New Jersey-2010-A3442-Amended

An Act establishing a long-term capacity agreement pilot program to promote construction of qualified ¹[in-State]¹ electric generation facilities, amending and supplementing P.L.1999, c.23.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. The Legislature finds and declares:

a. In 2007, PJM Interconnection, L.L.C., the firm that manages the regional electric power grid, changed the method of procuring capacity in the wholesale electricity market with the implementation of the reliability pricing model ¹[which, as estimated by the Board of Public Utilities, costs New Jersey ratepayers an additional $1 billion per year for capacity]¹;

b. The PJM reliability pricing model ¹[created additional barriers to entry for new, efficient generators, by imposing a one to three year term requirement for contracts entered into by new entrants. The maximum three-year term is insufficient to support the project financing necessary to develop new, efficient generation within the State] sought to create enhancements to the previously ineffective capacity procurement mechanism which had resulted in projected capacity deficiencies in New Jersey and other areas of the regional power grid. While the reliability pricing model has resulted in significant capacity additions in the form of new demand response resources, new energy efficiency resources, reversals of generation unit retirements, upgrades of existing generating units and certain new peaking facilities available to the region and the State, the reliability pricing model has not resulted in large additions of peaking facilities or any additions of intermediate or base load resources available to the region and the State¹;

c. The PJM reliability pricing model ¹[continues to undergo structural changes that make it unreliable as an indicator of the true cost of capacity and therefore unreliable as an incentive for developing new generation] could, through structural changes, provide necessary incentives, such as the expansion of the "New Entry Price Adjustment" mechanism for the construction of new capacity, including new intermediate and base load plants, by allowing new resources to qualify and receive a guaranteed capacity price for a longer period of time. However, the implementation of similar structural changes was previously denied by FERC and any future implementation is uncertain at this time¹;

d. To ¹[alleviate the cost burden and barriers to new entry
created by the PJM] address the lack of incentives under the¹ reliability pricing model, the construction of new, efficient ¹[, in-State]¹ generation must be fostered by State policy ¹[to avoid higher electricity prices, higher congestion, and reliability concerns] that ensures sufficient generation is available to the region, and thus the users in the State in a timely and orderly manner¹;

e. Due to PJM's lack of authority to order new generation as a means to mitigate local electrical system reliability concerns and solve other issues related to the lack of local generation, and since only PJM has the authority to order transmission system upgrades and expansions to mitigate electrical system reliability concerns caused by transmission system overloads or the lack of local generation being developed, ¹[New Jersey continues to send] New Jersey is experiencing an electric power capacity deficit and high power prices that may result in the loss of¹ jobs and investment ¹[out-of-state to] due to the necessity for the¹ upgrade ¹of¹ the transmission system to the west of New Jersey to ensure a reliable supply of electricity and capacity from generators located outside of New Jersey;

f. As a result of a lack of new, efficient ¹[, in-State]¹ electric ¹[generating] generation¹ facilities, New Jersey has become more reliant on ¹[out-of-state]¹ coal-fired power plants;

g. The PJM State of the Market Report for 2009 by the PJM Independent Market Monitor states that there ¹are¹ over 11,000 megawatts ("MW") of coal-fired units at risk of retirement due to their inability to cover their avoided costs;

h. ¹[Many of New Jersey's in-State generating facilities, as a result of new emission reduction requirements, will need to have installed new emissions control technology or retire them by April 30, 2015. In one instance, the rule will have a significant impact on New Jersey's in-State fleet of electric generation facilities, as the rule imposes nitrogen oxide ("NOx") emission limits that will likely require the retirement of up to 102 combustion turbines, representing approximately 2,800 MW, and five older New Jersey steam electric generating units, representing approximately 800 MW, by April 30, 2015;

i.]¹New Jersey's in-State fleet of electric generation facilities ¹[are] is¹ aging, with over 50 percent of these facilities being more than 30 years old and over 70 percent being more than 20 years old; and

¹[j. ] i.¹ Fostering and incentivizing the development of ¹a limited program for¹ new ¹[in-State]¹ electric generation facilities will ¹help ensure sufficient capacity to stabilize power prices to¹assist the State's economic development ¹[by creating numerous] and create¹ opportunities for employment in the energy sector while helping to reduce the cost and volatility of electricity prices in New Jersey.

2. Section 3 of P.L.1999, c.23 (C.48:3-51) is amended to read as follows:

3. As used in P.L.1999, c.23 (C.48:3-49 et al.):

"Assignee" means a person to which an electric public utility or another assignee assigns, sells or transfers, other than as security, all or a portion of its right to or interest in bondable transition property. Except as specifically provided in P.L.1999, c.23 (C.48:3-49 et al.), an assignee shall not be subject to the public utility requirements of Title 48 or any rules or regulations adopted pursuant thereto;

¹"Base load electric power generation facility" means an electric power generation facility intended to be operating at a greater than 50 percent capacity factor including, but not limited to, a combined cycle power facility and a combined heat and power facility;¹

"Base residual auction" means the auction conducted by PJM, as part of PJM's reliability pricing model, three years prior to the start of the delivery year to secure electrical capacity as necessary to satisfy the capacity requirements for that delivery year;

"Basic gas supply service" means gas supply service that is provided to any customer that has not chosen an alternative gas supplier, whether or not the customer has received offers as to competitive supply options, including, but not limited to, any customer that cannot obtain such service for any reason, including non-payment for services. Basic gas supply service is not a competitive service and shall be fully regulated by the board;

"Basic generation service" or "BGS" means electric generation service that is provided, to any customer that has not chosen an alternative electric power supplier, whether or not the customer has received offers for competitive supply options, including, but not limited to, any customer that cannot obtain such service from an electric power supplier for any reason, including non-payment for services. Basic generation service is not a competitive service and shall be fully regulated by the board;

"Basic generation service provider" or "provider" means a provider of basic generation service;

"Basic generation service transition costs" means the amount by which the payments by an electric public utility for the procurement of power for basic generation service and related ancillary and administrative costs exceeds the net revenues from the basic generation service charge established by the board pursuant to section 9 of P.L.1999, c.23 (C.48:3-57) during the transition period, together with interest on the balance at the board-approved rate, that is reflected in a deferred balance account approved by the board in an order addressing the electric public utility's unbundled rates, stranded costs, and restructuring filings pursuant to P.L.1999, c.23 (C.48:3-49 et al.). Basic generation service transition costs shall include, but are not limited to, costs of purchases from the spot market, bilateral contracts, contracts with non-utility generators, parting contracts with the purchaser of the electric public utility's divested generation assets, short-term advance purchases, and financial instruments such as hedging, forward contracts, and options. Basic generation service transition costs shall also include the payments by an electric public utility pursuant to a competitive procurement process for basic generation service supply during the transition period, and costs of any such process used to procure the basic generation service supply;

"Board" means the New Jersey Board of Public Utilities or any successor agency;

"Bondable stranded costs" means any stranded costs or basic generation service transition costs of an electric public utility approved by the board for recovery pursuant to the provisions of P.L.1999, c.23 (C.48:3-49 et al.), together with, as approved by the board: (1) the cost of retiring existing debt or equity capital of the electric public utility, including accrued interest, premium and other fees, costs and charges relating thereto, with the proceeds of the financing of bondable transition property; (2) if requested by an electric public utility in its application for a bondable stranded costs rate order, federal, State and local tax liabilities associated with stranded costs recovery or basic generation service transition cost recovery or the transfer or financing of such property or both, including taxes, whose recovery period is modified by the effect of a stranded costs recovery order, a bondable stranded costs rate order or both; and (3) the costs incurred to issue, service or refinance transition bonds, including interest, acquisition or redemption premium, and other financing costs, whether paid upon issuance or over the life of the transition bonds, including, but not limited to, credit enhancements, service charges, overcollateralization, interest rate cap, swap or collar, yield maintenance, maturity guarantee or other hedging agreements, equity investments, operating costs and other related fees, costs and charges, or to assign, sell or otherwise transfer bondable transition property;

"Bondable stranded costs rate order" means one or more irrevocable written orders issued by the board pursuant to P.L.1999, c.23 (C.48:3-49 et al.) which determines the amount of bondable stranded costs and the initial amount of transition bond charges authorized to be imposed to recover such bondable stranded costs, including the costs to be financed from the proceeds of the transition bonds, as well as on-going costs associated with servicing and credit enhancing the transition bonds, and provides the electric public utility specific authority to issue or cause to be issued, directly or indirectly, transition bonds through a financing entity and related matters as provided in P.L.1999, c.23, which order shall become effective immediately upon the written consent of the related electric public utility to such order as provided in P.L.1999, c.23;

"Bondable transition property" means the property consisting of the irrevocable right to charge, collect and receive, and be paid from collections of, transition bond charges in the amount necessary to provide for the full recovery of bondable stranded costs which are determined to be recoverable in a bondable stranded costs rate order, all rights of the related electric public utility under such bondable stranded costs rate order including, without limitation, all rights to obtain periodic adjustments of the related transition bond charges pursuant to subsection b. of section 15 of P.L.1999, c.23 (C.48:3-64), and all revenues, collections, payments, money and proceeds arising under, or with respect to, all of the foregoing;

"British thermal unit" or "Btu" means the amount of heat required to increase the temperature of one pound of water by one degree Fahrenheit;

"Broker" means a duly licensed electric power supplier that assumes the contractual and legal responsibility for the sale of electric generation service, transmission or other services to end-use retail customers, but does not take title to any of the power sold, or a duly licensed gas supplier that assumes the contractual and legal obligation to provide gas supply service to end-use retail customers, but does not take title to the gas;

"Buydown" means an arrangement or arrangements involving the buyer and seller in a given power purchase contract and, in some cases third parties, for consideration to be given by the buyer in order to effectuate a reduction in the pricing, or the restructuring of other terms to reduce the overall cost of the power contract, for the remaining succeeding period of the purchased power arrangement or arrangements;

"Buyout" means an arrangement or arrangements involving the buyer and seller in a given power purchase contract and, in some cases third parties, for consideration to be given by the buyer in order to effectuate a termination of such power purchase contract;

"Class I renewable energy" means electric energy produced from solar technologies, photovoltaic technologies, wind energy, fuel cells, geothermal technologies, wave or tidal action, and methane gas from landfills or a biomass facility, provided that the biomass is cultivated and harvested in a sustainable manner;

"Class II renewable energy" means electric energy produced at a resource recovery facility or hydropower facility, provided that such facility is located where retail competition is permitted and provided further that the Commissioner of Environmental Protection has determined that such facility meets the highest environmental standards and minimizes any impacts to the environment and local communities;

"Co-generation" means the sequential production of electricity and steam or other forms of useful energy used for industrial or commercial heating and cooling purposes;

¹"Combined cycle power facility" means a generation facility that combines two or more thermodynamic cycles, by producing electric power via the combustion of fuel and then routing the resulting waste heat by-product to a conventional boiler or to a heat recovery steam generator for use by a steam turbine to produce electric power, thereby increasing the overall efficiency of the generating facility;¹

"Combined heat and power facility" or "co-generation facility" means a generation facility which produces electric energy, steam, or other forms of useful energy such as heat, which are used for industrial or commercial heating or cooling purposes. A combined heat and power facility or co-generation facility shall not be considered a public utility;

"Competitive service" means any service offered by an electric public utility or a gas public utility that the board determines to be competitive pursuant to section 8 or section 10 of P.L.1999, c.23 (C.48:3-56 or C.48:3-58) or that is not regulated by the board;

"Commercial and industrial energy pricing class customer" or "CIEP class customer" means that group of non-residential customers with high peak demand, as determined by periodic board order, which either is eligible or which would be eligible, as determined by periodic board order, to receive funds from the Retail Margin Fund established pursuant to section 9 of P.L.1999, c.23 (C.48:3-57) and for which basic generation service is hourly-priced;

"Comprehensive resource analysis" means an analysis including, but not limited to, an assessment of existing market barriers to the implementation of energy efficiency and renewable technologies that are not or cannot be delivered to customers through a competitive marketplace;

"Customer" means any person that is an end user and is connected to any part of the transmission and distribution system within an electric public utility's service territory or a gas public utility's service territory within this State;

"Customer account service" means metering, billing, or such other administrative activity associated with maintaining a customer account;

"Delivery year" or "DY" means the 12-month period from June 1st through May 31st ¹[and shall be] ,¹ numbered according to the calendar year in which it ends;

"Demand side management" means the management of customer demand for energy service through the implementation of cost-effective energy efficiency technologies, including, but not limited to, installed conservation, load management and energy efficiency measures on and in the residential, commercial, industrial, institutional and governmental premises and facilities in this State;

"Electric generation service" means the provision of retail electric energy and capacity which is generated off-site from the location at which the consumption of such electric energy and capacity is metered for retail billing purposes, including agreements and arrangements related thereto;

"Electric power generator" means an entity that proposes to construct, own, lease or operate, or currently owns, leases or operates, an electric power production facility that will sell or does sell at least 90 percent of its output, either directly or through a marketer, to a customer or customers located at sites that are not on or contiguous to the site on which the facility will be located or is located. The designation of an entity as an electric power generator for the purposes of P.L.1999, c.23 (C.48:3-49 et al.) shall not, in and of itself, affect the entity's status as an exempt wholesale generator under the Public Utility Holding Company Act of 1935, 15 U.S.C. s.79 et seq.;

"Electric power supplier" means a person or entity that is duly licensed pursuant to the provisions of P.L.1999, c.23 (C.48:3-49 et al.) to offer and to assume the contractual and legal responsibility to provide electric generation service to retail customers, and includes load serving entities, marketers and brokers that offer or provide electric generation service to retail customers. The term excludes an electric public utility that provides electric generation service only as a basic generation service pursuant to section 9 of P.L.1999, c.23 (C.48:3-57);

"Electric public utility" means a public utility, as that term is defined in R.S.48:2-13, that transmits and distributes electricity to end users within this State;

"Electric related service" means a service that is directly related to the consumption of electricity by an end user, including, but not limited to, the installation of demand side management measures at the end user's premises, the maintenance, repair or replacement of appliances, lighting, motors or other energy-consuming devices at the end user's premises, and the provision of energy consumption measurement and billing services;

"Electronic signature" means an electronic sound, symbol or process, attached to, or logically associated with, a contract or other record, and executed or adopted by a person with the intent to sign the record;

"Eligible generator" means a developer of a ¹[new, natural gas fired, combined-cycle] base load¹ electric power ¹[generating] generation¹ facility ¹[with a net summer output rating of 100 megawatts or larger, that is physically located within the State of New Jersey,] including, but not limited to, an on-site generation facility that qualifies as a capacity resource under PJM criteria but exclusive of a combustion turbine generation facility that is directly interconnected with the electric public utilities' transmission or distribution system,¹and that commences construction ¹of new generation¹ after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill);

"Energy agent" means a person that is duly registered pursuant to the provisions of P.L.1999, c.23 (C.48:3-49 et al.), that arranges the sale of retail electricity or electric related services or retail gas supply or gas related services between government aggregators or private aggregators and electric power suppliers or gas suppliers, but does not take title to the electric or gas sold;

"Energy consumer" means a business or residential consumer of electric generation service or gas supply service located within the territorial jurisdiction of a government aggregator;

"Energy efficiency portfolio standard" means a requirement to procure a specified amount of energy efficiency or demand side management resources as a means of managing and reducing energy usage and demand by customers;

"Energy year" or "EY" means the 12-month period from June 1st through May 31st ¹[and shall be] ,¹ numbered according to the calendar year in which it ends;

"Federal Energy Regulatory Commission" or "FERC" means the federal agency established pursuant to 42 U.S.C. s.7171 et seq. to regulate the interstate transmission of electricity, natural gas, and oil;

"Financing entity" means an electric public utility, a special purpose entity, or any other assignee of bondable transition property, which issues transition bonds. Except as specifically provided in P.L.1999, c.23 (C.48:3-49 et al.), a financing entity which is not itself an electric public utility shall not be subject to the public utility requirements of Title 48 or any rules or regulations adopted pursuant thereto;

"Gas public utility" means a public utility, as that term is defined in R.S.48:2-13, that distributes gas to end users within this State;

"Gas related service" means a service that is directly related to the consumption of gas by an end user, including, but not limited to, the installation of demand side management measures at the end user's premises, the maintenance, repair or replacement of appliances or other energy-consuming devices at the end user's premises, and the provision of energy consumption measurement and billing services;

"Gas supplier" means a person that is duly licensed pursuant to the provisions of P.L.1999, c.23 (C.48:3-49 et al.) to offer and assume the contractual and legal obligation to provide gas supply service to retail customers, and includes, but is not limited to, marketers and brokers. A non-public utility affiliate of a public utility holding company may be a gas supplier, but a gas public utility or any subsidiary of a gas utility is not a gas supplier. In the event that a gas public utility is not part of a holding company legal structure, a related competitive business segment of that gas public utility may be a gas supplier, provided that related competitive business segment is structurally separated from the gas public utility, and provided that the interactions between the gas public utility and the related competitive business segment are subject to the affiliate relations standards adopted by the board pursuant to subsection k. of section 10 of P.L.1999, c.23 (C.48:3-58);

"Gas supply service" means the provision to customers of the retail commodity of gas, but does not include any regulated distribution service;

"Government aggregator" means any government entity subject to the requirements of the "Local Public Contracts Law," P.L.1971, c.198 (C.40A:11-1 et seq.), the "Public School Contracts Law," N.J.S.18A:18A-1 et seq., or the "County College Contracts Law," P.L.1982, c.189 (C.18A:64A-25.1 et seq.), that enters into a written contract with a licensed electric power supplier or a licensed gas supplier for: (1) the provision of electric generation service, electric related service, gas supply service, or gas related service for its own use or the use of other government aggregators; or (2) if a municipal or county government, the provision of electric generation service or gas supply service on behalf of business or residential customers within its territorial jurisdiction;

"Government energy aggregation program" means a program and procedure pursuant to which a government aggregator enters into a written contract for the provision of electric generation service or gas supply service on behalf of business or residential customers within its territorial jurisdiction;

"Governmental entity" means any federal, state, municipal, local or other governmental department, commission, board, agency, court, authority or instrumentality having competent jurisdiction;

"Greenhouse gas emissions portfolio standard" means a requirement that addresses or limits the amount of carbon dioxide emissions indirectly resulting from the use of electricity as applied to any electric power suppliers and basic generation service providers of electricity;

¹"Incremental auction" means an auction conducted by PJM, as part of PJM's reliability pricing model, prior to the start of the delivery year to secure electric capacity as necessary to satisfy the capacity requirements for that delivery year, that is not otherwise provided for in the base residual auction;¹

"Leakage" means an increase in greenhouse gas emissions related to generation sources located outside of the State that are not subject to a state, interstate or regional greenhouse gas emissions cap or standard that applies to generation sources located within the State;

¹"Locational deliverability area" or "LDA" means one or more of the zones within the PJM region which are used to evaluate area transmission constraints and reliability issues including electric public utility company zones, sub-zones, and combinations of zones.¹

"Long-term capacity agreement pilot program" or "LCAPP" means a ¹[one-time]¹ pilot program established by the board that is limited to participation by eligible generators, to seek offers ¹[no later than February 4, 2011,]¹ for financially-settled standard offer capacity agreements ¹[that extend for a term of not less than 15 years, to quickly and safely construct new, natural gas fired, combined-cycle electric power generating facilities with a net summer output rating of 100 megawatts or larger within the State] with eligible generators pursuant to the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill)¹;

"Market transition charge" means a charge imposed pursuant to section 13 of P.L.1999, c.23 (C.48:3-61) by an electric public utility, at a level determined by the board, on the electric public utility customers for a limited duration transition period to recover stranded costs created as a result of the introduction of electric power supply competition pursuant to the provisions of P.L.1999, c.23 (C.48:3-49 et al.);

"Marketer" means a duly licensed electric power supplier that takes title to electric energy and capacity, transmission and other services from electric power generators and other wholesale suppliers and then assumes the contractual and legal obligation to provide electric generation service, and may include transmission and other services, to an end-use retail customer or customers, or a duly licensed gas supplier that takes title to gas and then assumes the contractual and legal obligation to provide gas supply service to an end-use customer or customers;

"Net proceeds" means proceeds less transaction and other related costs as determined by the board;

"Net revenues" means revenues less related expenses, including applicable taxes, as determined by the board;

"Offshore wind energy" means electric energy produced by a qualified offshore wind project;

"Offshore wind renewable energy certificate" or "OREC" means a certificate, issued by the board or its designee, representing the environmental attributes of one megawatt hour of electric generation from a qualified offshore wind project;

"Off-site end use thermal energy services customer" means an end use customer that purchases thermal energy services from an on-site generation facility, combined heat and power facility, or co-generation facility, and that is located on property that is separated from the property on which the on-site generation facility, combined heat and power facility, or co-generation facility is located by more than one easement, public thoroughfare, or transportation or utility-owned right-of-way;

"On-site generation facility" means a generation facility, and equipment and services appurtenant to electric sales by such facility to the end use customer located on the property or on property contiguous to the property on which the end user is located. An on-site generation facility shall not be considered a public utility. The property of the end use customer and the property on which the on-site generation facility is located shall be considered contiguous if they are geographically located next to each other, but may be otherwise separated by an easement, public thoroughfare, transportation or utility-owned right-of-way, or if the end use customer is purchasing thermal energy services produced by the on-site generation facility, for use for heating or cooling, or both, regardless of whether the customer is located on property that is separated from the property on which the on-site generation facility is located by more than one easement, public thoroughfare, or transportation or utility-owned right-of-way;

"Person" means an individual, partnership, corporation, association, trust, limited liability company, governmental entity or other legal entity;

"PJM Interconnection, L.L.C." or "PJM" means the privately-held, limited liability corporation that is a FERC-approved Regional Transmission Organization ¹, or its successor,¹ that manages the regional, high-voltage electricity grid serving all or parts of 13 states including New Jersey and the District of Columbia, operates the regional competitive wholesale electric market, manages the regional transmission planning process, and establishes systems and rules to ensure that the regional and in-State energy markets operate fairly and efficiently;

"Private aggregator" means a non-government aggregator that is a duly-organized business or non-profit organization authorized to do business in this State that enters into a contract with a duly licensed electric power supplier for the purchase of electric energy and capacity, or with a duly licensed gas supplier for the purchase of gas supply service, on behalf of multiple end-use customers by combining the loads of those customers;

"Public utility holding company" means: (1) any company that, directly or indirectly, owns, controls, or holds with power to vote, ten percent or more of the outstanding voting securities of an electric public utility or a gas public utility or of a company which is a public utility holding company by virtue of this definition, unless the Securities and Exchange Commission, or its successor, by order declares such company not to be a public utility holding company under the Public Utility Holding Company Act of 1935, 15 U.S.C. s.79 et seq., or its successor; or (2) any person that the Securities and Exchange Commission, or its successor, determines, after notice and opportunity for hearing, directly or indirectly, to exercise, either alone or pursuant to an arrangement or understanding with one or more other persons, such a controlling influence over the management or policies of an electric public utility or a gas public utility or public utility holding company as to make it necessary or appropriate in the public interest or for the protection of investors or consumers that such person be subject to the obligations, duties, and liabilities imposed in the Public Utility Holding Company Act of 1935 or its successor;

"Qualified offshore wind project" means a wind turbine electricity generation facility in the Atlantic Ocean and connected to the electric transmission system in this State, and includes the associated transmission-related interconnection facilities and equipment, and approved by the board pursuant to section 3 of P.L.2010, c.57 (C.48:3-87.1);

"Regulatory asset" means an asset recorded on the books of an electric public utility or gas public utility pursuant to the Statement of Financial Accounting Standards, No. 71, entitled "Accounting for the Effects of Certain Types of Regulation," or any successor standard and as deemed recoverable by the board;

"Related competitive business segment of an electric public utility or gas public utility" means any business venture of an electric public utility or gas public utility including, but not limited to, functionally separate business units, joint ventures, and partnerships, that offers to provide or provides competitive services;

"Related competitive business segment of a public utility holding company" means any business venture of a public utility holding company, including, but not limited to, functionally separate business units, joint ventures, and partnerships and subsidiaries, that offers to provide or provides competitive services, but does not include any related competitive business segments of an electric public utility or gas public utility;

"Reliability pricing model" or "RPM" means PJM's capacity-market model, and its successors, that secures capacity on behalf of electric load serving entities to satisfy load obligations not satisfied through the output of electric generation facilities owned by those entities ¹, or otherwise secured by those entities through bilateral contracts¹ ;

"Renewable energy certificate" or "REC" means a certificate representing the environmental benefits or attributes of one megawatt-hour of generation from a generating facility that produces Class I or Class II renewable energy, but shall not include a solar renewable energy certificate or an offshore wind renewable energy certificate;

"Resource clearing price" or "RCP" means the clearing price established for the applicable locational deliverability area by the base residual auction ¹or incremental auction, as determined by the optimization algorithm for each auction,¹ conducted by PJM as part of PJM's reliability pricing model;

"Resource recovery facility" means a solid waste facility constructed and operated for the incineration of solid waste for energy production and the recovery of metals and other materials for reuse;

"Restructuring related costs" means reasonably incurred costs directly related to the restructuring of the electric power industry, including the closure, sale, functional separation and divestiture of generation and other competitive utility assets by a public utility, or the provision of competitive services as such costs are determined by the board, and which are not stranded costs as defined in P.L.1999, c.23 (C.48:3-49 et al.) but may include, but not be limited to, investments in management information systems, and which shall include expenses related to employees affected by restructuring which result in efficiencies and which result in benefits to ratepayers, such as training or retraining at the level equivalent to one year's training at a vocational or technical school or county community college, the provision of severance pay of two weeks of base pay for each year of full-time employment, and a maximum of 24 months' continued health care coverage. Except as to expenses related to employees affected by restructuring, "restructuring related costs" shall not include going forward costs;

"Retail choice" means the ability of retail customers to shop for electric generation or gas supply service from electric power or gas suppliers, or opt to receive basic generation service or basic gas service, and the ability of an electric power or gas supplier to offer electric generation service or gas supply service to retail customers, consistent with the provisions of P.L.1999, c.23 (C.48:3-49 et al.);

"Retail margin" means an amount, reflecting differences in prices that electric power suppliers and electric public utilities may charge in providing electric generation service and basic generation service, respectively, to retail customers, excluding residential customers, which the board may authorize to be charged to categories of basic generation service customers of electric public utilities in this State, other than residential customers, under the board's continuing regulation of basic generation service pursuant to sections 3 and 9 of P.L.1999, c.23 (C.48:3-51 and 48:3-57), for the purpose of promoting a competitive retail market for the supply of electricity;

"Shopping credit" means an amount deducted from the bill of an electric public utility customer to reflect the fact that such customer has switched to an electric power supplier and no longer takes basic generation service from the electric public utility;

"Social program" means a program implemented with board approval to provide assistance to a group of disadvantaged customers, to provide protection to consumers, or to accomplish a particular societal goal, and includes, but is not limited to, the winter moratorium program, utility practices concerning "bad debt" customers, low income assistance, deferred payment plans, weatherization programs, and late payment and deposit policies, but does not include any demand side management program or any environmental requirements or controls;

"Societal benefits charge" means a charge imposed by an electric public utility, at a level determined by the board, pursuant to, and in accordance with, section 12 of P.L.1999, c.23 (C.48:3-60);

"Solar alternative compliance payment" or "SACP" means a payment of a certain dollar amount per megawatt hour (MWh) which an electric power supplier or provider may submit to the board in order to comply with the solar electric generation requirements under section 38 of P.L.1999, c.23 (C.48:3-87);

"Solar renewable energy certificate" or "SREC" means a certificate issued by the board or its designee, representing one megawatt hour (MWh) of solar energy that is generated by a facility connected to the distribution system in this State and has value based upon, and driven by, the energy market;

"Standard offer capacity agreement" or "SOCA" means a financially-settled transaction agreement, approved by board order, that provides for ¹[an]¹ eligible ¹[generator] generators¹ to receive ¹[a payment] payments¹ from ¹[one or more] the¹electric public utilities¹[, in the event the SOCP is greater than the RCP for any applicable delivery year, that provides for such payment to be equal to the difference between the SOCP and the RCP multiplied by the contract capacity, that provides]¹ for a defined amount of electric capacity for the term of the transaction of not less than ¹[15 years,] seven years or not more than 10 years,¹and ¹[that provides]¹ for such ¹[payment] payments¹ to be a fully non-bypassable charge, with such an order, once issued, being irrevocable;

"Standard offer capacity price" or "SOCP" means the capacity price that is fixed for the term of the SOCA and ¹which¹ is the ¹[minimum]¹ price to be received by ¹[an]¹ eligible ¹[generator] generators¹ under a board-approved SOCA;

"Stranded cost" means the amount by which the net cost of an electric public utility's electric generating assets or electric power purchase commitments, as determined by the board consistent with the provisions of P.L.1999, c.23 (C.48:3-49 et al.), exceeds the market value of those assets or contractual commitments in a competitive supply marketplace and the costs of buydowns or buyouts of power purchase contracts;

"Stranded costs recovery order" means each order issued by the board in accordance with subsection c. of section 13 of P.L.1999, c.23 (C.48:3-61) which sets forth the amount of stranded costs, if any, the board has determined an electric public utility is eligible to recover and collect in accordance with the standards set forth in section 13 of P.L.1999, c.23 (C.48:3-61) and the recovery mechanisms therefor;

"Thermal efficiency" means the useful electric energy output of a facility, plus the useful thermal energy output of the facility, expressed as a percentage of the total energy input to the facility;

"Transition bond charge" means a charge, expressed as an amount per kilowatt hour, that is authorized by and imposed on electric public utility ratepayers pursuant to a bondable stranded costs rate order, as modified at any time pursuant to the provisions of P.L.1999, c.23 (C.48:3-49 et al.);

"Transition bonds" means bonds, notes, certificates of participation or beneficial interest or other evidences of indebtedness or ownership issued pursuant to an indenture, contract or other agreement of an electric public utility or a financing entity, the proceeds of which are used, directly or indirectly, to recover, finance or refinance bondable stranded costs and which are, directly or indirectly, secured by or payable from bondable transition property. References in P.L.1999, c.23 (C.48:3-49 et al.) to principal, interest, and acquisition or redemption premium with respect to transition bonds which are issued in the form of certificates of participation or beneficial interest or other evidences of ownership shall refer to the comparable payments on such securities;

"Transition period" means the period from August 1, 1999 through July 31, 2003;

"Transmission and distribution system" means, with respect to an electric public utility, any facility or equipment that is used for the transmission, distribution or delivery of electricity to the customers of the electric public utility including, but not limited to, the land, structures, meters, lines, switches and all other appurtenances thereof and thereto, owned or controlled by the electric public utility within this State; and

"Universal service" means any service approved by the board with the purpose of assisting low-income residential customers in obtaining or retaining electric generation or delivery service.

(cf: P.L.2010, c.57, s.1)

3. (New section) Notwithstanding any provisions of the "Administrative Procedure Act," P. L. 1968, c.410 (C.52:14B-1 et seq.) to the contrary, the board shall ¹[, within 10 days of the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill),]¹ initiate ¹and complete¹ a proceeding ¹[on] in accordance with¹ the schedule set forth in this section ¹[allowing such proceeding to be completed]¹ to support the commencement of the LCAPP ¹[no later than January 31, 2011, and shall adopt, after notice, the opportunity for comment, and public hearing on the schedule set forth in this section, the following requirements for the LCAPP]¹:

¹[a. the establishment of the LCAPP that allows for offering financially-settled SOCAs for the purpose of facilitating the development of eligible generators;

b. the establishment of the LCAAP on the following schedule:

(1) the board shall complete the process to develop the SOCA no later than January 1, 2011; and

(2) SOCAs resulting from this process shall be awarded, executed and approved by the board with a written board order no later than February 25, 2011;

c. the participation of selected eligible generators with board approved, executed SOCAs in and clearing of the base residual auction conducted by PJM and scheduled to commence on May 2, 2011, as part of PJM's reliability pricing model for the delivery year 2015;

d. that it be limited to eligible generators in order to maximize economic benefits and job creation in the State;

e. that electric public utilities shall procure at least 500 megawatts and not more than 1500 megawatts of financially-settled SOCAs from the eligible generators;

f. that no single eligible generator or its affiliate may enter into more than 900 megawatts of financially-settled standard offer capacity agreements;

g.]

a. The board shall initiate the proceeding within 30 days of the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), and allow such proceeding to be completed no later than March 1, 2011 to allow for the commencement of the LCAPP. The SOCA or SOCAs resulting from that proceeding shall be awarded, executed and approved by the board with a written board order no later than April 15, 2011. The LCAPP shall require selected eligible generators with board approved and executed SOCAs to participate and be accepted as a capacity resource in the base residual auction conducted by PJM and scheduled to commence either on May 2, 2011, as part of PJM's reliability pricing model for the delivery year 2015, or May 2012, as part of PJM's reliability pricing model for the delivery year 2016;

b. The board shall require, within 10 days of the effective date of P.L. , c. (C. )(pending before the Legislation as this bill) that the electric public utilities within the State retain an agent to administer the LCAPP. The agent retained in accordance with this section shall be responsible for:

(1) assisting the board with the establishment of the LCAPP that allows for offering financially-settled SOCAs for the purpose of facilitating the development of eligible generators;

(2) prequalifying eligible generators for participation in the LCAPP through a showing of environmental, economic, and community benefits, and through demonstration of reasonable certainty of completion of development, construction and permitting activities necessary to meet the desired in-service date. Eligible generators must prequalify by April 1, 2011 and seek a SOCA by submitting an offer price and term by April 1, 2011; and

(3) recommending to the board the selection of winning eligible generators based on the net benefit to ratepayers of each prequalified eligible generator's offer price and term. Eligible generators that are located in an "area in need of redevelopment" in accordance with the "Local Redevelopment and Housing Law," P.L.1992, c.79 (C.40A:12A-1 et seq.) or a brownfield development area in accordance with the "Brownfield and Contaminated Site Remediation Act," P.L.2005, c.223 (C.58:10B-1 et seq.), and eligible generators that can enter commercial operation for delivery year 2015, shall have a weighted preference in addition to the net benefit to ratepayers ranking provided for in this subsection. Eligible generators shall also indicate the amount of capacity they are offering in the LCAPP.

c. In the proceeding initiated by the board pursuant to this section, the board shall adopt, after notice, the opportunity for comment, and public hearing, an order addressing the following requirements for the LCAPP:

(1) that electric public utilities shall procure 1,000 megawatts of financially-settled SOCAs from eligible generators, which shall include new generation capacity for the 2015 or 2016 delivery year;

(2)¹that eligible generators participating in the LCAPP shall be required to offer ¹[the maximum] a¹ quantity, in megawatts, ¹offer a price per megawatt-day, and a term¹ of the SOCA ¹[at the standard offer price of $232.75 per megawatt per day, which represents a discount to the most recent clearing price established by the base residual auction conducted by the PJM in May, 2010 as part of the PJM's reliability pricing model] to be evaluated by the agent and approved by the board¹;

¹[h.] (3)¹that ¹, taking into consideration the agent's recommendation,¹ the board ¹[select an] approve the selected¹ eligible ¹[generator] generators¹ from among the ¹qualified¹ eligible generators participating in the LCAPP for the award of ¹[a]¹ board-approved long-term financially-settled ¹[SOCA] SOCAs¹ for a term of not less than ¹[15 years.] seven years or more than 10 years at the offer price and term of each selected eligible generator;

(4) that the board establish a method and the contract terms for providing for selected eligible generators to receive payments from the electric public utilities for the difference between the SOCP and the RCP multiplied by the SOCA capacity in the event the SOCP is greater than the RCP for any applicable delivery year and for providing for electric public utilities to receive refunds from the selected eligible generators for the difference between the SOCP and the RCP multiplied by the SOCA capacity in the event the RCP is greater than the SOCP for any applicable delivery year;

(5) that no single eligible generator or its affiliate may enter into more than 700 megawatts of financially-settled standard offer capacity agreements;

(6) that the board establish criteria associated with the prequalification of eligible generators for participation in the LCAPP through a showing of environmental, economic, and community benefits, and through demonstration of reasonable certainty of completion of development, construction and permitting activities necessary to meet the desired in-service date;

(7) that the board establish a method for evaluating and comparing the net present value of each eligible generator's offer price and term;

(8) that the board establish a method for providing for a weighted preference for eligible generators in an "area in need of redevelopment" in accordance with the "Local Redevelopment and Housing Law," P.L.1992, c.79 (C.40A:12A-1 et seq.) or a brownfield development area in accordance with the "Brownfield and Contaminated Site Remediation Act," P.L.2005, c.223 (C.58:10B-1 et seq.), and a weighted preference for eligible generators that can enter commercial operation for delivery year 2015;¹

¹[i. that the selection of winning eligible generators give preference to those eligible generators located in "areas in need of redevelopment" in accordance with the "Local Redevelopment and Housing Law," P.L.1992, c.79 (C.40A:12A-1 et seq.), that based on the board's determination, can provide the greatest environmental, economic, and community benefits, and can demonstrate certainty of completion of development and permitting activities necessary to meet the desired in-service date;

j.] (9)¹that ¹[an]¹ eligible ¹[generator selected] generators approved¹ by the board, enter into a SOCA with each of the State's four electric public utilities provided that each electric public utility shall pay ¹[a] or receive refunds pursuant to an annually calculated¹ load-ratio share ¹of the capacity¹ of the SOCA ¹[price]¹ based upon each electric public utility's annual forecasted peak demand as determined by PJM;

¹[k.] (10)¹ that the resulting SOCA shall bind the electric public utilities to the board approved SOCAs with ¹[a]¹ selected eligible ¹[generator] generators¹ for ¹[not less than 15 years] the term of the SOCA¹;

¹[l. ] (11)¹ that the selected eligible generators with executed SOCAs shall offer the capacity, electricity, and ancillary services into the PJM wholesale markets as required by the PJM market rules; ¹and¹

¹[m.] (12)¹ that selected eligible generators with executed SOCAs shall participate in and clear the annual base residual auction conducted by the PJM as part of ¹[PJM's] its¹ reliability pricing model for each delivery year of the entire term of the agreement¹[;] .¹

¹[n. that the] d. The¹ board shall order the full recovery of all costs associated with the electric public utilities' resulting SOCAs ¹, and the costs of the agent retained pursuant to subsection b. of this section,¹ from ratepayers through a non-bypassable, irrevocable charge;

¹[(1) notwithstanding] e. Notwithstanding¹ any other provision of law, each ¹[LCAPP standard offer capacity agreement] SOCA¹ shall become irrevocable upon the issuance of such order ¹approving a SOCA¹; and

¹[(2) neither] f. Neither¹ the board or any other governmental entity shall have the authority, directly or indirectly, legally or equitably, to rescind, alter, repeal, modify or amend ¹a SOCA or¹ an LCAPP cost rate order, to revalue, re-evaluate ¹,¹ or revise the amount of LCAPP costs, or to determine that the LCAPP charges or the revenues to recover the LCAPP charges for such SOCAs are unjust or unreasonable ¹[; and

o. that the board shall have complete discretion to approve any and all SOCAs resulting from the LCAPP]¹.

¹4. (New section) If one or more provisions in P.L. , c. (C. ) (pending before the Legislation as this bill) are challenged in an administrative or judicial proceeding, the board may suspend the applicability of the challenged provision or provisions during the pendency of those proceedings until final resolution of the challenge and any appeals, and shall issue such orders and take such other actions as it deems appropriate to ensure that the provisions that are not challenged are implemented expeditiously to achieve the public purposes of P.L. , c. (C. )(pending before the Legislature as this bill).¹

¹5. (New section) Notwithstanding the provisions of any other law, rule, regulation, or order to the contrary, gas public utilities shall not impose a societal benefits charge pursuant to section 12 of P.L.1999, c.23 (C.48:3-60), or any other charge designed to recover the costs for social, energy efficiency, conservation, environmental, or renewable energy programs, on natural gas delivery service or commodity that is used to generate electricity that is sold for resale.¹

¹[4.] 6.¹ This act shall take effect immediately.