Section 100.13. Approval requirements.

 

(1)  The commission shall grant the approval required under s. 196.491 (3m) (a) , Stats., necessary for an affiliated interest of a public utility to own, operate, or control a wholesale merchant plant if pars. (a) and (b) are met.

(a) The applicant's public utility affiliates have done any of the following:

1. Transferred control over their transmission facilities, as defined in s. 196.485 (1) (h) , Stats., to an independent system operator, as defined in s. 196.485 (1) (d) , Stats., that is approved by the federal energy regulatory commission.

2. Divested their interest in the transmission facilities to an independent transmission owner, as defined in s. 196.485 (1) (dm) , Stats.

(b) The commission has determined that any of the following, which constitutes a finding that the ownership, control, or operation will not have a substantial anticompetitive effect on electricity markets for any classes of customers, has been met. For purposes of subds. 1. and 2. , the DOJ guidelines shall be applied as if the proposed merchant plant existed in the market and was merging with the public utility or affiliate.

1. The ownership, operation, or control of the wholesale merchant plant will meet the appropriate horizontal market power safe harbor provisions in the DOJ guidelines and the commission has approved any contracts or agreements, as may be necessary under ss. 196.52 and 196.795 , Stats., provided, however, that the commission has examined the issues in section 2 of the DOJ guidelines. An appropriate horizontal market power safe harbor exists if either an HHI statistic no higher than 1,000 or an increase in the HHI statistic of no more than 50 occurs in the market power screen analysis as a result of the operation of the affiliated wholesale merchant power plant.

2. The ownership, operation, or control of the wholesale merchant plant will have minimal potential for adverse competitive effects as defined in section 1.51, "General Standards" of the DOJ guidelines and the commission has approved any contracts or agreements, as may be necessary under ss. 196.52 and 196.795 , Stats., provided, however, that the commission has examined the potential for adverse competitive effects as defined in section 2 of the DOJ guidelines. There is a minimal potential for adverse competitive effects when both an HHI statistic no higher than 1,800 and an increase in the HHI statistic of no more than 100 occurs in the market power screen analysis as a result of the operation of the affiliated wholesale merchant power plant.

3. The conditions for s. PSC 100.16 safe harbor exceptions are met and the commission has approved any contracts or agreements, as may be necessary under ss. 196.52 and 196.795 , Stats. Approval of any application, based on a commission finding of safe harbor exception under s. PSC 100.16 , shall be conditioned upon the continued applicability of the safe harbor conditions.

(2)  The commission may approve a request by an affiliated interest of a public utility to own, operate, or control a wholesale merchant plant in which a properly constructed market power screen analysis, as set forth in s. PSC 100.15 , and supporting analyses indicates a moderate or high potential for adverse competitive effects as defined in section 1.51, "General Standards" of the DOJ guidelines upon holding a public hearing at which a showing is made that the significant potential and concern for adverse competitive effects can be overcome by any of the following. The DOJ guidelines shall be applied as if the proposed merchant plant existed in the market and was merging with the public utility or affiliate:

(a) An appropriate showing of factors as set forth in sections 2, 3, and 5 of the DOJ guidelines, provided, however, that the commission has examined the potential for adverse competitive effects as defined in section 2 of the DOJ guidelines.

(b) Sufficient mitigation remedies proposed by either the applicant or other parties to the hearing which are acceptable to the commission. In conditionally approving an application, the commission shall establish any mitigation remedies as deemed in the public interest and may consider those mitigation remedies as identified in the hearing record or Appendix A Section D, "Remedy" of the FERC Order 592.

(3)  The commission may include in its order granting its approval to own, control or operate a wholesale merchant plant, any reporting requirements or conditions which it deems necessary to carry out its jurisdiction under ch. 196 , Stats.

(4)  An applicant may request that the commission issue a declaratory ruling to determine whether the applicant's proposed ownership, control or operation of a wholesale merchant plant will have a substantial anti-competitive effect on electricity markets for any classes of customers and whether the mitigation remedies proposed by the applicant or other parties effectively mitigate such anti-competitive effects. The application shall describe the proposed wholesale merchant plant, including the mitigation remedies, in sufficient detail to permit the commission to determine whether the proposed mitigation remedies effectively mitigate any such anti-competitive effects. The commission shall have the right to obtain any additional information or data which it deems necessary under this section. The commission shall, after notice and the opportunity for interested persons to submit comments, issue a declaratory ruling no earlier than 45 days and no later than 60 days from the date that the commission has determined that the application is complete.

Cr. Register, July, 2000, No. 535 , eff. 8-1-00.