Energy

Secretary of Energy introduces significant news in the Corporate Renewable PPA Market – Expansion of Transmission Facilities

The Secretary of Energy has issued Resolution 360/2023 (“Resolution 360”) that introduces significant changes in the regulations of the Corporate Renewable PPA Market (“MATER”, for its Spanish acronym, Mercado a Término de Energías Renovables).

Certain large power consumers (i.e., mining, refineries, and other industries) may also have an interest in Resolution 360 whereby such regulation enables the request for dispatch priority in connection with future transmission expansions that may be undertaken by players in the power demand area.

As of the regulations introduced, dispatch priority may now be requested by renewable generators, large users (or a combination thereof).

Resolution 360 seeks (among other goals) to: (a) promote completion of renewable projects under construction, (b) address curtailment matters (by allowing a revamped mechanism of dispatch priority award), and (c) enable financing/funding from the private sector.

We understand that Resolution 360 is a positive step that will help continuing developing the MATER, in turn allowing off-takers to source their consumption needs from the grid through corporate PPA. Some of the matters addressed by Resolution 360 were discussed in the seminar held by our firm with Aires Renewables – a summary of this seminary may be accessed here.

Main changes included in Resolution 360 are:

1.Association between renewable projects associated and large users with an incremental power demand

Under Resolution 360, new renewable projects are allowed to submit before the ISO (CAMMESA) a request for dispatch priority with respect to joint incremental power demand projects equal to or greater than 10 MW.

Such request must be submitted by the renewable generator jointly with the off taker for which the request is being filed.

2. Transmission expansions associated to MATER projects

Renewable generation projects acting under the MATER may undertake transmission expansion works. Such projects will have dispatch priority.

3. Partial curtailment mechanism

For existing transmission facilities with no full availability to assign dispatch priority (i.e., dispatch priority granted for less than the installed capacity of the renewable project), the ISO (CAMMESA) may assign partial dispatch priority.

In any case, under this alternative, generators will be able to deliver energy into the grid with a 92% probability (i.e., 8% curtailment chances).

4. Other modifications

(a) Legacy renewable projects are allowed to enter the MATER

Resolution 360 enables legacy renewable generators under GENREN to act within the MATER, subject to meeting certain criteria and paying an entry-fee.

(b) Amendments to Resolution 281 and complementary provisions

Resolution 360 introduced:

• For those projects with dispatch priority that have not complied with the committed date for COD with committed commercial operation date are banned from requesting dispatch priority for the following four (4) quarters following the committed date for COD.
• However, COD may be extended for 720 days if a late COD penalty is paid.
• Partial COD is allowed in which case dispatch priority will be pro rata. Late COD penalties will be calculated for the capacity that is not operational.

(c) Funding of a Transmission Fund

Finally, Resolution 360 determined that all receivables (e.g., fees, extension requests, relocation requests and access to the MATER requests) will be destined to a fund for transmission expansion works.

For additional information, please contact Nicolás Eliaschev, Javier Constanzó, Daiana Perrone and/or Rocío Valdez.

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The Secretary of Energy introduces new rules allowing early termination of PPAs and to help free up transmission capacity

On April 25, 2023, the Secretary of Energy issued Resolution No. 284/2023 (“Resolution 284” and the “SE”), which includes new rules allowing early termination of Power Purchase Agreements (“PPA”) entered under Resolution No. 202/2016 of the former Ministry of Energy and Mining that have not yet achieved  commercial operation date (“COD”), and RenovAr 2 and 3.

The purpose of Resolution 284 is to help free up power transmission capacity, in turn making it available to new projects and subject to request for dispatch priority.

Similarly, Resolution SE No. 1,260/2021 had already contemplated the right to amend the terms of PPAs under RenovAr 1, 1.5, 2 and 3, in addition to early-exit rights (for additional information on Resolution SE No. 1260/2021, please click here). However, Resolution 284 only allows early termination and is limited to PPAs under Resolution No. 202/2016 of the former Ministry of Energy and Mining and RenovAr 2 and 3.

Following the enactment of Resolution 284, Annex 3 of the Corporate Market Regime (MATER, for its Spanish acronym, Mercado a Término de Energías Renovables) that is updated and published periodically by Compañía Administradora del Mercado Mayorista Eléctrico Sociedad Anónima (CAMMESA), should be followed closely to see whether the capacity being released will be included in such annex and if dispatch priority requests will be allowed with respect to such new capacity.

Please see below a summary of Resolution 284.

1. Key takeaways of Resolution 284

1.1. Eligible projects for early termination

Projects with PPA under (a) Resolution 202/2016 of the former Ministry of Energy and Mining, that have not obtained COD, and (b) RenovAr 2 and 3, may choose to voluntarily terminate their PPA.

1.2. Requirements for early termination

Projects that may choose to voluntarily terminate their PPA must:

1. Make a one-off payment of US$ 35,000 per MW;
2. Waive to any right, action or administrative, judicial, extrajudicial or arbitration claim, either in local or foreign venue, against the National Government, the SE and/or CAMMESA;
3. Indemnify the National Government against, and hold the National Government harmless from, any action, administrative, judicial, extrajudicial, extrajudicial or arbitration claim, either in local or foreign venue, that may be asserted by its shareholders or controlling, controlled or affiliates; and
4. Waive to any tax benefits granted thereto.

1.3. Deadline for requesting early termination

All requests must be filed with CAMMESA within a term no longer than 30 calendar days as of April 25, 2023 (i.e., May 25, 2023). Since May 25 and 26, 2023 are holidays in Argentina, it is advisable to confirm with CAMMESA if requests will be received on the business day immediately thereafter (i.e., May 29, 2023).

2. Additional matters

The proceeds of the termination payments will be destined to the Fund for the Development of Renewable Energies (“FODER”, for its Spanish acronym, Fondo para el Desarrollo de las Energías Renovables).

Projects that are early terminated will also be required to terminate their FODER Joinder Agreement.

For additional information, please contact Nicolás Eliaschev, Javier Constanzó and/or Rocío Valdez.

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New complementary rules in connection with Distributed Generation in the Province of Buenos Aires

On April 5, 2023, Resolution No. 463/2023 of the Ministry of Infrastructure and Public Services of the Province of Buenos Aires ("Resolution 463") was published in the Official Gazette of the Province of Buenos Aires, supplementing Provincial Law No. 15,325 and Regulatory Decree No. 2371/2022 (for additional information about these rules, please visit the following link), which establishes the technical, legal, economic, contractual and rate conditions that are necessary to allow self-generation of renewable origin in the area under the competence and jurisdiction of the Province of Buenos Aires, by users-generators for their self-consumption, and the eventual injection of surpluses to the distribution grid.

1. Regulatory background

Law No. 27,424, passed by the National Congress on November 30, 2017, approved the federal regime for the promotion of distributed generation of renewable energy (for additional information on Law No. 27,424, please visit the following link). Section 40 of the law invites the provinces and the Autonomous City of Buenos Aires to adhere and, in turn, issue their regulations at a local level.

Within such framework, Law No. 15,325, passed by the Congress of the Province of Buenos Aires on April 21, 2022, adhered to Law No. 27,424. This law declared distributed generation of electric energy from the use of renewable energy sources, for self-consumption and the eventual injection of the surplus to the provincial electric distribution network, as of provincial interest. Additionally, this law adheres to the promotional, tax, fiscal and financing benefits established in Law No. 27,424.

On January 11, 2023, provincial Decree No. 2371/2022 was published, regulating Law No. 15,325. As from its enactment, the users-generators of the Province of Buenos Aires that were authorized to generate energy from renewable sources for self-consumption may register in the Registry of Users-Generators of Renewable Energy of the Province of Buenos Aires (the "RUGER", for its Spanish acronym, Registro de Usuarios-Generadores de Energía Renovable de la provincia de Buenos Aires) with the possibility of accessing the tax advantages related to exemptions in the Stamp Tax and in the Gross Income Tax. The decree designates the Ministry of Infrastructure and Public Services as enforcement authority, entrusted with regulating powers.

2. Relevant aspects of Resolution 463

Resolution 463 includes three annexes, which are described below.

Annex I establish the Connection Regulations for Residential Users-Generators (the "Regulations"). The purpose of the Regulations is to establish the technical, legal, economic, contractual and rate conditions necessary to allow self-generation of power from renewable sources in the provincial grid, in accordance with Provincial Law No. 11,769. In effect, the Regulation establish the procedure for the installation and connection of distributed generation equipment, the technical requirements for its installation, the technical feasibility study to be carried out by the distributor, the connection request to be requested by every user-generator, the rights and obligations of the user-generator and the distributor, and the measurement and billing system.

Annex II sets forth: (i) the pass-through mechanism, which allows passing through a representative value of the average purchase cost in the Wholesale Electricity Market, and the transportation costs; (ii) parameters in connection with the calculation of the rate; and (iii) the initial values of the variables included in the mathematical expressions for calculating the rate parameters.

Finally, Annex III establishes the procedure and requirements for registering in the RUGER. This will contain statistical information on user-generators connected to the distribution network of provincial and municipal distributors. The registry will allow user-generators to obtain the tax benefits established by Provincial Law No. 15,325, special credit lines established in the province, as well as any other benefit that may be foreseen in the future.

For additional information, please contact Nicolás Eliaschev, Javier Constanzó, and/or Rocío Valdez.

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Resolution No. 165/2023 of the Secretary of Energy: Amendment to Resolution No. 285/2018 of the former Ministry of Energy and Mining

On March 20, 2023, Resolution No. 165/2023 of the Secretary of Energy ("Resolution 165") was published in the Official Gazette. Resolution 165 amends Article 1 of Resolution No. 285/2018 of the former Ministry of Energy and Mining ("Resolution 285") –which in turn had been previously amended by Resolution No. 742/2021 of the Secretariat of Energy ("Resolution 742")–, in connection with the applicable monthly payment cap of penalties foreseen under the power purchase agreements from renewable sources executed under the RenovAr Program Rounds 1, 1. 5, 2 and 3 and Resolution No. 202/2016 (the "PPA").

Initially, Resolution 285 set forth rules to be implemented by Compañía Administradora del Mercado Mayorista Eléctrico S.A. ("CAMMESA") regarding the termination of the PPAs, as well as payment terms for the penalties applicable for non-compliance with commercial operation dates (“COD”) and the supply of the contracted energy.

Accordingly, Article 1 of Resolution 285 established that the amount of the penalties imposed by CAMMESA in connection with the foregoing (the latter is not applicable to projects awarded under the RenovAr Program Round 3), could be offset starting on COD date from monthly payments to be made by CAMMESA to the generator under the PPA for the supplied energy (“Energy Payments”) in: (i) 12 monthly, equal and consecutive installments; or (ii) upon generator's decision, notified to CAMMESA, in up to 48 monthly, equal and consecutive installments, bearing interest at a 1.7% per annum.

Subsequently, Resolution 742 amended Resolution 285, in order to enable the projects that had experienced delays in COD, by adding that monthly payments payable in 48 installments would be limited up to 40% of the monthly gross revenue.

Likewise, if after the installments had been paid, there would be a balance, the same payment terms would be applied until the total payment of the penalties owed under the PPA would be paid. However, under Resolution 742, installments could not exceed the tenor of the PPA.

By means of Resolution 165, generator’s alternative to pay penalties in 12 or 48 installments as foreseen under Resolution 285 is still in force. Nevertheless, Resolution 165 added the following distinction:

1. The cap for monthly payments of the penalties was reduced to 20% of Energy Payments, and such cap applies until penalties are paid in full. This 20% cap will only be applicable as long as the installments for the payment of the penalties do not exceed the tenor of the PPA.
2. Provided that the remaining balance exceeds the tenor of the PPA, CAMMESA is authorized to restructure the applicable conditions or to increase the cap from 20% up to40% of the Energy Payments.

For additional information, please contact Nicolás Eliaschev, Javier Constanzó, Daiana Perrone and/or Rocío Valdez.

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Adhesion to the Power Availability and Efficiency Improvement Agreement for Combined Cycles

On February 7, 2023, Resolution No. 59/2023 of the National Secretariat of Energy (the "Resolution") was published in the Official Gazette with the purpose of enabling generators owning thermal power plants whose technology is classified as combined cycle (the "CC Generators") to adhere to a Power Availability and Efficiency Improvement Agreement (the "Agreement"). This Agreement will be subscribed with the Compañía Administradora del Mercado Mayorista Eléctrico S.A. ("CAMMESA"), on behalf of Distributors and Large Users of the Wholesale Electricity Market (the "WEM"), to promote necessary investments for major and minor maintenance of the existing generation equipment not committed in power purchase agreement ("PPA"). In this regard, the Agreement will ensure the supply of demand in the medium and long term, guaranteeing lower energy production costs.

The aim of the Resolution is to establish an additional remuneration scheme to the high efficiency thermal generators with energy or power not contracted under a PPA -i.e., those who receive their remuneration under Resolution No. 826/2022 of the Secretariat of Energy (the "Resolution 826")-, that due to their age may require the performance of minor and major maintenance tasks, and bear the costs of the investments associated with such tasks.

Relevant aspects of the Resolution and the Agreement

A. Purpose of the Resolution

As described before, the purpose of the Resolution is to promote the necessary investments for the execution of minor and major maintenance to maintain the reliability and availability of power of the combined cycle equipment not committed under PPA, in order to satisfy the requirements of the electricity demand in the WEM in the medium and long term. For such purpose, the CC Generators shall sign the Agreement attached as Annex to the Resolution.

B.Relevant aspects of the Agreement

The Agreement establishes:

1. The characteristics of the commitment of the qualified generator, stipulating an availability commitment of no less than 85% of the net power installed;
2. The units and power committed;
3. The price of the energy generated (fixed in U$S/MW-months);
4. The remuneration of the committed power, which will be governed in accordance with Resolution 826, with respect to the units included in the Agreement (fixed in U$S/MW-month), excluding non-fuel costs from the remuneration (cfr. point 5.1 of Annex II of Resolution 826);
5. CC Generating Agents agree to a 35% reduction on the price for the Guaranteed Capacity Offered DIGO under the terms of Resolution 826, applicable in the months of December, January, February, June, July and August, and 15% on the price for the Guaranteed Capacity Offered DIGO in the months of March, April, May, September, October and November;
6. The commercial documentation and the payment to be paid by CAMMESA, with the respective applicable exchange rate (Communication "A" 3500 BCRA);
7. The term, which in accordance with article 2 paragraph c. of the Resolution, may not exceed five (5) years; and
8. In relation to the machines included and the terms of the Agreement, the CC Generators shall irrevocably, fully and unconditionally waive any administrative claim or judicial proceeding that it has initiated and is in progress against the National Government, the Secretariat of Energy and/or CAMMESA related to the remuneration in force or that it may initiate in the future.

C. Procedure to proceed with the adhesion and signing of the Agreement

Those CC Generators interested in signing the Agreement shall submit to CAMMESA within 90 days from the publication date of the Resolution -term that, if no extension is granted, will be effective on May 7, 2023-, the following information:

1. The unit/s that will assume the commitment;
2. Net power of each one of the units and committed availability (which will be 85% of the net power); and
3. Term of the Agreement for each of the units (which will start from the subscription of the Agreement and may not exceed 5 years).

Finally, the Undersecretary of Electric Energy is authorized to issue the complementary or clarifying rules required for the implementation of the Resolution.

For additional information, please contact Nicolás Eliaschev, Javier Constanzó, María Eugenia Muñoz and/or Rocío Valdez.

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Secretary of Energy Launches Tender for Renewable Energy Projects

The Secretary of Energy has opened a new tender seeking companies to build new power generation facilities totaling 620 MW.

By Resolution No. 36/2023 (“Resolution 36”), issued by the Secretary of Energy on February 2, 2023, the main rules applicable to such tender (“RenMDI”) have been approved.

RenMDI follows Resolution No. 330/2022 of the Secretary of Energy (“Resolution 330”), that called for expressions of interest (“MDI”, for its Spanish acronym, Manifestaciones de Interés) in connection with infrastructure projects that would allow the incorporation of renewable generation and/or energy storage facilities interconnected to medium-voltage transmission and/or distribution facilities. For additional information regarding Resolution 330, please visit this article published on our website.

Under the MDI, according to Resolution 36, 491 proposals were received, totaling 14,400 MW.

Moreover, RenMDI intends to continue increasing the share of renewable energy in Argentina, as mandated by Law No. 26,190 (as amended by Law No. 27,191), and implemented through successive renewable tendering processes.

Below are the key takeaways of Resolution 36.

I. Executive summary

1. RenMDI calls for interested parties to submit offers in order to enter a PPA with the Wholesale Market Administrator Company (“CAMMESA”), who will act as offtaker on behalf of the Distributors and Large Users of the Wholesale Electricity Market (“WEM”).
2. Such PPA will have a tenor of 15 years as of commercial operation date (“COD”) and will be hard currency-denominated, payable in pesos at a customary exchange rate.
3. RenMDI includes two lines: (i) Line 1 of renewable generation to replace forced generation, for biomass, solar photovoltaic, solar photovoltaic with storage and wind with storage (“Line 1”); and (ii) Line 2 of renewable generation to diversify the power matrix, for biogas, landfill biogas, Small Hydroelectric Developments (PAH) and biomass technologies (“Line 2”).
4. The goal is to contract 500 MW for Line 1 and 120 MW for Line 2, thus totaling 620 MW.
5. No payment guarantees and/or other type of guarantees from FODER are foreseen (as defined in section V).

II. Deadlines

Bidders may submit any requests for additional information or clarifications until February 24, 2023. In turn, March 1 is the date for CAMMESA to respond to any such requests.

March 15, 2023 is the deadline for bid submissions.

Selection of winners is scheduled for May 24, 2023 and the PPAs are expected to be entered no later than September 20, 2023.

III. Bidding Terms and Conditions - Most relevant Terms

Resolution 36 approves the Request for Proposals as Annex thereto (the “RfQ”), that foresees the terms and conditions to be complied by any bidder under the RenMDI.

Under the RfQ, as said before, two separate lines (please see above) are foreseen, with different technologies foreseen in each case.

Biomass projects submitted and not awarded under Line 1 will be added to the biomass projects submitted exclusively for Line 2.

Finally, bidders must submit, together with their bid, a bidding guarantee in accordance with the terms of the BTC.

IV. Terms of the PPA

The successful bidders will enter into a power purchase agreement with CAMMESA (“PPA”).

The PPA will have a term of 15 years following COD.

The price of the PPA will be fixed in U.S. dollars per Megawatt/hour and seasonality will be remunerated to encourage generation in periods of high demand.

V. Additional Matters – Differences with Prior Tenders

Power generation facilities awarded under the RenMDI will not have dispatch priority with respect to other renewable generation, self-generation or cogeneration facilities operating in the WEM in case of curtailment, except for those cases specifically provided in the RfQ.

Expansions of existing facilities (a) (A) under RenovAr 1, 1.5, 2 and 3, (B) Resolution No. 202/2016 of the former Ministry of Energy and Mining, and Resolutions No. 220/2007, 712/2000 and 108/2011 of the former Secretary of Energy, or (b) that have obtained dispatch priority in the corporate renewable term market, will not be eligible under the RenMDI.

In addition, and unlike other previous tenders, no payment guarantees by the Fund for the Development of Renewable Energies (“FODER”, for its Spanish acronym, Fondo para el Desarrollo de Energías Renovables) is foreseen for RenMDI projects.

For additional information, please contact Nicolás Eliaschev, Javier Constanzó, Daiana Perrone, María Eugenia Muñoz, Pablo Arrascaeta, Florencia Martínez, Luciana Tapia Rattaro and/or Rocío Valdez.

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Creation of the National Housing Labeling Program (PRONEV)

Resolution No. 5/2023, enacted by the Secretariat of Energy on 9 January 2023, (the “Resolution”) established the creation of the National Housing Labeling Program (“PRONEV”, for its Spanish acronym, Programa Nacional de Etiquetado de Viviendas) and the National Informatic Application of Housing Labeling (the "Application") (Aplicativo Informático Nacional de Etiquetado de Vivienda).

Relevant aspects of the Resolution

PRONEV goal is to implement an energy efficiency labeling system to classify the housing’s degree of efficiency, upon their global primary energy requirement. The Application, on the other hand, will issue an Energy Efficiency Label (Etiqueta de Eficiencia Energética) showing the technical information of the houses, once such information is loaded.

The Resolution will allow the government to measure the energy requirement of homes and living places throughout the national territory and set a baseline for the development of new programs for improving energy performances and reducing energy consumption in homes.

In this sense, the National Directorate of Electricity Generation of the Undersecretariat of Electricity is empowered to issue all necessary acts for the execution of PRONEV.

Finally, the Resolution invites the Provinces and the City of Buenos Aires to enter into agreements with the federal government to promote the PRONEV and the Application and to provide basic standards to be considered in their local Building Codes.

For additional information, please contact Nicolás Eliaschev, Pablo Arrascaeta, María Eugenia Muñoz and/or Rocío Valdez.

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Creation of the Environmental Crime Analysis and Prevention Unit and the Environmental Crime Assessment Board

Resolution No. 19/2023, issued by the Ministry of National Security on 16 January 2023 (the "Resolution"), set up the Environmental Crime Analysis and Prevention Unit (Unidad de Análisis y Prevención de Delitos Ambientales) and the Environmental Crime Assessment Board (Mesa de Evaluación de Delitos Ambientales) aimed at generating mechanisms for the prevention and fight against environmental crimes.

Relevant aspects of the Resolution

A. The Environmental Crime Analysis and Prevention Unit (the “Unit”)

The Unit -created within the scope of the Undersecretariat for Criminal Investigation and Judicial Cooperation-, is entitled to:

1. assist in the detection and prevention of environmental crimes that may take place within the national territory, whether they affect the flora, fauna, soil, air, water and/or maritime spaces subject to national jurisdiction;
2. collect and systematize information on environmental crimes committed in the national territory, from both non individualized sources and the Federal Police and Security Forces;
3. develop indicators and prepare periodic reports as an input for the work of the Board (as such term is defined in section B below) and upon the request of other areas of the Ministry of Security;
4. prepare a location map to detect "hot zones" and propose measures aimed at preventing environmental crimes;
5. coordinate the exchange of information between the Federal Police and Security Forces for the generation of early warnings regarding the commission of environmental crimes;
6. provide technical-administrative support for the operation of the Board and the supporting documentation related to the tasks accomplished in the field related hereto, and manage the appointment of representatives of the Federal Police and Security Forces that participate in the Board; and
7. Analyze legal cases regarding environmental crimes to improve the procedures followed by the Federal Police and Security Forces.

The Resolution authorizes the Secretary of Security and Criminal Policy to appoint the head of the Unit, who will oversee the Board. Likewise, it provides that the Unit will convene the Board to hold periodic meetings to fulfil its goals.

B. Creation of the Environmental Crime Assessment Board (the “Board”)

The Board -created within the scope of the Undersecretariat for Criminal Investigation and Judicial Cooperation- is meant to detecting and preventing environmental crimes -as well as other close related crimes that concur with the main crime foreseen and punishable by the Penal Code of the Argentine Nation (Código Penal de la Nación Argentina)-, for a comprehensive approach to the investigation.

The Board will be composed of representatives of the Unit, the National Criminal Investigation Directorate, the Federal Crime Investigation Directorate, the National Criminal Intelligence Directorate, the environmental divisions of the Argentine Federal Police, Argentine National Gendarmerie, Naval Prefecture Argentina and Airport Security Police, and all other personnel from federal, national or provincial entities and/or civil society organizations competent in environmental matters.

For additional information, please contact Nicolás Eliaschev, Pablo Arrascaeta, María Eugenia Muñoz and/or Rocío Valdez.

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