FERC Filings
MOTION TO INTERVENE OUT OF TIME, REQUEST FOR REHEARING, AND MOTION FOR LIMITED STAY PENDING REHEARING OF THE ELECTRIC POWER SUPPLY ASSOCIATION re: PJM INTERCONNECTION, L.L.C.
DESCRIPTION OF MOVANT AND SUPPORT FOR GRANTING MOTION TO INTERVENE OUT OF TIME
EPSA is the national trade association representing competitive power suppliers, including independent power producers, merchant generators and power marketers. These suppliers, who account for more than a third of the nation’s installed generating capacity, provide reliable and competitively priced electricity from environmentally responsible facilities serving global power markets. EPSA seeks to bring the benefits of competition to all power customers. Many EPSA members are participants in the PJM Interconnection, L.L.C. control area (PJM), do business within PJM markets and own, operate and construct generation facilities that serve the PJM control area. Based upon EPSA members’ current and anticipated business activities as participants in the PJM markets, EPSA has a direct and substantial interest in this proceeding and cannot adequately be represented by any single other party.
Further, there is good cause to allow EPSA to intervene out of time. The Commission’s notice of the January 22, 2002 filing (January Filing) that was the subject of the Commission’s May 15, 2002 “Order Addressing Compliance Filing and Directing Further Modification” (May 15th Order) in this proceeding, a notice prepared by PJM, was not adequate. The Commission’s January 25, 2002 notice of the January Filing (January 25th Notice) does not indicate that any revisions were being made to the Market Monitoring Plan (MMP) set forth in Attachment M to PJM’s Open Access Transmission Tariff (Tariff), when in fact the January Filing proposed a significant and fundamental change to the MMP. The January Filing changed the process by which PJM’s Market Monitoring Unit (MMU) may request entities to provide information, and the process by which such information requests can be challenged. The January 25th Notice states, in relevant part:
Take notice that on January 22, 2002, [PJM] tendered for filing, pursuant to the Commission’s December 20, 2001, “Order Requiring the Filing of New Oversight Measures and Terminating Investigation” and section 206 of the Federal Power Act, revisions to the PJM Open Access Transmission Tariff, the Amended and Restated Operating Agreement of [PJM] and the PJM Transmission Owners Agreement to implement the transmission oversight procedures and practices described by PJM in its November 2, 2001 transmission oversight report in Docket No. EL01-122-000. (emphasis added)
Because the January 25th Notice failed to specify that the January Filing would change the MMP, such notice was incomplete, imprecise and legally insufficient. As a result, EPSA and other potential parties to this proceeding were misinformed of the intended and significant change to the MMP. EPSA only became aware of the broad scope of the January Filing by reading the May 15th Order, after the Commission had accepted a sweeping change to the MMP that had never been properly noticed. Had adequate notice of such been provided, interested parties would have been able to determine that the January Filing would directly affect their interests and would have been able to submit timely motions to intervene and protest. EPSA’s lateness in seeking to intervene in this proceeding, therefore, is a direct result of the lack of full disclosure in the January 25th Notice. For these reasons, the Commission should grant EPSA’s motion to intervene out of time.
In determining whether to grant a late intervention, the Commission may consider: whether there is good cause for failing to file a timely motion, whether the late intervention will cause a disruption to the proceeding, whether movant’s interest is adequately represented in the proceeding and whether the late intervention will prejudice or impose additional burdens on existing parties. As shown below, an evaluation of each factor indicates that FERC should grant late intervention in this proceeding.
- Good cause. The lack of notice of the extent and substantive content of the January Filing is good cause. As discussed above, the January 25th Notice was missing significant information about the scope of the January Filing. Thus, EPSA could not reasonably have known that the MMP was about to be substantially revised.
- No disruption. EPSA is seeking to intervene less than one month after the issuance of the May 15th Order and within the statutory rehearing timeframe. There would be no disruption to this or any other ongoing proceedings by granting this late intervention. Moreover, EPSA is aware that existing parties to this proceeding intend to seek rehearing of the May 15th Order. The Commission has permitted late interventions for the limited purpose of seeking rehearing when existing parties to a proceeding have also sought rehearing, and such requests are still pending, because the proceeding is not closed.
- EPSA’s interests are not adequately represented. As discussed above, EPSA represents the interests of numerous participants in the PJM markets. EPSA members may be impacted by any changes to the MMP. EPSA, therefore, has a unique interest in this proceeding that no existing party can adequately represent.
- No Prejudice or Burden. EPSA’s late intervention would not prejudice or impose any burden on any party to this proceeding.
Beyond the consideration of these four factors, the Commission has also granted late motions to intervene where a Commission order expanded the scope, changed the interests of the parties, or provided the first notice that parties would have significant interest in the outcome of a proceeding. That is the case here.