Regulatory policy

FERC QF Self-Recertifications and the “Same Day Policy”

FERC has finally answered a long overdue question – when does a QF self-recertification need to be renewed? That is, is there a grace period before such a filing is due after a material fact has changed? The short answer is that there is no grace period. And, staff consider anything that happens beyond 30 days after a material change occurs as worthy of self-reporting.

The PURPA regulations found at 18 CFR Section 292.207(f)(1)(i) state that “[i]If the Qualifying Facility fails to comply with material facts or representations submitted by the Cogenerator or Small Power Producer in its submissions to the Board, the notice of self-certification or the Board’s order certifying the qualifying status of the facility can no longer be invoked. At that point, if the facility continues to meet the Board’s qualification criteria under this Part, the cogenerator or small power producer may file either a notice of self-recertification of qualification status pursuant to the requirements of paragraph (a) of this section, or an application for recertification from the Commission in accordance with the requirements of paragraph (b) of this section, as the case may be. Many industry players assumed that, similar to other changes and reporting requirements (for example, inheritance notice; status changes; Order No. 860 submissions), that there must be a reasonable period of time (i.e. 30 days) after the change occurs before self-recertification is “due”. But, Irradiant Partners, LP clarifies that FERC expects material changes to be submitted on the day of the change in fact. (Because form 556 line 1I allows a filer to indicate the date a change will take effect, changes can be filed sooner.) FERC did not dispute that staff advised Irradiant that if they filed a self-recertification earlier 30 days after a material change in facts or declarations, he must himself report this (these) filing(s) to the Enforcement Office.

In the case, Irradiant acquired a controlling interest of 185 QF in October 2021, which it said was a material change triggering the self-recertification of Form No. 556. Irradiant filed a motion for a declaratory order seeking a waiver of the filing requirement for the recertification of each QF. In denying the waiver, FERC noted that “the filing requirement is a substantive and important criterion for QF status, which was expressly adopted in Order No. 671 and must be adhered to.” That said, the failure to file was largely irrelevant as the QFs were not operational and did not rely on their QF certification for anything.

Irradiant noted in his file that he could find no deadline for filing the self-recertification and also discussed advice received from staff. In response, FERC found that the information contained in a Form 556 still should be fluent. FERC said that “for a small electric generating facility to qualify as QF, the owner or operator of the facility must ensure that Form 556 filed with the Commission contains information up-to-date and accurate”. FERC went on to explain that while “the regulations do not explicitly state when a QF must file for recertification to reflect a material change, recertification is required when the material change is made.” FERC reiterated that advance deposits are often possible but not required.

There may be circumstances where this “same day policy” could, in theory, be of significant importance. For example, some RTOs, such as PJM, monitor and queue interconnections from entities with QF status planning to sell to the market. If these irradiating QFs had been in PJM’s queue and lost their QF status for a while, as they clearly did in that order, PJM might have removed them all from his queue. queue and instructed them to ask the distribution owner for interconnect service because they were no longer qualified to be in the PJM queue. On the other hand, if a CQ is operational, losing CQ status for a brief period will not necessarily have serious consequences (some CQ contracts even have alternative rates for periods of non-compliance), but since this creates some risk, this “same day policy” must be followed.