further clarify that this clarification is not intended to be reflected
as a MW-for-MW reduction (or increase) based on yearly changes in load
and therefore does not and may not serve to terminate a purchasing
utility's mandatory purchase obligation under PURPA section
210(a).\727\
---------------------------------------------------------------------------

    \727\ 18 CFR 292.304(e)(3).
---------------------------------------------------------------------------

D. Evaluation of Whether QFs Are at Separate Sites

1. Rebuttable Presumption of Separate Sites
a. NOPR Proposal
    458. The Commission proposed to allow entities challenging a QF
certification to rebut the presumption that affiliated facilities
located more than one mile apart are considered to be separate QFs. The
Commission proposed that this change would be effective as of the date
of the final rule, which means that such challenges could only be made
to QF certifications and recertifications that are submitted after the
effective date of the final rule in this proceeding.
    459. The Commission proposed that an entity can seek to rebut the
presumption only for those facilities that are located more than one
mile apart and less than 10 miles apart. The Commission believed that,
just as there are some facilities that may be so close that it is
reasonable to irrebuttably treat them as a single facility (those a
mile or less apart), so there are some facilities that are sufficiently
far apart that it is reasonable to treat them as irrebuttably separate
facilities.\728\ That latter distance, the Commission believed, is 10
miles or more apart. Thus, if two affiliated facilities are one mile or
less apart, they would continue to be irrebuttably presumed to be a
single facility at a single site. If affiliated facilities are 10 miles
or more apart, they would be irrebuttably presumed to be separate
facilities at separate sites.
---------------------------------------------------------------------------

    \728\ NOPR, 168 FERC ] 61,184 at P 101. As discussed in detail
in section IV.D.1.d below, this final rule will change the
references to ``separate facilities'' or ``the same facility'' to
``at separate sites'' or ``at the same site.''
---------------------------------------------------------------------------

    460. The Commission proposed that if affiliated facilities are more
than one mile apart and less than 10 miles apart, there would still be
a presumption, but it would be a rebuttable presumption, that they are
separate facilities at separate sites. Purchasing electric utilities
and others thus would be able to file a protest attempting to rebut the
presumption for facilities more than one mile apart and less than 10
miles apart and argue that they should be treated as a single facility.
The Commission could also act sua sponte. The Commission proposed that
self-certifications will remain effective after a protest has been
filed, until such time as the Commission issues an order revoking the
certification.
    461. The Commission proposed allowing an entity seeking QF status
to provide further information in its certification (both self-
certification and application for Commission certification), to
preemptively defend against rebuttal by asserting factors that
affirmatively show that the affiliated facilities are indeed separate
facilities at separate sites.\729\ Anyone challenging the QF
certification would be allowed to assert factors to show that the
facilities are actually part of the same, single facility.
---------------------------------------------------------------------------

    \729\ While a QF with a net power production capacity of 1 MW or
less is not required to formally certify its QF status (either
through a self-certification or application for Commission
certification), if the QF's status is later challenged (i.e., by a
petition for declaratory order), the QF would be able to respond by
affirmatively demonstrating that its facilities are not located at
the same site as other affiliated facilities and thus that the QF
does not exceed the 80 MW size limitation.
---------------------------------------------------------------------------

    462. The Commission proposed limiting protests challenging QF
status by requiring any entity filing a protest to specify facts that
make a prima facie demonstration that the facility described in the
self-certification, self-recertification, or Commission certification
does not satisfy the requirements for QF status. General allegations or
unsupported assertions would not be a basis for denial of
certification. The Commission further proposed limiting protests to QF
status by requiring that once the Commission has affirmatively
certified an applicant's QF status through either a Commission
certification proceeding or in response to protests challenging QF
status, any later protest to a QF's existing certification asserting
that facilities further than one mile apart are part of a single QF
must demonstrate changed circumstances that call into question the
continued validity of the earlier certification.
    463. The Commission proposed that physical and ownership factors
may be asserted to rebut or defend against rebuttal. Noting that no
single factor would be dispositive, the Commission proposed the
following factors: (1) Physical characteristics including such common
characteristics as: infrastructure, property ownership, interconnection
agreements, control facilities, access and easements, interconnection
facilities up to the point of interconnection to the distribution or
transmission system, collector systems or facilities, points of
interconnection, motive force or fuel source, off-take arrangements,
property leases, and connections to the electrical grid; and (2)
ownership/other characteristics, including such characteristics as
whether the facilities in question are: Owned or controlled by the same
person(s) or affiliated persons(s), operated and maintained by the same
or affiliated entity(ies), selling to the same electric utility, using
common debt or equity financing, constructed by the same entity within
12 months, managing a power sales agreement executed within 12 months
of a similar and affiliated facility in the same location, placed into
service within 12 months of an affiliated project's commercial
operation date as specified in the power sales agreement, or sharing
engineering or procurement contracts. The Commission solicited comments
on whether the Commission should rely on some or any of these factors,
or other factors, or whether the various factors should be considered
together and weighed.
    464. The Commission stated that it will continue to rely on its
definition of ``affiliate'' provided in 18 CFR 35.36(a)(9), and noted
that subsection (iii) provides that the Commission may determine, after
appropriate notice and

opportunity for hearing, that a person stands in such relation to a
specified company that there is likely to be an absence of arm's-length
bargaining in transactions between them as to make it necessary or
appropriate in the public interest or for the protection of investors
or consumers that the person be treated as an affiliate.\730\ The
Commission intended, when applying its rules on separate facilities, to
consider this provision of its regulations, when entities otherwise
would not be deemed affiliates under the other provisions of the
definition, to determine whether a person nevertheless should be
treated as an affiliate. In doing so, the Commission stated that it
could take into consideration many of the same factors that would
reasonably be considered in evaluating whether facilities located over
one and less than 10 miles apart are a single facility or separate
facilities.
---------------------------------------------------------------------------

    \730\ 18 CFR 35.36(a)(9)(iii).
---------------------------------------------------------------------------

    465. The Commission believed that this change, together with the
proposed definition of ``electrical generating equipment'' and revision
to the FERC Form No. 556, would more closely align with Congress's
requirement that QFs seeking to certify as small power production
facilities are in fact below the 80 MW statutory limit for such
facilities.\731\
---------------------------------------------------------------------------

    \731\ See 16 U.S.C. 796(17)(A)(ii) (defining small power
production facility as, inter alia, ``a facility which is an
eligible solar, wind, waste, or geothermal facility, or a facility
which--. . . has a power production capacity which, together with
any other facilities located at the same site (as determined by the
Commission), is not greater than 80 megawatts'').
---------------------------------------------------------------------------

b. Commission Determination
    466. As further discussed and revised in the following sections, we
adopt the NOPR proposal. Henceforth, if a small power production
facility seeking QF status is located one mile or less from any
affiliated small power production QFs that use the same energy
resource, it will be irrebuttably presumed to be at the same site as
those affiliated small power production QFs. If a small power
production facility seeking QF status is located ten miles or more from
any affiliated small power production QFs that use the same energy
resource, it will be irrebuttably presumed to be at a separate site
from those affiliated small power production QFs. If a small power
production facility seeking QF status is located more than one mile but
less than ten miles from any affiliated small power production QFs that
use the same energy resource, it will be rebuttably presumed to be at a
separate site from those affiliated small power production QFs.
    467. We adopt the proposal to allow a small power production
facility seeking QF status to provide further information in its
certification (both self-certification and application for Commission
certification) or recertification (both self-certification and
application for Commission recertification), to preemptively defend
against anticipated challenges by identifying factors that
affirmatively show that its facility is indeed at a separate site from
affiliated small power production QFs that use the same energy resource
and that are more than one but less than 10 miles from its facility. We
will correspondingly allow any interested person or entity to challenge
a QF certification (both self-certification and application for
Commission certification) or recertification (both self-recertification
or application for Commission recertification) that makes substantive
changes to the existing certification as further described below).\732\
---------------------------------------------------------------------------

    \732\ We note that a protester must separately file for
intervention seeking to be made a party to the proceeding; the
filing of a protest does not make that person or entity a party. 18
CFR 385.102(c), 385.211(a)(2).
---------------------------------------------------------------------------

    468. As explained in section IV.D.1.f below, we adopt the NOPR's
proposed factors, with certain additions.
    469. We adopt the proposal to clarify that challenges to QF status
require that the interested person or entity filing a protest must
specify facts that make a prima facie demonstration that the facility
described in the certification (both self-certification and application
for Commission certification) or recertification (both self-
recertification and application for Commission recertification) does
not satisfy the requirements for QF status. Additionally, any protest
must be adequately supported, with supporting documents, contracts, or
affidavits, as appropriate. General allegations or unsupported
assertions will not provide a basis for denial of certification or
recertification. We additionally limit protests, as described more
fully in section IV.E below, by clarifying that protests may be made to
an initial certification (both self-certification and application for
Commission certification) filed on or after the effective date of this
final rule, but only to a recertification (both self-recertification
and application for Commission recertification) filed on or after the
effective date of this final rule that makes substantive changes to the
existing certification. We adopt the proposal to limit protests by
requiring that once the Commission has affirmatively certified an
applicant's QF status in response to a protest opposing a self-
certification or self-recertification, or in response to an application
for Commission certification or recertification, any later protest to a
recertification (self-recertification or application for Commission
recertification) making substantive changes to a QF's existing
certification must demonstrate changed circumstances from the facts on
which the Commission acted on the certification filing that call into
question the continued validity of the earlier certification.\733\
Finally, the Commission retains the discretion to summarily reject
protests where a protest reiterates arguments already made against the
same QF that the Commission previously denied or otherwise rejected.
---------------------------------------------------------------------------

    \733\ An interested person or entity can choose to file a
petition for declaratory order, with fee, at any time (that is, not
only within 30 days from the date of the filing of the Form No.
556). However, if the Commission has affirmatively certified an
applicant's QF status in response to a protest opposing a self-
certification or self-recertification, or in response to an
application for Commission certification or recertification, any
later petition for declaratory order protesting the QFs existing
certification must demonstrate changed circumstances from the time
the Commission acted on the certification that call into question
the continued validity of the earlier certification.
---------------------------------------------------------------------------

c. Need for Reform
i. Comments
    470. Multiple parties have expressed concern that some QF
developers of small power production facilities are circumventing the
one-mile rule, and thereby circumventing PURPA, by strategically siting
small power production facilities that use the same energy resource
slightly more than one mile apart in order to qualify as separate small
power production facilities.\734\ Several commenters state that the
NOPR-proposed changes will reduce the opportunity for gaming.\735\
---------------------------------------------------------------------------

    \734\ See APPA Comments at 21; Center for Growth and Opportunity
Comments at 5-6; Consumers Energy Comments at 4; East River Comments
at 1-2; EEI Comments at 43; ELCON Comments at 35; Governor of Idaho
Comments at 1; Idaho Commission Comments at 5-7; Idaho Power
Comments at 13; Missouri River Energy Comments at 5; Mr. Moore
Comments at 2; Northern Laramie Range Alliance Comments at 2;
NorthWestern Comments at 9; NRECA Comments at 14-15; Portland
General Comments at 14.
    \735\ APPA Comments at 21; Center for Growth and Opportunity
Comments at 5-6; Consumers Energy Comments at 4; East River Comments
at 1-2; EEI Comments at 43; ELCON Comments at 35; Governor of Idaho
Comments at 1; Idaho Commission Comments at 5-7; Idaho Power
Comments at 13; Missouri River Energy Comments at 5; Mr. Moore
Comments at 2; Northern Laramie Range Alliance Comments at 2;
NorthWestern Comments at 12; NRECA Comments at 14-15; Portland
General Comments at 14.
---------------------------------------------------------------------------

    471. Several commenters argue, to the contrary, that there is no
evidence of

gaming of the current one-mile rule.\736\ Con Edison argues that
utilities are not overwhelmed with QFs using the one-mile rule and
there is little to no evidence to the contrary.\737\ sPower states that
it is difficult to see how developers that comply with this clear
bright-line rule could be said to be circumventing.\738\ New England
Small Hydro argues that the Commission is attempting to address
perceived abuses of the 80 MW limitation by burdening projects that do
not abuse the system.\739\
---------------------------------------------------------------------------

    \736\ Solar Energy Industries Comments at 51; Southeast Public
Interest Organizations Comments at 31; SC Solar Alliance Comments at
19.
    \737\ Con Edison Comments at 5.
    \738\ sPower Comments at 5.
    \739\ New England Small Hydro Comments at 17.
---------------------------------------------------------------------------

ii. Commission Determination
    472. The record shows that, since the establishment of the one-mile
rule in the PURPA Regulations in 1980, the development of large numbers
of affiliated renewable resource facilities, requires a revision of the
one mile-rule. We find that the final rule will reduce the opportunity
for developers of small power production facilities to circumvent the
current one-mile rule by strategically siting small power production
facilities that use the same energy resource slightly more than one
mile apart.\740\ While such circumvention may not be an everyday
occurrence, we agree with commenters that the record demonstrates it is
still a sufficient possibility under the current regulations that the
Commission is justified in addressing it in order to comply with the
statute.\741\ The final rule, as adopted, still retains the presumption
that small power production QFs more than one mile apart are located at
separate sites, but simply makes the presumption rebuttable for small
power production QFs located more than one mile but less than 10 miles
apart, allowing the Commission the ability to address those
circumstances.
---------------------------------------------------------------------------

    \740\ The regulation, in practice, is only of consequence if the
facilities located ``at the same site'' would exceed a power
production capacity of 80 MW, as that is the size limit for a small
power production facility to qualify as a QF. 16 U.S.C.
796(17)(A)(ii).
    \741\ See APPA Comments at 21; Center for Growth and Opportunity
Comments at 5-6; Consumers Energy Comments at 4; East River Comments
at 1-2; EEI Comments at 43; ELCON Comments at 35; Governor of Idaho
Comments at 1; Idaho Commission Comments at 5-7; Idaho Power
Comments at 13; Missouri River Energy Comments at 5; Mr. Moore
Comments at 2; Northern Laramie Range Alliance Comments at 2;
NorthWestern Comments at 9; NRECA Comments at 14-15; Portland
General Comments at 14.
---------------------------------------------------------------------------

d. Site Definition
i. Comments
    473. Solar Energy Industries state that, in El Dorado County Water
Agency, the Commission found that ``the critical test under PURPA
relates to whether the facilities are located at one site rather than
whether they are integrated as a project.'' \742\ Solar Energy
Industries argue that the proposed rule, as drafted, abandons the focus
on whether the facilities are located at one site and transforms it
into an analysis as to whether affiliated QFs are part of the same
project. Solar Energy Industries similarly contend that it is arbitrary
to change from a ``same site'' to an ``integrated project''
standard.\743\
---------------------------------------------------------------------------

    \742\ Solar Energy Industries Comments at 60 (quoting El Dorado
Cty. Water Agency, 24 FERC ] 61,280, at 61,578 (1983)).
    \743\ Id. at 61-62.
---------------------------------------------------------------------------

    474. NIPPC, CREA, REC, and OSEIA state that the existing rule is a
reasonable means of implementing the statutory phrase ``same site,''
particularly given the statutory directive to encourage QF development,
and state that they prefer the current bright line rule.\744\ Allco
argues that the proposed rule is divorced from the statutory use of
``site.'' Allco asserts that the Commission lacks authority to define
the term ``site'' in a manner other than one reasonably related to its
ordinary meaning and argues that the Commission's definition of site
arbitrarily limits QF development for no apparent reason.\745\ The DC
Commission would like the Commission to leave the resolution of certain
disputes over whether QFs are separate to state commissions.\746\ Idaho
also requests that states be given as much discretion as possible.\747\
---------------------------------------------------------------------------

    \744\ NIPPC, CREA, REC, and OSEIA Comments at 70.
    \745\ Allco Comments at 16.
    \746\ DC Commission Comments at 9.
    \747\ Idaho Comments at 1.
---------------------------------------------------------------------------

    475. EEI states that the interpretation of ``same site'' is
determined by the Commission, and that there is nothing in the statute
that prevents the Commission from modifying its interpretation of the
term ``same site.'' \748\
---------------------------------------------------------------------------

    \748\ EEI Comments at 42.
---------------------------------------------------------------------------

ii. Commission Determination
    476. We modify the NOPR proposal to change terminology relating to
the determination of whether small power production facilities are
separate facilities to focus not on whether they are separate
facilities, but rather to mirror the statutory language and thus focus
on whether they are at ``the same site.'' In that regard, we change
references to ``separate facilities'' or ``the same facility'' to ``at
separate sites'' or ``at the same site.''
    477. The NOPR refers to determining whether affiliated facilities
are ``separate facilities'' or ``a single facility.'' However, both the
statute and the existing regulations contemplate that the Commission
will determine what is ``the same site,'' \749\ and do not require the
Commission to determine whether two facilities are a single facility.
The statute defines a small power production facility as an eligible
facility, which, together with other facilities located at the same
site (as determined by the Commission), has a power production capacity
no greater than 80 MW,\750\ and the Commission's regulations have long
approached the matter as defining how to determine ``the same site.''
\751\ We find that the Commission's determination of whether or not a
small power production facility is a QF (i.e., exceeds a power
production capacity of 80 MW) should continue to be focused on whether
the small power production facility seeking QF status and other nearby
affiliated small power production QFs are at the same site or at
separate sites.
---------------------------------------------------------------------------

    \749\ 16 U.S.C. 796(17)(A)(i); 18 CFR 292.204(a).
    \750\ 16 U.S.C. 796(17)(A)(i).
    \751\ 18 CFR 292.204(a).
---------------------------------------------------------------------------

    478. We also modify the NOPR proposal to change the irrebuttable
and rebuttable presumptions regarding affiliated facilities to instead
apply to affiliated small power production qualifying facilities. As
noted, the NOPR refers to determining whether affiliated facilities are
``separate facilities'' or ``a single facility.'' We find that only
affiliated small power production QFs are relevant to the determination
of whether the small power production facility seeking QF status and
other nearby facilities are at the same site or separate sites.\752\
Correspondingly, as further detailed below, we will allow entities
challenging a QF certification (both self-certification and application
for Commission certification) or recertification (both self-
recertification and application for Commission recertification) to
rebut the presumption that a small power production facility seeking QF
status is at a separate site from any affiliated small power production
QFs that use the same energy resource and that are located

more than one but less than 10 miles from it.\753\
---------------------------------------------------------------------------

    \752\ We note, however, that, in the context of a PURPA section
210(m) proceeding, all affiliates are relevant in evaluating whether
a QF has nondiscriminatory access to a competitive market.
    \753\ Though not at issue here, we also note that the facilities
need to use the same energy resource. 18 CFR 292.204(a)(1).
---------------------------------------------------------------------------

    479. We therefore modify the language proposed in the NOPR. In sum,
we find that if a small power production facility seeking QF status is
located one mile or less from any affiliated small power production QFs
that use the same energy resource, it will be irrebuttably presumed to
be ``at the same site'' as those affiliated small power production QFs
(rather than a single facility at a single site, as proposed in the
NOPR). The Commission finds that if a small power production facility
seeking QF status is located ten miles or more from any affiliated
small power production QFs that use the same energy resource, it will
be irrebuttably presumed to be at a separate site from those affiliated
small power production QFs (rather than separate facilities at separate
sites, as proposed by the NOPR). We find that if a small power
production facility seeking QF status is located more than one but less
than ten miles from any affiliated small power production QFs that use
the same energy resource, it will be rebuttably presumed to be at a
separate site from those affiliated small power production QFs (rather
than separate facilities at separate sites, as proposed in the NOPR).
    480. Purchasing electric utilities and others will be able to file
a protest and identify factors attempting to rebut the presumption for
a small power production facility seeking QF status that has an
affiliated small power production QF that uses the same energy resource
more than one but less than 10 miles from it, and argue that the small
power production facility seeking QFs status should be treated as ``at
the same site'' as the affiliated small power production QF located
more than one but less than 10 miles from it (rather than as a single
facility, as proposed in the NOPR). We will allow a small power
production facility seeking QF status to provide further information in
its certification (both self-certification and application for
Commission certification) or recertification (both self-recertification
and application for Commission recertification) to preemptively defend
against rebuttal by identifying factors that affirmatively show that
its facility is indeed at a separate site from an affiliated small
power production QF located more than one but less than 10 miles from
it (rather than separate facilities at separate sites, as proposed in
the NOPR).
    481. Regarding the requests to allow states to decide whether
affiliated small power production QFs are located at separate sites, we
note that, in PURPA section 201, now codified in section 3 (17) of the
FPA, Congress authorized the Commission to determine whether the
applicant and other facilities are located at the same site. This
Commission will therefore continue to make these determinations.
e. Distance Between Facilities
i. Comments
    482. Several commenters contend that the proposal to institute a
rebuttable presumption for facilities that are more than one mile but
less than 10 miles apart is arbitrary and lacks sufficient supporting
evidence.\754\ ELCON notes that the choice of 10 miles as the threshold
is not supported by any evidence.\755\
---------------------------------------------------------------------------

    \754\ Allco Comments at 16; Ares Comments at 7; Borrego Solar
Comments at 4; ELCON Comments at 19; Public Interest Organizations
Comments at 93; SC Solar Alliance Comments at 17; Solar Energy
Industries Comments at 60, 62.
    \755\ ELCON Comments at 35-36.
---------------------------------------------------------------------------

    483. Regarding the proposed rebuttable presumption for QFs more
than one but less than 10 miles apart, Terna Energy argues that the
NOPR effectively increases the ``exclusion zone'' around a QF's
electrical generating equipment from approximately three square miles
(3.1415 square miles, the circle with one-mile radius around the QF's
electrical generating equipment, assuming a point generating source) to
over 300 square miles (i.e. a 10-mile radius circle), a 100-times
increase to the ``exclusion area'' for a single QF.\756\
---------------------------------------------------------------------------

    \756\ Terna Energy Comments at 4.
---------------------------------------------------------------------------

    484. New England Small Hydro notes that hydroelectric generators
are located where river conditions are ideal for generating and that,
while they are not generally located within one mile, there may be some
projects owned by affiliates that are within 10 miles of each
other.\757\
---------------------------------------------------------------------------

    \757\ New England Small Hydro Comments at 17.
---------------------------------------------------------------------------

    485. Borrego Solar opposes applying the proposed changes to the
one-mile rule to distributed generation and finds that it would
restrict the ability of developers to follow market signals when
locating projects and significantly increase the regulatory burden.
Borrego Solar notes that there are several reasons that otherwise
different projects from the same company would be within 10 miles of
each other, including land zoning restrictions, available substation
capacity, and optimal topology or insolation.\758\ Borrego Solar notes
that it is common for projects on the distribution system to be within
two miles of a substation or three-phase lines to reduce
interconnection costs. Borrego Solar states that it is also common for
multiple unaffiliated developers to site their projects in a single
area within just a few miles of each other, and later sell those
projects to a single entity much later in the process, inadvertently
violating the Commission's rules.\759\ Borrego Solar would like the
Commission to exclude projects directly interconnected to the
distribution system or initially developed by different entities from
any presumption of common development. Borrego Solar urges the
Commission to, at a minimum, establish a streamlined, low-cost option
for challenging any presumption of common development, to avoid casting
a chill over project development and driving developers and long-term
owners out of the market due to the risks of having the projects
disqualified.\760\
---------------------------------------------------------------------------

    \758\ Borrego Solar Comments at 3-4.
    \759\ Id. at 4.
    \760\ Id. at 5.
---------------------------------------------------------------------------

    486. North Carolina DOJ argues that the proposed rule, by
discouraging facilities from being placed close to one another, also
runs counter to a North Carolina policy based on efficient use of
electric resources.\761\ North Carolina DOJ and North Carolina
Commission Staff state that the rules in North Carolina incentivize the
installation of production facilities close to substations so projects
naturally appear in clusters surrounding transmission and distribution
infrastructure.\762\ North Carolina DOJ says that the proposed rule
fails to take into account the complex and regionally specific factors
driving the siting, financing, operation, and maintenance of production
facilities.\763\
---------------------------------------------------------------------------

    \761\ North Carolina DOJ Comments at 8.
    \762\ Id.; North Carolina Commission Staff Comments at 6.
    \763\ North Carolina DOJ Comments at 6.
---------------------------------------------------------------------------

    487. Industrial Energy Consumers state that the NOPR does not
distinguish between merchant small power production QFs built to sell
electricity to third parties and self-supply QFs built primarily to
support manufacturing or industrial processes. Industrial Energy
Consumers state that there are many manufacturing company sites that
are of a 10-mile length. Industrial Energy Consumers state that the
Commission's proposed changes to the one-mile rule should be clarified
to exclude ``self-supply'' QFs.\764\
---------------------------------------------------------------------------

    \764\ Industrial Energy Consumers Comments at 16.
---------------------------------------------------------------------------

    488. Solar Energy Industries believes that for facilities less than
one mile

apart the Commission should continue to waive the rule where
appropriate.\765\
---------------------------------------------------------------------------

    \765\ Solar Energy Industries Comments at 60-61 (citing
Windfarms, Ltd., 13 FERC ] 61,017, at 61,032 (1980) (Windfarms)).
---------------------------------------------------------------------------

    489. Regarding the proposed irrebuttable presumption that
facilities located more than 10 miles apart are separate facilities,
NorthWestern urges the Commission to consider increasing the distance.
NorthWestern explains that its operations in Montana are geographically
very expansive and 10 miles in Montana is not a substantial distance,
especially when compared to other states that are geographically much
smaller. NorthWestern states that Montana's electric system has more
than 24,450 miles of electric transmission and distribution lines to
serve approximately 374,000 customers, and that its electric operations
are very rural and cover more than 97,500 square miles.\766\
NorthWestern therefore recommends that the Commission consider
expanding this distance to accommodate utilities in the West that have
very large service territories.\767\
---------------------------------------------------------------------------

    \766\ NorthWestern Comments at 10.
    \767\ Id.
---------------------------------------------------------------------------

ii. Commission Determination
    490. We adopt the NOPR proposal that an entity can seek to rebut
the presumption of separate sites only for an entity seeking small
power production QF status with an affiliated small power production QF
or QFs that are located more than one and less than 10 miles from it.
    491. We recognize, as we have previously for the one-mile
rule,\768\ that it is debatable as to where exactly these thresholds
are most appropriately set. PURPA requires that no small power
production facility, together with other facilities located ``at the
same site,'' exceed 80 MWs, and Congress has tasked the Commission with
defining what constitutes facilities being at the same site for
purposes of PURPA. We find that providing set geographic distances will
limit unnecessary disputes over whether facilities are at the same
site, and therefore must choose reasonable distances at which small
power production facilities will be considered irrebuttably at the same
site or irrebuttably at separate sites. There are some affiliated small
power production facilities using the same energy resource that are so
close together that it is reasonable to treat them as irrebuttably at
the same site. The Commission finds that one mile or less is a
reasonable distance to treat such facilities as irrebuttably at the
same site. Likewise, there are some small power production facilities
that are affiliated and may use the same energy resource but that are
sufficiently far apart that it is reasonable to treat them as
irrebuttably at separate sites. The Commission finds that 10 miles or
more is a reasonable distance to treat such facilities as irrebuttably
at separate sites. For affiliated small power production facilities
using the same resource that are more than one mile but less than 10
miles apart, the Commission finds that the distinction between same
site or separate site is not as clear, and therefore finds that it is
reasonable to treat them as rebuttably at separate sites, and to allow
interested parties to provide evidence to attempt to rebut that
presumption. The Commission finds that establishing these reasonable
distances, and particularly establishing the ability to rebut the
presumption of separate sites for affiliated small power production
facilities more than one mile but less than 10 miles apart, better
allows the Commission to address the evolving shape and configuration
of resources, such as modular solar or wind power plants, that are
being developed as QFs, and provides for improved administration of
PURPA. The Commission therefore finds that the one-mile and 10-mile
limits are reasonable inflection points for differentiating between the
same site and separate sites.
---------------------------------------------------------------------------

    \768\ See Windfarms, 13 FERC at 61,032.
---------------------------------------------------------------------------

    492. The Commission understands that there may be many reasons that
guide developers' decisions on where to site facilities, and for siting
them near to (or far from) each other. The Commission reiterates that
for affiliated small power production QFs that are more than one and
less than 10 miles apart, there is still a presumption that they are at
separate sites, though the Commission today makes that presumption a
rebuttable presumption.\769\ We also adopt today the proposal to allow
an entity seeking QF status to provide further information in its
certification (both self-certification and application for Commission
certification) or recertification (both self-recertification and
application for Commission recertification) to preemptively defend
against rebuttal by identifying factors that affirmatively show that
its facility is indeed at a separate site from affiliated small power
production QFs more than one but less than 10 miles from it.
Additionally, we note that we are retaining waiver provision in 18 CFR
292.204(a)(3), allowing the Commission to waive the method of
calculation of the size of the facility for good cause.\770\
---------------------------------------------------------------------------

    \769\ For hydroelectric generating facilities, the regulations
currently provide that the same energy resources essentially means
``the same impoundment for power generation,'' see 18 CFR
292.204(a)(2)(i), and it is unlikely that hydroelectric generating
facilities located more than a mile apart would rely on the same
impoundment. Should that circumstance arise, though, the applicant
facility could seek waiver, arguing that the facilities should not
be considered to be at the same site. See 18 CFR 292.204(a)(3).
    \770\ See 18 CFR 292.204(a)(3).
---------------------------------------------------------------------------

    493. Borrego Solar raises the concern that unaffiliated developers
may site their projects within a few miles of each other, and later
sell those projects to a single entity much later in the process,
inadvertently violating the Commission's rules. The Commission finds
that it is reasonable to expect the single purchasing entity in the
example to be on notice about the size and locations of its QF
acquisitions and the requirements of both PURPA and the Commission's
regulations, just as it would need to consider other regulatory
requirements associated with its acquisition. Moreover, ownership by a
single entity of multiple small power production QFs in close proximity
to each other that together exceed a power production capacity of 80
MW, and whether this improperly circumvents the Commission's
regulations, is precisely what the new rebuttable presumption is
seeking to address.
    494. Regarding Industrial Energy Consumers' request that the
Commission's changes be clarified to exclude ``self-supply'' QFs, the
Commission declines to do so. PURPA limits the power production
capacity of a small power production QF, together with any other
facilities located at the same site (as determined by the Commission),
to 80 MW.\771\ The Commission finds that Industrial Energy Consumer's
argument that ``self-supply'' QFs are built primarily to support
manufacturing and industrial processes does not negate the fact that
the ``self-supply'' QFs in question are small power production
facilities limited to 80 MW. Similarly, its argument also does not
justify different application of the same site determination. The
Commission will therefore apply the same site determinations to all
small power production QFs. The Commission notes that, as with other
small power production QFs, an individual ``self-supply'' QF may assert
relevant factors to show why it should not be considered to be at the
same site as an affiliated small power production QF that is more than
one but less than 10 miles away from it. For example, if a self-supply
facility seeking QF status was within 10 miles of an affiliated

small power production QF, but the energy from each facility was used
primarily to supply different end users, the self-supply facility
seeking QF status could argue that this fact supports that it is at a
separate site from the affiliated small power production QF, and the
Commission would consider this fact in its evaluation.
---------------------------------------------------------------------------

    \771\ 16 U.S.C. 796(17)(A)(ii).
---------------------------------------------------------------------------

    495. Regarding Terna Energy's contention that the new rule causes a
100-times increase to the ``exclusion zone'' around a QF's electrical
generating equipment, we believe that the rule providing for a
rebuttable presumption for affiliated small power production QFs
located more than one but less than 10 miles apart, as promulgated
today, is necessary to address allegations of improper circumvention of
the one-mile rule that both previously and in comments have been
presented to the Commission.
    496. We reject NorthWestern's request to increase the distance of
the irrebuttable presumption of separate sites to more than 10 miles.
Northwestern argues that 10 miles is not a significant distance
compared to the geographic expansiveness of its system. We believe this
is an irrelevant comparison; what matters is not how large or small the
purchasing electric utility's service territory is or how rural it may
be or how many miles of transmission lines it may have, but the
question presented by the statute, i.e., whether or not the affiliated
small power production QFs are located at the same site. As described
above, we have decided that 10 miles is a reasonable and appropriate
distance at which to apply the irrebuttable presumption of separate
sites, irrespective of how expansive, or diminutive, the purchasing
electric utility's system may be.
f. Factors
i. Comments
    497. Several commenters state that they support the factors for
evaluating whether or not facilities are at the same site, which are
described in the NOPR.\772\ SC Solar Alliance and the Southeast Public
Interest Organizations support considering a common point of
interconnection or a single real estate parcel or owner as factors
weighing towards a determination that multiple projects are a single
facility.\773\
---------------------------------------------------------------------------

    \772\ APPA Comments at 21-22; Connecticut Authority Comments at
19-20; Idaho Commission Comments at 6-7; NARUC Comments at 5;
Portland General Comments at 15.
    \773\ SC Solar Alliance Comments at 17; Southeast Public
Interest Organization Comments at 34.
---------------------------------------------------------------------------

    498. Several commenters offer additional factors for
consideration.\774\ North Carolina Commission Staff states that the
Commission should also consider whether the QF is attempting to game
the system by getting rates for which they would otherwise be
ineligible, as well as where the facilities were constructed and when
common ownership commenced.\775\ Northern Laramie Range Alliance
suggests that relevant factors could include, for example, direct or
indirect ownership by the same party or parties, interconnection at a
single substation, simultaneous site acquisition and/or state and local
permitting.\776\ Allco proposes that the criteria to determine if sites
are separate should be whether they share infrastructure, private roads
or interconnection agreements in common.\777\ NRECA proposes that the
types of evidence could include evidence of contemporaneous
construction, shared interconnection, common communication and control,
use of the same step-up transformer, and common permitting and land
leasing.\778\ The Idaho Commission proposes that relevant factors
include whether they share an interconnection agreement, obtained
local, state or federal permits under the same application or as the
same entity, and if they have a revenue sharing agreement.\779\
---------------------------------------------------------------------------

    \774\ Allco Comments at 16; Idaho Commission Comments at 6-7;
North Carolina Commission Staff Comments at 6; Northern Laramie
Range Alliance Comments at 3; NRECA Comments at 15-16.
    \775\ North Carolina Commission Staff Comments at 6.
    \776\ Northern Laramie Range Alliance Comments at 3.
    \777\ Allco Comments at 16.
    \778\ NRECA Comments at 15-16.
    \779\ Idaho Commission Comments at 6-7.
---------------------------------------------------------------------------

    Portland General suggests that the Commission include past
ownership of projects as a factor.\780\
---------------------------------------------------------------------------

    \780\ Portland General Comments at 15.
---------------------------------------------------------------------------

    499. Regarding the relative weight of the factors, the Southeast
Public Interest Organizations would like the Commission to identify
which factors would be definitive in a QF being able to proactively
demonstrate that their site is separate.\781\ Both Basin and EEI would
like the Commission to clarify that the list of factors to be
considered is not exhaustive or weighted.\782\ NorthWestern contends
that the Commission should specify that a showing of any one factor is
sufficient to rebut the presumption. NorthWestern argues that the
Commission should have the flexibility to deal with this issue on a
case-by-case basis and expand or modify the list of factors where
appropriate.\783\
---------------------------------------------------------------------------

    \781\ Southeast Public Interest Organization Comments at 34.
    \782\ Basin Comments at 12; EEI Comments at 45.
    \783\ NorthWestern Comments at 11.
---------------------------------------------------------------------------

    500. NorthWestern states that it has concerns about the
Commission's reliance on 18 CFR 35.36(a)(9), because, according to
NorthWestern, developers carefully structure the ownership of their
companies to ensure that they are not, technically, legal affiliates
when, in fact, considering the totality of the circumstances, they are
affiliates. For these reasons, NorthWestern strongly urges the
Commission to consider the physical characteristic factors identified
for determining the distance between facilities in order to also
determine if facilities are owned by affiliates.\784\ NorthWestern
states that, for example, if one facility only owns five percent voting
interest in another facility, but the two facilities have one
interconnection request and use the same collector system, the
Commission should be able to find that there are sufficient facts so
that they are treated as affiliates for purposes of the one-mile
rule.\785\
---------------------------------------------------------------------------

    \784\ Id. at 12.
    \785\ Id.
---------------------------------------------------------------------------

    501. Several commenters opposed the Commission's proposed
factors.\786\ SC Solar Alliance states that the range of factors
included under the categories of ``ownership/other characteristics''
and ``physical characteristics'' is overly broad and could be subject
to inconsistent or problematic interpretation. For example, SC Solar
Alliance states that the term ``infrastructure'' is undefined and
ambiguous, and ``control facilities,'' ``access and easements,''
``collector systems or facilities,'' and ``property leases'' are all
vague and imprecise.\787\ SC Solar Alliance agrees with Solar Energy
Industries' emphasis that under no scenario should common financing be
relevant, as unquestionably distinct facilities are frequently financed
as part of a bundled portfolio.\788\
---------------------------------------------------------------------------

    \786\ Ares Comments at 5-7; Borrego Solar Comments at 3-4;
NIPPC, CREA, REC, and OSEIA Comments at 73; Solar Energy Industries
Comments at 62; SC Solar Alliance Comments at 16-18; Southeast
Public Interest Organizations Comments at 34.
    \787\ SC Solar Alliance Comments at 17.
    \788\ Id. at 16 (citing Solar Energy Industries Supplemental
Comments, Docket No. AD16-16, at 55-56 (August 28, 2019)).
---------------------------------------------------------------------------

    502. NIPPC, CREA, REC, and OSEIA strongly oppose use of common
interconnection facilities as a factor because separately owned
facilities are likely to share interconnection facilities to reduce
costs and build off of existing infrastructure. NIPPC, CREA, REC, and
OSEIA state that, given that there are only a limited number of
qualified

maintenance providers and other service contractors, the fact that two
facilities use the same contractors should not be relevant to common
ownership and control of two facilities. NIPPC, CREA, REC, and OSEIA
state that the fact that two facilities are constructed within 12
months of each other could merely be evidence that the market
conditions at the time favored construction of the facilities, not that
the facilities are intended to be one facility.\789\
---------------------------------------------------------------------------

    \789\ NIPPC, CREA, REC, and OSEIA Comments at 73-74.
---------------------------------------------------------------------------

    503. SC Solar Alliance states that the extensive list of
``ownership/other characteristics'' as written is highly problematic.
Control and maintenance, particularly in North and South Carolina where
there are a substantial number of distributed solar facilities, is
often contracted for by a limited number of solar maintenance
companies. Allowing the existence of a common maintenance company to in
any way dictate QF status is entirely unreasonable and bears no
relationship to the question at hand.\790\ Similarly, other factors
included in the NOPR, including the sale of electricity to a common
utility, a common financing lender, the use of a mutual contractor for
project construction, the timing of contract execution, and the timing
of facilities being placed into service do not provide relevant
evidence as to common ownership requiring facilities to be considered a
single QF. Applying these factors would create an unnecessary and undue
burden on QFs, particularly smaller distribution-connected QFs that
have been constructed relatively nearby and which often rely on a
limited number of local contractors and partners to complete this
necessary work.\791\
---------------------------------------------------------------------------

    \790\ SC Solar Alliance Comments at 17-18.
    \791\ Id.
---------------------------------------------------------------------------

    504. The Southeast Public Interest Organizations are concerned that
the use of common contractors, financing entity, maintenance companies,
or sales to the same entity and such could be used against QFs that are
built in the same area but are otherwise separate sites.\792\
---------------------------------------------------------------------------

    \792\ Southeast Public Interest Organizations Comments at 34.
---------------------------------------------------------------------------

    505. SC Solar Alliance states that the Commission's statement that
``no single factor would be dispositive'' is troubling, and that it is
inconceivable that QF ownership would not be dispositive in any such
rebuttable presumption. SC Solar Alliance states that it would be
wholly unjust and unreasonable to consider a solar facility owned by
one solar developer to be considered part of a solar facility owned by
a distinct and unaffiliated solar developer. SC Solar Alliance states
that any rebuttable presumption should include ``separate ownership''
as a dispositive indication of separate facilities.\793\
---------------------------------------------------------------------------

    \793\ SC Solar Alliance Comments at 17.
---------------------------------------------------------------------------

    506. North Carolina DOJ states that the element of common control
is a challenging question because of the limited number of companies
available to operate renewable energy facilities. North Carolina DOJ
asserts that a handful of firms are responsible for the operation and
maintenance work for close to half of the country's solar energy
production facilities.\794\
---------------------------------------------------------------------------

    \794\ North Carolina DOJ Comments at 8.
---------------------------------------------------------------------------

    507. NIPPC, CREA, REC, and OSEIA state that the Commission should
include substantially more specific parameters about what evidence a
project would need to submit to demonstrate single-project status and
should make clear that this test has no applicability unless generators
within one to 10 miles are owned by the same company or affiliates of
the same company. NIPPC, CREA, REC, and OSEIA assert that ``the
decisive factors are the `stream of benefits' from the project and
control of the venture,'' which the Commission defined ``to include
entitlement to profits, losses, and surplus after return of initial
capital contribution.'' \795\ These criteria could be used to
objectively evaluate whether two QFs within 10 miles are commonly owned
or controlled, as opposed to also putting two separately owned and
controlled facilities at risk of violating the rule based solely on
physical characteristics.\796\
---------------------------------------------------------------------------

    \795\ NIPPC, CREA, REC, and OSEIA Comments at 73 (citing CMS
Midland, Inc., 50 FERC ] 61,098, at 61,278-279 (1990), aff'd Mich.
Municipal Coop. Group v. FERC, 990 F.2d 1377 (D.C. Cir. 1993)).
    \796\ Id.
---------------------------------------------------------------------------

ii. Commission Determination
    508. We adopt the physical and ownership factors proposed in the
NOPR, including as noted above the ability of a QF to preemptively
identify the factors in its filing in anticipation of protests to its
filing. As explained above in section IV.D.1.d we are modifying the
NOPR proposal to change terminology relating to the determination of
whether facilities are separate facilities to focus not on whether they
are separate facilities, but rather to mirror the statutory language
and thus focus on whether they are at ``the same site.'' Accordingly,
we adopt these factors as relevant indicia of whether affiliated small
power production facilities are ``at the same site.'' In addition, we
modify the NOPR proposal to identify the following additional physical
factors as indicia that small power production facilities should be
considered to be located at the same site: (1) Evidence of shared
control systems; (2) common permitting and land leasing; and (3) shared
step-up transformers.
    509. Specifically, we adopt the factors listed below as examples of
the factors the Commission may consider in deciding whether small power
production facilities that are owned by the same person(s) or its
affiliates are located ``at the same site'': (1) Physical
characteristics, including such common characteristics as:
Infrastructure, property ownership, property leases, control
facilities, access and easements, interconnection agreements,
interconnection facilities up to the point of interconnection to the
distribution or transmission system, collector systems or facilities,
points of interconnection, motive force or fuel source, off-take
arrangements, connections to the electrical grid, evidence of shared
control systems, common permitting and land leasing, and shared step-up
transformers; and (2) ownership/other characteristics, including such
characteristics as whether the facilities in question are: Owned or
controlled by the same person(s) or affiliated persons(s),\797\
operated and maintained by the same or affiliated entity(ies), selling
to the same electric utility, using common debt or equity financing,
constructed by the same entity within 12 months, managing a power sales
agreement executed within 12 months of a similar and affiliated small
power production qualifying facility in the same location, placed into
service within 12 months of an affiliated small power production QF
project's commercial operation date as specified in the power sales
agreement, or sharing engineering or procurement contracts.
---------------------------------------------------------------------------

    \797\ Definitionally, if the facilities are not owned by the
same person(s) or its affiliates, then the issue of compliance with
the one-mile rule, even as revised in this final rule, becomes
irrelevant. See 18 CFR 292.204(a)(1). That is, two facilities owned
by two different persons are definitionally not located at the same
site.
---------------------------------------------------------------------------

    510. We adopt the NOPR proposal to allow a small power production
facility seeking QF status to provide further information in its
certification (both self-certification and application for Commission
certification) or recertification (both self-recertification and
application for Commission recertification) to preemptively defend
against rebuttal, by identifying factors that affirmatively show that
its facility is indeed at a separate site from

affiliated small power production QFs more than one but less than 10
miles away from it. Any party challenging the QF certification (both
self-certification and application for Commission certification) or
recertification (both self-recertification and application for
Commission recertification) that makes substantive changes to the
existing certification would, in its protest, be allowed to
correspondingly identify factors to show that the small power
production facility seeking QF status and affiliated small power
production QFs more than one but less than 10 from that facility are
actually at the same site.
    511. We reiterate that, as a general matter, no one factor is
dispositive.\798\ Rather, we will conduct a case-by-case analysis,
weighing the evidence for and against, and the more compelling the
showing that affiliated small power production QFs should be considered
to be at the same site as the small power production facility seeking
QF status in a specific case, the more likely the Commission will be to
find that the facilities involved in that case are indeed located ``at
the same site.''
---------------------------------------------------------------------------

    \798\ But see supra note 797.
---------------------------------------------------------------------------

g. Exemptions
i. Comments
    512. Ares notes that small power producers have certain exemptions
from utility regulation, including exemptions from FPA sections 203 and
204 if under 30 MW and exemptions from FPA sections 205 and 206 if
under 20 MW (or 30 MW in special cases), as well as exemptions from
some state utility laws and PUHCA if under 30 MW.\799\ Ares is
concerned that the rebuttable presumption and the factors will make
many small power QFs ineligible for these exemptions.\800\ Ares argues
that the aggregation of small power QFs may result in many required
applications for market-based rate authority for sales that are minor.
Ares argues that the Commission has no basis for, did not consider, and
has sought no comments on the removal of regulatory obligations when
small power QFs are aggregated under the new ten-mile proposal.\801\
---------------------------------------------------------------------------

    \799\ Ares Comments at 4-5.
    \800\ Id. at 5-6.
    \801\ Id. at 11-12.
---------------------------------------------------------------------------

    513. Solar Energy Industries note that many facilities could lose
their FPA and PUHCA exemptions if there are multiple facilities within
10 miles, which is particularly harmful to QFs that are not selling to
their host utility. Solar Energy Industries state that PURPA section
210(e)(1) instructs that the Commission shall exempt QFs from
regulation if such exemption ``is necessary to encourage cogeneration
and small power production.'' \802\
---------------------------------------------------------------------------

    \802\ Solar Energy Industries Comments at 55.
---------------------------------------------------------------------------

ii. Commission Determination
    514. The Commission's current one-mile rule is a rule used to
measure, ultimately, whether or not small power production facilities
are within PURPA's limit on small power production QFs of 80 MW, and
thus whether such facilities are QFs, and the Commission has
consistently applied the one-mile rule generally to the regulations
issued pursuant to PURPA.\803\ There is no persuasive reason it should
not be equally applied in the context of the regulations implementing
section 210(e) of PURPA. That being said, we are not removing or
amending the exemptions provided by the regulations implementing PURPA
section 210(e). If a QF qualifies for exemptions pursuant to PURPA
section 210(e) and the Commission's implementing regulations,\804\ then
that QF is entitled to those exemptions. But, if a small power
production facility does not meet the 80 MW limit for whatever reason,
including because an affiliated small power production QF is located at
the same site, then it does not qualify for such exemption because it
would not be a QF.\805\ There is nothing inappropriate about this
consequence; a facility that is not a QF is not entitled to the
exemptions available to QFs. We further note that there will now be a
rebuttable presumption that affiliated small power production QFs
located more than one but less than 10 miles apart are indeed located
at separate sites. That is no different than the one-mile rule as it
has long existed. What is different is that, with this final rule, the
presumption will be rebuttable while before it was irrebuttable; the
presumption that the facilities are at separate sites, though, remains
unchanged. Only if a party rebuts that presumption and shows that the
small power production facility seeking QF status and affiliated small
power production QFs should be viewed as located at the same site will
the capacity of such facilities be counted together. In that event, if
the small power production facility seeking QF status and affiliated
small power production QFs located at the same site have a combined
power production capacity that exceeds 80 MW, the entity seeking QF
status would not qualify as a QF and would properly not be entitled to
the exemptions that are available to QFs.
---------------------------------------------------------------------------

    \803\ SunE B9 Holdings LLC, 157 FERC ] 61,044, at P 16 & n.24
(2016) (citing Windfarms, 13 FERC ] 61,017 at 61,031).
    \804\ 18 CFR 292.601, 292.602.
    \805\ See 16 U.S.C. 796(17)(A)(ii).
---------------------------------------------------------------------------

2. Electrical Generating Equipment
a. NOPR Proposal
    515. The Commission proposed defining ``electrical generating
equipment'' to refer to all boilers, heat recovery steam generators,
prime movers (any mechanical equipment driving an electric generator),
electrical generators, photovoltaic solar panels and/or inverters, fuel
cell equipment and/or other primary power generation equipment used in
the facility, excluding equipment for gathering energy to be used in
the facility. The Commission expected that each wind turbine on a wind
farm and each solar panel in a solar facility would be considered
``electrical generating equipment'' because each wind turbine and each
solar panel is independently capable of producing electric energy. The
Commission sought comments on this approach, and on what equipment--if
not individual wind turbines and solar panels--should be considered
``electrical generating equipment'' for wind and solar plants.
    516. The Commission also proposed specifying how to measure the
distance between facilities that have multiple, separate sets of
``electrical generating equipment'' such as wind farms and solar
facilities. The Commission proposed measuring the distance between the
nearest ``electrical generating equipment'' of any two facilities such
that, for the facilities to be presumed irrebuttably separate, all such
equipment of one QF must be at least 10 miles away from all such
equipment of another QF. The Commission believed this is the
appropriate way to measure the distance between affiliated sets of
``electrical generating equipment'' because this reflects the distance
between the components directly tied to producing electric energy.
    517. The Commission sought comment on this approach, and whether
alternative approaches would be more appropriate. For example, some
parties had suggested in QF certification proceedings that the
Commission could use the geographic center of the plant footprint or a
weighted average of the locations of the individual pieces of
``electrical generating equipment.'' \806\ The Commission was concerned
these approaches could be easily gamed, but sought comment on whether
they may be constructed in a way that would prevent gaming, and whether
such

formulations would be preferable to the proposed approach.
---------------------------------------------------------------------------

    \806\ See Beaver Creek Wind II, LLC, 160 FERC ] 61,052, at P 9
(2017).
---------------------------------------------------------------------------

b. Comments
    518. Many commenters support the definition of ``electrical
generating equipment'' proposed in the NOPR.\807\ However, ELCON
objects to both the proposed definition of ``electric generating
equipment'' and the approach to measuring distance.\808\
---------------------------------------------------------------------------

    \807\ Alliant Energy Comments at 19; APPA Comments at 23; Basin
Comments at 11; Connecticut Authority Comments at 19-20; EEI
Comments at 49; Idaho Commission Comments at 6; Kentucky Commission
Comments at 7; NRECA Comments at 17; Portland General Comments at
16-17; Southeast Public Interest Organizations Comments at 37-38.
    \808\ ELCON Comments at 36.
---------------------------------------------------------------------------

    519. Many commenters support the method for measuring distance
between sites proposed in the NOPR, which would require measuring the
distance between the nearest ``electrical generating equipment'' of any
two affiliated facilities.\809\ Several commenters note their
opposition to measuring the distance between sites using the geographic
center of the plant or a weighted average of the locations of
individual pieces of ``electrical generating equipment,'' both methods
the Commission sought comment on in the NOPR.\810\ The Southeast Public
Interest Organizations request clarification of whether to measure from
the edge of a solar panel or the center of a solar array.\811\
---------------------------------------------------------------------------

    \809\ Alliant Energy Comments at 19; APPA Comments at 23; Basin
Comments at 11; Connecticut Authority Comments at 19-20; EEI
Comments at 49; Kentucky Commission Comments at 7; NARUC Comments at
4-5; Portland General Comments at 16-17; Southeast Public Interest
Organizations Comments at 37-38.
    \810\ Connecticut Authority Comments at 21; Kentucky Commission
Comments at 7; NorthWestern Comments at 12-13; NRECA Comments at 18;
Portland General Comments at 18.
    \811\ Southeast Public Interest Organizations Comments at 38.
---------------------------------------------------------------------------

    520. Several commenters request that the Commission discuss how
energy storage (sometimes referred to as battery storage) would be
considered in relation to the proposed definition of electrical
generating equipment.\812\ The California Commission requests that a
battery storage facility be excluded from consideration as electrical
generating equipment provided the storage is charged solely by the
small power production facility, and that energy stored by the storage
facility be considered to be of the same energy source of that energy
before it was stored.\813\ The California Commission also requests that
the Commission affirm that storage does not permit a facility to exceed
the maximum size criteria of a small power production facility.\814\
EEI requests that the Form 556 collect data on storage resources as
well as electrical generating equipment for purposes of measuring
distance to an affiliated small power production QF.\815\
---------------------------------------------------------------------------

    \812\ Alliant Energy Comments at 19; EEI Comments at 46-47;
Energy Storage Comments at 3; NorthWestern Comments at 13.
    \813\ California Commission at 16-17.
    \814\ Id. at 15.
    \815\ EEI at 51-52.
---------------------------------------------------------------------------

c. Commission Determination
    521. We adopt the NOPR proposal that ``electrical generating
equipment'' refers to all boilers, heat recovery steam generators,
prime movers (any mechanical equipment driving an electric generator),
electrical generators, photovoltaic solar panels, inverters, fuel cell
equipment and/or other primary power generation equipment used in the
facility, excluding equipment for gathering energy to be used in the
facility. Each wind turbine at a wind facility and each solar panel in
a solar facility would be considered ``electrical generating
equipment'' because each wind turbine and each solar panel is
independently capable of producing electric energy.
    522. We require the distance between the facility seeking small
power production QF status and any affiliated small power production
QFs using the same energy resource to be measured by the distance
between the nearest ``electrical generating equipment'' of each such
facility, such that, for the entity seeking QF status to be presumed
irrebuttably at a separate site from any affiliated small power
production QF, all such equipment of the affiliated small power
production QF must be at least 10 miles away from all such equipment of
the entity seeking small power production QF status. The Commission
finds that this is the most appropriate way to measure the distance
between affiliated sets of ``electrical generating equipment'' at small
power production facilities because this reflects the distance between
the components directly tied to producing electric energy.
    523. The point used in the distance calculation will always be from
the edge of the electrical generating equipment closest to the
affiliated small power production QF's nearest electrical generating
equipment. Thus, we clarify that for a solar facility, the measurement
should be from the edge of the small power production facility seeking
QF status' solar panel or inverter that is closest to the edge of the
nearest ``electrical generating equipment'' of that affiliated small
power production QF. For a wind facility, the measurement should
similarly be from the edge of the small power production facility
seeking QF status' wind turbine or inverter closest to the edge of the
nearest ``electrical generating equipment'' of the affiliated small
power production QF. For a wind facility, we clarify that the relevant
point for measuring distance of an individual wind turbine is the tower
(not the projection of the blade's wingspans onto the ground). We also
clarify that only horizontal distances are taken into consideration for
purposes of this rule (such that elevation changes have no effect on
facility distance).
    524. We find that the role of battery storage in QFs, including
with regard to the distance between QFs, is beyond the scope in this
proceeding.

E. QF Certification Process

1. NOPR Proposal
    525. In the NOPR, the Commission proposed to revise 18 CFR
292.207(a) to allow interested persons to intervene in, and to file a
protest of a self-certification or self-recertification of a facility
without the necessity of filing a separate petition for declaratory
order and without having to pay the filing fee required for a
declaratory order. Because an applicant for self-certification or self-
recertification is required to serve a copy of its submission on
interested electric utilities (principally those with which it is
interconnected and those to which it will be selling) as well as the
relevant state regulatory authorities, the Commission proposed to allow
interested persons 30 days from the date of filing at the Commission to
intervene and/or to file a protest (without paying a filing fee).\816\
---------------------------------------------------------------------------

    \816\ 18 CFR 292.207(c)(1).
---------------------------------------------------------------------------

    526. Any party submitting a protest would have the burden of
specifying facts that make a prima facie demonstration that the
facility described in the self-certification or self-recertification
does not satisfy the requirements for QF status. General allegations
that the facility is not a QF without reference to the specific
regulatory provision that has not been satisfied (and without an
explanation why the provision has not been satisfied), or unsupported
assertions that the self-certification does not satisfy an aspect of
the PURPA Regulations, would not satisfy this burden and would not be a
basis for denial of certification. However, if this prima facie burden
is met, then the burden would shift to the applicant submitting the
self-certification or self-

recertification to demonstrate that the claims raised in the protest
are incorrect and that certification is, in fact, warranted.
    527. QF self-certification is effective upon filing and would
remain effective if a protest is filed, until such time as the
Commission rules that certification is revoked. The Commission proposed
that it would issue an order within 90 days of the date the protest is
filed. The Commission also reserved the right to request more
information from the protester, the entity seeking QF status, or
both.\817\ If the Commission requests more information, the time period
for the Commission order would be extended to 60 days from the filing
of a complete answer to the information request.
---------------------------------------------------------------------------

    \817\ Such information requests could be issued by the
Commission or by staff under any applicable delegated authority. For
example, under 18 CFR 375.307(b)(3)(ii), the Director of the Office
of Energy Market Regulation is authorized to ``[i]ssue and sign
requests for additional information regarding applications, filings,
reports and data processed by the Office of Energy Market
Regulation.''
---------------------------------------------------------------------------

    528. There may be instances, however, when the Commission may need
additional time to review the record in light of the nature of the
protests. In those cases, the Commission proposed that, in addition to
any extension resulting from a request for information, the Commission
also may toll the 90-day period during which the Commission commits to
act within one additional 60-day period. The Commission proposed to
delegate to the Commission's Secretary, or the Secretary's designee,
the authority to toll the 90-day period for this purpose.
    529. The Commission believed these procedures would allow for
timely but thorough review of protested self-certifications and self-
recertifications. The Commission sought comment on whether these
procedures impose an undue burden on the QF even though the QF remains
certified pending the review.
2. Comments
    530. Many commenters raise the issue of granting legacy treatment,
colloquially known as ``grandfathering,'' to existing QF certifications
and their future recertifications.\818\ Most of these comments support
granting legacy treatment to current QFs and their future
recertifications.\819\ Several commenters note that the application of
the rule to existing or recertifying QFs will create uncertainty and
cause disruptions of the sale of these QFs.\820\
---------------------------------------------------------------------------

    \818\ Ares Comments at 12; Basin Comments at 11; BluEarth
Comments at 2; DC Commission at 9; New England Small Hydro Comments
at 17; Industrial Energy Consumers Comments at 17; NIPPC, CREA, REC,
and OSEIA Comments at 74; Solar Energy Industries Comments at 61-63;
SC Solar Alliance Comments at 18; Southeast Public Interest
Organizations Comments at 29-31; Terna Energy Comments at 16-18.
    \819\ Ares Comments at 12; BluEarth Comments at 2; New England
Small Hydro Comments at 17; Industrial Energy Consumers Comments at
17; NIPPC, CREA, REC, and OSEIA Comments at 74; Solar Energy
Industries Comments at 61-63; SC Solar Alliance Comments at 18;
Southeast Public Interest Organizations Comments at 29-31; Terna
Energy Comments at 16-18.
    \820\ New England Small Hydro Comments at 17; NIPPC, CREA, REC,
and OSEIA Comments at 74; Terna Energy Comments at 16-18.
---------------------------------------------------------------------------

    531. New England Small Hydro warns that applying the proposed rule
to existing QFs could trigger financing defaults if those QFs lose
their status.\821\ The Southeast Public Interest Organizations state
that the proposed rebuttable presumption has implications for existing
solar QFs in the Southeast, noting that QFs would be required to seek
recertification as their existing PPAs expire, adding a significant
burden.\822\ The Southeast Public Interest Organizations provide maps
showing the ten-mile radius of utility-scale projects could lead to
many overlapping affiliated territories under the new rules.\823\ SC
Solar Alliance also notes the large number of small solar QFs
overlapping within a ten-mile radius across North Carolina and South
Carolina and finds that the application of the more-than-one-but-less-
than-10-miles rebuttable presumption to recertifications will be
burdensome and unwieldy.\824\ NIPPC, CREA, REC, and OSEIA warn that the
application of the new rule to existing QFs will effectively bar the
transfer or sale (or potentially any number of less significant
changes) of existing assets that were lawfully qualified under the one-
mile rule but would pass the 80 MW aggregate threshold under the new
rule. NIPPC, CREA, REC, and OSEIA find this to be a violation of the
existing QFs contractual and constitutional rights.\825\
---------------------------------------------------------------------------

    \821\ New England Small Hydro Comments at 17.
    \822\ Southeast Public Interest Organizations Comments at 29.
    \823\ Id. at 30-31.
    \824\ SC Solar Alliance Comments at 18.
    \825\ NIPPC, CREA, REC, and OSEIA Comments at 75.
---------------------------------------------------------------------------

    532. Terna Energy states that granting legacy treatment to existing
QFs and their recertifications is necessary to protect investment
decisions and contracts made under the long-standing one-mile
rule.\826\ Terna Energy contends that, without clarification on the
legacy treatment of recertifications, QFs could lose their status even
for non-substantive revisions to their FERC Form No. 556s such as
contact information, street address, ownership or operation.\827\ Terna
Energy warns that absent the clarification of legacy treatment for
existing QF recertifications, QFs might go to extremes to avoid
updating their FERC Form No. 556s with information changes.\828\
---------------------------------------------------------------------------

    \826\ Terna Energy Comments at 1-2.
    \827\ Id. at 2.
    \828\ Id. at 7.
---------------------------------------------------------------------------

    533. Solar Energy Industries state that retroactively applying a
more-than-one-but-less-than-10-miles rebuttable presumption to physical
facilities that were developed based on the original one-mile rule will
inject instability, will erode trust from the investment community, and
will discourage the development of QFs as well as investment in the
industry in general.\829\ Ares notes that not granting legacy treatment
to existing QFs is inconsistent with past Commission actions on PURPA,
such as the granting of legacy treatment to existing QF contracts in
Order No. 671 or other QF related proceedings.\830\
---------------------------------------------------------------------------

    \829\ Solar Energy Industries Comments at 62.
    \830\ Ares Comments at 12.
---------------------------------------------------------------------------

    534. New England Small Hydro supports granting legacy treatment to
existing QFs to avoid upsetting the settled expectations of existing
generation.\831\ New England Small Hydro gives the example of three
hypothetical projects, each located nine miles apart that, when
capacities are totaled, exceed 80 MW. If there is an ownership change
that triggers the need for a recertification but the entities remain
affiliates, under the Commission's proposed rule, all three projects
would lose QF status. According to New England Small Hydro, this could
trigger defaults under financing documents and the utility might be
able to terminate the power contract, because many PPAs for QFs require
the project to remain a QF for the term of the PPA. New England Small
Hydro states that, as a result, a minor ownership change could have
cascading negative effects to QFs.\832\
---------------------------------------------------------------------------

    \831\ New England Small Hydro Comments at 17.
    \832\ Id.
---------------------------------------------------------------------------

    535. Terna Energy requests that existing QFs be granted legacy
treatment as long as they do not make changes to electrical generating
equipment of the facility, because that is the equipment that
determines compliance with the one-mile rule. Terna Energy argues that
otherwise an existing QF could be subject to challenge anytime it makes
a non-substantive revision to its FERC Form No. 556, including a change
to contact information, street address, ownership, or operator,
effectively

eliminating legacy treatment.\833\ Terna Energy states that granting
legacy treatment is necessary to protect the sanctity of investments
and contracts made in reliance upon the Commission's current PURPA
regulations and the one-mile rule.\834\ Terna Energy submits revised
language for 18 CFR 292.204(a)(2) and (3) to clarify that existing QF
recertifications, unless they change the electrical generating
equipment, should not be subject to the new rules.\835\
---------------------------------------------------------------------------

    \833\ Terna Energy Comments at 2.
    \834\ Id. at 1-2.
    \835\ Id. at 8-9.
---------------------------------------------------------------------------

    536. Basin, on the other hand, asks the Commission to be clear that
recertifications filed by QFs will trigger application of the proposed
rule.\836\ Basin also recommends the Commission allow petitions seeking
de-certification of QFs that have previously filed self-certifications
because some QFs self-certify at an early stage of project development
and ultimately never proceed to development.\837\
---------------------------------------------------------------------------

    \836\ Basin Comments at 11.
    \837\ Id.
---------------------------------------------------------------------------

    537. The DC Commission would like the Commission to clarify whether
the changes to the one-mile rule will apply to QFs under construction
when the rule goes into effect.\838\ The DC Commission would like the
Commission to leave the issue of legacy treatment of existing QFs up to
the states.\839\
---------------------------------------------------------------------------

    \838\ DC Commission Comments at 9.
    \839\ Id.
---------------------------------------------------------------------------

    538. Several commenters oppose the NOPR proposal to allow a party
to protest a self-certification or self-recertification of a facility
without being required to file a separate petition for declaratory
order and pay the associated filing fee.\840\ Several commenters argue
that this proposal will lead to a flood of challenges that will
discourage the growth of QFs.\841\ Several commenters state that there
will be substantial costs associated with this proposal that will fall
on ratepayers and QFs.\842\ Several commenters state that the proposed
changes will lead to increased administrative burden and expense \843\
or litigation risk.\844\ Several commenters state that the proposed
changes will lead to uncertainty \845\ and deter development.\846\
---------------------------------------------------------------------------

    \840\ Allco Comments at 21; BluEarth Comments at 3; CARE
Comments at 7; Con Edison Comments at 5; Distributed Sun Comments at
3; ENGIE Comments at 4; Public Interest Organizations Comments at 9,
97-98; Western Resource Councils Comments at 144; Solar Energy
Industries Comments at 57-59.
    \841\ Allco Comments at 21; BluEarth Comments at 3; Distributed
Sun Comments at 3; Public Interest Organizations Comments at 97;
Western Resource Councils Comments at 144.
    \842\ Con Edison Comments at 5; ENGIE Comments at 4; Public
Interest Organizations Comments at 97; Solar Energy Industries
Comments at 58.
    \843\ Ares Comments at 6; Borrego Solar Comments at 4; Con
Edison Comments at 5; Public Interest Organizations Comments at 97-
98; Solar Energy Industries Comments at 51-52, 54, 57-58; SC Solar
Alliance Comments at 15-18; Southeast Public Interest Organizations
Comments at 29, 35; sPower Comments at 14.
    \844\ Con Edison Comments at 5; Distributed Sun Comments at 3;
ELCON Comments at 19-20; NIPPC, CREA, REC, and OSEIA Comments at 71-
72; Public Interest Organizations Comments at 97-98; Solar Energy
Industries Comments at 58-60; SC Solar Alliance Comments at 16, 18;
Southeast Public Interest Organizations Comments at 29,35; sPower
Comments at 14.
    \845\ Ares Comments at 9; Distributed Sun Comments at 3; ELCON
Comments at 19-20, 38; NIPPC, CREA, REC, and OSEIA Comments at 69-
72; Public Interest Organizations Comments at 97-98; Solar Energy
Industries Comments at 58-60, 62-63; SC Solar Alliance Comments at
16, 18; Southeast Public Interest Organizations Comments at 29, 35,
38, 93, 97-98; sPower Comments at 14.
    \846\ Allco Comments at 16; Borrego Solar Comments at 4-5;
Biological Diversity Comments at 9; Con Edison Comments at 4-5;
Distributed Sun Comments at 3; NIPPC, CREA, REC, and OSEIA Comments
at 72-73; North Carolina DOJ Comments at 8; Public Interest
Organizations Comments at 93, 99; Solar Energy Industries Comments
at 51-52, 59-63; SC Solar Alliance Comments at 2, 18; Southeast
Public Interest Organizations Comments at 31-36, 38, 93.
---------------------------------------------------------------------------

    539. Solar Energy Industries state that the proposed changes to the
one-mile rule will substantially increase the regulatory burden on QFs
and the self-certification process will no longer be quick.\847\ Solar
Energy Industries is concerned that QFs may need to defend numerous
self-certifications over a facility's lifetime, and assert that QFs
could be forced to recertify any time the information represented in
the Form No. 556 changes, including ownership changes to affiliated
facilities located within 10 miles.\848\ Solar Energy Industries state
that the burden will be increased exponentially if the one-mile rule is
expanded in a ten-mile rule.\849\ Solar Energy Industries state that
the NOPR's estimate of an additional eight hours and $632 per docket
for each QF self-certification or re-certification is a substantial
underestimation.\850\ Solar Energy Industries estimate that it would
require an additional approximately 90 to 120 hours per year to comply
with the new requirements. Solar Energy Industries state that a QF
could be forced to recertify any time the information represented
changes, including ownership changes to affiliated facilities located
within 10 miles. Solar Energy Industries note that a QF may have to
engage in multiple defenses of its status, each time needing to engage
legal counsel and devote internal company resources to preserve the
status of its already-installed plant.\851\ Solar Energy Industries
assert that the flood of self-certification filings and updates would
be a substantial burden on Commission staff and provide little value to
the Commission or the public.\852\ Solar Energy Industries also state
that, unless and until the Commission makes a determination on the
burden associated with collecting, reporting, and updating the
Connected Entity \853\ information, it would be unjust and unreasonable
for the Commission to impose similar burdens on QF entities through the
FERC Form No. 556.\854\ Solar Energy Industries state that the
increased regulatory burden that will arise for these entities is
similar in scope and the Commission has not provided a rationale for
the increased information collection requirements.\855\
---------------------------------------------------------------------------

    \847\ Solar Energy Industries Comments at 52.
    \848\ Solar Energy Industries at 57.
    \849\ Id. at 53.
    \850\ Id. at 52.
    \851\ Id. at 58.
    \852\ Id. at 53-54.
    \853\ Id. at 54 (citing Data Collection for Analytics and
Surveillance and Market-Based Rate Purposes, Order No. 860, 168 FERC
] 61,039, at P 183 (2019)).
    \854\ Id. at 54, 57.
    \855\ Id. at 54.
---------------------------------------------------------------------------

    540. Allco describes the Commission's Regulatory Flexibility Act
(RFA) analysis of the proposed rules' effect on small businesses as
improperly limited to proposed paperwork changes, ignoring the impact
on small QFs' abilities to construct facilities.\856\ Allco states that
the Commission did not attempt to minimize the impacts on small
renewable energy producers, consider alternative structures, or
describe these steps or considerations in a mandatory final RFA
analysis.\857\ Allco asserts that the Commission failed to support its
finding that the NOPR's proposed revisions will not significantly
impact a substantial number of small entities (specifically, solar
energy QFs); Allco therefore claims that the Commission violated the
Small Business Regulatory Enforcement Fairness Act.\858\
---------------------------------------------------------------------------

    \856\ Allco Comments at 33.
    \857\ Id.
    \858\ Id.
---------------------------------------------------------------------------

    541. Solar Energy Industries state that the NOPR lacks important
details such as whether the Commission's determination is subject to
rehearing, and whether a final decision can be appealed under the FPA
to an appellate court.\859\ Solar Energy Industries state that an
adverse determination by the Commission could impose upwards of $100
million in harm on a QF, and it is unclear whether the QF would have a
path to relief if the Commission erred in its determination. Solar
Energy

Industries state that the current practice, where the challenger bears
the responsibility of seeking declaratory relief, strikes an
appropriate balance.\860\
---------------------------------------------------------------------------

    \859\ Id. at 58.
    \860\ Id. at 59.
---------------------------------------------------------------------------

    542. Several commenters, on the other hand, support the NOPR
proposal to allow a party to protest a self-certification or self-
recertification of a facility without being required to file a separate
petition for declaratory order and to pay the associated filing
fee.\861\ Several commenters argue that the proposed amendment would
strike the right balance and distribute the burdens of proof
appropriately.\862\ Several commenters also state that this proposal
would increase the efficiency of the process, reduce administrative
costs, and could solve potential certification problems before they
even begin.\863\
---------------------------------------------------------------------------

    \861\ Alaska Power Comments at 2; Alliant Energy Comments at 22-
23; APPA Comments at 31-35; Duke Energy Comments at 23-24; Indiana
Municipal Comments at 10; NRECA Comments at 21-22; Portland General
Comments at 21-22; Ohio Commission Energy Advocate Comments at 10;
Chamber of Commerce Comments at 8; We Stand Comments at 3.
    \862\ APPA Comments at 31-35; NRECA Comments at 21-22; Ohio
Commission Energy Advocate Comments at 10.
    \863\ Indiana Municipal Comments at 10; NRECA Comments at 21-22;
Portland General Comments at 21-22.
---------------------------------------------------------------------------

    543. Other commenters support the NOPR proposal, but with caveats
or extra requests.\864\ Golden Valley recommends that the 30-day clock
to challenge QF self-certification or self-recertification begins when
the QF serves notice to the interested electric utility, not when the
QF makes its filing with the Commission.\865\ NIPPC, CREA, REC, and
OSEIA state that the Commission should provide a 60-day deadline after
the filings are complete by which time a failure of the Commission to
rule results in the objection being denied by operation of law.\866\
---------------------------------------------------------------------------

    \864\ DTE Electric Comments at 9-10; Golden Valley Electric
Comments at 1-2, 3-7; Industrial Energy Consumers Comments at 14;
Northern Laramie Range Alliance Comments at 3; NorthWestern Comments
at 17-18; ELCON Comments at 19-20, 37-38.
    \865\ Golden Valley Electric Comments at 2.
    \866\ NIPPC, CREA, REC, and OSEIA Comments at 74.
---------------------------------------------------------------------------

    544. NorthWestern requests the QFs be subject to various discovery
requests when they self-certify or self-recertify.\867\ Two commenters
argue that any challenging party should be required to include an
affidavit from a company official.\868\
---------------------------------------------------------------------------

    \867\ NorthWestern Comments at 17-18.
    \868\ Industrial Energy Consumers Comments at 14; ELCON Comments
at 20, 38.
---------------------------------------------------------------------------

    545. NorthWestern and Northern Laramie Range Alliance request that
QF developers seeking certification with the Commission should be
required to publish notice in local newspapers in the states in which
the development would be located, in order to alert affected parties so
they could intervene in the certification process.\869\ El Paso
Electric is concerned by the proposal to limit the ability to challenge
QF status once it has been certified in a Commission certification
proceeding or in response to a challenge unless the new challenger can
demonstrate a change in the facility circumstances that threaten the
validity of the previous finding. El Paso Electric states that
sometimes QFs fail to provide utilities with their QF application and
so the utility does not know to protest.\870\
---------------------------------------------------------------------------

    \869\ NorthWestern Comments at 3; Northern Laramie Range
Alliance Comments at 3.
    \870\ El Paso Electric Comments at 5.
---------------------------------------------------------------------------

    546. Ares notes that small power production QFs could be aggregated
under the more-than-one-but-less-than-10-miles rebuttable presumption
and not even be aware of the other small power production QFs because
of a lack of information.\871\
---------------------------------------------------------------------------

    \871\ Ares Comments at 6.
---------------------------------------------------------------------------

3. Commission Determination
    547. We adopt the NOPR proposal to revise 18 CFR 292.207(a) to
allow an interested person or entity to seek to intervene and to file a
protest of a self-certification or self-recertification of a QF, and
not have to file a petition for declaratory order and pay the filing
fee for petitions.\872\ We also adopt the other changes to the QF
certification process proposed in the NOPR, with the additions detailed
below. We find that any increased administrative burden or litigation
risk imposed by the new rule is justified by the need to ensure that
QFs meet the statutory criteria for QF status.
---------------------------------------------------------------------------

    \872\ We amend the proposed regulation in the NOPR to move the
sections referring to protests and interventions from 18 CFR 292.204
to 18 CFR 292.207.
---------------------------------------------------------------------------

    548. The ability to intervene and to file a protest of a self-
certification or self-recertification of a QF without having to file a
petition for declaratory order and pay the filing fee for petitions is
effective as of the effective date of the final rule. However, we will
grant legacy treatment to existing QFs under certain circumstances, as
we explain below. With the exceptions noted below, protests pursuant to
this final rule will not be allowed to QF certifications and
recertifications (including self-certifications and self-
recertifications) that are submitted before the effective date of the
final rule, although entities may still challenge by filing a petition
for declaratory order and submitting the required fee. Conversely,
protests can be made to QF certifications (both self-certification and
application for Commission certification) or recertifications (both
self-recertification and application for Commission recertification)
that are submitted on or after the effective date of this final rule.
We note here that it is the date of filing for certification or
recertification, and not the date of construction, that determines
whether our new protest rule applies to the certification or
recertification.
    549. Many commenters have argued for expansive legacy treatment for
recertification of existing projects. They have noted that QFs need to
recertify when property is transferred, PPAs expire, or even for non-
substantive changes, such as changes in contact information or street
address.\873\ Commenters argue that, if the new protest rules apply to
recertifications, existing QFs could lose their QF status, even if
their configuration or other relevant factors do not materially change,
when they file their recertifications, upsetting the settled
expectations under which the QFs built their facilities.
---------------------------------------------------------------------------

    \873\ NIPPC, CREA, REC, and OSEIA Comments at 75; Terna Energy
Comments at 1-2, 7.
---------------------------------------------------------------------------

    550. We agree that QF recertifications to implement or address non-
substantive changes should not be subject to our new protest rule; the
settled expectations of the QFs should be respected in such instances.
Accordingly, we find that protests may be filed to an initial
certification (both self-certification and application for Commission
certification) filed on or after the effective date of this final rule,
but only to a recertification (both self-recertification and
application for Commission recertification) that makes substantive
changes to the existing certification and that are filed on or after
the effective date of this final rule. Substantive changes that may be
subject to a protest may include, for example, a change in electrical
generating equipment that increases power production capacity by the
greater of 1 MW or 5 percent of the previously certified capacity of
the QF, or a change in ownership in which an owner increases its equity
interest by at least 10% from the equity interest previously reported.
We find that recertifications (both self-recertifications and
applications for Commission recertifications) making ``administrative
only'' changes should not be subject to

a protest pursuant to this final rule.\874\ We believe that excepting
from protests QF recertifications making non-substantive changes will
allow QFs to make such changes and recertify without potentially losing
their QF status.
---------------------------------------------------------------------------

    \874\ As noted elsewhere in this final rule, our allowing
protests does not eliminate the ability to file a petition for
declaratory order seeking revocation of qualifying status.
---------------------------------------------------------------------------

    551. Solar Energy Industries asserts that the certification process
will no longer be quick, and estimates that it would require an
additional approximately 90 to 120 hours per year to comply with these
new requirements. Solar Energy Industries is concerned that QFs may
need to defend numerous self-certifications over a facility's lifetime,
and asserts that QFs could be forced to recertify any time the
information represented in the Form No. 556 changes.\875\
---------------------------------------------------------------------------

    \875\ Solar Energy Industries at 57.
---------------------------------------------------------------------------

    552. We do not agree with Solar Energy Industries' estimates.
First, we note that 18 CFR 292.207(d) (which we are not altering in
this rule except to renumber as 18 CFR 292.207(f)) already states that
if a QF fails to conform with any material facts or representations
presented in the certification, the QF status of the facility may no
longer be relied upon,\876\ and hence it is long-standing practice that
a QF must recertify when material facts or representations in the Form
No. 556 change.
---------------------------------------------------------------------------

    \876\ 18 CFR 292.207(d), which this final rule will renumber to
18 CFR 292.207(f).
---------------------------------------------------------------------------

    553. Second, certifications and recertifications are already
subject to protests, albeit in the form of petitions for declaratory
order, and therefore dealing with objections to a certification or
recertification is not new. Although the new procedures may result in
more protests being filed than the number of petitions that have been
filed, we believe that the conditions we impose in this final rule will
limit the number of protests filed. The Commission anticipates that
most, though not all, of the protests filed pursuant to the new 18 CFR
292.207(a) will relate to the new more-than-one-but-less-than-10-miles
rebuttable presumption.\877\ Such protests will necessarily be limited
because not all certifications and recertifications will be subject to
the new more-than-one-but-less-than-10-miles rebuttable presumption.
Only small power production facilities seeking QF status that have an
affiliated small power production QF more than one but less than 10
miles away and that uses the same energy resource are subject to the
rebuttable presumption. Small power production facilities that do not
have multiple small power production facilities or affiliates will not
be affected by the new rebuttable presumption. Nor will cogeneration
QFs be affected by the new rebuttable presumption.\878\ Additionally,
in general as described above, protests may only be made to an initial
certification (both self-certification and application for Commission
certification) filed on or after the effective date of this final rule,
and only to a recertification (self-recertification or application for
Commission recertification) that makes substantive changes to the
existing certification that are filed after the effective date of this
final rule.
---------------------------------------------------------------------------

    \877\ While we anticipate that most protests will involve
interested persons or entities attempting to rebut the presumption
of separate sites for affiliated small power production qualifying
facilities that are more than one and less than 10 miles apart, we
note that protesters may also protest any fact or representation in
the Form No. 556, or other aspect of a QF's filing they believe is
inconsistent with PURPA or our PURPA Regulations.
    \878\ The 80 MW limit and same site determination only apply to
small power production facilities, not cogeneration facilities. See
16 U.S.C. 796(17)(A).
---------------------------------------------------------------------------

    554. Third, we are also instituting time limits on protests that
may be filed under this final rule. We adopt the NOPR proposal that
interested parties will have 30 days from the date of the filing of the
Form No. 556 at the Commission to file a protest (without paying a
fee).\879\ Additionally, a protestor must concurrently serve its
protest on the Form No. 556 applicant pursuant to 18 CFR 385.2010.
---------------------------------------------------------------------------

    \879\ We note that section 292.207(c) of the PURPA Regulations
requires the applicant to concurrently with its filing serve a copy
of the filing on each applicable electric utility as well as the
applicable State regulatory authority. We expect an applicant
seeking QF status (or recertifying its status) to timely comply with
that regulation. Therefore, a utility should also receive the filing
at the same time that the filing is made at the Commission.
---------------------------------------------------------------------------

    555. Fourth, regarding Solar Energy Industries' concern that a QF
may have to engage in multiple defenses of its status, in addition to
the above limits on protests, once the Commission has affirmatively
certified an applicant's QF status in response to a protest opposing a
self-certification or self-recertification, or in response to an
application for Commission certification or Commission recertification,
any later protest to a recertification (self-recertification or
application for Commission recertification) making substantive changes
to a QF's existing certification, e.g., asserting that the entity
seeking QF status is at the same site as affiliated small power
production QFs more than one but less than 10 miles from it, must
demonstrate changed circumstances from the facts on which the
Commission acted on the certification filing that call into question
the continued validity of the earlier certification.
    556. Finally, even if it indeed takes some small power production
facilities an additional 90 to 120 hours (and we think that unlikely),
that is not an unreasonable burden to impose to ensure that a
generating facility that seeks to be a QF is, in fact, entitled to QF
status and complying with PURPA.\880\
---------------------------------------------------------------------------

    \880\ The regulations adopted in this final rule explicitly make
self-certifications and self-recertifications effective upon filing
and allow them to remain effective even if challenged until such
time as the Commission finds that a facility does not qualify to be
a QF. Additionally, entities seeking QF status can file self-
certifications years in advance of facility operation, such that the
few months contemplated by the new process should not cause delay.
Finally, with regard to the time it may take to fill in the Form No.
556, we note that while an entity seeking QF status may choose to
preemptively defend against claims that it should be considered to
be at the same site as affiliated small power production qualifying
facilities located more than one but less than 10 miles from it,
this is optional, not required.
---------------------------------------------------------------------------

    557. Turning to the requirements for a protest, as proposed in the
NOPR, we will require any person or entity filing a protest to specify
facts that make a prima facie demonstration that the facility described
in the certification (both self-certification and application for
Commission certification) or recertification (both self-recertification
or application for Commission recertification) does not satisfy the
requirements for QF status. We will also require any protest to be
adequately supported with any supporting documents, contracts, or
affidavits, as appropriate. Just as public utilities are typically not
subject to discovery with regard to their rate filings under section
205 of the FPA prior to the Commission's instituting trial-type
evidentiary hearings,\881\ we similarly decline to make QFs subject to
discovery requests when they self-certify or self-recertify.
---------------------------------------------------------------------------

    \881\ 18 CFR 385.401(a).
---------------------------------------------------------------------------

    558. The Commission also orders here that an applicant's response
to a protest will be allowed under 18 CFR 385.213(a)(2). By this final
rule, we are consistent with that regulation, ``otherwise order[ing]''
that such answers may be filed. They will be due no later than 30 days
after the filing of the protest.
    559. Rooftop solar developers frequently finance the initial
development of rooftop solar photovoltaic (PV) systems of individual
homeowners, and then retain ownership of such PV systems for extended
periods of time until the ownership is

eventually transferred to the relevant homeowners. While these rooftop
solar PV systems are owned by the developer, each individual rooftop
solar PV system would be considered affiliated electrical generating
equipment of every other rooftop solar PV system owned by that
developer. When there are multiple co-owned rooftop solar PV systems
within a mile, and thus at the same site, they may exceed 1 MW and
therefore be required to file for certification or recertification
unless they receive a waiver.\882\ Moreover, whenever they add an
additional rooftop solar PV system to their portfolio, or alternatively
transfer the ownership of such a rooftop solar PV system to the
relevant homeowner, their facility could be viewed as no longer
conforming with the material facts in their prior certification or
recertification; thus they would need to recertify.
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    \882\ See Sunrun, Inc., 167 FERC ] 61,059 (2019).
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    560. Due to the unique nature of rooftop solar PV developers, the
Commission finds the recertification requirement for PV developers
could be unduly burdensome. Therefore, to lessen the burden on such
developers when recertifying, we will permit rooftop solar PV
developers an alternative option to file their recertification
applications. That is, rather than be required to file for
recertification each time the rooftop solar developer adds or removes a
rooftop facility, a rooftop solar PV developer may recertify on a
quarterly basis. The filing would be due within 45 days after the end
of the calendar quarter. However, if in any quarter a rooftop solar PV
developer either has no changes or only has changes of power production
capacity of 1 MW or less, then it would not be required to recertify
until it has accumulated changes greater than 1 MW total over the
quarters since its last filing.\883\ Additionally, we note that rooftop
solar PV developers, like all small power production facilities, will
not be subject to protests when they file recertifications that are
``administrative only'' in nature, but would be subject to such
protests when they make substantive changes to the existing
certification as detailed above in this section.
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    \883\ For example, if a rooftop solar QF increases its power
production capacity by 0.9 MW in a quarter, it would not need to
file to recertify for that quarter. However, if in the next quarter
the rooftop solar QF increased its power production capacity by 0.9
MW, it would need to recertify for that quarter because cumulatively
over the quarters since its last filing it has changed its power
production capacity by more than 1 MW (i.e., under this example the
rooftop solar QF changed its power production capacity since its
last recertification filing by 1.8 MW).
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    561. We take this opportunity to clarify that, when the Commission
issues an order revoking QF certification, such order is subject to
rehearing and appeal pursuant to the FPA.\884\ The Commission's
authority to determine whether or not a facility is a qualifying small
power production facility stems from PURPA section 201, which amended
FPA section 3 to add paragraph (17).\885\ Similarly, FPA section 3(18)
grants the Commission authority to determine whether a cogeneration
facility meets the Commission's requirements.\886\ Because the
Commission's authority is grounded in the FPA, the Commission's order
revoking QF certification is subject to rehearing and appeal pursuant
to FPA section 313.\887\
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    \884\ Similarly, when the Commission issues an order
affirmatively certifying an applicant's QF status (in response to a
protest opposing a self-certification or self-recertification, or in
response to an application for Commission certification or
recertification), any party to that proceeding aggrieved by the
order, including the protestant, may seek rehearing and appeal
pursuant to the FPA.
    \885\ 16 U.S.C. 796(17). Section 3(17) of the FPA mandates a
size requirement for a small power production facility: It must have
``a power production capacity which, together with any other
facilities located at the same site (as determined by the
Commission), is not greater than 80 megawatts.''
    \886\ 16 U.S.C. 796(18).
    \887\ 16 U.S.C. 825l. The Commission has previously entertained
rehearing of an order revoking QF status, Golden Valley Elec. Ass'n,
Inc., 167 FERC ] 61,208 (2019), reh'g denied, 170 FERC ] 61,025
(2020), and of an order denying petitions to revoke QF status, N.
Laramie Range All., 138 FERC ] 61,171, reh'g denied, 139 FERC ]
61,190 (2012), appeal dismissed, 733 F.3d 1030. There have also been
appeals of orders denying petitions to revoke QF status. N. Laramie
Range All. v. FERC, 733 F.3d 1030 (10th Cir. 2013) (dismissing
appeal on other grounds); Brazos Elec. Power Coop. Inc., v. FERC,
205 F.3d 235 (5th Cir. 2000) (denying petition for review). Unlike
PURPA section 210, PURPA section 201 amends the FPA and is therefore
subject to FPA section 313. See Portland Gen. Elec. Co. v. FERC, 854
F.3d 692, 700 (2017); Midland Power Coop. v. FERC, 774 F.3d 1, 3
(2014).
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    562. El Paso Electric states that sometimes the utility does not
know to protest, because sometimes QFs fail to provide utilities with
their QF application, and El Paso Electric is therefore concerned by
the Commission's proposal to limit protests by requiring that once the
Commission has affirmatively certified an applicant's QF status, any
later protest must demonstrate changed circumstances. We note that a QF
that is filing a FERC Form No. 556 is currently required by 18 CFR
292.207(c) (which we are not altering in this rule except to renumber
as 18 CFR 292.207(e)) to serve a copy on each electric utility with
which it expects to interconnect, transmit or sell electric energy to,
or purchase supplementary, standby, back-up or maintenance power from,
and the state regulatory authority of each state where the facility and
each affected utility is located. This final rule does not change that
requirement and we expect applicants to timely comply with that
regulation. Should an issue arise, though, the Commission can address
it on a case-by-case basis as the circumstances warrant. Additionally,
we note that, if a self-certification or self-recertification is not
protested within the 30 day-period permitted for protests, then, just
as it could prior to this final rule, a challenger still has the
ability to file a petition for declaratory order, with the filing fee,
without being required to show changed circumstances to do so.
    563. Regarding Basin's request to allow petitions seeking de-
certification of QFs that have previously filed self-certifications and
ultimately never proceed to development,\888\ as we note above we limit
the ability to file a protest (rather than a petition for declaratory
order, with the accompanying filing fee) to within 30 days of the date
of the filing of the self-certification or self-recertification. If an
interested party would like to contest a self-certification or self-
recertification later than 30 days after the date of its filing, then
the interested party may file a petition for declaratory order with the
accompanying filing fee, just as they could prior to the effective date
of this final rule.
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    \888\ Basin Comments at 11.
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    564. We decline to adopt the requests that QF developers seeking
certification with the Commission be required to publish notice in
local newspapers in the states in which the development would be
located. We find that the service requirement already in our
regulations cited above should serve to provide adequate notice to
affected entities.
    565. We decline to impose a 60-day deadline after which a failure
of the Commission to rule on the protest results in the protest being
denied by operation of law. Self-certification will be effective upon
filing and we adopt the NOPR proposal that the self-certifications will
remain effective after a protest has been filed, until such time as the
Commission issues an order revoking certification. We also clarify that
self-recertifications will likewise remain effective after a protest
has been filed, until such time as the Commission issues an order
revoking certification.
    566. We also will adopt the NOPR's proposed timeline for issuance
of an order following protests to a QF self-certification and self-
recertification. The

Commission will issue an order within 90 days of the filing of a
protest. However, if the Commission requests more information, the time
period for the Commission order would be extended to 60 days from the
filing of a complete answer to the information request. In addition to
any extension resulting from a request for information, the Commission
also may toll the 90-day period during which the Commission commits to
act for one additional 60-day period. We clarify, however, that, absent
Commission action by the date of the expiration of the tolling period,
a protest will be deemed denied, and the self-certification or self-
recertification will remain effective. We find that this timeline
provides both QFs and other interested persons with certainty about the
QFs' status within a reasonable amount of time.
    567. Regarding Ares' concern that small power production QFs could
be aggregated under the new rule without being aware of the other small
power production QFs with which they are aggregated, the Commission
notes that this concern would only apply to small power production
facilities owned by the same person or its affiliates; it is unlikely
that the owner(s) of one facility would not be aware of other,
affiliated QFs. Furthermore, the presumption continues to be that a
small power production facility seeking QF status that is located more
than one but less than 10 miles from any affiliated small power
production QFs is at a separate site from those affiliated small power
production QFs, and the Commission here is simply making this
presumption rebuttable. If an entity challenges that presumption, the
applicant seeking QF status would necessarily be served with the
protest \889\ and thus informed of the challenge, and given the
opportunity to defend against the challenge.
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    \889\ 18 CFR 385.211(b).
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    568. Regarding Solar Energy Industries contention regarding the
currently pending Connected Entity proceeding, that is a separate
proceeding and beyond the scope of this proceeding. Moreover, the data
collection at issue in that proceeding does not eliminate the need for
the Commission to collect the data required by the FERC Form No. 556 so
that the Commission has the information it needs to determine whether a
facility qualifies to be a QF consistent with the standards laid out in
the statute. In any event, we note that the Connected Entity rulemaking
was about market-based rate sellers, not QFs, and it is likely that the
Connected Entity rulemaking would not apply to many QFs in the first
place since they often nether seek nor have the authority to sell at
market-based rates.
    569. Regarding Allco's concerns about the RFA, we discuss the RFA
issue in section VII.

F. Corresponding Changes to the FERC Form No. 556

1. NOPR Proposal
    570. The Commission proposed changes to the FERC Form No. 556,
corresponding to the new rules discussed above regarding whether QFs
are at separate sites. Currently, item 8a of FERC Form No. 556 requires
that the applicant identify any facilities with electrical generating
equipment within one mile of the instant facility's electrical
generating equipment, as shown below:

[GRAPHIC] [TIFF OMITTED] TR02SE20.000

    571. The Commission proposed adding a new item 8b,\890\ which would
be similar to the current item 8a, except that it would cover
affiliated facilities whose nearest electrical generating equipment is
greater than 1 mile and less than 10 miles from the electrical
generating equipment of the instant facility.
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    \890\ Subsequent items in that section of the FERC Form No. 556
would be retained but re-numbered and moved down accordingly.
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    572. The Commission proposed that the instructions for the new item
8b would also allow applicants with facilities identified under item 8b
(i.e., facilities more than one mile apart and less than 10 miles
apart) to, if they choose, explain (in the Miscellaneous section
starting on page 19 of the form) why the facilities identified under
item 8b should be considered separate facilities,\891\ considering the
relevant physical and ownership factors. The Commission further
proposed to provide reference, in the instructions to the new item 8b,
to the paragraphs of this final rule which discuss the relevant
physical and ownership factors that may be asserted to defend against
rebuttal.
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    \891\ As discussed in detail in section IV.D.1.d, this final
rule will change the references to ``separate facilities'' or ``the
same facility'' to ``at separate sites'' or ``at the same site.''
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    573. The Commission sought comment on whether item 8a (existing)
should be revised and item 8b (as proposed) written to require that the
applicant specify the distance from the instant facility to each
affiliated facility listed. We also sought comment on whether items 8a
and (new) 8b should require the applicant to document (in the
Miscellaneous section on page 19 of the FERC Form No. 556) how the
distances reported were calculated. Specifically, we sought comment on
whether the applicant should be required to identify the particular
electrical generating equipment and associated geographic coordinates
used

in calculating the distance(s) between the facilities.
    574. The Commission noted that item 8a currently requires
applicants to list all affiliated ``facilities.'' Under this
requirement, an applicant would have to list all affiliated QFs as well
as affiliated non-QFs. We requested comment on whether such a
requirement is more burdensome than necessary. It was not clear that
requiring the listing of affiliated non-QFs is necessary in monitoring
for compliance with the relevant QF regulations, which are concerned