Industries Exempt Wholesale Generators (EWG)
When facts related to an EWG or its eligible facility change, there may be questions concerning the EWG’s continued qualification for EWG status. Section 366.7(c) of the Commission’s regulations, 18 C.F.R. § 366.7(c) , provides for this possibility by creating a requirement that an EWG file a notification of material change in facts that may affect its status as an EWG. Specifically, an EWG must file a notice of any material change in facts that may affect its EWG status within 30 days of that change. The company is required to:
- submit either a new notice of self-certification or a petition for a Commission certification order,
- explain why the material change in facts does not affect its status as an EWG, or
- notify the Commission that it no longer seeks to maintain EWG.
The Commission’s regulations do not further define what constitutes a material change in facts. However, given that EWG certification depends on making certain representations discussed on this webpage in connection with the EWG certification procedures, the analysis of what constitutes a material change should focus on those representations. The question thus becomes: does the change call into question the company’s ability to make one or more of the representations?
In practice, material changes in fact are commonly changes involving incidental activities that may call into question whether the company is “exclusively” engaged in wholesale generation and sales operations. To the extent that the activity falls within Commission precedent on allowable incidental activities, the change normally would not be viewed as affecting the company’s EWG status. In any event, to the extent there is uncertainty about whether a change would be considered material, Commission staff is available to provide guidance.