Establishment of Settlement Agreement Effective Date
and Closure of Dockets
We now turn to the second portion of the July 2011 Petition, which requests the establishment of a Settlement Agreement Effective Date. We agree with Joint Petitioners' statements that the Settlement Agreement "represents the culmination of more than a year and a half of negotiations and regulatory approval processes" 24 and we would also like to see the Settlement Agreement implemented as soon as possible. In order to establish a Settlement Agreement Effective Date, Sections 16.2.1 and 16.2.2 of the CHP Program Settlement Agreement Term Sheet (Term Sheet) as adopted in D.10-12-035 create two conditions25 which must be present before the Settlement becomes effective.
(16.2.1) a final and non-appealable Commission decision approving the QF/CHP settlement that does not modify, change, and/or make an addition to the settlement;
(16.2.2) a final and non-appealable FERC order approving a Joint Application to suspend the mandatory purchase obligation for QFs greater than 20 [megawatts] MW under the Public Utility Regulatory Policies Act of 1978 ("PURPA").26
As established by the Joint Petitioners, the IOUs filed on March 18, 2011 a joint application to suspend the mandatory purchase obligation for QFs greater than 20 MW under PURPA. On June 16, 2011, the Federal Energy Regulatory Commission (FERC) issued its Order Granting Application to Terminate Purchase Obligation ("Order").27 The Joint Petitioners also establish that the FERC Order is final and non-appealable as of July 18, 2011. The Joint Respondents do not contest the fact in their Response that the condition in 16.2.2 to establish a Settlement Agreement Effective Date has been met.
The Joint Petitioners state that the condition in 16.2.1, however, "has not yet been satisfied as a result of the language added into D.11-07-010."28 Because final and non-appealable status of the Commission decision approving the settlement is required to satisfy this condition, and D.10-12-035 has a pending application for rehearing from CMUA on the MDL issue, the April 2011 Petition states: "The proposed modifications of D.10-12-035 would resolve CMUA's Application for Rehearing of D.10-12-035. Accordingly, upon Commission adoption, without change, of the modifications proposed herein, CMUA will submit a letter to the Executive Director of the Commission withdrawing CMUA's Application for Rehearing or, alternatively, the Commission may, concurrent with its adoption of the modifications proposed herein, deny CMUA's Application for Rehearing as moot."29
The July 2011 Petition states that if the Commission were to approve the petition to delete the specified language from D.11-07-010 that "the Settling Parties agree that the [16.2.1] condition precedent will have been satisfied when a Commission order granting the [July 2011] Petition becomes final and non-appealable."30
The July 2011 Petition references31 Ordering Paragraph (OP) 6 of D.10-12-035, which states "[the proceedings] shall remain open pending action on a motion for closure to be filed by proponents, with the supporting documentation, of the (Settlement Agreement) if and when the conditions precedent to the settlement effective date set forth in the Settlement Agreement have been met. Subject to the discretion of the assigned Commissioner or Administrative Law Judge, the proceedings may be held in abeyance pending such motion and Commission action on such motion." OP 6 also requires regular status reports to be filed at the Commission, including detail on when the "motion for closure is filed, stating what actions have been completed and what actions remain to be completed before the conditions precedent have been met. The Commission decision that addresses the motion for closure will set the effective date of the Qualifying Facility/Combined Heat and Power Program set forth in the Settlement Agreement."
24 July 2011 Petition at 2.
25 Section 16.2 of the Term Sheet has the conditions precedent to effectiveness of the Settlement. D.10-12-035 recognized most of them at the time of its issuance; the remaining conditions needed to establish a Settlement Agreement Effective Date are these two Sections, 16.2.1 and 16.2.2.
26 16 U.S.C. § 796, et seq. (2011).
27 July 2011 Petition at 8.
28 Id.
29 April 2011 Petition at 1-2.
30 July 2011 Petition at 8.
31 July 2011 Petition at 7.
