On April 30th, 2013, New Energy Capital LLC (a New Hampshire investment firm) filed a motion for late intervention in APGI's Yadkin Project (as well as a motion to reopen and restart the licensing process) with the Federal Energy Regulatory Commission (FERC).
On May 30th, FERC's Secretary denied New Energy's motion for late intervention, finding that the events identified by New Energy were not sufficient to show good cause for intervening late. (Very very late)
On June 27th, New Energy filed a request for rehearing of the notice denying its late motion to intervene.
Earlier today, FECR issued a nine-page Order denying New Energy's request for rehearing: http://elibrary.FERC.gov/idmws/file_list.asp?accession_num=20130919...
There are several particularly informative points in the FERC Order.
"First, it has been the Commission’s practice since the issuance of licenses began in 1920 to leave disposition of project power in the hands of the licensee unless Congress has made a legislative directive to the contrary, which has not occurred here. Accordingly, Alcoa Power’s decision as to where to sell project power is not a relevant issue in the relicensing proceeding and could not provide good cause for intervention at any time, let alone late. Further, New Energy has not shown that it has any cognizable interest in Alcoa Power’s sale of project power, and it accordingly lacks standing to raise the matter."
Secondly, "under section 16.9(b)(3) of the Commission’s regulations, the Commission will reissue a public notice of the application and provide an opportunity for intervention if an applicant materially amends its application. Section 4.35(f) of the Commission’s regulations defines a material amendment as one that results in “any fundamental and significant change” to an applicant’s plans of development. Such a fundamental and significant change includes, but is not limited to: (1) a change in installed capacity, or the number or location of any generating units, if the change would significantly modify the flow regime associated with the project; (2) a material change to the location, size, or composition of the dam, the location of the powerhouse, or the size and elevation of the reservoir if the change would enlarge, reduce, or relocate the area of the body of water that would lie between the upper end of the proposed impoundment and the point of discharge from the powerhouse or cause adverse environmental impacts not previously addressed in the application; (3) a change of the number of discrete units of development to be included in the project boundary. As the Commission explained in Erie Boulevard Hydropower, L.P., changes that would be considered material are those that “are of such a fundamental nature as to constitute the proposal of a different project.” "
I think that puts an end to that argument.