Bill H.4500

FILED ON: 2/7/2024

HOUSE . . . . . . . . . . . . . . . No. 4500

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act supporting load aggregation programs in the Commonwealth.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 1 of chapter 164 of the General Laws, as appearing in the 2022 official edition, is hereby amended by inserting the following definition:

“Public Aggregator” means a municipality or group of municipalities that groups interested electricity customers within its municipal boundaries to facilitate or otherwise arrange the purchase and sale of electric energy and energy-related services through an electrical load aggregation program as set forth in section 134; provided, however, that public aggregator shall not mean a supplier.

SECTION 2. Section 134 of chapter 164 of the General Laws, as appearing in the 2022 official edition, is hereby amended by striking out subsection (a) and inserting in place thereof the following:

(a) Any municipality or any group of municipalities acting together within the commonwealth is hereby authorized to aggregate the electrical load of interested electricity consumers within its boundaries on an opt-out basis; provided, however, that such public aggregator shall not aggregate electrical load if such are served by an existing municipal lighting plant. Such public aggregator may group retail electricity customers to solicit bids, broker, and contract for electric power and energy services for such customers. Such public aggregator may enter into agreements for services to facilitate the sale and purchase of electric energy and other related services including renewable energy certificates, which may be considered contracts for energy or energy-related services under clause (33) of subsection (b) of section 1 of chapter 30B. Such service agreements may be entered into by a single city, town, county, or by a group of cities, towns, or counties.

A public aggregator which aggregates its electrical load and operates pursuant to the provisions of this section shall not be considered a utility engaging in the wholesale purchase and resale of electric power. Providing electric power or energy services to aggregated customers within a municipality or group of municipalities shall not be considered a wholesale utility transaction. The provision of aggregated electric power and energy services on an opt-out basis as authorized by this section shall be regulated by any applicable laws or regulations which govern aggregated electric power on an opt-out basis. Electric power or energy services offered to customers on an opt-in basis by load aggregation programs formed pursuant to this section shall not be regulated by the department.

A town may initiate a process to aggregate electrical load upon authorization by a majority vote of town meeting or town council. A city may initiate a process to authorize aggregation by a majority vote of the city council, with the approval of the mayor, or the city manager in a Plan D or Plan E city. Two or more municipalities may as a group initiate a process jointly to authorize aggregation by a majority vote of each particular municipality as herein required.

Upon an affirmative vote to initiate said process, a public aggregator establishing load aggregation on an opt-out basis pursuant to this section shall, in consultation with the department of energy resources, pursuant to section 6 of chapter 25A, develop a plan, for review by its citizens. Said plan shall be filed with the department by the public aggregator or an entity acting on its behalf, for its final review and approval, and shall include, without limitation, the following structural elements: the provision of universal access; the provision of reliability; the provision of equitable treatment of all classes or subclasses of customers; an organizational structure for program management and decision making; the provision of customer education; its method of setting and providing funding for program administration; description of how program rates will be set and structured; municipalities acting as a group shall include the methods for entering and terminating agreements with other entities; the rights and responsibilities of program participants; its intent to offer optional opt-in products or services; and its method for suspending or terminating the program. Said plan shall also include a general description of planned program implementation, however the public aggregator shall be responsible for and shall not be required to include in its plan the specifics of municipal aggregation program implementation that the public aggregator may change from time to time including, but not limited to, program funding levels;, specific uses of program funds;, rates;, supply terms;, timing of program start;, product offerings both on an opt-out and opt-in basis (if applicable), including any periodic changes in the price or composition of such product offerings; the format and mechanisms for delivering all notices to customers; accommodating consumers with limited English proficiency;, and contract terms and conditions for electric energy and energy-related services. The public aggregator may change any specifics of program implementation without being required to revise, amend or refile the approved aggregation plan with the department for approval; provided, however, that program implementation shall be consistent with the approved aggregation plan, the requirements for load aggregation set forth in this subsection, and shall not otherwise violate any other law of the commonwealth.

The department shall approve any plan submitted that complies with and is consistent with this subsection. The department shall confirm that the plan includes the structural elements described above and that the plan includes: a sample customer opt-out notice; a description of the manner in which customers will be provided notice of changes in price or product; a commitment to develop and continually maintain a website location dedicated specifically to information pertaining to the program; the process for notifying consumers of operational changes; plans for continuing to provide customers with information regarding ongoing program operations; and plans for communicating with customers with limited English proficiency. Prior to the department’s decision, the department shall conduct a public hearing. Failure by the department to approve a plan submitted under this section within 90 days of its submission date shall constitute approval of the plan. Such constructive approval shall not exempt the public aggregator from complying with all laws and regulations governing municipal aggregations and the provision of electric power and energy services on an opt-out basis. If after review, the department chooses to reject a plan, the department shall send to the public aggregator a denial order containing the reason for the rejection. The public aggregator may revise the plan to address such reasons and, if such revised plan is submitted not more than 30 days after the department’s denial order is issued, the department shall waive the requirement that the public aggregator consult with the department of energy resources regarding the revised plan and submit the revised plan for public review. The department shall review and approve, approve subject to modification, or reject any such revised plan not more than 30 days after receipt of the revised plan.

Notwithstanding any provision of this section to the contrary, the department shall not direct or otherwise require revisions to, or impose new requirements on, an approved plan without first providing the public aggregator with notice and opportunity for an adjudication pursuant to section 10 of chapter 30A. The public aggregator shall submit to the department for approval any revision that the public aggregator seeks to make to the structural elements of an approved plan, as described above, if affecting the product offered to consumers on an opt-out basis; provided, however, that the department shall review and approve any such revisions to the approved plan not more than 45 days after the receipt of the proposed revision.

The competitive supplier providing generation service to retail customers of an aggregation shall be exempt from (i) the quarterly information disclosure requirements set forth in 220 CMR 11.06(4)(c) or any successor regulation, and (ii) customer education, customer notification, and contract summary form requirements, each as pertaining to engagements directly between competitive suppliers and individual consumers, provided that the plan includes reasonable alternative means for providing customers with the same information as applicable to the program. The department shall waive department rules, regulations and directives concerning suppliers, brokers, and the provision of competitive supply that otherwise conflict or overlap with the duties of public aggregators established in this subsection.

After obtaining approval of its plan, the public aggregator may mail information and educational materials regarding its plan to each customer within the municipality; provided, however, that the informational materials shall be consistent with any law or regulation governing municipal aggregation. To enable such mailing, the electric distribution company shall provide to such municipality a current list of the names, mailing addresses, email address, and service addresses of all electric customers taking distribution service within the municipality.

After obtaining approval of its plan, the public aggregator may enroll customers in the electrical load aggregation program. Participation by any retail customer in a municipal or group aggregation program shall be voluntary. Customers that are receiving generation service from basic service shall be eligible for automatic enrollment in the opt-out product of the electrical load aggregation program. Following adoption of aggregation through the votes specified above, such program shall allow any retail customer to opt-out and choose any supplier or provider such retail customer wishes. Once enrolled in the program, any customer choosing to opt-out within 180 days shall do so without penalty and shall be entitled to receive basic service as if the customer was originally enrolled therein. After the initial automatic enrollment of customers upon the establishment of a load aggregation program in accordance with this subsection, the subsequent enrollment of new customers or accounts in the service territory of the aggregator shall be governed by the terms for enrollment set forth in the aggregator’s plan; provided, however, that the terms are consistent with the law or any regulations established by the department concerning aggregated service provided to customers on an opt-out basis. Nothing in this section shall be construed as authorizing any city or town or any municipal retail load aggregator to restrict the ability of retail electric customers to obtain or receive service from any authorized provider thereof.

It shall be the duty of the public aggregator to fully inform eligible customers in advance of automatic enrollment that they are to be automatically enrolled and that they have the right to opt-out of the program without penalty. In addition, such disclosure shall prominently state all charges to be made and shall include full disclosure of the basic service rate, how to access it, and the fact that it is available to them without penalty. Participating customers shall continue to be enrolled in the program unless they opt-out, provided however the public aggregator shall notify participating customers of any change in program rate or product and that they have the right to opt-out of the program without penalty. Consumers may also affirmatively elect to enroll in a product offered by the electrical load aggregation plan. The public aggregator shall provide copies of any such customer notices to the department’s consumer services division.

The public aggregator shall provide public notice 30 days, or as soon as the rate is finalized, in advance of any changes in program product, price, or content affecting participating consumers. Such notice shall include the new combination(s) of product(s) and price(s) to be offered by the program, and that participating consumers have the right to opt-out of the program. In the event of such changes, participating consumers shall continue to be enrolled in the program unless they opt-out.

Except as otherwise provided in this subsection, the public aggregator may deliver consumer disclosures and other communications about the electrical load aggregation program using one or more methods deemed most effective by the public aggregator. Each public aggregator shall file an annual report with the department that shall be limited to the average number of program participants and energy sales by month. The department of energy resources shall furnish, without charge, to any citizen a list of all other supply options available to them in a meaningful format that shall enable comparison of price and product. To facilitate the automatic enrollment and customer notification, the electric distribution company shall provide to each municipality the name, mailing address, and email address of all electric accounts within the municipality that are not otherwise receiving generation service from a competitive supplier. To facilitate the on-going management of the program, the electric distribution company shall provide to each municipality, upon request, account-specific usage data and contact information for customers currently enrolled in the municipality’s load aggregation program.

SECTION 3. The terms of Sections 1 and 2 shall be applicable to all plans pending before the department as of the effective date and the department’s failure to approve such plans within 90 days of the effective date shall constitute approval of said plans. Public aggregators with plans approved by or pending before the department as of the effective date shall be subject to the terms of Sections 1 and 2 but shall not be required to file amendments to said plans for department review and approval.

SECTION 4. The department shall, within 60 days of the effective date of this act, issue an order directing that each electric distribution company shall, upon request of a public aggregator with an approved plan, provide to such public aggregator a list of the names, mailing addresses, email addresses, and service addresses of all electric consumers taking distribution service within the municipality or municipalities.