On September 6, 2023, the Commission affirmed the determinations made in a May 4 Order, which found that Kimball Wind, LLC (“Kimball Wind”) was not entitled to reimbursement of funds paid to Western Area Power Administration (“WAPA”) for expansion of WAPA’s Kimball Substation, located in Kimball, Nebraska.  

On August 2, 2022, Kimball Wind filed a petition requesting the Commission find that it is entitled to reimbursement of costs for expanding the Kimball Substation. Kimball Wind maintained that the Commission should utilize its power under Section 211A of the FPA to mandate that WAPA refund the network upgrade expenses paid by Kimball Wind. Section 211A permits the Commission to require an unregulated transmitting utility such as WAPA to provide transmission services at rates and on terms and conditions comparable to those the unregulated transmitting utility applies to itself. Kimball Wind sought the return of approximately $5.9 million that WAPA directly assigned to Kimball Wind for network upgrades that it paid for upgrades and expansion, as those upgrades were intended to support the Kimball Substation’s designation as a network resource for Municipal Energy Agency of Nebraska (“MEAN”), a WAPA transmission service customer. On May 4, 2023, the Commission denied the petition. The Commission determined that Kimball Wind did not provide sufficient evidence that relief was appropriate under Section 211A since Kimball Wind was not requesting either transmission or interconnection services. The Commission also found that Kimball Wind failed to demonstrate that it received non-comparable transmission service or interconnection service from WAPA.

On June 5, 2023, Kimball Wind filed a request for rehearing. On rehearing, Kimball Wind asserted that the May 4 Order was contradictory, arguing that while the Commission concluded Section 211A does not specify who can seek relief, the Commission also stated that Section 211A is not applicable for the relief Kimball Wind sought. Kimball Wind also argued that despite not being a WAPA transmission or interconnection customer, Kimball Wind maintains that there is a significant link between WAPA’s transmission service rates and the direct assignment of network upgrade costs.

The Commission sustained the May 4 Order. The Commission stated that Section 211A does not bar Kimball Wind from bringing its petition as a threshold matter. Instead, the Commission addressed whether Section 211A permits the relief Kimball Wind sought in the petition. The Commission found that the relationship between Kimball Wind and MEAN did not create a transmission service that WAPA provides to Kimball Wind, nor did it make Kimball Wind an interconnection customer of WAPA that would render Kimball Wind eligible for Section 211A relief. The Commission noted that Kimball Wind’s argument that it demonstrated non-comparable service because WAPA’s transmission rates incorporated specific upgrade costs for the Kimball Substation is invalid because the costs for upgrading the Kimball Substation that were included in WAPA’s rates were incurred as part of previously planned reliability upgrades, whereas the costs assigned to Kimball Wind were due to the designation of the off-system Kimball Facility as a network resource for MEAN. Lastly, the Commission found that Kimball Wind failed to identify any text in Section 211A that allowed the Commission to carry out the relief it sought.

FERC’s order, issued in Docket Nos. EL22-81-001 and TX22-8, can be found here.