UNITED STATES OF AMERICA76 FERC .61,250
FEDERAL ENERGY REGULATORY COMMISSION
Before Commissioners: Elizabeth Anne Moler, Chair;
Vicky A. Bailey, James J. Hoecker,
William L. Massey, and Donald F. Santa, Jr.
Northern States Power Company )
(Minnesota) ) Docket No. OA96-6-000
Northern States Power Company )
(Wisconsin) )
Upper Peninsula Power Company ) Docket No. OA96-8-000
Vermont Electric Power Company, )
Inc. ) Docket No. OA96-23-000
Vermont Electric Transmission )
Company, Inc. )
Black Creek Hydro, Inc. ) Docket No. OA96-25-000
NewCorp Resources, Inc. ) Docket No. OA96-26-000
Electric Energy, Inc. ) Docket No. OA96-45-000
Graham County Electric ) Docket No. OA96-58-000
Cooperative, Inc. )
Oregon Trail Electric Consumers ) Docket No. OA96-59-000
Cooperative, Inc. )
Barron Electric Cooperative ) Docket No. OA96-65-000
Madison Gas and Electric Company ) Docket No. OA96-71-000
Indianapolis Power & Light Company ) Docket No. OA96-81-000
Exeter & Hampton Electric Company ) Docket No. OA96-103-000
UNITIL Power Corp. ) Docket No. OA96-104-000
Concord Electric Company ) Docket No. OA96-105-000
Fitchburg Gas and Electric ) Docket No. OA96-107-000
Light Company )
Golden Spread Electric ) Docket No. OA96-143-000
Cooperative, Inc. )
Rayburn Country Electric ) Docket No. OA96-148-000
Cooperative, Inc. )
.
Docket No. OA96-6-000, et al. - 2 -
Anoka Electric Cooperative ) Docket No. OA96-149-000
Old Dominion Electric Cooperative, ) Docket No. OA96-150-000
Inc. )
New England Electric Transmission )
Corporation )
New England Hydro Transmission ) Docket No. OA96-160-000
Electric Company )
New England Hydro Transmission )
Corporation )
Edison Sault Electric Company ) Docket No. OA96-173-000
Intermountain Rural Electric ) Docket No. OA96-180-000
Association )
People's Electric Cooperative ) Docket No. OA96-181-000
Northwestern Wisconsin Electric ) Docket No. OA96-211-000
Company )
Citizens Utilities Company ) Docket No. OA96-216-000
(Arizona Electric Division) )
Consolidated Water Power Company ) Docket No. OA96-217-000
Vermont Marble Power Division of ) Docket No. OA96-219-000
OMYA, Inc. )
ORDER ON REQUESTS BY PUBLIC UTILITIES FOR WAIVERS OF
ORDER NOS. 888 AND 889
(Issued September 11, 1996)
This order addresses requests for waiver by 31 public
utilities 1/ of the requirements of Order No. 888, 2/
1/ There are only 27 docket numbers. This is because although
the Vermont Electric Power Company, Inc. (VELCO) and Vermont
Electric Transmission Company (Vermont Transmission) filed
in the same docket, they are two separate utilities and are
discussed separately. In contrast, Northern States Power
Company (Minnesota) and its wholly-owned subsidiary,
Northern States Power Company (Wisconsin), (collectively,
NSP Companies) filed in one docket, as did New England
Electric Transmission Corporation (New England
Transmission), New England Hydro Transmission Electric
Company (New England Hydro Trans Electric), and New England
Hydro Transmission Corporation (New England Hydro).
.
Docket No. OA96-6-000, et al. - 3 -
including the requirement to file a pro forma open access
transmission tariff. 3/ This order also addresses 24 requests
for waiver of the requirements of Order No. 889. 4/ As
discussed below, we grant 11 requests for waiver of Order No. 888
and deny the remaining 20 requests, and grant 21 requests for
waiver of Order No. 889.
Background
Between July 2, 1996 and August 1, 1996, the 31 above-
captioned public utilities filed requests for waiver of the
requirements of Order No. 888. 5/ Notices of the filings were
2/(...continued)
2/ Promoting Wholesale Competition Through Open Access Non-
discriminatory Transmission Services by Public Utilities and
Recovery of Stranded Costs by Public Utilities and
Transmitting Utilities, Order No. 888, 61 Fed. Reg. 21,540
(May 10, 1996), FERC Stats. & Regs. . 31,036 (1996).
3/ Eight of the 31 applicants request waiver of all the
requirements of Order No. 888: Black Creek Hydro, Inc.
(Black Creek) in Docket No. OA96-25-000; Graham County
Electric Cooperative, Inc. (Graham County) in Docket No.
OA96-58-000; Oregon Trail Electric Consumers Cooperative,
Inc. (Oregon Trail) in Docket No. OA96-59-000; Barron
Electric Cooperative (Barron) in Docket No. OA96-65-000;
Indianapolis Power & Light Company (Indianapolis P&L) in
Docket No. OA96-81-000; Rayburn Country Electric
Cooperative, Inc. (Rayburn Country) in Docket No. OA96-148-
000; Edison Sault Electric Company (Edison Sault) in Docket
No. OA96-173-000; and Intermountain Rural Electric
Association (Intermountain) in Docket No. OA96-180-000.
Upper Peninsula Power Company (Upper Peninsula), in Docket
No. OA96-8-000, also requests waiver of the obligation to
functionally unbundle generation and transmission. Electric
Energy, Inc. (Electric Energy), in Docket No. OA96-45-000,
also requests waiver of the requirement to separately
identify a transmission rate or transmission rate component
on wholesale customer bills, and waiver of any reciprocity
provisions in open-access transmission tariffs of other
transmission utilities.
4/ Open Access Same-Time Information System (Formerly Real-Time
Information Networks) and Standards of Conduct, Order No.
889, 61 Fed. Reg. 21,737 (May 10, 1996), FERC Stats. & Regs.
. 31,035 (1996).
5/ The majority of the requests for waiver were filed on July
9, 1996. Docket No. OA96-6-000 was filed on July 2, 1996;
Docket No. OA96-8-000 was filed on July 5, 1996; Docket Nos.
(continued...)
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Docket No. OA96-6-000, et al. - 4 -
published in the Federal Register, 6/ and interested parties
were given approximately 30 days to file comments, protests, or
motions to intervene. 7/ Interventions were filed in most of
the dockets, and comments and protests were filed in ten. 8/
5/(...continued)
OA96-23-000, OA96-25-000, and OA96-26-000 were filed on July
8, 1996; Docket No. OA96-211-000 was filed on July 11, 1996;
Docket No. OA96-217-000 was filed on July 24, 1996; and
Docket No. OA96-219-000 was filed on August 1, 1996.
6/ For most of the cases, notice was published at 61 Fed. Reg.
38,724-26 (1996). For Docket No. OA96-217-000, notice was
published at 61 Fed. Reg. 41,391 (1996); for Docket No.
OA96-219-000, notice was published at 61 Fed. Reg. 45,951
(1996).
7/ For those filings made on July 9, 1996, the comment date was
August 8, 1996. For Docket No. OA96-6-000, the comment date
was August 1, 1996; for Docket No. OA96-8-000, the comment
date was August 5, 1996; for Docket Nos. OA96-23-000, OA96-
25-000, and OA96-26-000, the comment date was August 7,
1996; for Docket No. OA96-211-000, the comment date was
August 12, 1996; for Docket No. OA96-217-000, the comment
date was August 23, 1996; and for Docket No. OA96-219-000,
the comment date was September 5, 1996.
8/ In Docket No. OA96-6-000, Wisconsin Municipal Intervenors
(Wisconsin Municipal) and Missouri Basin Municipal Power
Agency and Minnesota Cities of Marshall, St. James, and Sauk
Centre (collectively, Missouri and Minnesota Cities) filed
comments and Minnesota Power and Light Company (Minnesota
P&L), Dairyland Power Cooperative (Dairyland), and Wisconsin
Power and Light Company (WP&L), IES Utilities, Inc., and
Interstate Power Company (collectively, the Interstate
Companies) filed protests; in Docket No. OA96-8-000, Stone
Container Corporation (Stone Container), Wisconsin Electric
Power Company (WEPCO), and Copper Range Company (Copper
Range) filed protests, and WEPCO also filed a motion to
strike; in Docket No. OA96-23-000, the Vermont Public Power
Supply Authority and the Burlington Electric Department
(collectively, Vermont Intervenors) filed comments and the
Vermont Department of Public Service (Vermont Department),
New York State Electric & Gas Corporation (NYSEG), and New
England Power Company (NEPCO) filed protests; in Docket No.
OA96-81-000, the Indiana Office of Utility Consumer
Counselor (Indiana Consumer Counselor) filed comments; in
Docket No. OA96-104-000, the Massachusetts Department of
Public Utilities (Massachusetts Commission) filed comments;
in Docket No. OA96-107-000, the Coalition for a Competitive
(continued...)
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Docket No. OA96-6-000, et al. - 5 -
Discussion
Procedural Matters
Pursuant to Rule 214 of the Commission's regulations, 9/
the notices of intervention and timely, unopposed motions to
intervene serve to make these movants parties to the proceedings
in which they sought intervention.
We will grant the following untimely motions to intervene,
given the early stage of the proceedings and the absence of any
undue prejudice or delay: Wisconsin Public Service Corporation
(Wisconsin Public Service) and PanEnergy Trading and Market
Services, L.L.C. (PanEnergy) in Docket No. OA96-6-000; Eastern
Power Distribution, Inc. and PanEnergy in Docket No. OA96-8-000;
NEPCO, Central Vermont Public Service Corporation, and Green
Mountain Power Corporation (Green Mountain) in Docket No. OA96-
23-000; Wisconsin Public Service in Docket No. OA96-71-000; and
the Indiana Consumer Counselor in Docket No. OA96-81-000.
We also will grant the following timely, but opposed motions
to intervene, given the early stage of these proceedings and
their interest in the actions we are taking here: CCEM and
PanEnergy in Docket No. OA96-143-000; and CCEM in Docket No.
OA96-149-000.
We will reject the following answers to the extent they do
not respond to the motions to intervene, as prohibited answers to
protests, pursuant to Rule 213(a)(2) of the Commission's
regulations: 10/ the NSP Companies in Docket No. OA96-6-000;
Upper Peninsula (answers of August 16 and 27, 1996) in Docket No.
OA96-8-000; 11/ VELCO and Vermont Transmission in Docket No.
OA96-23-000; Graham County in Docket No. OA96-58-000; Golden
Spread Electric Cooperative, Inc. (Golden Spread) (answers of
July 29 and August 22, 1996) in Docket No. OA96-143-000; New
8/(...continued)
Electric Market (CCEM) filed a protest and the Massachusetts
Commission filed comments; in Docket No. OA96-181-000,
Oklahoma Gas and Electric Company (OG&E) filed a protest; in
Docket No. OA96-211-000, the CCEM filed a protest; in Docket
No. OA96-216-000, Tucson Electric Power Company (Tucson)
filed a protest; and in Docket No. OA96-219-000, Central
Vermont Public Service Corporation filed comments.
9/ 18 C.F.R. . 385.214 (1996).
10/ 18 C.F.R. . 385.213(a)(2) (1996).
11/ We note that this action effectively grants WEPCO's motion
to strike.
.
Docket No. OA96-6-000, et al. - 6 -
England Transmission, New England Hydro Trans Electric, and New
England Hydro (answers of July 30 and August 22, 1996) in Docket
No. OA96-160-000; People's Electric Cooperative (People's
Electric) in Docket No. OA96-181-000; and Citizens Utilities
Company (Arizona Division) (Citizens Utilities) in Docket No.
OA96-216-000.
Waiver of Order No. 888
Order No. 888 requires all public utilities that own,
control, or operate facilities used for transmitting electric
energy in interstate commerce to have on file with the Commission
open access non-discriminatory transmission tariffs that contain
minimum terms and conditions of non-discriminatory transmission
service. 12/ These open access transmission tariffs must meet
the non-price minimum terms and conditions set forth in the pro
forma open access transmission tariff contained in Order No. 888.
13/
The Commission noted that utilities may seek a waiver of
some or all of the requirements of Order No. 888, 14/ but
stated that "it is difficult to imagine any circumstance that
would justify waiving the requirements of this Rule for any
public utility that is also a control area operator." 15/
However, the Commission acknowledged that Order No. 888's
requirements might be burdensome for certain small utilities.
The Commission stated that these requirements may be particularly
burdensome for small utilities that own no generation and buy at
wholesale on a radial line from another utility's grid. The
Commission also stated that where a small utility has a service
territory that is part of another utility's control area, then
the small utility should be permitted to make a showing that it
should be exempt from all or some of the requirements. 16/ In
this regard, the Commission explained that a waiver would be
considered if the small utility can show that:
(1) It does not own transmission facilities,
(2) it has turned control of its facilities
over to someone else (such as the control
12/ FERC Stats. & Regs. at 31,635.
13/ Id. at 31,636.
14/ Id.
15/ Id. at 31,853.
16/ Id. The Commission also noted that this burden could extend
to the requirements of Order No. 889, and that a waiver
likewise might be appropriate as to Order No. 889. Id.
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Docket No. OA96-6-000, et al. - 7 -
area operator) who complies with the rule as
its agent, or (3) no one is likely to ask to
use its facilities (e.g., because they are
radial lines), and it commits to file an open
access tariff within 60 days of a request to
use its facilities and to comply with the
rule in all other ways. [17/]
Requests for Waiver
The instant requests for waiver fall into four general
categories: (1) the applicant already has on file a transmission
tariff that it believes is adequate; (2) although the applicant
owns an integrated transmission grid, it believes that the grid
is not significant due to size or location; (3) any transmission
facilities that the applicant owns or controls are limited and
discrete transmission facilities that do not form an integrated
transmission grid (e.g., a single transmission line); or (4) the
applicant is a single-purpose entity owned by other public
utilities that was created to own a specific transmission
project.
As we discuss separately below, we will deny waiver to
applicants in the first two categories and some applicants in the
third category, and grant waiver to some applicants in the third
category and all applicants in the fourth category.
Category One (Transmission Tariff Already on File)
The only applicants in this category are the NSP Companies,
in Docket No. OA96-6-000. The NSP Companies request that the
transmission tariff compliance filing in Docket Nos. ER94-1090-
000 and ER94-1113-000 be found in compliance with Order No. 888
or, in the alternative, that the NSP Companies be granted a
waiver. In support, the NSP Companies argue: (1) the tariff
would be in effect for less than six additional months, as it is
due to expire on the effective date of the Primergy merger,
requested to be January 1, 1997; (2) the filed tariff complies
with all material aspects of the pro forma tariff; (3) the non-
rate terms and conditions of the filed tariff are the result of a
settlement and reflect customer preference over the terms and
conditions of the pro forma tariff; and (4) the NSP Companies
have committed in settlements with their customers to keep the
filed tariff.
Dairyland, Wisconsin Municipal, and Missouri and Minnesota
Cities all support the NSP Companies. Minnesota P&L and the
17/ Id.
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Docket No. OA96-6-000, et al. - 8 -
Interstate Companies maintain that the NSP Companies have not
complied with Order No. 888 and that the NSP Companies do not
qualify for waiver.
We do not find the NSP Companies's arguments persuasive.
When we approved the settlement in Docket Nos. ER94-1090-000 and
ER94-1113-000 containing the current transmission tariff, we
explicitly stated that the NSP Companies's tariff "does not
conform, and is not superior, to the pro forma tariffs." 18/
We also noted that our approval of the settlement was subject to
the outcome of the proceedings which led to Order Nos. 888 and
889. 19/ Moreover, even if arguendo we knew for a certainty
that the merger would be approved and Primergy would be in
existence on January 1, 1997, as requested, the NSP Companies
still would need to comply with the requirements of Order No. 888
until that time. Finally, we note that the NSP Companies are a
control area operator, and have not shown a difficult-to-imagine
"circumstance that would justify waiving" Order No. 888. 20/
Accordingly, we will deny the NSP Companies's requests for
waiver.
Category Two (Owns Integrated Transmission Grid)
Five applicants are in this category: Upper Peninsula in
Docket No. OA96-8-000; VELCO in Docket No. OA96-23-000; 21/
Madison Gas and Electric Company (Madison G&E) in Docket No.
OA96-71-000; Indianapolis P&L in Docket No. OA96-81-000; and
Edison Sault in Docket No. OA96-173-000.
Docket No. OA96-8-000 (Upper Peninsula)
In support of its request, Upper Peninsula states that it
provides electric service to a few, relatively small wholesale
customers under contracts which will not expire prior to January
1, 1999. Upper Peninsula also states that there is no entity
18/ Northern States Power Company (Minnesota), et al., 74 FERC .
61,142 at 61,504 (1996). The pro forma tariffs we were
using for comparison in that case were the ones found in the
Notice of Proposed Rulemaking (NOPR) underlying Order No.
888,. In any event, compliance with the pro forma tariffs
found in the NOPR is not compliance with the open access pro
forma transmission tariff in Order No. 888.
19/ Id. at 61,504-05.
20/ See FERC Stats. & Regs. at 31,853.
21/ VELCO's affiliate, Vermont Transmission, also filed in
Docket No. OA96-23-000, but falls into Category Four,
discussed below.
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Docket No. OA96-6-000, et al. - 9 -
likely to request open access transmission service in the
immediate future, and that there are no embedded wholesale
customers in its system that could use open access service in the
near term.
Stone Container, WEPCO, and Copper Range all dispute Upper
Peninsula's statements regarding the likelihood it will receive
requests for transmission service and the ability of its
customers to use such service. Stone Container, in particular,
maintains that it may utilize Upper Peninsula's facilities.
Moreover, by letter order issued September 6, 1996, in Docket No.
ER96-2331-000, the Commission accepted for filing a power sales
agreement between WEPCO and Edison Sault, notwithstanding Upper
Peninsula's request that, because Upper Peninsula's transmission
system is the only route to deliver that power, the Commission
delay acceptance until appropriate transmission arrangements
existed. Clearly, there is a need for Upper Peninsula to comply
with our requirement to file an open access pro forma tariff.
Accordingly, we will deny Upper Peninsula's request for waiver.
Docket No. OA96-23-000 (VELCO)
In support of its request for waiver, VELCO states that it
is a utility whose only business is the provision of transmission
services and that, because it is in the New England Power Pool
(NEPOOL) control area, it does not control its transmission
system. Moreover, VELCO states, it does not anticipate that
there will be any unsatisfied demand for transmission service if
waiver is granted, and that it will offer a point-to-point
service agreement to anyone requesting transmission whose request
cannot be satisfied by another Vermont utility.
The Vermont Intervenors support VELCO's request for waiver;
the Vermont Department, NYSEG, and NEPCO oppose it. The Vermont
Department and NEPCO challenge VELCO's characterization of itself
as small in size, because VELCO has the largest transmission
system in Vermont and is similar in size to several other New
England utilities outside the State. They also note that the
logical meaning of VELCO's NEPOOL argument is that any NEPOOL
member would be eligible for waiver. We find these arguments
convincing. In addition, we are not persuaded that no one is
likely to ask to use VELCO's facilities. Accordingly, we will
deny this request for waiver. 22/
22/ The Vermont Department filed a separate motion in this
docket requesting that the issue of how the capacity of
VELCO and Vermont Transmission should be made available on
an open access basis be severed from Docket Nos. OA96-37-
000, OA96-53-000, and OA96-184-000, and be consolidated with
this proceeding. The Vermont Intervenors oppose this
(continued...)
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Docket No. OA96-6-000, et al. - 10 -
Docket Nos. OA96-71-000; OA96-81-000; and
OA96-173-000 (Madison G&E, Indianapolis P&L,
and Edison Sault, respectively)
In support of its request for waiver, Madison G&E states
that it has no wholesale customers and that, although it has had
a wholesale transmission service tariff on file with the
Commission for more than a decade, no party has ever made a bona
fide request for transmission service. This demonstrates,
Madison G&E continues, that it does not have a monopoly on
transmission facilities "over which bulk power competition
occurs," its facilities fall outside the contract path of all
transmission users, and, therefore, it cannot thwart competition
by engaging in discriminatory transmission access practices.
23/ Moreover, Madison G&E states, because its service
territory is surrounded on all sides by the markedly larger WP&L
and the interconnected transmission systems of WEPCO and
Wisconsin Public Service, third-party transmission users have
little reason to want to contract with Madison G&E and thereby
incur Madison G&E's "superfluous" transmission charge. Wisconsin
Public Service states that it may have a need in the future for
transmission service over Madison G&E's system.
In support of its request for waiver, Indianapolis P&L
states that its transmission lines are merely incident to its
provision of retail services, that no wholesale customer is
captive, and that it does not provide any essential path or
critical facility for wholesale transactions. The Indiana
Consumer Counselor states that it would not oppose a limited
waiver provided that Indianapolis P&L files an open access
transmission tariff on or before service is sought by a new
wholesale customer or a retail customer either pursuant to a
state retail access program or pursuant to a voluntary offer.
In support of its request for waiver, Edison Sault states
that its transmission facilities are essentially radial in
nature, and are primarily used for local distribution. Edison
Sault further states that its interconnections exist for the
purpose of generation integration and meeting security
requirements of the North American Electric Reliability Council.
Moreover, the design of its system, the historic use of its
system, and the uniquely inconvenient geographic location of its
system, Edison Sault believes, all indicate that it is unlikely
Edison Sault will receive any requests for wholesale transmission
at this time. Finally, Edison Sault has submitted a June 24,
22/(...continued)
motion. We will deny the motion, because we see the issues
there as separate from our determination in this proceeding.
23/ See FERC Stats. & Regs. at 31,652.
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Docket No. OA96-6-000, et al. - 11 -
1996 letter from Cloverland Electric Cooperative, the one
customer on its system that Edison Sault believes could seek
transmission, supporting Edison Sault's waiver request.
We will deny waiver. The electric industry is changing
rapidly, and the fact that a system has not yet received a
request for transmission service is no guarantee that no one will
ask for transmission in the future. Each of these three
applicants owns, operates, and controls an interstate
transmission grid, and we do not believe that any such grid could
reasonably be considered insignificant. We also believe each of
these applicants is a potential subject of a request for
transmission service. Moreover, we note that the costs of
complying with our directive in Order No. 888 to file an open
access transmission tariff that complies with our pro forma
tariff are minimal. Accordingly, we deny these requests for
waiver.
Category Three (Limited and Discrete Transmission
Facilities)
Most of the applicants fall into this category. We will
deny waiver to thirteen applicants: NewCorp Resources, Inc.
(NewCorp) in Docket No. OA96-26-000; Electric Energy in Docket
No. OA96-45-000; Graham County in Docket No. OA96-58-000; Barron
in Docket No. OA96-65-000; Exeter & Hampton Electric Company
(Exeter & Hampton) in Docket No. OA96-103-000; Concord Electric
Company (Concord Electric) in Docket No. OA96-105-000; Fitchburg
Gas and Electric Light Company (Fitchburg G&E) in Docket No.
OA96-107-000; Rayburn Country in Docket No. OA96-148-000;
Intermountain in Docket No. OA96-180-000; People's Electric in
Docket No. OA96-181-000; Northwestern Wisconsin Electric Company
(Northwestern Wisconsin) in Docket No. OA96-211-000; Citizens
Utilities in Docket No. OA96-216-000; and Consolidated Water
Power Company (Consolidated Water Power) in Docket No. OA96-217-
000.
We will grant waiver to seven applicants: Black Creek in
Docket No. OA96-25-000; Oregon Trail in Docket No. OA96-59-000;
UNITIL Power Corp. (UNITIL) in Docket No. OA96-104-000; Golden
Spread in Docket No. OA96-143-000; Anoka Electric Cooperative
(Anoka) in Docket No. OA96-149-000; Old Dominion Electric
Cooperative, Inc. (Old Dominion) in Docket No. OA96-150-000; and
Vermont Marble Power Division of OMYA, Inc. (Vermont Marble) in
Docket No. OA96-219-000.
.
Docket No. OA96-6-000, et al. - 12 -
Contested Applications 24/
Fitchburg G&E, in Docket No. OA96-107-000, states that it is
electrically isolated beyond a single interconnection point, and
that it "feeds" local distribution through a predominately radial
system. Fitchburg G&E believes it is most improbable that it
will receive a request to use its facilities for the type of
transmission services contained in the pro forma tariff. The
Massachusetts Commission requests that, with respect to the
determination of what facilities are used in interstate
transmission, the Commission accept Fitchburg G&E's filing,
subject to the Massachusetts Commission's investigation of the
determination of what facilities are used in local distribution.
CCEM disputes Fitchburg G&E's assertion that no one is likely to
use its system, stating that there is a "distinct possibility"
that Fitchburg G&E's transmission system could be necessary to
effectuate various economical power trades.
We will deny waiver. We are not persuaded that no one is
likely to ask to use Fitchburg G&E's transmission facilities. We
note that Fitchburg G&E currently has a transmission tariff on
file for service to KES Fitchburg, L.P. (a small power production
facility). Accordingly, Fitchburg G&E must now file an open
access transmission tariff with the Commission.
People's Electric, in Docket No. OA96-181-000, states that
its system is designed primarily to serve retail end users over
radial distribution lines and that, except for its existing
customers with whom it has long-term transmission contracts, no
entities are likely to request transmission service over its
system. OG&E protests that People's Electric is not a public
utility subject to Order No. 888's open access requirements,
noting that a Commission administrative law judge determined that
People's Electric is not engaged in transmission subject to the
Commission's jurisdiction. 25/
Similarly, Citizens Utilities, in Docket No. OA96-216-000,
states that it owns only limited transmission facilities, has
24/ It would appear at first glance that the application by
Northwestern Wisconsin, in Docket No. OA96-211-000, would
belong in this category, as CCEM filed a protest. However,
the caption of the protest is titled "Northwestern Public
Service Company," the body of the protest refers to the
purported applicant by that erroneous name, and the factual
situation described does not describe that of Northwestern
Wisconsin. Accordingly, we believe this application is, in
fact, unopposed.
25/ See People's Electric Cooperative, 60 FERC . 63,004 (1992),
exceptions pending.
.
Docket No. OA96-6-000, et al. - 13 -
only one transmission customer, and that it is unlikely
additional transmission demand will materialize in the future.
Citizens Utilities further states that it already has an approved
point-to-point, open access transmission tariff on file with the
Commission. Tucson argues that Citizens Utilities' tariff
differs significantly from the pro forma tariff, and that
granting Citizens Utilities' request would indicate a Commission
willingness to only selectively enforce open access requirements.
We will deny both People's Electric's and Citizens
Utilities' requests for waiver. Because each utility already
provides transmission service, each may well be the subject of
further transmission requests. 26/ We are not persuaded that
others are not likely to seek to use these utilities'
transmission facilities.
Uncontested Applications
We believe that, for the applicants in this category, waiver
is appropriate only in two circumstances: where the applicant
does not already provide transmission service to anyone else
(i.e., Black Creek in Docket No. OA96-25-000 and Vermont Marble
in Docket No. OA96-219-000); or if the control over the
applicant's limited facilities is vested with another utility
(i.e., Oregon Trail in Docket No. OA96-59-000; UNITIL in Docket
No. OA96-104-000; 27/ Golden Spread in Docket No. OA96-143-
000; Anoka in Docket No. OA96-149-000; and Old Dominion in Docket
No. OA96-150-000). Our grant of waiver, however, is conditional
upon the requirement that the utility file the pro forma open
access transmission tariff of Order No. 888, and comply with any
additional requirements that are effective on the date of the
request, within 60 days of receiving a valid request for
transmission service.
We do not believe that waiver is appropriate regarding the
remaining uncontested cases in this category: NewCorp in Docket
No. OA96-26-000; Electric Energy in Docket No. OA96-45-000;
26/ People's Electric's status as a public utility is pending.
Until that decision is made, we will assume for purposes of
Order Nos. 888 and 889, that People's Electric is a public
utility. Whether People's Electric provides jurisdictional
transmission service is also pending on exceptions and will
be decided in that proceeding.
27/ In this case, the Massachusetts Commission requests that,
with respect to the determination of facilities used in
interstate transmission, the Commission accept UNITIL's
filing, subject to the Massachusetts Commission's
investigation of the determination of facilities used in
local distribution.
.
Docket No. OA96-6-000, et al. - 14 -
Graham County in Docket No. OA96-58-000; Barron in Docket No.
OA96-65-000; Exeter & Hampton in Docket No. OA96-103-000; Concord
Electric in Docket No. OA96-105-000; Rayburn Country in Docket
No. OA96-148-000; Intermountain in Docket No. OA96-180-000;
Northwestern Wisconsin in Docket No. OA96-211-000; and
Consolidated Water Power in Docket No. OA96-217-000. The fact
that these applicants already provide transmission service argues
against any presumption that they are unlikely to receive a
transmission request. We are not persuaded that others are not
likely to use their transmission facilities.
Category Four (Single Purpose Entity)
Four applicants fall into this category: Vermont
Transmission in Docket No. OA96-23-000; and New England
Transmission, New England Hydro Trans Electric, and New England
Hydro in Docket No. OA96-160-000.
Vermont Transmission states that all of the rights in the
transmission line it owns have been assigned to the sixteen
participants that pay the line's support costs; therefore,
Vermont Transmission cannot legally offer transmission services
to others. New England Transmission, New England Hydro Trans
Electric, and New England Hydro indicate that they are "paper"
companies only, formed for the sole purpose of owning
transmission facilities, and with no assets other than their
respective ownership interests in those facilities.
Notwithstanding that the Vermont Department opposes granting
waiver to Vermont Transmission, we believe waiver is appropriate
for the applicants in this category, so long as the public
utility owners in Vermont Transmission, New England Transmission,
New England Hydro Trans Electric, and New England Hydro include
access to these projects under their own open-access tariffs.
These entities are simply a more formal type of joint ownership
arrangement for which open-access solutions must be proposed
under Order No. 888.
Waiver of Order No. 889
Of the 11 applicants for whom we will grant waiver of Order
No. 888, 10 have also requested waiver of Order No. 889. For the
same reasons we decided to grant them waiver of Order No. 888, we
will also grant their requests for waiver of Order No. 889.
These 10 applicants are: Vermont Transmission in Docket No.
OA96-23-000; Oregon Trail in Docket No. OA96-59-000; UNITIL in
Docket No. OA96-104-000; Golden Spread in Docket No. OA96-143-
000; Anoka in Docket No. OA96-149-000; Old Dominion in Docket No.
OA96-150-000; New England Transmission, New England Hydro Trans
Electric, and New England Hydro in Docket No. OA96-160-000; and
Vermont Marble in Docket No. OA96-219-000.
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Docket No. OA96-6-000, et al. - 15 -
We also will grant waiver of Order No. 889 to the other
applicants in Category Three who have sought waiver of Order No.
889, as they do not operate or control an interstate transmission
grid: NewCorp in Docket No. OA96-26-000; Electric Energy in
Docket No. OA96-45-000; Graham County in Docket No. OA96-58-000;
Barron in Docket No. OA96-65-000; Exeter & Hampton in Docket No.
OA96-103-000; Concord Electric in Docket No. OA96-105-000;
Fitchburg G&E in Docket No. OA96-107-000; Rayburn Country in
Docket No. OA96-148-000; Intermountain in Docket No. OA96-180-
000; Citizens Utilities in Docket No. OA96-216-000; and
Consolidated Water Power in Docket No. OA96-217-000.
Waiver of the requirement to establish and maintain an
information system (i.e., an OASIS) will be granted unless and
until an entity evaluating its transmission needs complains that
it could not get information necessary to complete its
evaluation. Waiver of the standards of conduct will be granted
unless and until an entity complains that a public utility has
used its access to information about transmission to unfairly
benefit the public utility's own or the public utility's
affiliate's sales. We grant this waiver for the Category Three
applicants because of the expense and burden of maintaining an
OASIS, and of complying with the standards of conduct which
require separating the merchant and transmission functions.
The Commission orders:
(A) All untimely, unopposed and opposed motions to
intervene are hereby granted, as discussed in the body of this
order.
(B) All answers to protests, insofar as they do not respond
to motions to intervene, are hereby rejected, as discussed in the
body of this order.
(C) The Vermont Department's motion to sever and
consolidate is hereby denied.
(D) The requests for waiver of Order No. 888 are hereby
granted in part and denied in part, as discussed in the body of
this order, and subject to the conditions discussed in the body
of this order.
(E) The requests for waiver of Order No. 889 are hereby
granted in part and denied in part, as discussed in the body of
this order, and subject to the conditions discussed in the body
of this order.
.
Docket No. OA96-6-000, et al. - 16 -
(F) Applicants are hereby directed to comply with all
requirements of Order Nos. 888 and 889 which were not waived by
Ordering Paragraphs (D) or (E) above, within 30 days of the date
of this order.
By the Commission.
( S E A L )
Lois D. Cashell,
Secretary.
