587
been met. After notice, including sufficient notice to
potentially affected qualifying cogeneration facilities
and qualifying small power production facilities, and
an opportunity for comment, the Commission shall
make a final determination within 90 days of such
application regarding whether the conditions set
forth in subparagraphs (A), (B) or (C) of paragraph
(1) have been met.
‘‘(4) REINSTATEMENT OF OBLIGATION TO PUR-
CHASE.—At any time after the Commission makes a
finding under paragraph (3) relieving an electric
utility of its obligation to purchase electric energy,
a qualifying cogeneration facility, a qualifying small
power production facility, a State agency, or any
other affected person may apply to the Commission
for an order reinstating the electric utility’s obliga-
tion to purchase electric energy under this section.
Such application shall set forth the factual basis
upon which the application is based and describe
why the conditions set forth in subparagraphs (A),
(B) or (C) of paragraph (1) of this subsection are
no longer met. After notice, including sufficient no-
tice to potentially affected utilities, and opportunity
for comment, the Commission shall issue an order
within 90 days of such application reinstating the
588
electric utility’s obligation to purchase electric en-
ergy under this section if the Commission finds that
the conditions set forth in subparagraphs (A), (B) or
(C) of paragraph (1) which relieved the obligation to
purchase, are no longer met.
‘‘(5) OBLIGATION TO SELL.—After the date of
enactment of this subsection, no electric utility shall
be required to enter into a new contract or obliga-
tion to sell electric energy to a qualifying cogenera-
tion facility or a qualifying small power production
facility under this section if the Commission finds
that—
‘‘(A) competing retail electric suppliers are
willing and able to sell and deliver electric en-
ergy to the qualifying cogeneration facility or
qualifying small power production facility; and
‘‘(B) the electric utility is not required by
State law to sell electric energy in its service
territory.
‘‘(6) NO
EFFECT
ON
EXISTING
RIGHTS
AND
REMEDIES.—Nothing in this subsection affects the
rights or remedies of any party under any contract
or obligation, in effect or pending approval before
the appropriate State regulatory authority or non-
regulated electric utility on the date of enactment of
589
this subsection, to purchase electric energy or capac-
ity from or to sell electric energy or capacity to a
qualifying cogeneration facility or qualifying small
power production facility under this Act (including
the right to recover costs of purchasing electric en-
ergy or capacity).
‘‘(7) RECOVERY OF COSTS.—(A) The Commis-
sion shall issue and enforce such regulations as are
necessary to ensure that an electric utility that pur-
chases electric energy or capacity from a qualifying
cogeneration facility or qualifying small power pro-
duction facility in accordance with any legally en-
forceable obligation entered into or imposed under
this section recovers all prudently incurred costs as-
sociated with the purchase.
‘‘(B) A regulation under subparagraph (A) shall
be enforceable in accordance with the provisions of
law applicable to enforcement of regulations under
the Federal Power Act (16 U.S.C. 791a et seq.).
‘‘(n) RULEMAKING FOR NEW QUALIFYING FACILI-
TIES.—(1)(A) Not later than 180 days after the date of
enactment of this section, the Commission shall issue a
rule revising the criteria in 18 C.F.R. 292.205 for new
qualifying cogeneration facilities seeking to sell electric en-
ergy pursuant to section 210 of this Act to ensure—