Industries Exempt Wholesale Generators (EWG)
The Commission’s regulations provide for two procedures for certifying that a company is an EWG. The first, and by far the most common, is the filing of a notice of self-certification. The self-certification process is described at 18 C.F.R. § 366.7(a) .
The core of a notice of self-certification is a set of representations that demonstrate that the filer meets the definition of an EWG. It is important that each necessary representation be made fully and precisely. To assist filers, a model self-certification filing and a document providing commentary on the essential representations contained in a self-certification are posted on this webpage. To the extent that a potential filer is not able to make a specific required representation but believes that it nevertheless can qualify for EWG status, it should consult with Commission staff about possible alternative representations.
Aside from making the basic representations necessary to demonstrate EWG status, the most common issue raised in EWG filings is that of incidental activities. Incidental activities are activities that go beyond engaging directly, or indirectly through one or more affiliates, and exclusively in the business of owning or operating, or both owning and operating, all or part of one or more eligible facilities and selling electric energy at wholesale. The Commission has developed precedent on incidental activities that are considered to be consistent with the requirements of EWG status and are therefore allowable. These activities are dealt with in greater detail elsewhere on this webpage.
The fundamental question to be addressed when considering an incidental activity connection is whether the activity is a necessary or appropriate part of wholesale generation operations or whether it represents a new line of business that is distinct from wholesale generation operations. If the activity can be reasonably viewed as a new line of business, it cannot qualify as an allowable incidental activity. Commission precedent on incidental activities elaborates on this point in specific contexts.
It is not necessary to seek approval of EWG status through a Commission declaratory order where an incidental activity not mentioned in existing precedent is at issue. Those activities can be described in a self-certification filing. Companies are encouraged to discuss any novel proposed incidental activities with Commission staff. Once a filing is made, Commission staff may also seek further information about the nature of the activities in question.
Although the Commission’s regulations specify that a notice of self-certification should include a form of notice of the filing suitable for publication in the Federal Register, 18 C.F.R. § 366.7(a) , it is no longer necessary to submit this form of notice. See https://www.ferc.gov/docs-filing/not-form.asp.
Finally, a company filing a notice of self-certification must represent that it has filed a copy of the notice of self-certification with the state regulatory authority of the state where the eligible facility is located.
The Commission’s regulations contemplate notices of self-recertification only in the case of a material change in facts, and the Commission has dismissed notices of self-recertification in situations that do not involve material changes in fact. More information on notices of self-recertification is provided on this webpage under the heading “Other EWG Filings.”
Companies may also file a petition for a formal Commission determination of EWG status. Such filings must be accompanied by a filing fee. The fee is set forth at 18 C.F.R. § 381.302(a) , as updated from time-to-time.