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A broad coalition of natural gas and electric trade groups haveasked FERC to reconsider a July rehearing decision that prompted itto purge any reference to immediate relief from its final rule oncomplaint procedures.
The Pipeline Customer Coalition and other Undersigned Partiesare seeking rehearing of Order 602-A in which FERC “acted to removeany and all reference in its regulations to ‘interim or preliminaryrelief’ requests as a part of a formal complaint filed with theCommission.” As a result of this action, FERC “has left the[energy] industry with a new set of complaint regulations which,while greatly improved in many respects, fail to codify theexistence of a Commission policy enabling complainants to seekearly remedial action in appropriate circumstances.” [RM98-13-002]The coalition and Undersigned Parties want FERC to overturn itsdecision in Order 602-A, and then amend its final complaint rule torestore the reference to immediate relief.
In Order 602-A, the Interstate Natural Gas Association ofAmerica (INGAA) won on rehearing its bid to have the provisionsgranting immediate relief erased from the final complaint rule. Butthe coalition and Undersigned Parties, in seeking rehearing,contend FERC’s action in eliminating ‘immediate relief’ was at oddswith certain language in Order 602-A.
“To suggest that such remedies might be ‘within the Commission’sauthority to grant’ (see Order 602-A) while removing from theCommission’s new and comprehensive complaint regulations anyreference to such remedies, creates ambiguity about whether theCommission truly intends to make early remedial action a componentof its revised complaint procedure,” they said.
Based on the arguments of pipeline companies, “the Commissionseems to conclude that a preliminary relief order would be per seunlawful [under Section 5 of the NGA] or beyond its power becauseits issuance would not be based on a finding that a pipeline’srate, practice or contract is unjust, unreasonable or undulydiscriminatory,” the coalition and Undersigned Parties noted.
But immediate FERC relief in a complaint case can be reconciledwith both Section 5 of the Natural Gas Act and Section 206 of theFederal Power Act (FPA) “simply by including in an order grantingsome form of early relief a finding, supported by substantialevidence, that the practice, service or rate at which the complaintis directed is unjust or unreasonable or unduly discriminatory,”they said. “Whether such a finding could be justified would dependon how the complaining party supported its request for preliminaryrelief i.e. on the quality or persuasiveness of its affidavits orother evidence…..In short, after a ‘paper hearing,’ theCommission can take early remedial action that fully satisfies theterms of NGA Section 5 and FPA Section 206 and responds to whateverurgency is presented by the complaining party’s factual showing.”
A complaining party “can show the presence of unduediscrimination just in their complaint. They don’t need anadministrative law judge or an evidentiary hearing,” said FredMoring, a Washington D.C. attorney representing the coalition. Hebelieves early remedial action on complaints is essential because”a lot of money changes hands in a short time in this industry.”Without a quick response from FERC, pipeline and power transmissioncustomers could lose millions of dollars as they wait for theircomplaints to be processed.
Members of the Pipeline Customer Coalition include the AmericanGas Association, the American Iron & Steel Institute, theAmerican Public Gas Association, Associated Gas Distributors, theGeorgia Industrial Group, the Independent Petroleum Association ofAmerica and the Process Gas Consumers Group. The UndersignedParties are the American Public Power Association, the NationalRural Electric Cooperative Association, the Pennsylvania Office ofConsumer Advocate and Transmission Dependent Utility Systems.
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