I 116TH CONGRESS 1ST SESSION H. R. 1502 To modernize the Public Utility Regulatory Policies Act of 1978, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MARCH 5, 2019 Mr. WALBERG (for himself, Mr. GIANFORTE, and Mr. MITCHELL) introduced the following bill; which was referred to the Committee on Energy and Commerce 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 Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘PURPA Modernization 4 Act of 2019’’. 5 SEC. 2. LOCATION OF SMALL POWER PRODUCTION FACILI- 6 TIES. 7 (a) REBUTTABLE PRESUMPTION.—The Federal En- 8 ergy Regulatory Commission shall, not later than 180 9 days after the date of enactment of this Act, publish in 10 VerDate Sep 11 2014 00:07 Mar 16, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1502.IH H1502 kjohnson on DSK79L0C42 with BILLS 2 •HR 1502 IH the Federal Register a final rule amending its regulations 1 implementing section 3(17)(A)(ii) of the Federal Power 2 Act (16 U.S.C. 796(17)(A)(ii)), regarding the method for 3 determining whether facilities are considered to be located 4 at the same site as the facility for which qualification is 5 sought for the purpose of calculating power production ca- 6 pacity, to provide a rebuttable presumption that— 7 (1) facilities located one mile or more away 8 from each other are not located at the same site; 9 and 10 (2) facilities located within one mile of each 11 other are located at the same site. 12 (b) OVERCOMING THE PRESUMPTION.— 13 (1) IN GENERAL.—Except as provided in para- 14 graph (3), the Commission shall allow any person 15 (as defined in section 385.102 of title 18, Code of 16 Federal Regulations, as in effect on the date of en- 17 actment of this Act) to rebut the presumption de- 18 scribed in subsection (a). 19 (2) FACTORS TO BE CONSIDERED.—In deter- 20 mining whether a facility is considered to be located 21 at the same site as the facility for which qualifica- 22 tion is sought, the Commission shall take into ac- 23 count, to the extent practicable, the following fac- 24 tors: 25 VerDate Sep 11 2014 00:07 Mar 16, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1502.IH H1502 kjohnson on DSK79L0C42 with BILLS 3 •HR 1502 IH (A) The extent to which the owners or op- 1 erators of the facilities are affiliated or associ- 2 ated with each other, or are under the control 3 of the same company or person. 4 (B) The extent to which the owners or op- 5 erators of the facilities have treated the facili- 6 ties as a single project for purposes of other 7 regulatory filings or applications. 8 (C) Whether the facilities use the same en- 9 ergy resource. 10 (D) Whether the facilities have a common 11 generator lead line or connect at the same or 12 nearby interconnection points or substations. 13 (E) The extent to which the owners or op- 14 erators of the facilities have a common land 15 lease or land rights with respect to land on 16 which the facilities are located. 17 (F) The extent to which the owners or op- 18 erators of the facilities have common financing 19 with respect to the facilities. 20 (G) The extent to which the facilities are 21 part of a common development plan or permit- 22 ting effort, even if the interconnection of the fa- 23 cilities occurs at separate points. 24 VerDate Sep 11 2014 00:07 Mar 16, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1502.IH H1502 kjohnson on DSK79L0C42 with BILLS 4 •HR 1502 IH (3) EXCEPTION.—Paragraphs (1) and (2) shall 1 not apply with respect to a facility that, as of the 2 date of enactment of this Act— 3 (A) produces both electric energy and use- 4 ful thermal energy; and 5 (B) on a million British thermal unit basis, 6 uses at least 80 percent of its total annual ag- 7 gregate net output of electric energy and useful 8 thermal energy for onsite industrial, commer- 9 cial, or institutional purposes, rather than for 10 sale. 11 (c) AFFILIATION AND ASSOCIATION.—The Commis- 12 sion shall consider the owners or operators of facilities to 13 be affiliated or associated for purposes of this section if 14 they are affiliates or associate companies within the mean- 15 ing of those terms as defined in section 1262 of the Public 16 Utility Holding Company Act of 2005 (42 U.S.C. 16451). 17 (d) CONTROL.—The Commission shall consider the 18 owner or operator of a facility to be under the control of 19 a company or person for purposes of this section if— 20 (1) the company or person directly or indirectly 21 owns, controls, or holds, with power to vote, 10 per- 22 cent or more of the outstanding voting securities of 23 the owner or operator; or 24 VerDate Sep 11 2014 00:07 Mar 16, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1502.IH H1502 kjohnson on DSK79L0C42 with BILLS 5 •HR 1502 IH (2) the Commission determines, after notice 1 and opportunity for hearing, that the company or 2 person exercises, directly or indirectly (either alone 3 or pursuant to an arrangement or understanding 4 with one or more companies or persons), a control- 5 ling influence over the management of the owner or 6 operator. 7 SEC. 3. NONDISCRIMINATORY ACCESS. 8 Section 210(m) of the Public Utility Regulatory Poli- 9 cies Act of 1978 (16 U.S.C. 824a–3(m)) is amended by 10 adding at the end the following: 11 ‘‘(8) NONDISCRIMINATORY ACCESS.— 12 ‘‘(A) IN GENERAL.—For purposes of this 13 subsection, except as provided in subparagraph 14 (B), a qualifying small power production facility 15 with an installed generation capacity of 2.5 16 megawatts or greater is presumed to have non- 17 discriminatory access to transmission and inter- 18 connection services and wholesale markets de- 19 scribed in subparagraphs (A), (B), or (C) of 20 paragraph (1). 21 ‘‘(B) EXCEPTION.—Subparagraph (A) 22 does not apply to a qualifying small power pro- 23 duction facility that, as of the date of enact- 24 ment of this paragraph— 25 VerDate Sep 11 2014 00:07 Mar 16, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1502.IH H1502 kjohnson on DSK79L0C42 with BILLS 6 •HR 1502 IH ‘‘(i) produces both electric energy and 1 useful thermal energy; and 2 ‘‘(ii) on a million British thermal unit 3 basis, uses at least 80 percent of its total 4 annual aggregate net output of electric en- 5 ergy and useful thermal energy for onsite 6 industrial, commercial, or institutional pur- 7 poses, rather than for sale.’’. 8 SEC. 4. RECOGNITION OF STATE OR LOCAL DETERMINA- 9 TIONS. 10 Section 210(m) of the Public Utility Regulatory Poli- 11 cies Act of 1978 (16 U.S.C. 824a–3(m)), as amended by 12 section 3, is further amended by adding at the end the 13 following: 14 ‘‘(9) STATE OR LOCAL DETERMINATION.—After 15 the date of enactment of this paragraph, no electric 16 utility shall be required to enter into a new contract 17 or obligation to purchase electric energy under this 18 section from a qualifying small power production fa- 19 cility that is not a qualifying small power production 20 facility described in paragraph (8)(B) if the appro- 21 priate State regulatory agency or non-regulated elec- 22 tric utility finds, and submits to the Commission a 23 written determination, that— 24 VerDate Sep 11 2014 00:07 Mar 16, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1502.IH H1502 kjohnson on DSK79L0C42 with BILLS 7 •HR 1502 IH ‘‘(A) the electric utility has no need to pur- 1 chase electric energy from such qualifying small 2 power production facility in the amounts to be 3 offered within the timeframe proposed by the 4 qualifying small power production facility, con- 5 sistent with the needs for electric energy and 6 the timeframe for those needs as specified in an 7 electric utility’s integrated resource plan, in 8 order to meet its obligation to serve customers; 9 or 10 ‘‘(B) the electric utility employs integrated 11 resource planning and conducts a competitive 12 resource procurement process for long-term en- 13 ergy resources that provides an opportunity for 14 qualifying small power production facilities to 15 supply electric energy to the electric utility in 16 accordance with the integrated resource plan of 17 the electric utility.’’. 18 Æ VerDate Sep 11 2014 00:07 Mar 16, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6301 E:\BILLS\H1502.IH H1502 kjohnson on DSK79L0C42 with BILLS