DR 97-130
energynorth natural gas, inc.
Environmental Remediation
Order Granting Protective Treatment
O R D E R N O. 22,853
February 18, 1998
On June 23, 1997, EnergyNorth Natural Gas, Inc. (ENGI)
filed a request with the New Hampshire Public Utilities
Commission (Commission) to recover certain expenses, net of
certain third party recoveries, related to the environmental
remediation of an area near a former manufactured gas plant in
Concord, New Hampshire.
Subsequent to filing its petition in this case, ENGI
informed the Commission's Staff and the Office of the Consumer
Advocate (OCA) that ENGI had settled certain federal court
litigation with UGI Utilities, Inc. (UGI) against whom ENGI had
previously brought suit to recover certain expenses which are
also the subject of this proceeding. On December 1, 1997, the
Commission Staff submitted data requests to ENGI, requesting a
copy of the settlement agreement between UGI and ENGI. ENGI
responded to the data request by indicating that the terms of the
settlement are strictly confidential and that UGI had instructed
it not to release any information regarding the settlement other
than pursuant to the terms of a protective order issued by this
Commission. Concurrent with the submission to the Staff of its
response to the data request, ENGI filed a Motion for Protective
order with the Commission, seeking protective treatment of the
settlement agreement and all testimony, briefs and other
materials and information in this proceeding concerning or
describing the terms of the settlement between UGI and ENGI. ENGI
reasserted in its petition that the settlement agreement with UGI
recognizes that some disclosure of the terms of the agreement
will be necessary in proceedings before the Commission and that
ENGI will use its best efforts to obtain a protective order from
the Commission to protect the confidentiality of the agreement.
ENGI also represented that the agreement provides that ENGI
recognizes that disclosure of the terms of the agreement, except
as permitted under the agreement, may cause damage to UGI and
that UGI would likely hold ENGI accountable for any such damage.
OCA took no position on the motion. Commission Staff (Staff), on
January 23, 1998, filed a response objecting to some of the terms
under which the material would be protected as being contrary to
Commission practice. Staff agreed that the material qualified
for protection pursuant to RSA 91-A and our administrative rules.
We recognize the need for confidential treatment of the
settlement agreement between UGI and ENGI and all testimony and
other material and information regarding the agreement in this
proceeding. We accept Staff's proposed changes to the request
regarding the manner in which the protected material is handled.
We will, therefore, grant ENGI's Motion for Protective Treatment
pursuant to RSA 91-A:5,IV and N.H. Admin. Rules, Puc 204.07 and
204.08 subject to Staff's modifications.
Based upon the foregoing, it is hereby
ORDERED, that ENGI's Motion for Protective Order is
GRANTED in part and DENIED in part; and it is
FURTHER ORDERED, that ENGI's response to Staff Data
Request 1-8-B(b) shall be and hereby are designated as Protected
Materials and any testimony, briefs, documents and other material
and information submitted by or to any participant in this
proceeding that refers to the terms of ENGI's settlement
agreement with UGI, other than of the fact that such information
is required to be kept confidential, shall be and hereby are
similarly designated as Protected Materials; and it is
FURTHER ORDERED, that unless and until otherwise
ordered by the Commission or a court of competent jurisdiction,
all Protected Materials shall be used only in connection with
this proceeding or related appellate proceedings and may be
inspected by or disclosed to and used by the Commissioners, law
firms of record for the parties in this proceeding, OCA and
members of Staff with direct involvement in this proceeding
(Permitted Persons); and it is
FURTHER ORDERED, that prior to disclosure of any
Protected Material to any Permitted Person (other than a
Commissioner or member of Staff), each such individual shall be
given a copy of this Order and shall execute a certificate
stating that he or she has read this Order and that he or she
will not divulge any Protected Material or any portion thereof or
any information derived therefrom, other than in accordance with
this Order; counsel for the party by whom such Permitted Person
is employed shall submit a copy of such certificate to all other
participants in this proceeding and a copy shall be filed with
the Commission; and it is
FURTHER ORDERED, that any person who received Protected
Material pursuant to this Order shall make no more than one copy
of such Protected Material except copies may be made of documents
for marking as sealed exhibits in accordance with the Order ans
set forth below; and it is
FURTHER ORDERED, that if a party tenders for filing
with the Commission or any court any written testimony, exhibit
brief, or other submission that includes, incorporates or
otherwise discloses Protected Material, all portions thereof
disclosing such materials shall be marked Protected Material and
be filed and served in sealed envelopes or other appropriate
containers endorsed to the effect that they are sealed pursuant
to this Order; and it is
FURTHER ORDERED, that unless the Commission orders
otherwise, Protected Material or portions thereof may be
disclosed only in an in camera portion of any proceeding, closed
to all persons except Commissioners, members of Staff and those
who have signed a certificate in accordance with this Order; and
it is
FURTHER ORDERED, that this order is subject to
reconsideration in light of RSA 91-A, should circumstances
warrant.
By order of the Public Utilities Commission of New
Hampshire this eighteenth day of February, 1998.
Douglas L. Patch Bruce B. Ellsworth Susan S. Geiger
Chairman Commissioner Commissioner
Attested by:
Thomas B. Getz
Executive Director and Secretary