1. (a) Applicability.

   1. (1) Any potential qualifying facility that has met the procedural requirements set forth in 23 CAR § 454-401(b) and has not concluded or renewed a specific binding legal obligation with the electric utility for the purchase of its power or has not elected to adopt a standard tariff at the end of such negotiations may appeal to the Arkansas Public Service Commission for relief.
   2. (2) The procedure for appeal to the Arkansas Public Service Commission, set out in this section, shall not limit any rights to appeal, to file complaints, or to participate in proceedings that a qualifying facility may have under other applicable rules or laws.

2. (b) General rule. To ensure the timely conclusion of an agreement between a potential qualifying facility and an electric utility, a potential qualifying facility meeting the requirements of subsection (a) of this section may appeal to the Arkansas Public Service Commission by the following procedure:

   1. (1)

      1. (A) The potential qualifying facility shall send a formal notification of its intent to appeal to both the Arkansas Public Service Commission and the electric utility via certified mail.
      2. (B) The notification of intent to appeal should include the following information:

3. (i) A summary of the facts related to the negotiation of the potential qualifying facility and the electric utility, including all notifications and correspondence;

   1. (ii) A statement of the potential qualifying facility's opinion as to the reasons that negotiations with the electric utility could not be completed; and

      1. (iii) A statement of the terms and conditions that the potential qualifying facility would propose in a final agreement with the electric utility;
   2. (2) The Arkansas Public Service Commission will set a hearing date to occur within twenty (20) days of its receipt of the application for appeal, should it find that the potential qualifying facility complied with the procedures specified in 23 CAR § 454-401(b);
   3. (3) The electric utility and potential qualifying facility shall present relevant verbal argument and written briefs before the Arkansas Public Service Commission at the designated hearing;

   4. (4)

      1. (A) The Arkansas Public Service Commission will issue an order on its determination of the appropriate terms and conditions for arrangements between the potential qualifying facility and the electric utility.
      2. (B) This order must be issued within thirty (30) days of the end of the hearing;

   5. (5)

      1. (A) The Arkansas Public Service Commission order will be binding on the electric utility.
      2. (B) The potential qualifying facility has ten (10) days to accept the terms of the Arkansas Public Service Commission order; and

   6. (6)

      1. (A)

         1. (i) If the potential qualifying facility accepts the terms of the Arkansas Public Service Commission order, the electric utility has twenty (20) days from such acceptance to present a legally binding obligation incorporating the terms and conditions of the Arkansas Public Service Commission’s order to the potential qualifying facility for signature and formal agreement.
         2. (ii) The Arkansas Public Service Commission shall receive copies and be notified of this agreement.
      2. (B) Should the potential qualifying facility not accept the terms and conditions determined by the Arkansas Public Service Commission, the qualifying facility must both reinitiate its proposal to the electric utility as described in 23 CAR § 454-401(b) and show a significant change in the basic facts and/or its proposal before the Arkansas Public Service Commission will consider any future appeal.

Codification Notes: This section was promulgated as Section 4.2 of the Cogeneration Rules prior to codification in the Code of Arkansas Rules.