regulations by extending the 120-day limit in section 284.223(a). Tennessee states that its delay in filing its prior notice request was due to administrative oversight. We find that the potential hardship inherent in interrupting the ongoing transportation service outweighs the potential benefit of strict adherence to the 120-day limitation in section 284.223(a)(1) of the regulations. The Commission orders: The 120-day limitation in section 284.223(a)(1) of the Commission's regulations is waived to the extent necessary to permit Tennessee to continue the transportation activity described in the petition without interruption until 45 days after the date notice was issued in this proceeding in accordance with section 157.205 of the regulations. [¶ 61,231] Algonquin Gas Transmission Company, Docket Nos. CP91-1207-000, Order Granting Requests for Waiver (Issued March 5, 1991) Before Commissioners: Martin L. Allday, Chairman; Charles A. Trabandt, On February 11, 1991, Algonquin Gas Transmission Company (Algonquin) filed petitions for waiver of section 284.223(a) of the Commission's regulations in the above dockets. Section 284.223(a) provides interstate pipelines that have accepted a blanket certificate under section 284.221 of the Commission's regulations with automatic authorization to commence transportation service on behalf of any shipper for a term of 120 days. The 120-day term may be extended indefinitely if the transporting pipeline complies with the prior notice require Docket No. CP91-1207-000 CP91-1208-000 ments of section 157.205 of the Commission's regulations. The prior notice requirement is satisfied if no protests are filed after issuance of notice by the Commission.2 Section 157.205(e) establishes a 45-day notice period for such protests. Algonquin instituted transportation services pursuant to section 284.223(a) for the following shippers and filed prior notice requests on February 11, 1991, for authorization of the services as set forth in the following table: were issued in these proceedings in accordance with section 157.205 of the regulations. [¶ 61,232] Colorado Interstate Gas Company, Docket Nos. CP91-1162-000 and Order Granting Requests for Waiver (Issued March 5, 1991) Before Commissioners: Martin L. Allday, Chairman; Charles A. Trabandt, On February 5, 1991, Colorado Interstate Gas Company (Colorado Interstate) filed petitions for waiver of section 284.223(a) of the Commission's regulations in the above dockets.. Section 284.223(a) provides interstate pipelines that have accepted a blanket certificate under section 284.221 of the Commission's regulations with automatic authorization to commence transportation service on behalf of any shipper for a term of 120 days. The 120-day term may be extended indefinitely if the transporting pipeline complies with the prior notice requirements of section 157.205 of the Commission's regulations. The prior notice requirement is satisfied if no protests are filed after issuance of notice by the Commission.2 Section 157.205(e) establishes a 45-day notice period for such protests. Colorado Interstate instituted transportation service pursuant to section 284.223(a) for Western Gas Processors, Ltd., on September 26, 1990, and for Golden Gas Energies, Inc., on September 27, 1990, and filed prior notice requests for authorization to continue the service with the Commission on February 11, 1991. Due to the late filing of the prior notice requests, the self-implementing transportation portion of these transactions has expired. Therefore, Colorado Interstate requests that the Commission waive its regulations by extending the 120-day limit in section 284.223(a). Colorado Interstate states in each case, "Due to administrative burdens, the parties in this transaction were unable to execute the agreement provided herein in a timely manner...." We find that the potential hardship inherent in interrupting the ongoing transportation services outweighs the potential benefit of strict adherence to the 120-day limitation in section 284.223(a)(1) of the regulations. The Commission orders: The 120-day limitation in section 284.223(a)(1) of the Commission's regulations is waived to the extent necessary to permit Colorado Interstate to continue the transportation activities described in its petitions without interruption until 45 days after the date notice was issued in these proceedings in accordance with section 157.205 of the regulations. [¶ 61,233] Tennessee Gas Pipeline Company, Docket No. RP88-228-032 (Issued March 5, 1991) Before Commissioners: Martin L. Allday, Chairman; Charles A. Trabandt, In an order issued January 31, 1989,1 the 118 C.F.R. § 284.223(b). 218 C.F.R. § 157.205(a). 146 FERC 61,113, at p. 61,443 (1989). demand, even if the customer has nominated a D-2 level below the full annual contract demand.2 Tennessee appealed that decision to the United States Court of Appeals for the 2 The D-2 charge is based on annual sales using a measure of historical entitlement figures and, if the entitlements are out-of-date, customers have been allowed to renominate within the annual contract District of Columbia Circuit.3 In a similar case, Panhandle Eastern Pipe Line Company v. FERC, the same Court found that the Commission had erroneously concluded that Panhandle must serve its customers at certificated levels regardless of lower customer D-2 nominations. Accordingly, the Commission requested the Court to remand the Tennessee case to the Commission for consideration in light of Panhandle. The Commission's motion was granted by the Court in a per curium order issued November 3, 1989. The Commission has since remanded the D-2 issue in Panhandle for consideration by the presiding administrative law judge in that company's current rate case.5 Because this case is similar to the Panhandle proceeding, the Commission is remanding the D-2 issue arising here to the presiding administrative law judge in Tennessee's current rate case in Docket No. RP88-228-000. As in the Panhandle remand order," the Commission will not here decide the merits of the remanded issue, which is more appropriately addressed in Tennessee's current rate case now pending before an administrative law judge. The Commission's rate design policy statement directed the presiding administrative law judges and participants in a number of proceedings, including Tennessee's in Docket No. RP88-228-000, to develop records that delve into and resolve a number of specified issues consistent with the policy statement. One issue raised by the policy statement is the recovery of costs between the demand and commodity charges. Among other things, the Commission expressed concern that the MFV method for dividing costs between the demand and commodity charges, and its division of the demand charge into a peak (D-1) and annual (D-2) charge may no longer be warranted in today's circumstances. Since these issues are being litigated in Docket No. RP88-228-000, it is appropriate that the remanded D-2 issue also be considered in that docket so that all issues concerning Tennessee's D-2 charge may be considered together. For example, elimination of D-2s may eliminate the need to further consider the issue remanded by the Court. Accordingly, the Commission will remand the D-2 issue for hearing and decision in Tennessee's current general rate case in Docket No. RP88-228-000. Any determination that the administrative law judge may make on this issue will have only prospective effect consistent with the settlement agreement in Docket No. RP88-228-000.8 The Commission does not anticipate that this remand order will have a significant impact on the Docket No. RP88-228-000 proceeding, which is well advanced with testimony filed and cross-examination about to commence. D-2 rate design issues have been set for hearing in that proceeding, and the parties there are thus likely to have already addressed the D-2 issue discussed in this order, either explicitly or implicitly (e.g., by eliminating D-2s). The Commission is only attempting to ensure that the court remand issue is not inadvertently left unresolved in that comprehensive rate proceeding. The Commission orders: The D-2 issue is remanded to the presiding administrative law judge for consideration in Tennessee's current rate case in Docket No. RP88-228-000.. [¶ 61,234] Cincinnati Gas & Electric Company v. Buckeye Power, Inc., Docket No. Order on Complaint, Denying Motions for Summary Disposition, Establishing Hearing Procedures, Establishing Refund Effective Date, and Regulatory Fairness Act Notice (Issued March 5, 1991) Before Commissioners: Martin L. Allday, Chairman; Charles A. Trabandt, This case is the result of an August 10, 1990 complaint filed with the Commission by Cincinnati Gas & Electric Company (Cincinnati). Cincinnati's complaint challenges the use of Cincinnati's transmission facilities by Buckeye Power, Inc. (Buckeye) for delivery of Buckeye power and energy to the City of Hamilton, Ohio (Hamilton). Cincinnati claims that its complaint conforms to the procedural framework established by the Commission in American Municipal Power-Ohio, Inc. v. Dayton Power & Light Company (Dayton),1 for determining in certain factual situations whether transmission service by various Ohio utilities, including Cincinnati, is required under the Buckeye Power Delivery Agreement (Buckeye Agreement). The Buckeye Agreement is a contract among various Ohio investor-owned utilities, including Cincinnati, and Buckeye which was entered into in 1968 and is on file with the Commission and designated as Ohio Power Company Rate Schedule FPC No. 70. Cincinnati contends that the Buckeye Agreement contains an "anti-pirating" provision, which permits Cincinnati to refuse the requested service. Cincinnati requests summary disposition of the issues raised in its complaint. Notice of Cincinnati's complaint was published in the Federal Register,2 with comments, protests, and interventions due on or before September 13, 1990. On September 13, 1990, Buckeye filed an answer to Cincinnati's complaint and a request for summary disposition. Buckeye claims that the parties have already litigated these issues in a previous case before the Commission, Buckeye Power, Inc. v. Cincinnati Gas & Electric Company (Buckeye),3 and that Cincinnati is barred by res judicata from relitigating these issues. In addition, on September 13, 1990, American Municipal Power-Ohio, Inc. (AMPOhio) and Hamilton separately filed motions to intervene, protests, requests for summary disposition, requests for dismissal of the complaint, and, in the alternative, requests for a 1 See American Municipal Power-Ohio Inc. et al. v. Dayton Power & Light Company (Dayton), 19 FERC 61,158, reh'g denied, 20 FERC ¶ 61,018 (1982), order instituting hearing procedures, 23 FERC 61,439, Initial Decision issued, 25 FERC ¶ 63,075 (1983), opinion on exceptions, Opinion No. 259, 37 FERC 61,311 (1986), order on rehearing, Opinion No. 259-A, 38 FERC 61,175 (1987). 2 55 Fed. Reg. 34,073 (1990). 3 Buckeye Power, Inc. v. Cincinnati Gas & Electric Company (Buckeye), 10 FERC 61,012 (1980), ¶ 61,234 hearing and investigation. Like Buckeye, AMP-Ohio and Hamilton also argue that these matters have already been determined by the Commission in Buckeye. Background Cincinnati is an investor-owned utility that provides electric and gas service to a population of approximately 1.7 million customers in southwestern Ohio and adjacent areas of Kentucky and Indiana. AMP-Ohio is a nonprofit organization of Ohio municipal electric systems, which generates and purchases electric power and energy for its members. Hamilton is a municipal electric system that wishes to purchase through AMP-Ohio and from Buckeye power and energy that Buckeye has available to sell; transmission by Cincinnati is required for Hamilton to obtain that Buckeye power and energy. Buckeye is a nonprofit electric generation and transmission cooperative incorporated under the laws of Ohio. In 1968, Buckeye signed the Buckeye Agreement with six investor-owned utilities (Delivery Companies), including Cincinnati, to transmit Buckeye power and energy across their respective systems to Buckeye member cooperatives for resale to the member cooperatives' customers. The Buckeye Agreement and the Anti-pirating Statute4 The Buckeye Agreement defines the contractual obligations of the Delivery Companies, including Cincinnati, and Buckeye with regard to the transmission of Buckeye power and energy. The Buckeye Agreement provides for the transmission and delivery of the "Buckeye Power Requirement." The "Buckeye Power Requirement" is defined as: [t]he aggregate requirements of Buckeye for electric power and energy from time to time for sale and delivery by the Buckeye Mem Initial Decision issued, 14 FERC 63,007 (1981), order on exceptions, 18 FERC ¶ 61,067, reh'g denied, 18 FERC 61,269 (1982), rev'd sub nom. Cincinnati Gas & Electric Company v. FERC, 724 F.2d 550 (6th Cir. 1984), order on remand, 37 FERC ¶ 61,298 (1986). 4 The Buckeye Agreement and the anti-pirating statute are discussed in both the Buckeye and Dayton proceedings. See, e.g., 14 FERC at pp. 65,007-09; 18 FERC at p. 61,114; 25 FERC at pp. 65,218-219, 37 FERC at pp. 61,917-18; see also 724 F.2d at 551-52. bers and for resale and delivery by the Buckeye Members to customers in the State of Ohio for ultimate consumption within the State of Ohio or use by the Buckeye Members within said state in the operation of their respective facilities and systems; provided, however, that consistent with the desire and objective of all parties to minimize any unnecessary or uneconomic duplication of facilities, there shall not be included in the Buckeye Power Requirement any quantity of electric power and/or energy furnished to any consumer when the furnishing of power and/or energy to such consumer by a Buckeye Member is proscribed by the law of the State of Ohio reflected in § 4905.26.1, Revised Code of Ohio, as said section is in effect at the date of this Agreement. It is understood and agreed that the term "consumer" as used in said § 4905.26.1 applies to any customer of a power and/or energy supplier whether served at wholesale or at retail. Section 4905.26.1 of the Ohio Codes in effect at that time (popularly known as the antipirating statute, but titled "Filing of complaints against unnecessary duplication of electric facilities") stated that: Whenever a public utility proposes to furnish or furnishes electric energy to a consumer and which consumer is being furnished or was being furnished electric energy by another public utility, the latter public utility may file a complaint with the public utilities commission protesting the furnishing of service by the other public utility. Such complaint shall be filed within ninety days from the date the public utility which is furnishing electric energy discovers that another utility proposes to furnish the consumer with electric energy. In the event a consumer has been disconnected from the lines of a public utility, and electric energy has not been furnished said consumer for a period of more than ninety days, no right to file a complaint shall accrue under this section. The Commission upon finding that the complaining public utility has been furnishing or will furnish adequate service to such consumer and the public utility complained against will duplicate facilities of the complainant, shall order the public utility complained against not to furnish electric energy to such consumer. 5 Ohio repealed the anti-pirating statute in 1978 and replaced it with a system of territorial allocation for retail electric service, and unrestricted competition for wholesale loads. See 25 FERC at p. 65,220; 37 FERC at p. 61,924 n.17. In 1967, the Federal Power Commission declined to preapprove the lawfulness of the Buckeye Agreement as it had originally filed." Certain Ohio municipalities had objected to restrictions in the original Buckeye Agreement that prohibited municipalities from being Buckeye members or customers of Buckeye members. In an effort to salvage the Buckeye Agreement, Buckeye and the Delivery Companies sought approval from the Justice Department under the Antitrust Business Review Procedure. Subsequently, in substitution for the original language which precluded service to any customer of a Delivery Company, so as to gain the approval of the Justice Department, the Buckeye Agreement was amended to incorporate the anti-pirating statute. The Justice Department then provided the clearance which Buckeye and the Delivery Companies requested. Thereafter, the Federal Power Commission accepted the Buckeye Agreement for filing, without investigation, and stated: to the extent we have authority over the transactions under the Federal Power Act, we cannot legally be bound by the provisions of the Ohio Anti-Pirating Act. On the other hand, the fact that the contract provisions reflect policy determinations, which the Ohio Legislature has found persuasive, would be given due consideration in any determination this Commission might subsequently be required to make as to whether the various utilities, in agreeing to wheel Buckeye power to Buckeye members who were previously taking their full requirements from such utilities, can properly require Buckeye to refrain from making sales to still others of their customers. We are thus prepared to allow the contracts underlying the proposed acquisition to become effective upon filing without challenge or investigation. We do not see, however, how in advance of any specific controversy, and in the absence of detailed knowledge of the factual situation then prevailing, we can be asked to give any advisory opinion as to how the Commission might act upon the many possible factual situations which might arise during the more than a third of a century that the various contracts have to run. This is particularly so since no determination by us now could in any event legally bind the Commission or the courts, if 637 FERC at p. 61,918; accord, Buckeye Power, Inc. et al. 38 FPC 253, 257-58, 260, reh'g denied, 38 FPC 519, 519-21 (1968). 7 37 FERC at p. 61,918, accord, Buckeye Power, Inc. et al., 39 FPC 805, 806, 809-11 (1968). |