On March 5, 2014, FERC’s Acting General Counsel David Morenoff issued an opinion letter addressing the requirements for claiming qualifying facility (“QF”) status in response to a request made on behalf of NRG Power Midwest, LP.  In the letter, Morenoff concluded that: (1) the owner or operator of a facility could not claim QF status unless it filed a notice of self-certification, FERC granted an application for certification, or FERC granted a waiver of the requirement that the QF make a notice filing; (2) actual or constructive notice of facility characteristics outside of the certification process does not confer QF status; and (3) the notice of self-certification is prospective from the date of filing unless FERC grants retroactive application via a declaratory order.

Morenoff first explained that FERC’s regulations require that the owner or operator of a small power production facility with a net power production capacity above 1 MW must file a notice of self-certification or an application for FERC certification, using Form 556, in order to be certified as a QF.  Morenoff also explained that the Commission’s precedent and regulations do not permit FERC to take actual or constructive notice of a facility’s characteristics as described in other proceedings, such as hydroelectric licensing, in order to grant QF status in lieu of a proper self-certification or application.

Additionally, the opinion provides that a prospective QF facility may seek waiver of the QF status filing requirement for good cause shown by filing a petition for declaratory order that describes the reasons the waiver is being sought.  A prospective QF facility may also include in its waiver petition reasons why QF certification should apply retroactively.  However, without such a waiver, Morenoff stated that simply listing an “expected effective date” in a notice of self-certification does not establish retroactive certification.

Under FERC’s regulations, General Counsel opinions are not binding on the Commission.  A copy of the opinion letter is available here.