18 C.F.R. § 292.302

Availability of electric utility system cost data

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(a) Applicability. (1) Except as provided in paragraph (a)(2) of this section, paragraph (b) applies to each electric utility, in any calendar year, if the total sales of electric energy by such utility for purposes other than resale exceeded 500 million kilowatt-hours during any calendar year beginning after December 31, 1975, and before the immediately preceding calendar year.

(2) Each utility having total sales of electric energy for purposes other than resale of less than one billion kilowatt-hours during any calendar year beginning after December 31, 1975, and before the immediately preceding year, shall not be subject to the provisions of this section until June 30, 1982.

(b) General rule. To make available data from which avoided costs may be derived, not later than November 1, 1980, June 30, 1982, and not less often than every two years thereafter, each regulated electric utility described in paragraph (a) of this section shall provide to its State regulatory authority, and shall maintain for public inspection, and each nonregulated electric utility described in paragraph (a) of this section shall maintain for public inspection, the following data:

(1) The estimated avoided cost on the electric utility's system, solely with respect to the energy component, for various levels of purchases from qualifying facilities. Such levels of purchases shall be stated in blocks of not more than 100 megawatts for systems with peak demand of 1000 megawatts or more, and in blocks equivalent to not more than 10 percent of the system peak demand for systems of less than 1000 megawatts. The avoided costs shall be stated on a cents per kilowatt-hour basis, during daily and seasonal peak and off-peak periods, by year, for the current calendar year and each of the next 5 years;

(2) The electric utility's plan for the addition of capacity by amount and type, for purchases of firm energy and capacity, and for capacity retirements for each year during the succeeding 10 years; and

(3) The estimated capacity costs at completion of the planned capacity additions and planned capacity firm purchases, on the basis of dollars per kilowatt, and the associated energy costs of each unit, expressed in cents per kilowatt hour. These costs shall be expressed in terms of individual generating units and of individual planned firm purchases.

(c) Special rule for small electric utilities. (1) Each electric utility (other than any electric utility to which paragraph (b) of this section applies) shall, upon request:

(i) Provide comparable data to that required under paragraph (b) of this section to enable qualifying facilities to estimate the electric utility's avoided costs for periods described in paragraph (b) of this section; or

(ii) With regard to an electric utility which is legally obligated to obtain all its requirements for electric energy and capacity from another electric utility, provide the data of its supplying utility and the rates at which it currently purchases such energy and capacity.

(2) If any such electric utility fails to provide such information on request, the qualifying facility may apply to the State regulatory authority (which has ratemaking authority over the electric utility) or the Commission for an order requiring that the information be provided.

(d) Substitution of alternative method. (1) After public notice in the area served by the electric utility, and after opportunity for public comment, any State regulatory authority may require (with respect to any electric utility over which it has ratemaking authority), or any non-regulated electric utility may provide, data different than those which are otherwise required by this section if it determines that avoided costs can be derived from such data.

(2) Any State regulatory authority (with respect to any electric utility over which it has ratemaking authority) or nonregulated utility which requires such different data shall notify the Commission within 30 days of making such determination.

(e) State Review. (1) Any data submitted by an electric utility under this section shall be subject to review by the State regulatory authority which has ratemaking authority over such electric utility.

(2) In any such review, the electric utility has the burden of coming forward with justification for its data.

[45 FR 12234, Feb. 25, 1980; 45 FR 24126, Apr. 9, 1980]

Notes of Decisions

Cited in 11 cases (1 in the last 5 years), 1986–2022 · leading case: Winding Creek Solar LLC v. Carla Peterman, 932 F.3d 861 (9th Cir. 2019).

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Winding Creek Solar LLC v. Carla Peterman, 932 F.3d 861 (9th Cir. 2019). “See 18 C.F.R. §§ 292.302 (b), 292.304(e). But the Re-MAT price, which is arbitrarily adjusted every two months according to the QFs’ willingness to supply energy at the pre-defined price, strays too far afield from a utility’s but-for costs to satisfy PURPA.”

Smith Cogeneration Mgmt., Inc. v. Corp. Comm'n, 863 P.2d 1227 (Okla. 1993). · cites it 2× “Both parties presented testimony unveiling concerns about the appropriate use of real electric prices, air conditioning efficiencies, reserve margin requirements, weather normalization, interrupti-ble contacts, growth assumptions and the after-the-fact redispatch methodology…”

Barasch v. Pennsylvania Pub. Util. Comm'n, 546 A.2d 1296 (Pa. Commw. Ct. 1988). · cites it 2× “Because no large utility is exempt from the FERC regulation that requires filing of detailed utility cost data and projections with the state regulatory authority, 18 C.F.R. §292.302 , a QF negotiating an agreement - with a utility knows what rate it could compel if the utility…”

Swecker v. Midland Power Coop., 253 F. Supp. 3d 274 (D.D.C. 2017). “18 C.F.R. § 292.302 . FERC may commence an enforcement action “against any State regulatory authority or nonregulated electric utility” to ensure compliance with PURPA and the rules promulgated thereunder.”

Apline Energy, LLC v. Matanuska Elec. Ass'n, 369 P.3d 245 (Alaska 2016). · cites it 3× “FERC added 18 C.F.R. § 292.302 (e) to the rule at the end of the rulemaking process, in response to comments that "the proposed rule did not address the issue of validation of the data to be provided.”

Pennsylvania Elec. Co. v. Pennsylvania Pub. Util. Comm'n, 648 A.2d 63 (Pa. Commw. Ct. 1994). · cites it 2× “See 18 C.F.R. § 292.302 (b)(2) which requires a utility to file information indicating its plan for capacity additions and retirements for each year of the succeeding ten years; and 52 Pa.”

Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986). “(except the reporting requirement contained in 18 C.F.R. § 292.302 ). 16 U.S.C. § 824a-3(f); 18 C.”

Lehigh Valley Power Comm. v. Pennsylvania Pub. Util. Comm'n, 563 A.2d 557 (Pa. Commw. Ct. 1989). “18 C.F.R. § 292.302 (b).. FERC was acutely aware that the financing requirements of proposed QFs might require reliable, levelized payment schedules.”

Niagara Mohawk Power Corp. v. Pub. Serv. Comm'n, 137 Misc. 2d 235 (N.Y. Sup. Ct. 1987). “In addition, PURPA does not require a utility to pay more than "avoided costs” for purchased electricity (18 CFR 292.302). The Federal Energy Regulatory Commission’s (FERC) regulations recognize that the calculation of avoided costs is technically complicated and leaves to State…”

Swecker v. Fed. Energy Regulatory Comm'n (D.D.C. 2022). “See 18 C.F.R. § 292.302 . FERC may commence an enforcement action against "any State regulatory authority or nonregulated electric utility" to ensure compliance with PURPA and the rules promulgated thereunder.”

Water Power Co. v. Pacificorp, 781 P.2d 860 (Or. Ct. App. 1989). “18 CFR § 292.302 (b); ORS 758.525(1) and (2).”

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