4 N.C. Admin. Code 11R08-71
Current through Register Vol. 39, No. 9, November 1, 2024
Section 11 R08-71 - COMPETITIVE PROCUREMENT OF RENEWABLE ENERGY(a) Purpose. - The purpose of this rule is to implement the provisions of G.S. 62-110.8, and to provide for Commission oversight of the CPRE Program(s) designed by the electric public utilities subject to G.S. 62-110.8 for the competitive procurement and development of renewable energy facilities in a manner that ensures continued reliable and cost-effective electric service to customers in North Carolina.(b) Definitions. (1) "Affiliate" is defined as provided in G.S. 62-126.3(1).(2) "Avoided cost rates" - means an electric public utility's calculation of its long-term, levelized avoided energy and capacity costs utilizing the methodology most recently approved or established by the Commission as of 30 days prior to the date of the electric public utility's upcoming CPRE RFP Solicitation for purchases of electricity from qualifying facilities pursuant to Section 210 of the Public Utility Regulatory Policies Act of 1978, as amended. The electric public utility's avoided cost rates shall be used for purposes of determining the cost effectiveness of renewable energy resources procured through a CPRE RFP Solicitation. With respect to each CPRE RFP Solicitation, the electric public utility's avoided costs shall be calculated over the time period of the utility's pro forma contract(s) approved by the Commission.(3) "Competitive Procurement of Renewable Energy (CPRE) Program" means the program(s) established by G.S. 62-110.8 requiring Duke Energy Carolinas, LLC, and Duke Energy Progress, LLC, to jointly or individually procure an aggregate 2,660 megawatts (MW) of renewable energy resource nameplate capacity subject to the requirements and limitations established therein.(4) "CPRE Program Methodology" means the methodology used to evaluate all proposals received in a given CPRE RFP Solicitation.(5) "CPRE Program Procurement Period" means the initial 45-month period in which the aggregate 2,660 MW of renewable energy resource nameplate capacity is required to be procured under the CPRE Program(s) approved by the Commission.(6) "CPRE RFP Solicitation" means a request for proposal solicitation process to be followed by the electric public utility under this Rule for the competitive procurement of renewable energy resource capacity pursuant to the utility's CPRE Program.(7) "Evaluation Team" means employees and agents of an electric public utility that will be evaluating proposals submitted in response to the CPRE RFP Solicitation, including those acting for or on behalf of the electric public utility regarding any aspect of the CPRE RFP Solicitation evaluation or selection process.(8) "IA Website" means the website established and maintained by the Independent Administrator as required by subsection (d)(7) of this Rule.(9) "Independent Administrator" means the third-party entity to be approved by the Commission that is responsible for independently administering the CPRE Program in accordance with G.S. 62-110.8 and this rule, developing and publishing the CPRE Program Methodology, and for ensuring that all responses to a CPRE RFP Solicitation are treated equitably.(10) "Electric public utility" means an electric public utility that is required to comply with the requirements of G.S. 62-110.8.(11) "Market participant" means a person who has expressed interest in submitting a proposal in response to a CPRE RFP Solicitation or has submitted such a proposal, including, unless the context requires otherwise, an Affiliate or an electric public utility, through its Proposal Team.(12) "Proposal Team" means employees and agents of an electric public utility or an Affiliate that proposes to meet a portion of its CPRE Program requirements as provided in G.S. 62-110.8(b)(i) or (ii), which is more particularly described as a "Self-developed Proposal" in subsection (f)(2)(iv) of this rule, who directly support the Self-developed Proposal.(13) "Renewable energy certificate" is defined as provided in G.S. 62-133.8(a)(6).(14) "Renewable energy facility" means an electric generating facility that uses renewable energy resource(s) as its primary source of fuel, has a nameplate capacity rating of 80 MW or less, and is placed into service after the beginning of the CPRE Program Procurement Period.(15) "Renewable energy resource" is as defined as provided in G.S. 62-133.8(a)(8).(16) "T&D Sub-Team" means those members of the Evaluation Team responsible for assessing the impacts of proposals on the electric public utility's transmission and distribution systems and assigning any system upgrade costs attributable to each proposal pursuant to R8-71(f)(3)(iii). The T&D Sub-Team shall be designated in writing to the Independent Administrator and shall have no communication, either directly or indirectly, with the other members of the Evaluation Team or a market participant concerning any proposal, except through the Independent Administrator, from the date on which the draft CPRE RFP Solicitation documents are issued by the Independent Administrator until the CPRE RFP Solicitation is deemed closed.(c) Initial CPRE Program Filings and Program Guidelines (1) Each electric public utility shall develop and seek Commission approval of guidelines for the implementation of its CPRE Program and to inform market participants regarding the terms and conditions of, and process for participating in, the CPRE Program. The electric public utility shall file its initial CPRE Program guidelines at the time it initially proposes a CPRE Program for Commission approval. The CPRE Program guidelines should, at minimum, include the following: (i) Planned allocation between the electric public utilities of the 2,660 MW required to be procured during the CPRE Program Procurement Period;(ii) Proposed timeframe for each electric public utility's initial CPRE RFP Solicitation(s) and planned initial procurement amount, as well as plans for additional CPRE RFP Solicitation(s) during the CPRE Program Procurement Period;(iii) Minimum requirements for participation in the electric public utility's initial CPRE RFP Solicitation(s);(iv) Proposed evaluation factors, including economic and noneconomic factors, for the evaluation of proposals submitted in response to CPRE RFP Solicitation(s); and(v) Pro forma contract(s) to be utilized in the CPRE Program.(2) At the time an electric public utility files its proposed CPRE Program guidelines with the Commission, it shall also identify any regulatory conditions and/or provisions of the electric public utility's code of conduct that the electric public utility seeks to waive for the duration of the CPRE Program Procurement Period pursuant to G.S. 62-110.8(h)(2).(d) Selection and Role of Independent Administrator. (1) In advance of the filing the initial CPRE Program required by subsection (c) of this Rule, the Commission shall invite and consider comments and recommendations from the electric public utilities, the Public Staff, and other interested persons, including market participants, regarding the selection of the Independent Administrator. In addition to the requirements in this Rule, the Commission may establish additional minimum qualifications and requirements for the Independent Administrator.(2) Any person requesting to be considered for approval as the Independent Administrator shall be required to disclose any financial interest involving the electric public utilities implementing CPRE Programs or any market participant, including, but not limited to, all substantive assignments for electric public utilities, Affiliate(s), or market participant during the preceding three (3) years.(3) In advance of the initial CPRE RFP Solicitation(s), the Commission shall select and approve the Independent Administrator. From the date the Independent Administrator is selected, no market participant shall have any communication with the Independent Administrator or the electric public utility pertaining to the CPRE RFP Solicitation, the RFP documents and process, or the evaluation process or any related subjects, except as those communications are specifically allowed by this rule.(4) The Independent Administrator will be retained by the electric public utility or jointly by the electric public utilities for the duration of the CPRE Program Procurement Period under a contract to be filed with the Commission at least sixty (60) days prior to the public utilities' initial CPRE RFP Solicitation(s). The Independent Administrator shall remain subject to ongoing Commission oversight as part of the Commission's review of the electric public utilities' annual CPRE Program Compliance Reports.(5) The Independent Administrator's duties shall include: (i) Monitor compliance with CPRE Program requirements.(ii) Review and comment on draft CPRE Program filings, plans, and other documents.(iii) Facilitate and monitor permissible communications between the electric public utilities' Evaluation Team and other participants in the CPRE RFP solicitations.(iv) Develop and publish the CPRE Program Methodology that shall ensure equitable review between an electric public utility's Self-developed Proposal(s) as addressed in subsection (f)(2)(iv) and proposals offered by third-party market participants.(v) Receive and transmit proposals.(vi) Independently evaluate the proposals.(vii) Monitor post-proposal negotiations between the electric public utilities' Evaluation Team(s) and participants who submitted winning proposals.(viii) Evaluate the electric public utility's Self-developed Proposals.(ix) Provide an independent certification to the Commission in the CPRE Compliance Report that all electric public utility and third party proposals were evaluated under the published CPRE Program methodology and that all proposals were treated equitably through the CPRE RFP Solicitation(s).(6) Prior to the initial CPRE RFP Solicitation, but on or before the date determined by Commission order, Independent Administrator shall develop and publish the CPRE Program Methodology. Prior to developing and publishing the CPRE Program Methodology, the Independent Administrator shall meet with the Evaluation Team(s) to share evaluation techniques and practices. The Independent Administrator shall also meet with the Evaluation Team(s) at least 60 days prior to each subsequent CPRE RFP Solicitation to discuss the efficacy of the CPRE Program Methodology and whether changes to the CPRE Program Methodology may be appropriate based upon the anticipated contents of the next CPRE RFP Solicitation. If the CRPE RFP Solicitation allows for electric public utility self-build options or Affiliate proposals, the Independent Administrator shall ensure that if any non-publicly available transmission or distribution system information is used in preparing proposals by the electric public utility or Affiliate(s), such information is made available to third parties that notified the Independent Administrator or their intent to submit a proposal in response to the that CPRE RFP Solicitation.(7) The Independent Administrator shall maintain the IA Website to support administration and implementation of the CPRE Program and shall post the CPRE RFP Solicitation documents, the CPRE Program Methodology, participant FAQs, and any other pertinent documents on the IA Website.(8) In carrying out its duties, the Independent Administrator shall work in coordination with the Evaluation Team(s) with respect to CPRE Program implementation and the CPRE RFP Solicitation proposal evaluation process in the manner and to the extent as more specifically provided in subsection (f) of this rule.(9) If the Independent Administrator becomes aware of a violation of any CPRE Program requirements, the Independent Administrator shall immediately report that violation, together with any recommended remedy, to the Commission.(10) The Independent Administrator's fees shall be funded through reasonable proposal fees collected by the electric public utility. The electric public utility shall be authorized to collect proposal fees up to $10,000 per proposal to defray its costs of evaluating the proposals. In addition, the electric public utility may charge each participant an amount equal to the estimated total cost of retaining the Independent Administrator divided by the reasonably anticipated number of proposals. To the extent that insufficient funds are collected through these methods to pay of the total cost of retaining the Independent Administrator, the electric public utility shall pay the balance and subsequently charge the winning participants in the CPRE RFP Solicitation.(e) Communications Between CPRE Market Participants.(1) From the date an electric public utility announces a CPRE RFP Solicitation, until the Independent Administrator declares the CPRE RFP Solicitation closed, there shall be no communications between market participants regarding the substantive aspects of their proposals or between the electric public utility and market participants. Such communications shall be conducted through the Independent Administrator as permitted by this subsection.(2) The Evaluation Team or the Independent Administrator may request further information from any market participant regarding its proposal during the process of evaluating and selecting proposals. These communications shall be conducted through the Independent Administrator and shall be conducted in a manner that keeps confidential the identity of the market participant.(3) On or before the date an electric public utility announces a CPRE RFP Solicitation, the Proposal Team shall be separately identified and physically segregated from the Evaluation Team for purposes of all activities that are part of the CPRE RFP Solicitation process. The names and job titles of each member of the Proposal Team and the Evaluation Team shall be reduced to writing and submitted to the Independent Administrator.(4) There shall be no communications, either directly or indirectly, between the Proposal Team and Evaluation Team during the CPRE RFP Solicitation regarding any aspect of the CPRE RFP Solicitation process, except (i) necessary communications as may be made through the Independent Administrator and (ii) negotiations between the Proposal Team and the Evaluation Team for a final power purchase agreement after the Proposal Team has been selected by the electric public utility as a winning proposal. The Evaluation Team will have no direct or indirect contact or communications with the Proposal Team or any other participant, except through the Independent Administrator as described further herein, until such time as a winning proposal or proposals are selected by the electric public utility and negotiations for a final power purchase agreement(s) have begun.(5) At no time shall any information regarding the CPRE RFP Solicitation process be shared with any market participant, including the Proposal Team, unless the information is shared with all competing participants contemporaneously and in the same manner.(6) Within fifteen (15) days of the date an electric public utility announces a planned CPRE RFP Solicitation, each member of the Proposal Team shall execute an acknowledgement that he or she agrees to abide by the restrictions and conditions contained in subsection (e) of this rule for the duration of the CPRE RFP Solicitation. If the Proposal Team's proposal is selected by the electric public utility after completion of the CPRE RFP Solicitation, each member of the Proposal Team shall then also execute an acknowledgement that he or she has met the restrictions and conditions contained in subsection (e) of this rule. The electric public utility shall provide these acknowledgements to the Independent Administrator and shall file the acknowledgements with the Commission in support of its annual CPRE Compliance Report.(7) Should any participant, including an Affiliate or electric public utility's Proposal Team, attempt to contact a member of the Evaluation Team directly, such participant shall be directed to the Independent Administrator for all information and such communication shall be reported to the Independent Administrator by the Evaluation Team member. Within ten (10) days of the date that the Independent Administrator issues the CPRE RFP Solicitation, each Evaluation Team member shall execute an acknowledgement that he or she agrees to abide by the conditions contained in subsection (e) of this rule for the duration of the CPRE RFP Solicitation. If the Proposal Team's proposal is selected by the electric public utility after completion of the CPRE RFP Solicitation, the Evaluation Team shall also execute an acknowledgement that he or she has met the restrictions and conditions contained in subsection (e)(3)-(5) above. The electric public utility shall provide these acknowledgements to the Independent Administrator and shall file the acknowledgements with the Commission in support of its annual CPRE Compliance Report.(f) CPRE RFP Solicitation Structure and Process.(1) Identification of Market Participants; Design of CPRE RFP Solicitation. (i) Prior to the initial CPRE RFP Solicitation, the electric public utility shall provide the Independent Administrator with a list of potential market participants that have expressed interest, in writing, in participating in the CPRE RFP Solicitation or have participated in recent renewable energy resource solicitations issued by the electric public utilities. The Independent Administrator shall publish notice of the draft CPRE RFP Solicitation on the IA Website, and prepare the list of potential participants to whom notice of the upcoming CPRE RFP Solicitation will be sent.(ii) The electric public utility shall prepare an initial draft of the CPRE RFP Solicitation guidelines and documents, including RFP procedures, evaluation factors, credit and security obligations, a pro forma power purchase agreement, the Avoided Cost Rate against which proposals will be evaluated, and a planned schedule for completing the CPRE RFP Solicitation and selecting winning proposals. No later than sixty (60) days prior to the planned issue date of the CPRE RFP Solicitation, the electric public utility shall provide the initial draft of the CPRE RFP Solicitation guidelines and documents to the Independent Administrator for posting on the IA Website.(iii) The evaluation factors included in the CPRE RFP Solicitation guidelines shall identify all economic and noneconomic factors to be considered by the Independent Administrator in its evaluation of proposals. In addition to the guidelines, a pro forma power purchase agreement containing all expected material terms and conditions shall be included in the CPRE RFP Solicitation documents provided to the Independent Administrator and shall be filed with the Commission at least thirty (30) days prior to the planned CPRE RFP solicitation issuance date.(iv) The Independent Administrator, in coordination with the electric public utility, may conduct a pre-issuance market participants' conference to publicly discuss the draft CPRE RFP Solicitation guidelines and documents with market participants. Market participants may submit written questions or recommendations to the Independent Administrator regarding the draft CPRE RFP Solicitation guidelines and documents in advance of the market participants' conference. All such questions and recommendations shall be posted on the IA Website. The Independent Administrator shall have no private communication with any potential participants regarding any aspect of the draft CPRE RFP Solicitation documents.(v) Based on the input received from potential participants, and on its own review of the draft CPRE RFP Solicitation documents, the Independent Administrator shall submit a report to the electric public utility, at least twenty (20) days prior to the planned CPRE RFP Solicitation issuance date, detailing market participants' comments and the Independent Administrator's recommendations for changes to the CPRE RFP Solicitation documents, if any. This report shall also be posted on the IA Website for review by potential participants.(vi) At least five (5) days prior to the planned CPRE RFP Solicitation issuance date, the electric public utility shall submit its final version of the CPRE RFP Solicitation documents to the Independent Administrator to be posted on the IA Website.(vii) At any time after the CPRE RFP Solicitation is issued, through the time winning proposals are selected by the electric public utility, the schedule for the solicitation may be modified upon mutual agreement of the electric public utility and the Independent Administrator, with equal notice provided to all market participants, or upon approval by the Commission. Any modification to the CPRE RFP Solicitation schedule will be posted to the IA Website.(2) Issuance of CPRE RFP Solicitation. (i) The Independent Administrator shall transmit the final CPRE RFP Solicitation to the market participants via the IA Website. Upon issuance of the final CPRE RFP Solicitation, the only communications permitted prior to submission of proposals shall be conducted through the Independent Administrator. Participants' questions and the Independent Administrator's responses shall be posted on the IA Website, but, to the extent possible, shall be posted in a manner that the identity of the participant remains confidential. To the extent such questions and responses contain competitively sensitive information that a particular participant deems to be a trade secret, this information may be redacted by the participant.(ii) The electric public utility shall not communicate with any market participant regarding the RFP Process, the content of the CPRE RFP Solicitation documents, or the substance of any potential response by a participant to the RFP; provided, however, the electric public utility shall provide timely, accurate responses to the Independent Administrator's request for information regarding any aspect of the CPRE RFP Solicitation documents or the CPRE RFP Solicitation process.(iii) Participants shall submit proposals pursuant to the solicitation schedule contained in the CPRE RFP Solicitation, and in the format required by the Independent Administrator to facilitate the evaluation and selection of proposals. The Independent Administrator shall have access to all proposals and all supporting documentation submitted by market participants in the course of the CPRE RFP Solicitation process.(iv) If the electric public utility wishes to consider an option for full or partial ownership of a renewable energy facility as part of the CPRE RFP solicitation, the utility must submit its construction proposal (Self-developed Proposal) to provide all or part of the capacity requested in the CPRE RFP solicitation to the Independent Administrator at the time all other proposals are due. Once submitted, the Self-developed Proposal may not be modified, except in the event that the electric public utility demonstrates to the satisfaction of the Independent Administrator that the Self-developed Proposal contains an error and that correction of the error will not be unduly harmful to the other market participants, the electric public utility may correct the error. Persons who have participated or assisted in the preparation of the Self-developed Proposal on behalf of the electric public utility's Proposal Team in any way may not be a member of the Affiliate's Proposal Team, nor communicate with the Affiliate's Proposal Team during the RFP Process about any aspect of the RFP Process.(3) Evaluation and Selection of Proposals. The evaluation and selection of proposals received in response to a CPRE RFP Solicitation shall proceed in two steps as set forth in this subdivision, and shall be subject to the Commission's oversight as provided in G.S. 62-110.8 and this rule. (i) In step one, the Independent Administrator shall evaluate all proposals based upon the CPRE RFP Solicitation evaluation factors using the CPRE Program Methodology. The Independent Administrator shall conduct this evaluation in an appropriate manner designed to ensure equitable review of all proposals based on the economic and noneconomic factors contained in the CPRE RFP Solicitation evaluation factors. As a result of the Independent Administrator's evaluation, the Independent Administrator shall, subject to the provisions of subsection (f)(3)(ii) of this Rule, eliminate proposals that fail to meet the CPRE RFP Solicitation evaluation factors and then develop and deliver to the electric public utility's T&D Sub-Team a list of proposals ranked in order from most competitive to least competitive. The Independent Administrator shall redact from the proposals included in the list delivered to the electric public utility any information that identifies the market participant that submitted the proposal and any information in the proposal that is not reasonably necessary for the utility to complete step two of the evaluation process, including economic factors such as cost and pricing information.(ii) As a part of the step one evaluation, the Independent Administrator may, in its discretion, allow a market participant to modify or clarify its proposal to cure a non-conformance that would otherwise require elimination of the proposal, and may consult with the electric public utility's Evaluation Team to determine whether a proposal meets the CPRE RFP Solicitation Evaluation factors. In consulting with the Evaluation Team, the Independent Administrator shall maintain the anonymity of the market participant that submitted the proposal. The Independent Administrator shall document the reasons for the elimination of a proposal.(iii) In step two, the electric public utility's T&D Sub-Team shall assess the system impact of the proposals in the order ranked by the Independent Administrator and assign any system upgrade costs attributable to each proposal included in the list provided by the Independent Administrator. The T&D Sub-Team shall conduct this assessment in a reasonable manner, with oversight by the Independent Administrator, and in parallel with the Independent Administrator's allowing modification or clarification of proposals and consultation with the Evaluation Team, as provided in (f)(3)(ii), if applicable. The electric public utility's T&D Sub-Team shall provide its assessment of system upgrade costs to the Independent Administrator, who shall first determine whether such system upgrade costs have been appropriately assigned and then determine whether the original ranking of proposals needs to be modified to recognize the system upgrade costs assigned to each proposal. The Independent Administrator shall also eliminate any proposal where necessary in order to comply with G.S. 62-110.8(b)(4). If no re-ranking is needed and the Independent Administrator has concluded its evaluation pursuant to (f)(3)(ii) of this Rule, if applicable, then the electric public utility shall select the winning proposals in accordance with subsection (iv) below. If the Independent Administrator modifies the original ranking as result of the assignment of system upgrade costs or the elimination of a proposal, it shall deliver to the T&D Sub-Team of the electric public utility such revised list of proposals ranked in order from most competitive to least competitive (with market participant information redacted as described in step one) and the assignment of system upgrade costs described in this subsection shall be performed again by the T&D Sub-Team and provided to the Independent Administrator, who will re-rank the proposals. This process shall continue on an iterative basis, as directed by the Independent Administrator, until the Independent Administrator determines that the total generating capacity sought in the CPRE RFP Solicitation is satisfied in the most cost-effective manner after taking into account the assignment of system upgrade costs through this step two.(iv) Upon completion of step two and determination by the Independent Administer of the final ranking of the proposals, the Independent Administrator shall deliver to the Evaluation Team of the electric public utility the final ranked list of proposals. The electric public utility shall select proposals in the order ranked by the Independent Administrator until the total generating capacity sought in the CPRE RFP Solicitation is satisfied, and the Independent Administrator shall provide the electric public utility with the identity of the market participants that were so selected. Upon publication of the list of proposals selected, the Independent Administrator shall declare the CPRE RFP Solicitation closed.(v) The electric public utility shall proceed to execute contracts (where applicable) with each of the market participants who submitted a proposal that was selected. If a market participant selected pursuant to subsection (iv) fails to execute a contract during the contracting period identified in the CPRE RFP Solicitation, the electric public utility shall provide to the Independent Administrator a short and plain explanation regarding such failure and the Independent Administrator, after consultation with the Evaluation Team, shall determine whether the next-ranked proposal or proposals should be selected in order to procure the total generating capacity sought in the CPRE RFP Solicitation. For the avoidance of doubt, the Evaluation Team shall not have access to the identifying information of any such proposals prior to the Independent Administrator's determination. If no additional proposals are selected, the capacity amount associated with the proposal of the market participant that failed to execute a contract shall be included in a subsequent CPRE RFP Solicitation; provided that if, no further CPRE RFP Solicitations are scheduled, the electric public utility shall take such action as is directed by the Commission.(g) CPRE Program Plan. (1) Each electric public utility shall file its initial CPRE Program plan with the Commission at the time initial CPRE Program Guidelines are filed under subsection (c) and thereafter shall be filed on or before September 1 of each year. The electric public utility may file its CPRE Program plan as part of its future biennial integrated resource plan filings, or update thereto, and the CPRE Program plan filed pursuant to this rule will be reviewed in the same docket as the electric public utility's biennial integrated resource plan or update filing.(2) Each year, beginning in 2018, each electric public utility shall file with the Commission an updated CPRE Program plan covering the remainder of the CPRE Program Procurement Period. At a minimum, the plan shall include the following information: (i) an explanation of whether the electric public utility is jointly or individually implementing the aggregate CPRE Program requirements mandated by G.S. 62-110.8(a);(ii) a description of the electric public utility's planned CPRE RFP Solicitations and specific actions planned to procure renewable energy resources during the CPRE Program planning period;(iii) an explanation of how the electric public utility has allocated the amount of CPRE Program resources projected to be procured during the CPRE Program Procurement Period relative to the aggregate CPRE Program requirements;(iv) if designated by location, an explanation of how the electric public utility has determined the locational allocation within its balancing authority area;(v) an estimate of renewable energy generating capacity that is not subject to economic dispatch or economic curtailment that is under development and projected to have executed power purchase agreements and interconnection agreements with the electric public utility or that is otherwise projected to be installed in the electric public utility's balancing authority area within the CPRE Program planning period; and(vi) a copy of the electric public utility's CPRE Program guidelines then in effect as well as a pro forma power purchase agreement used in its most recent CPRE RFP Solicitation.(3) Upon the expiration of the CPRE Program Procurement Period, the electric public utility shall file a CPRE Program Plan in the following calendar year identifying any additional CPRE Program procurement requirements, as provided for in G.S. 62-110.8(a).(4) In any year in which an electric public utility determines that it has fully complied with the CPRE Program requirements set forth in G.S. 62-110.8(a), the electric public utility shall notify the Commission in its CPRE Program Plan, and may petition the Commission to discontinue the CPRE Program Plan filing requirements beginning in the subsequent calendar year.(h) CPRE Program Compliance Report. (1) Each electric public utility shall file its annual CPRE Program compliance report, together with direct testimony and exhibits of expert witnesses, on the same date that it files its application to recover costs pursuant to subsection (j) of this rule. The Commission shall consider each electric public utility's CPRE Program compliance report at the hearing provided for in subsection (j) and shall determine whether the electric public utility is in compliance with the CPRE Program requirements of G.S. 62-110.8.(2) Beginning in 2019, and each year thereafter, each electric public utility shall file with the Commission a report describing the electric public utility's competitive procurement of renewable energy resources under its CPRE Program and ongoing actions to comply with the requirements of G.S. 62-110.8 during the previous calendar year, which shall be the "reporting year." The report shall include the following information, including supporting documentation: (i) a description of CPRE RFP Solicitation(s) undertaken by the electric public utility during the reporting year, including an identification of each proposal eliminated pursuant to subsection (f)(3)(ii) of this rule and an explanation of the utility's basis for elimination of each proposal;(ii) a description of the sources, amounts, and costs of third-party power purchase agreements and proposed authorized revenues for utility-owned assets for renewable energy resources procured through CPRE RFP Solicitation(s) during the reporting year, including the dates of all CPRE Program contracts or utility commitments to procure renewable energy resources during the reporting year;(iii) the forecasted nameplate capacity and megawatt-hours of renewable energy and the number of renewable energy certificates obtained through the CPRE Program during the reporting year;(iv) identification of all proposed renewable energy facilities under development by the electric public utility that were proposal into a CPRE RFP Solicitation during the reporting year, including whether any non-publicly available transmission or distribution system operations information was used in preparing the proposal, and, if so, an explanation of how such information was made available to third parties that notified the utility of their intention to submit a proposal in the same CPRE RFP Solicitation;(v) the electric public utility's avoided cost rates applicable to the CPRE RFP Solicitation(s) undertaken during the reporting year and confirmation that all renewable energy resources procured through a CPRE RFP Solicitation are priced at or below the electric public utility's avoided cost rates;(vi) the actual total costs and authorized revenues incurred by the electric public utility during the calendar year to comply with G.S. 62-110.8;(vii) the status of the electric public utility's compliance with the aggregate CPRE Program procurement requirements set forth in G.S. 62-110.8(a);(viii) a copy of the contract then in effect between the electric public utility and Independent Administrator, supporting information regarding the administrative fees collected from participants in the CPRE RFP Solicitation during the reporting year, as well as any cost incurred by the electric public utility during the reporting year to implement the CPRE RFP Solicitation; and(ix) certification by the Independent Administrator that all public utility and third-party proposal responses were evaluated under the published CPRE Program Methodology and that all proposals were treated equitably through the CPRE RFP Solicitation(s) during the reporting year.(i) Compliance with CPRE Program Requirements.(1) An electric public utility shall be in compliance with the CPRE Program requirements during a given year where the Commission determines that the electric public utility's CPRE Program plan is reasonably designed to meet the requirements of G.S. 62-110.8 and, based on the utility's most recently filed CPRE Program compliance report, that the electric public utility is reasonably and prudently implementing the CPRE Program requirements.(2) An electric public utility, or other interested party, may petition the Commission to modify or delay the provisions of G.S. 62-110.8 in whole or in part. The Commission shall allow a modification or delay upon finding that it is in the public interest to do so.(3) Renewable energy certificates purchased or earned by an electric public utility while complying with G.S. 62-110.8 must have been earned after January 1, 2018, and may be retired to meet an electric public utility's REPS compliance obligations under G.S. 62-133.8.(4) The owner of any renewable energy facility included as part of a proposal selected through a CPRE RFP Solicitation shall register the facility as a new renewable energy facility under Rule R8-66 no later than 60 calendar days from receiving written notification that the facility was included as part of a proposal selected and shall participate in the North Carolina Renewable Energy Tracking System (NC-RETS) to facilitate the issuance or importation of renewable energy certificates contracted for under the CPRE Program.(j) Cost or authorized revenue recovery. (1) Beginning in 2018, for each electric public utility, the Commission shall schedule an annual public hearing pursuant to G.S. 62-110.8(g) to review the costs incurred or anticipated to be incurred by the electric public utility to comply with G.S. 62-110.8. The annual rider hearing for each electric public utility will be scheduled as soon as practicable after the hearing held by the Commission for the electric public utility under Rule R8-55.(2) The Commission shall permit each electric public utility to charge an increment or decrement as a rider to its rates to recover in a timely manner the reasonable and prudent costs incurred and anticipated to be incurred to implement its CPRE Program and to comply with G.S. 62-110.8. In any application for cost recovery and collection of authorized revenues wherein the utility proposes to recover costs or collect revenues attributable to a utility-owned renewable energy facility calculated on a market basis, in lieu of a cost-of-service basis, the utility shall support its application with testimony specifically addressing the calculation of those costs and revenues sufficient to demonstrate that recovery on a market basis is in the public interest.(3) Unless otherwise ordered by the Commission, the test period for each electric public utility shall be the same as its test period for purposes of Rule R8-55.(4) Rates set pursuant to this section shall be recovered during a fixed recovery period that shall coincide, to the extent practical, with the recovery period for the cost of fuel and fuel-related cost rider established pursuant to Rule R8-55.(5) The costs and authorized revenue will be further modified through the use of a CPRE Program experience modification factor (CPRE EMF) rider. The CPRE EMF rider will reflect the difference between reasonable and prudently-incurred CPRE Program projected costs, authorized revenue, and the revenues that were actually realized during the test period under the CPRE Program rider then in effect. Upon request of the electric public utility, the Commission shall also incorporate in this determination the experienced over-recovery or under-recovery of the costs and authorized revenue up to 30 days prior to the date of the hearing, provided that the reasonableness and prudence of these costs and authorized revenues shall be subject to review in the utility's next annual CPRE Program cost recovery hearing.(6) The CPRE EMF rider will remain in effect for a fixed 12-month period following establishment and will carry through as a rider to rates established in any intervening general rate case proceedings.(7) Pursuant to G.S. 62-130(e), any over-collection of reasonably and prudently-incurred costs and authorized revenues to be refunded to an electric public utility's customers through operation of the CPRE EMF rider shall include an amount of interest, at such rate as the Commission determines to be just and reasonable, not to exceed the maximum statutory rate.(8) Each electric public utility shall follow deferred accounting with respect to the difference between actual reasonably and prudently-incurred costs or authorized revenue and related revenues realized under rates in effect.(9) The annual increase in the aggregate amount of costs recovered under G.S. 62-110.8(g) in any recovery period from its North Carolina retail customers shall not exceed one percent (1%) of the electric public utility's total North Carolina retail jurisdictional gross revenues for the preceding calendar year determined as of December 31 of the previous calendar year. Any amount in excess of that limit shall be carried over and recovered in the next recovery period when the annual increase in the aggregate amount of costs to be recovered is less than one percent (1%).(10) Each electric public utility, at a minimum, shall submit to the Commission for purposes of investigation and hearing the information required for the CPRE Program compliance report for the 12-month test period established in subsection (3) consistent with Rule R8-55, accompanied by supporting workpapers and direct testimony and exhibits of expert witnesses, and any change in rates proposed by the electric public utility at the same time that it files the information required by Rule R8-55.(11) The electric public utility shall publish a notice of the annual hearing for 2 successive weeks in a newspaper or newspapers having general circulation in its service area, normally beginning at least 30 days prior to the hearing, notifying the public of the hearing before the Commission pursuant to G.S. 62-110.8(g) and setting forth the time and place of the hearing.(12) Persons having an interest in said hearing may file a petition to intervene setting forth such interest at least 15 days prior to the date of the hearing. Petitions to intervene filed less than 15 days prior to the date of the hearing may be allowed at the discretion of the Commission for good cause shown.(13) The Public Staff and intervenors shall file direct testimony and exhibits of expert witnesses at least 15 days prior to the hearing date. If a petition to intervene is filed less than 15 days prior to the hearing date, it shall be accompanied by any direct testimony and exhibits of expert witnesses the intervenor intends to offer at the hearing.(14) The electric public utility may file rebuttal testimony and exhibits of expert witnesses no later than 5 days prior to the hearing date.(15) The burden of proof as to whether CPRE Program-related costs or authorized revenues to be recovered under this section were reasonable and prudently-incurred shall be on the electric public utility.(k) Expedited review and approval of Certificate of Public Convenience and Necessity for renewable energy facilities owned by an electric public utility and procured under the CPRE Program.(1) Scope of Section. (i) This section applies to applications for a certificate of public convenience and necessity pursuant to G.S. 62-110.8(h)(3) filed by an electric public utility for the construction and operation of renewable energy facilities owned by an electric public utility for compliance with the requirements of G.S. 62-110.8, and to petitions to transfer a certificate of public convenience and necessity to an electric public utility for compliance with the requirements of G.S. 62-110.8. Applications and petitions filed pursuant to this subsection shall be required to comply with the requirements of this subsection and shall not otherwise be required to comply with the requirements of G.S. 62-82 or 62-110.1, or Commission Rules R8-61 or R8-64.(ii) The construction of a renewable energy facility for the generation of electricity shall include not only the building of a new building, structure or generator, but also the renovation or reworking of an existing building, structure or generator in order to enable it to operate as a generating facility.(iii) This section shall apply to any person within its scope who begins construction of a renewable energy facility without first obtaining a certificate of public convenience and necessity. In such circumstances, the application shall include an explanation for the applicant's beginning of construction before the obtaining of the certificate.(iv) This section applies to a petition to transfer an existing certificate of public convenience and necessity issued for renewable energy facilities that an electric public utility acquires from a third party with the intent to own and operate the renewable energy facility to comply with the requirements of G.S. 62-110.8.(2) The Application. The application shall be comprised of the following exhibits:(i) Exhibit 1 shall contain:1. The full and correct name, business address, business telephone number, and electronic mailing address of the electric public utility;2. A statement describing the electric public utility's corporate structure and affiliation with any other electric public utility, if any; and3. The ownership of the facility site and, if the owner is other than the applicant, the applicant's interest in the facility site.(ii) Exhibit 2 shall contain the following site information:1. A color map or aerial photo showing the location of the generating facility site in relation to local highways, streets, rivers, streams, and other generally known local landmarks, with the proposed location of major equipment indicated on the map or photo, including: the generator, fuel handling equipment, plant distribution system, startup equipment, site boundary, planned and existing pipelines, planned and existing roads, planned and existing water supplies, and planned and existing electric facilities. A U.S. Geological Survey map or an aerial photo map prepared via the State's geographic information system is preferred;2. The E911 street address, county in which the proposed facility would be located, and GPS coordinates of the approximate center of the proposed facility site to the nearest second or one thousandth of a degree; and3. Whether the electric public utility is the site owner, and, if not, providing the full and correct name of the site owner and the electric public utility's interest in the site.(iii) Exhibit 3 shall include:1. The nature of the renewable energy facility, including the type and source of its power or fuel;2. A description of the buildings, structures and equipment comprising the renewable energy facility and the manner of its operation;3. The gross and net projected maximum dependable capacity of the renewable energy facility as well as the renewable energy facility's nameplate capacity, expressed as megawatts (alternating current);4. The projected date on which the renewable energy facility will come on line;5. The service life of the project;6. The projected annual hourly production profile for the first full year of operation of the renewable energy facility in kilowatt-hours, including an explanation of potential factors influencing the shape of the production profile, including the following, if applicable: fixed tilt or tracking panel arrays, inverter loading ratio, over-paneling, clipped energy, or inverter AC output power limits;7. The projected annual production of renewable energy certificates that is eligible for compliance with the State's renewable energy and energy efficiency portfolio standard.(iv) Exhibit 3 shall include: 1. A complete list of all federal and state licenses, permits and exemptions required for construction and operation of the renewable energy facility and a statement of whether each has been obtained or applied for; and2. A copy of those that have been obtained should be filed with the application; a copy of those that have not been obtained at the time of the application should be filed with the Commission as soon as they are obtained.(v) Exhibit 4 shall contain the expected cost to construct, operate and maintain the proposed facility.(vi) Exhibit 5 shall contain the following resource planning information:1. The utility's most recent biennial report and the most recent annual report filed pursuant to Rule R8-60, plus any proposals by the utility to update said reports;2. The extent to which the proposed facility would conform to the utility's most recent biennial report and the most recent annual report that was filed pursuant to Rule R8-60;3. A statement of how the facility would contribute to resource and fuel diversity, whether the facility would have dual-fuel capability, and how much fuel would be stored at the site;4. An explanation of the need for the facility, including information on energy and capacity forecasts; and5. An explanation of how the proposed facility meets the identified energy and capacity needs, including the anticipated facility capacity factor, heat rate, and service life.(3) Petition for transfer of certificate of public convenience and necessity. When an electric public utility procures an operating renewable energy facility through a CPRE RFP Solicitation with intent to own and operate the facility and the renewable energy facility has been previously issued a certificate of public convenience and necessity, the electric public utility shall petition the Commission to transfer the certificate of public convenience and necessity. A petition requesting that the Commission transfer a certificate of public convenience and necessity shall include the following:(i) a description of the terms and conditions of the electric public utility's procurement of the renewable energy facility under the CPRE Program and an identification of any significant changes to the information in the application for the certificate of public convenience and necessity, which the Commission considered in the issuance of the certificate for that facility;(ii) The signature and verification of the electric public utility's employee or agent responsible for preparing the petition stating that the contents thereof are known to the employee or agent and are accurate to the best of that person's knowledge; and(iii) The verification of a person authorized to act on behalf of the certificate holder that it intends to transfer the certificate of public convenience and necessity to the electric public utility.(4) Procedure for Acquiring Project Development Assets. - When an electric public utility purchases from a third party developer assets that include the rights to construct and operate a renewable energy facility that has been issued a certificate of public convenience and necessity with the intent of further developing the project and submitting the renewable energy facility in to a future CPRE RFP Solicitation, the electric public utility shall provide notice to the Commission in the docket where the certificate of public convenience and necessity was issued that the electric public utility has acquired ownership of the project development assets. The electric public utility shall not be required to submit a petition for transfer of the certificate of public convenience and necessity unless and until the project is selected through a CPRE RFP Solicitation or the electric public utility otherwise elects to proceed with construction of the renewable energy facility. If the project is selected through a CPRE RFP Solicitation or the electric public utility otherwise elects to proceed with construction of the renewable energy facility, the electric public utility shall file a petition to transfer the certificate of public convenience and necessity, and the Commission shall process the petition in the same manner provided in (6) of this subsection. In any event, the petition shall be filed prior to the electric public utility commencing the construction or operation of the renewable energy facility, and no rights under the certificate of public convenience and necessity shall transfer to the electric public utility unless and until the Commission approves transfer of the certificate.(5) Procedure for expedited review of applications for a certificate of public convenience and necessity. - The Commission will process applications for certificates of public convenience and necessity filed pursuant to this section as follows: (i) The electric public utility shall file with the Commission its preliminary plans at least 30 days before filing an application for a certificate of public convenience and necessity. The preliminary plans shall include the following: 1. Exhibit 1 shall contain the following site information:a. A color map or aerial photo (a U.S. Geological Survey map or an aerial photo map prepared via the State's geographic information system is preferred) showing the proposed site boundary and layout, with all major equipment, including the generator and inverters, planned and existing roads, planned and existing water supplies, and planned and existing electric facilities;b. The E911 street address, county in which the proposed facility would be located, and GPS coordinates of the approximate center of the proposed facility site to the nearest second or one thousandth of a degree;c. The full and correct name of the site owner and, if the owner is other than the applicant, the applicant's interest in the site;d. A brief general description of practicable transmission line routes emanating from the site, including a color map showing their general location; ande. The gross, net, and nameplate generating capacity of each unit and the entire facility's total projected dependable capacity in alternating current (AC).2. Exhibit 2 shall contain a list of all agencies from which approvals will be sought covering various aspects of any generation facility constructed on the site and the title and nature of such approvals; and3. Exhibit 3 shall include a schedule showing the anticipated beginning dates for construction, testing, and commercial operation of the generating facility.(ii) Within ten days of the filing of its preliminary plans, the Applicant shall cause to be published a notice of its filing of preliminary plans to apply for an expedited certificate of public convenience and necessity in a newspaper having general circulation in the area where the generating facility. The notice shall be in the form provided in the Appendix to this Chapter, and the applicant shall be responsible for filing with the Commission an affidavit of publication to the effect that the notice was published as required by this rule;(iii) The Chief Clerk will deliver 2 copies of the electric public utility's preliminary plans to the Clearinghouse Coordinator of the Office of Policy and Planning of the Department of Administration for distribution by the Coordinator to State agencies having an interest in the application. The Chief Clerk will request comments from state agencies within 30 days of delivering notice to the Clearinghouse Coordinator.(iv) The applicant shall file the application within 60 days of filing of its preliminary plans.(v) The Commission will issue an order requesting the Public Staff to investigate the application and present its findings, conclusions, and recommendations at the Regular Commission Staff Conference to be held on the third Monday following the filing of the application, and requiring the applicant to publish notice of the application and of the time and place of the Staff Conference where the application will be considered. The notice shall be published once in a newspaper of general circulation in the area where the generating facility is proposed to be constructed. The applicant shall be responsible for filing with the Commission an affidavit of publication to the effect that the notice was published as required by this rule.(vi) If significant complaint(s) are filed with the Commission prior to the Regular Commission Staff Conference where the application is to be considered, the Public Staff shall report the same to the Commission and the Commission shall schedule a public hearing to determine whether a certificate should be awarded. The Commission will give reasonable notice of the time and place of the hearing to the applicant and to each complaining party, and require the applicant to publish notice of the time and place of the hearing. The notice shall be published once in a newspaper of general circulation in the area where the generating facility is proposed to be constructed. The applicant shall be responsible for filing with the Commission an affidavit of publication to the effect that the notice was published as required by this rule.(vii) If no significant complaint(s) are received within the time specified, the Commission may, upon its own initiative, order and schedule a hearing to determine whether a certificate should be awarded. The Commission will give reasonable notice of the time and place of the hearing to the applicant and require the applicant to publish notice of the time and place of the hearing. The notice shall be published once in a newspaper of general circulation in the area where the generating facility is proposed to be constructed. The applicant shall be responsible for filing with the Commission an affidavit of publication to the effect that the notice was published as required by this rule.(viii) The Commission, for good cause shown, may order such additional investigation, further hearings, and required filings as it deems necessary and appropriate to address the issues raised in the application or by parties opposing the issuance of the requested certificate; and(ix) If no significant complaint(s) are filed with the Commission and the Commission does not order a hearing on its own initiative nor order additional investigation, further hearings, or required filings, then the Commission shall consider the application at the Regular Commission Staff Conference as scheduled and, thereafter, issue an order on the application within 30 days after the application is filed, or as near after the 30th days as reasonably practicable. Where the Commission deems issuance of an order on the application within 30 days is impossible, the Commission may issue a notice of decision within 30 days after the application is filed and subsequently issue a final order in the matter.(6) Procedure for Expedited Transfer of certificate of public convenience and necessity. - The Commission shall process a petition to transfer a certificate of public convenience pursuant to the CPRE Program as follows:(i) Any petition to transfer an existing certificate of public convenience and necessity shall be signed and verified by the electric public utility applicant. A petition to transfer an existing certificate of public convenience and necessity shall also be verified by the entity which was initially granted the certificate of public convenience and necessity that it intends to transfer the certificate of public convenience and necessity to the electric public utility.(ii) The Commission will issue an order requesting the Public Staff to investigate the petition and present its findings, conclusions, and recommendations at the Regular Commission Staff Conference to be held on the third Monday following the filing of the application, and requiring the applicant to publish notice of the petition and of the time and place of the Staff Conference where the application will be considered. The notice shall be published once in a newspaper of general circulation in the area where the generating facility is located. The applicant shall be responsible for filing with the Commission an affidavit of publication to the effect that the notice was published as required by this rule.(iii) If significant complaint(s) are filed with the Commission prior to the Regular Commission Staff Conference where the petition is to be considered, the Public Staff shall report the same to the Commission and the Commission shall schedule a public hearing to determine whether the petition for transfer of the certificate should be granted. The Commission will give reasonable notice of the time and place of the hearing to the applicant and to each complaining party, and require the applicant to publish notice of the time and place of the hearing. The notice shall be published once in a newspaper of general circulation in the area where the generating facility is located. The applicant shall be responsible for filing with the Commission an affidavit of publication to the effect that the notice was published as required by this rule.(iv) If no significant complaint(s) are received within the time specified, the Commission may, upon its own initiative, order and schedule a hearing to determine whether a certificate should be awarded. The Commission will give reasonable notice of the time and place of the hearing to the applicant and require the applicant to publish notice of the time and place of the hearing. The notice shall be published once in a newspaper of general circulation in the area where the generating facility is located. The applicant shall be responsible for filing with the Commission an affidavit of publication to the effect that the notice was published as required by this rule.(v) The Commission, for good cause shown, may order such additional investigation, further hearings, and required filings as it deems necessary and appropriate to address the issues raised in the application or by parties opposing the issuance of the requested certificate; and(vi) If no significant complaint(s) are filed with the Commission and the Commission does not order a hearing on its own initiative nor order additional investigation, further hearings, or required filings, then the Commission shall consider the petition at the Regular Commission Staff Conference as scheduled and, thereafter, issue an order on the application within 30 days after the application is filed, or as near after the 30th days as reasonably practicable. Where the Commission deems issuance of an order on the application within 30 days is impossible, the Commission may issue a notice of decision within 30 days after the application is filed and subsequently issue a final order in the matter.(l) CPRE Program Power Purchase Agreement Requirements (1) Prior to holding a CPRE RFP Solicitation, and on or before the date set by Commission order, the Independent Administrator shall post the pro forma contract to be utilized during the CPRE RFP Solicitation on the IA Website to inform market participants of terms and conditions of the competitive solicitation. The electric public utility shall also file the pro forma contract with the Commission and identify any material changes to the pro forma contract terms and conditions from the contract used in the electric public utility's most recent CPRE RFP Solicitation.(2) Each electric public utility shall include appropriate language in all pro forma contracts (i) providing the procuring electric public utility rights to dispatch, operate, and control the solicited renewable energy facilities in the same manner as the utility's own generating resources; (ii) defining limits and compensation for resource dispatch and curtailments; (iii) defining environmental and renewable energy attributes to include all attributes that would be created by renewable energy facilities owned by the electric public utility; and (iv) prohibiting the seller from claiming or otherwise remarketing the environmental and renewable energy attributes, including the renewable energy certificates being procured by the electric public utility under power purchase agreements entered into under the CPRE Program. An electric public utility may propose redefining its rights to dispatch, operate, and control solicited renewable energy facilities, including defining limits and compensation for resource dispatch and curtailments, in pro forma contracts to be offered in future CPRE RFP Solicitations. In addition, an electric public utility may, within a single CPRE RFP Solicitation, propose multiple pro forma contracts that offer different rights to dispatch, operate, and control renewable energy facilities.(3) No later than 30 days after an electric public utility executes a power purchase agreement pursuant to a CPRE RFP Solicitation, the public utility shall file the power purchase agreement with the Commission. If the power purchase agreement is with an Affiliate, the electric public utility shall file the power purchase agreement with the Commission pursuant to G.S. 62-153(a).(4) Upon expiration of the term of a power purchase agreement procured pursuant to a CPRE RFP Solicitation, a renewable energy facility owner, other than the electric public utility, may enter into a new contract with the electric public utility pursuant to G.S. 62-156 or obtain a new contract based on an updated market based mechanism, as determined by the Commission pursuant to G.S. 62-110.8(a). If market-based authorized revenue for a generating facility owned by the electric public utility and procured pursuant to this Rule was initially determined by the Commission to be in the public interest, then the electric public utility shall similarly be permitted to continue to receive authorized revenue based on an updated market based mechanism, as determined by the Commission pursuant to G.S. 62-110.8(a). Any market based rate for either utility owned or non-utility owned facilities shall not exceed the electric public utility's avoided cost rate established pursuant to G.S. 62-156. If the electric public utility's initial proposal includes assumptions about pricing after the initial term, such information shall be made available to the Independent Administrator and all participants.04 N.C. Admin. Code 11 R08-71
NCUC Docket No. E-100, Sub 150, 11/06/2017; NCUC Docket No. E-100, Sub 150, 04/09/2018; NCUC Docket No. E-100, Sub 166, 08/31/2020.NCUC Docket No. E-100, Sub 150, 11/6/2017; NCUC Docket No. E-100, Sub 150, 4/9/2018; NCUC Docket No. E-100, Sub 166, 8/31/2020.