DELAWARE STATE SENATE

153rd GENERAL ASSEMBLY

SENATE BILL NO. 205

AN ACT TO AMEND TITLE 26 OF THE DELAWARE CODE RELATING TO THE PUBLIC SERVICE COMMISSION AND CERTIFICATES TO OPERATE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Subchapter II, Chapter 1, Title 26 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 203G. Certificate to operate for uses requiring 30MW or greater of electricity.

(a) No person or entity shall begin the business of using 30 megawatts (MW) of electricity or greater without having first obtained from the Commission a certificate to operate (“COP”). This section shall not apply to any public utility engaged in such business within its service territory.

(b) Any change to an existing facility that increases the usage to 30MW or greater, triggers the provisions of this chapter requiring the issuance of a COP.

(c) The Commission shall act on an application for a COP within 90 days of the submission of a completed application. For good cause shown, and if it finds that the public interest would be served, the Commission may extend the date of its action on an application for an additional period not to exceed 90 days.

(1) The application for a COP shall be in writing, in such form as determined by the Commission, and contain such data, studies, documentation, or other information as the Commission shall prescribe. Such information shall include, without limitation, the impact of the plan on transmission capacity; upgrades, if any, to transmission or distribution infrastructure associated with the plan; the amount of electricity utilized by generation type and whether it is sourced from new or existing generation; whether electricity use will be curtailed during high demand periods, the quantity and type of on-site back-up power, if any; the anticipated lifespan of the facility; whether the business will trigger supplemental transmission projects, a study of the impacts of the plan on electricity costs in Delaware; and a study of the impacts of the plan on grid reliability in Delaware.

(2) The Commission shall have the authority to:

a. Require financial commitments from the applicant to protect against stranded transmission investments.

b. Require the applicant to contribute towards grid modernization for necessary transmission investment.

c. Require the applicant to secure additional generation commitments by a set timeline in order for the new load to be connected and supplied.

(d) In determining whether to grant the COP, the Commission shall consider:

(1) Whether PJM Interconnection, L.L.C. (or its successor) (“PJM”) has completed all relevant studies and has assured adequate energy and capacity supply to serve the load, and has issued any necessary approval to the applicant for the construction or operation of the facility. The Commission shall only grant a COP for facilities that will interconnect into the PJM grid.

(2) The need for and impact of the plan proposed by the applicant on the safe, adequate, and reliable operation or delivery of electric supply services.

(3) Where the plan intends to operate within an existing utility right of way, the extent to which the plan impacts the safe and effective operation of other utility facilities already in such right of way.

(4) The impact of granting the COP on the State’s economy, the impacts to the State’s ratepayers, and whether the application is consistent with the achievement of the State’s greenhouse gas emissions reductions targets, as specified in § 10003 of Title 7, and whether the application is consistent with the State's renewable portfolio standards, as specified in § 354 of Title 26.

(5) The extent to which the plan precludes or limits the ability of future renewable energy projects to use the same or nearby access locations or rights of way.

(6) The extent to which the applicant is proposing to develop the plan in a manner that allows for or otherwise facilitates the future construction of additional renewable energy interconnection facilities, including those proposed by other developers, so as to minimize the environmental impacts of multiple energy projects on or through Delaware’s environment.

(7) The impact of granting the COP on the health, safety, and welfare of the general public.

(8) The demonstrated experience, operating expertise, and long-term viability of the applicant or its affiliates, partners, or parent company.

(9) The engineering and technical design of any transmission facilities proposed by the applicant.

(10) The impact of granting the COP on the local transmission facilities serving the plan.

(e) The Commission may, for good cause, undertake to suspend or revoke a COP. Good cause shall consist of:

(1) A finding by the Commission of material noncompliance by the holder of the COP with any conditions imposed in the COP by the Commission, or with any order or rule of the Commission related to the same; or

(2) A finding by the Commission that the holder of the COP has failed in a material manner to operate in a safe, adequate, and reliable manner.

(f) Any proceedings under this section involving a COP shall be conducted in accordance with the procedures set forth in subchapter III of Chapter 101 of Title 29.

(g) The Commission shall allow the intervention of the State Energy Office to address the impact of the proposed facilities on:

(1) The State Energy Plan.

(2) The State Climate Action Plan.

(3) The achievement of the State’s greenhouse gas emission reduction targets, as specified in § 10003 of Title 7.

(4) The achievement of the State’s renewable portfolio standards as set forth in § 354 of Title 26.

(h) The Commission shall allow the intervention of such local government with land use jurisdiction over the development plan to address any public safety, environmental, or public interest considerations that such local government raises.

(i) A COP may not be transferred from the applicant to another person or entity without the written approval of the Commission. The Commission must consider the demonstrated experience, operating expertise, and long-term viability of the transferee or its affiliates, partners, or parent company.

(j) The Commission shall have the authority to promulgate regulations to fully define the requirements necessary for the implementation of this section.

(k) This section shall apply to all plans for development having not obtained final plan approval from the local jurisdiction by the date of its enactment.

(l) The Commission shall submit a report listing the COP applications received and their disposition for the prior year to the Governor, the General Assembly, and the Director and Librarian of the Division of Legislative Services not later than December 31st of each year.

SYNOPSIS

This Act requires any person or entity seeking to begin the business of using 30 megawatts (MW) of electricity or greater to first obtain a Certificate to Operate (“COP”) from the Public Service Commission. The Act also provides that any person or entity seeking to change an existing facility, that will increase the usage to 30MW or greater, triggers the provisions of this Act and must obtain a Certificate to Operate from the Public Service Commission. Section 203G(a) provides that Section 203G does not apply to public utilities engaged in business in their service territories.

Under Section 203G(c), the Commission must act upon a COP application within 90 days of submission of a completed application. For good cause shown, and if the Commission finds that the public interest would be served, the Commission may extend the date of its action on a COP application for an additional period not to exceed 90 days.

Section 203G(d) lists the factors that the Commission must consider in determining whether to grant a COP, which include the impact of granting the COP on the State’s economy, the impacts to the State’s ratepayers, and whether the application is consistent with the achievement of the State’s greenhouse gas emissions reductions targets, as specified in § 10003 of Title 7.

Section 203G(e) sets forth the circumstances under which the Commission may, for good cause, undertake to suspend or revoke a COP.

Section 203G(f) provides that Commission proceedings under the section involving a COP shall be conducted in accordance with subchapter III, Chapter 101 of Title 29.

Sections 203G(g) and (f) make provision for the State Energy Office and local governments with land use jurisdiction over the development plan to intervene in the Public Service Commission proceedings.

Section 203G(i) requires the written approval of the Commission to transfer a COP.

Section 203G(j) provides that the Commission shall have the authority to promulgate regulations to fully define the requirements necessary for the implementation of section 203G.

Author: Senator Hansen