Section 75.66. Force majeure

(a) No earlier than 60 days prior to the beginning of a reporting period and no more than 60 days after the conclusion of the true-up period, the Commission, upon its own initiative or upon the request of an EDC or EGS, may issue an order declaring that force majeure exists for some or all EDCs and EGSs for that reporting period. The order will include separate force majeure determinations for the Tier I alternative energy source, Tier II alternative energy source and solar photovoltaic requirements of § 75.61 (relating to EDC and EGS obligations).

(b) The Commission will provide public notice of all requests for force majeure determination.

(c) The Commission may find that force majeure exists if there are insufficient alternative energy credits to satisfy the aggregate Tier I alternative energy source, Tier II alternative energy source or solar photovoltaic obligation for all EDCs and EGSs under § 75.61 for that reporting period.

(d) The Commission may find that force majeure exists for the nonsolar photovoltaic requirement of § 75.61 if the average price for a nonsolar photovoltaic alternative energy credit purchased by a Pennsylvania EDC and EGS exceeds $45 in the 6-month period preceding the issuance of the order referenced in subsection (a).

(e) If the Commission determines that force majeure exists for a reporting period, EDCs and EGSs shall have the option of making alternative compliance payments in lieu of compliance with § 75.61 for that reporting period.

(1) This payment must equal $45 for each alternative energy credit needed to satisfy the Tier I nonsolar photovoltaic and Tier II requirements of § 75.61 or the Commission may choose to reduce the required level of Tier I nonsolar photovoltaic and Tier II compliance for the reporting period.

(2) For the solar photovoltaic requirement, EDCs and EGSs shall have the option of making an alternative compliance payment equal to the market value of solar photovoltaic credits in the applicable RTO service territory, or the Commission may choose to reduce the required level of solar photovoltaic compliance for that reporting period.

(3) A payment shall be accompanied by a statement with supporting facts, filed with the Commission and verified by oath or affirmation, consistent with § 1.36 (relating to verification), that the EDC or EGS has made a good faith effort to comply with this chapter as outlined in subparagraph (i) of the definition of ‘‘force majeure’’ in § 75.1 (relating to definitions), that they are unable to acquire a sufficient quantity of alternative energy credits to meet their obligations under § 75.61 as outlined in subparagraph (ii) of the definition of ‘‘force majeure’’ in § 75.1, and that an alternative compliance payment is the least cost method of compliance.

(4) The option to make an alternative compliance payment in lieu of compliance with § 75.61 may not be available to EDCs and EGSs that have already acquired sufficient alternative energy credits for compliance with the requirements of that reporting period.

(5) If the Commission modifies any compliance requirements, the Commission may increase the compliance requirements of an equivalent type and amount in subsequent years when the Commission determines that sufficient alternative energy credits of an equivalent type exist in the marketplace.

(f) Alternative compliance payments made by EDCs under subsection (e) shall be deemed a cost of compliance with this chapter and may be recovered under § 75.67 (relating to alternative energy cost-recovery).

(g) EDCs and EGSs shall provide the Commission all information necessary for it to render a force majeure determination, as outlined in the definition of ‘‘force majeure’’ in § 75.1.