TITLE 26

Public Utilities

CHAPTER 1. Public Service Commission

Subchapter III-A. Renewable Energy Portfolio Standards

§ 351. Short title; declaration of policy.

(a) This subchapter shall be known and may be cited as the “Renewable Energy Portfolio Standards Act.”

(b) The General Assembly finds and declares that the benefits of electricity from renewable energy resources accrue to the public at large, and that electric suppliers and consumers share an obligation to develop a minimum level of these resources in the electricity supply portfolio of the state. These benefits include improved regional and local air quality, improved public health, increased electric supply diversity, increased protection against price volatility and supply disruption, improved transmission and distribution performance, and new economic development opportunities.

(c) It is therefore the purpose and intent of the General Assembly in enacting the Renewable Energy Portfolio Standards Act to establish a market for electricity from these resources in Delaware, and to lower the cost to consumers of electricity from these resources.

75 Del. Laws, c. 205, §  1

§ 352. Definitions.

As used in this subchapter:

(1) “Alternative compliance payment” means a payment of a certain dollar amount per megawatt hour, which a retail electricity supplier or municipal electric company may submit in lieu of supplying the minimum percentage from Eligible Energy Resources required under Schedule I in § 354 of this title.

(2) “Commission” means the Delaware Public Service Commission.

(3) “Community-owned energy generating facility” has the meaning given in § 1001 of this title.

(4) “Compliance year” means the calendar year beginning with June 1 and ending with May 31 of the following year, for which a retail electricity supplier or municipal electric company must demonstrate that it has met the requirements of this subchapter.

(5) “Customer-sited generation” means a generation unit that is interconnected on the end-use customer’s side of the retail electricity meter in such a manner that it displaces all or part of the metered consumption of the end-use customer.

(6) “DNREC” means Delaware Department of Natural Resources and Environmental Control.

(7) “Eligible energy resources” include the following energy sources located within or imported into the PJM region:

a. Solar photovoltaic or solar thermal energy technologies that employ solar radiation to produce electricity or to displace electricity use;

b. Electricity derived from wind energy;

c. Electricity derived from ocean energy including wave or tidal action, currents, or thermal differences;

d. Geothermal energy technologies that generate electricity with a steam turbine, driven by hot water or steam extracted from geothermal reservoirs in the earth’s crust;

e. Electricity generated by a fuel cell powered by renewable fuels;

f. Electricity generated by the combustion of gas from the anaerobic digestion of organic material;

g. Electricity generated by a hydroelectric facility that has a maximum design capacity of 30 megawatts or less from all generating units combined that meet appropriate environmental standards as determined by DNREC;

h. Electricity generated from the combustion of biomass that has been cultivated and harvested in a sustainable manner as determined by DNREC, and is not combusted to produce energy in a waste to energy facility or in an incinerator, as that term is defined in Title 7;

i. Electricity generated by the combustion of methane gas captured from a landfill gas recovery system; provided however, that:

1. Increased production of landfill gas from production facilities in operation prior to January 1, 2004, demonstrates a net reduction in total air emissions compared to flaring and leakage;

2. Increased utilization of landfill gas at electric generating facilities in operation prior to January 1, 2004;

A. Is used to offset the consumption of coal, oil, or natural gas at those facilities;

B. Does not result in a reduction in the percentage of landfill gas in the facility’s average annual fuel mix when calculated using fuel mix measurements for 12 out of any continuous 15-month period during which the electricity is generated; and

C. Causes no net increase in air emissions from the facility; and

3. Facilities installed on or after January 1, 2004, meet or exceed 2004 federal and state air emission standards, or the federal and state air emission standards in place on the day the facilities are first put into operation, whichever is higher.

(8) “End-use customer” means a person or entity in Delaware that purchases electrical energy at retail prices from a retail electricity supplier or municipal electric company.

(9) “Fund” means the Delaware Green Energy Fund.

(10) “GATS” means the generation attribute tracking system developed by PJM.

(11) “Generation attribute” means a nonprice characteristic of the electrical energy output of a generation unit including, but not limited to, the unit’s fuel type, geographic location, emissions, vintage and RPS eligibility.

(12) “Generation unit” means a facility that converts a fuel or an energy resource into electrical energy.

(13) “Municipal electric company” means a public corporation created by contract between 2 or more municipalities pursuant to provisions of Chapter 13 of Title 22 and the electric utilities that are municipally owned within the State of Delaware.

(14) “New renewable generation resources” means eligible energy resources first going into commercial operation after December 31, 1997.

(15) “PJM” or “PJM interconnection” means the regional transmission organization (RTO) that coordinates the movement of wholesale electricity in the PJM region, or its successors at law.

(16) “PJM region” means the area within which the movement of wholesale electricity is coordinated by PJM Interconnection. The PJM region is as described in the Amended and Restated Operating Agreement of PJM.

(17) “Qualified fuel cell provider” means an entity that:

a. By no later than the commencement date of commercial operation of the full nameplate capacity of a fuel cell project, manufactures fuel cells in Delaware that are capable of being powered by renewable fuels; and

b. Prior to approval of required tariff provisions, is designated by the Director of the Division of Small Business and the Secretary of DNREC as an economic development opportunity.

(18) “Qualified fuel cell provider project” means a fuel cell power generation project located in Delaware owned and/or operated by a qualified fuel cell provider under a tariff approved by the Commission pursuant to § 364(d) of this title.

(19) “Renewable energy credit” (“REC”) means a tradable instrument that is equal to 1 megawatt-hour of retail electricity sales in the State that is derived from eligible energy resources and that is used to track and verify compliance with the provisions of this subchapter.

(20) “Renewable energy portfolio standard” and “RPS” means the percentage of electricity sales at retail in the state that is to be derived from eligible energy resources.

(21) “Renewable fuel” means a fuel that is derived from eligible energy resources. This term does not include a fossil fuel or a waste product from a fossil fuel source.

(22) “Retail electricity product” means an electrical energy offering that is distinguished by its generation attributes and that is offered for sale by a retail electricity supplier or municipal electric company to end-use customers.

(23) “Retail electricity supplier” means a person or entity that sells electrical energy to end-use customers in Delaware, including but not limited to nonregulated power producers, electric utility distribution companies supplying standard offer, default service, or any successor service to end-use customers. A retail electricity supplier does not include a municipal electric company for the purposes of this subchapter.

(24) “Rural electric cooperative” means a nonstock, nonprofit, membership corporation organized pursuant to the federal Rural Electrification Act of 1936 [7 U.S.C § 901 et seq.] and operated under the cooperative form of ownership.

(25) “Solar Alternative Compliance Payment” means a payment of a certain dollar amount per megawatt-hour, which a retail electricity supplier or municipal electric supplier may submit in lieu of supplying the minimum percentage from solar photovoltaics required under Schedule I in § 354 of this title.

(26) “Solar Renewable Energy Credit” (“SREC”) means a tradable instrument that is equal to 1 megawatt-hour of retail electricity sales in the State that is derived from solar photovoltaic energy resources and that is used to track and verify compliance with the provisions of this subchapter.

(27) “Total retail sales” means retail sales of electricity within the State of Delaware exclusive of sales to any industrial customer with a peak demand in excess of 1,500 kilowatts.

(28) “Unsubscribed energy” means any community-owned energy generating facility percentage of output that is not allocated to any customer.

75 Del. Laws, c. 205, §  176 Del. Laws, c. 165, §§  1-378 Del. Laws, c. 99, §  181 Del. Laws, c. 49, § 1881 Del. Laws, c. 374, § 4783 Del. Laws, c. 178, § 1

§ 353. Renewable energy portfolio standards administration.

(a) The Delaware Public Service Commission shall determine, verify, and assure compliance with renewable energy portfolio standards established pursuant to this subchapter that apply to all retail electricity sales in the State, except retail electricity sales of municipal electric companies. Any rural electric cooperative that is opted-out of Commission regulation by its membership pursuant to § 223 of this title shall, for all purposes of administering and applying the provisions of this subchapter, be treated as a municipal electric company during any period of time that the rural electric cooperative is exempt from Commission regulation.

(b) The Commission shall implement renewable energy portfolio standards pursuant to this subchapter that apply to all retail electricity sales in the state except sales to any industrial customer with a peak demand in excess of 1,500 kilowatts.

(c) The Commission shall develop rules to transition the REC and SREC procurement responsibility set forth in § 354(e) of this title. The purpose of such rules shall be:

(1) To adequately protect electric suppliers that entered into contracts to provide RECs and SRECs to retail electric customers prior to the transition of REC and SREC procurement responsibility under § 354(e) of this title;

(2) To adequately protect against overpayment of the cost of RPS obligations for customers of electric suppliers who are parties to supply contracts that were entered into prior to the transition of REC and SREC procurement responsibility under § 354(e) of this title; and

(3) To adequately protect commission-regulated electric suppliers and customers thereof from having to incur alternative compliance payments or other costs that would have been avoided but for the failure of an electric supplier to continue retiring RECs or SRECs associated with its retail supply contracts existing at the time of the transition of REC and SREC procurement responsibility under § 354(e) of this title. To the extent such protection involves a temporary reduction to the RPS obligation or to the price of an alternative compliance payment required of a commission-regulated electric supplier made necessary by the failure described above, the Commission is authorized to make the necessary temporary reductions notwithstanding the RPS obligations otherwise required by this chapter.

(d) The Commission shall develop procedures for tracking the generation output of qualified fuel cell provider projects such that energy produced by such projects shall fulfill the commission-regulated electric company’s state- mandated REC and SREC requirements set forth in § 354 of this title as follows:

(1) Fulfillment of the equivalent of 1 REC for each megawatt-hour of energy produced by a qualified fuel cell provider project.

a. The commission-regulated electric company can use energy output produced by a qualified fuel cell provider project to fulfill a portion of SREC requirements at a ratio of 6MWH of RECs per 1MWH of SRECs. The commission-regulated electric company may utilize a portion of energy output from a qualified fuel cell provider project in any given year to fulfill no more than 30% of the SREC requirements unless:

1. Due to lack of SREC availability in the market, the alternative would be to incur alternative compliance payments; or

2. The SREC obligations set forth in Schedule I of § 354 of this title are increased, and then only to the extent necessary to fulfill the increased SREC obligations.

b. The Secretary of DNREC may, after coordination with the Commission and a commission-regulated electric company, adjust the requirements of this section including permitting a commission-regulated electric company participating in a commission-approved project to exceed the percentages set forth in this section.

c. The right of a commission-regulated electric company to use energy output produced by a qualified fuel cell provider project to fulfill its REC and SREC requirements in accordance with this section shall not expire until actually applied to fulfill such requirements.

(2) The commission-regulated electric company has the ability to apply the REC and SREC equivalent fulfillment benefits described in this section for 20MW in addition to the 30MW set forth in § 364 of this title for future customer sited applications of qualified fuel cell provider fuel cells. Separate tariff provisions must first be approved by the Commission for such installations above the original 30MW.

75 Del. Laws, c. 205, §  178 Del. Laws, c. 99, §  2

§ 354. Renewable energy portfolio standards, eligible energy resources and industrial exemption.

(a) The total retail sales of each Retail Electricity Product delivered to Delaware end-use customers by a commission-regulated utility or municipal electric company during any given compliance year shall include a minimum percentage of electrical energy sales with eligible energy resources and solar photovoltaics as follows:

SCHEDULE I
Compliance Year(beginning June 1st) Minimum CumulativePercentage from EligibleEnergy Resources Minimum CumulativePercentage from SolarPhotovoltaics*
2018 17.50% 1.75%
2019 19.00% 2.00%
2020 20.00% 2.25%
2021 21.00% 2.50%
2022 22.00% 2.75%
2023 23.00% 3.00%
2024 24.00% 3.25%
2025 25.00% 3.50%
2026 25.50% 3.75%
2027 26.00% 4.00%
2028 26.50% 4.25%
2029 27.00% 4.50%
2030 28.00% 5.00%
2031 30.00% 5.80%
2032 32.00% 6.60%
2033 34.00% 7.40%
2034 37.00% 8.40%
2035 40.00% 10.00%
* Minimum Percentage from Eligible Energy Resources Includes the Minimum Percentage from Solar Photovoltaics.

(b) Cumulative minimum percentage requirements of eligible energy resources and solar photovoltaics shall be established by Commission rules for compliance year 2036 and each subsequent year. The minimum percentages established by Commission rules may not be lower than those required for compliance year 2035 in Schedule I, subsection (a) of this section. Each of the rules setting such minimum percentage must be adopted at least 2 years before the minimum percentage being required.

(c), (d) [Repealed.]

(e) Beginning with compliance year 2012, commission-regulated electric companies shall be responsible for procuring RECs, SRECs and any other attributes needed to comply with subsection (a) of this section with respect to all energy delivered to such companies’ end use customers.

(f) For each commission-regulated electric company, retail electricity supplier with existing contractual electric supply obligation or municipal electric company, no more than 1% of each year’s total retail sales may be met from eligible energy resources that are not new renewable generation resources. In compliance year 2026, and for each compliance year thereafter, all eligible energy resources used to meet cumulative minimum percentage requirements set by the Commission rules shall be new renewable generation resources.

(g) A retail electricity supplier or municipal electric company shall not use energy used to satisfy another state’s renewable energy portfolio requirements for compliance with Schedule I of subsection (a) of this section.

(h) An applicant’s compliance with Schedule I of subsection (a) of this section shall be based on historical data, collected in a manner consistent with industry standard and, with respect to retail electricity suppliers, Commission regulations. A retail electricity supplier or municipal electric company shall meet the renewable energy portfolio standards by accumulating the equivalent amount of renewable energy credits and solar renewable energy credits that equal the percentage required under this section.

(i), (j) [Repealed.]

75 Del. Laws, c. 205, §  176 Del. Laws, c. 165, §  4(a), (b), 577 Del. Laws, c. 451, §§  1, 2, 4-1178 Del. Laws, c. 99, §§  3-683 Del. Laws, c. 3, § 1

§ 355. Renewable energy credits.

(a) Energy sold or displaced by customer-sited generation on or after June 1, 2006, may be used to create and accumulate renewable energy credits for the purposes of calculating compliance with the renewable energy portfolio standards established pursuant to this subchapter.

(b) Energy production from customer-sited eligible energy resource may also be used to demonstrate compliance, provided that the facilities are physically located in Delaware.

(c) Aggregate generation from small eligible energy sources, 100 kilowatts of capacity or less, may be used to meet the requirements of Schedule I of § 354(a) of this title, provided that the generators or their agents document the level of generation, as recorded by appropriate metering and power sales, on an annual basis.

75 Del. Laws, c. 205, §  1

§ 356. Multiple credits for specific energy sources.

(a) A retail electricity supplier or municipal electric company shall receive 300% credit toward meeting the minimum percentage from Eligible Energy Resources of Schedule I of the renewable energy portfolio standards established pursuant to this subchapter for energy derived from the following sources installed on or before December 31, 2014:

(1) Customer-sited solar photovoltaic physically located in Delaware; or

(2) A fuel cell powered by renewable fuels.

(b) A retail electricity supplier or municipal electric company shall receive 150% credit toward meeting the renewable energy portfolio standards established pursuant to this subchapter for wind energy installations sited in Delaware on or before December 31, 2012.

(c) A Commission-regulated electric company shall receive 350% credit toward meeting the renewable energy portfolio standards established pursuant to this subchapter for energy derived from off-shore wind energy installations sited off the Delaware coast on or before May 31, 2017.

(1) To be entitled to 350% credit, contracts for energy and renewable energy credits from such off-shore wind energy installations must be executed by Commission-regulated electric companies prior to commencement of construction of such installations.

(2) Commission-regulated electric companies shall be entitled to such multiple credits for the life of contracts for renewable energy credits from off-shore wind installations executed pursuant to this subsection.

(d) A retail electricity supplier shall receive an additional 10% credit toward meeting the renewable energy portfolio standards established pursuant to this subchapter for solar or wind energy installations sited in Delaware provided that a minimum of 50% of the cost of renewable energy equipment, inclusive of mounting components, are manufactured in Delaware.

(e) A retail electricity supplier shall receive an additional 10% credit toward meeting the renewable energy portfolio standards established pursuant to this subchapter for solar or wind energy installations sited in Delaware provided that the facility is constructed and/or installed with a minimum of 75% in-state workforce.

75 Del. Laws, c. 205, §  176 Del. Laws, c. 165, §  676 Del. Laws, c. 248, §  177 Del. Laws, c. 451, §  12

§ 357. Proportional credit for eligible landfill gas and biogas.

A retail electricity supplier or municipal electric company shall receive credit toward meeting renewable energy portfolio standards established pursuant to this subchapter for electricity derived from the fraction of eligible landfill gas or biogas combined with other fuels.

75 Del. Laws, c. 205, §  1

§ 358. Issuance of renewable energy credits; reporting requirement; alternative compliance payment.

(a) The Commission shall establish by regulation the mechanisms under which a REC and SREC shall be created and recorded with respect to the entity generating electricity using eligible energy resources for use in complying with the renewable energy portfolio standards of this subchapter. Once the GATS system is operational and the PJM Interconnection, or a related organization currently known as PJM Environmental Services, Inc. (PJM-ESI), begins issuing RECs and SRECs, the Commission may issue an order approving the use of RECs and SRECs issued by the PJM Interconnection or PJM-ESI for compliance with the renewable energy portfolio Standards of this subchapter.

(b) Beginning June 1, 2007, each retail electricity supplier shall submit an annual report to the Commission, on a form and by a date specified by the Commission, that:

(1) Demonstrates that the retail electricity supplier has complied with the renewable energy portfolio standards established pursuant to this subchapter and includes the submission of the required amount of renewable energy credits; or

(2) Demonstrates the amount of electricity sales for the compliance year by which the retail electricity supplier failed to meet the renewable energy portfolio standard.

(c) Beginning June 1, 2007, each municipal electric company shall submit an annual report to the Delaware Energy Office and the Controller General that:

(1) Demonstrates that the municipal electric company has complied with the RPS established pursuant to this subchapter and includes the submission of the required amount of renewable energy credits; or

(2) Demonstrates the amount of electricity sales for the compliance year by which the municipal electric company failed to meet the RPS.

(d) In lieu of standard means of compliance with this subchapter, any commission-regulated utility may pay into the Fund an alternative compliance payment of $25 for each megawatt-hour deficiency between the credits available and used by a commission-regulated utility in a given compliance year for eligible nonsolar renewable energy resources and the credits necessary for such commission-regulated utility to meet the year’s renewable energy portfolio standard. A municipal electric company may pay the alternative compliance payment into a fund established by its municipal members. If alternative compliance payments representing 15% or more of the total number of RECs for eligible nonsolar renewable energy resources are paid into the Fund for each of 2 consecutive compliance years, the minimum cumulative percentage from eligible energy resources specified in Schedule I of § 354(a) of this title remains at the percentage specified for the immediately preceding year and does not increase from that percentage until a year passes during which less than 15% of the REC obligation is satisfied by alternative compliance payments. After the year in which less than 15% of the REC obligation is satisfied by alternative compliance payments, the annual increases in Schedule I of § 354(a) of this title resume, starting from the percentage specified for the year immediately before the current compliance year. A freeze of the minimum cumulative percentage from eligible nonsolar technology does not permit a freeze of the minimum cumulative percentage from eligible solar energy resources.

(1)-(4) [Repealed.]

(e) In lieu of standard means of compliance with this subchapter, a commission-regulated utility may pay into the Fund a Solar Alternative Compliance Payment of $150 for each megawatt-hour deficiency between the credits available and used by a commission-regulated utility in a given compliance year and the credits necessary for such commission-regulated utility to meet the year’s Renewable Energy Portfolio Standard. A municipal electric company may pay the solar alternative compliance payment into a fund established by its municipal members. If solar alternative compliance payments representing 15% or more of the total number of SRECs are paid into the Fund for each of 2 consecutive compliance years, the minimum cumulative percentage from solar technology specified in Schedule I of § 354(a) of this title remains at the percentage specified for the immediately preceding year and does not increase from that percentage until a year passes during which less than 15% of the SREC obligation is satisfied by solar alternative compliance payments. After the year in which less than 15% of the total SREC obligation is satisfied by solar alternative compliance payments, the annual increases set forth in Schedule I of § 354(a) of this title resume, starting from the percentage specified for the year immediately before the current compliance year. A freeze of the minimum cumulative percentage from solar technology does not freeze the minimum cumulative percentage from eligible energy resources.

(1)-(3) [Repealed.]

(f) (1) Recovery of costs. — A retail electricity supplier or municipal electric company may recover, through a nonbypassable surcharge, actual dollar for dollar costs incurred in complying with a state mandated renewable energy portfolio standard, except that any compliance fee assessed pursuant to subsection (d) of this section shall be recoverable only to the extent authorized by paragraph (f)(2) of this section.

(2) A retail electricity supplier or municipal electric company may recover any alternative compliance payment if:

a. The payment of an alternative compliance payment is the least cost measure to ratepayers as compared to the purchase of eligible energy resources to comply with a renewable energy portfolio standard; or

b. There are insufficient eligible energy resources available for the electric supplier to comply with a renewable energy portfolio standard.

(3) Any cost recovered under this section shall be disclosed to customers at least annually on inserts accompanying customer bills.

75 Del. Laws, c. 205, §  176 Del. Laws, c. 165, §§  7-977 Del. Laws, c. 451, §§  3, 13-1983 Del. Laws, c. 3, § 2

§ 359. Renewable energy tracking system.

(a) The Commission shall establish, maintain or participate in a market-based renewable energy tracking system to facilitate the creation, and transfer of renewable energy credits among retail electricity suppliers. A municipal electric company may elect to participate in the tracking system established by the Commission and may elect to participate in the GATS system once it is operational.

(b) The Commission may contract with a for-profit or a nonprofit entity to administer, or assist in the administration of, the renewable energy tracking system required pursuant to this section.

(c) The renewable energy tracking system shall include a registry of information regarding all:

(1) Available renewable energy credits; and

(2) Renewable energy credit transactions among electric suppliers in the State, including:

a. The creation and application of renewable energy credits; and

b. The number of renewable energy credits sold or transferred.

(d) The renewable energy tracking system registry shall provide current aggregated information to retail electricity suppliers and the public on the status of renewable energy credits created, sold, or transferred in the State. Information contained in the renewable energy tracking system registry shall be available by computer network access through the Internet; provided, however, that the Commission may establish reasonable limitation on the disclosure of commercially-sensitive information.

75 Del. Laws, c. 205, §  1

§ 360. Renewable energy trading.

(a) A retail electricity supplier or municipal electric company may use accumulated renewable energy credits or solar renewable energy credits to meet the renewable energy portfolio standard established pursuant to this subchapter, and may sell or transfer any renewable energy credit or solar renewable energy credit not needed to meet said standards.

(b) An unused renewable energy credit or solar renewable energy credit shall exist for 3 years from the date created.

(c) The 3-year period referred in subsection (b) of this section above shall be tolled during any period that a renewable energy credit or solar renewable energy credit is held by the SEU as defined in § 8059 of Title 29.

(d) The Renewable Energy Taskforce shall be formed for the purpose of making recommendations about the establishment of trading mechanisms and other structures to support the growth of renewable energy markets in Delaware.

(1) The Taskforce shall comprise the following appointments:

a. Four appointments by the Secretary of DNREC, which shall include 1 representative from the renewable energy research and development industry, 1 representative from the local renewable energy manufacturing industry, and 1 representative from an environmental advocacy organization;

b. One appointment by the Commission;

c. One appointment by Delmarva Power & Light;

d. One appointment by the Delaware Electric Cooperative;

e. One appointment by municipal electric companies;

f. One appointment by the Sustainable Energy Utility;

g. One appointment by the Delaware Public Advocate; and

h. One appointment by the Delaware Solar Energy Coalition.

(2) The Taskforce shall be charged with making recommendations about and reporting on the following and matters related thereto:

a. Establishing balanced markets mechanisms for REC and SREC trading;

b. Establishing REC and SREC aggregation mechanisms and other devices to encourage the deployment of renewable, distributed renewable, and solar energy technologies, including community-owned energy generating facilities, in Delaware with the least impact on retail electricity suppliers, municipal electric companies and rural electric cooperatives;

c. After an analysis by the Taskforce, the annual progress towards achieving the minimum cumulative percentages for all renewable energy resources including, but not limited to, solar and other eligible energy resources and making appropriate recommendations based upon deliberate and factual analysis and study;

d. Minimizing the cost for complying with any portion of this subchapter based upon deliberate and factual analysis and study;

e. Establishing revenue certainty for appropriate investment in renewable energy technologies, including, but not limited to, consideration of long-term contracts and auction mechanisms;

f. Establishing mechanisms to maximize in-state renewable energy generation and local manufacturing; and

g. Ensuring that residential, commercial, and utility scale photovoltaic and solar thermal systems of various sizes, including community-owned energy generating facilities, are financially viable and cost-effective investments in Delaware.

(3) The Taskforce shall be formed by October 26, 2010, and be staffed by the Delaware Energy Office. The Taskforce shall make recommendations to the Commission, the Secretary of DNREC, the Board of Directors for rural electric cooperatives, and the pertinent local regulatory authorities on the abovementioned subjects for their consideration. Upon making these recommendations, the Commission, DNREC, the Board of Directors for rural electric cooperatives, or the pertinent local regulatory authorities, as appropriate, shall promulgate rules and regulations, or adopt policies, based on the Taskforce findings.

75 Del. Laws, c. 205, §  177 Del. Laws, c. 131, §§  6-877 Del. Laws, c. 451, §  2283 Del. Laws, c. 178, § 2

§ 361. Renewable energy credit transaction fee.

The Commission may impose an administrative fee on a retail electricity supplier with respect to a renewable energy credit transaction, but the amount of the fee may not exceed the Commission’s actual direct cost of processing the transaction. If a municipal electric company opt to use the Commission’s renewable energy credit tracking system, it shall be assessed the same transaction fees that the Commission assesses other retail electricity suppliers.

75 Del. Laws, c. 205, §  1

§ 362. Rules and regulations.

(a) The Commission shall adopt rules and regulations necessary to implement the provisions of this subchapter as it applies to retail electricity suppliers. The Commission shall make its regulations as consistent as possible with those of other states in the region with similar requirements in order to minimize the compliance burdens imposed by this subchapter and in order to avoid duplication of effort.

(b) [Repealed.]

75 Del. Laws, c. 205, §  177 Del. Laws, c. 451, §  2083 Del. Laws, c. 3, § 3

§ 363. Special provisions for municipal electric companies and rural electric cooperatives.

(a) Any municipal electric company and any rural electric cooperative may elect to exempt itself from the requirements of this subchapter, if it develops and implements a comparable program to the renewable energy portfolio standards for its ratepayers beginning in 2022.

(b) In the event that a municipal electric company or rural electric cooperative elects to exempt itself from the requirements of this subchapter, it shall submit a plan at the beginning of 2022 to its local regulatory authority, the Delaware General Assembly, and the Department of Natural Resources and Environmental Control detailing its approach to achieve a level of renewable energy penetration in its service territory, and shall submit an annual compliance report to its local regulatory authority, the Delaware General Assembly, and the Department of Natural Resources and Environmental Control detailing its progress toward yearly targets.

(c) The Board of Directors for a rural electric cooperative or local regulatory authority of a municipal electric company shall base renewable energy portfolio standard decisions on the need, value and feasibility of the renewable energy resources pertaining to the economic and environmental well being of their members. The Board of Directors for a rural electric cooperative or local regulatory authority of a municipal electric company shall continue to evaluate all renewable energy resources including but not limited to: wind, biomass, hydroelectric and solar and submit an annual report to the General Assembly and their membership as to their determination.

(d) In the event that a municipal electric company or rural electric cooperative elects to exempt itself, it shall either contribute to the Green Energy Fund at levels commensurate with other retail electricity suppliers or create an independent, self-administered fund separate from the Green Energy Fund to be used in support of energy efficiency technologies, renewable energy technologies, or demand side management programs, into which it shall make payments of at least $0.178 for each megawatt-hour it sells, transmits, or distributes in this State.

(e)-(i) [Repealed.]

(j) In pursuit of their renewable energy goals, a municipal electric company or rural electric cooperative shall receive all appropriate multiple credits for specific energy sources, as established under §§ 356 and 357 of this title and sited in Delaware for the life of contracts for renewable energy credits.

75 Del. Laws, c. 205, §  177 Del. Laws, c. 451, §  2183 Del. Laws, c. 3, § 4

§ 364. Special provisions for Public Service Commission-regulated electric companies.

(a) All costs arising out of contracts entered into by a commission-regulated electric company pursuant to § 1007(d) of this title shall be distributed among the entire Delaware customer base of such companies through an adjustable nonbypassable charge which shall be established by the Commission. Such costs shall be recovered if incurred as a result of such contracts unless, after Commission review, any such costs are determined by the Commission to have been incurred in bad faith, are the product of waste or out of an abuse of discretion, or in violation of law.

(b) All funds disbursed to a qualified fuel cell provider project by a commission-regulated electric company, including incremental site preparation costs incurred by qualified fuel cell provider project, shall be collected from the entire Delaware customer base of such company through adjustable nonbypassable charges which shall be established by the Commission. A commission-regulated electric company participating in a qualified fuel cell provider project shall collect and disburse funds solely as the agent for the collection and disbursement of funds for the project and shall have no liability except to comply with the tariff provisions to be established as set forth in subsection (d) of this section.

(c) All miscellaneous costs arising out of qualified fuel cell provider projects incurred by a commission-regulated electric company, including, but not limited to, filing costs, administrative costs and incremental site preparation costs, shall be distributed among the entire Delaware customer base of such company through adjustable nonbypassable charges which shall be established by the Commission. Such costs shall be recovered unless, after Commission review, any such costs are determined by the Commission to have been incurred in bad faith, are the product of waste or out of an abuse of discretion, or in violation of law.

(d) Before a commission-regulated electric company may collect any charges on behalf of a qualified fuel cell provider project that would entitle the commission-regulated electric company to reduce its REC and SREC requirements as provided for in § 353(d) of this title, the Commission must adopt tariff provisions applicable to such project.

(1) Tariff provisions enabling and obligating commission-regulated electric companies, acting in the role of an agent for collection and disbursement, to collect charges on behalf of a qualified fuel cell provider project shall be proposed jointly by the electric company and the qualified fuel cell provider and shall, at a minimum, provide for the following.

a. A project of 30MW nominal nameplate, and future potential additions of up to an additional 20MW nominal nameplate, not to exceed a total of 50MW nominal nameplate or 1,152 megawatt hours per day averaged on an annual basis. The total allowable 50MW of nominal nameplate shall be reduced by any customer sited installations referred to in § 353(d)(2) of this title or additional installations of qualified fuel cell provider fuel cells. Any additional MW beyond the 30MW project made pursuant to this section and § 353(d)(2) of this title must be reviewed and approved by the Commission.

b. A term of service of at least 20 years from commercial operation of the completed qualified fuel cell provider project.

c. The cost to customers of the commission-regulated electric company for each MWH of output produced by the project which, on a levelized basis at the time of Commission approval, does not exceed the highest cost source for combined energy, capacity and environmental attributes approved by the Commission for inclusion in the renewable portfolio of the commission-regulated electric company as of January 1, 2011.

d. Adjustments to funds to be collected from customers and distributed to the qualified fuel cell provider project that will also compensate the qualified fuel cell provider project for its costs of fuel to produce such output and that will reduce compensation to the qualified fuel cell provider project for any revenues received by the qualified fuel cell provider project for such output sold in the PJM or any successor market.

e. The requirement that the qualified fuel cell provider project must sell all energy, capacity, and ancillary services, produced by the project and any other output available or that becomes reasonably available to the qualified fuel cell provider project during the term of the project into the PJM or any PJM successor market. To the extent any additional output produced by the project, including but not limited to any product or environmental attribute from the project becomes available for sale in the PJM market, PJM successor market, or a market other than PJM or a PJM successor market, the qualified fuel cell provider project and commission-regulated electric company shall jointly propose additional provisions to the tariff designed to reduce the cost of the qualified fuel cell provider project to customers of the commission-regulated electric company.

f. The commission-regulated electric company shall, on behalf of a qualified fuel cell provider project, collect from its customers, through a nonbypassable charge provided for in subsections (b) and (c) of this section, any positive difference between the sum of:

1. The price for each MWH of output produced by the project plus

2. The cost of fuel to produce such output plus

3. Any costs incurred by the commission-regulated electric company arising out of the qualified fuel cell provider project minus the amount received by the qualified fuel cell provider project for the market sale of its output, and shall distribute such amount to the qualified fuel cell provider project.

g. That the commission-regulated electric company shall, on behalf of a qualified fuel cell provider project, distribute to its customers from the qualified fuel cell provider project, through a distribution mechanism to be established in a tariff, any positive difference between the amount received by the qualified fuel cell provider project for the market sale of its output minus the sum of:

1. The price established for each MWH of output from the project plus

2. The cost of fuel to produce such output plus

3. Any costs incurred by the commission-regulated electric company arising out of the qualified fuel cell provider project.

h. An average efficiency level that the fuel cells in a project must maintain.

i. A definition of the role of the commission-regulated electric company solely as the agent of a qualified fuel cell provider project, for the collection of funds and disbursement of such collected funds to qualified fuel cell provider project and to its customers.

j. The mechanism through which the commission-regulated electric company, on behalf of a qualified fuel cell provider project, shall collect from its customers, through a nonbypassable charge provided for in subsections (b) and (c) of this section, any difference between the sum of:

1. The price for each MWH of output produced by the project plus

2. The cost of fuel to produce such output plus

3. Any costs incurred by the commission-regulated electric company arising out of the qualified fuel cell provider project minus the amount received by the qualified fuel cell provider project for the market sale of its output.

k. The mechanism through which the commission-regulated electric company, on behalf of a qualified fuel cell provider project, shall distribute to its customers, through bill credits, any positive difference between the amount received by the qualified fuel cell provider project for the market sale of its output minus the sum of:

1. The price established for each MWH of output from the project plus

2. The cost of fuel to produce such output plus

3. Any costs incurred by the commission-regulated electric company arising out of the qualified fuel cell provider project.

l. A provision that protects a qualified fuel cell provider project from any future changes to this subchapter that would prevent a qualified fuel cell provider project that provides service under approved tariff provisions from recovering all amounts approved in such tariff. Such provision shall also include the obligation of the commission-regulated electric company, in the event of any such change to this subchapter, to collect from its customers amounts necessary to disburse, and to disburse to the qualified fuel cell provider project the full amount approved by the Commission in such preexisting tariff for each MWH of output produced by the qualified fuel cell provider project.

m. In the event of an event of force majeure that prevents the qualified fuel cell provider project from supplying output from at least 80% of the capacity of the qualified fuel cell provider project, or an interruption in fuel supply, in whole or in part, to the project, a mechanism through which,

1. During the event of force majeure, the commission-regulated electric company shall, on behalf of a qualified fuel cell provider project, collect from its customers and transfer to the qualified fuel cell provider project, a maximum of 70% of the price per MWH of output affected by the event of force majeure, and during an interruption in fuel supply, the commission-regulated electric company shall, on behalf of a qualified fuel cell provider project, collect from its customers and transfer to the qualified fuel cell provider project 100% of the price per MWH of output affected by the interruption.

2. During the event of force majeure or interruption in fuel supply, the commission-regulated electric company will continue to receive the full reduction in renewable portfolio standards that would have been provided by the output but for the event of force majeure or interruption in fuel supply.

(2) All tariff filings must be approved or denied by the Commission in whole, as proposed, without alteration or the imposition of any condition or conditions with respect thereto by the Commission. In determining whether to approve or deny the tariff, the Commission shall first ensure that the provisions of paragraphs (d)(1)a.-m. of this section have been satisfied. In addition, the Commission shall consider the incremental cost of the qualified fuel cell provider project to customers, applying at least the following factors:

a. Whether the qualified fuel cell provider project utilizes innovative baseload technologies,

b. Whether the qualified fuel cell provider project offers environmental benefits to the State relative to conventional baseload generation technologies,

c. Whether the qualified fuel cell provider project promotes economic development in the State, and

d. Whether the tariff as filed promotes price stability over the project term.

(3) A commission-regulated electric company and qualified fuel cell provider project may jointly modify proposed tariff provisions prior to any final ruling by the Commission.

(4) Notwithstanding § 306 of this title or any other provision of the Delaware Code to the contrary, any changes in rates or charges necessary to collect funds for disbursements or costs addressed in subsections (a)-(c) of this section through adjustable nonbypassable charges shall become effective 30 days after filing, absent a determination of manifest error by the Public Service Commission. The Commission may allow changes in rates or charges related to such adjustable nonbypassable charges to become effective less than 30 days after filing under such conditions as it may prescribe.

(5) Once approved by the Commission, such tariff provisions cannot be altered, nor may approval be repealed or modified, without the agreement of both the commission-regulated electric company and the qualified fuel cell provider project except that revisions to tariffs may be proposed by the commission-regulated electric company alone where:

a. Such revisions have no adverse effect on the qualified fuel cell provider project, and

b. Such revisions are for the purpose of complying with subsection (c) of this section.

(e) For purposes of this subchapter, all fuel cell units of a qualified fuel cell provider project under tariff with a commission-regulated electric company shall be considered to have been manufactured in Delaware as long as:

(1) By no later than the second anniversary of commercial operation of the full nameplate capacity of a fuel cell project, or December 31, 2016, whichever is earlier, either:

a. At least 80% of the installed nameplate capacity shall have been sourced from fuel cell units manufactured in a permanent manufacturing facility located in the State; or

b. No more than 10 megawatts of nameplate capacity from a fuel cell project shall be manufactured outside of the State; and

(2) Fuel cell manufacturer has executed an agreement with the Delaware Economic Development Office that a termination payment shall be made by the fuel cell manufacturer in the event that it ceases manufacturing operations in the State.

(f) Notwithstanding any other provision of the Delaware Code to the contrary, amounts due to the qualified fuel cell provider project and amounts collected by the commission-regulated electric company on behalf a qualified fuel cell provider project as a result of a qualified fuel cell provider project, and any other costs incurred by a commission-regulated electric company addressed in subsections (a) through (c) of this section shall constitute revenue property when, and to the extent that, a tariff authorizing the revenue charges have become effective in accordance with this section, and the revenue property shall thereafter continuously exist as property for all purposes with all of the rights and privileges of this section for the period and to the extent provided in the tariff, but in any event until the end of the term of service of the qualified fuel cell provider project.

(g) Notwithstanding any other provision of the Delaware Code to the contrary, any requirement under this section or a tariff under this section requiring that the Commission take action with respect to the subject matter of a project under this section shall be binding upon the Commission, as it may be constituted from time to time, and any successor agency exercising functions similar to the Commission and the Commission shall have no authority to rescind, alter, or amend that requirement in a subsequent order except as provided in this chapter.

(h) Notwithstanding any other provision of the Delaware Code to the contrary except as otherwise provided in this chapter, with respect to revenue property, the tariffs with respect to disbursements and costs arising out of the qualified fuel cell provider project and recovery of costs addressed in subsections (a) through (c) of this section shall be irrevocable and the Commission shall not have authority either by rescinding, altering, or amending the tariff provisions or otherwise, to revalue or revise for ratemaking purposes the disbursements and costs arising out of the qualified fuel cell provider project, or the costs of recovering such costs, determine that the disbursements and costs of the qualified fuel cell provider project are unjust or unreasonable, or in any way reduce or impair the value of revenue property either directly or indirectly by taking project revenue amounts, disbursements or costs arising out of the qualified fuel cell provider project into account when setting other rates for the commission-regulated electric company; nor shall the disbursements, amount of revenues or costs arising with respect thereto be subject to reduction, impairment, postponement, or termination. Except as otherwise provided in this section, the State of Delaware does hereby pledge and agree with the owners of revenue property and the commission-regulated electric company as the agent for collecting and disbursement on behalf of a qualified fuel cell provider project and in collecting costs incurred by the electric company addressed in subsections (a) through (c) of this section that the State shall neither limit nor alter the revenue property and all rights thereunder until the obligations, are fully met and discharged, provided nothing contained in this section shall preclude the limitation or alteration if and when adequate provision shall be made by law for the full recovery by the qualified fuel cell provider project and the commission-regulated electric company.

(i) Notwithstanding § 201 of this title or any other provision of the Delaware Code to the contrary, the courts of this State shall have exclusive original jurisdiction over any dispute between a qualified fuel cell provider project and a commission-regulated electric company involving the interpretation of the obligations between them as contained in Commission approved tariffs required by subsection (d) of this section.

76 Del. Laws, c. 248, §  278 Del. Laws, c. 99, §§  7, 8