British Columbia Certificate of Public Convenience and Necessity (8-BC-c)
A “public utility” includes any person who owns or operates equipment or facilities for the “production, generation, storage, transmission, sale, delivery or provision of electricity . . . for the public or a corporation for compensation” in British Columbia. Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 1.
Certificate of Public Convenience and Necessity Process
8-BC-c.1 – Is the Project Subject to an Exemption?
Several statutes exempt certain projects from the requirement to obtain a CPCN. For example, BC Hydro, the predominant transmission provider in British Columbia, creates long-term resource plans subject to the approval by the BC Government. In approving a long-term resource plan, the BC Government may exempt proposed projects in the plan from CPCN requirements. Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 44.1 (9). See the Utilities Commission Act and Clean Energy Act for a full listing of exemptions.
8-BC-c.2 – Application for a Certificate of Public Convenience and Necessity
A developer should submit an Application for a CPCN (“Application”) to the BCUC in accordance with BCUC’s filing guidelines within a minimum of 30 days in advance of the desired effective date and include the following:
- An explanation if the application is filed under the 30-day minimum advance;
- The timing of the filings should accommodate at least 30 days customer notice prior to the desired effective date in cases such as rate increases where customer notification is required prior to Commission approval. An exception to this requirement would be filings made under subsection 61(4) of the Act for pass‐through of uncontrollable costs.
- The timing of filings for hearings will be established on an individual basis, by Order of the Commission, depending on the complexity of issues, the number of interested parties, urgency, and other factors.
- The filing of an application may include a proposed regulatory schedule and a proposed review process. Any proposed regulatory schedule should allow for sufficient review of the filing by all stakeholders.
- In order to avoid unnecessary delays or extensive information requests, every effort should be made to ensure that filings are complete, self-explanatory, and follow any applicable published filing guidelines.
- In a filing, the figures contained in the body of the text should reference back to the relevant financial schedule. Financial schedules should be cross-referenced (both source and destination). Reconciliations should be provided where appropriate to enable greater transparency. Totals and subtotals should be used in the financial schedules to aid in understanding.
- Parties are encouraged to discuss filing schedules periodically with the Commission staff to exchange information on upcoming filings by the regulated entity and on the regulatory schedule anticipated by the Commission. In addition, where specific filings will contain unusual complexity or innovation, the prospective applicant is encouraged to pre-file some or all of the material, or to request a pre-filing conference with the Commission staff in order to plan an efficient regulatory review of the application.
- While the BCUC normally commences dealing with a filing in less than 30 days, this will depend on the complexity and completeness of the filing and the Commission’s workload at the time of filing.
8-BC-c.3 to 8-BC-c.4 – Is the Application Complete?
The Commission undertakes a preliminary review of the application to ensure it meets the criteria of the CPCN guidelines. Incomplete applications may be returned to the applicant. Once a complete application is received, the Commission may proceed with any testing the application through information requests to the applicant and/or to other parties involved in the review process. BCUC Order G-20-15, Appendix A, page 3 (2015). A complete Application must include, information on the following:
- Name of the Applicant;
- Project Need, Alternatives, and Jurisdiction;
- Project Description;
- Project Cost Estimate;
- Provincial Government Energy Objectives and Policy Considerations;
- New Service Areas;
BCUC Order G-20-15, Appendix A, pages 4 – 9 (2015). For more detailed information on filing requirements, see BCUC Order G-20-15, Appendix A, page 3-9 (2015).
8-BC-c.5 to 8-BC-c.6 Request Additional Information or Conduct a Hearing (Optional)
The BCUC has discretion whether or not to hold any hearing on an Application. Utilities Commission Act, R.S.B.C. 1996, c. 473 s. 46 (2). The Commission may grant a CPCN or establish an appropriate hearing method to proceed with the review of the application. The Commission also may refuse to issue a CPCN subject to subsections (3.1) to (3.3) of section 46(3) the UCA. BCUC Order G-20-15, Appendix A, page 3 (2015).If the Act requires that a hearing be held, it must be a public hearing whenever, in the opinion of the Commission or the Lieutenant Governor in Council, a public hearing is in the public interest. If the BCUC hold a hearing, the BCUC decides whether the hearing is to be oral or written. In making the decision the BCUC considers the nature of the interest involved, the number of parties involved, and the nature of the issue. Utilities Commission Act, R.S.B.C. 1996, c. 473 s. 86, 86.2.
8-BC-c.7 to 8-BC-c.8 – Review Application Materials for Approval
The BCUC will review the Application for approval. BCUC won’t approve the Application unless it determines that the privilege, concession or franchise proposed is necessary for the public convenience and properly conserves the public interest. Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 45 (8). The commission may grant a CPCN with any conditions about the duration and termination of the privilege, concession or franchise, or construction, equipment, maintenance, rates or service, as the public convenience and interest reasonably require. Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 45 (9). In deciding whether to issue a CPCN the commission must consider different factors depending on the applicant. In deciding whether to issue a certificate under subsection (3) applied for by a public utility other than the authority, the commission must consider:
- the applicable of British Columbia's energy objectives;
- the most recent long-term resource plan filed by the public utility under section 44.1; if any, and
- the extent to which the application for the certificate is consistent with the applicable requirements under sections 6 and 19 of the Clean Energy Act. Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 46 (3.1).
In deciding whether to issue a certificate under subsection (3) to the authority, the commission, in addition to considering the interests of persons in British Columbia who receive or may receive service from the authority, must consider:
- British Columbia's energy objectives;
- an applicable integrated resource plan approved under section 4 of the Clean Energy Act; and
- the extent to which the application for the certificate is consistent with the requirements under section 19 of the Clean Energy Act. Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 46 (3.3).
8-BC-c.9 – Certificate of Public Convenience and Necessity
An order granting a CPCN may impose conditions about the duration and termination of the CPCN, construction, equipment, rates or service as the public convenience and interest reasonably require Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 45(9).
8-BC-c.10 – Appeal Decision (Optional)
The BCUC, by applicant request or on its own motion may reconsider any of its actions and confirm, vary, or rescind them. Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 99. An application for reconsideration must:
- Be in writing less than 30 pages unless prior permission of the BCUC is obtained;
- Identify the decision affected;
- State the applicant’s name and the representative’s name (if applicable);
- Describe the impact of the decision and how it is material;
- Set out the grounds for reconsideration in accordance with Rule 26.05; and
- Set out the remedy the applicant is seeking.
An application for reconsideration of a decision must contain a concise statement of the grounds for reconsideration, which must include one or more of the following:
- BCUC has made an error of fact, law, or jurisdiction which has a material bearing on the decision;
- Facts material to the decision that existed prior to the issuance of the decision were not placed in evidence in the original proceeding and could not have been discovered by reasonable diligence at the time of the original proceeding;
- New fact(s) have arisen since the issuance of the decision which have material bearing on the decision;
- A change in circumstances material to the decision has occurred since the issuance of the decision; or * Where there is otherwise just cause.
The BCUC will determine the regulatory process for the reconsideration hearing, which may include, but is not limited to: a) whether the hearing will be wholly, or in part, written, oral, or a combination thereof; b) a determination as to whether any new evidence or evidence of a change of circumstances will be permitted on the reconsideration hearing and the timing of submissions on these issues; c) the scheduling of oral hearings, if any; d) the scheduling of arguments, if any; and e) any other procedural directions the BCUC considers appropriate.
The Applicant may petition for judicial review by the Supreme Court of British Columbia within 60 days of a decision by the BCUC under section 109.1 (Contraventions) or 109.2 ( Administrative Penalties). Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 57. Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 101 The Applicant may petition for judicial review by the Appeal Court Appeal Court of British Columbia within 30 days of a BCUC decision on any matter besides contraventions or administrative penalties. Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 101. The party appealing must give notice of the application for leave to appeal, stating the grounds of appeal, to the commission, to the Attorney General and to any party adverse in interest, at least 2 clear days before the hearing of the application. If leave is granted, within 15 days from the granting, the appellant must give notice of appeal to the commission, to the Attorney General, and to any party adverse in interest. Utilities Commission Act, R.S.B.C. 1996, c. 473, s. 101. The Court has discretion to review the petition or not. If the Court finds procedural unfairness, abuses of authority, or unreasonable findings, then it may invalidate the decision and/or remand the matter to BCUC with instructions for a rehearing. Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, s. 5, 7]. BCUC may or may not reach a different decision upon rehearing the matter. The Court has limited ability to review administrative decisions. It cannot set aside a finding of fact “unless there is no evidence to support it or if, in light of all the evidence, the finding is otherwise unreasonable.” Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 59. The Court cannot set aside discretionary decisions unless they are “patently unreasonable.” For example, it could not overturn a decision because it did not prefer the outcome, but it could overrule a decision “exercised arbitrarily or in bad faith.” Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 59.
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