UNITED STATES OF AMERICA
BEFORE THE

FEDERAL ENERGY REGULATORY COMMISSION

Cricket Valley Energy Center, LLC)Docket No. ER17-1893-000

MOTION TO INTERVENE AND COMMENTS OF

THE NEW YORK INDEPENDENT SYSTEM OPERATOR, INC.

In accordance with the Commission’s June 26, 2017 Combined Notice of Filings and with Rules 212 and 213 of the Commission’s Rules of Practice and Procedure,1 the New York
Independent System Operator, Inc. (“NYISO”) moves to intervene and submit comments in the
above-captioned proceeding.  The NYISO requests that the Commission consider these
comments in its evaluation of whether to grant Cricket Valley Energy Center, LLC’s (“CVEC”)
request for a one-time, limited waiver of the deadline set forth in Section 23.4.5.7.9.3.2 of
Attachment H of the NYISO’s Market Administration and Control Area Services Tariff
(“Services Tariff”).2  The requested waiver would allow the NYISO to act on CVEC’s request
for a Competitive Entry Exemption (“CEE”) under the NYISO’s “buyer-side” capacity market
power mitigation rules (the “BSM Rules”).  Absent a waiver, CVEC’s submission of materials to the NYISO would be impermissibly untimely.3

Consistent with its position on the request for a waiver of the same deadline submitted by Bayonne Energy Center, LLC (“BEC”) in Docket No. ER17-1652-000 (the “BEC Waiver

1 See 18 C.F.R. §§385.212 and 213 (2016).

2 See Petition for Limited Waiver of Tariff Deadline and Request for Expedited Action, Docket No. ER17-1652-000 (May 22, 2017) (“CVEC Petition”).

3 See CVEC Petition at 2.

Proceeding”)4 the NYISO does not oppose CVEC’s request and joins in urging the Commission
to act on the request no later than August 1, 2017.  A determination by that date would avoid
potential disruptions to the NYISO’s Class Year Interconnection Facilities Study5 (“Class Year
Study”) and BSM processes.6  As discussed below, the NYISO also reiterates here a request that
it first made in the BEC Waiver Proceeding.  Specifically, if the Commission decides to grant the
CVEC, and/or BEC, waiver request, that it also briefly extend the deadline for CEE exemption
requests (accompanied by the executed Certification and Acknowledgement)7 to similarly
situated proposed new Examined Facilities in a Mitigated Capacity Zone that are members of
Class Year 2017.

I.Motion to Intervene

The NYISO is the independent body responsible for providing open access transmission
service, maintaining reliability, and administering competitive wholesale markets for electricity,
capacity and ancillary services in New York State.  Of particular relevance, the NYISO
administers the BSM Rules, including the rules for obtaining exemptions from mitigation, and
the closely related Class Year interconnection process.  The NYISO’s administration of both the
BSM rules and Class Year rules will be directly impacted by the Commission’s ruling in this
proceeding.  The NYISO, therefore, has a unique interest that cannot be adequately represented
by any other entity and, therefore, should be permitted to intervene with all rights of a party.

4 See Motion to Intervene and Comments of the New York Independent System Operator, Inc., Docket No. ER17-1652-000 (June 12, 2017).

5 Capitalized terms not defined herein have the meaning set forth in the Services Tariff, which in accordance with Section 23.4.4 of the Services Tariff, includes the meaning set forth in the NYISO’s Open Access Transmission Tariff.

6 The Class Year Study processes are set forth in Section 25 of the Open Access Transmission Tariff, and the BSM Rules are set forth in Section 23.4.5.7, et seq.

7 See Services Tariff Section 23.4.5.7.9.2.4 providing that the CEE Certification and

Acknowledgment “shall be submitted concurrent with the request for a Competitive Entry Exemption”.

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II.Comments

The Services Tariff’s deadline for submitting a CEE request is critical to the orderly

administration of both the BSM Rules and the Class Year Study procedures.  The tariff deadline allows the NYISO to perform the due diligence necessary to the evaluation of exemption
requests.  It also permits the NYISO to make determinations thereon concurrent with its
consideration of those same facilities and all other Examined Facilities in the Class Year
pursuant to the economic entry tests8 in the BSM Rules.  Because the BSM Rules and Class Year Study process are so closely integrated, extending a deadline generally has the potential to cause delays and disruption to both.  Thus, deadlines should not be altered lightly and it is important
that the Commission reinforce their importance.

Adherence to the tariff-specified deadline will be even more imperative in the future if
the Commission accepts the proposed deadlines for submitting renewable and self-supply
exemption requests which are pending in Docket Nos. ER16-1404, et. al.9  At that point the
deadlines for seeking various exemptions from mitigation will be the same - so that no developer
has more information than another developer when it makes a decision on whether to request a

8 The BSM Rules contain two tests to determine economic exemptions and Offer Floors
(commonly referred to as the “Part A Test” and the “Part B Test”).  See Services Tariff Section

23.4.5.7.2(a) and (b).

9 See New York Public Service Commission, et al. v. New York Independent System Operator,
Inc., Compliance Filing and Request for Commission Action within Sixty Days, Docket Nos. EL15-64-
000, ER16-1404-000, at proposed Sections 23.4.5.7.13.1.1 and  23.4.5.7.14.1.1(a) (providing that “its
request is received no later than the deadline by which a facility must notify the ISO of its election to
enter the Class Year, such date as set forth in Section 25.5.9 OATT Attachment S, or (iii) an expected
recipient of transferred CRIS rights at the same location and the ISO has been notified, by the transferor or the transferee, of a transfer pursuant to OATT Attachment S Section 25.9.4 that will be effective on a date within the Mitigation Study Period for the Class Year, provided that the request is received no later than the Class Year Start Date for such Class Year”) and proposed revisions to the CEE provisions (“[a] Generator or UDR project that requests a Competitive Entry Exemption in a Class Year may not also
request a Renewable Exemption or Self Supply Exemption”).

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Competitive Entry Exemption, renewable exemption, or a self-supply exemption, and the

potential disruptions from extending one deadline would be magnified.10

Even in the current absence of a renewable exemption or self-supply exemption, it would
ordinarily be very problematic for the NYISO to process a CEE request that was not received
until almost three months after the tariff deadline.11  However, given the specific circumstances
and timing considerations relevant to this proceeding (which are also present in the BEC Waiver
Proceeding,) granting CVEC’s requested waiver of the deadline for submitting a CEE request
and Certification and Acknowledgment in this instance would not practically cause delays or

disruptions - with the caveats noted below.

Based upon: (i) the NYISO’s review of CVEC’s waiver request, (ii) the facts known to the NYISO at this time, (iii) the low potential for adverse market impacts, and (iv) the
Commission’s guidance in earlier waiver orders, the NYISO does not oppose CVEC’s waiver request.  The NYISO defers to the Commission on the question of whether CVEC has met its burden of proof under the four-part waiver analysis.

As noted above, the NYISO supports the request that the Commission act on CVEC’s

waiver request no later than August 1, 2017.  If the Commission were to grant a waiver after that
date, the NYISO’s anticipates that its ability to administer the BSM Rules and Class Year Study
process for 2017 Class Year projects could be impacted.12  The NYISO would use its best efforts
to complete both processes in a timely manner and in good order but, the further beyond August

10 Id.

11 See CVEC Petition at 4.

12 If the Commission’s ruling is to deny the waiver request, an order by August 1, 2017 would add certainty for all members of Class Year 2017 and Market Participants.

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1 that Commission action is delayed, the greater the potential that exemption and Offer Floor

determinations and the overall Class Year Study process would be delayed.

In addition, as the NYISO requested with respect to BEC in the BEC Waiver Proceeding,
if the Commission grants CVEC’s waiver request it should issue a ruling that would provide a
brief extension of the deadline, to a single specified date, for other eligible proposed new
Generators and UDR projects that are members of Class Year 2017 to request a CEE and
concurrently provide13 the required executed Certification and Acknowledgment.14  The tariff-
established deadline for requesting a CEE is the same as the deadline for notifying the NYISO of
intent to join a Class Year.  For Class Year 2017, as CVEC’s petition notes, that date was March
8, 2017.15  If the Commission were to waive that deadline for CVEC, other new entrants might
be encouraged to seek deadline waivers of their own.16  But if such waivers were sought, and
then granted after August 1, 2017, it would be as potentially disruptive and likely to cause an
even greater delay to the NYISO’s work under the BSM Rules and Class Year Study process as
acting on CVEC’s request after that date would.  The NYISO’s evaluation of a request for a CEE
actually increases the amount of work it must perform to determine eligibility because it also
must perform the balance of the due diligence under the BSM Rules.

13 See supra at n. [6].

14 The date of the first certification and acknowledgement by a Developer of an Examined

Facility in Class Year 2017 is March 8, 2017.  In addition to that requirement, the Services Tariff

specifies that the NYISO “may request additional information and updated certifications at any time prior to a Generator’s or UDR project’s Entry Date.  A Generator or UDR project that is granted an exemption pursuant to this Section 23.4.5.7.9, shall be required to submit an executed Certification and
Acknowledgement form set forth in Section 23.4.5.7.9.2 of the Services Tariff, updated as appropriate, upon its Entry Date.”  See Services Tariff Section 23.4.5.7.9.3.1.

15 CVEC Petition at 4.

16 The NYISO made this same point in the BEC Waiver Proceeding and CVEC did in fact subsequently make this filing.

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Therefore, if the Commission grants CVEC’s request for a waiver of the deadline by

which a proposed new Generator or UDR project was to have submitted, for the NYISO’s

receipt, a request and Certification and Acknowledgment, it should also rule that any additional
requests for a CEE accompanied by the required Certification and Acknowledgment by other,
similarly-situated proposed new Examined Facilities must be received before the later of: (i) six
calendar days after the issuance of the order granting the waiver; or (ii) August 1, 2017, i.e.,
CVEC’s requested August 1, 2017 action date.  The Commission has previously made similar
rulings in other proceedings involving requests for waivers of NYISO tariff provisions in order
to avoid potential undue discrimination.17  It should do the same here in order to treat all parties
fairly and to preserve the NYISO’s ability to administer the BSM Rules and Class Year process
in a timely and orderly fashion.

The NYISO also respectfully requests that if the Commission grants the limited extension
for other proposed new Examined Facilities that are members of Class Year 2017, it make clear
that it is not altering any requirement other than the deadline by which they are to submit the
request and required documentation for the NYISO’s receipt.  Therefore, the Developer as of
March 8, 2017 should submit the request for a CEE and the Certification and Acknowledgment
based on the facts as of March 8, 2017, and the Developer should also submit an updated

17 See, e.g., New York Power Authority, 139 FERC ¶61,157 at P 27 (2012) (“Further, for the
reasons for which we grant NYPA’s waiver request as outlined below, we find that this waiver applies
equally to all other similarly situated responsible interface parties. We find that it would be unduly
discriminatory to limit the applicability of this waiver to only certain affected responsible interface
parties, as some of the commenters and the protestor contend. Therefore, we grant waiver to all similarly
situated responsible interface parties, as described above, to permit the deadline for submission of the
required data to be extended to and including four calendar days from the date of this order”).

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Certification and Acknowledgement based on the facts as of the date of the submission of the request.18

If the Commission grants the NYISO’s request for a limited extension for such other

similarly situated members of Class Year 2017, the NYISO would promptly post on its website a list of each such Generator or UDR project that requests a CEE and provides to the NYISO the required Certification and Acknowledgment and updated Certification and Acknowledgment.19 III. Communications and Correspondence

All communications and service with regard to this filing should be directed to:

Robert E. Fernandez, General Counsel

Raymond Stalter, Director, Regulatory Affairs *Gloria Kavanah, Senior Attorney

New York Independent System Operator, Inc.

10 Krey Boulevard

Rensselaer, NY 12144
Tel: (518) 356-6103
Fax: (518) 356-8825
rfernandez@nyiso.com
rstalter@nyiso.com
gkavanah@nyiso.com

* Person designated for receipt of service.

IV.Conclusion

WHEREFORE, for the foregoing reasons, the NYISO respectfully requests that the Commission (i) grant this motion to intervene, (ii) consider these comments in making its decision on CVEC’s request; and (iii) if it decides to grant the requested waiver, issue a ruling allowing other similarly-situated proposed new Examined Facilities a brief extension of the deadline to also submit a request for a CEE, to the NYISO, accompanied by the required
Certification and Acknowledgment, for the reasons set forth above.

18 The Developer’s provision of the updated certification is contemplated by and consistent with Section 23.4.5.7.9.3.1 of the Services Tariff.

19 See Section 23.4.5.7.9.4.1 of the Services Tariff.

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Respectfully submitted,

/s/ Gloria Kavanah

Gloria Kavanah

Counsel to the New York Independent System Operator, Inc.

10 Krey Blvd.

Rensselaer, New York 12144 (518) 356-6103

gkavanah@nyiso.com

July 14, 2017

cc:Michael Bardee

Anna Cochrane
Jette Gebhart
Kurt Longo

David Morenoff
Daniel Nowak
Larry Parkinson

J. Arnold Quinn
Douglas Roe

Kathleen Schnorf Gary Will

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CERTIFICATE OF SERVICE

I hereby certify that I have this day served the foregoing document upon each person

designated on the official service list compiled by the Secretary in this proceeding in accordance with the requirements of Rule 2010 of the Rules of Practice and Procedure, 18 C.F.R. §385.2010.
Dated at Rensselaer, NY this 14th day of July, 2017.

/s/ Mohsana Akter

Mohsana Akter

Regulatory Affairs

New York Independent System Operator, Inc

10 Krey Blvd

Rensselaer, NY 12144 (518) 356-7560