`
`UNITED STATES OF AMERICA
`BEFORE THE
`FEDERAL ENERGY REGULATORY COMMISSION
`
`)
`)
`)
`
`Docket No. ER13-____-000
`
`
`
`
`DTE Stockton, LLC
`
`
`
`
`
`APPLICATION
`FOR ORDER AUTHORIZING
`MARKET-BASED RATES AND REQUEST FOR CERTAIN
`WAIVERS AND BLANKET AUTHORIZATIONS, INCLUDING A REQUEST FOR
`BLANKET APPROVAL UNDER 18 C.F.R. PART 34 OF ALL FUTURE ISSUANCES OF
`SECURITIES AND ASSUMPTIONS OF LIABILITY
`
`
`
`
`
`
`
`
`
`
`
`
`
`Kyra Fleming
`DTE Energy Services, Inc.
`414 South Main Street
`Suite 600
`Ann Arbor MI 48104
`Tel: (734) 302 4898
`flemingk@dteenergy.com
`
`Jane E. Rueger
`Yolande J. Hanlan
`White & Case LLP
`701 Thirteenth Street, NW
`Washington, DC 20005
`Tel: (202) 626-6534
`jrueger@whitecase.com
`
`Counsel to DTE Stockton, LLC
`
`
`
`
`
`
`
`March 22, 2013
`
`
`
`
`

`

`
`
`
`
`DTE Stockton, LLC
`
`
`
`
`UNITED STATES OF AMERICA
`BEFORE THE
`FEDERAL ENERGY REGULATORY COMMISSION
`
`
`)
`)
`)
`
`Docket No. ER13-____-000
`
`
`
`
`APPLICATION
`FOR ORDER AUTHORIZING
`MARKET-BASED RATES AND REQUEST FOR CERTAIN
`WAIVERS AND BLANKET AUTHORIZATIONS, INCLUDING A REQUEST FOR
`BLANKET APPROVAL UNDER 18 C.F.R. PART 34 OF ALL FUTURE ISSUANCES OF
`SECURITIES AND ASSUMPTIONS OF LIABILITY
`
`
`
`Pursuant to Section 205 of the Federal Power Act (“FPA”),1 Rule 35.12 of the Federal
`
`Energy Regulatory Commission’s (“FERC” or “Commission”) Rules of Practice and Procedure,2
`
`and Rule 205 of the Commission’s regulations,3 DTE Stockton, LLC (“Applicant”) hereby
`
`requests that the Commission: (i) accept for filing the proposed market-based rate tariff
`
`contained in Attachment A hereto and submitted herewith in RTF format with metadata attached
`
`through the Commission’s eTariff system (the “Tariff”); (ii) authorize Applicant to sell energy,
`
`capacity, and certain ancillary services at market-based rates; (iii) waive certain of the
`
`Commission’s regulations as described herein; (iv) grant certain pre-approvals and blanket
`
`authorizations as have been granted by the Commission to other sellers authorized to sell at
`
`market-based rates; (v) designate Applicant a Category 1 seller in all regions; and (vi) make
`
`
`1
`16 U.S.C. § 824d (2010).
`2
`18 C.F.R. § 35.12 (2012).
`3
`Id. § 385.205.
`
`
`
`1
`
`

`

`
`
`Applicant’s Tariff effective April 17, 2013. In support of this Application, Applicant states as
`
`follows:
`
`I.
`
`PROCEDURAL MATTERS
`
`Communications regarding this Application should be addressed to the following
`
`persons:
`
`Jane E. Rueger*
`Yolande J. Hanlan
`WHITE & CASE LLP
`701 Thirteenth Street, NW
`Washington, DC 20005
`Tel: (202) 626-6534
`jrueger@whitecase.com
`
`
`Kyra Fleming
`DTE Energy Services, Inc.
`414 South Main Street
`Suite 600
`Ann Arbor MI 48104
`Tel: (734) 302 4898
`flemingk@dteenergy.com
`
`
`
`* Designated for service pursuant to Section 385.2010 of the Commission’s regulations.4
`
`II.
`
`LIST OF DOCUMENTS SUBMITTED WITH THIS APPLICATION
`
`
`
`Applicant includes the following attachments with this Application:
`
` Proposed DTE Stockton, LLC, FERC Electric Tariff (Attachment A and
`filed concurrently in “RTF” format);
`
` Appendices required by Order No. 6975 listing (1) all affiliates that have
`market-based rate authority and identifying all generation assets owned or
`controlled by the corporate family by balancing authority area and
`geographic region; and (2) all electric transmission and natural gas
`intrastate pipelines and/or gas storage facilities owned or controlled by the
`corporate family (Attachment B);
`
` Horizontal market power indicative screens and related source documents
`(Attachment C); and
`
`
`4
`Id. § 385.2010.
`5
`Market-Based Rates for Wholesale Sales of Electric Energy, Capacity and Ancillary Services by Public
`Utilities, Order No. 697, FERC Stats. & Regs. ¶ 31,252, clarified, 121 FERC ¶ 61,260 (2007), order on reh’g, Order
`No. 697-A, FERC Stats. & Regs. ¶ 31,268 at P 181 n.258 (2008), clarified, 124 FERC ¶ 61,055 (2008), order on
`reh’g, Order No. 697-B, FERC Stats. & Regs. ¶ 31,285 (2008), order on reh’g, Order No. 697-C, FERC Stats. &
`Regs. ¶ 31,291 (2009), order on reh’g, Order No. 697-D, FERC Stats. & Regs. ¶ 31,305 (2010) 2010), aff’d sub
`nom. Mont. Consumer Counsel v. FERC, 659 F.3d 910 (9th Cir. 2011).
`
`
`
`2
`
`

`

`
`
` Descriptions of energy affiliates of Applicant that operate in other regions
`than the Southwest region (Attachment D).
`
`III. DESCRIPTION OF APPLICANT AND ITS AFFILIATES
`
`
`
`Applicant, a Delaware limited liability company, will own and operate a biomass-fired
`
`facility currently under development in Stockton, California (“Facility”). The Facility is located
`
`in the California Independent System Operator Corporation (“CAISO”) balancing authority area
`
`(“BAA”). The Facility is expected to be in-service in July 2013.6 Once complete, the Facility
`
`will have a capacity of 58.82 MW (gross nameplate).7 All output from the Facility will be sold
`
`to Pacific Gas and Electric Company (“PG&E”) pursuant to a long-term power purchase
`
`agreement (“PPA”).
`
`
`
`Applicant is an indirect, wholly owned subsidiary of DTE Energy Company (“DTE
`
`Energy”), a public utility holding company. Applicant is wholly owned by DTE Woodland,
`
`LLC which, in turn, is a wholly owned subsidiary of DTE Energy Services, Inc. (“DTEES”).
`
`DTEES is wholly owned by DTE Energy Resources, LLC which, in turn, is wholly owned by
`
`DTE Energy.
`
`The CAISO BAA is the relevant geographic market for purposes of FERC’s market
`
`power analyses, since the Facility is located in the CAISO BAA.8 Energy affiliates of Applicant
`
`that are located and/or operate outside of the CAISO BAA are described in Attachment D.
`
`Applicant is affiliated with the following entities that own or control generation facilities in the
`
`CAISO BAA:
`
`
`6
`Applicant filed a self-certification for the Facility as a Qualifying Facility (“QF”) on March 1, 2013 in
`Docket No. QF13-322.
`7
`The Facility’s maximum delivery to the grid is expected to be 52.94 MW, net of station power and losses.
`8
`Order No. 697 at P 235.
`
`
`
`3
`
`

`

`
`
`Mt. Poso Cogeneration Company, LLC (“Mt. Poso”) is 50 percent owned by DTE Mt.
`
`Poso LLC, a subsidiary of DTE Energy, and 50 percent owned by Macpherson Green Power
`
`Company, LLC. Mt. Poso owns a 53.8 MW cogeneration facility in Bakersfield, California,
`
`within the CAISO BAA that was converted from a coal-fired to a renewable woody biomass-
`
`fired facility and has entered into a long-term PPA with PG&E to sell all of the output from the
`
`facility. Mt. Poso self-certified the facility as a QF9 and has been granted market-based rate
`
`authority by the Commission.10
`
`DTE Woodland, LLC, an indirect, wholly owned subisidiary of DTE Energy, owns both
`
`the general partnership interest and the limited partner interests in Woodland Biomass Power
`
`Ltd. (“Woodland Biomass”). CIF Woodland, Inc. holds the Class A limited partner interest in
`
`Woodland Biomass. Woodland Biomass owns and operates a 29 MW biomass-facility in
`
`Woodland, California, within the CAISO BAA that sells all of its output under a long-term PPA
`
`with PG&E that expires on February 20, 2015. Woodland Biomass’s facility is certified as a
`
`QF,11 and Woodland Biomass has been granted market-based rate authority by the
`
`Commission.12
`
`In addition, DTE Biomass Energy, Inc. (“DTE Biomass”), an indirect, wholly owned
`
`subsidiary of DTE Energy, holds interests in Kiefer Landfill Generating II, LLC (“Kiefer II”)
`
`that owns a 6.1 MW landfill gas facility in Slough House, California. Keifer II is fully
`
`
`9
`Mt. Poso Cogeneration Co., Docket No. QF85-324-008, Notice of Self-Recertification of Qualifying
`Facility (filed Mar. 26, 2012, supplemented Apr. 5, 2012).
`10
`Mt. Poso Cogeneration Co., Docket No. ER11-4626-000 (unpublished delegated letter order issued Oct.
`31, 2011).
`11
`Woodland Biomass Power, Ltd., 113 FERC ¶ 61,090 (2005). Most recently, Woodland Biomass filed a
`notice of self-recertification of QF status on February 27, 2007. Woodland Biomass Power, Ltd., Docket No. QF88-
`61-005 (filed Feb. 27, 2007).
`12
`Woodland Biomass Power, Ltd., Docket No. ER09-1061-000 (unpublished delegated letter order issued
`June 24, 2009).
`
`
`
`4
`
`

`

`
`
`committed to the Sacramento Municipal Utility District (“SMUD”) through March 2016.13 The
`
`facility has been self-certified as a QF.14
`
`Sunshine Gas Producers, LLC (“Sunshine Gas”), an indirect, 50 percent owned
`
`subsidiary of DTE Energy, owns and is developing a landfill gas generating facility in Sylmar,
`
`California, with an expected capacity of 23.5 MW (gross nameplate). The facility is not
`
`expected to be operational until December 2013, but Applicant describes Sunshine Gas here for
`
`purposes of full disclosure and includes it in its market analyses to be conservative.
`
`In sum, DTE Energy indirectly owns or controls 112.40 MW of generating capacity in
`
`the CAISO market (or 171.22 MW, when the Facility is included). DTE Energy does not own or
`
`control any generation in markets that are first-tier to CAISO.15
`
`IV.
`
`SHOWING IN SUPPORT OF MARKET-BASED RATE AUTHORIZATION
`
`A.
`
`Legal Standard
`
`Section 205 of the FPA requires that all rates and charges made or received by any public
`
`utility for the sale of electric energy subject to the Commission’s jurisdiction be “just and
`
`reasonable” and not unduly discriminatory or preferential.16 Under this standard, the
`
`Commission allows power sales at market-based rates if the seller and its affiliates can
`
`demonstrate that they do not have, or have adequately mitigated, horizontal (generation) market
`
`power and vertical market power, which the Commission defined in Order No. 697 to include
`
`
`13
`While SMUD is not within the CAISO control area, SMUD is completely physically surrounded by
`CAISO, and the proxy inclusion in the CAISO market for the purposes of this disclosure is a reasonable and
`appropriate simplification.
`14
`Keifer Landfill Generating II, LLC, Docket No. QF06-171-001, Notice of Self Re-Certification of
`Qualifying Facility Status (filed May 2, 2008).
`15
`The first-tier markets to CAISO were determined with reference to CAISO’s most recent FERC Form No.
`714 for year ending December 31, 2011.
`16
`16 U.S.C. § 824d.
`
`
`
`5
`
`

`

`
`
`both transmission market power and the ability to erect barriers to entry in the relevant markets.17
`
`As demonstrated below, Applicant satisfies all of the Commission’s requirements for market-
`
`based rate authority and should be permitted to make wholesale sales of electric energy and
`
`capacity at market-based rates under the attached proposed Tariff.
`
`B.
`
`Applicant and Its Affiliates Do Not Possess Horizontal Market Power
`
`Neither Applicant nor its affiliates possess horizontal (generation) market power. In
`
`Order No. 697, the Commission retained two “indicative” screens for assessing generation
`
`market power in the relevant geographic markets: a pivotal supplier screen and a market share
`
`screen.18 The pivotal supplier screen “measures the ability of a firm to dominate the market at
`
`peak periods.”19 If demand in a specific market can be met without at least some power from a
`
`supplier, that supplier passes the pivotal supplier screen.20 The market share screen addresses on
`
`a seasonal basis “whether a seller has a dominant position in the market based on the number of
`
`megawatts of uncommitted capacity owned or controlled by the seller as compared to the
`
`uncommitted capacity of the entire relevant market.”21 If the applicant has less than a 20 percent
`
`market share in all four seasons, it passes the market share screen.22 If the seller passes both
`
`indicative screens, there is a rebuttable presumption that the seller does not possess market
`
`power in generation and no further analysis is required.
`
`
`17
`Order No. 697 at P 399.
`18
`Id. at P 62.
`19
`Id. at P 65; see also AEP Power Mktg., Inc., 107 FERC ¶ 61,018 at P 71 (“AEP Power Marketing”), order
`on reh’g, 108 FERC ¶ 61,026 (2004).
`20
`AEP Power Marketing at P 72.
`21
`Order No. 697 at P 43.
`22
`Id. at PP 44, 89.
`
`
`
`6
`
`

`

`
`
`As noted above, the Facility is located in the CAISO BAA. Therefore, Applicant’s two
`
`indicative screens contained in Attachment C hereto analyze the position of Applicant and its
`
`affiliates in the relevant CAISO geographic market.23 In performing the screens, Applicant
`
`relied on data for the CAISO market that was filed by GenOn Marsh Landing, LLC on August
`
`29, 2012, and accepted by the Commission on October 24, 2012.24 Applicant’s analyses
`
`conservatively attribute all 58.82 MW of the Facility to Applicant and its affiliates (in addition to
`
`112.40 MW of affiliated generating capacity located in the CAISO BAA) even though much of
`
`this generation, including Applicant’s Facility, has been committed to third parties under long-
`
`term PPAs.
`
`As demonstrated in the attached analyses, Applicant and its affiliates pass both the
`
`pivotal supplier and market share screens in the CAISO market. With respect to the pivotal
`
`supplier screen, Applicant’s and its affiliates’ uncommitted capacity in CAISO is conservatively
`
`171.22 MW, while the market net uncommitted supply is 14,549.32 MW. Because Applicant’s
`
`and its affiliates’ uncommitted capacity is significantly less than the market net uncommitted
`
`supply, Applicant passes the pivotal supplier screen. With respect to the market share screen,
`
`Applicant’s and its affiliates’ seasonal capacity in CAISO is conservatively 171.22 MW in all
`
`seasons, and their market share ranges from 0.69 percent (Spring) to about 0.75 percent
`
`
`23
`The Commission has held that “sellers located in and members of [an] RTO/ISO may consider the
`geographic region under the control of the RTO/ISO as the default relevant geographic market for purposes of
`completing their horizontal analyses.” Id. at P 235.
`24
`GenOn Marsh Landing, LLC, Docket No. ER12-2545-000, Application for Market-Based Rate
`Authorization Under Section 205 of the Federal Power Act and Request for Waivers and Blanket Approvals,
`Affidavit of Julie R. Solomon, Exhibit JRS-3 (filed Aug. 29, 2012); GenOn Marsh Landing, LLC, Docket No.
`ER12-2545-000 (unpublished, delegated letter order issued Oct. 24, 2012). The Commission allows an applicant to
`rely on data submitted by other sellers and accepted for filing by the Commission in performing the indicative
`screens. AEP Power Marketing, 107 FERC ¶ 61,018, order on reh’g, 108 FERC ¶ 61,026.
`
`
`
`7
`
`

`

`
`
`(Summer). Because Applicant’s and its affiliates’ market share is well below the 20 percent
`
`threshold in all seasons, Applicant also easily passes the market share screen.
`
`Accordingly, Applicant requests that the Commission find, based on the results of the
`
`attached pivotal supplier and market share screens, that neither Applicant nor its affiliates present
`
`horizontal market power concerns in the CAISO market.
`
`C.
`
`Applicant and Its Affiliates Do Not Possess Vertical Market Power
`
`In evaluating vertical market power, the Commission considers both transmission market
`
`power and the ability of the seller and its affiliates to erect barriers to entry in the relevant
`
`market.25 As explained below, Applicant and its affiliates do not possess vertical market power.
`
`Transmission Market Power
`
`Applicant will not own or control any
`
`transmission facilities other
`
`than
`
`the
`
`interconnection facilities necessary to connect its generating facilities to the grid.26 None of
`
`Applicant’s affiliates own or control transmission facilities in any region other than the limited
`
`interconnection facilities necessary to interconnect their generating facilities to the grid and, in
`
`the Central region, certain limited and discrete facilities for which waiver of FERC’s open access
`
`requirements has been granted.27 Thus, Applicant and its affiliates satisfy the Commission’s
`
`requirements for market-based rates regarding transmission market power.
`
`
`25
`Order No. 697 at P 399.
`26
`The Commission has found that such limited interconnection facilities do not convey transmission market
`power. See, e.g., AES Huntington Beach, LLC, 111 FERC ¶ 61,079 at P 43 (2005); Zond Dev. Corp., 80 FERC ¶
`61,051 at 61,153 (1997).
`27
`On July 20, 2006, the Commission granted DTE Electric Company (f/k/a The Detroit Edison Company)
`(“DTE Electric”) a waiver from the Standards of Conduct, finding that DTE Electric only owns limited and discrete
`transmission facilities that do not form an integrated transmission grid. High Island Offshore System, L.L.C., 116
`FERC ¶ 61,047 (2006). See also The Detroit Edison Co., 119 FERC ¶ 61,017 (2007) (clarifying that DTE Electric
`would not become subject to the Standards of Conduct due to certain proposed interconnections); The Detroit
`Edison Co., 136 FERC ¶ 61,210 (2011) (granting continued waiver of the Commission’s open access requirements
`in light of DTE Electric’s ownership interest in a shared generator tie-line). DTE Electric is further described in
`Attachment D.
`
`
`
`8
`
`

`

`
`
`Barriers to Entry
`
`The Commission also considers whether a company can erect barriers to entry by
`
`competing wholesale power suppliers in the relevant geographic market by exercising control
`
`over “intrastate natural gas transportation; intrastate natural gas storage or distribution facilities;
`
`sites for new generation capacity development; physical coal supply sources and ownership or
`
`control over who may access transportation of coal supplies.”28
`
`While Applicant is affiliated with certain entities that own or control “intrastate natural
`
`gas storage or distribution facilities” and “access [to] transportation of coal supplies” (as
`
`described in Attachment D), none of these facilities are located in the CAISO BAA. Aside from
`
`sites previously reported pursuant to Order No. 697-D, Applicant and its affiliates do not own or
`
`control any sites for generation capacity development other than the sites on which their existing
`
`or retired generation facilities are located.
`
`In Order No. 697, the Commission adopted a
`
`rebuttable presumption that sellers cannot erect barriers to entry
`with regard to the ownership or control of, or affiliation with any
`entity that owns or controls, intrastate natural gas transportation,
`intrastate natural gas storage or distribution facilities; sites for
`generation capacity development; and sources of coal supplies and
`the transportation of coal supplies such as barges and rail cars.29
`
`
`28
`Order No. 697-A at P 176; see also 18 C.F.R. § 35.36(a)(4). The Commission does not consider ownership
`or control of natural gas supply, interstate natural gas transportation (including interstate natural gas storage), oil
`supply or oil transportation in its barriers to entry analysis. Order No. 697 at P 442.
`29
`Id. at P 446.
`
`
`
`9
`
`

`

`
`
`Applicant affirmatively states that it has not erected barriers to entry into the relevant market and
`
`will not erect barriers to entry into the relevant market.30 Thus, Applicant satisfies the
`
`Commission requirements for showing a lack of the ability to erect barriers to entry.
`
`D.
`
`Affiliate Restrictions
`
`The affiliate restrictions govern the relationship between franchised public utilities with
`
`captive customers and their market-regulated power sales affiliates, which include wholesale
`
`power sales by a market-based rate seller to its franchised public utility affiliates, as well as
`
`transactions involving non-power goods and services between the franchised public utility and its
`
`marketing affiliate.31 The Commission discontinued considering affiliate abuse as a separate
`
`“prong” of the market power analysis, instead codifying its affiliate restrictions in its
`
`regulations.32
`
`The only franchised public utility affiliated with Applicant is DTE Electric, which is
`
`located in the Midwest Independent Transmission System Operator footprint. Applicant and its
`
`affiliates will abide by the Commission’s regulations and applicable waivers therefrom.
`
`V.
`
`ANCILLARY SERVICES
`
`Applicant requests authority to sell ancillary services in the markets in which the
`
`Commission has previously authorized sellers to engage in sales of ancillary services at market-
`
`based rates, and Applicant has incorporated the required standard provisions for such sales in its
`
`proposed Tariff. Applicant also seeks authority to make third-party sales of Regulation Service,
`
`Energy Imbalance Service, Spinning Reserves, and Supplemental Reserves at market-based
`
`
`30
`Id. at P 448; 18 C.F.R. § 35.37(e)(4). Applicant further understands its obligations with regard to sites for
`generation development under Order No. 697-C and Order No. 697-D and will abide by its obligations on the
`schedule contained therein.
`31
`18 C.F.R. § 35.39; see also 18 C.F.R. § 35.44.
`32
`Order No. 697 at P 467.
`
`
`
`10
`
`

`

`
`
`rates. Applicant’s proposed Tariff contains the standard applicable tariff provisions regarding
`
`the sales of ancillary services by a third-party supplier pursuant to the Commission’s policy, as
`
`detailed in Order Nos. 697 and 697-A. The proposed Tariff likewise includes the required
`
`restrictions on sales of ancillary services by a third-party supplier.33
`
`VI. REQUEST FOR CATEGORY 1 STATUS
`
`
`
`In Order No. 697, the Commission identified two classes of market-based rate sellers,
`
`Category 1 and Category 2. Category 1 sellers are defined as:
`
`wholesale power marketers and wholesale power producers that
`own or control 500 MW or less of generation in aggregate per
`region; that do not own, operate or control transmission facilities
`other than limited equipment necessary to connect individual
`generating facilities to the transmission grid (or have been granted
`waiver of the requirements of Order No. 888); that are not
`affiliated with anyone that owns, operates or controls transmission
`facilities in the same region as the seller’s generation assets; that
`are not affiliated with a franchised public utility in the same region
`as the seller’s generation assets; and that do not raise other vertical
`market power issues.34
`
`Applicant will be a Category 1 seller in all regions. Applicant does not own any
`
`generation in the Central, Northeast, Northwest, Southwest Power Pool or Southeast regions.
`
`Applicant and its affiliates own or control only 174.42 MW in the Southwest region. Although
`
`Applicant is affiliated with more than 500 MW in the Central region, as reflected in the asset
`
`appendices provided in Attachment B, the Commission has previously found that entities that do
`
`not themselves own or control generation in a region may qualify as Category 1 sellers even if
`
`their affiliates own or control more than 500 MW in that region.35 Applicant understands that if
`
`
`33
`Id. at P 1061.
`34
`Order No. 697 at n.1000.
`35
`See, e.g., Calvert Cliffs Nuclear Power Plant, LLC, et al., Dockets Nos. ER12-656-000, et al. (unpublished
`delegated letter order issued Mar. 13, 2012); Criterion Power Partners, LLC, Docket Nos. ER10-1443-000 and -001
`
`
`
`11
`
`

`

`
`
`it acquires ownership or control of any generation in any region, it must notify the Commission
`
`of such fact and may then be re-designated a Category 2 seller in that region if the sum of it and
`
`its affiliates’ owned or controlled generation in that region exceeds 500 MW.
`
`Furthermore, Applicant does not own, operate or control — and is not affiliated with any
`
`entity that owns, operates or controls — transmission facilities other than the limited equipment
`
`necessary to connect individual generating facilities to the grid and, in the Central region, certain
`
`limited and discrete facilities for which waiver of FERC’s open access requirements has been
`
`granted.36 Applicant is also not affiliated with a franchised public utility in the Southwest region
`
`where Applicant’s Facility will be located and raises no other vertical market power issues.
`
`Therefore Applicant respectfully requests that it also be classified as a Category 1 seller in all
`
`regions, as reflected in Applicant’s proposed Tariff.
`
`VII. REPORTING REQUIREMENTS AND COMPLIANCE WITH COMMISSION REGULATIONS
`
`Applicant’s proposed Tariff includes the language the Commission provided in Order No.
`
`697 requiring Applicant to:
`
`comply with the provisions of 18 C.F.R. Part 35, Subpart H, as
`applicable, and with any conditions the Commission imposes in its
`orders concerning seller’s market-based rate authority, including
`orders in which the Commission authorizes seller to engage in
`affiliate sales under this tariff or otherwise restricts or limits the
`seller’s market-based rate authority.37
`
`Applicant commits to comply with the Commission’s reporting requirements for similarly
`
`situated entities. Pursuant to Commission precedent, Applicant will inform the Commission
`
`promptly of any change in status that would reflect a departure from the facts that the
`
`
`(unpublished delegated letter order issued Aug. 9, 2010); Constellation Mystic Power, LLC, Docket Nos. ER10-
`2281-000 and -001 (unpublished delegated letter order issued Oct. 27, 2010).
`36
`See supra note 27.
`37
`18 C.F.R. § 35.36(a)(2); see also Order No. 697 at P 915.
`
`
`
`12
`
`

`

`
`
`Commission relied upon
`
`in approving market-based pricing
`
`in accordance with
`
`the
`
`Commission’s Order No. 652.38 Applicant further commits to file with the Commission the
`
`Electric Quarterly Reports listing all required jurisdictional contract and wholesale transaction
`
`data for activities as required by Order No. 2001 and any subsequent orders.39 Pursuant to
`
`Section 35.41(c) of the Commission’s regulations, Applicant hereby notifies the Commission
`
`that it will not engage in the reporting of transactions to publishers of electric or natural gas
`
`prices indices.
`
`VIII. WAIVERS, BLANKET APPROVALS, AND AUTHORIZATIONS
`
`Applicant respectfully requests the same waivers and blanket approvals afforded to other
`
`similarly situated entities, including:
`
`1.
`
`2.
`
`3.
`
`4.
`
`waiver of the accounting, reporting, and other requirements of Parts 41, 101, and
`141 of the Commission’s regulations, with the exception of 18 C.F.R. §§ 141.14
`and 141.15;
`
`blanket authorization under Section 204 of the FPA and Part 34 of the
`Commission’s regulations for future issuances of securities and assumptions of
`liability;
`
`waiver of the full filing requirements of subparts B and C of Part 35 of the
`Commission’s regulations, except the transmittal requirements of 18 C.F.R. §§
`35.12(a), 35.13(b), and the notification of succession and cancellation of service
`requirements of 18 C.F.R. §§ 35.15 and 35.16; and
`
`other appropriate waivers and authorizations granted to other similarly situated
`entities that Applicant may have failed to request specifically.
`
`
`38
`Reporting Requirement for Changes in Status for Pubic Utilities with Market-Based Rate Authority, Order
`No. 652, FERC Stats. & Regs. ¶ 31,175, order on reh’g, 111 FERC ¶ 61,413 (2005); 18 C.F.R. § 35.42.
`39
`Revised Public Utility Filing Requirements, Order No. 2001, 67 Fed. Reg. 31,043 (May 8, 2002), FERC
`Stats. & Regs. ¶ 31,127, reh’g denied, Order No. 2001-A, 100 FERC ¶ 61,074, reh’g denied, Order No. 2001-B, 100
`FERC ¶ 61,342, order directing filing, Order No. 2001-C, 101 FERC ¶ 61,314 (2002), order directing filing, Order
`No. 2001-D, 102 FERC ¶ 61,334 (2003).
`
`
`
`13
`
`

`

`
`
`IX.
`
`EFFECTIVE DATE
`
`Pursuant to Section 35.3(a) of the Commission’s regulations, 18 C.F.R. § 35.3(a),
`
`Applicant respectfully requests that the attached Tariff become effective on April 17, 2013.
`
`Applicant requests this effective date in order to ensure that it has market-based rate
`
`authorization in advance of the commencement of test sales from the Facility. Good cause exists
`
`to grant the requested effective date because, as explained herein, Applicant presents no market
`
`power concerns.
`
`X.
`
`CONCLUSION
`
`WHEREFORE, Applicant requests that the Commission issue an order accepting for
`
`filing its proposed Tariff effective April 17, 2013. In addition, as described herein, Applicant
`
`requests that the Commission: (i) accept for filing the Tariff contained in Attachment A; (ii)
`
`authorize Applicant to sell energy, capacity, and certain ancillary services at market-based rates;
`
`(iii) waive certain of the Commission’s regulations as described herein; (iv) grant certain pre-
`
`approvals and blanket authorizations as have been granted by the Commission to other sellers
`
`authorized to sell at market-based rates; and (v) designate Applicant a Category 1 seller in all
`
`regions. Applicant further requests that the Commission specify in the order accepting its Tariff
`
`for filing that the waivers and blanket approvals requested supra are granted and are made
`
`
`
`14
`
`

`

`
`
`effective upon effectiveness of the Tariff.
`
`
`
`Dated: March 22, 2013
`
`
`
`
`
`
`
`Respectfully submitted,
`
` /s/ Jane E. Rueger
`Jane E. Rueger
`Yolande J. Hanlan
`WHITE & CASE LLP
`701 Thirteenth Street, NW
`Washington, DC 20005
`(202) 626-6534
`jrueger@whitecase.com
`
`Counsel for DTE Stockton, LLC
`
`
`
`15
`
`

`

`ATTACHMENT A
`
`Proposed DTE Stockton, LLC FERC Electric Tariff
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`
`
`
`I.
`
`
`
`
`II.
`
`
`
`III.
`
`
`
`IV.
`
`
`V.
`
`VI.
`
`FERC Electric Tariff, Volume No. 1
`Market Based Rate Tariff
`
`Availability
`
`Seller makes electric energy, capacity, and ancillary services available under this tariff to
`any purchaser with whom Seller has contracted, except as prohibited below.
`
`Rates
`
`All sales shall be made at rates established by agreement between the purchaser and
`Seller.
`
`Other Terms and Conditions
`
`All other terms and conditions of sales shall be established by agreement between the
`purchaser and Seller.
`
`Seller Category
`
`Seller is a Category 1 Seller in the Central, Northeast, Northwest, Southeast, Southwest
`and Southwest Power Pool regions, as those Categories are defined in 18 C.F.R. §
`35.36(a).
`
`Compliance with Commission Regulations
`
`Seller shall comply with the provisions of 18 C.F.R. Part 35, Subpart H, as applicable,
`and with any conditions the Commission imposes in its orders concerning seller’s
`market-based rate authority, including orders in which the Commission authorizes seller
`to engage in affiliate sales under this tariff or otherwise restricts or limits the seller’s
`market-based rate authority. Failure to comply with the applicable provisions of 18
`C.F.R. Part 35, Subpart H, and with any orders of the Commission concerning seller’s
`market-based rate authority, will constitute a violation of this tariff.
`
`Limitations and Exemptions Regarding Market-Based Rate Authority
`
`Seller has received (1) waiver of Subparts B and C of Part 35, except for sections
`35.12(a), 35.13(b), 35.15 and 35.16; (2) waiver of Parts 41,101 and 141 except sections
`141.14 and 141.15; and (3) blanket authorization for all future issuances of securities or
`assumptions of liabilities pursuant to Part 34 of the Commission’s regulations. DTE
`Stockton, LLC, ER13-____-000 (2013).
`
`VII. Ancillary Services
`
`
`(A) Within the market administered by PJM Interconnection, L.L.C. (“PJM”): Seller
`offers regulation and frequency response service, energy imbalance service, and
`
`
`
`

`

`operating reserve service (which includes spinning, 10-minute, and 30-minute reserves)
`for sale into the market administered by PJM, and where the PJM Open Access
`Transmission Tariff permits, the self-supply of these services to purchasers for a bilateral
`sale that is used to satisfy the ancillary services requirements of the PJM Office of
`Interconnection.
`
`(B) Within the markets administered by ISO New England Inc. (“ISO-NE”): Seller
`offers regulation and frequenc