On March 12, 2012, the PJM Interconnection, L.L.C. (“PJM”) filed a petition with FERC asking to clarify the negligence standard applicable to Regional Transmission Organizations’ (“RTOs”) execution of planning and reliability functions. In particular, PJM seeks FERC guidance on the negligence standard applicable to transmission owner (“TO”) requests for scheduled outages.  PJM also asked FERC to clarify whether  its Open Access Transmission Tariff (“OATT”) effectively shields the RTO from common law negligence lawsuits brought by a TO employee performing maintenance work.  PJM submitted this petition in response to a plaintiff’s Pennsylvania state law claim for monetary damages for injuries received conducting maintenance during a scheduled outage.  PJM filed a motion for summary judgment on the basis that the plaintiffs’ state law claims are preempted by the negligence standard in the OATT under federal law; however, the Pennsylvania state court dismissed that motion earlier this month.

PJM’s OATT states that PJM does not oversee worker safety in maintenance operations, and that TOs are responsible for the “operation and maintenance of electrical power generation, control, transformation, transmission, and distribution lines and equipment.”  Further, PJM’s OATT currently limits the RTO’s liability to acts of intentional misconduct and/or gross negligence in the furtherance of its duties.  PJM has asked FERC to find that this OATT provision bars state law negligence claims.  The plaintiffs in the state case argued that Congress never addressed liability limitations when passing the Federal Power Act, so the OATT’s liability provision has no preemptive effect on the current state lawsuit.  

PJM contends that the Commission has exclusive jurisdiction to determine PJM’s duties as an RTO, thus, a state court cannot determine whether PJM has a duty to safeguard against work-place injuries.  PJM claims a FERC declaratory order is necessary to preserve RTOs nationwide by preventing state courts from having the ability to change liability exposure.  PJM has asked for a FERC decision on its petition by June 1, 2012 because the state trial is scheduled to commence on June 11.

A copy of the FERC petition is available here.