125 FERC ¶ 61,271

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Joseph T. Kelliher, Chairman;

Suedeen G. Kelly, Marc Spitzer,

Philip D. Moeller, and Jon Wellinghoff.

+--------------------------------------------+----------+-------------+
| Cargill Power Markets, LLC                 | Docket   | EL09-5-000  |
|                                            | No.      |             |
| v\.                                        |          |             |
|                                            |          |             |
| Central Maine Power Company,               |          |             |
|                                            |          |             |
| NSTAR Electric Company, and                |          |             |
|                                            |          |             |
| The United Illuminating Company            |          |             |
+--------------------------------------------+----------+-------------+

ORDER DISMISSING COMPLAINT

(Issued December 5, 2008)

1.  On October 24, 2008, Cargill Power Markets, LLC (Cargill) filed a
    complaint against Central Maine Power Company (Central Maine), NSTAR
    Electric Company (NSTAR), and The United Illuminating Company
    (United Illuminating) (collectively, the Schedule 20A Service
    Providers or SSPs) contending that three transmission service
    agreements between Cargill and the SSPs should be eligible for
    rollover rights in accordance with the rollover provisions of Order
    No. 888.[^1] In this order, we dismiss Cargill's complaint for the
    reasons discussed below.

# Background

2.  On November 1, 2007, Cargill submitted several transmission service
    requests for long-term firm point-to-point transmission service over
    the 2000 megawatt high-voltage direct current transmission
    facilities interconnecting the transmission systems operated by ISO
    New England Inc. (ISO-NE) and Hydro-Québec TransÉnergie (Phase I/II
    HVDC transmission facilities).[^2] Through the SSPs' allocation
    process, Cargill was awarded long-term firm point-to-point service
    and executed transmission service agreements (Agreements) with
    NSTAR, Central Maine, and United Illuminating. Each of the
    Agreements is for a one-year term, with service commencing on
    January 1, 2008. Cargill sought to renew the Agreements in
    accordance with Order No. 888's rollover provisions, which require a
    one-year term in order for a contract to be eligible for rollover
    rights. However, Cargill's rollover request was denied, and the SSPs
    informed Cargill that the Order No. 890 rollover provisions,[^3]
    which require a five-year term in order for a contract to be
    eligible for rollover rights, apply to the Agreements.

# Complaint

3.  Cargill points out that, in Order No. 890, the Commission determined
    that the rollover reform language should be made effective for a
    particular transmission provider at the time of acceptance by the
    Commission of a transmission provider's Attachment K, setting forth
    a coordinated and transparent regional planning process.
    Accordingly, Cargill argues that, in the case of the SSPs, the
    five-year commitment requirement for eligibility of rollover rights
    should not be imposed on any customer until the date on which the
    Commission accepted the ISO-NE Attachment K (i.e., May 15,
    2008).[^4] Because service under the Agreements commenced on January
    1, 2008, Cargill reasons that the Agreements are not yet implicated
    by the minimum five-year duration requirement. Cargill therefore
    contends it may exercise one rollover under the Agreements, pursuant
    to the Order No. 888 rollover rules.[^5]

4.  Cargill recognizes that the pre-Order No. 890 Schedule 20A did not
    contain any rollover rights.[^6] However, Cargill acknowledges that
    the SSPs did not realize that they had failed to include the
    required Order No. 888 rollover language when developing Schedule
    20A.[^7] Cargill argues that this omission was never justified to
    the Commission and that the absence of rollover rights from the
    pre-Order No. 890 Schedule 20A cannot be considered "consistent with
    or superior to" the Commission's *pro forma* OATT. Further, Cargill
    states that the Agreements contain no restrictions on rollover
    rights, as required by Order No. 890-A.[^8] Cargill requests that
    the Commission direct the SSPs to grant Cargill's requested rollover
    of the service at issue.

# Notice of Filing and Responsive Pleadings

5.  Notice of Cargill's October 24, 2008 complaint was published in the
    *Federal Register*, 73 Fed. Reg. 65,302, with interventions and
    protests due on or before November 7, 2008. On November 7, 2008, the
    SSPs filed a motion to dismiss and answer to the complaint.
    Brookfield Energy Marketing Inc. (Brookfield) filed a timely motion
    to intervene. H.Q. Energy Services (U.S.) Inc. (H.Q. Energy
    Services) filed a timely motion to intervene and comments.

6.  The SSPs request that the Commission dismiss Cargill's complaint.
    The SSPs state that, in an order issued on October 27, 2008,[^9] the
    Commission rejected Cargill's argument that prior to the
    Commission's acceptance of Attachment K, the Order No. 888 rollover
    provisions should apply to service under Schedule 20A. The SSPs
    contend therefore that the complaint amounts to an impermissible
    collateral attack on the October 27 Order. Further, the SSPs state
    that the doctrine of *res judicata* precludes the relitigation of
    issues that have been decided as to the parties in a prior judicial
    or administrative proceeding, and that the Commission has ruled
    against relitigation of issues because it is "contrary to sound
    administrative practice and a waste of resources."[^10]

7.  If the Commission denies its motion to dismiss, the SSPs propose
    that Cargill's complaint should be rejected on the merits. The SSPs
    point out that the Order No. 888 *pro forma* tariff language
    regarding rollover rights is not present in Schedule 20A as approved
    by the Commission. Further, with respect to Cargill's claim that the
    Agreements should have identified any restrictions on rollover
    rights, the SSPs state that this requirement only relates to
    restrictions beyond those stated in the governing tariff.

8.  Brookfield and H.Q. Energy Services also contend that Cargill's
    complaint should be denied because the pre-Order No. 890 Schedule
    20A contained no rollover rights. Brookfield and H.Q. Energy
    Services state that granting Cargill's complaint would harm other
    customers who entered into service agreements based on the
    understanding that no rollover rights were in existence prior to
    Order No. 890.

# Discussion

9.  We dismiss Cargill's complaint for the reasons discussed below. At
    the outset, we recognize that the Commission addressed this issue in
    its October 27 Order, in response to a protest submitted by Cargill.
    In that proceeding, the Commission agreed with Cargill that the
    SSPs' rollover reform language can only become effective after the
    Commission's acceptance of Attachment K.[^11] The Commission found
    that for the period prior to the Commission's acceptance of
    Attachment K, it was appropriate for the SSPs to continue to use
    their Commission-approved OATT, which was approved without any
    rollover language:[^12]

Of significance here, the PTOs' and the SSPs' pre-Order No. 890 OATTs
were approved without any rollover language. The PTOs and the SSPs
nonetheless included the Order No. 890 rollover reforms in their
compliance filings, and we find it acceptable that the PTOs and the SSPs
include such language after the Commission's acceptance of the Filing
Parties' Attachment K. However, for the period prior to the Commission's
acceptance of Attachment K, we find that it is appropriate for the PTOs
and the SSPs to continue to use their Commission-approved *pro forma*
OATTs, which did not include language reflecting a one year rollover
right.\[[^13]\]

Thus, the SSPs have been operating without a one-year rollover right
provision in their transmission service agreements under Schedule 20A.
Therefore, the SSPs were not required to grant a one-year rollover right
to Agreements entered into prior to the Commission's acceptance of
Attachment K.

10. Further, Cargill has provided no evidence that the SSPs intended to
    allow customers to exercise a one-year rollover right,
    notwithstanding Cargill's suggestion that the Order No. 888 rollover
    language (providing the one-year rollover right) was inadvertently
    omitted from Schedule 20A. Schedule 20A was approved without a
    one-year rollover right and no evidence has been presented that the
    intent memorialized in the Agreements was otherwise. To require a
    one-year rollover right now would be unfair to customers who entered
    into service agreements based on the understanding that no rollover
    rights existed prior to the Commission's acceptance of Attachment K.

11. The fact that the Agreements did not include any language limiting
    rollover rights does not signify that a one-year rollover right must
    apply. Such language is only necessary to address a discrepancy
    between the governing tariff and a service agreement.[^14] Here, the
    pre-Order No. 890 Schedule 20A was accepted by the Commission
    without providing for rollover rights, and it was not necessary for
    the SSPs to address this issue in every service agreement.

[The Commission orders]{.underline}:

Cargill's complaint is dismissed, as discussed in the body of this
order.

By the Commission.

( S E A L )

> Kimberly D. Bose,
>
> Secretary.

[^1]: *Promoting Wholesale Competition Through Open Access
    Non-Discriminatory Transmission Services by Public Utilities;
    Recovery of Stranded Costs by Public Utilities and Transmitting
    Utilities*, Order No. 888, FERC Stats. & Regs. ¶ 31,036 (1996),
    *order on reh'g*, Order No. 888-A, FERC Stats. & Regs. ¶ 31,048,
    *order on reh'g*, Order No. 888-B, 81 FERC ¶ 61,248 (1997), *order
    on reh'g*, Order No. 888-C, 82 FERC ¶ 61,046 (1998), *aff'd in
    relevant part sub nom. Transmission Access Policy Study Group v.
    FERC*, 225 F.3d 667 (D.C. Cir. 2000), *aff'd sub nom. New York v.
    FERC*, 535 U.S. 1 (2002).

[^2]: The SSPs, including Central Maine, NSTAR, and United Illuminating,
    hold the rights to transmission capacity over the United States'
    portion of the Phase I/II HVDC transmission facilities. The SSPs
    make those rights available on an open-access basis under Schedule
    20A of the ISO-NE Open Access Transmission Tariff (OATT). The SSPs
    that are not parties to this proceeding are Bangor Hydro-Electric
    Company, Central Vermont Public Service Corp., Green Mountain Power
    Corp., New England Power Company, Northeast Utilities Service
    Company, and Vermont Electric Cooperative, Inc.

[^3]: *Preventing Undue Discrimination and Preference in Transmission
    Service*, Order No. 890, FERC Stats. & Regs. ¶ 31,241 (2007), *order
    on reh'g*, Order No. 890-A, 73 Fed. Reg. 2984 (Jan. 16, 2008), FERC
    Stats. & Regs. ¶ 31,261 (2007), *order on reh'g*, Order No. 890-B,
    73 Fed. Reg. 39,092 (July 8, 2008), 123 FERC ¶ 61,299 (2008).

[^4]: The Commission accepted ISO-NE's Attachment K, as modified and
    subject to further compliance filings, on May 15, 2008. *See ISO New
    England Inc.*, 123 FERC ¶ 61,161 (2008).

[^5]: Cargill recognizes that subsequent rollover requests will require
    that service have a minimum duration of five years.

[^6]: Complaint at 12.

[^7]: *Citing* ISO-NE and SSPs Transmittal Letter, Docket No.
    ER08-54-000, at 52 (filed Oct. 11, 2007):

    > During the course of their efforts to comply with Order No. 890,
    > the SSPs realized that the Rollover Rights language from Order No.
    > 888 had not been included in Schedule 20A when Schedule 20A was
    > developed out of the open access transmission tariffs of the
    > individual SSPs.

    Complaint at 12.

[^8]: *Citing* Order No. 890-A, FERC Stats. & Regs. ¶ 31,261 at P 633
    ("\[A\]ny restrictions on a customer's rollover rights must be
    included in the initial transmission service agreement.").

[^9]: *ISO New England Inc.*, 125 FERC ¶ 61,098 (2008) (October 27
    Order).

[^10]: Answer at 7 (quoting *Alamito Co.*, 43 FERC ¶ 61,274, at 61,753
    (1988); *see also Central Kansas Power Co.*, 5 FERC ¶ 61,291, at
    61,621 (1978)).

[^11]: October 27 Order, 125 FERC ¶ 61,098 at P 17. The October 27 Order
    directed the SSPs to re-file the rollover reform language
    established in Order No. 890 and to request an effective date
    commensurate with the date of that filing.

[^12]: *See id.* P 18.

[^13]: *Id.*

[^14]: For example, if reasonable forecasts of native load growth or
    preexisting contracts that commence in the future would restrict
    rollover rights.