WEST VIRGINIA LEGISLATURE
2021 REGULAR SESSION
ENGROSSED
House Bill 3310
BY DELEGATES CAPITO, QUEEN, LOVEJOY AND GARCIA
[Originating in the Committee on Judiciary; reported on March 26, 2021]
 Eng HB 3310
1 A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section,
2 designated §24-1-1c; to amend and reenact §24-1-2 of said code; and to amend and
3 reenact §24-2-1 of said code; all generally relating to jurisdiction of the Public Service
4 Commission; making legislative findings; defining terms; creating exception to the term
5 public utility; limiting jurisdiction of the Public Service Commission; and providing for
6 rulemaking.
Be it enacted by the Legislature of West Virginia:
ARTICLE 1. GENERAL PROVISIONS.
§24-1-1c. Legislative findings.
1 The Legislature finds:
2 (1) It is in the public interest to facilitate retail electric customers to invest in and install
3 solar photovoltaic energy facilities of their choice on their properties;
4 (2) Free-market financing may provide more customers with opportunities to install such
5 solar photovoltaic energy facilities;
6 (3) Installation of such solar photovoltaic energy facilities will stabilize long term energy
7 costs to make the state more attractive for industry and commercial investment;
8 (4) Financing arrangements, including those in which payments are based on the
9 performance and output of the solar photovoltaic energy facility installed on the property of a retail
10 electric customer, will help reduce or eliminate upfront costs involved in the investments and
11 installation by such customers; and
12 (5) Individuals and entities which offer or receive these types of financing arrangements
13 should not be considered or treated as public utilities.
§24-1-2. Definitions.
1 Except where a different meaning clearly appears from the context, the words “public
2 utility”, when used in this chapter, shall mean and include any person or persons, or association
3 of persons, however associated, whether incorporated or not, including municipalities, engaged
1
 Eng HB 3310
4 in any business, whether herein enumerated or not, which is, or shall hereafter be held to be, a
5 public service: Provided, That “public utility” does not include individuals or entities owning a solar
6 photovoltaic energy facility located on and designed to meet only the electrical needs of the
7 premises of a retail electric customer, the output of which is subject to a power purchase
8 agreement with such retail electric customer, subject to §24-2-1(a) of this code. Whenever in this
9 chapter the words “commission” or “Public Service Commission” occur, such word or words shall,
10 unless a different intent clearly appears from the context, be taken to mean the Public Service
11 Commission of West Virginia. Whenever used in this chapter, “customer” shall mean and include
12 any person, firm, corporation, municipality, public service district or any other entity who
13 purchases a product or services of any utility and shall include any such person, firm, corporation,
14 municipality, public service district or any other entity who purchases such services or product for
15 resale. Whenever in this chapter the words “governing body” occur, such word or words shall,
16 unless a different intent clearly appears from the context, be taken to mean the municipal body
17 charged with the authority and responsibility of enacting ordinances of the municipality, as defined
18 in section two, article one, chapter eight §8-1-2 of this code, or a public service board of a public
19 service district, as defined in section three, article thirteen-a, chapter sixteen §16-13A-3 of this
20 code.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-1. Jurisdiction of commission; waiver of jurisdiction.
1 (a) The jurisdiction of the commission shall extend to all public utilities in this state and
2 shall include any utility engaged in any of the following public services:
3 Common carriage of passengers or goods, whether by air, railroad, street railroad, motor,
4 or otherwise, by express or otherwise, by land, water, or air, whether wholly or partly by land,
5 water, or air; transportation of oil, gas, or water by pipeline; transportation of coal and its
6 derivatives and all mixtures and combinations thereof with other substances by pipeline; sleeping
7 car or parlor car services; transmission of messages by telephone, telegraph, or radio; generation
2
 Eng HB 3310
8 and transmission of electrical energy by hydroelectric or other utilities for service to the public,
9 whether directly or through a distributing utility; supplying water, gas, or electricity by
10 municipalities or others; sewer systems servicing 25 or more persons or firms other than the
11 owner of the sewer systems: Provided, That the provision of a solar photovoltaic energy facility
12 located on and designed to meet only the electrical needs of the premises of a retail electric
13 customer, the output of which is subject to a power purchase agreement (PPAs) with the retail
14 electric customer, shall not constitute a public service, subject to the following conditions and
15 limitations, to wit: (a) the aggregate of all PPAs and net metering arrangements in the state for
16 any utility shall not exceed three percent (3%) of such utility’s aggregate customer peak demand
17 in the state during the previous year; (b) there shall be individual customer on-site generator limits
18 of designing the photovoltaic energy facility to meet only the electrical needs of the premises of
19 the retail electric customer and which in no case shall exceed 25kW for residential customers,
20 500 kW for commercial customers, and 2,000 kW for industrial customers; (c) customers who
21 enter into PPAs of photovoltaic facilities are to notify the utility of its intent to enter into such a
22 transaction, which the utility will respond within 30 days whether any of the caps have been
23 reached. If the utility does not respond within 30 days, the generator may proceed and the caps
24 will be presumed not to have been reached; and (d) the Public Service Commission shall have
25 rulemaking authority to govern and implement the provisions of interconnections for PPAs, except
26 the PSC shall not have authority over the power rates for such arrangements between the on-site
27 generator and the customer; Provided, however, That if a public utility other than a political
28 subdivision intends to provide sewer service by an innovative, alternative method, as defined by
29 the federal Environmental Protection Agency, the innovative, alternative method is a public utility
30 function and subject to the jurisdiction of the Public Service Commission regardless of the number
31 of customers served by the innovative, alternative method; any public service district created
32 under the provisions of §16-13A-1 et seq. of this code, except that the Public Service Commission
33 will have no jurisdiction over the provision of stormwater services by a public service district; toll
3
 Eng HB 3310
34 bridges, wharves, ferries; solid waste facilities; and any other public service: Provided, however
35 further, That natural gas producers who provide natural gas service to not more than 25 residential
36 customers are exempt from the jurisdiction of the commission with regard to the provisions of the
37 residential service: And provided further, That upon request of any of the customers of the natural
38 gas producers, the commission may, upon good cause being shown, exercise such authority as
39 the commission may deem appropriate over the operation, rates, and charges of the producer
40 and for such length of time as the commission may consider to be proper.
41 (b) The jurisdiction of the commission over political subdivisions of this state providing
42 separate or combined water and/or sewer services and having at least 4,500 customers and
43 annual combined gross revenues of $3 million or more that are political subdivisions of the state
44 is limited to:
45 (1) General supervision of public utilities, as granted and described in §24-2-5 of this code;
46 (2) Regulation of measurements, practices, acts, or services, as granted and described in
47 §24-2-7 of this code;
48 (3) Regulation of a system of accounts to be kept by a public utility that is a political
49 subdivision of the state, as granted and described in §24-2-8 of this code;
50 (4) Submission of information to the commission regarding rates, tolls, charges, or
51 practices, as granted and described in §24-2-9 of this code;
52 (5) Authority to subpoena witnesses, take testimony, and administer oaths to any witness
53 in any proceeding before or conducted by the commission, as granted and described in §24-2-10
54 of this code; and
55 (6) Investigation and resolution of disputes between a political subdivision of the state
56 providing wholesale water and/or wastewater treatment or other services, whether by contract or
57 through a tariff, and its customer or customers, including, but not limited to, rates, fees, and
58 charges, service areas and contested utility combinations: Provided, That any request for an
59 investigation related to such a dispute that is based on the act or omission of the political
4
 Eng HB 3310
60 subdivision shall be filed within 30 days of the act or omission of the political subdivision and the
61 commission shall resolve said dispute within 120 days of filing. The 120-day period for resolution
62 of the dispute may be tolled by the commission until the necessary information showing the basis
63 of the rates, fees, and charges or other information as the commission considers necessary is
64 filed: Provided, however, That the disputed rates, fees, and charges so fixed by the political
65 subdivision providing separate or combined water and/or sewer services shall remain in full force
66 and effect until set aside, altered or, amended by the commission in an order to be followed in the
67 future.
68 (7) Customers of water and sewer utilities operated by a political subdivision of the state
69 may bring formal or informal complaints regarding the commission’s exercise of the powers
70 enumerated in this section and the commission shall resolve these complaints: Provided, That
71 any formal complaint filed under this section that is based on the act or omission of the political
72 subdivision shall be filed within 30 days of the act or omission complained of and the commission
73 shall resolve the complaint within 180 days of filing. The 180-day period for resolution of the
74 dispute may be tolled by the commission until the necessary information showing the basis of the
75 matter complained of is filed by the political subdivision: Provided, however, That whenever the
76 commission finds any regulations, measurements, practices, acts or service to be unjust,
77 unreasonable, insufficient or unjustly discriminatory, or otherwise in violation of any provisions of
78 this chapter, or finds that any service is inadequate, or that any service which is demanded cannot
79 be reasonably obtained, the commission shall determine and declare, and by order fix reasonable
80 measurement, regulations, acts, practices or services, to be furnished, imposed, observed and
81 followed in lieu of those found to be unjust, unreasonable, insufficient, or unjustly discriminatory,
82 inadequate or otherwise in violation of this chapter, and shall make such other order respecting
83 the same as shall be just and reasonable: Provided further, That if the matter complained of would
84 affect rates, fees, and charges so fixed by the political subdivision providing separate or combined
5
 Eng HB 3310
85 water and/or sewer services, the rates, fees, or charges shall remain in full force and effect until
86 set aside, altered or amended by the commission in an order to be followed in the future.
87 (8) If a political subdivision has a deficiency in either its bond revenue or bond reserve
88 accounts, or is otherwise in breach of a bond covenant, any bond holder may petition the Public
89 Service Commission for such redress as will bring the accounts to current status or otherwise
90 resolve the breached covenant, and the commission shall have jurisdiction to fully resolve the
91 alleged deficiency or breach.
92 (c) The commission may, upon application, waive its jurisdiction and allow a utility
93 operating in an adjoining state to provide service in West Virginia when:
94 (1) An area of West Virginia cannot be practicably and economically served by a utility
95 licensed to operate within the State of West Virginia;
96 (2) The area can be provided with utility service by a utility which operates in a state
97 adjoining West Virginia;
98 (3) The utility operating in the adjoining state is regulated by a regulatory agency or
99 commission of the adjoining state; and
100 (4) The number of customers to be served is not substantial. The rates the out-of-state
101 utility charges West Virginia customers shall be the same as the rate the utility is duly authorized
102 to charge in the adjoining jurisdiction. The commission, in the case of any such utility, may revoke
103 its waiver of jurisdiction for good cause.
104 (d) Any other provisions of this chapter to the contrary notwithstanding:
105 (1) An owner or operator of an electric generating facility located or to be located in this
106 state that has been designated as an exempt wholesale generator under applicable federal law,
107 or will be so designated prior to commercial operation of the facility, and for which such facility
108 the owner or operator holds a certificate of public convenience and necessity issued by the
109 commission on or before July 1, 2003, is subject to §24-2-11c(e) through §24-2-11c(j) of this code
110 as if the certificate of public convenience and necessity for the facility were a siting certificate
6
 Eng HB 3310
111 issued under §24-2-11c of this code and is not otherwise subject to the jurisdiction of the
112 commission or to the provisions of this chapter with respect to the facility except for the making
113 or constructing of a material modification thereof as provided in §24-2-1(d)(5) of this code.
114 (2) Any person, corporation, or other entity that intends to construct or construct and
115 operate an electric generating facility to be located in this state that has been designated as an
116 exempt wholesale generator under applicable federal law, or will be so designated prior to
117 commercial operation of the facility, and for which facility the owner or operator does not hold a
118 certificate of public convenience and necessity issued by the commission on or before July 1,
119 2003, shall, prior to commencement of construction of the facility, obtain a siting certificate from
120 the commission pursuant to the provisions of §24-2-11c of this code in lieu of a certificate of public
121 convenience and necessity pursuant to the provisions of §24-2-11 of this code. An owner or
122 operator of an electric generating facility as is described in this subdivision for which a siting
123 certificate has been issued by the commission is subject to §24-2-11c(e) through §24-2-11c(j) of
124 this code and is not otherwise subject to the jurisdiction of the commission or to the provisions of
125 this chapter with respect to the facility except for the making or constructing of a material
126 modification thereof as provided in §24-2-1(d)(5) of this code.
127 (3) An owner or operator of an electric generating facility located in this state that had not
128 been designated as an exempt wholesale generator under applicable federal law prior to
129 commercial operation of the facility that generates electric energy solely for sale at retail outside
130 this state or solely for sale at wholesale in accordance with any applicable federal law that
131 preempts state law or solely for both sales at retail and sales at wholesale and that had been
132 constructed and had engaged in commercial operation on or before July 1, 2003, is not subject
133 to the jurisdiction of the commission or to the provisions of this chapter with respect to the facility,
134 regardless of whether the facility subsequent to its construction has been or will be designated as
135 an exempt wholesale generator under applicable federal law: Provided, That the owner or
7
 Eng HB 3310
136 operator is subject to §24-2-1(d)(5) of this code if a material modification of the facility is made or
137 constructed.
138 (4) Any person, corporation, or other entity that intends to construct or construct and
139 operate an electric generating facility to be located in this state that has not been or will not be
140 designated as an exempt wholesale generator under applicable federal law prior to commercial
141 operation of the facility that will generate electric energy solely for sale at retail outside this state
142 or solely for sale at wholesale in accordance with any applicable federal law that preempts state
143 law or solely for both sales at retail and sales at wholesale and that had not been constructed and
144 had not been engaged in commercial operation on or before July 1, 2003, shall, prior to
145 commencement of construction of the facility, obtain a siting certificate from the commission
146 pursuant to the provisions of §24-2-11c of this code in lieu of a certificate of public convenience
147 an