Industries Exempt Wholesale Generators (EWG)
The following provides a summary of the content of sections 32(a) and 32(b) - (d) of PUHCA 1935 that are cited in 18 CFR § 366.1 as applicable to the definition of an EWG:
Section 32(a)(2) of PUHCA 1935 defines an eligible facility as a facility “used for the generation of electric energy exclusively for sale at wholesale” or that is “used for the generation of electric energy and leased to one or more public utility companies.” Section 32(a)(2) of PUHCA 1935 also specifies that an eligible facility can consist of a portion of a generation facility and can include necessary appurtenant interconnection facilities.
Section 32(b) of PUHCA 1935 provides that retail sales of electric energy produced by a facility located in a foreign country do not prevent the facility from being an eligible facility, or prevent a person owning and/or operating the facility, from being an EWG if none of the electric energy generated by the facility is sold to consumers in the United States.
Section 32(c) of PUHCA 1935 provides that any facility that was in a retail rate base on October 24, 1992 cannot be considered to be an eligible facility unless every state commission with jurisdiction over the retail rates in question makes a determination that allowing the facility to be an eligible facility will benefit consumers, be in the public interest, and not violate state law.
Section 32(d) of PUHCA 1935 provides that no EWG may own or operate a portion of any facility if any other portion of that facility is owned or operated by an electric utility company that is an affiliate or associate company of such EWG. However, the Commission has determined that this prohibition does not apply if the affiliate or associate company electric utility company is itself an EWG. See Buffalo Gap Wind Farm 2, LLC, 118 FERC ¶ 61,069 (2007). If the affiliate or associate company is not an EWG, a co-ownership arrangement will nevertheless be permissible if certain conditions are met. Specifically, every state commission that has jurisdiction over the retail rates that the affiliate or associate company charges for electric energy from the facility must determine that allowing the facility to be an eligible facility will benefit consumers, be in the public interest, and not violate state law.