Sec. 3. Federal Energy Regulatory Commission regulations
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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. The amendments to regulations required by paragraph
(1)shall establish a rebuttable presumption that— facilities separated by a distance of 1 mile or more shall not be considered to be located at the same site; and facilities separated by a distance of less than 1 mile shall be considered to be located at the same site. 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). 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: The extent to which the owners or operators of the facilities are— 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 under the control of the same person, subject to subparagraph (B). The extent to which the facilities have been treated 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 there is common financing with respect to the facilities. 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. 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— 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 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. Paragraphs
(2)and
(3)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 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. The Commission shall not issue any regulation, guidance, or order that requires a minimum contract term for any power purchase contract between— an electric utility (as defined in section 3 of the Public Utility Regulatory Policies Act of 1978 ( 16 U.S.C. 2602 )); and a qualifying small power production facility (as defined in section 3 of the Federal Power Act ( 16 U.S.C. 796 )). 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.
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