Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
                 Introduced House Bill 3446
  By Delegates Howell, Anderson, Westfall, Marple,
            Storch, Keaton, and Maynor [Introduced February 14, 2023; Referred to the Committee on Energy and Manufacturing]
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  A BILL to amend and reenact §24-2-1 of the Code of West Virginia, 1931, as amended, relating to
            clarifying the powers of the public service commission as to electric generating facilities.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
     §24-2-1. Jurisdiction of commission; waiver of jurisdiction.
            (a) The jurisdiction of the commission extends to all public utilities in this state and includes
  any utility engaged in any of the following public services:
            (1) Common carriage of passengers or goods, whether by air, railroad, street railroad,
  motor, or otherwise, by express or otherwise, by land, water, or air, whether wholly or partly by
  land, water, or air;
            (2) Transportation of oil, gas, or water by pipeline;
            (3) Transportation of coal and its derivatives and all mixtures and combinations thereof
  with other substances by pipeline;
            (4) Sleeping car or parlor car services;
           (5) Transmission of messages by telephone, telegraph, or radio;
           (6) Generation and transmission of electrical energy by hydroelectric or other utilities for
 service to the public, whether directly or through a distributing utility;
           (7) Supplying water, gas, or electricity by municipalities or others: (A) Provided, That
 natural gas producers who provide natural gas service to not more than 25 residential customers
 are exempt from the jurisdiction of the commission with regard to the provisions of the residential
 service; (B) Provided however, That upon request of any of the customers of the natural gas
 producers, the commission may, upon good cause being shown, exercise authority as the
 commission may consider appropriate over the operation, rates, and charges of the producer and
 for the length of time determined proper by the commission; (C) Provided further, That the
 provision of a solar photovoltaic energy facility located on and designed to meet only the electrical
 needs of the premises of a retail electric customer, the output of which is subject to a power
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 purchase agreement (PPAs) with the retail electric customer, shall not constitute a public service,
 subject to the following conditions and limitations:
           (i) PPAs must be 11 point font or larger.
           (ii) The aggregate of all PPAs and net metering arrangements in the state for any utility
 shall not exceed three percent (3%) of the utility’s aggregate customer peak demand in the state
 during the previous year;
           (iii) There shall be individual customer on-site generator limits of designing the photovoltaic
 energy facility to meet only the electrical needs of the premises of the retail electric customer and
 which in no case shall exceed 25kW for residential customers, 500 kW for commercial customers,
 and 2,000 kW for industrial customers;
           (iv) Customers who enter into PPAs relating to photovoltaic facilities are to notify the utility
 of its intent to enter into a transaction. In response, the utility shall notify within 30 days if any of the
 caps have been reached. If the utility does not respond within 30 days, the generator may proceed
 and the caps will be presumed not to have been reached; and
           (v) The Public Service Commission may promulgate rules to govern and implement the
 provisions of interconnections for PPAs, except the PSC does not have authority over the power
 rates for the arrangements between the on-site generator and the customer;
           (8) Sewer systems servicing 25 or more persons or firms other than the owner of the sewer
 systems; Provided, That if a public utility other than a political subdivision intends to provide sewer
 service by an innovative, alternative method, as defined by the federal Environmental Protection
 Agency, the innovative, alternative method is a public utility function and subject to the jurisdiction
 of the Public Service Commission, regardless of the number of customers served by the
 innovative, alternative method;
           (9) Any public service district created under the provisions of §16-13A-1 et seq. of this
 code, except that the Public Service Commission has no jurisdiction over the provision of
 stormwater services by a public service district;
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           (10) Toll bridges located more than five miles from a toll-free bridge which crosses the
 same body of water or obstacle, wharves, ferries; solid waste facilities; and
           (11) Any other public service.
           (b) The jurisdiction of the commission over political subdivisions of this state providing
 separate or combined water and/or sewer services and having at least 4,500 customers and
 annual combined gross revenues of $3 million or more that are political subdivisions of the state is
 limited to:
           (1) General supervision of public utilities, as granted and described in §24-2-5 of this code;
           (2) Regulation of measurements, practices, acts, or services, as granted and described in
 §24-2-7 of this code;
           (3) Regulation of a system of accounts to be kept by a public utility that is a political
 subdivision of the state, as granted and described in §24-2-8 of this code;
           (4) Submission of information to the commission regarding rates, tolls, charges, or
 practices, as granted and described in §24-2-9 of this code;
           (5) Authority to subpoena witnesses, take testimony, and administer oaths to any witness
 in any proceeding before or conducted by the commission, as granted and described in §24-2-10
 of this code; and
           (6) Investigation and resolution of disputes between a political subdivision of the state
 providing wholesale water and/or wastewater treatment or other services, whether by contract or
 through a tariff, and its customer or customers, including, but not limited to, rates, fees, and
 charges, service areas and contested utility combinations: Provided, That any request for an
 investigation related to a dispute that is based on the act or omission of the political subdivision
 shall be filed within 30 days of the act or omission of the political subdivision and the commission
 shall resolve the dispute within 120 days of filing. The 120-day period for resolution of the dispute
 may be tolled by the commission until the necessary information showing the basis of the rates,
 fees, and charges or other information required by the commission is filed: Provided, however,
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 That the disputed rates, fees, and charges fixed by the political subdivision providing separate or
 combined water and/or sewer services shall remain in full force and effect until set aside, altered
 or, amended by the commission in an order to be followed in the future.
           (7) Customers of water and sewer utilities operated by a political subdivision of the state
 may bring formal or informal complaints regarding the commission’s exercise of the powers
 enumerated in this section and the commission shall resolve these complaints: Provided, That any
 formal complaint filed under this section that is based on the act or omission of the political
 subdivision shall be filed within 30 days of the act or omission complained of and the commission
 shall resolve the complaint within 180 days of filing. The 180-day period for resolution of the
 dispute may be tolled by the commission until the necessary information showing the basis of the
 matter complained of is filed by the political subdivision: Provided, however, That whenever the
 commission finds any regulations, measurements, practices, acts, or service to be unjust,
 unreasonable, insufficient, or unjustly discriminatory, or otherwise in violation of any provisions of
 this chapter, or finds that any service is inadequate, or that any service which is demanded cannot
 be reasonably obtained, the commission shall determine and declare, and by order fix reasonable
 measurement, regulations, acts, practices or services, to be furnished, imposed, observed, and
 followed in lieu of those found to be unjust, unreasonable, insufficient, or unjustly discriminatory,
 inadequate, or otherwise in violation of this chapter, and shall make an order that is just and
 reasonable: Provided further, That if the matter complained of would affect rates, fees, and
 charges fixed by the political subdivision providing separate or combined water and/or sewer
 services, the rates, fees, or charges shall remain in full force and effect until set aside, altered, or
 amended by the commission in an order to be followed in the future.
           (8) If a political subdivision has a deficiency in either its bond revenue or bond reserve
 accounts, or is otherwise in breach of a bond covenant, any bond holder may petition the Public
 Service Commission for any redress that will bring the accounts to current status or otherwise
 resolve the breached covenant. The commission has jurisdiction to fully resolve the alleged
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 deficiency or breach.
           (c) The commission may, upon application, waive its jurisdiction and allow a utility
 operating in an adjoining state to provide service in West Virginia when:
           (1) An area of West Virginia cannot be practicably and economically served by a utility
 licensed to operate within the State of West Virginia;
           (2) The area can be provided with utility service by a utility which operates in a state
 adjoining West Virginia;
           (3) The utility operating in the adjoining state is regulated by a regulatory agency or
 commission of the adjoining state; and
           (4) The number of customers to be served is not substantial. The rates the out-of-state
 utility charges West Virginia customers shall be the same as the rate the utility may charge in the
 adjoining jurisdiction. The commission, in the case of any such utility, may revoke its waiver of
 jurisdiction for good cause.
           (d) Any other provisions of this chapter to the contrary notwithstanding:
           (1) An owner or operator of an electric generating facility located or to be located in this
 state that has been designated as an exempt wholesale generator under applicable federal law, or
 will be so designated prior to commercial operation of the facility, for which the facility the owner or
 operator holds a certificate of public convenience and necessity issued by the commission on or
 before July 1, 2003, is subject to §24-2-11c(e) through §24-2-11c(j) of this code as if the certificate
 of public convenience and necessity for the facility were a siting certificate issued under §24-2-11c
 of this code, and is not otherwise subject to the jurisdiction of the commission or to the provisions
 of this chapter with respect to the facility except for the making or constructing of a material
 modification thereof as provided in §24-2-1(d)(5) of this code.
           (2) Any person, corporation, or other entity that intends to construct or construct and
 operate an electric generating facility to be located in this state that has been designated as an
 exempt wholesale generator under applicable federal law, or will be designated prior to
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 commercial operation of the facility, for which facility the owner or operator does not hold a
 certificate of public convenience and necessity issued by the commission on or before July 1,
 2003, shall, prior to commencement of construction of the facility, obtain a siting certificate from
 the commission pursuant to the provisions of §24-2-11c of this code in lieu of a certificate of public
 convenience and necessity pursuant to the provisions of §24-2-11 of this code. An owner or
 operator of an electric generating facility as is described in this subdivision for which a siting
 certificate has been issued by the commission is subject to §24-2-11c(e) through §24-2-11c(j) of
 this code and is not otherwise subject to the jurisdiction of the commission or to the provisions of
 this chapter with respect to the facility except for the making or constructing of a material
 modification thereof as provided in §24-2-1(d)(5) of this code.
           (3) An owner or operator of an electric generating facility located in this state that had not
 been designated as an exempt wholesale generator under applicable federal law prior to
 commercial operation of the facility that generates electric energy solely for sale at retail outside
 this state or solely for sale at wholesale in accordance with any applicable federal law that
 preempts state law or solely for both sales at retail and sales at wholesale and that had been
 constructed and had engaged in commercial operation on or before July 1, 2003, is not subject to
 the jurisdiction of the commission or to the provisions of this chapter with respect to the facility,
 regardless of whether the facility subsequent to its construction has been or will be designated as
 an exempt wholesale generator under applicable federal law: Provided, That the owner or
 operator is subject to §24-2-1(d)(5) of this code if a material modification of the facility is made or
 constructed.
           (4) Any person, corporation, or other entity that intends to construct or construct and
 operate an electric generating facility to be located in this state that has not been or will not be
 designated as an exempt wholesale generator under applicable federal law prior to commercial
 operation of the facility that will generate electric energy solely for sale at retail outside this state or
 solely for sale at wholesale in accordance with any applicable federal law that preempts state law
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 or solely for both sales at retail and sales at wholesale and that had not been constructed and had
 not been engaged in commercial operation on or before July 1, 2003, shall, prior to
 commencement of construction of the facility, obtain a siting certificate from the commission
 pursuant to the provisions of §24-2-11c of this code in lieu of a certificate of public convenience
 and necessity pursuant to the provisions of §24-2-11 of this code. An owner or operator of an
 electric generating facility as is described in this subdivision for which a siting certificate has been
 issued by the commission is subject to §24-2-11c(e) through §24-2-11c(j) of this code, and is not
 otherwise subject to the jurisdiction of the commission or to the provisions of this chapter with
 respect to the facility except for the making or constructing of a material modification thereof as
 provided in §24-2-1(d)(5) of this code.
           (5) An owner or operator of an electric generating facility described in this subsection shall,
 before making or constructing a material modification of the facility that is not within the terms of
 any certificate of public convenience and necessity or siting certificate previously issued for the
 facility or an earlier material modification thereof, obtain a siting certificate for the modification from
 the commission pursuant to the provisions of §24-2-11c of this code, in lieu of a certificate of public
 convenience and necessity for the modification pursuant to the provisions of §24-2-11 of this code
 and, except for the provisions of §24-2-11c of this code, is not otherwise subject to the jurisdiction
 of the commission or to the provisions of this chapter with respect to the modification.
           (6) The commission shall consider an application for a certificate of public convenience
 and necessity filed pursuant to §24-2-11 of this code, to construct an electric generating facility
 described in this subsection or to make or construct a material modification of the electric
 generating facility as an application for a siting certificate pursuant to §24-2-11c of this code if the
 application for the certificate of public convenience and necessity was filed with the commission
 prior to July 1, 2003, and if the commission has not issued a final order as of that date.
           (7) The limitations on the jurisdiction of the commission over, and on the applicability of the
 provisions of this chapter to, the owner or operator of an electric generating facility as imposed by
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 and described in this subsection do not affect or limit the commission’s jurisdiction over contracts
 or arrangements between the owner or operator of the facility and any affiliated public utility
 subject to the provisions of this chapter.
           (e) The commission does not have jurisdiction of Internet protocol-enabled service or
 voice-over Internet protocol-enabled service. As used in this subsection:
           (1) "Internet protocol-enabled service" means any service, capability, functio