20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
1001 Pennsylvania Avenue, NW, Washington, DC 20004-2595 p202 624-2500 f202 628-5116
PUBLIC VERSION – PRIVILEGED AND CONFIDENTIAL INFORMATION AND PROTECTED MATERIALS HAVE BEEN REMOVED PURSUANT TO 18 C.F.R. § 388.112
December 2, 2014
The Honorable Kimberly D. Bose, Secretary Federal Energy Regulatory Commission 888 First Street, NE Washington, DC 20426
Re: Blue Sky East, LLC Canandaigua Power Partners, LLC Canandaigua Power Partners II, LLC Erie Wind, LLC Evergreen Gen Lead, LLC Evergreen Wind Power, LLC Evergreen Wind Power III, LLC First Wind Energy Marketing, LLC Longfellow Wind, LLC Maine GenLead, LLC Milford Wind Corridor Phase I, LLC Milford Wind Corridor Phase II, LLC Niagara Wind Power, LLC Palouse Wind, LLC Stetson Holdings, LLC Stetson Wind II, LLC Vermont Wind, LLC TerraForm Power, LLC SunEdison, Inc. Docket No. EC15-___000
Dear Ms. Bose:
Enclosed for filing is an “Application for Authorization Under Section 203 of the Federal Power Act and Request for Waivers, Confidential Treatment, Expedited Action and Shortened Comment Period” (“Application”) of Blue Sky East, LLC, Canandaigua Power Partners, LLC, Canandaigua Power Partners II, LLC, Erie Wind, LLC, Evergreen
Crowell & Moring LLP www.crowell.com Washington, DC New York San Francisco Los Angeles Orange County Anchorage London Brussels
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Kimberly D. Bose December 2, 2014 Page 2
Gen Lead, LLC, Evergreen Wind Power, LLC, Evergreen Wind Power III, LLC, First Wind Energy Marketing, LLC, Longfellow Wind, LLC, Maine GenLead, LLC, Milford Wind Corridor Phase I, LLC, Milford Wind Corridor Phase II, LLC, Niagara Wind Power, LLC, Palouse Wind, LLC, Stetson Holdings, LLC, Stetson Wind II, LLC and Vermont Wind, LLC, (collectively, the “First Wind Applicants”), and TerraForm Power, LLC and SunEdison, Inc. (“Buyers” and, collectively with the First Wind Applicants, “Applicants”). Applicants request that the Federal Energy Regulatory Commission (“Commission”) authorize the transactions described in the Application, which consist of changes in the upstream ownership of the First Wind Applicants (the “Transactions”).
Request for Expedited Action. For the reasons set forth in the Application, Applicants respectfully request that the Commission establish a twenty-one day comment period for this Application and issue an order granting the requested authorizations by no later than January 12, 2015, to allow for a closing of the Transactions as soon as possible thereafter. The Application qualifies for expedited action under Section 33.11 of the Commission’s regulations1 because the Transactions do not involve a merger or require a competitive screen analysis, are consistent with Commission precedent, and raise no cross-subsidization concerns.
Request for Confidential Treatment. Pursuant to Section 388.112 of the Commission’s regulations,2 Applicants respectfully request privileged and confidential treatment for the transaction documents contained in Exhibits I-1 and I-2 because the transaction documents contain sensitive commercial and financial information that is privileged and confidential and not publicly available. The release of such information would cause competitive harm. Thus, Applicants are filing a copy of the Application that contains the confidential and privileged material (Exhibit I) marked “NONPUBLIC VERSION – CONTAINS PRIVILEGED AND CONFIDENTIAL INFORMATION AND PROTECTED MATERIALS– DO NOT RELEASE PURSUANT TO 18 C.F.R. § 388.112” and a copy of the Application with the confidential material redacted, marked “PUBLIC VERSION – PRIVILEGED AND CONFIDENTIAL INFORMATION AND PROTECTED MATERIALS HAVE BEEN REMOVED PURSUANT TO 18 C.F.R. § 388.112.” In accordance with Section 33.8(a) of the Commission’s regulations, Applicants have included a draft protective order as Attachment 2 to this Application.3
118 C.F.R. Part 33 (2014).
218 C.F.R. § 388.112.
318 C.F.R. § 33.8(a).
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Kimberly D. Bose December 2, 2014 Page 3
Please contact the undersigned if you have any questions concerning this Application. Thank you for your consideration of this matter.
Respectfully submitted,
/s/ Adam Wenner _/s/Deborah A. Carpentier______Adam Wenner Larry F Eisenstat A. Cory Lankford Deborah A. Carpentier Orrick, Herrington & Sutcliffe LLP Attorneys for First Wind Applicants 1152 15th Street, NW Washington, DC 20005 Attorneys for SunEdison, Inc. and TerraForm Power, LLC
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
PUBLIC VERSION – PRIVILEGED AND CONFIDENTIAL INFORMATION AND PROTECTED MATERIALS HAVE BEEN REMOVED PURSUANT TO 18 C.F.R. § 388.112
UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION
Blue Sky East, LLC ) Canandaigua Power Partners, LLC ) Canandaigua Power Partners II, LLC ) Erie Wind, LLC ) Evergreen Gen Lead, LLC ) Evergreen Wind Power, LLC ) Evergreen Wind Power III, LLC ) First Wind Energy Marketing, LLC ) Longfellow Wind, LLC ) Docket No. EC15-___-000 Maine GenLead, LLC ) Milford Wind Corridor Phase I, LLC ) Milford Wind Corridor Phase II, LLC ) Niagara Wind Power, LLC ) Palouse Wind, LLC ) Stetson Holdings, LLC ) Stetson Wind II, LLC ) Vermont Wind, LLC ) TerraForm Power, LLC ) SunEdison, Inc. )
Application for Authorization Under Section 203 of the Federal Power Act and Request for Waivers, Confidential Treatment, Expedited Action and Shortened Comment Period
Pursuant to Section 203(a)(1) of the Federal Power Act (“FPA”)1 and Part 33
of the Federal Energy Regulatory Commission’s (“Commission”) regulations,2
Blue Sky East, LLC (“Blue Sky East”), Canandaigua Power Partners, LLC (“CPP”),
116 U.S.C. § 824b(a)(1). See infra note 3 for discussion of FPA § 203(a)(2) authorization.
218 C.F.R. Part 33.
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Canandaigua Power Partners II, LLC (“CPP II”), Erie Wind, LLC (“Erie”),
Evergreen Gen Lead, LLC (“Evergreen Gen Lead”), Evergreen Wind Power, LLC
(“EWP”), Evergreen Wind Power III, LLC (“EWP III”), Niagara Wind Power, LLC
(“Niagara”), Stetson Holdings, LLC (“Stetson Holdings”), Stetson Wind II, LLC
(“Stetson II”), Vermont Wind, LLC (“Vermont” and collectively with Blue Sky
East, CPP, CPP II, Erie, Evergreen Gen Lead, EWP, EWP III, Niagara, Stetson
Holdings, and Stetson II, the “JV Applicants”), First Wind Energy Marketing, LLC
(“FWEM”), Longfellow Wind, LLC (“Longfellow”), Maine GenLead, LLC (“Maine
GenLead”), Milford Wind Corridor Phase I, LLC (“Milford I”), Milford Wind
Corridor Phase II, LLC (“Milford II”) and Palouse Wind, LLC (“Palouse” and
collectively with FWEM, Longfellow, Maine GenLead, Milford I, Milford II, and
the JV Applicants, the “First Wind Applicants”), TerraForm Power, LLC
(“TerraForm”) and SunEdison, Inc. (“SunEdison” and collectively with
TerraForm, the “Buyers” and collectively with the First Wind Applicants, the
“Applicants” and each an “Applicant”) request authorizations necessary to enable
certain upstream changes in control, as follows:
(1) The JV Applicants request authorization for a change in control of their upstream ownership that will result from First Wind Holdings, LLC (“First Wind Holdings”), which currently indirectly owns 51% of the voting securities of the JV Applicants, acquiring the remaining 49% of the voting securities of the JV Applicants, which are currently indirectly owned by Emera Incorporated (the “JV Buyout”).
(2) The First Wind Applicants request authorization for a change in upstream ownership that will result from wholly owned subsidiaries of the Buyers acquiring all of the indirect voting securities of each of
2 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
the First Wind Applicants that are owned by First Wind Holdings (the “SunEdison Transaction” and with the JV Buyout, the “Transactions” and each a “Transaction”). Closing of the SunEdison Transaction is conditioned on the JV Buyout closing.
The Transactions are more fully described in Section III.3 The First Wind
Applicants require authorization under FPA § 203(a)(1)(A) for the Transactions
because the Transactions include changes in control over the FPA-jurisdictional
facilities owned or controlled by the First Wind Applicants.
As explained in Section IV below, the Transactions are consistent with the
public interest because they will not have an adverse effect on competition, rates
or regulation, nor will they raise any cross-subsidization concerns.
Applicants respectfully request that the Commission establish a twenty-one
day comment period for this Application and issue an order granting the
requested authorizations by no later than January 12, 2015, to allow for a closing
of the Transactions as soon as possible thereafter. The Application qualifies for
expedited action under Section 33.11 of the Commission’s regulations4 because the
3Because the JV Buyout involves the transfer and acquisition of voting securities of various electric utility companies by one or more holding companies (as described in Section III.A.), authorization under FPA § 203(a)(2) is required. However, First Wind Holdings (and its subsidiaries that will directly and indirectly acquire the voting securities of the JV Applicants qualify for blanket authorization under 18 C.F.R. § 33.1(c)(8) because each is a holding company solely with respect to exempt wholesale generators (“EWG”), qualifying small power production facilities (“QF”) and/or foreign utility companies (“FUCO”). In addition, because each of the Buyers is a “holding company” within the meaning of FPA § 203(a)(2), the SunEdison Transaction requires authorization under FPA § 203(a)(2). However, the Buyers qualify for blanket authorization under 18 C.F.R. § 33.1(c)(8) because each is and will continue to be a holding company solely with respect to EWGs, QFs and FUCOs.
418 C.F.R. § 33.11(c)(2).
3 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Transactions involve upstream changes in control, do not involve a merger or
require a competitive screen analysis, are consistent with Commission precedent,
and raise no cross-subsidization concerns.
As discussed in Section VI, pursuant to Section 388.112 of the Commission’s
regulations,5 Applicants respectfully request privileged and confidential treatment
for the transaction documents contained in Exhibits I-1 and I-2.
I. DESCRIPTION OF THE FIRST WIND APPLICANTS AND THEIR RELEVANT AFFILIATES
Each of the First Wind Applicants is a wholly or partially owned subsidiary
of First Wind Holdings. First Wind Holdings is an independent North American
renewable energy company focused on the development, ownership, and
operation of renewable energy generating projects. D.E. Shaw MWP Acquisition
Holdings, L.L.C. (“D.E. Shaw”) and Madison Dearborn Capital Partners IV, L.P.
(“Madison Dearborn”) currently each own approximately 45.9% of the voting
securities of First Wind Holdings. The remaining approximately 8.2% of the
voting securities of First Wind Holdings are held, in the aggregate, by entities or
individuals (the “Remaining Sellers”).
A. JV Applicants
Each of the JV Applicants is a wholly owned subsidiary of Northeast Wind
Partners II, LLC (“NE Wind II”). First Wind Holdings indirectly owns 51% of the
518 C.F.R. § 388.112.
4 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
voting securities of NE Wind II and Emera Incorporated (“Emera”) owns the
remaining 49% of the voting securities of NE Wind II. Emera is a publicly traded
utility holding company headquartered in Halifax, Nova Scotia, Canada. As
discussed more fully below, in the JV Buyout, First Wind Holdings (or a wholly
owned subsidiary thereof) will acquire all of Emera’s voting securities in NE
Wind II.
1. Blue Sky East, LLC
Blue Sky East owns and operates a 34.2 MW wind-powered generating
facility located in Eastbrook, Maine, which is interconnected with the transmission
system of Emera Maine in the ISO New England, Inc. (“ISO-NE”) balancing
authority area (“BAA”). Blue Sky East is an EWG that is authorized to sell electric
energy, capacity and ancillary services at wholesale at market-based rates.6 Blue
Sky East sells its output to NSTAR Electric Company under a long-term power
purchase agreement.
2. Canandaigua Power Partners, LLC
CPP owns and operates an 87.5 MW wind-powered generating facility
located in Steuben County, New York, which is interconnected with the
transmission system of New York State Electric and Gas Corporation (“NYSEG”)
6Blue Sky East, LLC, Docket No. EG12-81-000, “Notice of Self-Certification as an Exempt Wholesale Generator Status” (June 29, 2012); AltaGas Renewable Energy Colorado LLC, et al., Docket Nos. EG12- 70-000, et al., “Notice of Effectiveness of Exempt Wholesale Generator Status” (Sep. 10, 2012); Blue Sky East, LLC, Docket No. ER12-2068-000 (Aug. 6, 2012) (unpublished letter order granting market- based rate authority).
5 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
in the New York Independent System Operator (“NYISO”) BAA. CPP owns a
generator lead line that is used to transmit power from its generating facility to the
NYISO grid (“Canandaigua Lead Line”). CPP and its affiliate, CPP II, are parties
to a shared facilities agreement under which CPP II is permitted to use the
Canandaigua Lead Line and two substations, all of which are owned by CPP (the
“Canandaigua SFA”).7 CPP is an EWG that is authorized to sell electric energy,
capacity and ancillary services at wholesale at market-based rates.8
3. Canandaigua Power Partners II, LLC
CPP II owns and operates a 37.5 MW wind-powered generating facility
located in Steuben County, New York, which is interconnected with the
transmission system of NYSEG in the NYISO BAA.9 CPP II is an EWG that is
authorized to sell electric energy, capacity and ancillary services at wholesale at
market-based rates.10
7Canandaigua Power Partners, LLC, Docket No. ER15-235-000, “Filing of Shared Facilities Agreement” (Oct. 30, 2014), pending. CPP has obtained from the Commission a waiver from filing an Open Access Transmission Tariff (“OATT”) and related open access requirements (“OATT Waivers”). Evergreen Wind Power V, LLC, 130 FERC ¶ 61,186 (2010) (“Evergreen Waiver Order”).
8Canandaigua Power Partners, LLC, Docket No. EG09-26-000, “Notice of Self-Certification as an Exempt Wholesale Generator” (Jan. 28, 2009); Canandaigua Power Partners, LLC, Docket No. ER09- 172-000 (Jan. 22, 2009) (unpublished letter order granting market-based rate authority), reh’g dismissed, Canandaigua Power Partners, LLC, 131 FERC ¶ 61,053 (2010).
9CPP II is entitled to use the Canandaigua Lead Line and other facilities owned by CPP pursuant to the Canandaigua SFA discussed in Section I.A.2. and supra note 7. CPP II also was granted OATT Waivers in the Evergreen Waiver Order.
10Canandaigua Power Partners II, LLC, Docket No. EG09-27-000, “Notice of Self-Certification as an Exempt Wholesale Generator” (Jan. 28, 2009); Canandaigua Power Partners II, LLC, Docket No. ER09- 173-000 (Jan. 22, 2009) (unpublished letter order granting market-based rate authority), reh’g dismissed, Canandaigua Power Partners, LLC, 131 FERC ¶ 61,053 (2010).
6 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
4. Erie Wind, LLC
Erie owns and operates an approximately 15 MW wind-powered
generating facility located in Erie County, New York, which is interconnected with
the transmission facilities owned by Niagara Mohawk Power Corporation
(“NIMO”) and operated by the NYISO. Erie and Niagara each own a 50%
undivided interest in a substation that steps up the voltage of its respective
generating project to 115 kV for delivery to the NYISO-controlled transmission
system. A tenant–in-common agreement between Niagara and Erie governs their
ownership of the substation.11 Niagara and Erie also share the use of certain poles
that are owned by one of them, but used to carry lines owned by both of them,
and other nonjurisdictional facilities, which use is governed by a shared facilities
agreement.12 Pursuant to various leases, Erie and Niagara also permit various end
users to receive power through the substation for their own use.13 Erie is an EWG
that is authorized to sell energy, capacity and ancillary services at wholesale at
market-based rates.14
11Erie Wind, LLC and Niagara Wind Power, LLC, Docket Nos. ER15-222-000 and ER15-224-000, “Filing of Tenant in Common Agreement and Shared Facilities Agreement and Request for Waiver of Order Nos. 888, 889 and 890 and Section 35.28, Part 37 and Part 358 of the Commission’s Regulations” (Oct. 29, 2014), pending.
12Id.
13Erie Wind, LLC and Niagara Wind Power, LLC, Docket Nos. ER15-225-000 and ER15-226-000, “Filing of Rate Schedule under FPA § 205” (Oct. 29, 2014), pending.
14Erie Wind, LLC, Docket No. EG12-23-000, “Notice of Self-Certification as an Exempt Wholesale Generator” (Dec. 23, 2011); Rocky Ridge Wind Project, LLC, et al., Docket Nos. EG12-16-000, et al., “Notice of Effectiveness of Exempt Wholesale Generator Status” (Mar. 2, 2013); Erie Wind, LLC and (footnote continued on next page)
7 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
5. Evergreen Gen Lead, LLC
Evergreen Gen Lead owns and operates a 115 kV, 38-mile generator lead
that begins at the Stetson Mountain substation in Washington County, Maine and
extends to the Keene Road Substation, allowing interconnection with ISO-NE (the
“EGL Interconnection Line”). Evergreen Gen Lead is owned by EWP III, Stetson
Holdings, Stetson II and Champlain Wind, LLC (“Champlain” and collectively,
the “EGL Members”).15 Each of the EGL Members has capacity rights in the EGL
Interconnection Line in proportion to its respective membership interests in EGL,
which membership interest is based on the relative capacity of each Member’s
generation project.16
6. Evergreen Wind Power, LLC
EWP owns and operates a 42 MW wind-powered generating facility located
in Mars Hill, Maine, which is interconnected with the transmission system of
Emera Maine in the Northern Maine Independent System Administrator
(“NMISA”) market, which is part of the New Brunswick System Operator
(footnote continued from prior page) Niagara Wind Power, LLC, Docket Nos. EG12-23-001 and EG13-15-001, “Notice of Change in Facts” (Nov. 25, 2014), pending; Erie Wind, LLC, Docket No. ER12-682-000 (Mar. 16, 2012) (unpublished letter order granting market-based rate authorization).
15Champlain is developing an approximately 48 MW wind-powered generation facility to be located in Washington and Penobscot Counties, Maine.
16Evergreen Gen Lead’s membership interests are owned 30.4% by Stetson Holdings, 32% by EWP III, 13.6% by Stetson II, and 24% by Champlain. Evergreen Gen Lead, LLC, Docket No. ER15- 203-000, “Filing of Rate Schedule, Request for Waiver of Certain Accounting and Reporting Requirements” (Oct. 28, 2014), at pp. 2–3, pending.
8 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
(“NBSO”) BAA. EWP’s generating facility is a QF.17 EWP is an EWG that is
authorized to sell electric energy, capacity and ancillary services at wholesale at
market-based rates.18 EWP sells its output to New Brunswick Power Generation
Corporation (“NBP Generation”) under a long-term power purchase agreement.19
7. Evergreen Wind Power III, LLC
EWP III owns and operates a 60 MW wind-powered generating facility
located in Penobscot County, Maine, which is interconnected with the
transmission system of Emera Maine in the ISO-NE BAA. EWP III’s generating
facility is a QF.20 EWP III is an EWG that is authorized to sell electric energy,
capacity and ancillary services at wholesale at market-based rates.21 EWP III sells
17Evergreen Wind Power, LLC, Docket No. QF06-315-002, FERC Form 556 (Oct. 4, 2012).
18Evergreen Wind Power, LLC, Docket No. EG06-71-000, “Notice of Self-Certification of Exempt Wholesale Generator Status” (Aug. 11, 2006); CalPeak Power LLC, et al., Docket Nos. EG06-68-000, et al., “Notice of Effectiveness of Exempt Wholesale Generator Status” (Nov. 1, 2006); Evergreen Wind Power, LLC, Docket No. ER06-1355-000 (Sep. 19, 2006) (unpublished letter order granting market- based rate authorization).
19Maine Wind Partners, which is an indirect wholly owned subsidiary of NE Wind II, owns 100% of the Class B membership interests in Evergreen Wind Power. Nationwide Wind Portfolio, LLC (“NWP”) owns 56.13%, and WFC Holdings Corporation (“WFC Holdings”) owns 43.87% of the Class A membership interests in Evergreen Wind Power. These Class A interests confer on NWP and WFC Holdings only passive rights. See Blue Sky East, LLC, Docket Nos. ER12-2068-005, et al., “Supplement to Market Power Update for the Northeast Region and Notice of Change in Status” (June 27, 2014) (accepted by unpublished letter order dated August 29, 2014). These passive interests will be undisturbed by the Transactions that are the subject of this Application.
20Evergreen Wind Power III, LLC, Docket No. QF11-64-001, FERC Form 556 (Oct. 4, 2012).
21Evergreen Wind Power III, LLC, Docket No. EG11-30-000, “Notice of Self-Certification as an Exempt Wholesale Generator” (Nov. 23, 2010); Cedar Creek II, LLC, et al., Docket Nos. EG11-8-000, et al., “Notice of Effectiveness of Exempt Wholesale Generator Status” (Feb. 14, 2011); Evergreen Wind Power III, LLC, Docket No. ER11-2201-000 (Apr. 14, 2011) (unpublished letter order granting market-based rate authorization).
9 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
100% of the output of its QF to Emera Maine and Central Maine Power Company
under long-term power purchase agreements.
8. Niagara Wind Power, LLC
Niagara owns and operates a 20 MW wind-powered, electric-generating
facility located in Lackawanna, Erie County, New York, which is interconnected
with the transmission facilities owned by NIMO in the NYISO BAA. Niagara
jointly owns a substation with Erie and shares transmission facilities with Erie, as
described in Section I.A.4. Niagara’s generating facility is a QF.22 Niagara is an
EWG that is authorized to sell electric energy, capacity and ancillary services at
wholesale at market-based rates.23
9. Stetson Holdings, LLC
Stetson Holdings (f/k/a Evergreen Wind Power V, LLC) owns and operates
a 57 MW wind-powered generating facility located in Washington County, Maine,
which is interconnected with the transmission system of Emera Maine in the ISO-
NE BAA. Stetson Holdings and Stetson II are parties to a Shared Facilities and
Sublease Agreement (the “Stetson SFA”) that governs their ownership and use of
generator interconnection facilities that allow their generating facilities to
22Niagara Wind Power, LLC, Docket No. QF07-39-004, FERC Form 556 (Oct. 4, 2012).
23Niagara Wind, LLC, Docket No. EG13-15-000, “Notice of Self-Certification as an Exempt Wholesale Generator” (Jan. 31, 2013); Carson Cogeneration Co., L.P., et al., Docket Nos. EG13-11-000, et al., “Notice of Effectiveness of Exempt Wholesale Generator Status” (Apr. 11, 2013); Erie Wind, LLC and Niagara Wind Power, LLC, Docket Nos. EG12-23-001 and EG13-15-001, “Notice of Change in Facts” (Nov. 25, 2014), pending; Niagara Wind Power, LLC, 141 FERC ¶ 61,179 (2012) (order conditionally granting market-based rate authorization); Niagara Wind Power, LLC, Docket No. ER13-17-001 (Feb. 6, 2013) (unpublished letter order accepting market-based rate compliance filing).
10 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
interconnect with the EGL Interconnection Line (the “Stetson Shared Facilities”).
This arrangement allows these generating facilities to interconnect with ISO-NE.24
Stetson Holdings is an EWG that is authorized to sell electric energy, capacity and
ancillary services at wholesale at market-based rates.25
10. Stetson Wind II, LLC (“Stetson II”)
Stetson II owns and operates a 25.5 MW wind-powered generating facility
located in Stetson, Maine, which is interconnected with the transmission system of
Emera Maine in the ISO-NE BAA. As noted in Section I.A.9., Stetson II shares
common interconnection facilities with Stetson Holdings. Stetson II is an EWG
that is authorized to sell electric energy, capacity and ancillary services at
wholesale at market-based rates.26 Stetson II sells 50 percent of its output to the
President and Fellows of Harvard College under a long-term power purchase
agreement.
24Evergreen Wind Power V, LLC and Stetson Wind II, LLC, Docket Nos. ER10-1117-000, et al., Filing of Shared Facilities and Sublease Agreement (Apr. 28, 2010) (accepted by unpublished letter order dated June 17, 2010).
25Evergreen Wind Power V, LLC, Docket No. EG09-24-000, “Notice of Self-Certification as an Exempt Wholesale Generator” (Jan. 22, 2009); Hay Canyon Wind, LLC, et al., Docket Nos. EG09-19-000, et al., “Notice of Effectiveness of Exempt Wholesale Generator Status” (May 27, 2009); Evergreen Wind Power V, LLC, Docket No. ER09-174-000 (Jan. 15, 2009) (unpublished letter order granting market- based rate authorization); Stetson Holdings, LLC, Docket No. ER12-1311-000 (Apr. 23, 2012) (unpublished letter order accepting notice of succession regarding name change).
26Stetson Wind II, LLC, Docket No. EG10-13-000, “Notice of Self-Certification as an Exempt Wholesale Generator” (filed Dec. 17, 2009); Crystal Lake Wind III, LLC, et al., Docket Nos. EG10-6- 000, et al., “Notice of Effectiveness of Exempt Wholesale Generator Status” (Mar. 4, 2010); Stetson Wind II, LLC, Docket No. ER10-426-000 (Apr. 16, 2010) (unpublished letter order granting market- based rate authorization).
11 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
11. Vermont Wind, LLC
Vermont is a Delaware limited liability company that owns and operates a
40 MW wind-powered electric generating facility located in Sheffield, Vermont,
which is interconnected with the transmission system of Vermont Electric Power
Company, Inc. in the ISO-NE BAA. Vermont’s generating facility is a QF.27
Vermont is an EWG that is authorized to sell electric energy, capacity and ancillary
services at wholesale at market-based rates.28 Vermont sells the output of its
generating facility to three purchasers, Burlington Electric Department, the
Vermont Electric Cooperative, Inc. and the Washington Electric Cooperative, Inc.
under long-term power purchase agreements.
B. Milford Companies
1. Milford Wind Corridor Phase I, LLC
Milford I owns and operates a 203.5 MW wind-powered generating facility
(the “Milford I Facility”) located in Millard and Beaver Counties, Utah in the Los
Angeles Department of Water and Power (“LADWP”) BAA. Milford I also owns
89.8% of the undivided interests in a 345 kV generator lead line that extends
approximately 88 miles from the Milford I Facility to a substation that is part of
Intermountain Power Agency’s Intermountain Power Project in Delta, Utah
27Vermont Wind, LLC, Docket No. QF06-73-003, FERC Form 556 (Oct. 4, 2012).
28Vermont Wind, LLC, Docket No. EG11-37-000, “Notice of Self-Certification as an Exempt Wholesale Generator” (Dec. 17, 2010); Windstar Energy, LLC, et al., Docket Nos. EG11-33-000, et al., “Notice of Effectiveness of Exempt Wholesale Generator Status” (Mar. 7, 2011); Vermont Wind, LLC, Docket No. ER11-4029-000 (Aug. 4, 2011) (unpublished letter order granting market-based rate authorization).
12 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
(“Milford Gen Lead”). Milford I is party to two tenant-in-common agreements
with its affiliate, Milford II, that govern their common ownership of the Milford
Gen Lead, a substation and nonjurisdictional facilities (the “Milford TICs”).29
Milford I is an EWG that is authorized to sell electric energy, capacity and
ancillary services at wholesale at market-based rates.30 Milford I sells all of its
output to Southern California Public Power Authority (“SCPPA”) under a long-
term power purchase agreement.
Milford Wind Corridor, LLC (“Milford Wind Corridor”) owns 100% of the
voting securities of Milford I.31 First Wind Holdings indirectly owns 80% of the
voting securities of Milford Wind Corridor and MTW Resources, LP (“MTW
Resources”) directly owns the remaining 20% of the voting securities of Milford
29Milford Wind Corridor Phase I, LLC, Docket No. ER11-3023-000 (Apr. 13, 2011) (unpublished letter order accepting the Milford TICs). The Commission has granted Milford I OATT Waivers. Milford Wind Corridor, LLC, 129 FERC ¶ 61,149 (2009) (“Milford Waiver Order”).
30Milford Wind Corridor Phase I, LLC, Docket No. EG09-71-000, “Notice of Self-Certification as an Exempt Wholesale Generator” (July 2, 2009); Elizabethtown Energy, LLC, et al., Docket Nos. EG09-69- 000, et al., “Notice of Effectiveness of Exempt Wholesale Generator Status” (Oct. 30, 2009); Milford Wind Corridor Phase I, LLC, Docket No. ER09-1400-000 (Nov. 16, 2009) (unpublished letter order granting market-based rate authority).
31Pursuant to a tax equity transaction on September 28, 2009, Stanton Equity Trading Delaware LLC (“Stanton”) acquired certain non-managing membership interests in Milford I. FERC accepted Milford I’s October 21, 2009 supplement to its application requesting market-based rate authorization, which included evidence demonstrating that Stanton is a passive investor in Milford I that does not exercise control or decisionmaking authority over the Milford I facility. Milford Wind Corridor Phase I, LLC, Docket No. ER09-1400-000 (Nov. 16, 2009) (unpublished letter order). These passive interests will be undisturbed by the Transactions that are the subject of this Application.
13 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Wind Corridor.32 MTW Resources is a family investment vehicle that is owned by
individuals. Besides their interests in Milford Wind Corridor, neither MTW
Resources nor any partner or member of MTW Resources (all of which are
individuals), own, operate or control any electric generation or transmission
facilities in the United States, nor do they own, operate or control any intrastate
natural gas transportation, storage or distribution facilities, sites for generation
capacity development, physical coal sources and control over who may access
transportation of coal supplies, such as barges and rail cars.
2. Milford Wind Corridor Phase II, LLC
Milford II owns and operates a 102 MW wind-powered generating facility
located in Millard and Beaver Counties, Utah in the LADWP BAA (the “Milford II
Facility”). In addition, Milford II owns 10.2% of the undivided interests in the
Milford Gen Lead and has been granted OATT Waivers.33 Milford II is an EWG
that is authorized to sell electric energy, capacity and ancillary services at
wholesale at market-based rates.34 Milford II sells all of its output to SCPPA under
32MTW Resources’ 20% interest in Milford Wind Corridor will be undisturbed by the Transactions that are the subject of this Application.
33Milford Waiver Order. As discussed in Section I.B.1., Milford I and Milford II are parties to the Milford TICs. Milford II filed the Milford TICs as its rate schedules in FERC Docket No. ER15-207- 000 on October 28, 2014, which is pending.
34Milford Wind Corridor Phase II, LLC, Docket EG11-44-000, “Notice of Self-Certification as an Exempt Wholesale Generator” (Jan. 7, 2011); LSP Energy, Inc., et al., Docket Nos. EG11-43-000, et al., “Notice of Effectiveness of Exempt Wholesale Generator Status” (Apr. 13, 2011); Milford Wind Corridor Phase II, LLC, Docket No. ER11-2657-000 (Mar. 4, 2011) (unpublished letter order granting market-based rate authority).
14 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
a long-term power purchase agreement. Milford Wind Corridor owns 100% of the
voting securities of Milford II.35
C. Other First Wind Applicants
1. Palouse Wind, LLC (“Palouse”)
Palouse owns and operates a 105.27 MW wind-powered, generating facility
located in Whitman County, Washington, which is interconnected to the
transmission system of Avista Corporation (“Avista”) in the Avista BAA (“Palouse
Facility”). Palouse is an EWG that is authorized to sell electric energy, capacity
and ancillary services at wholesale at market-based rates.36 Palouse sells 100% of
its output to Avista under a long-term power purchase agreement. First Wind
Holdings currently indirectly owns 100% of the voting securities of Palouse.37
Pursuant to an application filed with the Commission under FPA § 203,
Palouse is seeking Commission authorization for a transaction in which Corridor
35Pursuant to a tax equity transaction on September 1, 2011, Stanton acquired certain non- managing membership interests in Milford II. FERC accepted Milford II’s September 30, 2011 notice of change in status, which included evidence demonstrating that Stanton is a passive investor in Milford II that does not exercise control or decisionmaking authority over the Milford II Facility. Milford Wind Corridor Phase II, LLC, Docket No. ER11-2657-001 (Jan. 9, 2012) (unpublished letter order). These passive interests will be undisturbed by the Transactions that are the subject of this Application.
36Palouse Wind, LLC, Docket No. EG12-45-000, “Notice of Self-Certification of Exempt Wholesale Generator Status” (Mar. 21, 2012); Palouse Wind, LLC, Docket No. ER12-1308-000 (May 8, 2012) (unpublished letter order granted market-based rate authority).
37Pursuant to a tax equity transaction on December 3, 2012, CIRI Energy, LLC (“CIRI”) acquired certain non-managing membership interests in Palouse. FERC accepted Palouse’s January 2, 2013 notice of change in status, which included evidence demonstrating that CIRI is a passive investor in Palouse that does not exercise control or decisionmaking authority over the Palouse Facility. Palouse Wind, LLC, Docket No. ER12-1308-002 (Apr. 4, 2013) (unpublished letter order). These passive interests will be undisturbed by the Transactions that are the subject of this Application.
15 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Energy, LLC (“Corridor”), a subsidiary of IIF US Holding 2 LP (“IIF”), an entity
that is not affiliated with either the Buyers or First Wind Holdings, will acquire all
of the indirect voting securities of Palouse.38 Corridor will then issue to First Wind
Cyrus Portfolio, LLC, a wholly owned subsidiary of First Wind Holdings (or an
affiliate), a 10% share of the equity in Corridor (the “Palouse-Corridor
Transaction”).
2. Maine GenLead
Maine GenLead is developing and will own and operate a 59-mile, 115 kV
generator interconnection line (“Maine GenLead Line”) that will connect the
wind-powered generation facility that is being constructed and will be owned by
Evergreen Wind Power II, LLC (“EWP II”) to the Keene Road Substation, which is
owned by Emera Maine and is under ISO-NE’s operational control. Maine
GenLead and EWP II are wholly owned subsidiaries of First Wind Holdings.
Maine GenLead has a rate schedule on file with the Commission that provides for
EWP II’s use of Maine GenLead Line.39
3. First Wind Energy Marketing, LLC & Longfellow Wind, LLC
Each of FWEM and Longfellow is a wholly owned, indirect subsidiary of
First Wind Holdings, and each is a wholesale power marketer that is authorized to
38Palouse Wind, LLC, Docket No. EC15-10-000, “Application for Authorization Under Section 203 of the Federal Power Act and Request for Waivers, Confidential Treatment, Shortened Comment Period and Expedited Action” (Oct. 10, 2014), pending.
39Maine GenLead, LLC, 146 FERC ¶ 61,223 (2014), reh’g pending.
16 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
sell electric energy, capacity and ancillary services at wholesale at market-based
rates. Neither company owns, controls or operates any generating facilities.40
None of the First Wind Applicants owns or controls, directly or indirectly,
ten percent or more of the voting securities of any company that owns or controls
inputs to electric generation, such as fuel supplies or fuel delivery systems. The
First Wind Applicants note that current affiliates of the JV Applicants through
Emera and affiliates of the First Wind Applicants through D.E. Shaw or Madison
Dearborn might own or control electric generation, transmission assets or other
inputs to electric generation, such as fuel supplies or fuel delivery systems.
However, such assets are not relevant to the Commission’s analysis of the
Transactions because, as a result of the Transactions, the Applicants no longer will
be affiliated with Emera, D.E. Shaw or Madison Dearborn. As further discussed in
Section V.C.2., the First Wind Applicants respectfully request waiver of the
requirement to provide additional information with respect to such current
affiliates.
II. DESCRIPTION OF BUYERS AND THEIR RELEVANT AFFILIATES
TerraForm, a Delaware limited liability company, owns a portfolio of
behind-the-meter and utility scale solar projects throughout the United States, as
well as Canada, the United Kingdom and Chile. TerraForm is managed by
40First Wind Energy Marketing, LLC, Docket No. ER09-1549-000 (Dec. 1, 2009) (unpublished letter order granting market-based rate authority); Longfellow Wind, LLC, Docket No. ER13-1585-001 (Sep. 18, 2013) (unpublished letter order granting market-based rate authority).
17 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
TerraForm Power, Inc. SunEdison, through its wholly-owned subsidiary,
SunEdison Holdings Corporation, owns all of the Class B common stock of
TerraForm Power, Inc., which confers an approximately 93.05% voting interest in
TerraForm. TerraForm Power, Inc. is a publicly-traded company, and is listed on
the NASDAQ stock exchange; other than SunEdison, no person or entity owns ten
percent or more of the voting securities of TerraForm.
SunEdison, formerly known as MEMC Materials, Inc., is a publicly-traded
company that is one of the world’s leading developers of solar energy projects and
sellers of photovoltaic energy solutions and a global leader in the development,
manufacture and sale of silicon wafers to the semiconductor industry.
As relevant to this Application, Buyers own, operate or control
approximately 70.8 MW of aggregated behind-the-meter solar generating capacity,
but no other generating capacity, in ISO-NE. This 70.8 MW figure includes
approximately 14.65 MW of behind-the-meter generation that TerraForm intends
to acquire from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction
scheduled to close in early December 2014 (the “Capital Dynamics Transaction”).41
It also includes approximately 13.75 MW that TerraForm intends to acquire in a
41The Capital Dynamics Transaction relates to the purchase and sale of small, mostly behind-the- meter distributed solar QFs totaling approximately 58.29 MW. Most of the QFs are less than one MW, and none exceeds six MW when aggregated with affiliated QFs within a one-mile radius. Accordingly, under the Commission’s regulations, the Capital Dynamics Transaction is exempt from the Commission’s jurisdiction under Section 203 of the Federal Power Act. See 18 C.F.R. § 292.601(c). Buyers will submit a notice of change in status on behalf of their subsidiaries with market-based rate authority within 30 days of closing the Capital Dynamics Transaction.
18 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
series of lease transactions that are scheduled to close over during the next six
months (the “Lease Transaction”).42 Within the NYISO market, Buyers control
6 MW of aggregated behind-the-meter generating capacity, and, as a result of the
Capital Dynamics Transaction and Lease Transaction, will control an additional
13.82 MW in distributed solar generation, but no other generating capacity in
NYISO. As a result of the Capital Dynamics Transaction and the Lease
Transaction, Buyers will control approximately 18.37 MW of behind-the-meter
solar generation in the PJM BAA, which is first-tier to NYISO. Buyers do not own
or control any generating capacity in the LADWP BAA, but Buyers do own,
operate or control approximately 645.5 MW in the California Independent System
Operator (“CAISO”) BAA, which is first-tier to LADWP.43 Buyers do not own or
control any generation in Avista or NBSO, which are the other relevant geographic
markets for the Transactions.44
42Through the LPT Transaction, TerraForm intends to acquire approximately 42 MW in behind-the- meter distributed solar projects throughout the United States. Most of the QFs are less than one MW, and none exceeds six MW when aggregated with affiliated QFs within a one-mile radius. Accordingly, under the Commission’s regulations, the LPT Transaction is exempt from the Commission’s jurisdiction under Section 203 of the Federal Power Act. See 18 C.F.R. § 292.601(c). Buyers will submit a notice of change in status on behalf of their subsidiaries with market-based rate authority within 30 days of closing the LPT Transaction.
43This figure includes 23.5 MW of distributed solar generation to be acquired by TerraForm in the Capital Dynamics Transaction, and approximately 10.65 MW in aggregated behind-the-meter solar generation to be acquired by TerraForm in the Lease Transaction.
44Information regarding Buyers’ energy affiliates, including those to be acquired in the Capital Dynamics Transaction and the Lease Transaction, is provided in Exhibit B.
19 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Neither Buyers nor any of their affiliates own or control transmission
facilities, other than transmission facilities used solely to interconnect generation
to the transmission network, and neither Buyers nor their affiliates own or control
inputs to electric power production, including intrastate natural gas
transportation, intrastate natural gas storage or distribution facilities; physical coal
supply sources or control over who may access transportation of coal supplies.
III. DESCRIPTION OF THE TRANSACTIONS
The FPA-jurisdictional facilities associated with or affected by the
Transactions are the electric interconnection transmission facilities owned and
operated by the Applicants, the Applicants’ respective market-based rate tariffs,
rate schedules, wholesale power sales agreements and related books and records.
A. JV Buyout
The JV Buyout will be effectuated pursuant to a Purchase Agreement,
which is included in confidential Exhibit I-1 (the “JV Buyout Agreement”). Under
the JV Buyout Agreement, First Wind Northeast Company, LLC, a wholly owned
subsidiary of First Wind Holdings and currently the indirect owner of 51% of the
voting securities of NE Wind II (which indirectly owns 100% of the voting
securities of the JV Applicants), will acquire the remaining 49% of the voting
securities of NE Wind II from Northeast Wind Holdings, LLC, a wholly owned
subsidiary of Emera. As a result of the JV Buyout, Emera will no longer own,
directly or indirectly, any voting securities of NE Wind II or the JV Applicants;
20 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
however, First Wind Holdings will increase its voting securities in NE Wind II
(and thus, indirectly, the JV Applicants) from 51% to 100%.
B. SunEdison Transaction
The SunEdison Transaction will be effectuated pursuant to a purchase and
sale agreement, which is included in confidential Exhibit I-2 (the
“SunEdison PSA”). Prior to closing on the SunEdison Transaction, First Wind
Holdings will implement a multistep internal corporate reorganization.
Currently, First Wind Portfolio, LLC (“First Wind Portfolio”), a wholly owned,
indirect subsidiary of First Wind Holdings, indirectly owns each of the First Wind
Applicants (except Maine GenLead, FWEM and Longfellow) through its indirect
100% ownership interest in First Wind Operating Company, LLC (“First Wind
Operating”).45 After the internal reorganization, First Wind Portfolio will own
each of the First Wind Applicants, except FWEM, Longfellow, Maine GenLead,
Milford I, Milford II and Palouse, through its ownership interests in First Wind
Operating, and will continue to own the other First Wind Applicants through
different intermediate holding companies that it will wholly and indirectly own.46
45First Wind Portfolio currently owns Maine GenLead through its 100% ownership interest in Maine GenLead Holdings, LLC, which directly owns 100% of Maine GenLead.
46First Wind Portfolio will indirectly own Evergreen Gen Lead both before and after the internal corporate reorganization. Three of the companies directly owning membership interests in Evergreen Gen Lead (EWP III, Stetson Holdings and Stetson II) will be held indirectly by First Wind Operating following the internal corporate reorganization, but the fourth company owning membership interests in Evergreen Gen Lead (Champlain), will be held indirectly by First Wind Portfolio following the internal corporate reorganization. Thus, after the internal corporate reorganization, First Wind Portfolio will indirectly own 76% of Evergreen Gen Lead through First (footnote continued on next page)
21 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Both before and after the internal corporate reorganization, First Wind Holdings
will own indirectly the same interests in each of the First Wind Applicants.47
The SunEdison Transaction is conditioned on the JV Buyout closing. The
SunEdison Transaction will include the following steps that affect the Applicants,
as follows:
1. First Wind Capital, LLC will sell all of its interests in First Wind Operating to TerraForm, and thereby all of First Wind Operating’s direct or indirect interests in each of the First Wind Applicants, except FWEM, Longfellow, Maine GenLead, Palouse, Milford I and Milford II.48
2. SunEdison will acquire the voting securities that D.E. Shaw, Madison Dearborn and the Remaining Sellers currently hold in First Wind Holdings, which, in the aggregate, equal 100% of the voting securities of First Wind Holdings, resulting in SunEdison indirectly holding ownership interests in the remaining First Wind Applicants, FWEM, Longfellow, Maine GenLead, Palouse, Milford I and Milford II.49
(footnote continued from prior page) Wind Operating and will indirectly own 24% of Evergreen Gen Lead through a wholly owned subsidiary of First Wind Portfolio.
47The Applicants will undertake this internal corporate reorganization pursuant to the blanket authorization under FPA §§ 203(a)(1) and 203(a)(2) provided under the Commission’s regulations for such internal corporate reorganizations. 18 C.F.R. § 33.1(c)(6).
48In addition to the noted First Wind Applicants, TerraForm also will acquire through its acquisition of First Wind Operating, four entities that own solar projects in Massachusetts—Mass Midstate Solar 1, LLC, Mass Midstate Solar 2, LLC, Mass Midstate Solar 3, LLC and Millbury Solar, LLC, each of which owns a QF, and each of which is exempt from the requirement to obtain prior approval under FPA § 203 for the SunEdison Transaction pursuant to 18 C.F.R. § 292.601(c). See Mass Midstate Solar 1, LLC, Docket No. QF13-629-001, FERC Form 556 (Sep. 9, 2014); Mass Midstate Solar 2, LLC, Docket No. QF13-628-001, FERC Form 556 (Sep. 9, 2014); Mass Midstate Solar 3, LLC, Docket No. QF13-627-001, FERC Form 556 (Sep. 9, 2014); Millbury Solar, LLC, Docket No. QF13-626- 001, FERC Form 556 (Sep. 9, 2014). TerraForm also will acquire through its acquisition of First Wind Operating, three wind-powered generation facilities in Hawaii that are not public utilities and that, therefore, do not require FERC authorization under FPA § 203, as follows: Kaheawa Wind Power, LLC, Kaheawa Wind Power II, LLC and Kahuku Wind Power, LLC.
49To facilitate the SunEdison Transaction, D.E. Shaw will distribute all of its voting securities in First Wind Holdings to its members immediately prior to closing, and the members will sell their (footnote continued on next page)
22 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Pursuant to the SunEdison PSA, each of these steps will be deemed to have
occurred simultaneously.
After the SunEdison Transaction is consummated, TerraForm will
indirectly hold 100% of the voting securities of each First Wind Applicant (except
Maine GenLead, Evergreen Gen Lead, FWEM, Longfellow, Palouse, Milford I and
Milford II). In addition, First Wind Holdings will be a wholly owned subsidiary
of SunEdison. Thus, SunEdison will indirectly own 100% of the voting securities
of Maine GenLead, FWEM and Longfellow, and 80% of the voting securities of
Milford I and Milford II. With respect to Evergreen Gen Lead, TerraForm will
indirectly hold 76% of the voting securities of Evergreen Gen Lead, and SunEdison
will indirectly own 24% of the voting securities of Evergreen Gen Lead. With
respect to Palouse, after the Palouse-Corridor Transaction closes (described in
Section I.C.1.), SunEdison, through First Wind Holdings, will indirectly own 10%
of the equity of Palouse.50
As described below, the Transactions will not have an adverse effect on
competition, rates, or regulation, and they will not raise any cross-subsidization
(footnote continued from prior page) voting securities in First Wind Holdings to SunEdison. Applicants request that the Commission consider such transfers to be part of the SunEdison Transaction.
50It is possible that First Wind Holdings will sell its remaining 10% indirect equity interest in Palouse to a third party that is unaffiliated with the Buyers. If this occurs, the transaction will be the subject of a separate application under FPA § 203, if required, and depending on timing, such transaction might occur prior to, simultaneous with, or after closing on the SunEdison Transaction. The Applicants will notify the Commission of the treatment of Palouse in its closing notice associated with the SunEdison Transaction.
23 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
issues. Accordingly, the Applicants request that the Commission issue an order
approving the Transactions as described herein.
IV. THE TRANSACTIONS ARE CONSISTENT WITH THE PUBLIC INTEREST
FPA § 203(a)(4) provides that the Commission will approve jurisdictional
transactions that are “consistent with the public interest.” As explained in Order
No. 642 and the Merger Policy Statement,51 the Commission examines three factors
in analyzing whether a proposed transaction is consistent with the public interest:
(i) its effect on competition, (ii) its effect on rates, and (iii) its effect on regulation.
Additionally, pursuant to the Energy Policy Act of 2005 and Order No. 669, the
Commission determines whether a proposed transaction will result in a cross-
subsidization of a non-utility associate company or a pledge or encumbrance of
utility assets for the benefit of an associate company and, if so, whether the cross-
subsidization, pledge, or encumbrance is consistent with the public interest.52 As
demonstrated below, the Transactions are consistent with the public interest with
respect to each of these factors and will not result in any cross-subsidization
issues.
51Revised Filing Requirements Under Part 33 of the Commission’s Regulations, Order No. 642, 65 Fed. Reg. 70984 (Nov. 28, 2000), reh’g, Order No. 642-A, 66 Fed. Reg. 16121 (Mar. 23, 2001); Inquiry Concerning the Commission’s Merger Policy under the Federal Power Act: Policy Statement, Order No. 592, 61 Fed. Reg. 68595 (Dec. 30, 1996) (“Merger Policy Statement”), reconsideration, Order No. 592-A, 62 Fed. Reg. 33341 (June 19, 1997).
52Transaction Subject to FPA Section 203, Order No. 669, 71 Fed. Reg. 1348 (Jan. 6, 2006), reh'g, Order No. 669-A, 71 Fed. Reg. 28422 (May 16, 2006), reh’g, Order No. 669-B, 71 Fed. Reg. 42579 (July 27, 2006).
24 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
A. The Transaction Will Have No Adverse Effect on Competition in the Relevant Market
Order No. 642 identifies two types of analyses relevant to determining
whether a transaction subject to Commission authorization under FPA § 203 has
adverse effects on competition: horizontal market analysis and vertical market
analysis.53 However, the Commission does not require the filing of a horizontal or
vertical competitive screen analysis as described in Appendix A to the Merger
Policy Statement and Sections 33.3 and 33.4 of the Commission’s regulations if the
applicant “[a]ffirmatively demonstrates that the merging entities do not currently
conduct business in the same geographic markets or that the extent of the business
transactions in the same geographic markets is de minimis.”54 Although the
Transactions do not involve a merger and instead involve the transfer of upstream
ownership interests in companies owning generation facilities, the same de minimis
exception applies.55
The relevant geographic markets for the JV Buyout are ISO-NE, NYISO and
NBSO because those are the BAAs where the JV Applicants’ generation facilities
are located. The relevant geographic markets for the SunEdison Transaction are
53Order No. 642 at 31,872.
5418 C.F.R. § 33.3(a)(2)(i).
55See, e.g., Bridgeport Energy LLC, 114 FERC ¶ 62,166 (2006) (approving upstream transfer of jurisdictional facilities even though the parties did not file a horizontal competitive screen analysis because the parties held only a de minimis interest in the relevant market).
25 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
the ISO-NE, NYISO, NBSO, LADWP and Avista BAAs because that is where the
First Wind Applicants’ generation facilities are located.
1. The JV Buyout Raises No Horizontal Market Power Concerns.
There are no horizontal market power concerns associated with the JV
Buyout because before the JV Buyout, First Wind Holdings indirectly owns 51% of
the voting securities of the JV Applicants and after the JV Buyout, it will simply
increase its interests and indirectly own 100% of the voting securities of the JV
Applicants. Consequently, the JV Buyout does not raise horizontal market power
concerns in the relevant geographic markets and therefore the Commission should
authorize the JV Buyout without requiring the filing of the horizontal competitive
screen analysis under Section 33.3(a)(2) of the Commission’s regulations.
2. The SunEdison Transaction Raises No Horizontal Market Power Concerns.
The SunEdison Transaction will have a de minimis effect on horizontal
competition in the ISO-NE, NYISO, LADWP, NBSO, and Avista markets.
a. ISO-NE
The installed capacity in ISO-NE is approximately 28,364 MW.56 The First
Wind Applicants and their affiliates (excluding current affiliates through Emera,
D.E. Shaw and Madison Dearborn) currently own or control 216.7 MW in ISO-NE,
which is approximately 0.76% of the installed capacity in the ISO-NE market.
56ISO-NE, Form 714 for Calendar Year Ending December 31, 2013 (filed May 30, 2014), at p. 2.15.
26 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Buyers own, operate or control approximately 70.8 MW of generation in ISO-NE,
which is approximately 0.25% of the installed capacity of the ISO-NE market.
Thus, the combined market share is less than 1.1%, which is clearly de minimis.57
b. NYISO
The installed capacity in NYISO is approximately 37,908 MW.58 The First
Wind Applicants (excluding their current affiliates through Emera, D.E. Shaw and
Madison Dearborn) currently own or control approximately 160 MW in NYISO,
which is approximately 0.42% of the installed capacity in the NYISO market.
Buyers own, operate or control approximately 19.82 MW in NYISO, which is
approximately 0.052% of the installed capacity of the NYISO market. Thus, the
combined market share is less than 0.5%, which is clearly de minimis.59
57Although there is no bright-line test for determining de minimis, a combined market share of less than 10 percent would meet the Commission’s Herfindahl–Hirschman Index (“HHI”) safe harbor thresholds, regardless of market concentration, given that the maximum HHI change for a merger of two firms with a combined market share of 10 percent is 50 points using the “2ab” method to approximate the change in market concentration. This is calculated as 2 times a 5 percent share times another 5 percent share, which equals 50 points. The 2ab method is derived from the difference between adding the squares of the pre-merger market shares of the two merging entities (a2 + b2), and squaring the combined firms’ post-merger market share ((a+b)2 = (a2 + b2 + 2ab)). Horizontal Merger Guidelines, 87 Fed. Reg. at 41,558 n.18. In this case, the combined market share will be less than 10%. Because the pre-transaction market share for the Applicants is 0.76% and the Buyers is 0.25%, the HHI change using the 2ab method would be at most 1 point, providing further evidence that the extent of business transactions in the same market is de minimis. The “2ab” method has been accepted in other cases approving applications under FPA § 203. See, e.g., Bishop Hill Energy LLC, 138 FERC ¶ 62,200 (2012); Suez Energy North America, Inc., 125 FERC ¶ 61,188 (2008); Mesquite Solar 1, LLC, 144 FERC ¶ 62,012 (2013); Copper Mountain Solar 2, LLC, 144 FERC ¶ 62,011 (2013); NRG Yield, Inc., 148 FERC ¶ 61,109, at PP 13, 14 (2014); Consumers Energy Co., 148 FERC ¶ 61,251, at PP 21, 23 (2014).
58NYISO , Form 714 for Calendar Year Ending December 31, 2013 (filed June 2, 2014), at p. 2.15.
59See supra note 57.
27 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
c. LADWP
Buyers currently do not own, operate or control any capacity in LADWP.
Therefore, the SunEdison Transaction will not result in any overlap and,
consequently, there are no horizontal market power concerns with respect to the
LADWP market.
d. Avista and NBSO
The other relevant geographic markets for the SunEdison Transaction are
Avista and NBSO. Buyers do not currently own, operate or control any generation
in Avista or NBSO. Therefore, there will be no overlap in generation in these
markets as a result of the SunEdison Transaction and consequently no horizontal
market power concerns in those markets.
Consequently, the Commission should conclude that the SunEdison
Transaction does not raise horizontal market power concerns in the relevant
geographic markets and authorize the SunEdison Transaction without requiring
the filing of the horizontal competitive screen analysis under Section 33.3(a)(2) of
the Commission’s regulations.60
3. The Transactions Raise No Vertical Market Power Concerns
No vertical market concentration analysis is required for the Commission to
conclude that the JV Buyout and SunEdison Transaction present no vertical
market power concerns. The Commission’s regulations provide that such analysis
6018 C.F.R. § 33.3(a)(2).
28 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
is not required if “[t]he merging entities currently do not provide inputs to
electricity products (i.e., upstream relevant products) and electricity products (i.e.,
downstream relevant products) in the same geographic markets or that the extent
of the business transactions in the same geographic market is de minimis.”61
Concern with regard to vertical market power generally arises when the
combined entity may restrict potential downstream competitors’ access to
upstream supply markets or increase potential competitors’ costs. These
circumstances are not present in either the JV Buyout or the SunEdison
Transaction
a. The JV Buyout Raises No Vertical Market Power Concerns.
The JV Buyout does not involve transmission facilities (other than inter-
connection facilities). Nor does the JV Buyout result in a combination of
generation facilities with transmission facilities on other upstream relevant
products. The JV Applicants therefore submit that the JV Buyout does not require
a vertical market concentration analysis under Section 33.4(a)(2) of the
Commission’s regulations.
6118 C.F.R. § 33.4(a)(2)(i).
29 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
b. The SunEdison Transaction Raises No Vertical Market Power Concerns
The SunEdison Transaction does not involve transmission facilities (other
than interconnection facilities).62 Nor does it result in a combination of generation
facilities with transmission facilities or other upstream relevant products since, as
set forth in Sections I and II, neither the First Wind Applicants nor Buyers own,
control or operate such facilities or products. The Applicants therefore submit
that the SunEdison Transaction does not require a vertical market concentration
analysis under Section 33.4(a)(2) of the Commission’s regulations.
B. Neither the JV Buyout Nor the SunEdison Transaction Will Have An Adverse Effect on Rates
The Transactions will have no effect on rates. In assessing the effect that a
proposed jurisdictional transaction could have on rates, the Commission’s
primary concern is “the protection of wholesale ratepayers and transmission
customers.”63 The Transactions will have no adverse effect on the wholesale rates
the First Wind Applicants will charge their respective wholesale power sales
customers. Both before and after the Transactions are consummated, all wholesale
sales of electric energy, capacity and ancillary services by the First Wind
62See, e.g., Fore River Development, LLC, 133 FERC ¶ 61,248, at PP 31–32 (2010) (ownership of interconnection facilities did not have an impact on vertical market power); Perryville Energy Partners, L.L.C., 99 FERC ¶ 62,061 (2002) (same); Hillabee Energy Center, LLC, 122 FERC ¶ 62,135 (2008); Grand Ridge Energy LLC, 128 FERC ¶ 62,058 (2009); Oklahoma Gas and Electric Co., 105 FERC ¶ 61,297 (2003), approving contested settlement offer, 108 FERC ¶ 61,004 (2004) (same).
63New England Power Co., 82 FERC ¶ 61,179, at 61,659, reh’g, 83 FERC ¶ 61,275 (1998). See Merger Policy Statement, 61 Fed. Reg. at 68603 (concern is to protect ratepayers from rate increases because of a merger).
30 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Applicants are and will be made pursuant to market-based rate authority. The JV
Buyout involves only the increase in First Wind Holdings’ voting securities in the
JV Applicants from 51% to 100%, and the SunEdison Transaction involves a
change in the upstream ownership of the First Wind Applicants. The changes
resulting from the Transactions will not affect any such wholesale sales.
Moreover, none of the First Wind Applicants has captive wholesale customers.
Certain of the First Wind Applicants have rate schedules, shared facilities
agreements, facilities use agreements and tenant-in-common agreements on file
with the Commission that govern the use of various interconnection facilities, as
described in Section I. These agreements provide for sharing of costs among joint
owners or use of interconnection facilities either at no charge or under terms that
provide for the recovery of actual operating costs. The JV Buyout involves only
the increase in First Wind Holdings’ voting securities in the JV Applicants from
51% to 100%, and the SunEdison Transaction involves a change in the upstream
ownership of the First Wind Applicants. These upstream changes in ownership
will not affect the terms of these rate schedules and agreements, or have any effect
on the interconnection facility operating costs that might be recovered under the
terms of the applicable agreements. Therefore, the Transactions will not adversely
affect rates.64
64See Merger Policy Statement at 68603, 68605.
31 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
C. Neither the JV Buyout Nor the SunEdison Transaction Will Have an Adverse Effect on Regulation
The Commission’s review of a jurisdictional transaction’s effect on state or
federal regulation is focused on ensuring that a transaction does not result in a
regulatory gap.65 After each of the Transactions is consummated, each of the First
Wind Applicants will continue to be regulated by the Commission under the FPA
to the same degree as before each Transaction. None of the First Wind Applicants
make any retail sales subject to the ratemaking jurisdiction of a state commission.
Accordingly, the Transactions will not impair the ability of any state authorities to
regulate retail sales. Accordingly, neither the JV Buyout nor the SunEdison
Transaction will affect or impair effective state regulation.
D. Neither the JV Buyout Nor the SunEdison Transaction Will Result in Cross-Subsidization
Pursuant to FPA § 203(a)(4) and Section 2.26(f) of the Commission’s
regulations,66 the Commission evaluates whether a proposed transaction will
result in the cross-subsidization of a non-utility associate company or the pledge
or encumbrance of utility assets for the benefit of an associate company. Neither
Transaction raises issues concerning cross-subsidization.
65Order No. 642 at 31,914–15.
6618 C.F.R. § 2.26(f).
32 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
As applicable here, in its Supplemental Policy Statement,67 the Commission
identified, inter alia, two classes of transactions that are unlikely to raise cross-
subsidization concerns described in the Order No. 669 rulemaking proceeding.
One such class involves transactions in which no franchised public utility with
captive customers is involved in the transaction.68 None of the Applicants is a
franchised public utility with captive customers. Neither Buyers nor any of their
affiliates own or control any franchised public utility with captive customers.69
Except for Evergreen Gen Lead and Maine GenLead, each First Wind Applicant
sells power pursuant to its market-based rate authority. Evergreen Gen Lead
provides and Maine GenLead will (once constructed) provide services over their
respective transmission interconnection facilities to affiliates pursuant to rate
schedules on file with the Commission, and each have OATT Waivers.70
Consequently, both Transactions fall within the safe harbor for transactions
that do not involve a franchised public utility because neither Transaction will be
among entities that are franchised public utilities. In such cases, the Commission
67FPA Section 203 Supplemental Policy Statement, 72 Fed. Reg. 42277 (Aug. 2, 2007) (“Supplemental Policy Statement”).
68Id. at P 17.
69The Commission defines captive customers as “any wholesale or retail electric energy customers served by a franchised public utility under cost-based regulation.” 18 C.F.R. § 33.1(b)(5).
70See Sections I.A.5. and I.C.2.
33 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
has found that there is no potential for harm to customers and, therefore, detailed
explanation and evidentiary support to comply with Exhibit M is not required.71
However, the Applicants provide in Exhibit M the representations that,
based on the facts and circumstances known to Applicants or that are reasonably
foreseeable, the Transactions will not result in, at the time of the Transactions or in
the future, cross-subsidization of a non-utility associate company or pledge or
encumbrance of utility assets for the benefit of an associate company.
V. INFORMATION REQUIRED BY PART 33 OF THE COMMISSION’S REGULATIONS
In compliance with Section 33.2 of the Commission’s regulations,72 the
Applicants submit the following required information.
71Supplemental Policy Statement at PP 14, 15.
7218 C.F.R. § 33.2.
34 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
A. Section 33.2(a): The Exact Name of the Applicants and Their Principal Business Addresses.
The exact legal name of each Applicant and its principal business address is
as follows:
Exact Name of Each Applicant Principal Business Address for Each Applicant Blue Sky East, LLC Canandaigua Power Partners, LLC c/o First Wind Energy, LLC Canandaigua Power Partners II, LLC 179 Lincoln Street Erie Wind, LLC Suite 250 Evergreen Gen Lead, LLC Boston, MA 02111 Evergreen Wind Power, LLC Evergreen Wind Power III, LLC First Wind Energy Marketing, LLC Longfellow Wind, LLC Maine GenLead, LLC Milford Wind Corridor Phase I, LLC Milford Wind Corridor Phase II, LLC Niagara Wind Power, LLC Palouse Wind, LLC Stetson Holdings, LLC Stetson Wind II, LLC Vermont Wind, LLC
TerraForm Power, LLC TerraForm Power, LLC 12500 Baltimore Avenue Beltsville, MD 20705
SunEdison, Inc. SunEdison, Inc. 44 Montgomery Street, Suite 2200 San Francisco, CA 94104
35 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
B. Section 33.2(b): The Names and Addresses of the Persons Authorized to Receive Notices and Communications Regarding the Application, Including Phone and Fax Numbers, and E-Mail Addresses.
For First Wind Applicants:
Deborah A. Carpentier Hallie Flint Gilman Crowell & Moring LLP Associate General Counsel 1001 Pennsylvania Avenue, NW First Wind Holdings, LLC Washington, DC 20004-2595 129 Middle Street, 3rd Floor Tel: 202.624.2857 Portland, ME 04101 Fax: 202.628.5116 Tel: 207.228.6887 [email protected] Fax: 207.221.1605 [email protected]
For Buyers:
Adam Wenner Sebastian Deschler A. Cory Lankford Senior Vice President and Orrick, Herrington & Sutcliffe LLP General Counsel 1152 15th Street, NW TerraForm Power, Inc. Washington, DC 20005-1706 12500 Baltimore Avenue Tel: 202.339.8515 Beltsville, MD 20705 Fax: 202.339.8500 Tel: 443.909.79264 [email protected] [email protected] [email protected] Karleen O’Conner Stern Vice President Legal – Utility SunEdison LLC 44 Montgomery Street, Suite 2200 San Francisco, CA 9410 Phone: (415) 229-8863 [email protected]
36 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
C. Section 33.2(c): Description of the Applicants.
1. Section 33.2(c)(1): All business activities of the Applicants, including authorizations by charter or regulatory approval.
Section I of this Application describes the business activities of the
Applicants. Applicants respectfully request waiver of the requirement to submit
this or any additional information as a separate Exhibit A.
2. Section 33.2(c)(2): A list of Applicants’ energy subsidiaries and energy affiliates, percentage ownership interest in such subsidiaries and affiliates, and a description of the primary business in which each energy subsidiary and affiliate is engaged.
Exhibit B describes the generation capacity owned, operated or controlled
by Buyers and their affiliates. Section I of the Application contains descriptions of
the First Wind Applicants and their relevant energy-related affiliates.
Information about the JV Applicants’ affiliates through Emera is not
relevant to the Commission’s evaluation of the Transactions because Emera will
have no ownership or control over the JV Applicants once the JV Buyout closes.
Similarly, information about the First Wind Applicants’ affiliates through D.E.
Shaw and Madison Dearborn are not relevant to the Commission’s evaluation of
the Transactions because (i) the JV Buyout involves the increase of First Wind
Holdings’ voting securities in the JV Applicants from 51% to 100%, increasing First
Wind Holdings’ (as well as D.E. Shaw’s and Madison Dearborn’s) control over the
JV Applicants, and (ii) after the SunEdison Transaction closes, neither D.E. Shaw
nor Madison Dearborn will own any voting securities of First Wind Holdings. For
37 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
these reasons, Applicants respectfully request waiver, to the extent necessary, of
the requirement to provide additional information regarding current affiliations of
the First Wind Applicants through Emera, D.E. Shaw and Madison Dearborn.
3. Section 33.2(c)(3): Organizational charts depicting the Applicants’ current and proposed post-transaction corporate structures (including any pending authorized but not implemented changes) indicating all parent companies, energy subsidiaries and energy affiliates of the Applicants unless the Applicants demonstrates that the proposed transaction does not affect the corporate structure of any party to the transaction.
See Exhibits C-1 through C-4. Unless otherwise noted, the percentage
interest figures on the exhibits are voting securities. Passive, non-voting interests
in certain of the First Wind Applicants are described in Section I. Applicants
request a waiver of the requirements of 18 C.F.R. § 33.2(c)(3), to the extent
necessary, to provide additional information on the organizational charts
provided, including certain intermediate holding companies, subsidiaries and
affiliates, because such information is not relevant to the Commission’s evaluation
of the Transactions.
38 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
4. Section 33.2(c)(4): A description of all joint ventures, strategic alliances, tolling arrangements or other business arrangements, including transfers of operational control of transmission facilities to Commission-approved Regional Transmission Organizations, both current, and planned to occur within a year from the date of filing, to which the Applicants or their respective parent companies, energy subsidiaries, and energy affiliates are a party, unless the Applicants demonstrate that the proposed transaction does not affect any of its business interests.
Other than as set forth in the Application, the Transactions will not affect
the business arrangements of the Applicants. Applicants, therefore, respectfully
request a waiver of the requirement to provide Exhibit D.
5. Section 33.2(c)(5): The identity of common officers or directors of parties to the Transaction.
The First Wind Applicants currently do not share common officers or
directors with Buyers or their affiliates or subsidiaries. Applicants, therefore,
respectfully request a waiver of the requirement to provide an Exhibit E.
6. Section 33.2(c)(6): A description and location of wholesale power sales customers and unbundled transmission services customers served by the applicants or their parent companies, subsidiaries, affiliates and associate companies.
Relevant information about the First Wind Applicants’ wholesale power
sales, rate schedules, shared facilities agreements, facilities use agreements and
tenant-in-common agreements is provided in Section I. Additional information
would not assist the Commission in its evaluation of the Transactions. Applicants,
therefore, respectfully request a waiver to the extent additional information would
39 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
be required by 18 C.F.R. § 33.2(c)(6), and of the requirement to provide an
Exhibit F.
D. Section 33.2(d): A Description of Jurisdictional Facilities Owned, Operated, or Controlled by the Applicants or their Parent Companies, Subsidiaries, Affiliates, and Associate Companies.
See Section I. The FPA-jurisdictional facilities consist of the market-based
rate tariffs, other rate schedules, wholesale power sales agreements, the
interconnection facilities used to effectuate wholesale power sales, and/or related
books and records of the First Wind Applicants. Applicants respectfully request
waiver of the requirement to provide further information regarding jurisdictional
facilities owned, operated or controlled by other affiliates of any Applicant
because such information is not relevant to the Commission’s evaluation of the
Transactions and to the extent necessary, Applicants also respectfully request
waiver of the requirement to submit this or any additional information as a
separate Exhibit G.
E. Section 33.2(e): Narrative Description of the Transactions
Section III of this Application describes the Transactions. Therefore,
Applicants respectfully request waiver of the requirement to submit this
information as a separate Exhibit H.
40 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
F. Section 33.2(e)(2): All Jurisdictional Facilities and Securities Associated With or Affected by the Transaction
Sections I and II describe the relevant jurisdictional facilities affected by the
Transactions. Applicants, therefore, respectfully request waiver of the
requirement to provide this or any additional information in a separate Exhibit H.
G. Section 33.2(f): Contracts Related to the Transaction
See Confidential Exhibits I-1 and I-2. Schedules 1.01(a), 1.01(m), 2.06(d) and
6.02(a)(ix) of the SunEdison PSA have not been included in Confidential Exhibit
I-2 because those schedules include sensitive employee information that is not
relevant to the Commission’s evaluation of the SunEdison Transaction.
H. Section 33.2(g): Explanatory Statement Demonstrating that the Transaction are Consistent with the Public Interest
Section IV of this Application describes how the Transactions are consistent
with the public interest. Applicants, therefore, respectfully request waiver of the
requirement to provide this or any additional information in a separate Exhibit J.
I. Section 33.2(h): If the Transactions Involve Physical Property of Any Party, the Applicants Must Provide a General or Key Map Showing In Different Colors the Properties of Each Party to the Transaction.
The Transactions do not involve a merger or other combination of
jurisdictional facilities, and a map would not provide the Commission with
information relevant to its analysis of the Transactions. Applicants, therefore,
respectfully request a waiver of the requirement to provide a map in Exhibit K.
41 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
J. Section 33.2(i): If The Applicant Is Required To Obtain Licenses, Orders, or Other Approvals From Other Regulatory Bodies In Connection With the Transaction, the Applicant Must Identify the Regulatory Bodies and Indicate the Status of Other Regulatory Actions, and Provide a Copy of Each Order of Those Regulatory Bodies That Relates to the Transaction.
See Exhibit L.
K. Section 33.2(j)(1): Explanation Providing Assurance That the Transaction Will Not Result in Cross-Subsidization or Pledge or Encumbrance of Utility Assets
See Exhibit M.
VI. REQUEST FOR CONFIDENTIAL TREATMENT
Pursuant to Section 388.112 of the Commission’s regulations,73 Applicants
request confidential treatment for the transaction documents in Exhibits I-1 and I-2
because such documents contain sensitive commercial and financial information
that is privileged or confidential and not publicly available. If such information or
agreement were to become public, it would harm the parties in future negotiations
for similar transactions and in structuring future investments. In addition,
Schedules 1.01(a), 1.01(m), 2.06(d) and 6.02(a)(ix) of the SunEdison PSA have not
been included in Confidential Exhibit I-2 because those schedules include sensitive
employee information that is not relevant to the Commission’s evaluation of the
SunEdison Transaction. Applicants have attached a draft protective agreement as
7318 C.F.R. § 388.112.
42 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Attachment 2 to this Application in accordance with Section 33.8(a) of the
Commission’s regulations.74
VII. ACCOUNTING TREATMENT
None of the Applicants maintains its books of account in accordance with
the Commission’s Uniform System of Accounts in Part 101 of the Commission’s
regulations.
VIII. VERIFICATIONS
The Applicants have provided the verifications required under Section 33.7
of the Commission’s regulations in Attachment 1.
7418 C.F.R. § 33.8(a).
43 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
IX. CONCLUSION
For the reasons stated herein, the Applicants respectfully request that the
Commission approve the requests set forth herein without modification or
condition.
Respectfully submitted,
/s/Deborah A. Carpentier______Pat Alexander Larry F. Eisenstat Senior Policy Advisor Deborah A. Carpentier Crowell & Moring, LLP Crowell & Moring, LLP 1001 Pennsylvania Avenue, NW 1001 Pennsylvania Avenue, NW Washington, DC 20004-2595 Washington, DC 20004-2595 Telephone: (202) 624-2788 Telephone: (202) 624-2857
Attorneys for First Wind Applicants
/s/Adam Wenner______Adam Wenner A. Cory Lankford Orrick, Herrington & Sutcliffe LLP 1152 15th Street, NW Washington, DC 20005-1706 Telephone: 202.339.8515
Attorneys for SunEdison, Inc. and December 2, 2014 TerraForm Power, LLC
44 DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
List of Exhibits1
Exhibit B Generation Capacity Owned or Controlled by SunEdison or TerraForm
Exhibit C-1 Pre-Transaction Organizational Chart (JV Buyout)
Exhibit C-2 Post-Transaction Organizational Chart (JV Buyout)
Exhibit C-3 Pre-Transaction Organizational Chart (SunEdison Transaction)
Exhibit C-4 Post-Transaction Organizational Chart (SunEdison Transaction)
Confidential Exhibit I-1 Purchase Agreement (JV Buyout)
Confidential Exhibit I-2 Purchase and Sale Agreement (SunEdison Transaction)
Exhibit L Other Approvals
Exhibit M Explanation Providing Assurance that the Transactions Will Not Result in Cross-Subsidization or Pledge or Encumbrance of Utility Assets
1Unless otherwise defined in the Exhibits, capitalized terms used in the Exhibits have the meaning ascribed to them in the Application.
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
EXHIBIT B
SunEdison, Inc. and TerraForm Power, LLC
Market-Based Rate Authority and Generation Assets
Location Nameplate and/or Filing Entity Seasonal Docket # and its Rating where MBR Generation Controlled Date Control In-service Energy Owned By Balancing Geographic (ratings are authority Name By Transferred Date Affiliates Authority Region (per nameplate granted Area Appendix D) unless otherwise indicated)
CSOLAR IV ER14-1656 Imperial CSOLAR IV SDG&E N/A CAISO Southwest 2015 148.7 MW West, LLC Solar Energy West, LLC (summer Center West rating)
Regulus ER14-2630 Regulus Regulus Regulus N/A CAISO Southwest Fourth 67.5 MW Solar, LLC Solar Solar, LLC Solar, LLC quarter of (summer 2014 rating)
Imperial ER13-1139 Mount Imperial Imperial N/A CAISO Southwest 2014 200 MW Valley Solar Signal Valley Solar Valley Solar (summer 1, LLC 1, LLC 1, LLC rating)
CALRENE N/A CalRenew-1 CALRENE CALRENEW N/A CAISO Southwest 2010 5.0 MW W-1 LLC* (Meridian) W-1 LLC -1 LLC (summer rating)
* Entity is a wholly-owned subsidiary of TerraForm Power, LLC, which is majority-owned by SunEdison LLC. No other owner of TerraForm Power, LLC controls 10% or more of its voting securities. ** Entity to be acquired from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction set to close in early December 2014.
1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Location Nameplate and/or Filing Entity Seasonal Docket # and its Rating where MBR Generation Controlled Date Control In-service Energy Owned By Balancing Geographic (ratings are authority Name By Transferred Date Affiliates Authority Region (per nameplate granted Area Appendix D) unless otherwise indicated)
SPS Atwell N/A Atwell SPS Atwell SPS Atwell N/A CAISO Southwest 2013 20.2 MW Island, LLC* Island Island, LLC Island, LLC (summer rating)
Orion Solar, N/A Orion I Orion Solar, Orion Solar, N/A CAISO Southwest 2014 12 MW LLC LLC LLC
Orion Solar N/A Orion II Orion Solar Orion Solar N/A CAISO Southwest 2014 8 MW II, LLC II, LLC II, LLC
Cascade N/A Cascade Cascade Cascade N/A CAISO Southwest 2013 18.5 MW Solar, LLC Solar, LLC Solar, LLC
TerraForm N/A Arrache TerraForm TerraForm 2014 CAISO Southwest 2011 1 MW Power, LLC 4006-1** Power, LLC Power, LLC
TerraForm N/A Arrache TerraForm TerraForm 2014 CAISO Southwest 2011 1 MW Power, LLC 4006-2** Power, LLC Power, LLC
TerraForm N/A Arrache TerraForm TerraForm 2014 CAISO Southwest 2011 1.5 MW Power, LLC 4013** Power, LLC Power, LLC
* Entity is a wholly-owned subsidiary of TerraForm Power, LLC, which is majority-owned by SunEdison LLC. No other owner of TerraForm Power, LLC controls 10% or more of its voting securities. ** Entity to be acquired from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction set to close in early December 2014.
2 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Location Nameplate and/or Filing Entity Seasonal Docket # and its Rating where MBR Generation Controlled Date Control In-service Energy Owned By Balancing Geographic (ratings are authority Name By Transferred Date Affiliates Authority Region (per nameplate granted Area Appendix D) unless otherwise indicated)
TerraForm N/A Arrache TerraForm TerraForm 2014 CAISO Southwest 2011 1.5 MW Power, LLC 8083-1** Power, LLC Power, LLC
TerraForm N/A Arrache TerraForm TerraForm 2014 CAISO Southwest 2011 1.5 MW Power, LLC 8083-2** Power, LLC Power, LLC
TerraForm N/A Arrache TerraForm TerraForm 2014 CAISO Southwest 2011 1 MW Power, LLC 8083-3** Power, LLC Power, LLC
TerraForm N/A Nunn TerraForm TerraForm 2014 CAISO Southwest 2011 1 MW Power, LLC 8135** Power, LLC Power, LLC
TerraForm N/A Vinam-1 TerraForm TerraForm 2014 CAISO Southwest 2011 1.5 MW Power, LLC 9011** Power, LLC Power, LLC
TerraForm N/A Watts 3115- TerraForm TerraForm 2014 CAISO Southwest 2011 1.5 MW Power, LLC 1** Power, LLC Power, LLC
* Entity is a wholly-owned subsidiary of TerraForm Power, LLC, which is majority-owned by SunEdison LLC. No other owner of TerraForm Power, LLC controls 10% or more of its voting securities. ** Entity to be acquired from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction set to close in early December 2014.
3 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Location Nameplate and/or Filing Entity Seasonal Docket # and its Rating where MBR Generation Controlled Date Control In-service Energy Owned By Balancing Geographic (ratings are authority Name By Transferred Date Affiliates Authority Region (per nameplate granted Area Appendix D) unless otherwise indicated)
TerraForm N/A Watts 3115- TerraForm TerraForm 2014 CAISO Southwest 2011 0.5 MW Power, LLC 2** Power, LLC Power, LLC
TerraForm N/A Horn 4097** TerraForm TerraForm 2014 CAISO Southwest 2011 1.5 MW Power, LLC Power, LLC Power, LLC
TerraForm N/A MA 4035** TerraForm TerraForm 2014 CAISO Southwest 2011 1.5 MW Power, LLC Power, LLC Power, LLC
TerraForm N/A Rutan 2061- TerraForm TerraForm 2014 CAISO Southwest 2012 1.5 MW Power, LLC 1** Power, LLC Power, LLC
TerraForm N/A Rutan 2061- TerraForm TerraForm 2014 CAISO Southwest 2012 1.5 MW Power, LLC 2** Power, LLC Power, LLC
TerraForm N/A Rutan 2061- TerraForm TerraForm 2014 CAISO Southwest 2012 1.0 MW Power, LLC 3** Power, LLC Power, LLC
* Entity is a wholly-owned subsidiary of TerraForm Power, LLC, which is majority-owned by SunEdison LLC. No other owner of TerraForm Power, LLC controls 10% or more of its voting securities. ** Entity to be acquired from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction set to close in early December 2014.
4 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Location Nameplate and/or Filing Entity Seasonal Docket # and its Rating where MBR Generation Controlled Date Control In-service Energy Owned By Balancing Geographic (ratings are authority Name By Transferred Date Affiliates Authority Region (per nameplate granted Area Appendix D) unless otherwise indicated)
TerraForm N/A Land Pro TerraForm TerraForm 2014 CAISO Southwest 2014 1.5 MW Power, LLC 8159** Power, LLC Power, LLC (expected)
TerraForm N/A Land Pro TerraForm TerraForm 2014 CAISO Southwest 2014 1.5 MW Power, LLC 8160** Power, LLC Power, LLC (expected)
TerraForm N/A Land Pro TerraForm TerraForm 2014 CAISO Southwest 2014 1.5 MW Power, LLC 8161** Power, LLC Power, LLC (expected)
SunE Solar N/A Corona SunE Solar SunE Solar N/A CAISO Southwest 2013 1.1 MW XII, LLC XII, LLC XII, LLC
SS San N/A Chino SS San SS San N/A CAISO Southwest 2012 1.5 MW Antonio Antonio Antonio West, LLC* West, LLC West, LLC
SunE N/A Snowline - SunE SunE CREST N/A CAISO Southwest Fourth 1.5 MW CREST 1, Duncan CREST 1, 1, LLC quarter of LLC* Road (North) LLC 2014
* Entity is a wholly-owned subsidiary of TerraForm Power, LLC, which is majority-owned by SunEdison LLC. No other owner of TerraForm Power, LLC controls 10% or more of its voting securities. ** Entity to be acquired from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction set to close in early December 2014.
5 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Location Nameplate and/or Filing Entity Seasonal Docket # and its Rating where MBR Generation Controlled Date Control In-service Energy Owned By Balancing Geographic (ratings are authority Name By Transferred Date Affiliates Authority Region (per nameplate granted Area Appendix D) unless otherwise indicated)
SunE N/A Snowline - SunE SunE CREST N/A CAISO Southwest Fourth 1 MW CREST 2, Duncan CREST 2, 2, LLC quarter of LLC* Road (South) LLC 2014
SunE N/A Snowline - SunE SunE CREST N/A CAISO Southwest Fourth 1.5 MW CREST 6, White Road CREST 6, 6, LLC quarter of LLC* (Central) LLC 2014
SunE N/A Snowline - SunE SunE CREST N/A CAISO Southwest Fourth 1.5 MW CREST 5, White Road CREST 5, 5, LLC quarter of LLC* (North) LLC 2014
SunE N/A Snowline - SunE SunE CREST N/A CAISO Southwest Fourth 1.5 MW CREST 7, White Road CREST 7, 7, LLC quarter of LLC* (South) LLC 2014
SunE Solar N/A Prescott SunE Solar SunE Solar N/A APS Southwest 2011 10.8 MW V, LLC V, LLC V, LLC (summer rating)
* Entity is a wholly-owned subsidiary of TerraForm Power, LLC, which is majority-owned by SunEdison LLC. No other owner of TerraForm Power, LLC controls 10% or more of its voting securities. ** Entity to be acquired from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction set to close in early December 2014.
6 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Location Nameplate and/or Filing Entity Seasonal Docket # and its Rating where MBR Generation Controlled Date Control In-service Energy Owned By Balancing Geographic (ratings are authority Name By Transferred Date Affiliates Authority Region (per nameplate granted Area Appendix D) unless otherwise indicated)
SunE Solar N/A Saddle SunE Solar SunE Solar N/A APS Southwest 2012 15.0 MW XI, LLC Mountain XI, LLC XI, LLC (summer rating)
WF EPE N/A Chaparral WF EPE WF EPE N/A EPE Southwest 2012 11.3 MW Chaparral, Chaparral, Chaparral, LLC LLC LLC
WF EPE N/A Las Cruces Las WF EPE Las WF EPE N/A EPE Southwest 2012 13.6 MW Chaparral, Chaparral, Chaparral, LLC LLC LLC
SunE Solar N/A Dollarhide SunE Solar SunE Solar N/A PNM Southwest 2011 10.7 MW XIII, LLC Substation XIII, LLC XIII, LLC
SunE Solar N/A Hopi SunE Solar SunE Solar N/A PNM Southwest 2011 10.9 MW XIII, LLC Substation XIII, LLC XIII, LLC
SunE Solar N/A Jal SunE Solar SunE Solar N/A PNM Southwest 2011 10.6 MW XIII, LLC Substation XIII, LLC XIII, LLC
SunE Solar N/A Lea SunE Solar SunE Solar N/A PNM Southwest 2011 10.7 MW XIII, LLC Substation XIII, LLC XIII, LLC
* Entity is a wholly-owned subsidiary of TerraForm Power, LLC, which is majority-owned by SunEdison LLC. No other owner of TerraForm Power, LLC controls 10% or more of its voting securities. ** Entity to be acquired from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction set to close in early December 2014.
7 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Location Nameplate and/or Filing Entity Seasonal Docket # and its Rating where MBR Generation Controlled Date Control In-service Energy Owned By Balancing Geographic (ratings are authority Name By Transferred Date Affiliates Authority Region (per nameplate granted Area Appendix D) unless otherwise indicated)
SunE Solar N/A Monument SunE Solar SunE Solar N/A PNM Southwest 2011 10.8 MW XIII, LLC Substation XIII, LLC XIII, LLC
SunE N/A Alamosa SunE SunE N/A PSCO Northwest 2007 8.2 MW Alamosa, Alamosa, Alamosa, LLC LLC LLC
SunE Solar N/A Lakeland SunE Solar SunE Solar N/A FMPP Southeast 2012 3.5 MW XII, LLC Airport XII, LLC XII, LLC Phase I
SunE Solar N/A Lakeland SunE Solar SunE Solar N/A FMPP Southeast 2011 2.7 MW VII, LLC Airport VII, LLC VII, LLC Phase II
SunE Solar N/A Lakeland SunE Solar SunE Solar N/A FMPP Southeast 2010 0.28 MW III, LLC Center III, LLC III, LLC
SunE Solar N/A Davidson I SunE Solar SunE Solar N/A DUK Southeast 2009 3.9 MW V, LLC V, LLC V, LLC
SunE Solar N/A Davidson II SunE Solar SunE Solar N/A DUK Southeast 2010 3.3 MW V, LLC V, LLC V, LLC
* Entity is a wholly-owned subsidiary of TerraForm Power, LLC, which is majority-owned by SunEdison LLC. No other owner of TerraForm Power, LLC controls 10% or more of its voting securities. ** Entity to be acquired from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction set to close in early December 2014.
8 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Location Nameplate and/or Filing Entity Seasonal Docket # and its Rating where MBR Generation Controlled Date Control In-service Energy Owned By Balancing Geographic (ratings are authority Name By Transferred Date Affiliates Authority Region (per nameplate granted Area Appendix D) unless otherwise indicated)
SunE Solar N/A Davidson III SunE Solar SunE Solar N/A DUK Southeast 2010 5 MW V, LLC V, LLC V, LLC
SunE Solar N/A Davidson IV SunE Solar SunE Solar N/A DUK Southeast 2010 3.4 MW V, LLC V, LLC V, LLC
SunE Solar N/A Davidson V SunE Solar SunE Solar N/A DUK Southeast 2010 1.7 MW V, LLC V, LLC V, LLC
SunE Solar N/A Sutton SunE Solar SunE Solar N/A DUK Southeast 2008 1.2 MW III, LLC III, LLC III, LLC
SunE Solar N/A ASI - SunE Solar SunE Solar N/A SOCO Southeast 2014 1 MW XV, LLC SolAmerica XV, LLC XV, LLC
SunE Solar N/A Jefferson SunE Solar SunE Solar N/A SOCO Southeast 2014 0.57 MW XIV, LLC XIV, LLC XIV, LLC
SunE Solar N/A Stephens – SunE Solar SunE Solar N/A SOCO Southeast 2014 0.66 MW XIV, LLC GA Power – XIV, LLC XIV, LLC URE - GA
* Entity is a wholly-owned subsidiary of TerraForm Power, LLC, which is majority-owned by SunEdison LLC. No other owner of TerraForm Power, LLC controls 10% or more of its voting securities. ** Entity to be acquired from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction set to close in early December 2014.
9 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Location Nameplate and/or Filing Entity Seasonal Docket # and its Rating where MBR Generation Controlled Date Control In-service Energy Owned By Balancing Geographic (ratings are authority Name By Transferred Date Affiliates Authority Region (per nameplate granted Area Appendix D) unless otherwise indicated)
Dessie Solar N/A Dessie Solar Dessie Solar Dessie Solar 2014 SOCO Southeast 2013 5 MW Center, LLC Center Center, LLC Center, LLC
Bearpond N/A Bearpond Bearpond Bearpond 2014 SOCO Southeast 2013 5 MW Solar Center, Solar Center Solar Center, Solar Center, LLC LLC LLC
Shankle N/A Shankle Shankle Shankle Solar 2014 SOCO Southeast 2013 5 MW Solar Center, Solar Center Solar Center, Center, LLC LLC LLC
Graham N/A Graham Graham Graham Solar 2014 SOCO Southeast 2013 5 MW Solar Center, Solar Center Solar Center, Center, LLC LLC LLC
TerraForm N/A Brentwood TerraForm TerraForm 2014 NYISO Northeast 2012 1 MW Power, LLC LIRR Power, LLC Power, LLC Station**
* Entity is a wholly-owned subsidiary of TerraForm Power, LLC, which is majority-owned by SunEdison LLC. No other owner of TerraForm Power, LLC controls 10% or more of its voting securities. ** Entity to be acquired from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction set to close in early December 2014.
10 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Location Nameplate and/or Filing Entity Seasonal Docket # and its Rating where MBR Generation Controlled Date Control In-service Energy Owned By Balancing Geographic (ratings are authority Name By Transferred Date Affiliates Authority Region (per nameplate granted Area Appendix D) unless otherwise indicated)
TerraForm N/A Cohalan TerraForm TerraForm 2014 NYISO Northeast 2012 2.461 MW Power, LLC Court Power, LLC Power, LLC Complex East**
TerraForm N/A Cohalan TerraForm TerraForm 2014 NYISO Northeast 2012 1.475 MW Power, LLC Court Power, LLC Power, LLC Complex West**
TerraForm N/A Deer Park** TerraForm TerraForm 2014 NYISO Northeast 2012 2.466 MW Power, LLC Power, LLC Power, LLC
TerraForm N/A Dennison** TerraForm TerraForm 2014 NYISO Northeast 2012 1.968 MW Power, LLC Power, LLC Power, LLC
TerraForm N/A North TerraForm TerraForm 2014 NYISO Northeast 2012 0.982 MW Power, LLC County** Power, LLC Power, LLC
TerraForm N/A Riverhead TerraForm TerraForm 2014 NYISO Northeast 2012 1.474 MW Power, LLC County** Power, LLC Power, LLC
* Entity is a wholly-owned subsidiary of TerraForm Power, LLC, which is majority-owned by SunEdison LLC. No other owner of TerraForm Power, LLC controls 10% or more of its voting securities. ** Entity to be acquired from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction set to close in early December 2014.
11 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Location Nameplate and/or Filing Entity Seasonal Docket # and its Rating where MBR Generation Controlled Date Control In-service Energy Owned By Balancing Geographic (ratings are authority Name By Transferred Date Affiliates Authority Region (per nameplate granted Area Appendix D) unless otherwise indicated)
SunEdison N/A Aggregate SunEdison SunEdison N/A APS Southwest N/A 15.52 MW Behind-the- Meter Generation
SunEdison N/A Aggregate SunEdison SunEdison N/A BANC Southwest N/A 3.83 MW Behind-the- Meter Generation
1 SunEdison N/A Aggregate SunEdison SunEdison N/A CAISO Southwest N/A 132.4 MW Behind-the- Meter Generation
SunEdison N/A Aggregate SunEdison SunEdison N/A NEVP Southwest N/A 15.15 MW Behind-the- Meter Generation
1 Includes 10.647 MW to be acquired by TerraForm Power, LLC in a series of lease transactions set to close within the next six months.
* Entity is a wholly-owned subsidiary of TerraForm Power, LLC, which is majority-owned by SunEdison LLC. No other owner of TerraForm Power, LLC controls 10% or more of its voting securities. ** Entity to be acquired from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction set to close in early December 2014.
12 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Location Nameplate and/or Filing Entity Seasonal Docket # and its Rating where MBR Generation Controlled Date Control In-service Energy Owned By Balancing Geographic (ratings are authority Name By Transferred Date Affiliates Authority Region (per nameplate granted Area Appendix D) unless otherwise indicated)
2 SunEdison N/A Aggregate SunEdison SunEdison N/A TEP Southwest N/A 4.01 MW Behind-the- Meter Generation
SunEdison N/A Aggregate SunEdison SunEdison N/A BPAT Northwest N/A 0.03 MW Behind-the- Meter Generation
3 SunEdison N/A Aggregate SunEdison SunEdison N/A PGE Northwest N/A 2.64 MW Behind-the- Meter Generation
SunEdison N/A Aggregate SunEdison SunEdison N/A PSCO Northwest N/A 21.92 MW Behind-the- Meter Generation
2 Includes 1.639 MW to be acquired by TerraForm Power, LLC in a series of lease transactions set to close within the next six months. 3 Includes 0.420 MW to be acquired by TerraForm Power, LLC in a series of lease transactions set to close within the next six months.
* Entity is a wholly-owned subsidiary of TerraForm Power, LLC, which is majority-owned by SunEdison LLC. No other owner of TerraForm Power, LLC controls 10% or more of its voting securities. ** Entity to be acquired from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction set to close in early December 2014.
13 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Location Nameplate and/or Filing Entity Seasonal Docket # and its Rating where MBR Generation Controlled Date Control In-service Energy Owned By Balancing Geographic (ratings are authority Name By Transferred Date Affiliates Authority Region (per nameplate granted Area Appendix D) unless otherwise indicated)
SunEdison N/A Aggregate SunEdison SunEdison N/A FPL Southeast N/A 0.5 MW Behind-the- Meter Generation
SunEdison N/A Aggregate SunEdison SunEdison N/A GVL Southeast N/A 0.48 MW Behind-the- Meter Generation
4 SunEdison N/A Aggregate SunEdison SunEdison N/A SOCO Southeast N/A 4.99 MW Behind-the- Meter Generation
5 SunEdison N/A Aggregate SunEdison SunEdison N/A PJM Northeast N/A 85.9 MW Behind-the- Meter Generation
4 Includes 2.994 MW to be acquired by TerraForm Power, LLC in a series of transaction set to close within the next six months. 5 Includes (1) 8.311 MW to be acquired from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction set to close in early December 2014; and (2) 10.057 MW to be acquired by TerraForm Power, LLC in a series of lease transactions set to close within the next six months.
* Entity is a wholly-owned subsidiary of TerraForm Power, LLC, which is majority-owned by SunEdison LLC. No other owner of TerraForm Power, LLC controls 10% or more of its voting securities. ** Entity to be acquired from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction set to close in early December 2014.
14 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Location Nameplate and/or Filing Entity Seasonal Docket # and its Rating where MBR Generation Controlled Date Control In-service Energy Owned By Balancing Geographic (ratings are authority Name By Transferred Date Affiliates Authority Region (per nameplate granted Area Appendix D) unless otherwise indicated)
6 SunEdison N/A Aggregate SunEdison SunEdison N/A ISO-NE Northeast N/A 70.8 MW Behind-the- Meter Generation
7 SunEdison N/A Aggregate SunEdison SunEdison N/A NYISO Northeast N/A 7.46 MW Behind-the- Meter Generation
SunEdison N/A Aggregate SunEdison SunEdison N/A MISO Central N/A 0.48 MW Behind-the- Meter Generation
6 Includes (1) 14.652 MW to be acquired from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction set to close in early December 2014; and (2) 13.748 MW to be acquired by TerraForm in a series of lease transactions set to close within next six months. 7 Includes 1.995 MW to be acquired by TerraForm Power, LLC in a series of lease transactions set to close within next six months.
* Entity is a wholly-owned subsidiary of TerraForm Power, LLC, which is majority-owned by SunEdison LLC. No other owner of TerraForm Power, LLC controls 10% or more of its voting securities. ** Entity to be acquired from Capital Dynamics U.S. Solar Energy Fund, L.P. in a transaction set to close in early December 2014.
15 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Electric Transmission Assets and/or Natural Gas Intrastate Pipelines and/or Gas Storage Facilities
Location Filing Entity and its Energy Asset Name Date Control Owned By Controlled By Geographic Size Affiliates and Use Transferred Balancing Region (per Authority Area Appendix D)
N/A N/A N/A N/A N/A N/A N/A N/A
OHSUSA:758757315.5
16 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
EXHIBIT C-1 Pre-JV Buyout Organization Chart
First Wind Holdings, LLC 100% First Wind Portfolio, LLC 100% First Wind Capital, LLC
100%
First Wind Operating Company, LLC 100%
Emera Incorporated
First Wind Northeast Company, LLC
51% (indirect)
49% (indirect) Northeast Wind Partners II, LLC
Blue Sky East, LLC Evergreen Wind Power III, LLC Canandaigua Power Partners, LLC Stetson Holdings, LLC Canandaigua Power Partners II, LLC Stetson Wind II, LLC Erie Wind, LLC Niagara Wind Power, LLC 76% Evergreen Wind Power, LLC Vermont Wind, LLC Evergreen Gen Lead, LLC
DCACTIVE-29850716.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
EXHIBIT C-2 Post-JV Buyout Organization Chart
First Wind Holdings, LLC
First Wind Portfolio, LLC 100% First Wind Capital, LLC
100%
First Wind Operating Company, LLC 100%
First Wind Northeast Company, LLC
100%
Northeast Wind Partners II, LLC
Blue Sky East, LLC Evergreen Wind Power III, LLC Canandaigua Power Partners, LLC Stetson Holdings, LLC Canandaigua Power Partners II, LLC Stetson Wind II, LLC Erie Wind, LLC Niagara Wind Power, LLC 76% Evergreen Wind Power, LLC Vermont Wind, LLC Evergreen Gen Lead, LLC
* R/C US Solar Investment Partnership, L.P. is an investment fund that is managed by Riverstone Holdings LLC. ** Remaining Owners consist of private placement purchasers and affiliates, public stockholders, and management stockholders. DCACTIVE-29850716.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
EXHIBIT C-3 Pre-SunEdison Transaction Organization Chart
First Wind Holdings, LLC 100% First Wind Portfolio, LLC 100% First Wind Capital, LLC
100%
First Wind Operating First Wind First Wind First Wind Pacific First Wind Utah Company, LLC Energy Oakfield Holdings, LLC Portfolio Marketing, LLC Portfolio, LLC 100% 100% 100% Longfellow First Wind Pacific First Wind Utah MTW First Wind Northeast Wind, LLC Resources, LP Maine GenLead Holdings, LLC Holdings, LLC Company, LLC Holdings, LLC 100% 80% 20% 100% (indirect) 100% Palouse Wind Holdings, LLC Milford Wind Corridor, LLC Maine GenLead, LLC 100% 100% 100%
Palouse Milford Wind Milford Wind Blue Sky East, LLC Evergreen Wind Power III, LLC Champlain Wind, LLC* Corridor Corridor Phase Canandaigua Power Partners, LLC Stetson Holdings, LLC Wind, LLC Phase I, LLC I, LLC Canandaigua Power Partners II, LLC Stetson Wind II, LLC Erie Wind, LLC Niagara Wind Power, LLC 76% 24% Evergreen Wind Power, LLC Vermont Wind, LLC Evergreen Gen Lead, LLC
*As fully discussed in Section I.C.1 of the Application, an application pursuant to FPA § 203 is pending at the Commission under which Palouse Wind, LLC is seeking authorization for the Palouse-Corridor Transaction which would effect an upstream change in control. The Palouse-Corridor Transaction is expected to close prior to the SunEdison Transaction. Upon closing First Wind Holdings will indirectly hold 10% of the equity in Palouse Wind, LLC.
DCACTIVE-29850738.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
EXHIBIT C-4 Post-SunEdison Transaction Organization Chart
R/C US Solar Remaining SunEdison, Inc. Investment Owners** 100% Partnership, L.P. (7)* 100% Class A SunEdison Holdings 3.9% voting Corp. 100% Class B1 0.8% voting 100% Class B 100% 95.3% voting
TerraForm Power, Inc. First Wind Holdings, LLC
100% Class B1 100% Class A 100% 0% voting 100% voting First Wind Portfolio, LLC TerraForm Power, LLC 100% MTW 100% (indirect) Resources, LP First Wind Evergreen First Wind Capital, LLC Energy First Wind Operating Wind Power Marketing, LLC II, LLC 100% 80% 20% Company, LLC (indirect) Longfellow 100% Milford Wind Corridor, LLC 100% First Wind Pacific Wind, LLC Holdings, LLC Maine GenLead, 100% 100% First Wind Northeast LLC 100% (indirect) Company, LLC Milford Wind Milford Wind Palouse Corridor Corridor Phase 100% (indirect) Wind, Phase I, LLC I, LLC LLC***
Blue Sky East, LLC Evergreen Wind Power III, LLC Champlain Canandaigua Power Partners, LLC Stetson Holdings, LLC Wind, LLC Canandaigua Power Partners II, LLC Stetson Wind II, LLC Erie Wind, LLC Niagara Wind Power, LLC 76% 24% Evergreen Wind Power, LLC Vermont Wind, LLC Evergreen Gen Lead, LLC
* R/C US Solar Investment Partnership, L.P. is an investment fund that is managed by Riverstone Holdings LLC. ** Remaining Owners consist of private placement purchasers and affiliates, public stockholders, and management stockholders. ***As fully discussed in Section I.C.1 of the Application, an application pursuant to FPA § 203 is pending at the Commission under which Palouse Wind, LLC is seeking authorization for the Palouse-Corridor Transaction which would effect an upstream change in control. The Palouse-Corridor Transaction is expected to close prior to the SunEdison Transaction. Upon closing First Wind Holdings will indirectly hold 10% of the equity in Palouse Wind, LLC. DCACTIVE-29850738.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Exhibit I-1
PUBLIC VERSION – PRIVILEGED AND CONFIDENTIAL INFORMATION AND PROTECTED MATERIALS HAVE BEEN REMOVED PURSUANT TO 18 C.F.R. § 388.112
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Exhibit I-2
PUBLIC VERSION – PRIVILEGED AND CONFIDENTIAL INFORMATION AND PROTECTED MATERIALS HAVE BEEN REMOVED PURSUANT TO 18 C.F.R. § 388.112
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Exhibit L
Other Approvals
For the SunEdison Transaction:
1. Clearance under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder, for the SunEdison Transaction.
2. Prior approval by the New York State Public Service Commission pursuant to Section 70 of the New York Public Service Law (or a declaratory ruling declining to review the SunEdison Transaction).
3. Any necessary filing with or approval from the Utah Public Service Commission for the sale or transfer of stock, generating assets or transmission assets.
For the JV Buyout:
4. Prior approval by the New York State Public Service Commission pursuant to Section 70 of the New York Public Service Law (or a declaratory ruling declining to review the JV Buyout).
5. To the extent required, approval of the Maine Public Utilities Commission.1
1The JV Applicants and Emera have concluded that approval of the Maine Public Utilities Commission (“MPUC”) should not be required for the JV Buyout and have filed a letter with the MPUC to that effect.
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Exhibit M
EXPLANATION PROVIDING ASSURANCE THAT THE TRANSACTION WILL NOT RESULT IN CROSS-SUBSIDIZATION OR PLEDGE OR ENCUMBRANCE OF UTILITY ASSETS
Based on the facts and circumstances known to Applicants or that are reasonably foreseeable, neither the JV Buyout nor the SunEdison Transaction will result in, at the time of such Transactions or in the future, cross-subsidization of a non-utility associate company or the pledge or encumbrance of utility assets for the benefit of an associate company. Neither the JV Buyout nor the SunEdison Transaction involves a franchised public utility with captive customers and, therefore, falls within one of the safe harbors set forth in the Supplemental Policy Statement.1 The Commission has recognized that “the detailed explanation and evidentiary support required by Exhibit M may not be warranted” for a safe harbor transaction,2 and that, as a general matter “there is no potential for harm to customers” in the case of such transaction.3
Furthermore, in accordance with Section 33.2(j)(1)(ii) of the Commission’s regulations,4 Applicants verify that based on facts and circumstances known to them or that are reasonably foreseeable, neither the JV Buyout nor the SunEdison Transaction will, at the time of their respective completion or in the future, result in:
(1) Any transfer of facilities between a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, and an associate company;
(2) Any new issuance of securities by a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, for the benefit of an associate company;
(3) Any new pledge or encumbrance of assets of a traditional public utility associate company that has captive customers or that owns or provides
1See FPA Section 203 Supplemental Policy Statement, 72 Fed. Reg. 42277, at P 17 (Aug. 2, 2007) (“Supplemental Policy Statement”).
2Id. at P 15.
3Id. at P 17.
418 C.F.R. § 33.2(j)(1)(ii).
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Exhibit M
transmission service over jurisdictional transmission facilities, for the benefit of an associate company; or
(4) Any new affiliate contract between a non-utility associate company and a traditional public utility associate company that has captive customers or that owns or provides transmission service over jurisdictional transmission facilities, other than non-power goods and services agreements subject to review under sections 205 and 206 of the Federal Power Act.
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Attachment 1
Verifications
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Attachment 2
Draft Protective Agreement
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
PROTECTIVE AGREEMENT
This Protective Agreement (“Agreement”) is entered into this ___ day of ______, 2014 by and between ______(“Applicants”) and ______(“Intervenor”), and shall govern the use of all Protected Materials produced by Applicants to Intervenor, or vice versa, in connection with the proceeding before the Federal Energy Regulatory Commission (the “Commission”) in Docket No.______. Applicants and Intervenor are sometimes referred to herein individually as a “Party” or jointly as the “Parties.”
1. Applicants filed Protected Materials in the captioned Commission proceeding and Intervenor is a Participant in such proceeding, as the term Participant is defined in 18 C.F.R. § 382.102(b), or has filed a motion to intervene or a notice of intervention in such proceeding. Applicants and Intervenor enter into this Agreement in accordance with their respective rights and obligations set forth in 18 C.F.R. § 388.112(b)(2). Notwithstanding any order terminating such proceeding, this Agreement shall remain in effect until specifically modified or terminated by the Commission or court of competent jurisdiction.
2. This Agreement applies to the following two categories of Protected Materials: (A) a Party may designate as protected those materials which customarily are treated by that Party as sensitive or proprietary, which are not available to the public, and which, if disclosed freely, would subject that Party or its customers to risk of competitive disadvantage or other business injury; and (B) a Party shall designate as protected those materials which contain critical energy infrastructure information, as defined in 18 C.F.R. § 388.113(c)(1) (“Critical Energy Infrastructure Information”).
3. Definitions – For purposes of this Order:
(a) (1) The term “Protected Materials” means (A) materials provided by a Party in association with this proceeding and designated by such Party as protected; (B) any information contained in or obtained from such designated materials; (C) any other materials that are made subject to this Protective Order by the Commission, by any court or other body having appropriate authority, or by agreement of the Participants; (D) notes of Protected Materials; and (E) copies of Protected Materials. The Party producing the Protected Materials shall physically mark them on each page as “PROTECTED MATERIALS” or with words of similar import as long as the term “Protected Materials” is included in that designation to indicate that they are Protected Materials. If the Protected Materials contain Critical Energy Infrastructure Information, the Party producing such information shall additionally mark on each page containing
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
such information the words “Contains Critical Energy Infrastructure Information—“Do Not Release.”
(2) The term “Notes of Protected Materials” means memoranda, handwritten notes, or any other form of information (including electronic form) which copies or discloses materials described in Paragraph 3(a)(1). Notes of Protected Materials are subject to the same restrictions provided in this Agreement for Protected Materials except as specifically provided in this Agreement.
(3) Protected Materials shall not include (A) any information or document contained in the publicly available files of the Commission or of any other federal or state agency, or any federal or state court, unless the information or document has been determined to be protected by such agency or court, or (B) information that is public knowledge, or which becomes public knowledge, other than through disclosure in violation of this Agreement, or (C) any information or document labeled as “Non- Internet Public” by a Party, in accordance with Paragraph 30 of FERC Order No. 630, FERC Stats. & Regs. ¶ 31,140 (2003). Protected Materials do include any information or documents contained in the files of the Commission that have been designated as Critical Energy Infrastructure Information.
(b) The term “Non-Disclosure Certificate” shall mean the certificate annexed hereto by which Reviewing Representatives have been granted access to Protected Materials shall certify their understanding that such access to Protected Materials is provided pursuant to the terms and restrictions of this Agreement, and that they have read the Agreement and agree to be bound by it. Each Party shall provide a copy of the Non-Disclosure Certificate(s) executed by its Reviewing Representative(s) to the other Party prior to such Reviewing Representative(s) receiving access to any Protected Materials.
(c) The term “Reviewing Representative” shall mean a person who has signed a Non-Disclosure Certificate and who is:
(1) an attorney retained by a Party for purposes of this proceeding;
(2) attorneys, paralegals, and other employees associated for purposes of this proceeding with an attorney described in Paragraph (3)(c)(1);
(3) an expert or an employee of an expert retained by a Party for the purpose of advising, preparing for or testifying in this proceeding;
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
(4) a person designated as a Reviewing Representative by order of the Commission; or
(5) employees or other representatives of a Party with significant responsibility for matters involving this proceeding.
4. Protected Materials shall be made available under the terms of this Agreement only to Parties and only through their Reviewing Representative(s) as provided in Paragraphs 7–9.
5. Protected Materials shall remain available to a Party until the later of the date that an order terminating this proceeding becomes no longer subject to judicial review, or the date that any other Commission proceeding relating to the Protected Material is concluded and no longer subject to judicial review. If requested to do so in writing after that date, the Party shall, within fifteen days of such request, return the Protected Materials (excluding Notes of Protected Materials) to the Party that produced them, or shall destroy the materials, except that copies of filings, official transcripts and exhibits in this proceeding that contain Protected Materials, and Notes of Protected Materials may be retained, if they are maintained in accordance with Paragraph 6, below. Within such time period the Party, if requested to do so, shall also submit to the producing Party an affidavit stating that, to the best of its knowledge, all Protected Materials and all Notes of Protected Materials have been returned or have been destroyed or will be maintained in accordance with Paragraph 6. To the extent Protected Materials are not returned or destroyed, they shall remain subject to this Agreement.
6. All Protected Materials shall be maintained by the Party in a secure place. Access to those materials shall be limited to those Reviewing Representatives specifically authorized pursuant to Paragraphs 8–9.
7. Protected Materials shall be treated as confidential by the Party and its Reviewing Representative(s) in accordance with the certificate executed pursuant to Paragraph 9. Protected Materials shall not be used except as necessary for the conduct of this proceeding, nor shall they be disclosed in any manner to any person except a Reviewing Representative who is engaged in the conduct of this proceeding and who needs to know the information in order to carry out that person’s responsibilities in this proceeding. Reviewing Representatives may make copies of Protected Materials, but such copies become Protected Materials. Reviewing Representatives may make notes of Protected Materials, which shall be treated as Notes of Protected Materials if they disclose the contents of Protected Materials.
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
8. (a) If a Reviewing Representative’s scope of employment includes the marketing of energy or the buying or selling of electric generation or transmission assets, the direct supervision of any employee or employees whose duties include the foregoing, the provision of consulting services to any person whose duties include the foregoing, or the direct supervision of any employee or employees whose duties include the foregoing, such Reviewing Representative may not use information contained in any Protected Materials obtained through this proceeding to give any Party or any competitor of any Party a commercial advantage.
(b) In the event that a Party wishes to designate as a Reviewing Representative a person not described in Paragraph 3(c) above, the Party shall seek agreement from the Party providing the Protected Materials. If an agreement is reached that person shall be a Reviewing Representative pursuant to Paragraphs 3(c) above with respect to those materials. If no agreement is reached, the Party shall submit the disputed designation to the Commission for resolution.
9. (a) A Reviewing Representative shall not be permitted to inspect, participate in discussions regarding, or otherwise be permitted access to Protected Materials pursuant to this Agreement unless that Reviewing Representative has first executed a Non- Disclosure Certificate; provided, that if an attorney qualified as a Reviewing Representative has executed such a certificate, the paralegals, secretarial and clerical personnel under the attorney’s instruction, supervision or control need not do so. A copy of each Non-Disclosure Certificate shall be provided to counsel for the Party asserting confidentiality prior to disclosure of any Protected Material to that Reviewing Representative.
(b) Attorneys qualified as Reviewing Representatives are responsible for ensuring that persons under their supervision or control comply with this Agreement.
10. Any Reviewing Representative may disclose Protected Materials to any other Reviewing Representative as long as the disclosing Reviewing Representative and the receiving Reviewing Representative both have executed a Non-Disclosure Certificate. In the event that any Reviewing Representative to whom the Protected Materials are disclosed ceases to be engaged in these proceedings, or is employed or retained for a position whose occupant is not qualified to be a Reviewing Representative under Paragraph 3(c), access to Protected Materials by that person shall be terminated. Even if no longer engaged in this proceeding, every person who has executed a Non-Disclosure Certificate shall continue to be bound by the provisions of this Agreement and the certification.
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
11. Subject to Paragraph 18, the Commission shall resolve any disputes arising under this Agreement. Prior to presenting any dispute under this Agreement to the Commission, the parties to the dispute shall use their best efforts to resolve it. If a Party contests the designation of materials as protected, it shall notify the Party that provided the Protected Materials by specifying in writing the materials whose designation is contested. This Agreement shall automatically cease to apply to such materials five (5) business days after the notification is made unless the Party, within said 5-day period, files a motion with the Commission, with supporting affidavits, demonstrating that the materials should continue to be protected. In any challenge to the designation of materials as protected, the burden of proof shall be on the Party seeking protection. If the Commission finds that the materials at issue are not entitled to protection, the procedures of Paragraph 18 shall apply. The procedures described above shall not apply to Protected Materials designated by a Party as Critical Energy Infrastructure Information. Materials so designated shall remain protected and subject to the provisions of this Agreement unless a Party requests and obtains a determination from the Commission’s Critical Energy Infrastructure Information Coordinator that such materials need not remain protected.
12. All copies of all documents reflecting Protected Materials, including the portion of any hearing testimony, exhibits, transcripts, briefs and other documents which refer to Protected Materials, shall be filed and served in sealed envelopes or by other appropriate means endorsed to the effect that they are protected pursuant to this Agreement. Such documents shall be marked “PROTECTED MATERIALS” and shall be filed under seal and served under seal upon the Commission and all Reviewing Representatives who are on the service list. Such documents containing Critical Energy Infrastructure Information shall be additionally marked “Contains Critical Energy Infrastructure Information Do Not Release.” For anything filed under seal, redacted versions or, where an entire document is protected, a letter indicating such, will also be filed with the Commission and served on all parties on the service list. Counsel for the producing Party shall, upon the request of a Party, provide a list of Reviewing Representatives who are entitled to receive such material. Counsel shall take all reasonable precautions necessary to assure that Protected Materials are not distributed to unauthorized persons.
13. If any Party desires to include, utilize or refer to any Protected Materials or information derived therefrom in pleadings, testimony or exhibits to these proceedings in such a manner that might require disclosure of such material to persons other than Reviewing Representatives, such Party shall first notify both counsel for the disclosing Party and the Commission of such desire, identifying with particularity each of the
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
Protected Materials. Thereafter, use of such Protected Materials will be governed by procedures determined by the Commission.
14. Nothing in this Agreement shall be construed as precluding any Party from objecting to the use of Protected Materials on any legal grounds.
15. Nothing in this Agreement shall preclude any Party from requesting the Commission or any other body having appropriate authority to find that this Agreement should not apply to all or any materials previously designated as Protected Materials pursuant to this Agreement. The Commission may alter or amend this Agreement as circumstances warrant at any time during the course of this proceeding.
16. The Parties may amend this Agreement only by mutual consent and in writing; provided, however, that a Party has the right to seek changes to this Agreement as appropriate from the Commission.
17. All Protected Materials filed with the Commission or any other judicial or administrative body, in support of, or as a part of, a motion, other pleading, brief, or other document, shall be filed and served in sealed envelopes or other appropriate means bearing prominent markings indicating that the contents include Protected Materials subject to this Agreement. Such documents containing Critical Energy Infrastructure Information shall be additionally marked “Contains Critical Energy Infrastructure Information – Do Not Release.”
18. If the Commission finds at any time in the course of this proceeding that all or part of the Protected Materials need not be protected, those materials shall, nevertheless, be subject to the protection afforded by this Agreement for three (3) business days from the date of issuance of the Commission’s decision, and if the Party seeking protection files an interlocutory appeal or requests that the issue be certified to the Commission, for an additional seven (7) business days. No Party waives its rights to seek additional administrative or judicial remedies after the Commission’s decision respecting Protected Materials or Reviewing Representatives, or the Commission’s denial of any appeal thereof. The provisions of 18 C.F.R. §§ 388.112 and 388.113 shall apply to any requests for Protected Materials in the files of the Commission under the Freedom of Information Act (5 U.S.C. § 552).
19. Nothing in this Agreement shall be deemed to preclude any Party from independently seeking through discovery in any other administrative or judicial proceeding information or materials produced in this proceeding under this Agreement.
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
20. No Party waives the right to pursue any other legal or equitable remedies that may be available in the event of actual or anticipated disclosure of Protected Materials.
21. The contents of Protected Materials or any other form of information that copies or discloses Protected Materials shall not be disclosed to anyone other than in accordance with this Agreement and shall be used only in connection with this proceeding. Any violation of this Agreement and of any Non-Disclosure Certificate executed hereunder shall constitute a violation of an order of the Commission.
IN WITNESS WHEREOF, the Parties each have caused this Protective Agreement to be signed by their respective duly authorized representatives as of the date first set forth above.
By: By:
Name: Name:
Title: Title:
Representing Applicants
Representing Intervenor
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM
NON-DISCLOSURE CERTIFICATE
I hereby certify my understanding that access to Protected Materials is provided to me pursuant to the terms and restrictions of the Protective Agreement dated ______by and between [Applicant] and [Intervenor] concerning materials in Federal Energy Regulatory Commission Docket No. ______, that I have been given a copy of and have read the Protective Order, and that I agree to be bound by it. I understand that the contents of the Protected Materials, any notes or other memoranda, or any other form of information that copies or discloses Protected Materials shall not be disclosed to anyone other than in accordance with that Protective Agreement. I acknowledge that a violation of this certificate constitutes a violation of an order of the Federal Energy Regulatory Commission.
By: ______Name: Title: ______
Representing:
DCACTIVE-29907043.1 20141202-5133 FERC PDF (Unofficial) 12/2/2014 2:00:40 PM Document Content(s) PUBLIC 2014 1202 FW 203.PDF...... 1-89