 1 Appeal by NERC Senior Director of Standards (30 minutes)

Questions

Consideration of Written Comments Submitted by Other Affected Parties

Deliberations
Antitrust Compliance Guidelines
I. General
It is NERC’s policy and practice to obey the antitrust laws and to avoid all conduct that unreasonably
restrains competition. This policy requires the avoidance of any conduct that violates, or that might
appear to violate, the antitrust laws. Among other things, the antitrust laws forbid any agreement
between or among competitors regarding prices, availability of service, product design, terms of sale,
division of markets, allocation of customers or any other activity that unreasonably restrains
competition.
It is the responsibility of every NERC participant and employee who may in any way affect NERC’s
compliance with the antitrust laws to carry out this commitment.
Antitrust laws are complex and subject to court interpretation that can vary over time and from one
court to another. The purpose of these guidelines is to alert NERC participants and employees to
potential antitrust problems and to set forth policies to be followed with respect to activities that may
involve antitrust considerations. In some instances, the NERC policy contained in these guidelines is
stricter than the applicable antitrust laws. Any NERC participant or employee who is uncertain about
the legal ramifications of a particular course of conduct or who has doubts or concerns about whether
NERC’s antitrust compliance policy is implicated in any situation should consult NERC’s General Counsel
immediately.
II. Prohibited Activities
Participants in NERC activities (including those of its committees and subgroups) should refrain from
the following when acting in their capacity as participants in NERC activities (e.g., at NERC meetings,
conference calls and in informal discussions):
• Discussions involving pricing information, especially margin (profit) and internal cost
information and participants’ expectations as to their future prices or internal costs.
• Discussions of a participant’s marketing strategies.
• Discussions regarding how customers and geographical areas are to be divided among
competitors.
• Discussions concerning the exclusion of competitors from markets.
• Discussions concerning boycotting or group refusals to deal with competitors, vendors or
suppliers.
• Any other matters that do not clearly fall within these guidelines should be reviewed with
NERC’s General Counsel before being discussed.
III. Activities That Are Permitted
From time to time decisions or actions of NERC (including those of its committees and subgroups) may
have a negative impact on particular entities and thus in that sense adversely impact competition.
Decisions and actions by NERC (including its committees and subgroups) should only be undertaken for
the purpose of promoting and maintaining the reliability and adequacy of the bulk power system. If
you do not have a legitimate purpose consistent with this objective for discussing a matter, please
refrain from discussing the matter during NERC meetings and in other NERC-related communications.
You should also ensure that NERC procedures, including those set forth in NERC’s Certificate of
Incorporation, Bylaws, and Rules of Procedure are followed in conducting NERC business.
In addition, all discussions in NERC meetings and other NERC-related communications should be within
the scope of the mandate for or assignment to the particular NERC committee or subgroup, as well as
within the scope of the published agenda for the meeting.
No decisions should be made nor any actions taken in NERC activities for the purpose of giving an
industry participant or group of participants a competitive advantage over other participants. In
particular, decisions with respect to setting, revising, or assessing compliance with NERC reliability
standards should not be influenced by anti-competitive motivations.
Subject to the foregoing restrictions, participants in NERC activities may discuss:
• Reliability matters relating to the bulk power system, including operation and planning matters
such as establishing or revising reliability standards, special operating procedures, operating
transfer capabilities, and plans for new facilities.
• Matters relating to the impact of reliability standards for the bulk power system on electricity
markets, and the impact of electricity market operations on the reliability of the bulk power
system.
• Proposed filings or other communications with state or federal regulatory authorities or other
governmental entities.
Matters relating to the internal governance, management and operation of NERC, such as nominations
for vacant committee positions, budgeting and assessments, and employment matters; and procedural
matters such as planning and scheduling meetings.
NERC Antitrust Compliance Guidelines 2
Guidelines for Conduct of Level 2 Appeals Panel
TPL-007-1
Transmission System Planned Performance for Geomagnetic Disturbance Events
(Project 2013-03 Geomagnetic Disturbance Mitigation)

Background
Under Section 8 of the NERC Standard Processes Manual (“SPM”), any entity that has or will be
adversely affected by any procedural action or inaction related to the development of a
Reliability Standard shall have the right to file an appeal. The appeals process consists of two
levels: a Level 1 Appeal, before the NERC Senior Director of Standards; and Level 2 Appeal,
before a five-member panel appointed by the NERC Board of Trustees.

On January 4, 2015 (amended January 5, 2015), the Foundation for Resilient Societies, Inc. (the
“Foundation” or the “Appellant”) initiated a Level 1 Appeal related to the development of
proposed Reliability Standard TPL-007-1 by filing a complaint (the “Complaint”) to the NERC
Senior Director of Standards. On February 18, 2015, NERC responded to the Level 1 Appeal.
On February 26, 2015, Foundation initiated a Level 2 Appeal by letter addressed to the NERC
Senior Director of Standards.

Proposed Reliability Standard TPL-007-1 was filed with the Federal Energy Regulatory
Commission for approval on January 21, 2015.

Selection of Panel
In accordance with Section 8.2 of the SPM, the Senior Director of Standards shall convene a
Level 2 Appeals Panel. This panel shall consist of five members appointed by the Board of
Trustees. The members shall have no direct affiliation with the participants in the appeal.

The NERC Board of Trustees has appointed the following members to the Level 2 Appeals Panel
by written resolution dated March 31, 2015:

• Ken Peterson, Chair
• Fred Gorbet
• Paul Barber
• Dave Goulding
• Doug Jaeger

Adoption of Guidelines and Setting of Meeting Date
The Level 2 Appeals Panel met on May 5, 2015 to establish a time to hear Foundation’s Level 2
Appeal and to adopt these Guidelines for Conduct.
Guidelines for Conduct
Level 2 Appeals Panel
TPL-007-1 (GMD)

Notice of Meeting and Posting of Materials
The Level 2 Appeals Panel shall meet to hear Foundation’s Level 2 Appeal via teleconference
at 1:00 p.m. Eastern time on Monday, June 29, 2015.

In accordance with Section 8.2 of the SPM, NERC Reliability Standards staff shall post the
Appellant’s Complaint and other relevant materials on the Project 2013-03 Geomagnetic
Disturbance Mitigation project page and provide at least 30 days’ notice of the meeting of the
Level 2 Appeals Panel.

The meeting of the Level 2 Appeals Panel shall be open to the public in “listen only” mode.

Submission of Written Comments
Section 8.2 of the SPM provides an opportunity for entities that are directly and materially
affected by the procedural action(s) or inaction(s) referenced in the Appellant’s Complaint to
present their concerns to the Level 2 Appeals Panel. The Level 2 Appeals Panel will accept
written comments from such entities until 8:00 p.m. Eastern time on June 8, 2015. Comments
should be submitted to [email protected].

Comments submitted to the Level 2 Appeals Panel shall be made a part of the public record of
this appeal.

Conduct of Meeting
Generally
Section 8 of the SPM describes the Reliability Standards appeals process generally as follows:

Any entity that has directly and materially affected interests and
that has been or will be adversely affected by any procedural action
or inaction related to the development, approval, revision,
reaffirmation, retirement or withdrawal of a Reliability Standard,
definition, Variance, associated implementation plan, or
Interpretation shall have the right to appeal. This appeals process
applies only to the NERC Reliability Standards processes as defined
in [the SPM], not to the technical content of the Reliability
Standards action.

The burden of proof to show adverse effect shall be on the
appellant. Appeals shall be made in writing within 30 days of the
date of the action purported to cause the adverse effect, except
appeals for inaction, which may be made at any time. The final
decisions of any appeal shall be documented in writing and made
public.

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Guidelines for Conduct
Level 2 Appeals Panel
TPL-007-1 (GMD)

Scope of Issues Considered
In accordance with Section 8 of the SPM, the review of the Level 2 Appeals Panel shall be
limited to those issues that implicate a procedural action or inaction involving the processes or
procedures described in the SPM. Issues relating to the technical content of a Reliability
Standards action are outside the scope of the appeals process. In particular, the Level 2
Appeals Panel shall consider:
1. whether the Appellant is an entity with “directly and materially affected interests” with
respect to the development or approval of proposed Reliability Standard TPL-007-1;
2. whether the Appellant has been or will be adversely affected by any procedural action
or inaction related to the development or approval of proposed Reliability Standard TPL-
007-1; and
3. whether the purported procedural action(s) or inaction(s) described by the Appellant
relate to the NERC Reliability Standards processes as defined in the SPM, and not the
technical content of the Reliability Standards action.
The Level 2 Appeals Panel shall not consider any expansion of the scope of the appeal that was
not presented in the Level 1 Appeal. SPM § 8.2.

Conduct of Proceeding
At the beginning of the hearing, the Chair shall introduce the members of the Level 2 Appeals
Panel. The parties shall be called upon to introduce themselves and their affiliations. The Chair
will then refer the participants and observers to the NERC Antitrust Guidelines.

The parties shall present their objections or responses to the Level 2 Appeals Panel as follows:
Appellant: Foundation shall have 30 minutes to present its objections. The Appellant has
the burden of demonstrating adverse effects.
The Standard Drafting Team: The Chair of Project 2013-03 Geomagnetic Disturbance
Mitigation or his designee shall have 30 minutes to present the response of the Standard
Drafting Team.
The NERC Senior Director of Standards: The NERC Senior Director of Standards shall have 30
minutes to present the findings contained in NERC’s February 18, 2015 response to the
Appellant’s Level 1 Appeal.
Each party may adduce other pertinent arguments. Members of the Level 2 Appeals Panel may
address questions to the parties at any time. The Level 2 Appeals Panel shall have the authority
to limit any discussion that falls outside the scope of the appeal.

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Guidelines for Conduct
Level 2 Appeals Panel
TPL-007-1 (GMD)

Consideration of Written Comments
The Chair of the Level 2 Appeals Panel shall identify the other affected entities that submitted
comments for consideration by the panel. The Level 2 Appeals Panel shall consider such
comments as part of its deliberations.

Deliberation
Following the conclusion of presentations and questions, the Chair shall dismiss the parties and
any observers. The Level 2 Appeals Panel may deliberate immediately thereafter or at another
time as it deems fit.

Decision
The Level 2 Appeals Panel shall issue a written decision. The Level 2 Appeals Panel may be
assisted by NERC staff in preparing this written decision.

In accordance with Section 8.2 of the SPM, the Level 2 Appeals Panel:
• may find for the Appellant and remand the issue to the Standards Committee, with a
statement of the issues and facts in regard to which fair and equitable action was not
taken; or
• may find against the Appellant, with a specific statement of the facts that demonstrate
fair and equitable treatment of the Appellant and the Appellant’s objections.
The Level 2 Appeals Panel may not revise, approve, disapprove, or adopt a Reliability Standard,
as those responsibilities remain with the ballot pool and the Board of Trustees.

The actions of the Level 2 Appeals Panel shall be publicly posted.

Following the conclusion of the appeals process, the appeals record shall be made a part of the
complete record of development for proposed Reliability Standard TPL-007-1.

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