Sec. 1253. COGENERATION AND SMALL POWER PRODUCTION PURCHASE AND SALE REQUIREMENTS
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## SEC. 1253 COGENERATION AND SMALL POWER PRODUCTION PURCHASE AND SALE REQUIREMENTS ###
(a)Termination of Mandatory Purchase and Sale Requirements Section 210 of the Public Utility Regulatory Policies Act of 1978 (16 U.S.C. 824a–3) is amended by adding at the end the following: > > ### “(m) Termination of Mandatory Purchase and Sale Requirements > > > #### “(1) Obligation to purchase > > After the date of enactment of this subsection, no electric utility shall be required to enter into a new contract or obligation to purchase electric energy from a qualifying cogeneration facility or a qualifying small power production facility under this section if the Commission finds that the qualifying cogeneration facility or qualifying small power production facility has nondiscriminatory access to— > > > ##### “(A) > > > ######
(i)> > independently administered, auction-based day ahead and real time wholesale markets for the sale of electric energy; and
(ii)wholesale markets for long-term sales of capacity and electric energy; or > > > ##### “(B) > > > ######
(i)> > transmission and interconnection services that are provided by a Commission-approved regional transmission entity and administered pursuant to an open access transmission tariff that affords nondiscriminatory treatment to all customers; and
(ii)competitive wholesale markets that provide a meaningful opportunity to sell capacity, including long-term and short-term sales, and electric energy, including long-term, short-term and real-time sales, to buyers other than the utility to which the qualifying facility is interconnected. In determining whether a meaningful opportunity to sell exists, the Commission shall consider, among other factors, evidence of transactions within the relevant market; or > > > ##### “(C) > > wholesale markets for the sale of capacity and electric energy that are, at a minimum, of comparable competitive quality as markets described in subparagraphs
(A)and (B). > > > #### “(2) Revised purchase and sale obligation for new facilities > > > #####
(A)> > After the date of enactment of this subsection, no electric utility shall be required pursuant to this section to enter into a new contract or obligation to purchase from or sell electric energy to a facility that is not an existing qualifying cogeneration facility unless the facility meets the criteria for qualifying cogeneration facilities established by the Commission pursuant to the rulemaking required by subsection (n). > > > ##### “(B) > > For the purposes of this paragraph, the term ‘**existing qualifying cogeneration facility**’ means a facility that— > > > ###### “(i) > > was a qualifying cogeneration facility on the date of enactment of subsection (m); or > > > ###### “(ii) > > had filed with the Commission a notice of self-certification, self recertification or an application for Commission certification under 18 CFR 292.207 prior to the date on which the Commission issues the final rule required by subsection (n). > > > #### “(3) Commission review > > Any electric utility may file an application with the Commission for relief from the mandatory purchase obligation pursuant to this subsection on a service territory-wide basis. Such application shall set forth the factual basis upon which relief is requested and describe why the conditions set forth in subparagraph (A), (B), or
(C)of paragraph
(1)of this subsection have been met. After notice, including sufficient notice to potentially affected qualifying cogeneration facilities and qualifying small power production facilities, and an opportunity for comment, the Commission shall make a final determination within 90 days of such application regarding whether the conditions set forth in subparagraph (A), (B), or
(C)of paragraph
(1)have been met. > > > #### “(4) Reinstatement of obligation to purchase > > At any time after the Commission makes a finding under paragraph
(3)relieving an electric utility of its obligation to purchase electric energy, a qualifying cogeneration facility, a qualifying small power production facility, a State agency, or any other affected person may apply to the Commission for an order reinstating the electric utility's obligation to purchase electric energy under this section. Such application shall set forth the factual basis upon which the application is based and describe why the conditions set forth in subparagraph (A), (B), or
(C)of paragraph
(1)of this subsection are no longer met. After notice, including sufficient notice to potentially affected utilities, and opportunity for comment, the Commission shall issue an order within 90 days of such application reinstating the electric utility's obligation to purchase electric energy under this section if the Commission finds that the conditions set forth in subparagraphs (A),
(B)or
(C)of paragraph
(1)which relieved the obligation to purchase, are no longer met. > > > #### “(5) Obligation to sell > > After the date of enactment of this subsection, no electric utility shall be required to enter into a new contract or obligation to sell electric energy to a qualifying cogeneration facility or a qualifying small power production facility under this section if the Commission finds that— > > > ##### “(A) > > competing retail electric suppliers are willing and able to sell and deliver electric energy to the qualifying cogeneration facility or qualifying small power production facility; and > > > ##### “(B) > > the electric utility is not required by State law to sell electric energy in its service territory. > > > #### “(6) No effect on existing rights and remedies > > Nothing in this subsection affects the rights or remedies of any party under any contract or obligation, in effect or pending approval before the appropriate State regulatory authority or non-regulated electric utility on the date of enactment of this subsection, to purchase electric energy or capacity from or to sell electric energy or capacity to a qualifying cogeneration facility or qualifying small power production facility under this Act (including the right to recover costs of purchasing electric energy or capacity). > > > #### “(7) Recovery of costs > > > #####
(A)> > The Commission shall issue and enforce such regulations as are necessary to ensure that an electric utility that purchases electric energy or capacity from a qualifying cogeneration facility or qualifying small power production facility in accordance with any legally enforceable obligation entered into or imposed under this section recovers all prudently incurred costs associated with the purchase. > > > ##### “(B) > > A regulation under subparagraph
(A)shall be enforceable in accordance with the provisions of law applicable to enforcement of regulations under the Federal Power Act (16 U.S.C. 791a et seq.). > > > ### “(n) Rulemaking for New Qualifying Facilities > > > ####
(1)> > > #####
(A)> > Not later than 180 days after the date of enactment of this section, the Commission shall issue a rule revising the criteria in 18 CFR 292.205 for new qualifying cogeneration facilities seeking to sell electric energy pursuant to section 210 of this Act to ensure— > > > ###### “(i) > > that the thermal energy output of a new qualifying cogeneration facility is used in a productive and beneficial manner; > > > ###### “(ii) > > the electrical, thermal, and chemical output of the cogeneration facility is used fundamentally for industrial, commercial, or institutional purposes and is not intended fundamentally for sale to an electric utility, taking into account technological, efficiency, economic, and variable thermal energy requirements, as well as State laws applicable to sales of electric energy from a qualifying facility to its host facility; and > > > ###### “(iii) > > continuing progress in the development of efficient electric energy generating technology. > > > ##### “(B) > > The rule issued pursuant to paragraph (1)(A) of this subsection shall be applicable only to facilities that seek to sell electric energy pursuant to section 210 of this Act. For all other purposes, except as specifically provided in subsection (m)(2)(A), qualifying facility status shall be determined in accordance with the rules and regulations of this Act. > > > #### “(2) > > Notwithstanding rule revisions under paragraph (1), the Commission's criteria for qualifying cogeneration facilities in effect prior to the date on which the Commission issues the final rule required by paragraph
(1)shall continue to apply to any cogeneration facility that— > > > ##### “(A) > > was a qualifying cogeneration facility on the date of enactment of subsection (m), or > > > ##### “(B) > > had filed with the Commission a notice of self-certification, self-recertification or an application for Commission certification under 18 CFR 292.207 prior to the date on which the Commission issues the final rule required by paragraph (1).” > . ###
(b)Elimination of Ownership Limitations ####
(1)Qualifying small power production facility Section 3(17)(C) of the Federal Power Act (16 U.S.C. 796(17)(C)) is amended to read as follows: > > ##### “(C) > > ‘**qualifying small power production facility**’ means a small power production facility that the Commission determines, by rule, meets such requirements (including requirements respecting fuel use, fuel efficiency, and reliability) as the Commission may, by rule, prescribe;” > . ####
(2)Qualifying cogeneration facility Section 3(18)(B) of the Federal Power Act (16 U.S.C. 796(18)(B)) is amended to read as follows: > > ##### “(B) > > ‘**qualifying cogeneration facility**’ means a cogeneration facility that the Commission determines, by rule, meets such requirements (including requirements respecting minimum size, fuel use, and fuel efficiency) as the Commission may, by rule, prescribe;” > .
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- 16 USC 824a–3
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Sec. 1253
COGENERATION AND SMALL POWER PRODUCTION PURCHASE AND SALE REQUIREMENTS
Cite16 USC 824a–3
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