LLC v. Dept. of Energy and Environmental Protection et al. (2013)

MEMORANDUM OF DECISION

This is a consolidated appeal by Kleen Energy Systems, LLC (Kleen) from a declaratory ruling of the defendant Public Utilities Regulatory Authority ¹ dated October 12, 2011 and a declaratory ruling of PURA dated November 15, 2012.²  Waterbury Generation, LLC (WatGen) has intervened in favor of Kleen while the Office of Consumer Counsel (OCC) and the Connecticut Light & Power Company (CL & P) have intervened in favor of PURA.³

The background to the declaratory rulings, taken from the record, is as follows.   In a special session of the General Assembly, the legislature passed P.A. 05–01, “An Act Concerning Energy Independence,” now codified as General Statutes § 16–243m.   This act was an effort by the legislature to “reduce federally mandated congestion charges [fmcc]” as approved by the Federal Energy Regulatory Authority (FERC).  Section 16–243m(a) directed PURA to identify, on or before November 1, 2005, such measures that would reduce fmcc and suggested such programs as a contract between an energy distribution company and an owner of generation resources.

The legislation also required PURA to conduct a contested case “to establish the principles and standards to be used in developing and issuing a request for proposals ․” § 16–243m(b).  PURA was to issue a request for proposals, § 16–243m(d);  any party submitting a proposal was to include such provisions as PURA directs, § 16–243m(d);  PURA was to evaluate these proposals and choose ones that maximized reduction of fmcc, made efficient use of existing sites, and served the long-term interests of ratepayers, § 16–243m(g).

On November 16, 2006, PURA issued drafts of what it called “a contract for differences” between electric distribution companies and generator-owners with capacity resources.   The draft was the result of the legislatively mandated contested case and had input from interested parties including Kleen.   Docket No. 05–07–14PH02.   On May 3, 2007, also in this docket, a “master agreement” was approved by PURA and was subsequently signed by Kleen and CL & P on May 18, 2007.⁴

PURA, in an uncontested proceeding under No. 05–07–14 PH02, subsequently reopened its docket to consider certain questions over the interpretation of the master agreement raised by CL & P and Waterside, with Kleen named by PURA as a participant, and a decision was issued on May 18, 2011.   This resulted in a declaratory ruling request by Waterside, repeating the same questions asked in the uncontested proceeding.   Kleen became a party to the PURA proceeding to resolve Waterside's request for a declaratory ruling.  Docket No. 11–08–09.

The questions raised by Waterside related to the interpretation of § 6.3 of the master agreement, “Determination of Monthly Payment Amount for Capacity.”   Waterside's position was that the “Capacity Clearing Price” in master agreement § 6.3 was identical to the “FCA Market Price.”   Waterside further argued that FCA Market Price was determined at an auction conducted by ISO–New England, and that in an auction held in 2008, a price of $4.50 per k/W was modified to $4.25.   It argued that the correct FCA Market Price was therefore $4.25.   PURA both in its May 18, 2011 uncontested proceeding and in its October 12, 2011 declaratory ruling differed by concluding that $4.50 represented the “stop” or “floor figure.”   This was the FCA Market Price, hence the “Capacity Clearing Price” under the master agreement, and the $4.25 figure represented only a subsequent “true-up” or the “pro-rata price.” ⁵

PURA's declaratory ruling was supported by OCC and CL & P, while Waterside argued that the result would penalize it in the amount of $.25 per k/W per month.   Waterside appealed from the October 12, 2011 declaratory ruling and Kleen also separately appealed on November 23, 2011.

In its appeal of November 23, 2011, Kleen sought to have the court issue a declaratory judgment modifying PURA's declaratory ruling “so that the payment it receives from CL & P under the master agreement ․ is based upon the actual capacity payments received from ISO–NE.”

In addition for the first time Kleen made the following allegation:  “The Defendant abused its authority in issuing its Final Decision as the matter it has adjudicated is solely within the province of the alternative dispute resolution provisions of Section 12 of the Master Agreement.   Said provisions read, in pertinent part:  ‘Except as otherwise expressly set forth herein, for any and all disputed issues, the Parties shall refer this Dispute Resolution] Section 12.10.’   No express provision justifies the Defendant declaring the parties' rights under the Master Agreement as it has without resort to the dispute resolution processes found in Section 12.10.”   This allegation was not included in the prayer for relief.

On June 18, 2012, Kleen moved that the court hold a status conference to discuss staying its administrative appeal and allowing arbitration to proceed.   It referred to its allegation in its complaint about the applicability of § 12.10 of the master agreement.   It further stated that it had given its initial notice on May 22, 2012 to CL & P requesting the ADR provisions of § 12.10 and that CL & P had responded on June 8, 2012.

The parties held an on-the-record status conference with the court on August 2, 2012.   After briefs were filed by September 5, 2012, the court remanded the matter to PURA to (1) “construe the meaning of § 12.10 and its relationship to the master agreement,” and (2) receive “the benefit of [PURA's] expertise on the drafting and the meaning of § 12.10,” and (3) find out whether PURA contemplated “that the sole remedy for violation of § 12.10 was to be a civil action to compel arbitration under § 52–410.”

After PURA re-opened its docket, on November 15, 2012, it issued a remand decision.   It made the following points:

(1) PURA, unlike prior energy procurement contracts, in this case, was directly involved in the drafting of the master agreement.   It developed a template for the master agreements and approved the Kleen master agreement.

(2) Kleen participated in the Waterside uncontested proceeding resolved on May 18, 2011 and was a party to the declaratory ruling proceeding (final decision of October 12, 2011.)

(3) The first time § 12.10 of the master agreement was mentioned by Kleen was in its appeal to the superior court on November 23, 2011.

(4) On June 18, 2012, Kleen first asked the court for a stay preliminarily to seek arbitration.

(5) The master agreement “specifically contemplated” that PURA would have on-going oversight of the master agreement.

(6) While PURA rejected CL & P's initial suggestion, when the master agreement was drafted, to become the overseer of pricing under the master agreement, the master agreement did not prohibit PURA from resolving disputes over interpretation of the master agreement.

(7) PURA had continuing jurisdiction under § 16–9 to provide an interpretation of the master agreement.

(8) The parties have continuously asked PURA to interpret the master agreement.

(9) Section 52–410 is not the exclusive remedy for alleged violations of § 12.10;  PURA also has discretion to interpret the master agreement.

(10) Kleen was untimely in not raising § 12.10 until there had been the proceedings of May and October 2011 before PURA.6

(11) Kleen cannot claim that Waterside's request for a declaratory ruling a “negotiation step” under § 12.10.

On December 28, 2012, Kleen brought an appeal from PURA's declaratory ruling of November 15, 2012.   The prayer for relief asked that the court stay the appeal until provisions of § 12.10 were met and thereafter sustain Kleen's appeal.   Kleen claimed that it had not waived its rights under § 12.10. It also claimed that an action to compel arbitration under § 52–410 was not limited to situations such as when PURA does not initially decide the dispute. (¶¶ 7, 8.)

The court, on December 11, 2012, allowed Kleen until January 4, 2013 to file a suit in Middletown Superior Court for an action to compel arbitration.   At that time the Waterside case was being briefed, as Waterside decided in December 2012 not to join in the contention that § 12.10 applied.⁷

Then Kleen so moved in the Middletown Superior Court under § 52–410 and CL & P moved to dismiss or to stay.   Judge Edward Domnarski issued an opinion on May 2, 2013.   That court found that the action to compel arbitration should be stayed until review of PURA's administrative actions were complete by this court.   It also observed that Waterside's appeal had not yet been decided by this court.   A decision allowing Kleen's action to proceed could possibly affect Waterside's pending appeal.

On June 11, 2013, the court ruled in Waterside Power, LLC v. Dept. of Energy and Environmental Protection, Docket No. CV 11–6013374.   The court dismissed the appeal concerning the October 12, 2011 PURA declaratory ruling on the ground that it must, under Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, 283 Conn. 672, 692, 931 A.2d 159 (2007), defer to PURA's interpretation of § 6.3 of the master agreement.

Kleen and PURA then completed briefing and argued the consolidated Kleen appeals on November 12, 2013.   The appeals are reviewed under the following standards.   With regard to the issue raised by Kleen in its initial appeal, as in the Waterside opinion, the court relies on the PURA interpretation of § 6.3 of the master agreement.  Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, supra, 283 Conn. 672.   The court concludes as in Waterside that Kleen's appeal must be dismissed under PURA's interpretation of § 6.3 of the master agreement.⁸

The court turns to the second Kleen appeal, essentially involving waiver.

Here the standard of review is as follows:

“In reviewing [an] administrative ․ decision, the court must ․ ensure that the agency's decisionmaking process was conducted pursuant to the appropriate procedures and that the outcome of the process reflects reasoned decisionmaking a reasonable application of relevant statutory provisions and standards to the substantial evidence on the administrative record ․ Within this context, judicial review of [the department's] action is governed by the [Uniform Administrative Procedure Act];  General Statutes §§ 4–166 through 4–189;  and the scope of that review, the substantial evidence rule, is restricted ․ Substantial evidence exists if the administrative record demonstrates a substantial basis of fact from which the fact in issue can be reasonably inferred ․ With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency ․ Judicial review of conclusions of law reached administratively is also limited.   The court's ultimate duty is to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion ․” (Citations omitted.)  Office of Consumer Counsel v. Dept. of Public Utility Control, 279 Conn. 584, 592–93, 905 A.2d 1 (2006).   See also Office of Consumer Counsel v. Dept. of Public Utility Control, 252 Conn. 115, 120 (2000) (With regards to statutory interpretation, ordinarily there is no deference to the agency as it is the court's responsibility to interpret the law.)

Before reaching the issue on appeal, the court denies Kleen's motion to supplement the record.⁹  First, under § 4–183(h), this motion should be made well prior to the date set for oral argument.   Here the motion was made two days before oral argument.   This is an appeal of a remanded decision.   In the remand before PURA there was an opportunity to develop the record by Kleen.   In addition, the motion seeks to bring to the court's attention an issue of prejudice relating to the waiver of § 12.10. This factual issue is in the record as it exists.   There is no need to place additional facts on the record. § 4–183(i).

Kleen's first argument is that PURA did not have the authority when the court remanded the appeal to opine on the waiver of § 12.10. But § 4–176(a) permits an agency to issue a declaratory ruling on statutory provisions that it enforces.  Wheelabrator Lisbon, Inc. v. Dept. Public Utility Control, supra, 283 Conn. 672, 686 (2007);  Connecticut Resource Recovery Authority v. Connecticut Light & Power Co., 34 Conn.App. 246, 249, 641 A.2d 398 (1994);  “[T]he parties' intent as evidenced by their agreement aligns with the intent of the state legislature that [PURA] regulate and supervise public utilities and establish reasonable rates.   Both the parties' agreement and public policy dictate that this dispute be resolved by [PURA].”

Here under § 16–243m, the legislature had directed PURA to take steps to draft the master agreement.   A declaratory ruling is an appropriate vehicle to obtain PURA's interpretation of a clause in the master agreement relating to arbitration.  Mass v. United States Fidelity & Guaranty Co., 222 Conn. 631, 649, 610 A.2d 1185 (1992) (commissioner has a “very broad grant of regulatory authority in filling in the interstices” of legislation;  case to set aside arbitration award).

Kleen also challenges the use of a declaratory ruling by PURA when its own regulations only permit advisory opinions on certain topics.   The court concludes, however, that the statutory right to a declaratory ruling is not controlled by the existence or non-existence of agency regulations.   See Breen v. Dept. Public Health and Addiction Services, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. CV 94–0535185 (October 27, 1994) [12 Conn. L. Rptr. 688].¹⁰

The merits of the remand decision are the next basis of Kleen's appeal.   It attacks PURA's conclusion that it waived the provisions of § 12.10. It and WatGen note that § 12.8(f) states that a delay does not waive the arbitration provision.   But as PURA held, there was more than delay by Kleen here.   It argued to PURA, along with Waterside, that the capacity clearing price of the master agreement was $4.25/kW in both the uncontested proceeding of May 2011 and the October 2011 declaratory ruling proceeding.   While in its first appeal to this court Kleen mentioned § 12.10, in its prayer for relief of November 23, 2011, it did not ask for arbitration.   It was only in its pleading of June 18, 2012 that Kleen asked for a stay in its administrative appeal based on § 12.10.

This conduct by Kleen clearly falls under Butler Building Materials Co. v. Kirschner, 142 Conn. 1, 11–12, 110 A.2d 464 (1954), where our Supreme Court held that arbitration would be waived through proceeding to trial without insisting on arbitration.   See also Stevens v. Hartford Accident & Indemnity Co., 39 Conn.App. 429, 436, 664 A.2d 826 (1995), quoting National Foundation for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C.Cir.1187) (essential question “in whether, under the totality of the circumstances, the ․ [party claiming arbitration] has acted inconsistently with the arbitration right.” ¹¹

Kleen further claims that PURA and CL & P suffered no prejudice through its late assertion of a right to arbitrate.  Advest, Inc. v. Wachtel, 235 Conn. 559, 569 (1995).   This is a question of fact, however.  Id., 569.   Under the substantial evidence test, the record supports that the voiding of the two hearings before PURA would amount to prejudice.   Indeed, Advest at 569–70, cites as an example of prejudice the seeking of arbitration over an issue, as here, that had been raised in prior proceedings.   See also Kramer v. Hammond, 943 F.2d 176 (2nd Cir.1991) (expenditure of time and money in prearbitration proceeding).

In addition as Judge Domnarski noted at page 7 of his decision, Kleen's successful arbitration proceeding would possibly conflict with this court's ruling in Waterside.   Now a ruling has taken place, and has not been appealed by Waterside.   That the Waterside matter is final and under Kleen's theory, its appeal must proceed to arbitration would constitute prejudice.

Kleen speculates that Waterside might have continued its hearings and appeal even if it had sought arbitration.   The court cannot judge this directly from the record.   At one point Waterside was interested in joining with Kleen in seeking arbitration, but then indicated in December 2012 that it preferred a court ruling.¹²

With regard to two remaining arguments raised by Kleen, the court first rejects the contention that Waterside's initial questions in May 2011 triggered the arbitration clause.   Kleen has not adequately briefed this issue and it is deemed abandoned.   Secondly, with regard to a constitutional claim, Kleen admitted at oral argument that if the declaratory ruling on remand was properly rendered by PURA, there was no constitutional deprivation.

The appeal is therefore dismissed.

Henry S. Cohn, Judge

FOOTNOTES

FN1. Certain administrative actions were taken prior to PURA under its former official name, the Department of Public Utility Control (DPUC).   As these names do not affect the outcome, the court makes use of “PURA” throughout this opinion.   In addition, PURA is a division of the Department of Energy and Environmental Protection..  FN1. Certain administrative actions were taken prior to PURA under its former official name, the Department of Public Utility Control (DPUC).   As these names do not affect the outcome, the court makes use of “PURA” throughout this opinion.   In addition, PURA is a division of the Department of Energy and Environmental Protection.

FN2. The court finds that Kleen is aggrieved pursuant to General Statutes § 4–183(a) by these declaratory rulings..  FN2. The court finds that Kleen is aggrieved pursuant to General Statutes § 4–183(a) by these declaratory rulings.

FN3. Neither WatGen nor CL & P have filed a brief in this appeal after remand, but rely on Kleen and PURA respectively..  FN3. Neither WatGen nor CL & P have filed a brief in this appeal after remand, but rely on Kleen and PURA respectively.

FN4. On August 22, 2007, the master agreement was also signed by Waterside Power, another generator of electricity that qualified pursuant to § 16–243m..  FN4. On August 22, 2007, the master agreement was also signed by Waterside Power, another generator of electricity that qualified pursuant to § 16–243m.

FN5. PURA stated in Docket No. 11–08–09 (Return of Record, ROR, Item 1V, # 1, pp. 5–6):The Authority rules that it cannot modify the Agreement after the effective date except as provided for in the Agreement or law.   The Authority's interpretation of Section 6.3 provided requested clarification of the intent of the Agreement based on its plain and unambiguous language and did not modify the Agreement.   The Authority reaffirms its May 18 Decision that the Capacity Clearing Price of $4.50/kW-month be used to calculate Monthly Payment Amounts under Section 6.3 of the Agreement.The Department finds suppliers knew or should have known at the time of contracting that the capacity payment could be prorated downward from the Capacity Clearing Price under FCM rules, if there was excess capacity.   The Federal Energy Regulatory Commission reviewed and approved the capacity payment proration rule prior to Waterside and three other suppliers entering into Agreements ․The Authority's analysis is straightforward.   The Authority clarified in the May 18 Decision and clarifies again in this ruling that Waterside's pro-rated capacity payment made pursuant to ISO NE market rules is not equal to the Capacity Clearing Price.   The Capacity Clearing Price was $4.50/kW-month. Because there was excess capacity, ISO NE then applied a market rule to pro-rate the actual capacity payment down to a Payment Rate of $4.25/kW-month. The Capacity Clearing Price is not changed or pro-rated byISO NE, the capacity payment is pro-rated.   The Authority could have reached a different result and found that $4.25/kW-month is the Capacity Clearing Price, if Section 6.3 and Article I, General Definitions, or some other provision in the Agreement provided that the definition of “Capacity Clearing Price” also included any post-FCA adjusted or pro-rated capacity payment lower than the Capacity Clearing Price.   The Agreement does not contain such language.   Furthermore, the FCM rules definitions distinguish between “Capacity Clearing Price” and “ECA Payments.”   ISO New England, Inc. Transmission, Markets and Services Tariff, General Terms and Conditions, Section I..  FN5. PURA stated in Docket No. 11–08–09 (Return of Record, ROR, Item 1V, # 1, pp. 5–6):The Authority rules that it cannot modify the Agreement after the effective date except as provided for in the Agreement or law.   The Authority's interpretation of Section 6.3 provided requested clarification of the intent of the Agreement based on its plain and unambiguous language and did not modify the Agreement.   The Authority reaffirms its May 18 Decision that the Capacity Clearing Price of $4.50/kW-month be used to calculate Monthly Payment Amounts under Section 6.3 of the Agreement.The Department finds suppliers knew or should have known at the time of contracting that the capacity payment could be prorated downward from the Capacity Clearing Price under FCM rules, if there was excess capacity.   The Federal Energy Regulatory Commission reviewed and approved the capacity payment proration rule prior to Waterside and three other suppliers entering into Agreements ․The Authority's analysis is straightforward.   The Authority clarified in the May 18 Decision and clarifies again in this ruling that Waterside's pro-rated capacity payment made pursuant to ISO NE market rules is not equal to the Capacity Clearing Price.   The Capacity Clearing Price was $4.50/kW-month. Because there was excess capacity, ISO NE then applied a market rule to pro-rate the actual capacity payment down to a Payment Rate of $4.25/kW-month. The Capacity Clearing Price is not changed or pro-rated byISO NE, the capacity payment is pro-rated.   The Authority could have reached a different result and found that $4.25/kW-month is the Capacity Clearing Price, if Section 6.3 and Article I, General Definitions, or some other provision in the Agreement provided that the definition of “Capacity Clearing Price” also included any post-FCA adjusted or pro-rated capacity payment lower than the Capacity Clearing Price.   The Agreement does not contain such language.   Furthermore, the FCM rules definitions distinguish between “Capacity Clearing Price” and “ECA Payments.”   ISO New England, Inc. Transmission, Markets and Services Tariff, General Terms and Conditions, Section I.

FN6. “Kleen has waived its right to seek arbitration because it failed to raise its right to arbitration as required by the procedures prescribed in § 12.10 of the Agreement, and instead asserted its arbitration right for the first time a year and a half after issues were first raised.   Kleen's delay in asserting its arbitration rights has resulted in a waste of judicial resources in the form of two administrative agency proceedings, one of which was specifically supported by Kleen.   PURA's predecessor, the DPUC, issued final decisions in both of these administrative proceedings.   Further, Kleen acted inconsistently with the arbitration clause by participating in these agency proceedings, accepting PURA resolution of issues other than the capacity payment rate, and by supporting the declaratory ruling petition submitted by Waterside.  (ROR, Remand Decision, November 15, 2012, pp. 15–16.)”.  FN6. “Kleen has waived its right to seek arbitration because it failed to raise its right to arbitration as required by the procedures prescribed in § 12.10 of the Agreement, and instead asserted its arbitration right for the first time a year and a half after issues were first raised.   Kleen's delay in asserting its arbitration rights has resulted in a waste of judicial resources in the form of two administrative agency proceedings, one of which was specifically supported by Kleen.   PURA's predecessor, the DPUC, issued final decisions in both of these administrative proceedings.   Further, Kleen acted inconsistently with the arbitration clause by participating in these agency proceedings, accepting PURA resolution of issues other than the capacity payment rate, and by supporting the declaratory ruling petition submitted by Waterside.  (ROR, Remand Decision, November 15, 2012, pp. 15–16.)”

FN7. Previously, Waterside had from time to time indicated that it would join Kleen in seeking a stay of its administrative appeal..  FN7. Previously, Waterside had from time to time indicated that it would join Kleen in seeking a stay of its administrative appeal.

FN8. Waterside did not appeal to the Appellate Court from the dismissal of its appeal..  FN8. Waterside did not appeal to the Appellate Court from the dismissal of its appeal.

FN9. The motion stated:  (1) Additional evidence on plaintiff's arbitration rights, including on the issue of waiver, is material to plaintiff's claims of denial of its arbitration rights and there are good reasons for failure to present the evidence in the proceeding before the agency as (a) no hearings were held by the agency;  and (b) as defendants did not raise the issue of waiver until defendants refused to participate in the dispute resolution process provided for in the Master Agreement between The Connecticut Light and Power company (“CL & P”) and Kleen.  (2) Defendant Public Utility Regulatory Authority's (“PURA”) refusal to follow the dispute resolution process set forth in the Master Agreement and established by its prior decision is a procedural irregularity and there are facts not shown in the record related thereto such as would show PURA deprived plaintiff to an arbitration hearing.  (3) The facts not shown in the record include, but are not limited to, facts pertaining to whether:  (a) Waterside Power LLC would have maintained its Petition for Declaratory Ruling if Kleen had invoked its arbitration rights sooner;  (b) Defendant Public Utility Regulatory Authority (“PURA”) would have continued to address the merits of the Waterside declaratory ruling request if Kleen sought to initiate arbitration sooner;  (c) CL & P was substantially prejudiced;  (d) PURA was substantially prejudiced;  and/or (e) Kleen's initiation of arbitration was unjustifiably delayed..  FN9. The motion stated:  (1) Additional evidence on plaintiff's arbitration rights, including on the issue of waiver, is material to plaintiff's claims of denial of its arbitration rights and there are good reasons for failure to present the evidence in the proceeding before the agency as (a) no hearings were held by the agency;  and (b) as defendants did not raise the issue of waiver until defendants refused to participate in the dispute resolution process provided for in the Master Agreement between The Connecticut Light and Power company (“CL & P”) and Kleen.  (2) Defendant Public Utility Regulatory Authority's (“PURA”) refusal to follow the dispute resolution process set forth in the Master Agreement and established by its prior decision is a procedural irregularity and there are facts not shown in the record related thereto such as would show PURA deprived plaintiff to an arbitration hearing.  (3) The facts not shown in the record include, but are not limited to, facts pertaining to whether:  (a) Waterside Power LLC would have maintained its Petition for Declaratory Ruling if Kleen had invoked its arbitration rights sooner;  (b) Defendant Public Utility Regulatory Authority (“PURA”) would have continued to address the merits of the Waterside declaratory ruling request if Kleen sought to initiate arbitration sooner;  (c) CL & P was substantially prejudiced;  (d) PURA was substantially prejudiced;  and/or (e) Kleen's initiation of arbitration was unjustifiably delayed.

FN10. Kleen contends that in the drafting of the master agreement CL & P asked that PURA resolve disputes, but that PURA rejected this role for the arbitration clause.   The court agrees with PURA, however, that in developing the arbitration provision, it did not intend to eliminate its role in resolving disputes when requested by the parties..  FN10. Kleen contends that in the drafting of the master agreement CL & P asked that PURA resolve disputes, but that PURA rejected this role for the arbitration clause.   The court agrees with PURA, however, that in developing the arbitration provision, it did not intend to eliminate its role in resolving disputes when requested by the parties.

FN11. The court agrees with PURA that the word “litigation” in § 12.10 is equivalent to a request for a declaratory ruling of PURA. Kleen therefore could not wait until an administrative appeal was filed to seek arbitration..  FN11. The court agrees with PURA that the word “litigation” in § 12.10 is equivalent to a request for a declaratory ruling of PURA. Kleen therefore could not wait until an administrative appeal was filed to seek arbitration.

FN12. In denying Kleen's motion to supplement the record, the court took into account that the probing of Waterside's position today on arbitration would lead to an irrelevant tangent to this administrative appeal..  FN12. In denying Kleen's motion to supplement the record, the court took into account that the probing of Waterside's position today on arbitration would lead to an irrelevant tangent to this administrative appeal.

Cohn, Henry S., J.