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Practice and Procedure, PF Land LLC filed a petition for advisory ruling and request for expedited consideration from the Maine Public Utility Commission “confirming that the private ownership and operation by its affiliate, CHP LLC, of a combined heat and power cogeneration facility and related wires and equipment (the “CHP Facility”) and the provision of electricity by CHP LLC within a confined, privately owned, mixed-use development campus on the Portland peninsula will not render CHP LLC a public utility subject to the Commission’s regulatory jurisdiction as a T&D utility or a competitive electricity provider (“CEP”) under Maine law.”

The petition states that “[a]lthough CMP appears to have sufficient capacity to serve the expected 7.47 MW peak demand of the Campus, the project was nevertheless intentionally engineered and designed to avoid reliance on CMP’s distribution system by investing private capital in onsite combined heat and power and district energy infrastructure. The CHP Facility will now supply all of the on-site electricity demand during normal operating conditions, thereby eliminating any long-term dependence on CMP’s distribution network on the peninsula. This approach directly advances the State’s interests in managing the pace and cost of grid investment, mitigating customer bill impacts associated with such investments, and supporting electrification and economic growth without accelerating distribution system spending borne by ratepayers.”

In its request for an advisory ruling, the petition goes on to explain that “CHP Facility is a cogeneration facility within Chapter 33 of the Maine Public Utility Code. Chapter 33 was adopted by the Legislature for the express purpose of promoting cogeneration and small renewables-based power production and requires Title 35-A to be implemented in a way that promotes cogeneration. Chapter 33 provides an exemption from Commission regulation for electricity generated and distributed by CHP LLC and sold to thermal offtakers of the CHP Facility.”

“Second, CHP LLC’s furnishing of electricity generated by the CHP Facility to affiliates within the Campus is within the exceptions to the definitions of T&D Utility and CEP pursuant to 35-A M.R.S. § 102(20-B) (definition of T&D Utility) and 35-A M.R.S. § 3201(5) (definition of CEP) that were adopted by the Legislature in 2019.”

“Third, CHP LLC’s furnishing of electricity within the Campus does not constitute public utility or CEP service under the public use test articulated in the Commission’s precedent commonly referred to as the Boralex Factors.”

In conclusion, the petition states that:

“Based on the facts presented in this Petition, CHP LLC’s private ownership and operation of the CHP cogeneration facility, including the provision of electricity to subsidiaries, affiliates and other related entities of PFDC within the Campus over privately owned wires and related distribution equipment is private in nature, does not render CHP LLC a public utility subject to the Commission’s regulatory jurisdiction as a T&D Utility or CEP pursuant to Maine law, and is exempt from Commission regulation. Accordingly, PF Land respectfully requests that the Commission issue an Advisory Ruling confirming that: 25

(1) CHP LLC will be a cogenerator that distributes electricity over privately-owned infrastructure through private property for sale to its associates in the cogeneration facility and therefore such sales of electricity do not require Commission approval and are not regulated by the Commission pursuant to 35- A M.R.S. § 3305;

(2) CHP LLC’s deliveries and sales of electricity over privately-owned infrastructure through private property as described in this Petition are excluded from the definitions of T&D utility and CEP in 35-A M.R.S. §§ 102(20-B) and § 3201(5); and

(3) Pursuant to the Boralex Factors, the deliveries and sales of electricity over privately-owned infrastructure through private property as described in this Petition will be private and not for public use and CHP LLC will not be a T&D utility or CEP regulated by the Maine Public Utility Code.”