Broadview Solar, LLC, 172 FERC 61,194 (2020) (September 2020 Order)

Document Accession #: 20210319-3069 Filed Date: 03/19/2021
174 FERC ¶ 61,199

UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Before Commissioners: Richard Glick, Chairman;

Neil Chatterjee, James P. Danly,
Allison Clements, and Mark C. Christie.
Broadview Solar, LLC Docket No. QF17-454-006
ORDER ADDRESSING ARGUMENTS RAISED ON REHEARING AND

SETTING ASIDE PRIOR ORDER
(Issued March 19, 2021)
On September 1, 2020, the Commission issued an order1 denying Broadview Solar,

LLC’s (Broadview) application seeking Commission certification that Broadview’s
proposed hybrid solar photovoltaic (PV) facility is a qualifying small power production
facility (QF) pursuant to the Public Utility Regulatory Policies Act of 1978 (PURPA)2 and
section 292.207(b) of the Commission’s regulations.3 In the same order, the Commission
also revoked Broadview’s self-certification of QF status filed on January 29, 2020, while
the application for Commission certification was still pending.
On September 14, 2020, Broadview filed a request for rehearing of the September 2020
4
Order. On October 1, 2020, the Commission received requests for rehearing or clarification
from NewSun Energy, LLC; Pine Gate Renewables, LLC; the Solar Energy Industries
Association; Southern Current, LLC; and TerraForm Power, LLC.5
1
Broadview Solar, LLC, 172 FERC ¶ 61,194 (2020) (September 2020 Order).
2
16 U.S.C. §§ 796(17), 824i, 824a-3.
3
18 C.F.R. § 292.207(b) (2020).
4
Broadview Solar, LLC September 14, 2020 Request for Rehearing (Broadview
Rehearing Request).
5
NewSun Energy, LLC October 1, 2020 Motion for Late Intervention and Petition
for Rehearing; Pine Gate Renewables LLC, October 1, 2020 Motion to Intervene Out-of-
Time, Request for Rehearing, or in the Alternative, Clarification; Solar Energy Industries
Association September 28, 2020 Motion to Intervene Out-of-Time; Solar Energy Industries
Docket No. QF17-454-006 -2-
Pursuant to Allegheny Defense Project v. FERC,6 the rehearing requests filed in

this proceeding may be deemed denied by operation of law. However, as permitted by
section 313(a) of the Federal Power Act,7 we are modifying the discussion in the
September 2020 Order and setting aside the result in this proceeding, as discussed below.8
I. Background
To be certified as a QF, a small power production facility must comply with the fuel
use and size criteria specified in the Commission’s regulations and must either file for self-
certification of QF status or apply for and obtain Commission certification of QF status.9
Both filings incorporate Form No. 556. The primary energy source of the facility must be
biomass, waste, renewable resources, geothermal resources or any combination thereof.10
The power production capacity of the facility cannot exceed 80 megawatts (MW).11
Association October 1, 2020 Request for Rehearing and Clarification; Southern Current,
LLC October 1, 2020 Motion to Intervene Out-of-Time; Southern Current, LLC October 1,
2020 Request for Rehearing and Clarification; Terraform Power, LLC October 1, 2020
Motion to Intervene Out-of-Time and Request for Clarification, or in the Alternative,
Limited Rehearing.
6
964 F.3d 1 (D.C. Cir. 2020) (en banc).
7
16 U.S.C. § 825l(a) (“Until the record in a proceeding shall have been filed in a
court of appeals, as provided in subsection (b), the Commission may at any time, upon
reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole
or in part, any finding or order made or issued by it under the provisions of this chapter.”).
8
Allegheny Def. Project, 964 F.3d at 16-17.
9
18 C.F.R. § 292.203(a) (2020) (citing 18 C.F.R. §§ 292.204(a) (size limit),
292.204(b) (fuel use), 292.207(a) (self-certification), and 292.207(b) (application for
Commission certification)).
10
Id. § 292.204(b).
11
Id. § 292.204(a)(1).
Docket No. QF17-454-006 -3-
Broadview is developing a combined solar PV and battery storage facility in

Yellowstone County, Montana, that will interconnect to NorthWestern Corporation’s
(NorthWestern) transmission system.12 The facility will include a coupled array of solar
PV panels with a gross capacity of 160 MW of direct current (DC) electricity and a battery
energy storage system with the capacity to discharge 50 MW of DC electricity for up to 4
hours (i.e., a total of 200 MW-hours (MWh)).13 Broadview explained that the solar PV
panels and battery energy storage system will connect to 20 inverters, each capable of
converting DC electricity into a maximum output of 4.127 MW alternating current (AC)
electricity.14 Together, the inverters will have a maximum output of 82.548 MW of AC
electricity. After deducting facility loads and losses totaling 2.548 MW, the facility’s
maximum net output to NorthWestern’s grid will be 80 MW of AC electricity.15 When the
solar array produces more DC electricity than the inverters can convert to AC electricity,
the excess DC electricity will be stored in the battery energy storage system and will not be
delivered to the point of interconnection with NorthWestern’s grid until a later time.16
Over the course of three years, Broadview filed three notices of self-certification for
its facility and one application for Commission certification. In December 2016,
Broadview filed a Form No. 556 to self-certify its proposed facility as a small power
production QF with a maximum gross power production capacity of 104.25 MW and a
maximum net power production capacity of 80 MW.17 In March 2019, Broadview revised
its Form No. 556 to reflect a maximum gross power production capacity of 160 MW, while
12
Broadview Solar, LLC September 11, 2019 Application at 1 (Broadview 2019
Application).
13
Id. at 2.
14
Broadview states that without the DC-to-AC inverters, the power is not in a form
that can be transmitted onto the grid. Broadview claims that these inverters are the
“gateway” between the DC power provided by the solar array and battery storage system
and the AC grid because the amount that the 20 inverters can deliver limits the maximum
gross power capacity of the facility (i.e., power that can be delivered to the AC grid).
September 2020 Order, 172 FERC ¶ 61,194 at PP 2-3 (citing Broadview 2019 Application,
Attachment B at 2-4 (Pasley Aff.)).
15
Broadview 2019 Application at 7-8.
16
September 2020 Order, 172 FERC ¶ 61,194 at P 6 (citing Broadview 2019
Application at 7).
17
Broadview Solar LLC December 19, 2016, Form No. 556 at 9 (filed in Docket
No. QF17-454-000) (Broadview 2016 Form No. 556).
Docket No. QF17-454-006 -4-
maintaining the net power production capacity of 80 MW.18 On September 11, 2019,
Broadview applied for Commission certification that Broadview’s proposed facility is a
small power production QF. Broadview’s accompanying Form No. 556 revised the
facility’s maximum gross power production capacity down to 82.548 MW to reflect the
facility’s design capabilities, including limiting elements, while maintaining the previously
documented maximum net power production capacity of 80 MW.19 On January 29, 2020,
Broadview filed a revised Form No. 556 to reflect the same revised maximum gross power
production capacity of 82.548 MW.20 Across all of Broadview’s filings, it consistently
reported a net power production capacity of 80 MW to be delivered to NorthWestern’s
system.
Under PURPA and the Commission’s regulations, the “power production capacity”
of a small power production QF may not exceed 80 MW.21 In the September 2020 Order,
based on the record in this proceeding, the Commission reconsidered its previous,
longstanding interpretation that a facility’s “power production capacity” is determined by
the facility’s “maximum net output” or “send out.”22 The Commission described its
precedent under the “send out” analysis as allowing “design capabilities that may
incidentally or occasionally cross PURPA’s 80 MW threshold due to certain components
or variances, such as fuel or ambient temperature.”23 The Commission observed that there
was a “significant difference” between facilities that may incidentally or occasionally
exceed 80 MW and a facility “purposefully designed with a 160-MW solar array.”24 Upon
reconsidering the “send out” analysis and the potential that it creates for the approval of
“projects that do not comply with the plain language of PURPA,” the Commission
concluded that it has improperly focused on “output” and “send out” instead of on “power
18
Broadview Solar LLC March 13, 2019, Form No. 556 at 9 (filed in Docket
19
Broadview 2019 Application at 9.
20
Broadview Solar LLC January 29, 2020 Form No. 556 (filed in Docket
21
16 U.S.C. § 796(17)(A)(ii); 18 C.F.R. § 292.204(a)(1) (2020).
22
September 2020 Order, 172 FERC ¶ 61,194 at PP 18-23 (citing Occidental
Geothermal, Inc., 17 FERC ¶ 61,231 (1981) (Occidental); Malacha Power Project, Inc.,
41 FERC ¶ 61,350 (1987) (Malacha); Am. Ref-Fuel Co. of Bergen Cty., 54 FERC ¶ 61,287
(1991)).
23
September 2020 Order, 172 FERC ¶ 61,194 at P 21.
24
Id.
Docket No. QF17-454-006 -5-
production capacity,” which is the standard established both in the statute and in the
Commission’s regulations.25 The Commission stated that in the factual context of
Broadview’s proposed facility, these concepts are not the same.26 This led the Commission
to conclude that the “send out” analysis first applied in Occidental is inconsistent with the
80-MW “power production capacity” limit for small power production QFs, based on the
Commission’s reading of the statute and the Commission’s regulations.27
In support of this conclusion, the Commission noted that the reporting formula in
Form No. 556 starts with the facility’s “maximum gross power production capacity at the
terminals of the individual generator(s) under the most favorable anticipated design
conditions.”28 The reporting formula then subtracts an exclusive list of parasitic loads and
losses to yield “the facility’s maximum net power production capacity” which the
Commission described as “the facility’s ultimate certified capacity.”29
The Commission found that because the inverters at Broadview’s facility impose a
conversion limit or output limit rather than a limit on the solar PV array’s power
production capacity of 160 MW, Broadview could not meet the 80-MW statutory limit
for “power production capacity.”30 The Commission explained that it did not view Form
No. 556 as including adjustments for inverters or other output-limiting devices in the
reported “maximum gross power production capacity.31
II. Discussion
A. Procedural Matters
Within the 30-day period to file a request for rehearing, the Commission received
five late motions to intervene and requests for rehearing or clarification from NewSun
Energy, LLC; Pine Gate Renewables, LLC; the Solar Energy Industries Association;
25
Id. P 23 (citing 16 U.S.C. § 796(17)(A)(ii); 18 C.F.R. § 292.204(a)(1)).
26
Id.
27
Id.
28
Id. PP 24-25.
29
Id. P 24.
30
Id. P 25.
31
Id.
Docket No. QF17-454-006 -6-
Southern Current, LLC; and TerraForm Power, LLC.32 On October 13, 2020,
NorthWestern filed an answer to the late motions to intervene.
In ruling on late motions to intervene, we apply the criteria set forth in Rule 214(d)
of the Commission’s Rules of Practice and Procedure.33 We consider, among other factors,
whether the movants had good cause for failing to file the motion within the time
prescribed.34 The Commission considers whether the movants explain why they should not
be held to the Commission’s expectation that entities should intervene “in a timely manner
based on reasonably foreseeable issues arising from the applicant’s filing and the
Commission’s notice of the proceeding.”35
Here, the movants seek to intervene one year after the original deadline in the
underlying proceeding of October 2, 2019.36 They claim that there was no indication in
this proceeding that the Commission would overturn the line of precedent that began with
Occidental in 1981.37 NewSun Energy, the Solar Energy Industries Association, Southern
Current, and TerraForm Power emphasize that, while Broadview’s application was
pending, the Commission separately began and completed a rulemaking in Docket
No. RM19-15-000 to revise the Commission’s PURPA-implementing regulations,
32
See supra note 5.
33
18 C.F.R. § 385.214(d) (2020).
34
Id. § 385.214(b)(3), (d)(i). Other factors include the potential disruption caused
by such late intervention, whether the movants’ interest are not adequately represented by
other parties, and any prejudice to existing parties. Id. § 385.214(d)(ii)-(iv).
35
Tenn. Gas Pipeline Co., L.L.C., 162 FERC ¶ 61,167, at P 51 (2018) (citing Alcoa
Power Generating, Inc., 144 FERC ¶ 61,218, at P 13 (2013)); see also Idaho Power Co.,
171 FERC ¶ 61,238, at PP 16-17 (2020).
36
See Combined Notice of Filings, 84 Fed. Reg. 49,291, 49,292 (Sept. 19, 2019)
(publishing notice of Broadview’s application to recertify its proposed facility and
requiring that any person desiring to intervene or protest must file to do so by October 2,
2019).
37
See, e.g., NewSun Energy, LLC October 1, 2020 Motion for Late Intervention and
Petition for Rehearing at 2-3; Pine Gate Renewables, LLC October 1, 2020 Motion to
Intervene Out-of-Time, Request for Rehearing, or in the Alternative, Clarification at 1-4;
Solar Energy Indus. Ass’n September 28, 2020 Motion to Intervene Out-of-Time at 2-3;
Southern Current, LLC October 1, 2020 Motion to Intervene Out-of-Time at 2-3;
Terraform Power, LLC October 1, 2020 Motion to Intervene Out-of-Time and Request for
Clarification, or in the Alternative, Limited Rehearing at 4-5.
Docket No. QF17-454-006 -7-
including some aspects of the size limit for QFs,38 but that the Commission gave no
indication that it would revise how it calculates a facility’s “power production capacity.”39
All of the movants seeking late intervention state that they will accept the record as it
stands,40 that they represent interests not adequately represented by the other parties in the
proceeding, and that permitting their late intervention will not prejudice or burden the
existing parties.41
In its answer, NorthWestern contends that the late movants’ motions to intervene
should be denied as they adopted a wait-and-see approach in this proceeding and do not
meet the higher burden for demonstrating good cause for late intervention at the rehearing
stage.42 NorthWestern notes that Broadview’s application explicitly identified the “send
out” analysis first established in Occidental as the primary authority for Broadview’s
facility to obtain QF status. Given this framing, NorthWestern states that it was not
unforeseeable that the Commission might disagree with the applicability of the “send out”
line of cases to a solar PV-based facility. According to NorthWestern, the Commission
was not required to go beyond its public notice of Broadview’s application in the Federal
Register, to instead provide notice of the full range of possible outcomes to the case or to
38
See, e.g., Qualifying Facility Rates and Requirements, Order No. 872, 85 Fed.
Reg. 54,638, 54,702-03 (Sept. 2, 2020), 172 FERC ¶ 61,041, at PP 515-24 (2020),
(discussing the aggregation of affiliated small power production QFs based on proximity of
“electrical generating equipment”).
39
for Rehearing at 3; Solar Energy Indus. Ass’n September 28, 2020 Motion to Intervene
Out-of-Time at 2-3; Southern Current, LLC October 1, 2020 Motion to Intervene Out-of-
Time at 2-3; Terraform Power, LLC October 1, 2020 Motion to Intervene Out-of-Time and
Request for Clarification, or in the Alternative, Limited Rehearing at 4-5.
40
Having said that, however, they all also seek reconsideration of the Commission’s
earlier order, indicating that they, in fact, do not accept the record developed prior to their
motions for late intervention. See 18 C.F.R. § 385.214(d)(3)(ii) (2020).
41
for Rehearing at 3-4; Pine Gate Renewables LLC, October 1, 2020 Motion to Intervene
Out-of-Time, Request for Rehearing, or in the Alternative, Clarification at 4; Solar Energy
Indus. Ass’n September 28, 2020 Motion to Intervene Out-of-Time at 3; Southern Current,
LLC October 1, 2020 Motion to Intervene Out-of-Time at 3; Terraform Power, LLC
October 1, 2020 Motion to Intervene Out-of-Time and Request for Clarification, or in the
Alternative, Limited Rehearing at 5.
42
NorthWestern October 13, 2020 Answer at 6-9.
Docket No. QF17-454-006 -8-
provide these specific movants with actual notice.43 NorthWestern notes that the
Commission has discretion to make policy decisions through rulemakings, policy
statements, or case-by-case adjudication and that Occidental is an example of the
Commission making a policy decision in an adjudication.44 Responding to the late
movants’ claims that they represent interests not adequately represented by the other
parties in the proceeding, NorthWestern notes that all movants are either solar QF
developers or representatives of QF developers whose interests are already represented by
Broadview as a solar QF developer.45 NorthWestern points out that NewSun attempts to
add facts to the record.
Courts have recognized that “the Commission has steadfastly and consistently held
that a person who has actual or constructive notice that his interests might be adversely
affected by a proceeding, but who fails to intervene in a timely manner, lacks good cause
under Rule 214.”46 Entities interested in becoming a party to Commission proceedings
may not “sleep on their rights” and wait to see how issues might evolve before deciding
whether to intervene to protect their interests.47 As the Commission has explained,
“[w]hen late intervention is sought after the issuance of a dispositive order, the prejudice to
other parties and burden upon the Commission of granting the late intervention may be
substantial.”48 In such circumstances, movants bear a higher burden to demonstrate good
43
Id. at 7.
44
Id. at 7-8.
45
Id. at 8-9.
46
See, e.g., Cal. Trout v. FERC, 572 F.3d 1003, 1022 (9th Cir. 2009).
47
See, e.g., Bradwood Landing, LLC, 126 FERC ¶ 61,035, at PP 11, 16 (2009)
(denying late intervention to movant who claimed that scientific studies made it more
aware of its interests in the proceeding); Cent. Neb. Pub. Power & Irrigation Dist., 125
FERC ¶ 61,192, at P 12 (2008) (“The Commission expects parties to intervene in a timely
manner based on the reasonably foreseeable issues arising from the applicant’s filings and
the Commission’s notice of proceedings.”); Broadwater Energy, LLC, 124 FERC ¶ 61,225,
at P 13 (2008) (“Those entities with interests they intend to protect are not entitled to wait
until the outcome of a proceeding and then file a motion to intervene once they discover
the outcome conflicts with their interests.”).
48
Nat’l Fuel Gas Supply Corp., 139 FERC ¶ 61,037, at P 18 (2012) (National Fuel);
see also, e.g., Fla. Gas Transmission Co., 133 FERC ¶ 61,156, at P 6 (2010).
Docket No. QF17-454-006 -9-
cause for granting the late intervention,49 and generally it is Commission policy to deny
late intervention at the rehearing stage.50
The movants fail to demonstrate good cause for their delay. We are not persuaded
by the claim that the movants had inadequate notice that the outcome of this proceeding
could affect their interests. Broadview proposed a facility with a 160 MW solar PV array
(and also a 200 MWh battery energy storage facility) and noted its reliance on Occidental
in its application.51 Movants do not explain why they could not have sought to intervene
prior to the Commission’s September 2020 Order here, where the pleadings of the parties
filed between October 2019 and March 2020 addressed the parties’ dispute concerning the
Commission’s methodology for determining a facility’s “power production capacity” and
specifically discussed Occidental.52 We conclude that the movants have not satisfied the
higher burden to demonstrate good cause for their delay in seeking intervention until after
the issuance of a dispositive order.
When the Commission determines that good cause does not exist, it is not obligated
to consider Rule 214’s remaining factors.53 Accordingly, we deny NewSun Energy,
49
See, e.g., Big Rivers Elec. Corp. v. Midcontinent Indep. Sys. Operator, Inc.,
161 FERC ¶ 61,225, at P 12 (2017); Cal. Dep’t of Water Res. & the City of Los Angeles,
120 FERC ¶ 61,057, at P 8 n.3, reh’g rejected, 120 FERC ¶ 61,248 (2007), aff’d sub nom.,
Cal. Trout v. FERC, 572 F.3d 1003 (9th Cir. 2009) (Cal. Trout).
50
See PennEast Pipeline Co., 162 FERC ¶ 61,279 (2018) (denying two motions for
late intervention and rejecting requests for rehearing filed 20 and 27 days after the
Commission issued a certificate order for the PennEast Project); Tenn. Gas Pipeline Co.,
L.L.C., 162 FERC ¶ 61,013, at P 10 (2018) (denying late motions to intervene and rejecting
requests for rehearing filed two weeks and thirteen months after the Commission issued a
certificate order for the Connecticut Expansion Project); National Fuel, 139 FERC ¶
61,037 at PP 18-19 (denying a late motion to intervene and request for rehearing filed 30
days after the Commission issued a certificate order for the Northern Access Project).
51
See Broadview 2019 Application at 3-5, 8.
52
E.g., Broadview 2019 Application at 3-5, 8; NorthWestern October 2, 2019
Motion to Intervene and Protest at 6; EEI October 2, 2019 Motion to Intervene and Protest
at 2; Broadview October 17, 2020, Motion for Leave to Answer and Answer at 7-8;
NorthWestern November 1, 2019 Motion for Leave to Answer and Answer at 3;
Broadview November 5, 2019 Motion for Leave to Answer and Answer at 2.
53
See Power Co. of Am., L.P. v. FERC, 245 F.3d 839, 843 (D.C. Cir. 2001); see also
Cal. Trout, 572 F.3d at 1023.
Docket No. QF17-454-006 - 10 -
LLC’s; Pine Gate Renewables, LLC’s; the Solar Energy Industries Association’s; Southern
Current, LLC’s; and TerraForm Power, LLC’s late motions to intervene.
Under FPA section 313(a) and Rule 713(b) of the Commission’s Rules and Practice
and Procedure, only a party to a proceeding may request rehearing of a final Commission
decision.54 Because NewSun Energy, LLC; Pine Gate Renewables, LLC; the Solar Energy
Industries Association; Southern Current, LLC; and TerraForm Power, LLC are not parties
to this proceeding, we reject their requests for rehearing of the September 2020 Order.
However, we also note that, in setting aside the September 2020 Order and
determining that Broadview’s facility meets the requirements for certification as a small
power production QF, as discussed below, we have addressed the movants’ concerns
articulated in their late motions to intervene and requests for rehearing.
B. Substantive Matters
On rehearing, Broadview argues that the Commission failed to provide a principled

explanation for overturning the Commission’s longstanding “send out” analysis of “power
production capacity,” which Broadview describes as focusing on the amount of power that
the entire facility can provide at the point of interconnection to the grid.55 Broadview
states that the Commission erred by adopting a “component-by-component” approach to
determining “power production capacity,” which Broadview describes as focusing on the
capability of each individual component of a generating facility.56 Broadview claims that
this new “component-by-component” approach is inconsistent with PURPA.57 Broadview
claims that the Commission’s focus on “the DC capability of a single component of the
facility” is misguided and unsupportable given that the DC power is not a form of power
that can be transmitted on the grid.58 Broadview asserts that the Commission erred by
dismissing the inverters as “output-limiting devices,” even though the Commission
accounts for the fact that the lowest-capacity component of other types of generating
facilities imposes a “send out” limit on the entire facility’s output.59
54
16 U.S.C. § 825l(a); 18 C.F.R. § 385.713(b).
55
Broadview Rehearing Request at 1-3, 8, 12-14, 17-21.
56
Id.
57
Id.
58
Id. at 6.
59
Id. at 6, 7, 18 (noting examples of a biomass energy facility that pairs an off-the-
shelf boiler capable of producing steam to generate 100 MW and a turbine-generator rated
Docket No. QF17-454-006 - 11 -
Upon further consideration, we set aside the September 2020 Order. Broadview’s
application, and the protests from NorthWestern and Edison Electric Institute (EEI),
presented the first occasion for the Commission to interpret how PURPA’s 80 MW
limitation on a qualifying small power production facility’s “power production capacity”
applies to a facility such as Broadview’s. We find that, in denying Broadview’s
application, the Commission erred by departing from and overturning its longstanding
precedent. On rehearing, we conclude that Broadview’s proposed facility meets PURPA’s
requirements for a qualifying small power production facility, as discussed below.
1. PURPA and the Commission’s Send-Out Analysis
Under PURPA, a “qualifying small power production facility” means a facility:
[that] produces electric energy solely by the use, as a primary

energy source, of biomass, waste, renewable resources,
geothermal resources, or any combination thereof;60
[that] 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;61 and
that the Commission determines, by rule, meets such

requirements (including requirements respecting fuel use, fuel
efficiency, and reliability) as the Commission may, by rule,
prescribe.62
For a facility with “qualifying” status, Congress conferred additional rights, most
importantly mandatory purchase and sale obligations on electric utilities.
Specifically, Congress directed the Commission to prescribe “such rules as it

determines necessary to encourage … small power production” including to “require
electric utilities to offer to (1) sell electric energy to qualifying cogeneration facilities and
qualifying small power production facilities and (2) purchase electric energy from such
to 80 MW, or a wind energy facility that pairs blades sized to produce over 80 MW and a
turbine-generator rated to 80 MW).
60
16 U.S.C. § 796(17)(A)(i) (2018) (defining “small power production facility”).
61
Id. § 796(17)(A)(i)(ii).
62
Id. § 796(17)(C).
Docket No. QF17-454-006 - 12 -
facilities.”63 The rates for these sales or purchases must be just and reasonable and must
not discriminate against QFs.64 The rates for utility purchases from QFs cannot exceed
“the cost to the electric utility of the electric energy which, but for the purchase from such
cogenerator or small power producer, such utility would generate or purchase from another
source.”65
PURPA, however, neither defines the terms “facility” and “power production
capacity,” nor explains how the Commission is supposed to ascertain the “power
production capacity” of any particular “facility.” Nor do those terms have commonly
understood meanings that, taken together, speak directly to the specific question66 before
us: namely, how to measure the power production capacity of a facility whose generating
subcomponents (e.g., solar panels) have a nameplate capacity of greater than 80 MW, but
which is physically incapable of producing more than 80 MW for sale to the interconnected
electric utility at any one point in time.67 For example, the Commission could, as
Commissioner Danly advocates, look only to generating subcomponents when evaluating
power production capacity.68 Alternatively, the Commission could, as it has for nearly
63
16 U.S.C. § 824a-3(a).
64
16 U.S.C. § 824a-3(b), (c).
65
16 U.S.C. § 824a-3(b), (d).
66
See S.C. Pub. Serv. Auth. v. FERC, 762 F.3d 41, 54 (D.C. Cir. 2014) (“If the court
determines ‘Congress has directly spoken to the precise question at issue,’ and ‘the intent
of Congress is clear, that is the end of the matter.’”) (emphasis added) (quoting Chevron
U.S.A. Inc. v. Nat. Resources Def. Council, Inc., 467 U.S. 837, 842 (1984)).
67
We note that, because the statutory 80 MW limit is expressed in MW of capacity,
not MWh of energy, no more than 80 MW may permissibly be put to the utility at any one
time.
68
Commissioner Danly’s dissent suggests that the statute is unambiguous because
each of the words “power,” “production,” and “capacity” have a plain meaning and that
those terms compel us to adopt the nameplate capacity of Broadview’s solar array as its
power production capacity. Dissent at P 13. Elsewhere in his dissent, however, he
endorses the Commission’s send-out analysis, at least in certain circumstances not present
here. Dissent at P 31. But the send-out analysis, by its very terms, rejects reliance on
nameplate, or nominal, capacity. In other words, the send-out test contemplates that a
resource’s generating subcomponents can have a nameplate capacity greater than 80 MW.
Otherwise, there would be no need to look to the resource’s power production capacity net
of parasitic load, line losses, and other essential electricity uses. The tension in those
Docket No. QF17-454-006 - 13 -
forty years,69 look to the maximum output that the facility can produce for the electric
utility after accounting for all the constituent parts that make up the facility, which in this
case includes the inverters. This latter approach would view power sent to or consumed by
the various components of the facility as inputs to the calculation of the facility’s power
production capacity. In light of those multiple interpretations, we find that the statute is
ambiguous as to how the Commission is to measure a facility’s power production
capacity,70 and, as explained below, we find that the latter approach is the best reading of
the statute.
As an initial matter, we believe that the statute’s emphasis on the “power production
capacity” of the “facility” supports the latter approach, in which power production capacity
is measured based on what the facility can actually produce for sale to the interconnected
electric utility. After all, the term “facility” is best read to include all components of a
particular structure as whole, not any of its individual parts.71 Focusing only on the solar
panels in this instance would ignore the commonly understood meaning of the term facility
without any textual indication that Congress intended us to do so.
Although Commissioner Danly seeks to draw a bright line distinction between

“production” and “delivery,” these terms are overlapping, at least in this context. As
conflicting positions only underscores the extent to which the statute does not
unambiguously address the question before us.
69
As discussed below, the Commission first adopted this so-called “send-out”
approach in 1980.
70
See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (Robinson) (If any of
the statute’s terms are subject to more than one reasonable interpretation, the language is
ambiguous, and the Court looks beyond the statute’s terms to determine Congress’s intent
in enacting the law); Automated Power Exch., Inc. v. FERC, 204 F.3d 1144, 1151 (D.C.
Cir. 2000) (finding that the “phrase ‘facilities ... for [wholesale] sale’ of electricity admits
of more than one meaning” and, ultimately, that FERC’s reasonable interpretation of the
ambiguous language warranted deference).
71
See, e.g., facility, Merriam Webster Dictionary, https://www.merriam-
webster.com/dictionary/facility (last visited Mar. 1, 2021) (defining a facility, for these
purposes, as “something (such as a hospital) that is built, installed, or established to serve a
particular purpose”); facility, North American Electric Reliability Corporation, Glossary of
Terms Used in NERC Reliability Standards (Jan. 4, 2021),
https://www.nerc.com/pa/Stand/Glossary%20of%20Terms/
Glossary_of_Terms.pdf (defining facility as “a set of electrical equipment that operates as a
single Bulk Electric System Element (e.g., a line, a generator, a shunt compensator,
transformer, etc.)”).
Docket No. QF17-454-006 - 14 -
Commissioner Danly recognizes, the term “capacity” is generally equated to

“output.”72 As applied to just the facility’s solar panels in this instance, output could be
read to refer to the raw quantity of electricity generated. But when applied to the facility as
a whole, as PURPA requires, power sent from the solar panels to other internal
components, rather than to the grid, cannot properly be considered the output of the
facility.
That interpretation is further confirmed when we consider the terms “facility” and
“power production capacity” in light of “their context and with a view to their place in the
overall statutory scheme.”73 The purpose of PURPA’s 80 MW “power production
capacity” limitation is to reserve the benefits of QF status for only certain types of
facilities. When a facility meets the QF requirements, the benefits of that status—e.g., the
right to interconnect with the relevant electric utility and sell the facility’s output to that
utility at an avoided-cost rate74—accrue to the facility as a whole. Given that statutory
structure, and the importance of the rights at the point of interconnection, we find that the
best interpretation of the 80-MW limit on a facility’s power production capacity is as a
limit on the facility’s net output to the electric utility (i.e., at the point of interconnection),
taking into account all components necessary to produce electric energy in a form useful to
an interconnected entity. This interpretation aligns the 80-MW limitation with the
mandatory obligations and interconnection rights that are the foundation of Congress’s
efforts to “encourage” QF development under PURPA.75
72
Dissent at P 13 n.22.
73
Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“[S]tatutory
language cannot be construed in a vacuum. It is a fundamental canon of statutory
construction that the words of a statute must be read in their context and with a view to
their place in the overall statutory scheme.”). See Graham Cty. Soil & Water Conservation
Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 290 (2010) (quoting Gustafson v. Alloyd Co.,
513 U.S. 561, 568 (1995)) (“Courts have a duty to ‘construe statutes, not isolated
provisions.’”); Johnson v. United States, 559 U.S. 133, 139 (2010) (“Ultimately, context
determines meaning.”); Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 596 (2004) (It is
a “cardinal rule that statutory language must be read in context [since] a phrase gathers
meaning from the words around it.” (quotations omitted)); Robinson, 519 U.S. 337 at 341
(We look to “the language itself, the specific context in which that language is used, and
the broader context of the statute as a whole.”).
74
See, e.g., 18 C.F.R. § 292.303(a), (c).
75
See, e.g., 16 U.S.C. § 824a-3(a). Where Congress did not wish to limit a facility’s
net output to the electric utility, as in the case for “qualifying cogeneration facilities,”
Congress did not impose a power production capacity limit. E.g., 16 U.S.C. § 796(18)(A),
Docket No. QF17-454-006 - 15 -
The Commission’s early proceedings applying its PURPA regulations were

consistent with this interpretation that “power production capacity” is best understood as
the amount of power that a facility is capable of safely and reliably sending to the
interconnecting utility. In formulating the “send out” test in Occidental,76 the Commission
recognized that while the nominal rating of a facility’s generating equipment may exceed
80 MW, it is “the maximum net output of the facility which can be safely and reliably
achieved under the most favorable operating conditions likely to occur over a period of
several years” that determines the facility’s “power production capacity”.77 The
Commission further explained that “the nominal rating of even a key component of the
facility” is not necessarily determinative because, for example, “it is not uncommon for
smaller facilities to find it most economic to employ commercially available components
some of which have individual capabilities significantly exceeding the overall facility
capability.”78
The Commission stated that the net output of a facility is “its send out after
subtraction of the power used to operate auxiliary equipment in the facility necessary for
power generation (such as pumps, blowers, fuel preparation machinery, and exciters) and
for other essential electricity uses in the facility from the gross generator output.”79
Because the Commission explicitly focused on the overall facility capabilities, Occidental
supports the proposition that power production capacity means output in a form useful to
an interconnected entity. The Commission’s subsequent applications of the Occidental
approach likewise reflect that the owner or operator of a facility should not be allowed to
obtain the benefits of QF status for more than the facility’s net output because only the
(B) (defining “qualifying cogeneration facility” based on the nature of its output but not, as
with a qualifying small power production facility, based on its power production capacity).
76
Commissioner Danly characterizes today’s order as establishing a new test, which
he dubs the “for delivery to the utility” standard. Dissent at P 9. We disagree. As
discussed below, in the four decades since the Commission first adopted the send-out test
in Occidental, it has consistently measured a QF’s power production capacity at the point
of interconnection with the interconnecting electric utility. See infra PP 27-29. That the
Commission is applying that long-established standard to new facts presented by
Broadview’s application does not turn it into a new standard.
77
Occidental Geothermal, Inc., 17 FERC ¶ 61,231 at 61,445.
78
Id. at 61,444-45.
79
Id.
Docket No. QF17-454-006 - 16 -
amount of the net output will be capable of being avoided on an interconnected utility’s
system.80
The Commission reinforced that reasoning in Malacha Power Project, Inc.,81 in

which the Commission again concluded that “power production capacity” is determined
from the facility’s net output after taking into account all components necessary to produce
electric energy in a form useful to an interconnected entity. In Malacha, the Commission
addressed the issue of whether “certain interconnection equipment required for the
transmission of the electric power produced by the facility to [the purchasing utility’s]
transmission system will be part of the qualifying small power production facility.”82 The
Commission held that the interconnection equipment can be included as “auxiliary
equipment in the facility necessary for power generation.”83 The Commission also
determined that, when interconnection equipment is included, the power production
capacity of the facility is determined not at the facility’s powerhouse substation but at the
point of interconnection with the purchasing utility’s transmission system, after deducting
losses resulting from transmission over the interconnection equipment.84 That is, the
facility’s power production capacity was determined after taking into consideration all of
the components of the facility, including components necessary for interconnection.
The Commission codified Malacha in a 1995 rulemaking. There, the Commission

updated the definition of “qualifying facility” to include certain “transmission lines and
other equipment used for interconnection purposes (including transformers and switchyard
80
E.g., Accord Power Developers, Inc., 32 FERC at 61,276 (reasoning from
Occidental’s focus on net output that QF sales are limited to net output, otherwise “the QF
would be receiving avoided cost prices for an amount of power that it does not enable the
utility to avoid generating or purchasing); Penntech Papers, Inc., 48 FERC at 61,423
(explaining that for a cogeneration QF, an economic distortion may result if the
Commission were to grant certification for the facility’s maximum rated capacity and allow
Penntech to sell gross output at one utility’s avoided cost rates while the cogenerator
purchases its needed auxiliary power, which is properly an internal cost of the facility, at
another utility’s retail rates); Turners Falls, 53 FERC at 61,225-26 (denying proposal to
certify and sell a facility’s gross output even though the facility would purchase its
auxiliary power from utilities, again focusing on the proposed facility’s “net capability”).
81
Malacha, 41 FERC ¶ 61,350.
82
Id. at 61,945.
83
Id. at 61,946.
84
Id.
Docket No. QF17-454-006 - 17 -
equipment).”85 In that rule, the Commission explained that such equipment was part of the
“facility” if it was used to transmit the QF’s power output to the interconnecting utility or
to transmit the interconnected utility’s supplementary, standby, maintenance and backup
power to the QF.86 In so doing, Order No. 575 further underscored the Commission’s
view that a qualifying facility includes all components necessary to produce electric energy
in a form useful to an interconnected entity—an interpretation that is consistent with the
send-out analysis insofar as it supports measuring a “facility’s” “power production
capacity” based on the power that the facility can deliver to the interconnected utility.
At the same time in 1995, the Commission introduced the first version of Form No.
556, which standardized the information to be included in a self-certification of QF status
or an application for Commission certification of QF status. Specifically, Line 4a of Form
No. 556 required a filer to “describe the principal components of the facility including
boilers, prime movers and electric generators, and explain their operation.”87 In 2010, the
Commission transferred and expanded the required description of primary components into
Line 7h of Form No. 556. It requires a filer to “identify all … electrical generators,
photovoltaic solar equipment, … and/or other primary power generation equipment used in
85
Streamlining of Regulations Pertaining to Parts II and III of the Federal Power Act
and the Public Utility Regulatory Policies Act of 1978, Order No. 575, FERC Stats. & Regs.
¶ 31,014 at 31,279-81 (1995) (cross-referenced at 70 FERC ¶ 61,022); id. FERC Stats. &
Regs. ¶ 31,014 at 31,279 n.46 (citing Clarion Power Co., 39 FERC ¶ 61,317 (1987);
Kern River Cogeneration Co., 31 FERC ¶ 61,183 (1985); Malacha, 41 FERC ¶ 61,350;
Oxbow Geothermal Corp., 67 FERC ¶ 61,193 (1994)); 18 C.F.R. § 292.101(b)(1)(i)-(iii).
86
18 C.F.R. § 292.101(b)(i)-(iii); see Order No. 575, FERC Stats. & Regs. ¶ 31,014
at 31,280. (explaining that included transmission lines and interconnection equipment
“may be used only for the purpose of effectuating the QF’s sale of power” or to otherwise
“serve the same users that are served by the power production components of the QFs, to
serve other QFs, and to serve the backup, etc. needs of the QF, and its thermal host, in
appropriate circumstances.”). The regulation also includes equipment used to transmit
power to or from the utility on behalf of other QFs. 18 C.F.R. § 292.101(b)(1)(i)(C).
87
Order No. 575, 60 Fed. Reg. 4831 at 4855.
Docket No. QF17-454-006 - 18 -
the facility”88 and describe “how the components operate as a system.”89 The text and
structure of Form No. 556 show a focus on how a facility’s principal components, which
have been clarified to include photovoltaic solar equipment (not merely panels), operate
together.
Based on the analysis above, we conclude that Broadview’s facility will conform to
the size limit for a qualifying small power production facility established in PURPA and
the Commission’s regulations. To be sure, Broadview’s facility is distinct in certain
respects from the facilities that the Commission considered when it first applied the “send
out” test. Nevertheless, on reconsideration, we do not believe that those differences,
including the presence of a 200-MWh battery energy storage system and a 160-MW solar
array, are material for the purposes of determining whether Broadview’s “facility” has a
“power production capacity” of no more than 80 MW. Although Broadview’s
configuration allows it to more consistently deliver a higher share of the 80 MW power
production capacity, that configuration does not change the fact that the Broadview facility
is not actually capable of providing more than 80 MW at any one point in time at its point
of interconnection with NorthWestern. On reconsideration, we find that while this
effectively increases the Broadview facility’s capacity factor,90 it does not change the
Broadview facility’s “power production capacity” or call into question our longstanding
reliance on the “send out” analysis to measure power production capacity.
88
Revisions to Form, Procedures, and Criteria for Certification of Qualifying
Facility Status for a Small Power Production or Cogeneration Facility, Order No. 732,
130 FERC ¶ 61,214, (2010), at appendix A – Proposed FERC Form No. 556, Line 7h
(emphasis added). The current version of Form No. 556 uses identical text at Line 7h.
Form No. 556, https://www.ferc.gov/media/form-no-556 (OMB Control # 1902-0075,
Expiration Nov. 30, 2022).
89
Id.
90
See, e.g., capacity factor, U.S. Energy Information Administration, Glossary,
https://www.eia.gov/tools/glossary/index.php?id=C (last visited Mar. 3, 2021) (defining
capacity factor as “the ratio of the electrical energy produced by a generating unit for the
period of time considered to the electrical energy that could have been produced at
continuous full power operation during the same period”). See also, e.g., Dykes et al.,
National Renewable Energy Laboratory, Opportunities for Research and Development of
Hybrid Power Plants, at 41 (May 2020) (noting that “[i]f it is valuable to maximize the
interconnection capacity factor, the system may be oversized on the DC side to generate
more power during off-peak hours and clip or store the power during hours of
overproduction, relative to inverter capacity”).
Docket No. QF17-454-006 - 19 -
Likewise, consistent with Malacha, we further find that it is reasonable to measure

power production capacity of a facility like Broadview’s at the point of interconnection
because its inverters are an integral part of a solar PV facility’s generation equipment and
are necessary to produce power in a form useful to the interconnecting utility.91 Indeed any
solar-PV QF can produce power for delivery to the purchasing utility only to the extent
enabled by the inverters because the grid operates predominantly using AC power.92
Without the inverters, a solar PV QF cannot benefit from its rights to interconnect and
exchange power with an electric utility, as Congress intended to “‘encourage the
development of cogeneration and small power production facilities’ by addressing
‘problems imped[ing] the development of nontraditional generating facilities.’”93 Because
Broadview’s facility—including the PV panels, inverters, and the battery system—can
deliver a maximum of 80 MW of power to NorthWestern’s system at any one point in
time,94 the power production capacity of Broadview’s facility cannot and will not exceed
80 MW.
2. The Certification Filing
Upon further consideration of the arguments on rehearing, we conclude that

Broadview Solar has satisfied our regulatory requirements for Commission certification of
QF status.
Before 2006, the QF status of a small power production facility depended only on
the facility’s conformance to the regulatory requirements about maximum size and primary
91
E.g., Broadview Rehearing Request at 9-10, 18 (discussing inverters).
92
Broadview’s interconnection agreement with NorthWestern provides that the total
size of the “[p]roject will be 80 MW based on the max output of the inverters.” Broadview
October 17, 2019 Answer at 4.
93
E.g., Conn. Valley Elec. Co., Inc. v. FERC, 208 F.3d 1037, 1045 (D.C. Cir. 2000)
(quoting FERC v. Miss., 456 U.S. 742, 750 (1982)). 16 U.S.C. § 824a-3 (“the Commission
shall prescribe, and from time to time thereafter revise, such rules as it determines
necessary to encourage cogeneration and small power production”). Congress sought to
encourage the development of QFs to provide electricity to a transmission system that had
operated on AC power since the turn of the twentieth century.
94
Lending further support to that conclusion, the interconnection studies executed
by NorthWestern, the interconnecting utility, identify Broadview’s summer and winter
output as 80 MW, and the interconnection agreement, provides that the total size of the
“Project will be 80 MW based on the max output of the inverters.” Broadview October 17,
2019 Answer at 4.
Docket No. QF17-454-006 - 20 -
energy source, as interpreted in Commission precedent.95 The Commission noted that QFs
and purchasing utilities could agree that a generation facility met the requirements for QF
status, and the facility would qualify for PURPA benefits without making any filing with
the Commission.96 In 2006, the Commission added the requirement that the owner or
operator must make a certification filing, either by filing for self-certification or filing an
application for Commission certification.97 Both approaches involve filing a Form No. 556
(which was introduced earlier, in 1995).98
Form No. 556 was always intended to be a flexible tool for a facility owner or
operator to submit information relevant to whether a facility meets the requirements to be
considered a QF. The form does not supplant Commission precedent regarding the
requirements that a facility must satisfy to secure QF status. For that reason, we conclude
that the Commission erred in the September 2020 Order by relying on particular lines of
Form No. 556 to support its decision to overturn the “send out” line of precedent. In
addition, as discussed below, we find that the Commission also overlooked the extent to
which the pragmatic approach it has always taken with respect to Form No. 556 can be
consistent with our “send out” precedent.
When the Commission published the first version of Form No. 556 in 1995, it
sought to incorporate a standardized form into the regulations to save developers from
95
Facility Status for a Small Power Production or Cogeneration Facility, Order No. 732,
130 FERC ¶ 61,214, at PP 34, 37 (reviewing historical context); Small Power Production
and Cogeneration Facilities – Qualifying Status, Order No. 70, FERC Stats. & Regs. ¶
30,134, at 30,937-38, 30,954-55 (cross-referenced at 10 FERC ¶ 61,230) (rejecting a
proposal to require Commission certification of all facilities seeking QF status, instead
providing that facilities that met the requirements for QF status needed only to furnish an
informational notice to the Commission of QF status).
96
Facility Status for a Small Power Production or Cogeneration Facility, 129 FERC
¶ 61,034, at P 8 (2009) (NOPR for Order No. 732).
97
Revised Regulations Governing Small Power Production and Cogeneration
Facilities, Order No. 671, 114 FERC ¶ 61,102, order on reh’g, Order No. 671-A,
115 FERC ¶ 61,225 (2006); 18 C.F.R. § 292.207(a) (self-certification); id. § 292.207(b)
(application for Commission certification).
98
18 C.F.R. § 292.207(a), (b)(2).
Docket No. QF17-454-006 - 21 -
having to examine the Commission’s regulations and precedent to certify.99 Form No. 556
required a report of the “power production capacity” of a facility in compliance with the
approach that had evolved in precedent.100 This would provide the Commission with
sufficient information to verify that the facility’s “net capacity is below the 80-MW
threshold” and would satisfy the need “to indicate to electric utilities their qualified power
purchase obligations.”101 The Commission believed that the Form No. 556 would better
delineate the information requirements and provide for the step-by-step application of
pertinent regulations to an owner or operator’s facility.102 But the Commission also
cautioned that “any form requires some degree of flexibility since the uniqueness of
individual facilities and novel applications may require supplemental data submissions.”103
The text of the form itself explained that the form was “to be completed for the purpose of
demonstrating up-to-date conformance with the qualification criteria of Section
292.203(a)(1) [for small power production QFs] or Section 292.203(b) [for cogeneration
facilities], based on actual or planned operating experience.”104 The form has always
provided flexibility in how the filer would demonstrate this conformance. For example,
Item 4a of the original Form No. 556 required the filer to “describe the principle
components of the facility … and explain their operation.” Item 4b further required the
filer to “indicate the maximum gross and maximum net power production capacity of the
facility at the point(s) of delivery and show the derivation.”105 The Commission did not
specify how a filer must show the derivation.
In 2010, the Commission introduced a more specific reporting requirement for

“power production capacity” in a revised Form No. 556, but still recognized that Form No.
556 would not be a perfect fit for all possible QFs. The Commission explained that most
changes to the content and organization of Form No. 556 were intended to gain the benefits
of electronic filing while in most cases collecting the same data as before.106 The
99
Streamlining of Regulations Pertaining to Parts II and III of the Federal Power
Act and the Public Utility Regulatory Policies Act of 1978, FERC Stats. & Regs. ¶ 32,489,
at 32,648 (1992) (cross-referenced at 61 FERC ¶ 61,243) (NOPR for Order No. 575).
100
Id.
101
Id.
102
Id.
103
NOPR for Order No. 575, FERC Stats. & Regs. ¶ 32,489 at 32,649.
104
Order No. 575, 60 Fed. Reg. 4831, 4855 (Jan. 25, 1995) (Form No. 556).
105
Id. (Form No. 556, Part A, Item 4b).
106
Order No. 732, 130 FERC ¶ 61,214 at P 22 (changes “will allow FERC to
Docket No. QF17-454-006 - 22 -
Commission retained some core requirements. For example, a filer still must “identify
utilities purchasing the [QF’s] useful electric power output.”107 A filer still must “indicate
the maximum gross and maximum net electric power production capacity of the facility at
the point(s) of delivery,”108 although the Commission created an automated worksheet
(Lines 7a to 7g) to calculate the relevant figures. This calculation begins with the
“maximum gross power production capacity at the terminals of the individual generator(s)
under the most favorable anticipated design conditions” (Line 7a).109 Consistent with the
“send out” line of Commission cases, Form No. 556 calculates deductions for parasitic
station power at the facility (Line 7b), electrical losses in interconnection transformers
(Line 7c), electrical losses in AC/DC conversion equipment (Line 7d), and “other
interconnection losses in power lines or facilities … between the terminals of the
generator(s) and the point of interconnection with the utility” (Line 7e).110 The result of the
automated calculation is the facility’s “maximum net power production capacity” (Line
7g).111 Importantly, Line 7h carries forward the requirement to describe the facility and its
operation. The filer must “[i]dentify all … electrical generators, photovoltaic solar
equipment … and/or other primary power generation equipment used in the facility” and
“[p]rovide a description of how the components operate as a system.”112 All of these
changes were designed to provide the information needed to apply the send out calculation
to the types of QFs that were generally under development at that time.
But the Commission never intended to turn this data collection tool into a
mechanical rule that dictated whether a facility constituted a QF. Instead, even with Form
No. 556 the Commission contemplated it would make a determination under PURPA based
electronically process QF applications, dramatically reducing required staff resources and

human error, and allowing the Commission to identify patterns of reporting errors and
noncompliance that would be difficult to detect through manual processing”); Id. at
130 FERC ¶ 61,214 at PP 90-91 (noting the problems of inaccurate or missing responses
that resulted from the open-ended nature of the pre-existing form).
107
Form No. 556, Line 4c, https://www.ferc.gov/media/form-no-556 (OMB Control
# 1902-0075, Expiration Nov. 30, 2022) (emphasis added).
108
Id. Section 7 Technical Facility Information (introductory text) (emphasis
added).
109
Id. Line 7a.
110
Id. Lines 7b-7e.
111
Id. Line 7g.
112
Id. Line 7h.
Docket No. QF17-454-006 - 23 -
on all of the facts of the matter and not merely on the contents of the form. Indeed, the
form acknowledges that its design may not be suitable for all instances.113 For example,
Line 1m on the form allows an applicant to indicate if it “has special circumstances … that
make the demonstration of compliance via this form difficult or impossible.”114 In
addition, the form directs the filer to “complete the form to the extent possible, explaining
any special circumstances in the Miscellaneous section” at the end of the form.115 Thus,
although double-counting is prohibited, an owner or operator may use Form No. 556’s
flexibility to account for all effects of its conversion equipment.116
We conclude that Broadview has satisfied the Commission’s certification

requirement through the Form No. 556 filed with its application. Broadview’s differing
approaches to how best to complete Form No. 556 over time do not prevent the
Commission from determining that Broadview ultimately has satisfied the requirements
that its facility, as proposed in its application on September 11, 2019, uses a primary
energy source of solar energy and that its facility will not have a “power production
capacity” in excess of 80 MW. Across all of Broadview’s filings with the Commission, in
fact, Broadview has consistently reported a net power production capacity of 80 MW to be
delivered to the point of interconnection with NorthWestern’s system. Although
Broadview did not take advantage of Line 1m and the Miscellaneous section to explain the
special circumstances presented by using Form No. 556 to demonstrate compliance with
the Commission’s regulations, Broadview did describe in Line 7h how its facility would
operate with the inverters to produce at most 82.548 MW of AC power before deducting
eligible loads and losses, for a maximum net power production capacity of 80 MW. And
beyond Form No. 556, Broadview sufficiently explained in its submittals that its facility
113
For example, the Commission recently revised its PURPA-implementing
regulations to accommodate the evolution of cogeneration facilities using fuel cell systems
with integrated hydrocarbon reformation equipment. Fuel Cell Thermal Energy Output,
Order No. 874, 86 Fed. Reg. 8133 (Feb. 14, 2021), 173 FERC ¶ 61,226 (2021). The
Commission did not revise Form No. 556; instead it directed owners or operators of these
fuel cell systems to use the existing version of the Form No. 556 and provided guidance on
how respondents should complete self-certifications or applications for Commission
certification. Id. at 8139 n.64.
114
Form No. 556, Line 1M, https://www.ferc.gov/media/form-no-556 (OMB
Control # 1902-0075, Expiration Nov. 30, 2022).
115
Id.
116
For example, Broadview reported its gross power production capacity as
82.548 MW of AC power (Line 7a), while acknowledging in line 7h that the total capacity
of the solar PV array is 160 MW before accounting for the inverter limitations.
Docket No. QF17-454-006 - 24 -
would comply with the size limit on “power production capacity” in PURPA and our
regulations.117
3. Commission Certification of Broadview’s Facility as a QF
Because Broadview has demonstrated that its facility meets the Commission’s
requirements for QF status, we grant certification of small power production QF status for
the facility, provided that the facility is operated in the manner described in Broadview’s
application on September 11, 2019, Broadview’s answer on October 17, 2019, in the
Commission’s September 2020 Order, and in this order. To the extent that facts or
representations that form the basis of this order change, this order cannot be relied upon.118
Although Broadview’s facility might still meet the technical requirements for QF status
under the changed circumstances, self-recertification or Commission-recertification at that
point will be necessary to maintain QF status.119
C. Other Issues
In light of our determination above, we dismiss, as moot, Broadview’s arguments

that the Commission should have changed its interpretation of “power production capacity”
by formal rulemaking rather than apply the interpretation retroactively in an
adjudication.120 For the same reason, we dismiss, as moot, Broadview’s arguments that the
Commission should have discussed in the September 2020 Order how its changed
interpretation of “power production capacity” could affect facilities that had previously
been exempt from the Commission’s filing requirements based on the facilities’ “net power
production capacity” of 1 MW or less.121
117
Application at 2-8.
118
18 C.F.R. § 292.207(d)(1)(i).
119
Id.
120
E.g., Broadview Rehearing Request at 9, 21-22; see also SEIA October 1, 2020
Request for Rehearing and Clarification at 6-12; Southern Current LLC October 1, 2020
Request for Rehearing and Clarification at 4-6.
121
E.g., Broadview Rehearing Request at 9 (citing exemption in 18 C.F.R.
§ 292.203(d)); see also Terraform Power, LLC October 1, 2020 Request for Clarification at
1-2; SEIA October 1, 2020 Request for Rehearing and Clarification at 23-25; New Sun
Energy, October 1, 2020 Request for Rehearing at 20-21; Pine Gate Renewables, LLC,
October 1, 2020, Request for Rehearing or Clarification at 6-11; Southern Current LLC
October 1, 2020 Request for Rehearing and Clarification at 8.
Docket No. QF17-454-006 - 25 -
The Commission orders:
(A) In response to Broadview’s request for rehearing, the September 2020 Order is
hereby modified and the result set aside, as discussed in the body of this order.
(B) The Commission hereby grants Broadview’s application for Commission

certification of its facility as a qualifying small power production facility, as discussed in
the body of this order.
By the Commission. Commissioner Danly is dissenting with a separate statement attached.

Commissioner Christie is dissenting.
(SEAL)
Kimberly D. Bose,
Secretary.
UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION
Broadview Solar, LLC Docket No. QF17-454-006
(Issued March 19, 2021)
DANLY, Commissioner, dissenting:
Today’s order (Order) finds that Broadview Solar, LLC’s (Broadview) proposed
160 MW solar power facility has a power production capacity of only 80 MW. This
counterintuitive finding is contrary to both the plain language and the structure of the
Public Utility Regulatory Policies Act of 1978 (PURPA).1 It is also inconsistent with the
instructions for calculating power production capacity in Form 556, which under our
regulations is required for self-certifications and certifications of qualifying facilities (QFs)
under PURPA.2 Nor does this holding find any support in the Commission’s regulations or
precedent. I am therefore compelled to dissent in full.
I. The Facility’s Power Production Capacity is Well Above 80 MW When

Determined by the Method Established by the Commission for Calculating
Power Production Capacity
Section 201 of PURPA and section 204(a)(1) of the Commission’s implementing

regulations limit the size of small power production QFs to a “power production capacity”
of 80 MW.3 Therefore, the issue raised by Broadview’s QF certification application
(Application) is whether Broadview’s proposed facility (Facility), comprised of 160 MW
of solar panels and other equipment, would have a power production capacity greater than
80 MW.
Form No. 556 specifies how an applicant should ordinarily calculate and report the
power production capacity of its facility. A project sponsor must report maximum gross
power production capacity “at the terminals of the individual generators under the most
favorable anticipated design conditions” (line 7a). The project sponsor may then subtract
parasitic station power used at the facility (line 7b), electrical losses in interconnection
transformers (line 7c), electrical losses in AC/DC conversion equipment (line 7d), and
1
16 U.S.C. §§ 796(17), 824i, 824a-3.
2
18 C.F.R. § 131.80 (2020). Although our regulations adopt Form 556, the form
itself is found at https://www.ferc.gov/media/form-no-556 (OMB Control # 1902-0075,
Expiration Nov. 30, 2022).
3
16 U.S.C. § 796(17)(A)(ii); 18 C.F.R. § 292.204(a)(1) (2020).
Docket No. QF17-454-006 -2-
other interconnection losses (line 7e) to yield the facility’s maximum net power production
capacity (line 7g).
In its Application, Broadview stated that “the Facility will be comprised of a direct
current (“dc”) coupled array of solar PV panels with a gross capacity of 160 MW (dc).”4
Broadview also stated that parasitic station power is 1,245 kW,5 transformer AC electrical
losses are 800 kW,6 AC/DC conversion losses are 1,978 kW,7 and other interconnection
losses are 503 kW.8 The total in deductions from the 160 MW gross power production
capacity of the Facility is 4.526 MW, which results in a net power production capacity of
approximately 155.5 MW. This is 75.5 MW above the statutory maximum allowable
power production capacity for a QF. The Facility does not meet the statutory requirement
to be a QF.
The fact that Form 556 calculations show a 160 MW facility to have a net power
production capacity considerably greater than 80 MW is not surprising. However, after
stating that the gross power production capacity of its solar facility is 160 MW of direct
current (DC) energy, Broadview goes on to assert that “the maximum gross output of the
Facility at its inverters will be approximately 82.5 MW(ac).”9 The reason for using this
much lower number as the gross output of the Facility, according to Broadview, is that
“[a]t their terminals, the solar PV panels and BESS connect to twenty 4.127 MW(dc) to
alternating current (“ac”) inverters.”10 In other words, the Facility employs inverters to
convert the DC energy produced by the solar panels into alternating current (AC) that is
delivered to the interconnection. The Facility only employs a sufficient number of
inverters to convert the 82.5 MW of the 160 MW of DC produced by the Facility into AC.
Surplus DC energy produced by the solar panels is diverted to the Facility’s battery storage
equipment where it is stored for later conversion and delivery to the interconnection.
However, Line 7a of Form 556, the line on which the gross power production
capacity is reported, requires that filers provide “[t]he maximum gross power production
4
Application at 2 (emphasis added).
5
Id. at 7.
6
Id. at 8.
7
Id.
8
See Form 556 filed with Application, line 7e.
9
Application at 2.
10
Id.
Docket No. QF17-454-006 -3-
capacity at the terminals of the individual generator(s) under the most favorable
anticipated design conditions.” (Emphasis added). Broadview affirmatively states in its
Application that the inverters are connected to the solar panels “[a]t their terminals.”11
Therefore the gross capacity of the Facility at “the terminals of the individual generator(s)”
is 160 MW, and the gross conversion capacity of the inverters reported by Broadview is
downstream of those terminals. Form 556, which requires Broadview to report the gross
power production capacity of its solar panels at their terminals, does not permit Broadview
to report power production capacity measured downstream of the solar panels’ terminals.
Broadview also affirmatively states in its Application that, “when there is more dc
power available from the solar array than can [be] converted to ac power by the inverters,
that power is stored in the [battery storage system].”12 In other words, even when the
Facility is producing 82.5 gross MW of AC, which is the maximum quantity of DC energy
that can be converted by the inverters, the Facility is capable of producing additional
energy that is diverted to the Facility’s batteries for later delivery to the interconnection. It
simply is not possible to conclude that the “gross” power production capacity of the
Facility is only 82.5 MW, when the Facility can produce additional energy at the same time
that 82.5 MW AC is being delivered to the interconnection and when the additional energy
can later be converted to AC and delivered to the interconnection.
That should be the end of the story, as the Commission found in its original order
issued on September 1, 2020.13 However, today, the Commission reverses its holding on
rehearing, finding that the 160 MW Facility satisfies PURPA’s 80 MW power production
capacity limit. The Commission does not appear to disagree that application of the Form
556 methodology to Broadview’s Application would result in a calculated power
production capacity well in excess of 80 MW. However, the Commission dismisses Form
556 as a mere “data collection tool” and notes that Form 556 allows an applicant to
“indicate if it ‘has special circumstances . . . that make the demonstration of compliance via
this form difficult or impossible.’”14
After disavowing the calculation required by Form 556, the Commission applies a
new standard for determining power production capacity, namely “the whole facility’s net
output to the electric utility, taking into account all components necessary to produce and
11
Id. at 2.
12
Id. at 7.
13
Broadview Solar, LLC, 172 FERC ¶ 61,194 (2020) (September 2020 Order).
14
Broadview Solar, LLC, 174 FERC ¶ 61,199, at P 39 (2021) (quoting Form No.
556, Line 1M) (Order).
Docket No. QF17-454-006 -4-
provide electric energy in a form useful to an interconnected entity.”15 Not a single word
of this long sentence (which for convenience I refer to as the “for-delivery-to-the-utility”
standard) appears in the statute.16 The Commission goes on to find that Broadview’s
Facility meets this new standard.17
I do not agree that Form 556 is simply a data collection tool, given its very specific
instructions for calculating power production capacity and the importance the result has for
a generator’s status as a QF. Rather, Form 556 requires a certain approach to perform the
calculation of power production capacity but permits deviations from that approach based
on the special circumstances of a particular proposed project. Here, however, Broadview
did not claim any special circumstances, and I do not know how it could, given the fact that
solar panel technology is well established and specifically referenced in Form 556. Thus,
the Facility is unlike the fuel cell systems referenced by the Commission, which in fact are
a new technology not contemplated by Form 556.18
Nevertheless, I concede that a Form 556 calculation would not be dispositive if a

different result were compelled by PURPA or our regulations or precedent. No such
deviation is required here. The Commission’s new for-delivery-to-the-utility standard is
inconsistent with PURPA and finds no support in our regulations or our precedent.
II. PURPA Requires Consideration of Power Production Capacity, Not

Delivery Capacity
PURPA’s 80 MW power production capacity limit appears in the statutory

definition of a small power production facility, which is defined as a solar, wind, waste, or
geothermal facility that, among other things, “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.”19 Notably absent from this statutory limit
on the size of a small power production facility is any language stating, or even implying,
15
Order, 174 FERC ¶ 61,199 at P 26.
16
The Commission asserts that this standard is not new, but merely reflects the
application of four decades of precedent to new facts. Id. P 27 n.85. As I explain below,
this is simply not correct. The new for-delivery-to-the-utility standard represents a material
deviation from our precedent.
17
Id.
18
Id. P 39 n.144.
19
16 U.S.C. § 796(17)(A)(i)-(ii).
Docket No. QF17-454-006 -5-
that the facility producing the power also must be physically capable of delivering the
power it produces to the purchasing utility in a useful form.
The Commission justifies its new interpretation of the statutory language by

asserting that the term “power production capacity” is ambiguous.20 But this claim is
merely a stratagem to permit the introduction of a new standard that is inconsistent with the
statute’s language. In fact, there is no material ambiguity as to what “power production
capacity” could mean. “Power” in this context means energy, and there is nothing in the
statutory text to suggest that it means only AC energy and not DC energy. Power
“production” unambiguously means the production of power, not the delivery of power.
And the “capacity” of a generation facility is generally understood to mean its installed
capacity21 or its maximum power production output.22
The Commission nevertheless claims that the statutory language is ambiguous

because “PURPA . . . neither defines the terms “facility” and “power production capacity,”
nor explains how the Commission is supposed to ascertain the “power production capacity”
of any particular “facility.”23 Of course, the lack of a further definition of an unambiguous
term does not somehow render the term ambiguous. Nor does the fact that the statutory
20
Order, 174 FERC ¶ 61,199 at P 23.
21
The Commission asserts that I take the position that the provisions of the statutory
standard “compel us to adopt the nameplate capacity of Broadview’s solar array as its
power production capacity.” Id. P 23, n.76. That is not correct. I am providing the
reference to installed capacity because it illustrates that the term “capacity” focuses on
generation equipment, not delivery. As my dissent makes clear, I believe that the statutory
term is capable of being interpreted as referring to net generation capacity with the power
consumed in station power and other essential uses subtracted out.
22
See e.g. PJM Open Access Tariff, section I.1, Definitions (“‘Capacity’ shall mean
the installed capacity requirement of the Reliability Assurance Agreement or similar such
requirements as may be established.”); Elec. Storage Participation in Mkts. Operated by
Reg’l Transmission Orgs. & Indep. Sys. Operators, Order No. 841, 162 FERC ¶ 61,127, at
P 93 (2018) (capacity of electric storage resources defined as “the maximum output that the
resource can sustain for the duration of the minimum run-time.”). That capacity refers to
generation output rather than delivery capacity also is supported by the Energy Information
Administration’s glossary, which defines “capacity factor” as “the ratio of the electrical
energy produced by a generating unit for the period of time considered to the electrical
energy that could have been produced at continuous full power operation during the same
period”). U.S. Energy Information Administration, Glossary,
https://www.eia.gov/tools/glossary/index.php?id=C (emphasis added).
23
Order, 174 FERC ¶ 61,199 at P 23.
Docket No. QF17-454-006 -6-
term does not specify how the term should be applied to a particular facility create
ambiguity when the term unambiguously says that the 80 MW limit should be based on
power production capacity.
The Commission also suggests ambiguity in the statutory language because “the
Commission could, as it has for nearly forty years, look to the maximum output that the
facility can produce for the electric utility after accounting for all the constituent parts that
make up the facility, which in this case includes the inverters.”24 As I explain below, the
Commission’s attempt to fit its new for-delivery-to-the-utility standard into its past
precedent strains that precedent beyond recognition. But in any event, the Commission
cannot create ambiguity as to the intent of Congress when it enacted in PURPA in 1978
based on the Commission’s desire to extend its past precedent to establish a new standard
in 2021.
Next, the Commission cites to my statement above that “the term ‘capacity’ is
generally equated to ‘output.’”25 From this, the Commission asserts:
As applied to just the facility’s solar panels in this instance, output could
be read to refer to the raw quantity of electricity generated. But when
applied to the facility as a whole, as PURPA requires, power sent from
the solar panels to other internal components, rather than to the grid,
cannot properly be considered the output of the facility.26
This assertion might carry some force if one were only to consider the word
“output” in isolation, and if that word actually was in the statute (the statutory term is
“capacity”). But the Supreme Court has counseled against relying on the “hypertechnical
reading” of a statutory provisions by reading them in isolation, and has held instead that
statutory provisions should be read as a whole.27 Here, PURPA does not contain an 80
MW “capacity” limit, but an 80 MW “power production capacity” limit. When the fact
that Congress modified the word “capacity” by the words “power production” is
considered, it is clear that the statute refers to the capacity of the facility to produce power,
not to deliver power to the interconnection. The Commission’s interpretation, derived
from its hypertechnical focus on a single word that is not even present in the statute, is, as
24
Id.
25
Id. P 25.
26
Id.
27
Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (Davis).
Docket No. QF17-454-006 -7-
the Supreme Court held in Davis, “implausible at best.”28 This is not a case in which the
Commission is grappling with an ambiguity, it is one where the ambiguity is
(unconvincingly) manufactured in order to circumvent the plain language of the statute.
Having claimed that “power production capacity” is ambiguous, the Commission

goes on to say that its interpretation “is further confirmed when we consider the terms
‘facility’ and ‘power production capacity’ in light of ‘their context and with a view to their
place in the overall statutory scheme.’”29 For this proposition the Commission relies on the
Supreme Court’s statement in Davis that “statutory language cannot be construed in a
vacuum. It is a fundamental canon of statutory construction that the words of a statute
must be read in their context and with a view to their place in the overall statutory
scheme.”30
Far be it for me to disagree with the Supreme Court’s declaration of a fundamental

canon of statutory construction. But as I explain above, in Davis, the Court was addressing
a “hypertechnical reading” of a statutory provision that it found was “not inconsistent with
the language of that provision examined in isolation.”31 When the Court considered the
language in the statutory provision as a whole, it determined that the hypertechnical
interpretation being advanced by the State of Michigan “would be implausible at best.”32
Thus, the fundamental canon of statutory construction referenced by the Supreme

Court prohibits taking isolated phrases of statutes out of context in order to reach
hypertechnical interpretations that are implausible when read in conjunction with the
remainder of the statute. It does not permit the use of conjecture to avoid the plain
meaning of a complete statutory provision. Here, the September 2020 Order did not take
the term “power production capacity” of out context. Interpreting that term to mean the
capacity to produce power, as opposed to deliver power, is not hypertechnical at all.
Instead it affords that term its ordinary meaning. Nor does the Commission cite to any
other statutory language in PURPA that renders this plain reading implausible.
28
Id. at 810.
29
Order, 174 FERC ¶ 61,199 at P 26 (quoting Davis, 489 U.S. at 809).
30
Id. n.82.
31
Davis, 489 US at 809.
32
Id. at 810.
Docket No. QF17-454-006 -8-
Instead, the Commission uses the holding in Davis as a jumping off point for an
unconvincing speculation as to a possible alternative meaning untethered to any particular
statutory provision:
[W]hen a facility meets the QF requirements, the benefits of that status—

e.g., the right to interconnect with the relevant electric utility and sell the
facility’s output to that utility at an avoided-cost rate —accrue to the
facility as a whole. Given that statutory structure, and the importance of
the rights at the point of interconnection, we find that the best
interpretation of the 80-MW limit on a facility’s power production
capacity is as a limit on the whole facility’s net output to the electric
utility (i.e., at the point of interconnection), taking into account all
components necessary to produce electric energy in a form useful to an
interconnected entity.33
It is not apparent how this explanation puts the statutory language in context or
shows its place in the overall statutory scheme. Why does the fact that a QF has the
right to interconnect with and sell its output to a utility at avoided cost rates lead to
the conclusion that the “best interpretation” of the statute is that the 80 MW power
production limit should be read as a limit on the facility’s ability to produce electric
energy in a form useful to an interconnected entity? The two points are wholly
unrelated.
The only possible connection could be if there was a provision in PURPA that
limited a small power production facility’s interconnection and sales rights to 80 MW. But
that is not the case. PURPA simply requires the Commission to promulgate rules
obligating utilities to purchase electricity from QFs (without distinguishing between small
power production facilities and cogeneration facilities) at avoided costs without any
mention of limiting either interconnection or sales rights.34 Indeed, there are many
qualifying cogeneration facilities with capacities of 300 MW, 500 MW, and more.35
Whatever the reason for the 80 MW power production capacity limit, it cannot be that
Congress was concerned about the consequences of allowing small power production
facilities larger than 80 MW to require utilities to interconnect with them and purchase
their electricity at avoided cost rates. There is no logical reason why Congress would try to
33
Order, 174 FERC ¶ 61,199 at P 26.
34
See PURPA § 210(a)(2); 16 U.S.C. § 824a-3(a)(2).
35
See, e.g. S. Cal. Edison Co., 143 FERC ¶ 61,222, at P 4 (385 MW cogeneration
QF); Chevron U.S.A. Inc., 153 FERC ¶ 61,192, at P 2 (two 300 MW cogeneration QFs);
Elk Hills Power, LLC, Docket No. QF12-252-001 (June 8, 2012) (586 MW cogeneration
QF).
Docket No. QF17-454-006 -9-
provide utilities with such protections against small power producers delivering more than
80 MW but at the same allowed cogenerators to interconnect and deliver electricity in
unlimited quantities.36
The Commission also asserts that the statutory term “facility” is ambiguous.37 It
relies on this purported ambiguity to support its claim that power production capacity
applies to the “whole” facility, including the inverters and their limited capacity to convert
DC into AC. I completely agree that nothing in PURPA suggests that inverters cannot be
deemed part of a small power production facility. However, the limited ability of
Broadview’s Facility to convert DC energy into AC for delivery is irrelevant to
ascertaining the maximum power production capacity of the Facility, which is the only
attribute at issue in determining whether the Facility qualifies as a QF.
In sum, the majority’s justification for deviating from the plain language of PURPA
is not credible. Recall that not a single word of the Commission’s new 29-word for-
delivery-to-the-utility standard appears in the statute. We are asked to believe that the
Commission’s fidelity to the intent of Congress is best achieved by establishing new tests
supported by elaborately confected arguments and “structural” interpretations of PURPA
when instead the Commission could simply read the unambiguous terms of the statute as
Congress authored it.
III. The Commission’s New For-Delivery-to-the-Utility Standard is Not

Supported by its Regulations or Precedent
I have explained why the new for-delivery-to-the-utility standard is inconsistent

with the statutory language of PURPA. The Commission’s regulations and precedent offer
no better support for its new test than does the statute.
First, the Commission does not cite to anything in its regulations to support the
conclusion that power production capacity means the ability to deliver energy to the
purchasing utility. This is not surprising because the only regulation addressing how to
determine power production capacity is Form 556, and a Form 556 calculation leads to the
conclusion that the Facility has a power production capacity well in excess of the 80 MW
threshold, as we have seen.
The Commission does cite to its precedent, but the cited precedent likewise fails to
support its new for-delivery-to-the-utility standard. The Commission concedes that
36
A simpler, and more logical, explanation is that Congress wanted to limit the
benefits PURPA provided to renewable resources and chose an 80 MW power production
capacity as an objective standard for the cut-off.
37
Order, 174 FERC ¶ 61,199 at P 23.
Docket No. QF17-454-006 - 10 -
“Broadview’s facility is distinct in certain respects from the facilities that the Commission
considered when it first established and initially applied the “send out” test.”38 That is an
understatement. In fact, Broadview’s Facility is distinct from every facility in every case
in which the Commission has ever addressed the question of how power production
capacity should be calculated. In none of the cases cited in the Order did the Commission
hold that a facility capable of continuously producing more than 80 MW of power
nevertheless satisfies PURPA’s 80 MW power production capacity limit because a
facility’s ability to deliver energy to a utility is a limiting factor defining the power
production capacity of the facility.
The Commission cites to the Occidental decision,39 which is the leading send-out
case and was the first case in which the Commission was required to define the “power
production facility” of a QF. That case’s definition is as follows:
The Commission will consider the “power production capacity” of a facility

to be the maximum net output of the facility which can be safely and reliably
achieved under the most favorable operating conditions likely to occur over a
period of several years. The net output of the facility is its send out after
subtraction of the power used to operate auxiliary equipment in the facility
necessary for power generation (such as pumps, blowers, fuel preparation
machinery, and exciters) and for other essential electricity uses in the facility
from the gross generator output.40
As this definition makes clear, “send out” means nothing more than that the power
production capacity of a facility is not the gross power production capacity of the facility,
but rather is its net power production capacity after “essential electricity uses” in the
facility are subtracted. The question of the facility’s ability to deliver the power produced
by the facility to the purchasing utility was not even mentioned, much less factored into
Commission’s analysis. Nothing in Occidental suggests that the Commission would have
found that a facility with a 160 MW DC energy gross power production capacity has only
an 80 MW net power production capacity merely because only 80 MW of the 160 MW of
DC energy produced could be converted to AC for delivery.
The Commission cites to part of the discussion in Occidental explaining that it

would not determine a facility’s power production capacity based on the maximum
capability of any particular component of the generating equipment, but instead would look
38
Id. P 32.
39
Occidental Geothermal, Inc., 17 FERC ¶ 61,231 (1981) (Occidental).
40
Id. at 61,445.
Docket No. QF17-454-006 - 11 -
to the overall capability of the facility.41 This is true, but it also is true that in Occidental
the Commission focused on the components of the facility’s “generating equipment”42 and
did not suggest that a limitation on delivery capability was relevant. And the Commission
did not establish a definition of power production capacity that bears the slightest
resemblance to the new for-delivery-to-the-utility standard but instead, as noted above,
used a definition based on maximum output less station use.
The Commission also asserts that “[b]ecause the Commission explicitly focused on
the overall facility capabilities, Occidental supports the proposition that power production
capacity means output in a form useful to an interconnected entity.”43 This is a non
sequitur. The “overall facility capabilities” the Commission focused on in Occidental
involved a facility consisting of different pieces of standard commercially available power
generation equipment that were somewhat mismatched in their power production
capabilities. Nothing in Occidental even suggests that the Commission considered that the
power production capacity of a facility could be limited by deliberately installing only
enough inverters to convert half of the power produced by a facility from DC into AC.
Next, the Commission cites to the Malacha decision.44 This was the first case that
applied the definition of net power production capacity in Occidental to a facility that also
owned interconnection facilities. The Commission asserts that this case stands for the
proposition “that ‘power production capacity’ is determined from the whole facility’s net
output after taking into account all components necessary to produce electric energy in a
form useful to an interconnected entity.”45 That is a rather broad reading of this decision,
in which the Commission found that:
The Occidental decision . . . suggests that: 1) interconnection equipment

could be included as “auxiliary equipment in the facility necessary for
power generation;” and 2) the resistive and reactive losses associated
with interconnection equipment’s operation could be considered as
subsumed in the QF’s “other essential electricity uses.”46
41
Order, 174 FERC ¶ 61,199 at P 27.
42
Occidental, 17 FERC ¶ 61,231 at 61,445.
43
Order, 174 FERC ¶ 61,199 at P 25.
44
Malacha Power Project, Inc., 41 FERC ¶ 61,350 (1987) (Malacha).
45
Order, 174 FERC ¶ 61,199 at P 29.
46
Malacha, 41 FERC ¶ 61,350 at 61,445 (emphasis added).
Docket No. QF17-454-006 - 12 -
Read in this context, it is clear that Malacha simply expands the Occidental
definition of “other essential electricity uses” that are to be subtracted from the maximum
output of the facility. In addition to station power, it also is necessary to subtract out the
losses incurred in transmitting electricity from the generation equipment to the point of
interconnection with the purchasing utility. Malacha did not use the term “electric energy
in a form useful to an interconnected entity.” Nor did it address the question of whether a
limited ability to deliver could itself be deemed a limitation on the power production
capacity of the facility. Nothing in the Malacha decision supports the Commission’s
position that less than all of a facility’s gross power production capacity should be counted
if only a portion of it can be converted to AC.
I recognize that, in our September 2020 Order, we held that we would no longer
apply the send-out test established in Occidental and subsequent cases.47 Upon further
consideration, I now conclude that this holding went too far. Rather, I believe we should
have upheld those cases, but clarified that they mean what they say, i.e. that it is
appropriate to reduce the gross maximum production capability of a facility by station
power and line losses, consistent with the calculation methodology set forth in Form 556.
But I do not believe that the send-out cases hold, and should not be read to hold, that a
facility whose generation equipment is capable of generating more than 80 MW can satisfy
the statutory 80 MW limit simply because the facility is configured so as to convert no
more than 80 MW of the output into AC energy for delivery. Any such reading of those
cases would stretch the Commission’s precedent beyond its breaking point.
When considering our precedent, it is important to keep in mind that none of it was
issued in a vacuum. Instead, the Commission’s rulings were governed by the statutory
provision that limits the power production capacity of small power production facilities to
80 MW. It is clear that the Commission was aware of this standard when it issued its prior
orders because all of them are couched in terms of what sources of power consumption
could be subtracted from the “maximum output” of the generation equipment, as permitted
in Occidental. None of these cases suggest that the power production capacity of a
facility’s power generation equipment could be limited by a facility’s ability to deliver
power to the interconnection, which is not surprising because delivery capability is not
mentioned in the statute. I disagree with the Commission that Broadview’s Application
presents “new facts” that obligate us to expand our precedent,48 given that solar panels and
inverters have been around for a long time. But even if the facts of Broadview’s
Application were new, we cannot extend our past precedent beyond our statutory authority,
no matter how logical the Commission might think such extension would be.
47
September 2020 Order, 172 FERC ¶ 61,194 at P 23.
48
Order at P 27, n.85.
Docket No. QF17-454-006 - 13 -
IV. Broadview’s Facility is Capable of Delivering More than 80 MW of the

Energy Produced by the Facility to the Purchasing Utility
Finally, Broadview does not qualify as a QF even under the Commission’s new test.
It is not correct that the Facility’s net output to the electric utility is only 80 MW, even
when taking into account all components necessary to produce electric energy in a form
useful to an interconnected utility. Broadview does not discharge the surplus electricity
into the ground or the air. Instead, “when there is more dc power available from the solar
array than can converted to ac power by the inverters, that power is stored in the [battery
storage system].”49 The battery storage system is capable of storing up to 200 MWh of
power.50 Later, the electricity stored in the battery storage system is discharged, converted
by inverters, and delivered to the purchasing utility.51 Therefore, the Facility is capable of
delivering the entire 160 MWh generated by the solar panels to the purchasing utility. The
Commission does not contest this fact, acknowledging that Broadview’s configuration
allows it to deliver more power over time to NorthWestern than a facility with only 80 MW
of solar panels.52
The Commission attempts to discount the significance of its concession by noting

that the Facility can deliver only 80 MW of the 160 MW generated by the solar panels to
the utility at any particular time.53 This fact would be relevant if the Commission were
correct that the provisions of PURPA governing interconnection and avoided cost sales
provided that such rights were not conferred on small power production facilities with
power production capacities in excess of 80 MW. But as I have pointed out, PURPA
contains no limit on the size of QF interconnections or the amount of energy that can be
sold to utilities. And so we are left with a strained interpretation of the statutory language
which allows facilities to produce and deliver to utilities 160 MW of electricity and still
satisfy the statutory 80 MW power production capacity limit for small power production
facilities. That interpretation finds no support in the statutory language, the Commission’s
regulations, or applicable precedent.
It is unclear, but it appears that the Commission may also justify its statutory
interpretation on the grounds that, by finding the Facility is a QF, it is doing nothing more
49
Application at 7.
50
Id. at 2.
51
Id. at 7.
52
Order, 174 FERC ¶ 61,199 at P 32.
53
Id.
Docket No. QF17-454-006 - 14 -
than enabling an increase in the capacity factor of the Facility.54 If so, that justification is
misplaced. The Facility’s capacity factor is completely unaffected by the Commission’s
ruling, but rather is determined by the amount of sunlight that reaches the Facility’s solar
panels and the proportion of time the solar panels are out of service. The purported
“increase” in capacity factor is entirely illusory and is achieved only by pretending that the
Facility can produce no more than 80 MW, when in fact it is capable of producing and
delivering 160 MW. The only real change effectuated by today’s Order is that some of the
160 MW of power produced by the Facility is delivered at a different time than if all 160
MW were delivered as it was produced.
For these reasons, I respectfully dissent.
________________________
James P. Danly
Commissioner
54
Id.
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Broadview Solar, LLC, 172 FERC 61,194 (2020) (September 2020 Order)

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Broadview Solar, LLC, 172 FERC 61,194 (2020) (September 2020 Order)

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What is the Commission's new test for QF status?

What is the Commission's new test for QF status?

Document Accession #: 20210319-3069 Filed Date: 03/19/2021

174 FERC ¶ 61,199

Before Commissioners: Richard Glick, Chairman;

Broadview Solar, LLC Docket No. QF17-454-006

ORDER ADDRESSING ARGUMENTS RAISED ON REHEARING AND

(Issued March 19, 2021)

On September 1, 2020, the Commission issued an order1 denying Broadview Solar,

Docket No. QF17-454-006 -2-

Pursuant to Allegheny Defense Project v. FERC,6 the rehearing requests filed in

Docket No. QF17-454-006 -3-

Broadview is developing a combined solar PV and battery storage facility in

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Docket No. QF17-454-006 - 10 -

On rehearing, Broadview argues that the Commission failed to provide a principled

Docket No. QF17-454-006 - 11 -

1. PURPA and the Commission’s Send-Out Analysis

Under PURPA, a “qualifying small power production facility” means a facility:

[that] produces electric energy solely by the use, as a primary

[that] has a power production capacity which, together with any

that the Commission determines, by rule, meets such

Specifically, Congress directed the Commission to prescribe “such rules as it

Docket No. QF17-454-006 - 12 -

Docket No. QF17-454-006 - 13 -

Although Commissioner Danly seeks to draw a bright line distinction between

Docket No. QF17-454-006 - 14 -

Commissioner Danly recognizes, the term “capacity” is generally equated to

Docket No. QF17-454-006 - 15 -

The Commission’s early proceedings applying its PURPA regulations were

Docket No. QF17-454-006 - 16 -

The Commission reinforced that reasoning in Malacha Power Project, Inc.,81 in

The Commission codified Malacha in a 1995 rulemaking. There, the Commission

Docket No. QF17-454-006 - 17 -

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Likewise, consistent with Malacha, we further find that it is reasonable to measure

2. The Certification Filing

Upon further consideration of the arguments on rehearing, we conclude that

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In 2010, the Commission introduced a more specific reporting requirement for

Docket No. QF17-454-006 - 22 -

electronically process QF applications, dramatically reducing required staff resources and

Docket No. QF17-454-006 - 23 -

We conclude that Broadview has satisfied the Commission’s certification

Docket No. QF17-454-006 - 24 -

3. Commission Certification of Broadview’s Facility as a QF

In light of our determination above, we dismiss, as moot, Broadview’s arguments

Docket No. QF17-454-006 - 25 -

The Commission orders: