Sec. 2. Location of small power production facilities
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The Federal Energy Regulatory Commission shall, not later than 180 days after the date of enactment of this Act, publish in the Federal Register a final rule amending its regulations implementing section 3(17)(A)(ii) of the Federal Power Act ( 16 U.S.C. 796(17)(A)(ii) ), regarding the method for determining whether facilities are considered to be located at the same site as the facility for which qualification is sought for the purpose of calculating power production capacity, to provide a rebuttable presumption that— facilities located one mile or more away from each other are not located at the same site; and facilities located within one mile of each other are located at the same site.
Except as provided in paragraph (3), 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 subsection (a). In determining whether a facility is considered to be located at the same site as the facility for which qualification is sought, the Commission shall take into account, to the extent practicable, the following factors: The extent to which the owners or operators of the facilities are affiliated or associated with each other, or are under the control of the same company or person.
The extent to which the owners or operators of the facilities have treated the facilities as a single project for purposes of other regulatory filings or applications. Whether the facilities use the same energy resource. Whether the facilities have a common generator lead line or connect at the same or nearby interconnection points or substations. 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.
The extent to which the owners or operators of the facilities have common financing with respect to the facilities. The extent to which the facilities are part of a common development plan or permitting effort, even if the interconnection of the facilities occurs at separate points. Paragraphs
(1)and
(2)shall not apply with respect to a facility that, as of the date of enactment of this Act— produces both electric energy and useful thermal energy; and on a million British thermal unit basis, uses at least 80 percent of its total annual aggregate net output of electric energy and useful thermal energy for onsite industrial, commercial, or institutional purposes, rather than for sale. The Commission shall consider the owners or operators of facilities to be affiliated or associated for purposes of this section if they are affiliates or associate companies within the meaning of those terms as defined in section 1262 of the Public Utility Holding Company Act of 2005 ( 42 U.S.C. 16451 ). The Commission shall consider the owner or operator of a facility to be under the control of a company or person for purposes of this section if— the company or 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 the Commission determines, after notice and opportunity for hearing, that the company or person exercises, directly or indirectly (either alone or pursuant to an arrangement or understanding with one or more companies or persons), a controlling influence over the management of the owner or operator.
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