WEST virginia legislature
2019 regular session
House Bill 2589
By Delegate Hansen, Ellington, Hanna, Miley, Lovejoy, McGeehan, Phillips, Evans, Fleischauer, Miller and Rowe
[Introduced January 22, 2019; Referred
to the Committee on Technology and Infrastructure then Energy.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §24-2-20, relating to siting certain solar energy projects on formerly mined land in West Virginia; authorizing transmission or wheeling agreements to transmit the electrical output from certain solar energy projects to large energy consumers within West Virginia; making legislative findings; defining terms; creating an exception to the general regulatory structure for solar energy project owners or operators and large energy consumers purchasing the output therefrom so that they are not deemed public utilities; authorizing affected electric utilities to recover reasonable charges for transmission, distribution, and other related services; and authorizing the promulgation of rules exempt from the regular legislative review process.
Be it enacted by the Legislature of West Virginia:
Article 2. Powers and Duties of Public Service Commission.
§24-2-20. Solar Energy on Formerly Mined Land.
(a) Legislative findings. —
(1) It is in the public interest to encourage development of solar energy on formerly mined land in West Virginia and to facilitate the procurement of solar energy by energy-intensive businesses located or locating within West Virginia in order to create economic opportunities and jobs;
(2) The competitive advantage formerly held by West Virginia due to its historically low-cost electricity rates for residential, business, and industrial customers has significantly eroded in recent years;
(3) Energy-intensive commercial, industrial, and manufacturing consumers of electricity create jobs, provide a substantial tax base, and enhance the productive capacity, competitiveness, and economic opportunities for West Virginia and its citizens;
(4) Nationwide, numerous large commercial, industrial, and manufacturing companies have established corporate sustainability goals and guidelines, primarily geared toward the reduction of carbon dioxide and other greenhouse gas emissions through the implementation of energy efficiency measures and the deployment of renewable energy sources including solar energy;
(5) Because more than 90 percent of West Virginia’s electric power is generated from fossil fuels and construction of large-scale renewable energy generation facilities is constrained in West Virginia’s electricity market, West Virginia is unable to attract large commercial, industrial, and manufacturing companies with corporate sustainability goals and guidelines;
(6) The development of large-scale solar energy projects requires a significant amount of land;
(7) According to a 2011 analysis, West Virginia had more than 550 square miles of formerly surface-mined land, and less than two percent of this land had been put into productive use;
(8) According to a 2017 analysis, West Virginia had 219 square miles of formerly mined land and other degraded land that is viable for large-scale solar energy production based on a number of factors including site size, proximity to electricity infrastructure, and solar irradiance levels; and
(9) Allowing large commercial, industrial, and manufacturing companies to transmit electricity generated at solar energy facilities sited on formerly mined land by using transmission and distribution facilities of electric utilities to their commercial, industrial, and manufacturing facilities within West Virginia will put this undeveloped land into productive economic use and create jobs and tax revenues.
(b) Definitions. — As used in this section:
“Eligible land” means land within West Virginia for which a permit has been issued under the West Virginia Surface Coal Mining and Reclamation Act pursuant to §22-3-1 et seq. of this code or land listed on the Office of Surface Mining Reclamation and Enforcement’s Abandoned Mine Land Inventory System;
“Eligible solar project” means a solar photovoltaic array having a nameplate capacity of one megawatt or more that is installed upon eligible land for which a certificate of public convenience and necessity authorizing the installation was issued by the Public Service Commission pursuant to §24-2-11 of this code, and that is interconnected with a transmitting utility’s transmission or distribution system;
“Entity” means any business entity, including, but not limited to, a corporation, partnership, limited liability company, or sole proprietorship;
“Large energy consumer” means a commercial, industrial, or manufacturing entity or an institution of higher education or a nonprofit organization located or to be located in West Virginia that has a normal maximum electrical requirement of one megawatt or more per month of actual demand in the past 12 months, or projected normal maximum electrical requirements of 1 megawatt or more per month, of electric power at its West Virginia facilities;
“Power purchase agreement” means a contractual arrangement under which the owner or operator of an eligible solar project sells the electrical output of the project to a large energy consumer;
“Transmitting utility” means an electric utility that owns and operates transmission and distribution lines within West Virginia and that is regulated as a public utility by the Public Service Commission; and
“Wheeling agreement” means an agreement between the owner or operator of an eligible solar project and one or more transmitting utilities within West Virginia under which electricity generated at the eligible solar project is transmitted for delivery to a large energy consumer served by the transmitting utility or utilities.
(c) Authorizing wheeling agreements. —
(1) Upon procurement of the electrical output of an eligible solar project by a large energy consumer, either through ownership of the solar project by the large energy consumer or through a power purchase agreement between the large energy consumer and the owner or operator of the eligible solar project, the large energy consumer is entitled, upon request, to have the electrical output transmitted or wheeled over the transmission and/or distribution system of one or more transmitting utilities between: (A) The point of interconnection between a transmitting utility’s transmission or distribution system and the eligible solar project and (B) the point of delivery at facilities of the large energy consumer located within West Virginia, as designated by the large energy consumer.
(2) The rates to be charged by a transmitting utility for wheeling service provided to a large energy consumer shall be: (A) The rate set forth in the utility’s Open Access Transmission Tariff (OATT) on file with the Federal Energy Regulatory Commission to the extent the utility’s transmission facilities are used, and (B) a wheeling rate to be determined by the Public Service Commission to the extent the utility’s distribution facilities are used. The Public Service Commission, following a rate proceeding pursuant to §24-2-1 et seq. of this code, shall determine the wheeling rate for a transmitting utility, and the rates, terms and conditions applicable to the wheeling service shall be set forth in a tariff sheet upon approval of the rates, terms and conditions by the Public Service Commission.
(d) Not a public utility. —
(1) The sale of the electrical output of an eligible solar project to a large energy consumer shall not be considered the provision of electric service to the public, retail electric service, or retail supply of electricity by the owner or operator of an eligible solar project, and neither the large energy consumer nor the owner or operator of an eligible solar project shall be considered an electric supplier within the meaning of this chapter or in violation of exclusive electric service rights arising therein.
(2) Except as explicitly provided in subdivision (1), subsection (c) and subdivision (1), subsection (d) of this section, nothing in this section shall be construed as modifying the restrictions in this chapter on the sale, offer for sale, or distribution of retail electric service in this state.
(e) Rule-making authority. — The Public Service Commission may promulgate rules, as necessary, to implement the provisions of this section. Rules promulgated under this authority are exempt from the legislative rule-making review procedures established in §29A-3-1 et seq. of this code.
NOTE: The purpose of this bill is to encourage solar energy development on lands formerly used for mining, to provide electricity for commercial, industrial and manufacturing businesses or institutions of higher education or nonprofit organizations that are located in or will locate operations in West Virginia is available; authorizing the Public Service Commission to regulate the use of transmission lines to transport power from these facilities; and providing that the solar operations are not regulated as a utility for providing electricity to these businesses.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.