[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1760 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
1st Session
S. 1760
To modernize the Public Utility Regulatory Policies Act of 1978, and
for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 10, 2019
Mr. Barrasso (for himself, Mr. Risch, Mr. Cramer, and Mr. Daines)
introduced the following bill; which was read twice and referred to the
Committee on Energy and Natural Resources
_______________________________________________________________________
A BILL
To modernize the Public Utility Regulatory Policies Act of 1978, and
for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Updating Purchase Obligations to
Deploy Affordable Resources to Energy Markets Under PURPA Act'' or the
``UPDATE PURPA Act''.
SEC. 2. AMENDMENTS TO PURPA.
(a) Cogeneration and Small Power Production Rules.--Section 210 of
the Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 824a-3)
is amended by striking subsection (a) and inserting the following:
``(a) Cogeneration and Small Power Production Rules.--
``(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Commission shall prescribe, and from
time to time thereafter revise, rules as the Commission
determines necessary to encourage cogeneration and small power
production, and to encourage geothermal small power production
facilities of not more than 80 megawatts capacity.
``(2) Requirements.--The rules under paragraph (1)--
``(A) shall require electric utilities to offer--
``(i) to sell electric energy to qualifying
cogeneration facilities and qualifying small
power production facilities; and
``(ii) to purchase electric energy from
facilities described in clause (i);
``(B) shall be prescribed after consultation with
representatives of Federal and State regulatory
agencies having ratemaking authority for electric
utilities, and after public notice and a reasonable
opportunity for interested persons (including Federal
and State agencies) to submit oral as well as written
data, views, and arguments;
``(C) shall include provisions requiring--
``(i) minimum reliability of qualifying
cogeneration facilities and qualifying small
power production facilities (including
reliability of those facilities during
emergencies);
``(ii) qualifying facilities to be
responsible for any costs needed to hold
electric utility customers financially
indifferent to the cost of enabling the firm
delivery capability of the qualifying facility,
including the cost of any facilities or network
upgrades associated with the interconnection
service of the qualifying facility and
transmission service arrangements of the
qualifying facility to deliver the power of the
qualifying facility to electric utility
customers;
``(iii) curtailment of qualifying
facilities as the Commission determines
necessary to ensure resource adequacy; and
``(iv) reliability of electric energy
service to be available to facilities described
in clause (i) from electric utilities during
emergencies; and
``(D) may not authorize a qualifying cogeneration
facility or qualifying small power production facility
to make any sale for purposes other than resale.''.
(b) Rates for Purchases by Electric Utilities.--Section 210(b) of
the Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 824a-
3(b)) is amended--
(1) in paragraph (1), by striking ``, and'' and inserting
``; and'';
(2) by redesignating paragraphs (1) and (2) as
subparagraphs (A) and (B), respectively, and indenting the
subparagraphs appropriately;
(3) in the matter preceding subparagraph (A) (as so
redesignated), by striking ``The rules prescribed under
subsection (a) shall insure'' and inserting the following:
``(1) In general.--Subject to paragraph (2), the rules
prescribed under subsection (a) shall ensure''; and
(4) in the undesignated matter following subparagraph (B)
of paragraph (1) (as so redesignated), by striking ``No such
rule'' and inserting the following:
``(2) Limitation.--No rule''.
(c) Termination of Mandatory Purchase Requirements.--Section
210(m)(1) of the Public Utility Regulatory Policies Act of 1978 (16
U.S.C. 824a-3(m)(1)) is amended--
(1) in subparagraph (B)(ii), by striking ``or'' at the end;
and
(2) by striking subparagraph (C) and inserting the
following:
``(C) any independently administered, voluntary,
auction-based energy market (including an energy
imbalance market), regardless of whether--
``(i) an applicable electric utility
participating in such a market is a member of a
regional transmission organization or an
independent system operator; or
``(ii) such a market has a governance
structure and operation that is wholly separate
and autonomous from a regional transmission
organization or an independent system operator;
or
``(D) wholesale markets that are of comparable
competitive quality to markets described in
subparagraph (A), (B), or (C).''.
(d) Nondiscriminatory Access.--Section 210(m) of the Public Utility
Regulatory Policies Act of 1978 (16 U.S.C. 824a-3(m)) is amended by
adding at the end the following:
``(8) Nondiscriminatory access.--
``(A) In general.--For purposes of this subsection,
a qualifying small power production facility with an
installed generation capacity of 2.5 megawatts or
greater is presumed to have nondiscriminatory access to
the transmission and interconnection services and
wholesale markets described in subparagraphs (A), (B),
(C), and (D) of paragraph (1).
``(B) Exception.--Subparagraph (A) shall not apply
with respect to a qualifying small power production
facility that, as of the date of enactment of this
paragraph--
``(i) produces both electric energy and
useful thermal energy; and
``(ii) on a million-British-thermal-unit
basis, uses not less than 80 percent of the
total annual aggregate net output of electric
energy and useful thermal energy of the
qualifying small power production facility for
onsite industrial, commercial, or institutional
purposes, rather than for sale.''.
(e) Recognition of State or Local Determinations.--Section 210(m)
of the Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 824a-
3(m)) (as amended by subsection (d)) is amended by adding at the end
the following:
``(9) State or local determination.--Effective beginning on
the date of enactment of this paragraph, no electric utility
shall be required to enter into a new contract or obligation to
purchase electric energy under this section from a qualifying
small power production facility that is not a qualifying small
power production facility described in paragraph (8)(B), if the
appropriate State regulatory agency or non-regulated electric
utility determines that--
``(A) the electric utility has no need to purchase
electric energy from the qualifying small power
production facility in the quantities offered within
the timeframe proposed by the qualifying small power
production facility to meet any obligation to serve a
customer, consistent with the needs for electric energy
and the timeframe for those needs, as specified in the
integrated resource plan of, or other applicable
demonstration of need by, the electric utility; or
``(B) the electric utility employs integrated
resource planning or another applicable demonstration
of need and conducts a competitive resource procurement
process for long-term energy resources that provides an
opportunity for qualifying small power production
facilities to supply electric energy to the electric
utility in accordance with the integrated resource plan
of, or other applicable demonstration of need by, the
electric utility.''.
(f) Technical Corrections.--Section 210 of the Public Utility
Regulatory Policies Act of 1978 (16 U.S.C. 824a-3) is amended--
(1) in subsection (h)(2)(A)(i), by striking ``subsection
(f) or'' and inserting ``subsection (f); or''; and
(2) in subsection (k), by adding a period at the end.
SEC. 3. FEDERAL ENERGY REGULATORY COMMISSION REGULATIONS.
(a) Required Amendments Relating to Location of Small Power
Production Facilities.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Federal Energy Regulatory Commission
(referred to in this section as the ``Commission'') shall
publish in the Federal Register a final rule to amend, in
accordance with this section, the regulations of the Commission
promulgated to carry out section 3(17)(A)(ii) of the Federal
Power Act (16 U.S.C. 796(17)(A)(ii)) relating to the method
used by the Commission to determine whether a facility is
considered to be located at the same site as a facility for
which qualification is sought for the purpose of calculating
power production capacity.
(2) Rebuttable presumption.--
(A) In general.--The amendments to regulations
required by paragraph (1) shall establish a rebuttable
presumption that--
(i) facilities separated by a distance of 1
mile or more shall not be considered to be
located at the same site; and
(ii) facilities separated by a distance of
less than 1 mile shall be considered to be
located at the same site.
(B) Rebutting presumption.--The Commission shall
allow any person (as defined in section 385.102 of
title 18, Code of Federal Regulations (as in effect on
the date of enactment of this Act)) to rebut the
presumption described in subparagraph (A).
(3) Factors for consideration.--
(A) In general.--The amendments to regulations
required by paragraph (1) shall require that, in
determining whether a facility is considered to be
located at the same site as a facility for which
qualification is sought, the Commission shall take into
consideration, to the maximum extent practicable, the
following factors:
(i) The extent to which the owners or
operators of the facilities are--
(I) affiliates or associate
companies (as those terms are defined
in section 1262 of the Public Utility
Holding Company Act of 2005 (42 U.S.C.
16451)); or
(II) under the control of the same
person, subject to subparagraph (B).
(ii) The extent to which the facilities
have been treated as a single project for
purposes of other regulatory filings or
applications.
(iii) Whether the facilities use the same
energy resource.
(iv) Whether the facilities--
(I) have a common generator lead
line; or
(II) connect at the same or nearby
interconnection points or substations.
(v) The extent to which the owners or
operators of the facilities have a common land
lease or land rights with respect to land on
which the facilities are located.
(vi) The extent to which there is common
financing with respect to the facilities.
(vii) The extent to which the facilities
are part of a common development plan or
permitting effort, regardless of whether the
interconnection of the facilities occurs at
separate points.
(B) Control.--For purposes of subparagraph
(A)(i)(II), the Commission shall consider the owner or
operator of a facility to be under the control of a
person if--
(i) the person directly or indirectly owns,
controls, or holds, with power to vote, 10
percent or more of the outstanding voting
securities of the owner or operator; or
(ii) the Commission determines, after
notice and opportunity for hearing, that the
person exercises, directly or indirectly (alone
or pursuant to an arrangement or understanding
with 1 or more persons), a controlling
influence over the management of the owner or
operator.
(4) Exception.--Paragraphs (2) and (3) shall not apply with
respect to a facility that, as of the date of enactment of this
Act--
(A) produces both electric energy and useful
thermal energy; and
(B) on a million-British-thermal-unit basis, uses
not less than 80 percent of the total annual aggregate
net output of electric energy and useful thermal energy
of the facility for onsite industrial, commercial, or
institutional purposes, rather than for sale.
(b) Prohibition on Requiring Minimum Term for Certain Contracts.--
The Commission shall not issue any regulation, guidance, or order that
requires a minimum contract term for any power purchase contract
between--
(1) an electric utility (as defined in section 3 of the
Public Utility Regulatory Policies Act of 1978 (16 U.S.C.
2602)); and
(2) a qualifying small power production facility (as
defined in section 3 of the Federal Power Act (16 U.S.C. 796)).
(c) Required Amendment Relating to Legally Enforceable
Obligations.--Not later than 180 days after the date of enactment of
this Act, the Commission shall publish in the Federal Register a final
rule to amend the regulation contained in section 292.304(d)(2) of
title 18, Code of Federal Regulations (as in effect on the date of
enactment of this Act), to provide that a legally enforceable
obligation for the delivery of electric energy or capacity from a
qualifying small power production facility to an electric utility shall
not require any electric utility to purchase electric energy or
capacity from a qualifying small power production facility at a rate
that exceeds the incremental cost to the electric utility of
alternative electric energy or capacity, as calculated at the time of
delivery of the electric energy or capacity.
<all>