20120900 Ver 2_Order Approving Transfer of License_20161213

20161213-3044 FERC PDF (Unofficial) 12/13/2016
157 FERC ¶ 62,188
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Alcoa Power Generating Inc. Project No. 2197-109
Cube Yadkin Generation LLC
ORDER APPROVING TRANSFER OF LICENSE
(Issued December 13, 2016)
1. By application filed July 25, 2016, Alcoa Power Generating Inc. (Alcoa Power or
transferor) and Cube Yadkin Generation LLC (Cube Yadkin or transferee) seek
Commission approval to transfer the license and substitute the relicense applicant for the
Yadkin Hydroelectric Project No. 2197, located on the Yadkin River in Stanly,
Montgomery, Davidson, and Rowan counties, North Carolina. The project does not
occupy federal lands.
Background
2. A 50 -year license for the project was issued to Carolina Aluminum Company on
May 19, 1958.1 The Commission approved a transfer of license to Alcoa Power
Generating Inc. on July 17, 2000. On April 25, 2006, Alcoa Power filed a new license
application. That license expired on April 30, 2008. Since that time the project has been
operating under annual licenses3 until September 22, 2016, when the Commission issued
a new license to Alcoa Power.4
3. The Commission issued a public notice of the current application for transfer on
August 1, 2016, establishing August 31, 2016 as the deadline for filing comments,
1 19 FPC 704 (1958).
2 92 FERC ¶ 62,029 (2000).
' Section 15(a)(1) of the FPA, 16 U.S.C. § 808 (a)(1) requires the Commission, at
the expiration of a license term, to issue from year-to-year an annual license to the then
licensee under the terms and conditions of the prior license until a new license is issued.
4 156 FERC ¶ 62,210 (2016). The license term is for a period of 38 years, 7
months. The applicants' requested substitution of the transferee for the transferor as the
applicant in the then pending application for a new license for the Yadkin Project is moot
due to the issuance of the new license.

20161213-3044 FERC PDF (Unofficial) 12/13/2016
Project No. 2197-109 -2-
motions
2 -
motions to intervene,5 and protests. Timely motions to intervene were filed on August
29, 2016, by Trading Ford Historic District Preservation Association (Trading Ford
Historic District), and the North Carolina Wildlife Resources Commission (North
Carolina Wildlife). On August 30, 2016, timely motions to intervene were filed by
American Rivers, New Energy Capital Partners, LLC (New Energy) ,6 and Yadkin
Riverkeeper, Inc. (Riverkeeper), and on August 31, 2015, timely motions or notices to
intervene were filed by Central Park NC (Central Park), North Carolina Department of
Environmental Quality (North Carolina Environmental Quality), Stanly County, and the
North Carolina Department of Justice (North Carolina Justice).7 Comments were filed on
August 30 and August 31, 2016 by the City of Salisbury (Salisbury) and Riverkeeper,
respectively.
Commission's Standard for Transfers
4. Section 8 of the Federal Power Act (FPA),g which governs license transfers, does
not articulate a standard for approving a transfer application.9 The Commission has held
that a transfer may be approved on a showing that the transferee is qualified to hold the
license and operate the project, and that a transfer is in the public interest.10 Specifically,
a license transfer proceeding is a limited inquiry of the ability of the transferee to carry
5 If no answer in opposition to a timely motion to intervene is filed within 15 days
after the motion to intervene is filed, the movant becomes a party at the end of the 15 day
period. If an answer in opposition to a timely motion to intervene is filed not later than
15 days after the motion to intervene is filed, the movant becomes a party only when the
motion is expressly granted, 18 C.F.R. § 385.214(c)(1) and (2) (2016).
6 Alcoa Power and Cube Yadkin filed oppositions to New Energy's motion to
intervene, and, on December 7, 2016, the Commission denied the motion. While New
Energy is thus not a party to this proceeding, we have fully considered its comments.
Alcoa Power and Cube Yadkin also filed oppositions to North Carolina Justice's
motion; the Commission granted the motion on December 7, 2016.
8 16 U.S.C. § 801 (2012); see also 18 C.F.R. §§ 9.1 — 9.3 (2016).
'See Potosi Generating Station, Inc. and Willow Creek Hydro, LLC, 100 FERC
¶ 61,115 (2002).
to See Wisconsin v. FERC, 104 F.3d 462 (D.C. Cir. 1997). See also, e.g., Gallia
Hydro Partners and Rathgar Development Associates, LLC, 110 FERC ¶ 61,237 (2005);
18 C.F.R. pt. 9.3 (2015); Confederated Salish and Kootenai Tribes, 153 FERC ¶ 61,217
(2015).

20161213-3044 FERC PDF (Unofficial) 12/13/2016
Project No. 2197-109 -3-
out
3 -
out its responsibilities under the license. In evaluating a license transfer application, we
consider the fitness of the transferee to carry out its responsibilities under the license,
including the transferee's control over the project's facilities and payment of the project's
annual charges under the FPA, and whether the transfer is in that sense in the public
interest. Section 8 of the FPA does not, however, require us to revisit all issues that must
be considered under FPA section 10(a)(1) before determining whether to license the
project itself."
Discussion
A. Cube Yadkin Qualifications
5. Several parties and commenters oppose the transfer based on a general assertion
that the transfer is contrary to the public interest. However, none of the commenters or
intervenors raises specific issues about the fitness of the transferee to be a licensee. For
example, North Carolina Justice asserts that Alcoa's and Cube Yadkin's transfer
application does not provide sufficient information about Cube Yadkin's qualifications to
be the licensee for the project.
6. We find that Cube Yadkin's transfer application demonstrated that it is qualified to
be the licensee for the Yadkin Project. As explained in Cube Hydro's application, Cube
Yadkin was formed for the purpose of owning and operating the project. It is authorized
to engage in the business of developing, transmitting and distributing power. Cube
Yadkin is affiliated with numerous companies (Cube Hydro) involved in the operation
and maintenance of hydroelectric projects and will have ready access to their expertise.
Numerous Alcoa Power employees that have experience with the Yadkin Project will
become employees of Cube Yadkin, or an affiliate of Cube Yadkin, as part of the
proposed transaction. 12 Based on the foregoing, there is no basis here to question Cube
Hydro's fitness to be a licensee, and we find that the transfer is consistent with the public
interest. 13
11 See New England Power Co. and US Gen New England, Inc, 83 FERC ¶ 61,272
(1998).
12 Application for Approval of Transfer of License filed July 25, 2016.
13 In addition, it is the Commission's policy is to scrutinize transfer requests that —
as is the case here — are filed during the last five years of a license term to determine if
the purpose of the transfer is to elude Commission review of a transferor's poor
compliance record. See Eugene Water & Electric Board, 155 FERC ¶ 62,242, at P 19
(2016); Menominee Company, 74 FERC ¶ 61,023 (1996); and AER NY -Gen, LLC, 133
FERC ¶ 62,143 (2010). There is no basis in this record to conclude that the transfer
application for the Yadkin Project was filed to avoid consideration of a poor compliance
(continued ...)

20161213-3044 FERC PDF (Unofficial) 12/13/2016
Project No. 2197-109 -4-
B.
4-
B. Project Impacts and Mitigation Measures
7. The motions to intervene and comments of New Energy, North Carolina Justice,
and Riverkeeper raise numerous issues related to the relicensing proceeding, the license
itself, and project impacts. Specifically, New Energy argues that the transfer should be
denied to allow Cube Yadkin and others the ability to compete for the new license. North
Carolina Justice argues that: (1) there is an open question, subject to pending litigation,
regarding whether Alcoa Power holds lawful title to all the property rights (specifically,
rights to the project waters) as required by the license and (2) the facts and circumstances
bearing directly on the 2006 relicense application have changed significantly.
Riverkeeper asserts that the license cannot be transferred due to uncertainty surrounding
the status and responsibilities of Cube Yadkin under the May 7, 2007 Yadkin Relicensing
Settlement Agreement signed by 23 parties to the relicensing proceeding. 14 We find that
these arguments, which relate to either the now completed relicensing proceeding or the
license itself and the operation of the project, are not relevant to this transfer proceeding.
When a license is transferred, the new licensee steps into the shoes of the old licensee,
and is subject to any and all requirements to which the old licensee was subject under the
license and the Commission's orders thereunder. Moreover, the mere transfer of a
license does not alter a project's environmental impacts, or the determination of what
mitigation measures are warranted. Consequently a project's environmental impacts and
appropriate mitigation measures are not germane in a transfer proceeding. Such
arguments are collateral attacks on license orders granting a new license and may not be
raised in limited proceeding such as this one. 15
record or otherwise give the transferee an advantage in relicensing. Moreover, this
concern is moot as the Commission already evaluated the transferor's compliance history,
found it satisfactory, and issued a new license. Alcoa Power Generating Inc., 156 FERC
¶ 62,210 at PP 160, 162.
14 See Alcoa Power Generating Inc., 156 FERC ¶ 62,210 at PP 7, 13 (order issuing
new license describing and incorporating in part the Settlement Agreement).
15 See Confederated Salish and Kootenai Tribes, 152 FERC ¶ 62,140(2 015).

20161213-3044 FERC PDF (Unofficial) 12/13/2016
Project No. 2197-109 -5 -
C. Reopening the License
8. New Energy, North Carolina Justice, Riverkeeper and Central Park NC also
request that the Commission reopen a new license application proceeding for the Yadkin
Hydroelectric Project due to the application for transfer. In an earlier proceeding, New
Energy filed a request for rehearing of the notice rejecting its motion to reopen the
record. In the order denying rehearing, 16 the Commission held that it must only reopen
license proceedings where changes in an applicant's plan of development are material,
that is, involve significant changes to a project's physical features such that it should be
considered an entirely new project. 17 No such changes have occurred in this
proceeding. 18
9. A transferee is subject to any and all requirements to which the old licensee was
subject under the license and the Commission's orders thereunder. Moreover, a license
transfer, a ministerial action, does not involve any significant changes in the license and
does not provide an opportunity to reopen the licensing proceeding. We find no basis for
reopening the relicensing proceeding.
10. Given that section 15(c)(1)19 of the FPA requires that all applications for a new
license be filed no later than two years from the date of expiration of an existing license
(in this case, by April 30, 2006), by the time that the transfer application was filed, it was
almost 10 years too late for a competing application to be filed. In consequence, even if
we had been required to reopen the relicensing proceeding, it would have been a
meaningless exercise.
16 Alcoa Power Generating Inc., 152 FERC ¶ 61,040 (2015).
17 See Erie Boulevard Hydropower, L.P., 131 FERC ¶ 61,036 at PP 17, 37; reh'g
denied, 134 FERC ¶ 61,205 at PP 31, 32; reh'g denied, 136 FERC ¶ 61,044 (2011);
summarily aff'd, Green Island Power Authority v. FERC, 497 Fed. Appx. 127 (2d Cir.
2012).
18 As explained in Alcoa Power Generating -Inc., 144 FERC ¶ 61,218, at PP 24-25,
the two matters raised by New Energy — the settlement agreement and two water
withdrawal agreements — did not constitute material amendments to Alcoa's license
application.
1918 U.S.C. § 808(c)(1) (2012).

20161213-3044 FERC PDF (Unofficial) 12/13/2016
Project No. 2197-109 -6-
D.
6-
D. Authority to Transfer an Annual License
11. New Energy asserts that the Commission does not have the authority under section
15(a)(1) of the FPA to transfer an annual license. In fact, the Commission has held that
annual licenses may be transferred .20 In any event, because the new license has been
issued to Alcoa Power, this is not a transfer of an annual license, but rather a transfer of a
new license.
E. Terms and Conditions of the Transfer
12. The transferee agrees to accept all of the terms and conditions of the license and to
be bound by the license as if it were the original licensee. The transferor agrees to pay
annual charges that have accrued to the date of the transfer.
13. The transferee will be required to comply with the requirements of the license as
though it were the original licensee. Based on the foregoing, transfer of the license for
this project is consistent with the Commission's regulations and is in the public interest.
The Director orders:
(A) The transfer of the license for the Yadkin Hydroelectric Project No. 2197
from Alcoa Power Generating Inc. to Cube Yadkin Generation LLC is approved.
(B) Alcoa Power Generating Inc. shall pay all annual charges that accrue up to
the effective date of the transfer.
(C) Approval of the transfer is contingent upon: (1) transfer of title of the
properties under license, transfer of all project files including all dam safety related
documents, and delivery of all license instruments to Cube Yadkin Generation LLC
which shall be subject to the terms and conditions of the license as though it were the
original licensee; and (2) Cube Yadkin Generation LLC acknowledging acceptance of
this order and its terms and conditions by signing and returning the attached acceptance
sheet. Within 60 days from the date of this order, Cube Yadkin Generation LLC shall
file certified copies of all instruments of conveyance and the signed acceptance sheet.
20 See Niagara Mohawk Corporation, 88 FERC ¶ 62,082 at p. 64,153 (1999).
".....Section 15(a)(1) requires the yearly issuance of an annual license to the
"then licensee" doesn't mean that annual licenses can't be transferred, as the
City of Oswego argues. Section 15(a)(1) does not mention transfers of annual
licenses, much less bar them." See e.g. Edwards Manufacturing Company, Inc
84 FERC ¶ 61,227 (1998).

20161213-3044 FERC PDF (Unofficial) 12/13/2016
Project No. 2197-109
-7-
(D) Approval of the transfer is also contingent upon filing of a comprehensive
insurance policy that will include business interruption coverage and major loss coverage
up to the replacement cost, or any other provisions made by the transferee, that will be
available to cover the cost of unexpected maintenance and repairs (e.g., major turbine or
generator malfunctions, dam safety repairs) for the project within 60 days from the date
of this order.
(E) This order constitutes final agency action. Any party may file a request for
rehearing of this order within 30 days from the date of its issuance, as provided in
§ 313(a) of the FPA, 16 U.S.C. § 8251(2012), and the Commission's regulations at
18 C.F.R. § 385.713 (2016). The filing of a request for rehearing does not operate as a
stay of the effective date of this order, or of any other date specified in this order. The
licensee's failure to file a request for rehearing shall constitute acceptance of this order.
Jennifer Hill
Director
Division of Hydropower Administration
and Compliance

20161213-3044 FERC PDF (Unofficial) 12/13/2016
IN TESTIMONY of its acknowledgment of acceptance of all of the terms and conditions
of this order, this day of , 20 ,
has caused its corporate name to be signed hereto by
its President, and its corporate seal to be affixed
hereto and attested by its Secretary, pursuant to a
resolution of its Board of Directors duly adopted on the day of
20 , a certified copy of the record of which is attached hereto.
Attest:
Secretary
(Executed in triplicate)

20161213-3044 FERC PDF (Unofficial) 12/13/2016
Document Content(s)
P-2I97-I09.DOCX....................................................... I-8