APPROVED CHAPTER
APRIL 25, 2022 659
BY GOVERNOR PUBLIC LAW
STATE OF MAINE
_____
IN THE YEAR OF OUR LORD
TWO THOUSAND TWENTY-TWO
_____
S.P. 248 - L.D. 634
An Act To Reduce Volatility in the Net Energy Billing Program and To
Define "Competitive Electricity Provider"
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 35-A MRSA §102, sub-§2-A, as enacted by PL 1999, c. 398, Pt. A, §3 and
affected by §§104 and 105, is repealed.
Sec. 2. 35-A MRSA §102, sub-§2-B is enacted to read:
2-B. Competitive electricity provider. "Competitive electricity provider" has the
same meaning as in section 3201, subsection 5.
Sec. 3. 35-A MRSA §103, sub-§2, ¶C, as enacted by PL 1999, c. 398, Pt. A, §10
and affected by §§104 and 105, is amended to read:
C. The commission shall oversee the activities of competitive service electricity
providers to the extent provided in this Title.
Sec. 4. 35-A MRSA §109, sub-§1, as amended by PL 1999, c. 398, Pt. A, §11 and
affected by §§104 and 105, is further amended to read:
1. Public utilities. A member or employee of the commission may not:
A. Have any official or professional connection or relation with any public utility or
competitive service electricity provider operating within this State;
B. Hold any stock or securities in any public utility or competitive service electricity
provider operating within this State;
C. Render a professional service against any such public utility or competitive service
electricity provider; or
D. Be a member of a firm that renders service against any such public utility or
competitive service electricity provider.
Sec. 5. 35-A MRSA §1316, as amended by PL 1999, c. 398, Pt. A, §21 and affected
by §§104 and 105, is further amended by amending the section headnote to read:
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§1316. Testimony presented by employees of public utilities or competitive service
electricity providers to legislative committees and to the Public Utilities
Commission
Sec. 6. 35-A MRSA §1316, sub-§1, ¶B, as amended by PL 1999, c. 398, Pt. A,
§21 and affected by §§104 and 105, is further amended to read:
B. "Employer" means a public utility or competitive service electricity provider
licensed to do business in this State with one or more employees.
Sec. 7. 35-A MRSA §1316, sub-§2, as amended by PL 1999, c. 398, Pt. A, §21
and affected by §§104 and 105, is further amended to read:
2. Right to provide testimony. Employees of a public utility or competitive service
electricity provider have the right to represent themselves and to testify before a legislative
committee or the commission on their own time. An employee of a public utility or
competitive service electricity provider who complies with this section may not be denied
the right to testify before a legislative committee or the commission.
Sec. 8. 35-A MRSA §1316, sub-§3, as amended by PL 1999, c. 398, Pt. A, §21
and affected by §§104 and 105, is further amended to read:
3. Discharge of, threats to or discrimination against employees of utility service
public utilities or competitive electricity providers for testimony presented to
legislative committees or the commission. Unless otherwise provided for, a supervisor
may not discharge, threaten or otherwise discriminate against an employee of a public
utility or competitive service electricity provider regarding the employee's compensation,
terms, conditions, location or privileges of employment because the employee, in
compliance with this section, in good faith testifies before or provides information to a
legislative committee or to the commission regarding the operation of the business of a
public utility or competitive service electricity provider or because the employee brings the
subject matter of the testimony or information to the attention of a person having
supervisory authority.
This subsection does not apply to an employee who has testified before or provided
information to a legislative committee or to the commission unless the employee has first
brought the subject matter of the testimony or information in writing to the attention of a
person having supervisory authority with the employer and has allowed the employer a
reasonable time to address the subject matter of the testimony or information. If
appropriate, the employer shall respond in writing.
Sec. 9. 35-A MRSA §1316, sub-§5, as amended by PL 1999, c. 398, Pt. A, §21
and affected by §§104 and 105, is further amended to read:
5. Civil actions for injunctive relief or other remedies. An employee of a public
utility or competitive service electricity provider who alleges a violation of rights under
this section and who has made reasonable efforts to exhaust all grievance procedures, as
provided for in the contract of employment or which otherwise may be available at the
employee's place of employment, may bring a civil action, including an action for
injunctive relief, within 90 days after the occurrence of that alleged violation or after the
grievance procedure or similar process terminates. The action may be brought in the
Superior Court for the county where the alleged violation occurred, the county where the
complainant resides or the county where the person against whom the civil complaint is
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filed resides. An employee must establish each and every element of the employee's case
by a preponderance of the evidence.
Sec. 10. 35-A MRSA §1321, as amended by PL 1999, c. 398, Pt. A, §22 and
affected by §§104 and 105, is further amended to read:
§1321. Orders altered or amended
The commission may at any time rescind, alter or amend any order it has made
including an order fixing any rate or rates, tolls, charges or schedules of a public utility or
an order relating to matters within the jurisdiction of the commission with respect to a
competitive service electricity provider only if it gives the public utility or competitive
service electricity provider and all parties to the original proceeding, to the extent practical,
written notice and after opportunity for those parties to present evidence or argument, as
determined appropriate by the commission. Certified copies of amended orders must be
served and take effect as provided for original orders. Nothing in this section is intended
to grant to the commission authority to establish or approve the rates charged by
competitive service electricity providers.
Sec. 11. 35-A MRSA §1322, sub-§1, as amended by PL 1999, c. 398, Pt. A, §23
and affected by §§104 and 105, is further amended to read:
1. Orders temporarily amended. When the commission finds it necessary to prevent
injury to a public utility's business or to the interest of the people, or if the commission
finds there is an emergency, it may temporarily alter, amend or, with the public utility's
consent, suspend existing rates, schedules or orders affecting the public utility. When the
commission finds it necessary to prevent injury to a competitive service electricity
provider's business or to the interest of the people, or if the commission finds there is an
emergency, it may temporarily alter, amend or, with the competitive service electricity
provider's consent, suspend existing orders affecting the competitive service electricity
provider.
Sec. 12. 35-A MRSA §1322, sub-§3, as enacted by PL 1999, c. 398, Pt. A, §23
and affected by §§104 and 105, is amended to read:
3. Limitation of authority. Nothing in this section is intended to grant the
commission authority to establish or approve the rates charged by competitive service
electricity providers.
Sec. 13. 35-A MRSA §1702, sub-§1, ¶B, as amended by PL 1999, c. 398, Pt. A,
§24 and affected by §§104 and 105, is further amended to read:
B. The reasonableness and adequacy of the service furnished or proposed to be
furnished by any public utility or competitive service electricity provider;
Sec. 14. 35-A MRSA §1702, sub-§3, as amended by PL 1999, c. 398, Pt. A, §25
and affected by §§104 and 105, is further amended to read:
3. Petition to initiate proceedings. The Public Advocate may petition the
commission to initiate proceedings to review, investigate and take appropriate action with
respect to the rates or service of any public utility or competitive service electricity provider
when determined necessary by the Public Advocate.
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 Sec. 15. 35-A MRSA §1702, sub-§5, as amended by PL 2019, c. 71, §1, is further
amended to read:
5. Intervention on behalf of public. The Public Advocate may, on behalf of the using
and consuming public, or any particular group of consumers, petition to initiate, or
intervene and appear in, any proceedings before the commission, appeals from orders of
the commission, or proceedings before state and federal agencies and courts in which the
subject matter of the action affects the customers of any utility or competitive service
electricity provider doing business in this State.
Sec. 16. 35-A MRSA §1709, as amended by PL 1999, c. 398, Pt. A, §28 and
affected by §§104 and 105, is further amended to read:
§1709. Conflicts of interest
In addition to the limitations of Title 5, section 18, the Public Advocate or any
employee of the Public Advocate may not have any official or professional connection or
relation with, or hold any stock or securities in, any public utility or competitive service
electricity provider operating within this State; render any professional service against any
such public utility or competitive service electricity provider; or be a member of a firm that
renders any such service.
Sec. 17. 35-A MRSA §3209-A, sub-§7, as enacted by PL 2021, c. 390, §1, is
amended to read:
7. Applicability. A distributed generation resource with a nameplate capacity of at
least greater than 2 megawatts and not more than 5 megawatts may be used for net energy
billing under this section only if the requirements of paragraph A, B or C are met and all
the requirements of paragraphs D and E are met.
A. In order for a distributed generation resource to be used for net energy billing, one
of the following must have been met on or before December 31, 2020:
(1) There is a signed interconnection agreement between the entity proposing the
development of the distributed generation resource and a transmission and
distribution utility governing the connection of the resource to the utility's system
and the ongoing operation of the resource after it is connected to the system; or
(2) There is a net energy billing agreement between the entity proposing the
development of the distributed generation resource and the transmission and
distribution utility.
An amendment, revision or reissuance of an agreement under this paragraph that occurs
after December 31, 2020 may not be interpreted to affect the date on which the initial
agreement was signed.
B. In order for a distributed generation resource to be used for net energy billing, one
of the following must have been met on or before April 30, 2021:
(1) A complete application for a customer net energy billing agreement has been
submitted for the distributed generation resource and a customer has or customers
have financial interest in 90% or more of the capacity of that distributed generation
resource; or
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 (2) There is a fully executed net energy billing agreement between a customer or
sponsor of the distributed generation resource and the transmission and distribution
utility for the distributed generation resource and a customer has or customers have
financial interest in 90% or more of the capacity of that distributed generation
resource.
C. In order for a distributed generation resource to be used for net energy billing, the
following must have been met on or before June 1, 2021:
(1) The interconnection study process has commenced for a distributed generation
resource located in those portions of the service territory of an investor-owned
transmission and distribution utility that are not connected to the ISO-NE region
as defined in section 1902, subsection 3.
D. In order for a distributed generation resource to be used for net energy billing, all
of the following must be met on or before December 31, 2021:
(1) There is a fully executed interconnection agreement between the entity
proposing the development of the distributed generation resource and the
transmission and distribution utility;
(2) The entity proposing the development of the distributed generation resource
certifies to the commission that the entity has submitted all applicable permit
applications to the Department of Environmental Protection and the department
has accepted those applications for processing; and
(3) The entity proposing the development of the distributed generation resource
certifies to the commission that the entity has received all necessary local,
nonministerial permits. For purposes of this subparagraph, "nonministerial permit"
means a permit for which one or more officials consider various factors and
exercise discretion in deciding whether to issue or deny the permit.
An amendment, revision or reissuance of an agreement under this paragraph that occurs
after December 31, 2021 may not be interpreted to affect the date on which the
agreement was initially executed.
E. In order for a distributed generation resource to be used for net energy billing, the
following must be met on or before December 31, 2024:
(1) The proposed distributed generation resource must reach commercial operation
by the date specified in the net energy billing agreement or by the date specified
with an allowable modification to that agreement.
An entity proposing the development of a distributed generation resource that does not
meet one or more of the requirements of this subsection may petition the commission for a
good-cause exemption due to external delays outside of the entity's control, which the
commission may grant if it finds that, without the external delays, the entity could
reasonably have been expected to meet the requirements.
The goal for development of commercially operational distributed generation resources
under this subsection and section 3209-B, subsection 7 is 750 total megawatts.
Sec. 18. 35-A MRSA §3209-A, sub-§7, as enacted by PL 2021, c. 370, §1 and
reallocated by RR 2021, c. 1, Pt. A, §37, is reallocated to 35-A MRSA §3209-A, sub-§8.
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 Sec. 19. 35-A MRSA §3209-B, sub-§5, as enacted by PL 2019, c. 478, Pt. A, §4,
is amended to read:
5. Tariff rate; bill credits. The commission shall establish by rule a tariff rate rates
for customers participating in the program. The initial tariff rate must be established no
later than December 1, 2019.
A. The tariff rate for a customer participating in net energy billing with a distributed
generation resource described in this paragraph must equal the standard offer standard-
offer service rate established under section 3212 that is applicable to the customer
receiving the credit plus 75% of the effective transmission and distribution rate for the
rate class that includes the smallest commercial customers of the investor-owned
transmission and distribution utility. The tariff rate under this paragraph applies to net
energy billing with a distributed generation resource:
(1) With a nameplate capacity of greater than one megawatt if:
(a) The entity developing the distributed generation resource certifies by
affidavit with accompanying documentation to the commission that the entity,
before September 1, 2022, commenced on-site physical work of a significant
nature on the distributed generation resource and the entity has made and will
continue to make continuous on-site construction efforts to advance toward
completion of the distributed generation resource. For the purpose of this
paragraph, continuous on-site construction efforts include, but are not limited
to, in the context of a solar facility, the continuous installation of racks or other
structures to affix photovoltaic panels, collectors or solar cells to a site. The
commission may share information contained in the affidavit submitted in
accordance with this paragraph with a transmission and distribution utility, as
necessary, to verify a distributed generation resource's compliance with this
section. In administering this subsection, the commission may adopt rules
including, but not limited to, requiring the entity that submits a sworn affidavit
under this subparagraph to provide updated documentation to the commission
after submission of the affidavit; or
(b) The distributed generation resource is collocated with a net energy billing
customer that is or net energy billing customers that are subscribed to at least
50% of the facility's output; or
(2) With a nameplate capacity of one megawatt or less.
A-1. The tariff rate for a customer participating in net energy billing under this section
with a distributed generation resource not governed by paragraph A must:
(1) In 2022, equal the standard-offer service rate established pursuant to section
3212 that was applicable to the rate class of the customer receiving the credit on