I 

116TH CONGRESS 

1ST SESSION H. R. 1502 

To modernize the Public Utility Regulatory Policies Act of 1978, and for 

other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 5, 2019 

Mr. WALBERG (for himself, Mr. GIANFORTE, and Mr. MITCHELL) introduced 

the following bill; which was referred to the Committee on Energy and 

Commerce 

A BILL 

To modernize the Public Utility Regulatory Policies Act of 

1978, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘PURPA Modernization 

5 Act of 2019’’. 

6 SEC. 2. LOCATION OF SMALL POWER PRODUCTION FACILI7 TIES. 

8 (a) REBUTTABLE PRESUMPTION.—The Federal En9 ergy Regulatory Commission shall, not later than 180 

10 days after the date of enactment of this Act, publish in 


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1 the Federal Register a final rule amending its regulations 

2 implementing section 3(17)(A)(ii) of the Federal Power 

3 Act (16 U.S.C. 796(17)(A)(ii)), regarding the method for 

4 determining whether facilities are considered to be located 

5 at the same site as the facility for which qualification is 

6 sought for the purpose of calculating power production ca7 pacity, to provide a rebuttable presumption that— 

8 (1) facilities located one mile or more away 

9 from each other are not located at the same site; 

10 and 

11 (2) facilities located within one mile of each 

12 other are located at the same site. 

13 (b) OVERCOMING THE PRESUMPTION.— 

14 (1) IN GENERAL.—Except as provided in para15 graph (3), the Commission shall allow any person 

16 (as defined in section 385.102 of title 18, Code of 

17 Federal Regulations, as in effect on the date of en18 actment of this Act) to rebut the presumption de19 scribed in subsection (a). 

20 (2) FACTORS TO BE CONSIDERED.—In deter21 mining whether a facility is considered to be located 

22 at the same site as the facility for which qualifica23 tion is sought, the Commission shall take into ac24 count, to the extent practicable, the following fac25 tors: 


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1 (A) The extent to which the owners or op2 erators of the facilities are affiliated or associ3 ated with each other, or are under the control 

4 of the same company or person. 

5 (B) The extent to which the owners or op6 erators of the facilities have treated the facili7 ties as a single project for purposes of other 

8 regulatory filings or applications. 

9 (C) Whether the facilities use the same en10 ergy resource. 

11 (D) Whether the facilities have a common 

12 generator lead line or connect at the same or 

13 nearby interconnection points or substations. 

14 (E) The extent to which the owners or op15 erators of the facilities have a common land 

16 lease or land rights with respect to land on 

17 which the facilities are located. 

18 (F) The extent to which the owners or op19 erators of the facilities have common financing 

20 with respect to the facilities. 

21 (G) The extent to which the facilities are 

22 part of a common development plan or permit23 ting effort, even if the interconnection of the fa24 cilities occurs at separate points. 


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1 (3) EXCEPTION.—Paragraphs (1) and (2) shall 

2 not apply with respect to a facility that, as of the 

3 date of enactment of this Act— 

4 (A) produces both electric energy and use5 ful thermal energy; and 

6 (B) on a million British thermal unit basis, 

7 uses at least 80 percent of its total annual ag8 gregate net output of electric energy and useful 

9 thermal energy for onsite industrial, commer10 cial, or institutional purposes, rather than for 

11 sale. 

12 (c) AFFILIATION AND ASSOCIATION.—The Commis13 sion shall consider the owners or operators of facilities to 

14 be affiliated or associated for purposes of this section if 

15 they are affiliates or associate companies within the mean16 ing of those terms as defined in section 1262 of the Public 

17 Utility Holding Company Act of 2005 (42 U.S.C. 16451). 

18 (d) CONTROL.—The Commission shall consider the 

19 owner or operator of a facility to be under the control of 

20 a company or person for purposes of this section if— 

21 (1) the company or person directly or indirectly 

22 owns, controls, or holds, with power to vote, 10 per23 cent or more of the outstanding voting securities of 

24 the owner or operator; or 


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1 (2) the Commission determines, after notice 

2 and opportunity for hearing, that the company or 

3 person exercises, directly or indirectly (either alone 

4 or pursuant to an arrangement or understanding 

5 with one or more companies or persons), a control6 ling influence over the management of the owner or 

7 operator. 

8 SEC. 3. NONDISCRIMINATORY ACCESS. 

9 Section 210(m) of the Public Utility Regulatory Poli10 cies Act of 1978 (16 U.S.C. 824a–3(m)) is amended by 

11 adding at the end the following: 

12 ‘‘(8) NONDISCRIMINATORY ACCESS.— 

13 ‘‘(A) IN GENERAL.—For purposes of this 

14 subsection, except as provided in subparagraph 

15 (B), a qualifying small power production facility 

16 with an installed generation capacity of 2.5 

17 megawatts or greater is presumed to have non18 discriminatory access to transmission and inter19 connection services and wholesale markets de20 scribed in subparagraphs (A), (B), or (C) of 

21 paragraph (1). 

22 ‘‘(B) EXCEPTION.—Subparagraph (A) 

23 does not apply to a qualifying small power pro24 duction facility that, as of the date of enact25 ment of this paragraph— 


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1 ‘‘(i) produces both electric energy and 

2 useful thermal energy; and 

3 ‘‘(ii) on a million British thermal unit 

4 basis, uses at least 80 percent of its total 

5 annual aggregate net output of electric en6 ergy and useful thermal energy for onsite 

7 industrial, commercial, or institutional pur8 poses, rather than for sale.’’. 

9 SEC. 4. RECOGNITION OF STATE OR LOCAL DETERMINA10 TIONS. 

11 Section 210(m) of the Public Utility Regulatory Poli12 cies Act of 1978 (16 U.S.C. 824a–3(m)), as amended by 

13 section 3, is further amended by adding at the end the 

14 following: 

15 ‘‘(9) STATE OR LOCAL DETERMINATION.—After 

16 the date of enactment of this paragraph, no electric 

17 utility shall be required to enter into a new contract 

18 or obligation to purchase electric energy under this 

19 section from a qualifying small power production fa20 cility that is not a qualifying small power production 

21 facility described in paragraph (8)(B) if the appro22 priate State regulatory agency or non-regulated elec23 tric utility finds, and submits to the Commission a 

24 written determination, that— 


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1 ‘‘(A) the electric utility has no need to pur2 chase electric energy from such qualifying small 

3 power production facility in the amounts to be 

4 offered within the timeframe proposed by the 

5 qualifying small power production facility, con6 sistent with the needs for electric energy and 

7 the timeframe for those needs as specified in an 

8 electric utility’s integrated resource plan, in 

9 order to meet its obligation to serve customers; 

10 or 

11 ‘‘(B) the electric utility employs integrated 

12 resource planning and conducts a competitive 

13 resource procurement process for long-term en14 ergy resources that provides an opportunity for 

15 qualifying small power production facilities to 

16 supply electric energy to the electric utility in 

17 accordance with the integrated resource plan of 

18 the electric utility.’’. 

Æ 


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