UNITED STATES OF AMERICA
BEFORE THE

FEDERAL ENERGY REGULATORY COMMISSION

)

New York Independent System)Docket No. ER17-2275-000

Operator, Inc.)

)

MOTION TO INTERVENE AND PROTEST OF

THE NEW YORK INDEPENDENT SYSTEM OPERATOR, INC.

Pursuant to Rules 211, 212 and 214 of the Commission’s Rules of Practice and Procedure,1
the New York Independent System Operator, Inc. (“NYISO”) moves to intervene in the above-
captioned proceeding and protests the Petition for Limited Waiver of Tariff Requirement submitted
by Green Power Energy LLC (“Green Power”) on August 9, 2017 (“2017 Waiver Request”).2 The
NYISO respectfully requests that the Commission reject the request by “Green Power for waiver of
requirements in the NYISO’s Open Access Transmission Tariff (“OATT”)3 to extend the
Commercial Operation Date of Green Power’s wind project to November 30, 2018. As described
below, Green Power’s request does not satisfy the Commission’s criteria for granting a waiver and
should be rejected.

I.COMMUNICATIONS AND CORRESPONDENCE

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

* Brian R. Hodgdon, Attorney

New York Independent System Operator, Inc.

10 Krey Boulevard

Rensselaer, NY 12144
Tel: (518) 356-8554
Fax: (518) 356-7678
skeegan@nyiso.com
bhodgdon@nyiso.com

*Persons designated for receipt of service.

II.MOTION TO INTERVENE

Fax: (202) 778-2201
tmurphy@hunton.com

*Michael J. Messonnier Jr. Hunton & Williams LLP 951 East Byrd Street

Richmond, VA 23219
Tel: (804) 788-8200
Fax: (804) 344-7999

mmessonnier@hunton.com

The NYISO is the independent entity responsible for providing open access transmission
service, maintaining reliability, and administering competitive wholesale markets for electricity,
capacity, and ancillary services in New York State. The NYISO administers the interconnection
process for the New York State Transmission System and Distribution System pursuant to its
Commission-approved OATT. In this proceeding, Green Power is requesting waiver of a
requirement of the interconnection process established in Attachment Z to the OATT. The NYISO,
therefore, has a unique interest in this proceeding that cannot be adequately represented by any other
entity and requests that the Commission permit it to intervene with all the rights of a party.

III.BACKGROUND

Green Power was evaluated in the NYISO’s interconnection queue as a 10 MW wind

generating facility proposing to interconnect to Niagara Mohawk Power Corporation d/b/a National
Grid (“National Grid”)’s 115 kV system on the Fenner-Cortland Line #3 in Madison County, New
York (“Green Power Project”).4 National Grid initiated the interconnection study process for the
Green Power Project prior to the implementation of Order No. 2006, and the project’s studies were

4 The Interconnection Request date on the NYISO’s queue for the Green Power Project was March 17,
2005, reflecting the fact that Green Power’s interconnection request predated the effective date of Order No. 2006
and the NYISO’s Small Generator Interconnection Procedures, and was therefore transitioned from National Grid’s
interconnection process to the NYISO’s interconnection queue pursuant to Section 32.1.7 of Attachment Z to the
OATT.

completed under the NYISO’s Small Generator Interconnection Procedures. On August 20, 2009,

the NYISO, National Grid, and Green Power executed a Small Generator Interconnection Agreement for the project (“SGIA”).5

According to the original construction and procurement schedule in the SGIA, the Green
Power Project was to be in commercial operation by October 2010. Numerous extensions of the
Commercial Operation Date, however, have resulted in the project remaining in the NYISO’s
interconnection queue longer than any other project. At this point, it has been approximately 13
years since the Green Power Project was initially evaluated in National Grid’s interconnection
process.

Since transitioning to the NYISO’s interconnection queue, Green Power’s Commercial

Operation Date has been extended on six separate occasions up to January 31, 2017.6 One of these
extensions was the result of the Commission granting a one-time waiver requested by Green Power
in 2014 to extend its Commercial Operation Date for fifteen months.7 On January 30, 2017, Green
Power requested a seventh extension of the Commercial Operation Date until July 2018. As set forth
in Sections 32.1.3.2 of Attachment Z to the OATT and 30.5.5.4.2 of Attachment X to the OATT, the
NYISO may only extend the Commercial Operation Date for a project if the developer can

demonstrate reasonable progress against its project milestones. The NYISO concluded that Green Power had not demonstrated reasonable progress against the milestones that it had agreed to satisfy by January 31, 2017.

5 The SGIA, designated as Service Agreement No. 1483, was filed as a non-conforming SGIA in Docket Number ER09-1693-000 and was accepted by the Commission on October 13, 2009. Letter Order, Docket No. ER09-1693-000 (October 13, 2009).

6 The NYISO detailed the numerous extensions of the Commercial Operation Date for the Green Power Project in its filing of a Notice of Cancellation of the SGIA for the Green Power Project. New York Independent System Operator, Inc., Notice of Cancellation of Service Agreement No. 1483 to the New York Independent System Operator, Inc. Open Access Transmission Tariff, Docket No. ER17-1624-000 (May 18, 2017).

7 Green Power Energy LLC, 147 FERC ¶ 61,084 at P 15 (2014) (“2014 Waiver Order”).

As Green Power failed to meet its Commercial Operation Date and did not satisfy the

requirements for a further extension, the NYISO informed Green Power on February 17, 2017 that
the Interconnection Request for its project was withdrawn from the NYISO’s interconnection queue.
As a result, the NYISO was required to terminate the SGIA.8 To effectuate this termination, the
NYISO filed a Notice of Cancellation for the SGIA in Docket No. ER17-1624 on May 18, 2017.
The Commission accepted this notice on June 15, 2017, with an effective date of July 17, 2017.9
On June 20, 2017, Green Power belatedly filed a motion to intervene out-of-time and
requested rehearing concerning the Notice of Cancellation.10 The Commission denied this untimely
intervention on July 10, 2017.11 Notwithstanding the withdrawal of its project from the NYISO’s
interconnection queue over six months ago and the termination of its SGIA, Green Power now
requests waiver of the requirement for extending the Commercial Operation Date in Section 32.1.3.2
of Attachment Z to the OATT and for the Commission to extend the Commercial Operation Date of
the Green Power Project to November 30, 2018.

IV.PROTEST

The Commission considers a number of factors in determining whether to grant a waiver

request, including: (i) whether the requestor is acting in good faith; (ii) whether the request will

remedy a concrete problem; (iii) whether the request is of limited scope; and (iv) whether the waiver,

8 See Section 7.6.3 of the Standard Small Generator Interconnection Agreement located in Appendix 9 of Attachment Z of the OATT.

9 As the Commission has not stayed its order, the Notice of Cancellation became effective as of July 17,

2017.

10 New York Independent System Operator, Inc. Motion to Intervene Out of Time and Request for

Rehearing and Stay of Letter Order Accepting New York Independent System Operator, Inc.’s Notice of

Cancellation of Green Power Energy LLC’s Small Generator Interconnection Agreement and Request for Order Directing Extension, Docket No. ER17-1624-001 (June 20, 2017)

11 New York Independent System Operator, Inc., Notice Denying Motion to Intervene and Rejecting

Request for Rehearing, 160 FERC ¶ 62,016 (2017). Green Power has subsequently filed a request for

reconsideration concerning the Commission’s denial of its motion to intervene. New York Independent System

Operator, Inc., Petition for Reconsideration or, in the Alternative, Request for Rehearing and Clarification, Docket No. ER17-1624-002 (August 9, 2017).

if granted, will have undesirable consequences such as harming third parties.12 As described below, Green Power has not satisfied these criteria and its requested waiver should be rejected.

A. Green Power’s Request Does Not Satisfy the Good Faith Criterion

Green Power has not and cannot satisfy the good faith criterion. In the absence of reasonable progress against its milestones, Green Power’s Interconnection Request was withdrawn from the
NYISO’s interconnection queue and its SGIA was terminated. Green Power had the opportunity to challenge this determination at the Commission, but failed to timely intervene in the relevant
proceeding. The Commission should reject Green Power’s attempt to perform an end run around the Commission’s determination in Docket No. ER17-1624 and the extension requirements of the
NYISO’s OATT by means of a waiver request submitted nearly six months after the NYISO
informed Green Power that the Interconnection Request for its project had been withdrawn. As
described in Part IV.D below, reinstating Green Power’s Interconnection Request after this lengthy delay could negatively impact other project developers.

Green Power has provided no basis for why it should not be subject to the same requirements
for extending its project’s Commercial Operation Date as any other developer participating in the
NYISO’s interconnection process.13 The Commission had previously granted a limited one-time
waiver to Green Power of the extension requirements in 2014 because the NYISO’s rules on
extending the Commercial Operation Date had only recently changed to require developers to
demonstrate reasonable progress against milestones in their SGIA.14 However, the Commission

12 See PJM Interconnection, L.L.C. and Trans-Allegheny Interstate Line Company, 144 FERC ¶ 61,060 at P

17 (2013); Air Energy TCI, Inc., 143 FERC ¶ 61,172 at P 16 (2013); Hudson Transmission Partner, LLC, 131 FERC ¶ 61,157 at P 10 (2010).

13 See New York Independent System Operator, Inc., Letter Order, Docket No. ER17-1816-000 (August 4,
2017) (accepting Notice of Cancellation of SGIA following issuance of withdrawal notice to Interconnection
Customer that failed to meet Commercial Operation Date and removal of project from the NYISO Interconnection
Queue).

14 2014 Waiver Order at P 12. The Commission also determined that the waiver would be limited in scope and would not have undesirable consequences, which is not the case in this instance. Id. at PP 13-14.

noted in its order granting such waiver request that “if Green Power requires any further extensions, it would have to qualify pursuant to NYISO’s currently effective tariff.”15 Since this order, Green Power has been on notice that future extensions required a showing that the project has made
reasonable progress against its milestones, which it has failed to do.

When Green Power sought a sixth extension of its Commercial Operation Date in July 2016
for an additional fifteen month period, the NYISO instead granted a limited exception until January
31, 2017, with future extensions contingent upon Green Power meeting specific milestones that were
proposed by Green Power, agreed upon by the parties, and that Green Power represented it would
satisfy by January 31, 2017.16 On January 30, 2017, Green Power requested its seventh extension of
the Commercial Operation Date until January 2018. Green Power provided minimal additional

evidence of progress against the milestones set forth in the SGIA and the milestones that Green

Power agreed to satisfy as a condition of its latest extension.17 Green Power’s milestone table broke
down certain milestones into numerous sub-tasks. For example, Milestone 9 in this schedule broke
down the first engineering package for the Connecting Transmission Owner Attachment Facilities
and Stand Alone System Upgrade Facilities into 36 separate sub-tasks, all of which Green Power
anticipated completing by December 31, 2016. Yet as of February 1, 2017, Green Power represented
to the NYISO and to National Grid that only 11 of the 36 subtasks had been completed. Overall, as
of February 1, 2017, Green Power had failed to complete at least 29 tasks/subtasks of its milestone

15 Id. at n 19.

16 Green Power included these milestones in Exhibit A of the 2017 Waiver Request and its progress report as of January 31, 2017 in Exhibit B.

17 Green Power’s arguments concerning whether its milestones have been updated in the SGIA are

irrelevant for purposes of the NYISO’s determination not to extend its Commercial Operation Date. See 2017

Waiver Request at pp 7-8. The NYISO reviewed Green Power’s project against both the milestones in the SGIA
and its own proposed updated milestones that it provided in September 2016. Green Power only demonstrated
minimal progress against these updated milestones and did not make the progress that it had agreed to make by
January 31, 2017.

table that were to have been completed by January 31, 2017.18 Further, as demonstrated in Exhibit B
of the 2017 Waiver Request, there are still at least 54 outstanding tasks/subtasks that Green Power
must complete before the project can go into service. Accordingly, the NYISO appropriately
determined that Green Power had not demonstrated reasonable progress against its milestones and is
not aware of any material changes to these circumstances that demonstrate further progress in the
project’s development.

Green Power now asserts in the 2017 Waiver Request that it is nearing completion of a

number of significant project milestones.19 However, in the approximately thirteen years since the
Green Power Project has been pending in the interconnection process, it has made numerous claims
concerning its anticipated progress in developing the Green Power Project that have not borne out or
are no longer valid. For example, in its request for a waiver in 2014, Green Power stated that it had
executed a turbine supply agreement with Gamesa, with turbines slated for delivery in September
2014.20 Green Power also relied on this turbine supply agreement as the basis for demonstrating

progress for a subsequent NYISO extension of its Commercial Operation Date. In support of its

latest extension request, Green Power certified that it executed the turbine supply agreement on

January 24, 2014 and that the turbines were scheduled for delivery in May 2017.21 However, Green
Power has since represented to the NYISO, and acknowledged to the Commission, that the turbine
supply agreement with Gamesa is no longer valid and that it has yet to enter into another turbine

18 Green Power blames the short-term absence of a National Grid employee for its inability to meet certain project milestones. See 2017 Waiver Request at pp 9-10. Green Power, however, does not explain why it took until late 2016 to make progress against these preliminary milestones. In addition, numerous other milestones proposed by Green Power as a condition of its latest extension of the Commercial Operation Date have passed that are
unconnected with any actions of National Grid.

19 See 2017 Waiver Request at pp 9-10.

20 Green Power Energy LLC, Petition for Waiver of Tariff Requirements; Request for Shortened Notice Period and Expedited Review, Docket No. ER14-1655 at p 4 (April 3, 2014) (“2014 Waiver Request”).

21 See 2017 Waiver Request at Exhibit E.

supply agreement.22 There are, therefore, no turbines on site, Green Power has provided no evidence of any new agreement for the procurement of turbines, and it is inaccurate for Green Power to
continue to assert that Milestone 6 is complete.23

For all of the above-stated reasons, Green Power has failed to demonstrate that it satisfies the good faith criterion.

B. Green Power’s Request Will Not Remedy a Concrete Problem

Green Power’s requested waiver will not remedy the underlying problem concerning the
development of its project, which is Green Power’s failure to make timely progress. The
Commercial Operation Date has been extended six times. The Commission has already granted
Green Power a waiver of the NYISO’s extension requirements based on its representation that the
project would be completed within fifteen months. Yet, the only noticeable difference between the
project now and the project at the time of the 2014 waiver is that there is a dirt access road and the
turbine sites have been cleared and leveled.24 No portion of the Green Power Project has been built,
and Green Power has not demonstrated reasonable progress against many preliminary project
milestones. This evidences a lack of readiness and certainty with the Green Power Project, and
Green Power has provided no reasonable basis for concluding that its project would be able to meet
its requested extended Commercial Operation Date on the seventh attempt.

22 In its motion filed with the Commission on July 10, 2017 in Docket No. ER17-1624, Green Power stated that it “is in final negotiations with a sponsor/turbine supplier,” confirming that the turbine supply agreement with Gamesa is no longer valid and, as of July 10, 2017, it did not have a new agreement for turbines. New York
Independent System Operator, Inc., Motion for Leave to Answer and Answer and Request for Expedited
Consideration of Stay, Docket No. ER17-1624-001, at p 2 (July 10, 2017).

23 See 2017 Waiver Request at Exhibit A.

24 Compare 2014 Waiver Request at p 4 (reporting that Green Power commenced construction of the 1,000 foot service road and the foundations for the wind turbines are being excavated, together with the substation
engineering being underway); 2017 Waiver Request at Exhibit C (showing the state of the service road and the
cleared sites for the wind turbines).

C.Green Power’s Requested Waiver Is Not of Limited Scope

The 2017 Waiver Request is not limited in scope. When it requested a waiver in 2014,

Green Power assured the Commission that “the waiver sought in this petition is limited in scope” as
it was limited to fifteen months following the Commission’s order and the length of the extension
was to accommodate the required construction schedule.25 Green Power made clear that it “is not
seeking an open-ended period in which to construct” its project.26 Accordingly, when it granted the
“one-time” waiver in 2014, the Commission found it to be limited in scope “because Green Power
only requests waiver until a date no later than fifteen months following this order,”27 and the

Commission indicated that Green Power would be bound to the NYISO’s tariff requirements for further extensions.28

Three years later, Green Power is back before the Commission requesting yet another, almost
identical, waiver and the seventh extension of its Commercial Operation Date. Green Power again
promises that it “is not seeking an open-ended period” to construct its project. If granted, the waiver
would require the NYISO to reinstate Green Power in its interconnection queue with a Commercial
Operation Date that the NYISO does not believe is feasible based on its review of Green Power’s
progress against its milestones. If the requested waver is granted, there are no guarantees that Green
Power will not be back before the Commission at a future date requesting its third waiver and
assuring the Commission anew that it is not seeking an open-ended period to construct is project.

25 2014 Waiver Request at p 6.

26 Id. at pp 6-7.

27 2014 Waiver Order at PP 13, 15.

28 Id. at n 19.

D.Green Power’s Requested Waiver Will Have Undesirable Consequences

Green Power claims that its requested waiver will not cause any undesirable consequences.
However, reinstating the Green Power Project into the NYISO’s interconnection queue over six
months after it was withdrawn could create considerable uncertainty for other projects that are
proposing to interconnect near the proposed point of interconnection for the Green Power Project.

Specifically, five proposed projects - two other wind projects, a solar project, a cogeneration

project, and an energy storage project - are currently in the NYISO’s interconnection queue with proposed points of interconnection located electrically close to or within one bus away from the point of interconnection for the Green Power Project.29

Should the Commission grant the requested waiver, the NYISO would be required to re-
insert the project into the base case with its associated System Upgrade Facilities. Other project
developers would be relying on those System Upgrade Facilities going forward, despite Green
Power’s lack of progress in developing these facilities and the absence of security to ensure that the
facilities will be constructed if Green Power does not proceed to construction. The continued
uncertainty concerning the status of the Green Power Project, therefore, would create substantial
uncertainty for these other developers, the scope of their projects, and their cost responsibility.
Green Power has not demonstrated that unique circumstances exist that warrant a waiver of the generally applicable Commercial Operation Date extension requirements and distinguish its project from all other projects that have had to demonstrate reasonable progress against their
interconnection agreement milestones to obtain extensions. Green Power points vaguely to issues
resulting from the impact of the recession, local town zoning requirements, and interfacing with the

29 These five projects are identified on the NYISO’s interconnection queue as Queue No. 276 Crown City
Wind; Queue No. 449 Stockbridge Wind; Queue No. 545 Sky High Solar; Queue No. 601 Hood Cogen; and Queue
No. 634 Champagne Energy Storage. See NYISO Interconnection Queue, available at the following link:
http://www.nyiso.com/public/webdocs/markets_operations/services/planning/Documents_and_Resources/Interconn
ection_Studies/NYISO_Interconnection_Queue/NYISO%20Interconnection%20Queue.xls.

local Connecting Transmission Owner, all of which are concerns that are not unique to Green

Power.30 In the approximately13 years since the Green Power Project was initially evaluated in the interconnection process, over 1,800 MW of renewable projects have successfully proceeded through the NYISO’s interconnection queue and entered into service, while the Green Power Project has failed to meet and maintain basic milestones.

Granting the requested waiver would create an uneven playing field among project

developers. It would permit one project developer to obtain an extension of its Commercial

Operation Date without satisfying the NYISO’s tariff requirements, while other similarly situated developers have not received such an extension.31 In granting the waiver, the Commission would encourage other project developers to seek a waiver of the extension requirements, rendering the tariff requirements largely meaningless going forward.

The NYISO’s withdrawal of the Green Power Project from its interconnection queue need not be an end to the project. The NYISO encouraged Green Power, soon after its withdrawal in
February 2017, to submit a new Interconnection Request for the project. Moreover, National Grid and NYISO agreed that they would waive the feasibility study if Green Power submitted a new
Interconnection Request. However, Green Power has failed to take any action that could have
mitigated the impact of the withdrawal of its project. Had Green Power immediately submitted a new Interconnection Request in February 2017, the parties would likely be through or nearly through with the System Impact Study for the project at this point.

30 See 2017 Waiver Request at p 10.

31 See New York Independent System Operator, Inc., Letter Order, Docket No. ER17-1816-000 (August 4,
2017) (accepting Notice of Cancellation of SGIA following issuance of withdrawal notice to Interconnection
Customer that failed to meet Commercial Operation Date and removal of project from the NYISO Interconnection
Queue).

V.Conclusion

WHEREFORE, for the foregoing reasons, the NYISO respectfully requests that the

Commission: (i) grant this motion to intervene, and (ii) reject Green Power’s 2017 Waiver Request.
Respectfully submitted,

/s/ Sara B. Keegan

Sara B. Keegan, Senior Attorney
Brian R. Hodgdon, Attorney

New York Independent System Operator, Inc.

August 31, 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