Commissioner James Danly Statement
July 15, 2021
Docket Nos. EL21-50-000, QF21-222-001

We dissent from today’s order granting the Board of Trustees of Michigan State University’s (Michigan State) request for partial waiver of QF filing requirements.  While we are sympathetic to Michigan State’s status as a public university that is not principally in the utility business, we cannot support the Commission’s determination that Michigan State’s cogeneration facility was installed prior to March 13, 1980 and is therefore exempt from the efficiency standards established in section 292.205(a)(2)(i) of the Commission’s QF regulations.[1]

While Michigan State units 1, 2, and 3, totaling 40 MW, were installed prior to March 13, 1980, units 4, 5, and 6, totaling 58.5 MW, were installed after that date.[2]  These post-1980 additions increased the facility’s capacity by 146 percent, a sufficiently large increase as to be considered a facility constructed after 1980 for purposes of determining the installation date. The Commission has found that a capacity increase to an existing QF facility can be “so great” [3] as to merit treating it as a “new” QF for purposes of certification requirements.  We find the circumstances here more analogous to cases where the Commission has required separate certification due to material modification of a facility than to cases where recertification has not been required.[4]

We do not agree it is appropriate to evaluate the facility’s capacity additions on an incremental basis, as the Commission’s order implicitly does.[5]  What matters is that Michigan State’s facility now is substantially different than it was on March 13, 1980.  Just as the Commission looks at cumulative additions since the last point of market power analysis when evaluating market-based rate authority,[6] it is logical for the Commission to look to cumulative facility additions when assessing QF certification and recertifications requirements.  Because the Michigan State facility’s capacity has more than doubled since March 13, 1980, we cannot support a determination that it is exempt from the efficiency standards established in 18 C.F.R. § 292.205(a)(2)(i).

For these reasons, we respectfully dissent.


[1] 18 C.F.R. § 292.205(a)(2)(i). 

[2] Petition at 8.

[3] Revised Regulations Governing Small Power Production and Cogeneration Facilities, Order No. 671, 114 FERC ¶ 61,102 at P 115 (2006) (cautioning that a change may be “so great . . . that what an applicant is claiming to be an existing facility should, in fact, be considered a ‘new’ cogeneration facility at the same site”).

[4] Compare T.E.S. Filer City Station LP, 164 FERC ¶ 61,082, at P 15 (2018) (387% capacity increase) and Chugach Elec. Ass’n, 121 FERC ¶ 61,287, at P 31 (2007) (279% capacity increase) with Medical Area Total Energy Plant, Inc., 130 FERC ¶ 61,254, reh’g denied, 131 FERC ¶ 61,215, at (2010) (25% capacity increase) and EcoElectrica, L.P., 168 FERC ¶ 62,161, at 64,389 (2019) (delegated order) (4% capacity increase).

[5] See Order at P 13 (“Michigan State incrementally added units (approximately 21 MW in 1990 and 38.3 MW in 2004)”).

[6] Market-Based Rates for Wholesale Sales of Electric Energy, Capacity and Ancillary Services by Public Utilities, Order No. 697, 123 FERC ¶ 61,055, at P 513 (2008) (requiring sellers in wholesale electricity markets to report the “cumulative effect of all increases in generation capacity since its most recently approved [filing]”) (emphasis added).

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