2. Recommendation ALJ’s The ALJ found the Duquesne and BFMA arguments unpersuasive. The ALJ concluded that NRG established that in environment, Rider No. six cent today’s 18’s rate is almost double what is available in the open market, referencing evidence NRG’s of the three cent average PJM DALMP in the Duquesne service area from the year 2009 to the present. R.D. at 36. As addressed above, the ALJ also found that the purchase rate in Rider No. 18 is governed by the provisions of PURPA since, absent a contract term “as available” that is defined by a specified term limit over a calendar period, the ALJ found the contract had no term. Therefore, according to the ALJ, when the QF provides energy as available, rates for purchases shall be based upon the purchasing avoided “the utility’s costs calculated at the time of 18 C.F.R. § 292.304(d)(1). As a result, the ALJ delivery.” concluded that the Rider No. 18 purchase rate cannot be a stagnant six “by necessity cents per kilowatt-hour rate as it has been for over thirty years. The avoided costs purchase rate must be determined at the time of the delivery of the R.D. at 39. energy.” Based upon the above findings, the ALJ concluded that the NRG Companies established their burden of proving that Rider No. 18 is no longer compliant with the current regulatory scheme. Further, concluding that Commission’s “both and positions rested on legal that the ALJ found Duquesne’s BFMA’s arguments” the ALJ concluded that Light did not present any credible “unavailing,” “Duquesne evidence to rebut, in essence, prima facie R.D. at 40. As a result, the ALJ NRG’s case.” found that Rider No. 18 is unjust and unreasonable and not in the public interest. The ALJ recommended that Rider No. 18 be removed from tariff. In the Duquesne’s alternative, the ALJ recommended that Duquesne be permitted to file a revised rider for the consideration with due notice to all affected parties. Id. Commission’s
2. ALJ’s Recommendation The ALJ found the Duquesne and BFMA arguments unpersuasive. The ALJ concluded that NRG established that in today’s environment, Rider No. 18’s six cent rate is almost double what is available in the open market, referencing NRG’s evidence of the three cent average PJM DALMP in the Duquesne service area from the year 2009 to the present. R.D. at 36. As addressed above, the ALJ also found that the purchase rate in Rider No. 18 is governed by the “as available” provisions of PURPA since, absent a contract term that is defined by a specified term limit over a calendar period, the ALJ found the contract had no term. Therefore, according to the ALJ, when the QF provides energy as available, “the rates for purchases shall be based upon the purchasing utility’s avoided costs calculated at the time of delivery.” 18 C.F.R. § 292.304(d)(1). As a result, the ALJ concluded that “by necessity the Rider No. 18 purchase rate cannot be a stagnant six cents per kilowatt-hour rate as it has been for over thirty years. The avoided costs purchase rate must be determined at the time of the delivery of the energy.” R.D. at 39. Based upon the above findings, the ALJ concluded that the NRG Companies established their burden of proving that Rider No. 18 is no longer compliant with the Commission’s current regulatory scheme. Further, concluding that “both Duquesne’s and BFMA’s positions rested on legal arguments” that the ALJ found “unavailing,” the ALJ concluded that “Duquesne Light did not present any credible evidence to rebut, in essence, NRG’s prima facie case.” R.D. at 40. As a result, the ALJ found that Rider No. 18 is unjust and unreasonable and not in the public interest. The ALJ recommended that Rider No. 18 be removed from Duquesne’s tariff. In the alternative, the ALJ recommended that Duquesne be permitted to file a revised rider for the Commission’s consideration with due notice to all affected parties. Id.
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