AN ACT RELATIVE TO RESTRUCTURING THE ELECTRIC UTILITY INDUSTRY IN THE COMMONWEALTH, REGULATING THE PROVISION OF ELECTRICITY AND OTHER SERVICES, AND PROMOTING ENHANCED CONSUMER PROTECTIONS THEREIN.
Whereas , The deferred operation of this act would tend to defeat its purpose, which is to establish forthwith a comprehensive framework for the restructuring of the electric utility industry, to establish consumer electricity rate savings by March 1, 1998, and to make certain other changes in law, necessary or appropriate to effectuate important public purposes, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.
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. It is hereby found and declared that:
(a) electricity service is essential to the health and well-being of all residents of the commonwealth, to public safety, and to orderly and sustainable economic development;
(b) affordable electric service should be available to all consumers on reasonable terms and conditions;
(c) ratepayers and the commonwealth will be best served by moving from (i) the regulatory framework extant on July 1, 1997, in which retail electricity service is provided principally by public utility corporations obligated to provide ultimate consumers in exclusive service territories with reliable electric service at regulated rates, to (ii) a framework under which competitive producers will supply electric power and customers will gain the right to choose their electric power supplier;
(d) the existing regulatory system results in among the highest, residential and commercial electricity rates paid by customers throughout the United States;
(e) such extraordinarily high electricity rates have created significant adverse effects on consumers and on the ability of businesses located in the commonwealth to compete in regional, national, and international markets;
(f) the introduction of competition in the electric generation market will encourage innovation, efficiency, and improved service from all market participants, and will enable reductions in the cost of regulatory oversight;
(g) competitive markets in generation should (i) provide electricity suppliers with the incentive to operate efficiently, (ii) open markets for new and improved technologies, (iii) provide electricity buyers and sellers with appropriate price signals, and (iv) improve public confidence in the electric utility industry;
(h) since reliable electric service is of utmost importance to the safety, health, and welfare of the commonwealth's citizens and economy, electric industry restructuring should enhance the reliability of the interconnected regional transmission systems, and provide strong coordination and enforceable protocols for all users of the power grid;
(i) it is vital that sufficient supplies of electric generation will be available to maintain the reliable service to the citizens and businesses of the commonwealth; and that
(j) the commonwealth should ensure that universal service and energy conservation policies, activities, and services are appropriately funded and available throughout the commonwealth, and should guard against the exercise of vertical market power and the accumulation of horizontal market power;
(k) long-term rate reductions can be achieved most effectively by increasing competition and enabling broad consumer choice in generation service, thereby allowing market forces to play the principal role in determining the suppliers of generation for all customers;
(l) the primary elements of a more competitive electricity market will be customer choice, preservation and augmentation of consumer protections, full and fair competition in generation, and enhanced environmental protection goals;
(m) the interests of consumers can best be served by an expedient and orderly transition from regulation to competition in the generation sector consisting of the unbundling of prices and services and the functional separation of generation services from transmission and distribution services;
(n) the restructuring of the existing electricity system should not undermine the policy of the commonwealth that electricity bills for low income residents should remain as affordable as possible;
(o) the commonwealth should enter into a compact with the other New England states and New York State, that provides incentives for the public and investor owned electricity utilities located in such states to sell energy to retail customers in Massachusetts which adheres to enforceable standards and protocols and protects the reliability of interconnected regional transmission and distribution systems;
(p) since reliable electricity service depends on conscientious inspection and maintenance of transmission and distribution systems, to continue and enhance the reliability of the delivery of electricity, the regional network and the commonwealth, the department of telecommunications and energy should set stringent and comprehensive inspection, maintenance, repair, replacement, and system service standards;
(q) the transition to expanded customer choice and competitive markets may produce hardships for employees whose working lives were dedicated to their employment;
(r) it is preferable that possible reductions in the workforce directly caused by electricity restructuring be accomplished through collective bargaining negotiations and offers of voluntary severance, retraining, early retirement, outplacement, and related benefits;
(s) the transition to a competitive generation market should be orderly and be completed as expeditiously as possible, should protect electric system reliability, and should provide electricity corporation investors with a reasonable opportunity to recover prudently incurred costs associated with generation-related assets and obligations, within a reasonable and fair deregulation framework consistent with the provisions of this act;
(t) the recovery of such prudently incurred costs shall occur only after such electric companies take all practicable measures to mitigate stranded investments during the transition to a competitive market;
(u) such charges associated with the transition should be collected over a specific period of time on a non-bypassable basis and in a manner that does not result in an increase in rates to customers of electricity corporations;
(v) financial mechanisms should be available that allow electricity corporations to securitize that portion of their transition costs which cannot be divested in the marketplace and which concurrently minimize transition charges to consumers;
(w) the initial benefit of this transition to a competitive market shall result in consumer electricity rate reductions of at least 10 per cent beginning on March 1, 1998, as part of an aggregate rate reduction totaling at least 15 per cent upon the subsequent approval of divestiture and securitization; and
(x) the general court seeks, through the enactment of this legislation, to establish the parameters upon which a restructuring of the electricity industry shall be based and which reflects the public policy decisions for the commonwealth designed to balance the needs of all participants in the existing and future systems;
Therefore, it is found that it is in the public interest of the commonwealth to promote the prosperity and general welfare of its citizens, a public purpose for which public money may be expended, by restructuring the electricity industry in the commonwealth to foster competition and promote reduced electricity rates through the enactment of the following statutory changes.
SECTION 2. Section 91 of chapter 6 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 20, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 3. Section 18D of chapter 6A of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 49, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 4. Section 18E of said chapter 6A, as so appearing, is hereby amended by striking out, in line 3, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 5. Section 18F of said chapter 6A, as so appearing, is hereby amended by striking out, in lines 1 and 2, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 6. Said section 18F of said chapter 6A, as so appearing, is hereby further amended by striking out, in line 6, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 7. Chapter 10 of the General Laws is hereby amended by adding the following section:-
Section 62. There shall be established and set up on the books of the commonwealth a separate fund known as the Ratepayer Parity Trust Fund. There shall be credited to such fund all personal and corporate tax revenues attributable to the sale of assets relative to section 1A of chapter 164, all penalties and fines collected under the provisions of said section 1A and sections 1B to 1H, inclusive, of said chapter 164, and any income derived from investment of amounts credited to said fund. Amounts credited to said fund shall be received and held in trust and shall be used solely for the purpose of providing extraordinary assistance in achieving the required rate reduction provided by said section 1A to 1H, inclusive, of said chapter 164 to be expended, subject to appropriation, for said purposes. Prior to any appropriation being made by the general court, the department of telecommunications and energy shall file with the secretary of administration and finance a request for distribution of such monies in said fund as may be available for appropriation.
SECTION 8. Section 11E of chapter 12 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 6, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 9. Section 18A of chapter 21A of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 50, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 10. Said section 18A of said chapter 21A, as so appearing, is hereby further amended by striking out, in line 70, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 11. Said section 18A of said chapter 21A, as so appearing, is hereby further amended by striking out, in line 73, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 12. Said section 18A of said chapter 21A, as so appearing, is hereby further amended by striking out, in line 77, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 13. Said section 18A of said chapter 21A, as so appearing, is hereby further amended by striking out, in line 79, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 14. Section 7 of chapter 21C of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 57, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 15. Said section 7 of said chapter 21C, as so appearing, is hereby further amended by striking out, in line 67, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 16. Section 8 of said chapter 21C, as so appearing, is hereby amended by striking out, in line 13, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 17. Section 5 of chapter 21E of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 243, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 18. Section 19 of chapter 21G of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 2, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 19. Said section 19 of said chapter 21G, as so appearing, is hereby further amended by striking out, in line 4, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 20. Said section 19 of said chapter 21G, as so appearing, is hereby further amended by striking out, in line 10, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 21. Section 3D of chapter 23A of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 37, the word "or" and inserting in place thereof the following:- authority;.
SECTION 22. Said section 3D of said chapter 23A, as so appearing, is hereby further amended by striking out clause (G) and inserting in place thereof the following two clauses:-
(G) the designated area has a commercial vacancy rate of 20 per cent or more; or
(H) the municipality has sited within it a generation facility, as defined pursuant to section 1 of chapter 164, which has a market value at the time of sale that is at least 50 per cent less than its current net book value.
SECTION 23. Section 3E of said chapter 23A, as so appearing, is hereby amended by inserting after the letters "EOA", in line 15, the following words:- or the municipality has sited within it a generation facility, as defined pursuant to section 1 of chapter 164, which has a market value at the time of sale that is at least 50 per cent less than its current net book value.
SECTION 24. Section 32 of said chapter 23A, as so appearing, is hereby amended by striking out, in line 97, the word "enterprise." and inserting in place thereof the following words:- enterprise; and
(v) to issue electric rate reduction bonds, as defined in section 1H of chapter 164, for the benefit of any electric company, as defined in section 1 of chapter 164, determined to be eligible for said bond financing by the department of telecommunications and energy pursuant to said chapter 164. Such electric rate reduction bonds shall constitute "bonds" for purposes of sections 35D to 35K, inclusive, and section 36.
SECTION 25. Section 1 of chapter 24A of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 16, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 26. Said section 1 of said chapter 24A, as so appearing, is hereby further amended by striking out, in line 27, the word "and".
SECTION 27. Said section 1 of said chapter 24A, as so appearing, is hereby further amended by inserting after the word "five", in line 27, the following words:- ; and (4) the division of energy resources established under the provisions of section 1 of chapter 25A.
SECTION 28. Section 1 of chapter 25 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 1, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 29. Said chapter 25 is hereby further amended by striking out section 2, as so appearing, and inserting in place thereof the following section:-
Section 2. The department shall be under the supervision and control of a commission consisting of five members, one of whom shall have a background and expertise in electricity and energy issues, including issues related to natural gas, one of whom shall have a background and expertise in telecommunications issues, one of whom shall have a background and expertise in consumer protection and advocacy issues, and one of whom shall have a background and expertise in cable television issues. Beginning January 1, 1998, the commissioners shall be appointed by the governor for a term of three years; provided, however, that the initial term of appointment for two members shall be one year, the initial term of appointment for two members shall be two years, and the initial term of appointment for one member who shall be designated the chairman by the governor shall be three years. Each member shall hold office until the appointment and qualifications of his successor. The governor may remove any member for cause, including, but not limited to, any violation of the provisions of section 3, and shall fill any vacancy for the unexpired term. The commissioners shall devote their full time to the duties of their office. The governor shall designate one of said commissioners as chairman. Not more than three members of said commission shall be members of the same political party. Except as otherwise provided for in section 4, any decision made or order issued by the commission may be made by majority vote of a quorum of three members. In this chapter, said commission shall be called "the commission".
The initial base salary of the chairman of the commission shall be $90,000, and the initial base salary of the other members shall be $82,500. Said salaries shall be subject to step increases consistent with the provisions of sections 45 and 46C of chapter 30. The members shall receive necessary expenses incurred in the discharge of their official duties.
The commission shall make an annual report of its activities in January of each year to the general court.
SECTION 30. Said chapter 25 is hereby further amended by striking out section 3, as so appearing, and inserting in place thereof the following section:-
Section 3. Each commissioner shall be sworn to the faithful performance of his or her official duties. A commissioner shall not own, or be in the employ of, or own any stock in any regulated industry company, nor shall he or she be in any way directly or indirectly pecuniarily interested in or connected with any such regulated industry company or in the employ or connected with any person financing any regulated industry company. A commissioner shall not personally or through any partner or agent render any professional service or make or perform any business contract with or for any regulated industry company, except contracts made with the commissioners as common carriers for furnishing of services, nor shall he or she directly or indirectly receive any commission, bonus, discount, present, or reward from any regulated industry company.
For the purposes of this section and the provisions of chapter 164, a regulated industry company shall be defined as any corporation, city, town or other governmental subdivision, partnership or other organization, or any individual engaged within the commonwealth in any business which is, or the persons engaged in which are, in any respect made subject to the supervision or regulation of the department by any provision of law except chapter 110A of the General Laws and chapter 651 of the Acts of 1910, as amended.
SECTION 31. Section 4 of said chapter 25, as so appearing, is hereby amended by striking out, in line 16, the word "one" and inserting in place thereof the following word:- two.
SECTION 32. Said section 4 of said chapter 25, as so appearing, is hereby further amended by striking out, in line 17, the word "two" and inserting in place thereof the following word:- three.
SECTION 33. Said chapter 25 is hereby further amended by inserting after section 12E the following section:-
Section 12E½. There is hereby established within the department and under the supervision and control of the commission a division of telecommunications. The division, subject to such supervision and control, shall perform such functions as the commission may determine in relation to the administration, implementation, and enforcement of the department's authority over the telecommunications industry, including, but not limited to, the authority granted by chapters 25, 30A, 159, and 166. The chairman of the commission shall appoint and may remove a director of the division. The job group classification of the director's position, in accordance with section 46C of chapter 30, shall be determined by the chairman in consultation with the commissioner of administration. The commission shall annually prepare and submit to the governor and the general court, on or before the first Wednesday of November, a report of the division's activity and of the condition of the telecommunications industry within the commonwealth during the preceding fiscal year, together with recommendations which the commission considers necessary or desirable.
SECTION 34. Section 12M of said chapter 25 is hereby repealed.
SECTION 35. Section 17 of said chapter 25 is hereby repealed.
SECTION 36. Section 17A of said chapter 25 is hereby repealed.
SECTION 37. Said chapter 25 is hereby further amended by striking out section 18, as appearing in the 1996 Official Edition, and inserting in place thereof the following three sections:-
Section 18. The commission is hereby authorized to make an assessment against each electric, gas, cable television, telephone, and telegraph company under the jurisdictional control of the department and each generation company and supplier licensed to do business in the commonwealth by the department, based upon the intrastate operating revenues subject to the jurisdiction of the department of each of said companies derived from sales within the commonwealth of electric, gas, cable television, telephone, and telegraph service respectively, as shown in the annual report of each of said companies to the department.
Said assessments shall be made at a rate not exceeding two-tenths of 1 per cent of such intrastate operating revenues, as shall be determined and certified annually by the commission as sufficient to reimburse the commonwealth for funds appropriated by the general court for the operation and general administration of the department and for fringe benefits costs, including group life and health insurance, retirement benefits, paid vacations and holidays and sick leave, not to exceed 22 per cent of the amount attributable to personnel costs of employees of the department in the fiscal year in which the assessments are made, exclusive of funds appropriated by the general court for the transportation division. The funds may be used to compensate consultants in hearings on petitions filed by companies subject to assessment under this section. Any funds unexpended in any fiscal year for the purposes for which such assessments were made shall be credited against the assessment to be made in the following fiscal year and the assessment in the following fiscal year shall be reduced by any such unexpended amount. Assessments made under this section may be credited to the normal operating cost of each company. Such estimated assessments shall be collected by the department. Each company shall pay the amount assessed against it within 30 days after the date of the notice of estimated assessment from the department. The amount so collected shall be credited to the General Fund. The department subsequently shall make assessment adjustments for any variation between the estimated and actual amounts of such assessments. Such estimated and actual costs shall include an amount equal to the cost of fringe benefits as established by the commissioner of administration pursuant to section 6B of chapter 29.
For the purpose of providing the department with additional operating funds for the regulation of electric companies, the commission is authorized to make a separate assessment proportionally against each electric company under the jurisdictional control of the department and each generation company and supplier licensed by the department to do business in the commonwealth of each of said companies derived-from retail sales of electricity within the commonwealth as shown in the annual report of said companies to the department. Said additional assessment shall be made at a rate as shall be determined and certified annually by the commission as sufficient to produce not more than $1,750,000 in revenue for the fiscal year in which the assessment is made and shall be collected by the department.
A schedule of filing fees shall be determined annually by the commissioner of administration under the provisions of section 3B of chapter 7 for the following: (i) petitions for certificates of environmental impact and public need; provided, however, that such filing fee for any municipal corporation empowered to operate a municipal lighting plant under the provisions of section 35 or 36 of chapter 164 shall not exceed a maximum amount; and (ii) notices of intention to construct an oil facility, with a maximum amount per oil facility to be graduated in accordance with the expected capital investment in the facility.
Notwithstanding the provisions of section 20 of chapter 159 and section 94 of chapter 164, during any fiscal year in which such assessment is made, the department shall have no authority to suspend the effective date of any rate, price, or charge set forth in any schedule filed subsequent to January 1, 1977, by a telephone or telegraph company under the provisions of chapter 159, or by any gas or electric company under the provisions of section 94 of chapter 164 for a period longer than six months; provided, however, that in the event that such six-month period expires on a Sunday or legal holiday, any rate, price, or charge suspended under this section shall remain suspended until the day following the next day which is not a Sunday or legal holiday.
Section 19. Beginning on March 1, 1998, and for a period of five years thereafter, the department is authorized and directed to require a mandatory charge per kilowatt-hour for all consumers of the commonwealth, except those served by a municipal lighting plant, to fund energy efficiency activities, including, but not limited to, demand-side management programs. Said charge shall be the following amounts: 3.3 mills ($0.0033) per kilowatt-hour for calendar year 1998; 3.1 mills ($0.0031) per kilowatt-hour for calendar year 1999; 2.85 mills ($0.00285) per kilowatt-hour for calendar year 2000; 2.7 mills ($0.0027) per kilowatt-hour for calendar year 2001; and 2.5 mills ($0.0025) per kilowatt-hour for calendar year 2002; provided, however, that in authorizing such programs the department shall ensure that they are delivered in a cost-effective manner utilizing competitive procurement processes to the fullest extent practicable. At least 20 per cent of the amount expended for residential demand-side management programs by each distribution company in any year, and in no event less than the amount funded by a charge of 0.25 mills per kilowatt-hour, which charge shall also be continued in the years subsequent to 2002, shall be spent on comprehensive low-income residential demand-side management and education programs. A distribution company shall not be allowed to assess any other charge relative to energy efficiency programs which would exceed the levels permitted herein. The low-income residential demand-side management and education programs shall be implemented through the low-income weatherization and fuel assistance program network and shall be coordinated with all gas and distribution companies in the commonwealth with the objective of standardizing implementation. On March 1, 2001, the division of energy resources shall, in order to determine if energy investments shall continue beyond that time, review then-current market barriers, experience with competitive markets, and related environmental and economic goals. If said division determines that the continued operation of the programs delivers cost-effective, energy efficiency services, said division shall file, with the clerk of the house of representatives of the general court, legislation to extend for a time certain the authorization contained herein for such a charge to fund energy efficiency activities.
Section 20. (a)(1) Beginning on March 1, 1998, the department is hereby authorized and directed to require a mandatory charge per kilowatt-hour for all electricity consumers of the commonwealth, except those consumers served by a municipal lighting plant which does not supply generation service outside its own service territory or does not open its service territory to competition at the retail level, to support the development and promotion of renewable energy projects in accordance with the provisions of section 4E of chapter 40J. Said charge shall be the following amounts: three-quarters of one mill ($0.00075) per kilowatt-hour in calendar year 1998; one mill ($0.001) per kilowatt-hour in calendar year 1999; one and one-quarter mill ($0.00125) per kilowatt-hour in calendar year 2000; one mill ($0.001) per kilowatt-hour in calendar year 2001; three-quarters of one mill ($0.00075) per kilowatt-hour in calendar year 2002; and one-half of one mill ($0.0005) per kilowatt-hour in each calendar thereafter.
(2) In calendar year 1998 through calendar year 2002, the revenues derived from one-quarter of one mill ($0.00025) of the charge assessed pursuant to the preceding paragraph in each such year shall be set aside and expended pursuant to implementing the provisions of paragraph (2) of subsection (i) of section 4E of chapter 40J.
(b) In the fiscal year ending on June 30, 2001, the board of directors of the Massachusetts Technology Park Corporation shall, in consultation with the advisory committee established pursuant to subsection (h) of section 4E of chapter 40J, the department of telecommunications and energy, and the division of energy resources, review the adequacy of the monies generated by said mandatory charge in meeting the requirements of said section 4E of said chapter 40J. If, after such review, said board determines that an adjustment in said mandatory charge is necessary, said board shall file recommendations in the form of legislation with the clerk of the house of representatives. On or before January 1, 2002, said board shall submit to the house and senate committees on ways and means and the joint committee on government regulations a report which reviews in detail the activities and expenditures of the Massachusetts Renewable Energy Trust Fund to date and proposed activities and funding levels of said trust fund for the succeeding five years for review and approval thereby; provided, however, that said proposed activities continue to achieve the objectives of the program. Following receipt of the five-year report from said board, the house and senate committees on ways and means and the joint committee on government regulations shall meet jointly and with sufficient public notice for the purposes of conducting a public hearing to review the contents of said report; provided, however, that the five-year review shall be made available to the public no later than 45 days before said public hearing.
(c) The revenues generated by said mandatory charge shall be remitted to the Massachusetts Technology Park Corporation and deposited into the Massachusetts Renewable Energy Trust Fund, established pursuant to section 4E of chapter 40J. The public purpose of said trust fund shall be to generate the maximum economic and environmental benefits over time from renewable energy to the ratepayers of the commonwealth through a series of initiatives which exploits the advantages of renewable energy in a more competitive energy marketplace by promoting the increased availability, use, and affordability of renewable energy and by fostering the formation, growth, expansion, and retention within the commonwealth of preeminent clusters of renewable energy and related enterprises, institutions, and projects, which serve the citizens of the commonwealth.
SECTION 38. Section 1 of chapter 25A of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in lines 1 and 2, the words "executive office of economic affairs" and inserting in place thereof the following words:- office of consumer affairs and business regulation.
SECTION 39. Said section 1 of said chapter 25A, as so appearing, is hereby further amended by striking out, in lines 6 and 7, the words "secretary of economic affairs" and inserting in place thereof the following words:- director of consumer affairs and business regulation.
SECTION 40. Said section 1 of said chapter 25A, as so appearing, is hereby further amended by striking out, in lines 7 and 8, the words "secretary of economic affairs" and inserting in place thereof the following words:- director of consumer affairs and business regulation.
SECTION 41. Said section 3 of said chapter 25A, as so appearing, is hereby further amended by inserting after the word "form", in line 67, the following words:- , or any wholesaler or retail seller of electricity or natural gas.
SECTION 42. Section 5 of said chapter 25A, as so appearing, is hereby amended by inserting after the word "energy", in line 2, the following words:- the joint committee on government regulations.
SECTION 43. Section 6 of said chapter 25A, as so appearing, is hereby amended by inserting after the word "grants,", in line 19, the following words:- funds, monies,.
SECTION 44. Said section 6 of said chapter 25A, as so appearing, is hereby further amended by striking out, in line 24, the word "responsibilities." and inserting in place thereof the following:- responsibilities;.
SECTION 45. Said section 6 of said chapter 25A, as so appearing, is hereby further amended by striking out, in line 27, the word "chapter." and inserting in place thereof the following:- chapter;
(10) plan, develop, oversee, and operate programs to help consumers understand, evaluate, and select retail energy supplies and related services offered as a consequence of electric and gas utility restructuring, in accordance with the provisions of section 11D;
(11) provide technical assistance to municipalities and governmental bodies seeking assistance during the transition to a competitive market, including, but not limited to, the voluntary aggregation of their citizens' demand for electricity pursuant to section 134 of chapter 164; and
(12) intervene and advocate on behalf of small commercial and industrial users before the department of telecommunications and energy in any dispute between such businesses and generation or distribution companies, as defined pursuant to section 1 of chapter 164.
SECTION 46. Section 7 of said chapter 25A, as so appearing, is hereby amended by striking out, in line 4, the word "products" and inserting in place thereof the following words:- products, electricity, natural gas,.
SECTION 47. Said section 7 of said chapter 25A, as so appearing, is hereby further amended by inserting after the word "products,", in line 6, the following words:- electricity, natural gas,.
SECTION 48. Said section 7 of said chapter 25A, as so appearing, is hereby further amended by inserting after the second paragraph the following paragraph:-
All electric and gas companies, transmission companies, distribution companies, suppliers, and aggregators, as defined in section 1 of chapter 164, and suppliers of natural gas, including aggregators, marketers, brokers, and marketing affiliates of gas companies, excluding gas companies as defined in said section 1 of said chapter 164, engaged in distributing or selling electricity or natural gas in the commonwealth shall make accurate reports to the division of energy resources in such form and at such times, which shall be at least quarterly, as the division shall require pursuant to this section. Each such company, supplier, and aggregator shall report semi-annually to the division the average of all rates charged for default, low-income and standard offer service to each customer class and for each sub-class within the residential class, respectively; provided, however, that all such rate information so reported pursuant to this paragraph shall be deemed public information, and no such rate information shall be protected as a trade secret, confidential, competitively sensitive, or other proprietary information pursuant to section 5D of chapter 25. The division shall, in cooperation with the department of telecommunications and energy, develop and issue, by March first of each year, a report which shall detail the status in the previous calendar year of pricing disparities between customer class and separately within the residential class, regions of the commonwealth, and distribution companies and suppliers serving ratepayers; provided, however, that said report shall also include a comparison of each customer class in the commonwealth as compared with the same classes in each of the 49 other states and the District of Columbia. Said report shall analyze the effects of restructuring plans, filed with and approved by said department pursuant to section 1A of chapter 164, upon such price disparities. The division may include in such report any recommendations to address any such problems and price disparities.
SECTION 49. Said section 7 of said chapter 25A, as so appearing, is hereby further amended by striking out, in line 22, the word "products" and inserting in place thereof the following:- products, or any supplier of electricity or natural gas.
SECTION 50. Said chapter 25A, as so appearing, is hereby further amended by inserting after section 11C the following four sections:-
Section 11D. To enable retail customers to realize savings from electric utility restructuring, the commissioner, in consultation with local and state-wide consumer groups, is hereby authorized and directed to undertake activities, subject to appropriation, to assist consumers in understanding and evaluating their rights and choices with respect to retail electricity supplies and related services offered as a benefit of said restructuring. Said activities shall provide consumers with information that provides a consistent and reliable basis for comparing products and services offered in the electricity market and shall develop said activities in cooperation with the attorney general to assist in the detection and avoidance of unfair or deceptive marketing practices. Said activities may include, but shall not be limited to, (i) development of consumer education materials, including billing inserts, providing consumers with information in a clear and consistent manner empowering consumers to select their own electricity suppliers and products based on individual preferences, such as price, resource type, and environmental considerations and whether the generation company or supplier operates under collective bargaining agreements and whether such generation company or supplier operates with employees hired as replacements during the course of a labor dispute; (ii) collection and dissemination of accurate and comparable information derived from the uniform disclosure labeling system which shall identify, at a minimum, the price of power generation, the length and kind of contract, the mix of fuel and power generation sources, and the level of air emissions.
The division may establish and advertise a toll-free telephone hotline that shall be capable of responding to consumer questions and complaints about their electricity service and the transition to a competitive retail electricity market. The administration of any such hotline and consumer response service so established shall be coordinated with the department of telecommunications and energy and the office of the attorney general in order to prevent the duplication of similar services. The information made available to consumers by said hotline shall be fully coordinated and consistent with the information made available to consumers by said department and the office of the attorney general. Said hotline and consumer response services, or any portions thereof, may be contracted to third parties, provided that any such contracts shall be performance-based and subject to approval by the secretary of administration and finance. Any such hotline and consumer response administered by the division, the department of telecommunications and energy or any contracted party is hereby prohibited from promoting, endorsing or encouraging consumers to select or purchase from a particular provider, supplier, aggregator, broker or other purveyor of electricity and related services.
Consumer education activities proposed to be undertaken by the division pursuant to this section for a subsequent fiscal year shall be described in a plan to be submitted to the department of telecommunications and energy for review and approval no later than February 1 of each year. Said plan shall include a projected budget, including revenues sources, for the activities proposed by said plan that explains the basis for all costs and cost increases over the plan then in effect. The department, in reviewing said plan for approval, shall establish that said activities of the division are not duplicative and that the information made available to consumers thereby is consistent with the status of utility restructuring. Said plan shall also be submitted to the house and senate committees on ways and means and the joint committee on government regulations. The division shall recommend in the plan the termination of activities that are no longer necessary due to the status of utility restructuring or in the public interest. Said plan shall recommend the provision of services funded by the commonwealth through the division only to the extent that the private market cannot or does not adequately meet the information needs of retail customers as determined by said division pursuant to section 11E.
Section 11E. The division of energy resources is hereby authorized and directed to monitor any independent systems operator or power exchanges organized pursuant to the provisions of chapter 164. The division shall determine the extent to which said operators and exchanges serve the needs of retail customers and contribute to the achievement of energy efficiency and fuel diversity goals as said goals are identified by the division and the department of telecommunications and energy.
The analysis and publication of all data and information collected by the division, shall be conducted to inform consumers, energy suppliers, the department of telecommunications and energy, and the general court about the operation of retail markets and any deficiencies in the operation of those markets, and to recommend improvements to such. Said data and information shall be used by the division for the publication of periodic projections of the supply, demand, and price of energy on statewide and regional basis.
The division shall annually issue a report containing information on all issues of electricity system reliability, including, but not limited to, generation and transmission data detailing load and capacity, for the prior calendar year and forecasting potential future capacity excesses or deficits for the next five calendar years. The division shall utilize any and all information available to forecast potential capacity excesses or deficits, including, but not limited to, analyses by the independent system operator and other such data collected by the division pursuant to section 7. Said report shall contain (i) electricity spot price information for the previous calendar year, including, but not limited to, the average regional monthly spot price; (ii) a determination of the extent to which the energy markets are maintaining necessary levels of reliability; (iii) a determination of whether or not all customer classes are being adequately served by competitive energy markets; (iv) a determination of the competitiveness of energy markets; including a determination whether or not the electric industry is providing consumers with the lowest prices possible within a restructured, competitive retail marketplace; and (v) a determination of the extent to which the energy markets are achieving the energy efficiency and fuel diversity goals of the commonwealth. Said report may be undertaken in combination with the report required pursuant to section 7, at the discretion of the commissioner. Said report shall identify any substantial fluctuation or pricing differences in the cost of electricity available to consumers, especially with respect to geographic regions and low and moderate income consumers. Said reports shall make recommendations for improving any deficiencies so identified in electricity energy markets, including non-competitive pricing situations, which are within the authority of the general court, the department of telecommunications and energy, the federal energy regulatory commission, or any other governmental body with jurisdiction over the deficiency so identified. The division shall submit such report to the joint committees on government regulations and energy, respectively, and the house and senate committees on ways and means no later than April thirtieth of each year, including drafts of legislation to implement recommendations within such report.
Section 11F. (a) The division of energy resources, shall establish a renewable energy portfolio standard for all retail electricity suppliers selling electricity to end-use customers in the commonwealth. By December 31, 1999, the division shall determine the actual percentage of kilowatt-hours sales to end-use customers in the commonwealth which is derived from existing renewable energy generating sources. Every retail supplier shall provide a minimum percentage of kilowatt-hours sales to end-use customers in the commonwealth from new renewable energy generating sources, according to the following schedule: (i) an additional 1 per cent of sales by December 31, 2003, or one calendar year from the final day of the first month in which the average cost of any renewable technology is found to be within 10 per cent of the overall average spot-market price per kilowatt-hour for electricity in the commonwealth, whichever is sooner; (ii) an additional one-half of 1 per cent of sales each year thereafter until December 31, 2009; and (iii) an additional 1 per cent of sales every year thereafter until a date determined by the division of energy resources. For the purpose of this subsection, a new renewable energy generating source is one that begins commercial operation after December 31, 1997, or that represents an increase in generating capacity after December 31, 1997, at an existing facility.
(b) For the purposes of this section, a renewable energy generating source is one which generates electricity using any of the following: (i) solar photovoltaic or solar thermal electric energy; (ii) wind energy; (iii) ocean thermal, wave, or tidal energy; (iv) fuel cells utilizing renewable fuels; (v) landfill gas; (vi) waste-to-energy which is a component of conventional municipal solid waste plant technology in commercial use; (vii) naturally flowing water and hydroelectric; and (viii) low-emission, advanced biomass power conversion technologies, such as gasification using such biomass fuels as wood, agricultural, or food wastes, energy crops, biogas, biodiesel, or organic refuse-derived fuel; provided, however, that after December 31, 1998, the calculation of a percentage of kilowatt-hours sales to end-use customers in the commonwealth from new renewable generating sources shall exclude clauses (vi) and (vii) herein. The division may also consider any previously operational biomass facility retrofitted with advanced conversion technologies as a renewable energy generating source. After conducting administrative proceedings, the division may add technologies or technology categories to the above list; provided, however, that the following technologies shall not be considered renewable energy supplies: coal, oil, natural gas except when used in fuel cells, and nuclear power.
Section 11G. The division of energy resources shall have the authority to oversee and coordinate ratepayer-funded energy efficiency programs. The division shall seek to achieve goals including, but not limited to, the following: (i) ensure that energy efficiency funds are allocated equitably among customer classes; (ii) ensure that there will be adequate support for "lost opportunity" efficiency programs in areas such as new construction, remodeling, and replacement of worn-out equipment; (iii) give due emphasis to statewide market transformation programs in order to systematically eliminate market barriers to energy efficiency goods and services; and (iv) provide weatherization and efficiency services to low-income customers. The division of energy resources shall annually file a report with the department of telecommunications and energy on the proposed funding levels for energy efficiency programs. The department shall review and approve energy efficiency expenditures after determining that implementation of such programs was cost-effective. Within one year of enactment of this legislation, the division shall conduct a public hearing process to investigate the role of the division in the oversight and statewide coordination of energy efficiency programs. Not later than March 1, 1999, the division shall promulgate rules and regulations necessary to implement the findings of this section.
SECTION 51. Section 39B of chapter 30 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 9, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 52. Said section 39B of said chapter 30, as so appearing, is hereby further amended by striking out, in line 13, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 53. Said section 39B of said chapter 30, as so appearing, is hereby further amended by striking out, in line 18, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 54. Said section 39B of said chapter 30, as so appearing, is hereby further amended by striking out, in line 32, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 55. Section 39C of said chapter 30, as so appearing, is hereby amended by striking out, in line 5, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 56. Section 39E of said chapter 30, as so appearing, is hereby amended by striking out, in line 8, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 57. Section 1 of chapter 30B of the General Laws, as so appearing, is hereby amended by striking out, in line 84, the words "materials; or" and inserting in place thereof the following:- materials;.
SECTION 58. Subsection (b) of said section 1 of said chapter 30B, as so appearing, is hereby amended by striking out clause (31) and inserting in place thereof the following three clauses:-
(31) an agreement for the purchase of photography services entered into by a public school;
(32) energy aggregation contracts entered into by a political subdivision of the commonwealth for energy or energy related services arranged or negotiated by such subdivision on behalf of its residents; or
(33) energy contracts entered into by a city or town or group of cities or towns or political subdivisions of the commonwealth, for energy or energy related services; provided, however, that within 15 days of the signing of a contract for energy or energy related services by a city, town, political subdivision, or group of cities, towns or political subdivisions said city, town, political subdivision, or group of cities, towns or political subdivisions shall submit to the department of telecommunications and energy, the division of energy resources, and the office of the inspector general a copy of the contract and a report of the process used to execute the contract.
SECTION 59. Section 6 of said chapter 30B, as so appearing, is hereby amended by adding the following subsection:-
(k) Notwithstanding the provisions of this section, with respect to contracts for energy-related services entered into by a city or town or group of cities or towns, the requests for proposals may include proposed contractual terms and conditions to be incorporated into the contract, some of which may be deemed mandatory or non-negotiable; provided, however, that the request for proposals may request proposals or offer options for fulfillment of other contractual terms. The chief procurement officer shall make a preliminary determination of the most advantageous proposal from a responsible and responsive offeror taking into consideration price and the evaluation criteria set forth in a request for proposals. The chief procurement officer may negotiate all terms of the contract not deemed mandatory or non-negotiable with such offeror. If after negotiation with such offeror the chief procurement officer determines that it is in the best interest of the governmental body, the chief procurement officer may determine the proposal which is the next most advantageous proposal from a responsible and responsive offeror taking into consideration price and the evaluation criteria set forth in the request for proposals, and may negotiate all terms of the contract with such offeror. The chief procurement officer shall award the contract to the most advantageous proposal from a responsible and responsive offeror taking into consideration price, the evaluated criteria set forth in the request for proposals, and the terms of the negotiated contract. The chief procurement officer shall award the contract by written notice to the selected offeror within the time for acceptance specified in the request for proposals. The parties may extend the time for acceptance by mutual agreement.
SECTION 60. Section 48 of chapter 31 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 10, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 61. Section 8 of chapter 38 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 9, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 62. Section 9 of said chapter 38, as so appearing, is hereby amended by striking out, in line 3, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 63. Section 22D of chapter 40 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in lines 36 and 37, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 64. Section 39C of said chapter 40, as so appearing, is hereby amended by striking out, in line 26, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 65. Section 3 of chapter 40A of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 37, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 66. Said section 3 of said chapter 40A, as so appearing, is hereby further amended by striking out, in line 46, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 67. The second paragraph of section 3 of chapter 40J of the General Laws, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following two sentences:- The corporation shall be governed and its corporate powers exercised by a board of directors, which shall consist of the director of the department of economic development or his designee, the secretary of administration or his designee, and the chancellor of the board of higher education or his designee, two members shall be appointed from a list of persons nominated by the president of the senate, two persons shall be appointed from a list of persons nominated by the speaker of the house of representatives, and 16 persons shall be appointed by the governor, eight of whom shall be chief executive officers of post-secondary educational institutions or distinguished members of the electronics engineering faculties of said institutions, or members of other appropriate faculties, and among said eight, at least three of whom shall be representatives of public post-secondary educational institutions, and six of whom shall be chief executive officers, chairpersons or chief engineers of businesses concerned with the design and manufacture of semi-conductor or micro-electronics components or products of another technology which may come within the purview of this chapter pursuant to the provisions of section 6, and two of whom shall be recommended by the Massachusetts AFL-CIO. Each director appointed from the list of nominations recommended by the president of the senate and the speaker of the house of representatives shall serve a term of two years to be coterminous with the legislative session of the general court.
SECTION 68. Said chapter 40J is hereby further amended by inserting after section 4D the following section:-
Section 4E. (a) There is hereby established and set up on the books of the corporation a separate trust fund to be known as the Massachusetts Renewable Energy Trust Fund, hereinafter referred to as the fund. The corporation shall hold the fund in an account or accounts separate from other funds in those provisions of the second and third paragraphs of section 5 as apply to the center fund in the corporation, and shall apply as well to the fund. There shall be credited to the fund all amounts collected pursuant to section 20 of chapter 25 and any income derived from the investment of amounts credited to the fund. All amounts credited to the fund shall be held in trust and used solely for activities and expenditures consistent with the public purpose of the fund as set forth in subsection (b) of this section; provided, however, that monies derived pursuant to paragraph (2) of subsection (a) of section 20 of chapter 25 shall be especially segregated for implementing the purposes of paragraph (2) of subsection (f) of this section.
(b) The board may draw upon monies in the fund for the public purpose of generating the maximum economic and environmental benefits over time from renewable energy to the ratepayers of the commonwealth through a series of initiatives which exploits the advantages of renewable energy in a more competitive energy marketplace by promoting the increased availability, use, and affordability of renewable energy, by making operational improvements to existing renewable energy projects and facilities which, in the determination of the board, have achieved results which would indicate that future investment in said facilities would yield results in the development of renewable energy more significant if said funds were made available for the creation of new renewable energy facilities, and by fostering the formation, growth, expansion, and retention within the commonwealth of preeminent clusters of renewable energy and related enterprises, institutions, and projects, which serve the citizens of the commonwealth.
(c) Public interests to be advanced through the board's actions shall include, but not be limited to, the following: (i) the development and increased use and affordability of renewable energy resources in the commonwealth and the New England region; (ii) the protection of the environment and the health of the citizens of the commonwealth through the prevention, mitigation, and alleviation of the adverse pollution effects associated with certain electricity generation facilities; (iii) the delivery to all consumers of the commonwealth of as many benefits as possible created as a result of increased fuel and supply diversity; (iv) the creation of additional employment opportunities in the commonwealth through the development of renewable technologies; (v) the stimulation of increased public and private sector investment in, and competitive advantage for, renewable energy and related enterprises, institutions, and projects in the commonwealth and the New England region; and (vi) the stimulation of entrepreneurial activities in these and related enterprises, institutions, and projects.
(d) In furtherance of these and other public purposes and interests, the board may expend monies from the fund to make grants, contracts, loans, equity investments, energy production credits, bill credits, or rebates to customers, to provide financial or debt service obligation assistance, or to take any other actions, in such forms, under such terms and conditions and pursuant to such selection procedures as the board deems appropriate and otherwise in a manner consistent with good business practices; provided, however, that the board shall generally employ a preference for competitive procurements; provided, further, that the board shall endeavor to leverage the full range of the resources, expertise, and participation of other state and federal agencies and instrumentalities in the design and implementation of programs under this section; and provided, further, that the board has determined and incorporated into the minutes of its proceedings a finding that such actions are calculated to advance the public purpose and public interests set forth in this section, including, but not limited to, the following: (i) the growth of the renewable energy-provider industry; (ii) the use of renewable energy by electricity customers in the commonwealth; (iii) public education and training regarding renewable energy; (iv) product and market development; (v) pilot and demonstration projects and other activities designed to increase the use and affordability of renewable energy resources by and for consumers in the commonwealth; (vi) the provision of financing in support of the development and application of related technologies at all levels, including, but not limited to, basic and applied research and commercialization activities; (vii) the design and making of improvements to existing renewable energy projects and facilities as defined herein which were in operation as of December 31, 1997; and (viii) matters related to the conservation of scarce energy resources.
The board shall, in consultation with the division of energy resources and the advisory committee established pursuant to subsection (i), adopt a detailed plan for the application of the fund in support of the design, implementation, evaluation, and assessment of a renewable energy program for the commonwealth, subject to periodic revision by the board, that ensures that the fund shall be employed to provide financial and non-financial resources to overcome barriers facing renewable energy enterprises, institutions, and projects in a prudent manner consistent with the public purposes and interests set forth in this section. Said plan, to the extent practicable, shall consist of at least four components: (i) "product and market development" to establish a foundation for growth and expansion of the commonwealth's renewable energy enterprises, institutions, and projects, including pilot and demonstration projects, production incentives, and other activities designed to increase the use and affordability of renewable energy in the commonwealth; (ii) "training and public information" to allow for the development and dissemination of complete, objective, and timely information, analysis, and policy recommendations related to the advancement of the public purposes and interests of the renewable energy fund; (iii) "investment" to support the growth and expansion of renewable energy enterprises, institutions, and projects; and (iv) "research and development" within the commonwealth and the New England region related to renewable energy matters. Said plan shall specify the expenditure of such monies from the fund to each of these component activities; provided, however, that monies so expended shall be used to develop such renewable energy projects with priority given to projects, institutions, and enterprises, first, within the commonwealth; next, to such activities within New York and the New England region which serve the regional power grid; and finally, all other such activities regardless of location. In developing said plan, the board is hereby authorized and directed to consult with and utilize the services of the department of telecommunications and energy and the division of energy resources for such technical assistance as the board deems necessary or appropriate to the effective discharge of the board's responsibilities and duties relative to the fund.
(e) Subject to the approval of the board, investment activity of monies from the fund may consist of the following: (i) an equity fund, to provide risk capital to renewable energy enterprises, institutions, and projects; (ii) a debt fund, to provide loans to energy enterprises, institutions, projects, intermediaries, and end-users; and (iii) a market growth assistance fund, to be used to attract private capital to the equity and debt funds. To implement these investment activities, the corporation is hereby authorized to retain, through a bid process, a public or private sector investment fund manager or managers, who shall have prior knowledge and experience in fund management and possess related skills in renewable energy and related technologies development, to direct the investment activity described herein and to seek other fund co-sponsors to contribute public and private capital from the commonwealth and other states; provided, however, that such capital is appropriately segregated. Said manager or managers, subject to the approval of the board, shall be authorized to retain necessary services and consultants to carry out the purposes of the fund. Said manager or managers shall develop a business plan to guide investment decisions, which shall be approved by the board prior to any expenditures from the trust fund and which shall be consistent with the provisions of the plan for the fund as adopted by the board.
(f)(1) For the purposes of expenditures from the fund, renewable energy technologies eligible for assistance shall include the following: solar photovoltaic and solar thermal electric energy; wind energy; ocean thermal, wave, or tidal energy; fuel cells; landfill gas; waste-to-energy which is a component of conventional municipal solid waste plant technology in commercial use; naturally flowing water and hydroelectric; low emission, advanced biomass power conversion technologies, such as gasification using such biomass fuels as wood, agricultural, or food wastes, energy crops, biogas, biodiesel, or organic refuse-derived fuel; and storage and conversion technologies connected to qualifying generation projects; provided, however, that expenditures related to waste-to-energy projects or facilities shall be limited to funds segregated pursuant to paragraph (2). Such funds may also be used for appropriate joint energy efficiency and renewable projects, as well as for investment by distribution companies in renewables and distributed generation opportunities, if consistent with the provisions of this section. The following technologies or fuels shall not be considered renewable energy supplies: coal, oil, natural gas except when used in fuel cells, and nuclear power.
(2) The board shall make available from monies in the fund in accordance with subsection (a) grants to municipalities and other governmental bodies to provide debt service assistance in conjunction with alleviating payment obligations incurred by said municipalities and other governmental bodies through an existing contractual agreement pursuant to the installation of pollution control technology and the implementation of other operational improvements to existing renewable energy projects and facilities in the commonwealth utilizing waste-to-energy technology as a component of municipal solid waste plant technology in commercial use, or the closure of any such existing facilities; provided, however, that such grants shall not exceed, in the aggregate, in any calendar year prior to calendar year 2003 the amount segregated in the fund pursuant to this paragraph in the calendar year previous thereto; provided further, that no such grants shall be made from any funds collected for the fund in any calendar year subsequent to the calendar year 2002; provided further, that in the distribution of such grant monies priority shall be given initially to municipalities and governmental bodies which have not previously received any monies, either through an appropriation or other such fiscal assistance from the state, to address debt service obligations relative to such pollution control technology improvements.
(g) The use by said corporation of monies to implement the provisions of this section shall be deemed to be an essential governmental function. Notwithstanding any general or special law to the contrary, the provisions of clause (a) of section 4A of this chapter shall apply to expenditures made from the fund; provided, however, that no such expenditure shall be deemed to involve a capital facility project; provided further, that no lease or license executed in furtherance of the public purpose and interests of the fund shall exceed 30 years in duration, and the duration and terms shall be developed in a manner consistent with good business practices; and provided further, that the corporation shall take no action which contravenes the commonwealth's reversionary interest in any of its real property. The corporation, any purchasing cooperative established thereby, and all members of any such purchasing cooperative may participate in any energy-related purchasing, aggregating, or similar program established and operated by the Massachusetts health and educational facilities authority and such participation shall be deemed to be in furtherance of an essential governmental function.
(h) The provisions of clause (k) of section 4 of this chapter shall not apply to disbursements from the trust fund.
(i) The governor shall, from the recommendation submitted by the chairman of the board relating to clause (i) of said section 4, appoint an advisory committee to assist the corporation in matters related to the fund and in the implementation of the provisions of this section. Said advisory committee shall include not more than 15 individuals with an interest in matters related to the general purpose and activities of the fund and the knowledge and experience in at least one of the following areas: electricity distribution, generation, supply, or power marketing; the concerns of commercial and industrial ratepayers; residential ratepayers, including low-income ratepayers; economics, financial or investment consulting expertise relative to the fund; regional environmental concerns; academic issues related to power generation, distribution or the development or commercialization of renewable energy sources; institutions of higher education; municipal or regional aggregation matters; and renewable and clean energy issues. The board shall consult with said advisory committee in discharging its obligations under this section.
(j) The books and records of the corporation relative to expenditures and investments of monies from the fund shall be subject to a biennial audit by the auditor of the commonwealth.
(k) Beginning with the fiscal year ending on June 30, 1999, on or by August 15th of each year, the board, in conjunction with the advisory committee, shall annually submit to the governor, the joint committees on government regulations and energy, respectively, and the house and senate committees on ways and means a report detailing the expenditure and investment of monies from the fund over the previous fiscal year and the ability of the fund to meet the requirements and provisions of this section, and any recommendations for improving the ability of the board, the corporation, and the fund to meet said requirements and provisions.
SECTION 69. Section 2A of chapter 59 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 55, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 70. Section 5 of said chapter 59, as so appearing, is hereby amended by inserting after the word "pipes", in line 257, the following words:- ; provided, however, that no property, except property entitled to a pollution control abatement pursuant to the provisions of the forty-fourth clause or a cogeneration facility as defined herein, shall be exempt from taxation if it is used in the manufacture or generation of electricity and it has not received a manufacturing classification effective on or before January 1, 1996. For the purposes of this section, a cogeneration facility shall be defined as any electrical generating unit having power production capacity which, together with any other power generation facilities located at the same site, is not greater than 30 megawatts and which produces electric energy and steam or other form of useful energy utilized for industrial, commercial, heating, or cooling purposes.
SECTION 71. Said chapter 59 is hereby further amended by inserting after section 38G the following section:-
Section 38H. For the purposes of this section, the term department shall refer to the department of telecommunications and energy.
(a) Any electric company as defined in section 1 of chapter 164 which generates electricity or any distribution company as defined in said section 1 which is authorized by the commonwealth or the department to recover transition cost amounts associated with past investments in generation facilities, or any generation company as defined in said section 1 or such company's affiliate, subsidiary, or parent company which currently has no binding agreement for tax payments or payments in lieu of taxes to municipalities in which the company's generation facilities are located shall be required to make transition payments to any municipality in which an affiliated generation facility, as defined in said section 1, or part thereof, is located and has been devalued for property tax payment purposes; provided, however, that where such a binding agreement for the payment of real and personal property taxes or the binding agreement for payment in lieu of such taxes has been entered into on or after the effective date of this section, such agreement shall govern, and such generation facility shall be exempt from the provisions of this section. Said payments shall offset any reductions of property taxes as a result of any devaluation of said generation facility. This section does not provide for any exemption from property tax and is in addition to such tax obligation.
For the purposes of this section, "fiscal year" shall be determined by sections 56 and 56A of chapter 44. For fiscal years 1998, 1999 and 2000, such payments shall be the difference between the property taxes for fiscal years 1998, 1999 and 2000, respectively, and the property taxes for fiscal year 1997. From fiscal year 2001 to fiscal year 2009, inclusive, such future payments shall be calculated as follows:
(i) For fiscal year 2001, such amount shall be equivalent to 90 per cent of the difference between the local property tax value of the property as of January 1, 1996 and the fair cash value of the property as of January 1, 2000, multiplied by the applicable commercial tax rate for the fiscal year 2001;
(ii) For fiscal year 2002, the calculated amount shall be equivalent to 80 per cent of the difference between the local property tax value of the property as of January 1, 1996 and the fair cash value of the property as of January 1, 2001, multiplied by the applicable commercial tax rate for the fiscal year 2002;
(iii) For fiscal year 2003, the calculated amount shall be equivalent to 70 per cent of the difference between the local property tax value of the property as of January 1, 1996 and the fair cash value of the property as of January 1, 2002, multiplied by the applicable commercial tax rate for the fiscal year 2003;
(iv) For fiscal year 2004, the calculated amount shall be equivalent to 60 per cent of the difference between the local property tax value of the property as of January 1, 1996 and the fair cash value of the property as of January 1, 2003, multiplied by the applicable commercial tax rate for the fiscal year 2004;
(v) For fiscal year 2005, the calculated amount shall be equivalent to 50 per cent of the difference between the local property tax value of the property as of January 1, 1996 and the fair cash value of the property as of January 1, 2004, multiplied by the applicable commercial tax rate for the fiscal year 2005;
(vi) For fiscal year 2006, the calculated amount shall be equivalent to 40 per cent of the difference between the local property tax value of the property as of January 1, 1996 and the fair cash value of the property as of January 1, 2005, multiplied by the applicable commercial tax rate for the fiscal year 2006;
(vii) For fiscal year 2007, the calculated amount shall be equivalent to 30 per cent of the difference between the local property tax value of the property as of January 1, 1996 and the fair cash value of the property as of January 1, 2006, multiplied by the applicable commercial tax rate for the fiscal year 2007;
(viii) For fiscal year 2008, the calculated amount shall be equivalent to 20 per cent of the difference between the local property tax value of the property as of January 1, 1996 and the fair cash value of the property as of January 1, 2007, multiplied by the applicable commercial tax rate for the fiscal year 2008;
(ix) For fiscal year 2009, the calculated amount shall be equivalent to 10 per cent of the difference between the local property tax value of the property as of January 1, 1996 and the fair cash value of the property as of January 1, 2008, multiplied by the applicable commercial tax rate for the fiscal year 2009.
Any such transition payments shall be included in the tax base for purposes of determining the levy ceiling and levy limit under section 21C of this chapter and in determining minimum residential factor and classification of property under section 1A of chapter 58 and section 56 of chapter 40. The department of revenue may issue guidelines for implementing the provisions of this subsection consistent with preserving the transition payment amounts in the local tax base for such purposes.
(b) A generation company which does not qualify for a manufacturing classification exemption pursuant to paragraph (3) of the clause Sixteenth of said section 5 may, in order to comply with its property tax liability obligation, execute an agreement for the payment in lieu of taxes with the municipality in which such generation facility is sited, and said company shall be exempt from property taxes, in whole or in part, as provided in any such agreements during the terms thereof. Any such agreement shall be the result of good faith negotiations and shall be the equivalent of the property tax obligation based on full and fair cash valuation. Any such negotiated amount shall be included in the tax base for purposes of determining the levy ceiling and levy limit under section 21C and in determining minimum residential factor and classification of property under section 1A of chapter 58 of the General Laws and section 56 of chapter 40 of the General Laws. The department of revenue may issue guidelines for implementing the provisions of this subsection consistent with preserving the negotiated payment amount in the local tax base for such purpose.
A city or town, acting by and through its governing body and board of assessors, is hereby authorized to enter into an agreement with the New England Power Company concerning the assessed valuation of all real and personal property presently owned by said company in said city or town for the fiscal years 1997 to 2001, inclusive; provided, however, that said agreement shall constitute a good faith attempt to value said property at its fair market value. Any such agreement as described herein executed prior to and in effect on December 1, 1997, is hereby ratified, validated, and confirmed in all respects and as though this act had been in full force and effect at the time of the execution of said agreement.
(c) In the case of any nuclear-powered electric generation facility in the commonwealth which exceeds 250 megawatts in size and which was owned in whole or in part by an electric company as of July 1, 1997, whether or not such generation facility is in service as of the date of the collection in rates of the transition costs, as defined pursuant to section 1 of chapter 164, such electric company shall not be subject to the provisions of subsections (a) and (b) of this section and, in order to be eligible to collect the full amount of transition costs as approved by the department pursuant to section 1G of said chapter 164, shall enter into an agreement to pay the host community payments in addition to taxes. Said payments in addition to taxes shall be made in equal payments on or before July 31, October 31, January 31, and April 30 each year by said electric company in the following amounts: for fiscal years 1999, 2000, and 2001 in an amount which equals the amount of tax payments remitted to such host community in fiscal year 1998. Such electric company shall, by the commencement of fiscal year 2002, have entered into an agreement to pay the host community payments in lieu of taxes for such generation facility; provided, however, that such agreement shall be executed as a result of good faith negotiations between the electric company and the host community; provided further, that such agreement shall cover a period of time the greater of which is the time until the licensed termination date of such facility, as included in the original license or in a renewal of such license, or 15 years beginning with fiscal year 1998. For the purposes of this subsection, the standard of good faith shall not require either party to agree to a proposal or require the making of concessions, but shall require active participation in negotiations and a willingness to make reasonable concessions and to provide justification for proposals, and a sincere effort to reach agreement. In the event that an agreement on such payment in lieu of taxes cannot be effected through such good faith negotiations on or before January 1, 1999, the parties shall submit to arbitration, and such arbitration shall be performed by the department of telecommunications and energy or by a state-certified professional arbitrator or arbitration firm appointed by said department and operating in accordance with any applicable rules and regulations. The department shall not approve any plan submitted by such electric company to utilize the provisions of securitization pursuant to section 1H of chapter 164 if such tax agreement has not been executed pursuant to the provisions of this subsection.
SECTION 72. Section 6 of chapter 64H of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 325, the words "Department of Public Utilities" and inserting in place thereof the following words:- department of telecommunications and energy.
SECTION 73. Said section 6 of said chapter 64H, as so appearing, is hereby further amended by striking out, in line 329, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 74. Section 3 of chapter 79 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 10, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 75. Section 5B of said chapter 79, as so appearing, is hereby amended by striking out, in line 13, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 76. Section 5C of said chapter 79, as so appearing, is hereby amended by striking out, in line 7, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 77. The third paragraph of section 13 of chapter 81A of the General Laws, as appearing in section 6 of chapter 3 of the acts of 1997, is hereby amended by striking out the second sentence and inserting in place thereof the following sentence:- Notwithstanding the provisions of any general or special law to the contrary, the relocation of the facilities of any public utility, including rail lines, in accordance with the provisions of this section shall be valid upon the filing of the plans thereof with the department of telecommunications and energy, if applicable.
SECTION 78. Section 40 of chapter 82 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in lines 111 and 112, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 79. Section 1 of chapter 83 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 39, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 80. Section 4 of said chapter 83, as so appearing, is hereby amended by striking out, in line 16, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 81. Section 1 of chapter 90 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 313, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 82. Section 1A of said chapter 90, as so appearing, is hereby amended by striking out, in line 5, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 83. Section 7B of said chapter 90, as so appearing, is hereby amended by striking out, in line 25, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 84. Said section 7B of said chapter 90, as so appearing, is hereby further amended by striking out, in line 124, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 85. Said section 7B of said chapter 90, as so appearing, is hereby further amended by striking out, in line 153, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 86. Said section 7B of said chapter 90, as so appearing, is hereby further amended by striking out, in line 252, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 87. Section 8A of said chapter 90, as so appearing, is hereby amended by striking out, in line 37, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 88. Said section 8A of said chapter 90, as so appearing, is hereby further amended by striking out, in line 41, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 89. Said section 8A of said chapter 90, as so appearing, is hereby further amended by striking out, in line 43, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 90. Said section 8A of said chapter 90, as so appearing, is hereby further amended by striking out, in line 47, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 91. Section 8A½ of said chapter 90, as so appearing, is hereby amended by striking out, in line 42, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 92. Section 9 of said chapter 90, as so appearing, is hereby amended by striking out, in line 13, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 93. Section 33 of said chapter 90, as so appearing, is hereby amended by striking out, in line 35, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 94. Section 40H of said chapter 90, as so appearing, is hereby amended by striking out, in line 2, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 95. Section 1 of chapter 90C of the General Laws, as so appearing, is hereby amended by striking out, in line 70, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 96. Section 43 of chapter 92 of the General Laws, as so appearing, is hereby amended by striking out, in line 2, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 97. Section 44 of said chapter 92, as so appearing, is hereby amended by striking out, in line 18, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 98. Section 50 of said chapter 92, as so appearing, is hereby amended by striking out, in line 6, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 99. Section 51 of said chapter 92, as so appearing, is hereby amended by striking out, in line 1, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 100. Section 67 of said chapter 92, as so appearing, is hereby amended by striking out, in lines 11 and 12, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 101. Section 68 of said chapter 92, as so appearing, is hereby amended by striking out, in line 6, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 102. Section 24 of chapter 93 of the General Laws, as so appearing, is hereby amended by striking out, in lines 10 and 11, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 103. Section 8 of chapter 110C of the General Laws, as so appearing, is hereby amended by striking out, in lines 3 and 4, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 104. Section 5K of chapter 111 of the General Laws, as so appearing, is hereby amended by adding the following subsection:-
(E) The department is hereby authorized to make an assessment against the operator of each existing and proposed nuclear power plant in the commonwealth in an amount equal to the costs incurred in the prior fiscal year by the department's radiation control program in the performance of its duties under this section. The department is hereby further authorized to make a collection, based on that assessment, of monies from said operators of nuclear power plants to defray the cost of such activities. Said amount shall not exceed $90,000 per annum, per facility, which shall be expended for any such facility, including, but not be limited to, a facilities located in the town of Rowe and in the town of Plymouth, and in Seabrook, New Hampshire. The department shall send notice of its assessment to the individual company against which the assessment is made, and said company shall pay such assessment within 30 days of the notice of the assessment; provided, however, that such company shall have a reasonable opportunity to submit objections concerning said assessment to the department for review. If, after completion of such review, the department determines the assessment is valid, the department shall issue a demand for such assessment, and the company against which such assessment is made shall pay such assessment immediately. If a company subject to assessment under this section fails to pay the assessment within 30 days of the notice of the assessment, or fails to pay the demand for assessment upon completion of the final review, whichever occurs later, the department may refer such matter to the department of revenue for the collection of the assessment in accordance with applicable enforcement provisions pursuant to chapter 62C. The amount so collected shall be deposited into the General Fund and credited to the department.
SECTION 105. Said chapter 111 is hereby further amended by inserting after section 142M the following section:-
Section 142N. For the purpose of preventing, mitigating, or alleviating impacts on the resources of the commonwealth and to the health of its citizens from pollutants emitted by fossil fuel-fired electric generation facilities serving retail customers in the commonwealth, the department of environmental protection shall, in consultation with the office of the attorney general and the department of telecommunications and energy, promulgate rules and regulations to adopt and implement for fossil fuel-fired electric generation facilities uniform generation performance standards of emissions produced per unit of electrical output on a portfolio basis for any pollutant determined by the department of environmental protection to be of concern to public health, and produced in quantity by electric generation facilities. The department of environmental protection shall have said uniform performance standards for at least one pollutant in effect on, but not before, May 1, 2003, unless three or more other northeastern states enact similar standards before that date, in which case the department of environmental protection may adopt such standards prior to May 1, 2003. The department of environmental protection shall issue annually, by March first of each year, an annual report detailing the implementation and compliance of said program, its standards, and its companion rules and regulations.
SECTION 106. Section 81R of chapter 112 of the General Laws, as so appearing, is hereby amended by striking out, in lines 82 and 83, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 107. Section 34A of chapter 132 of the General Laws, as so appearing, is hereby amended by striking out, in line 13, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 108. Said section 34A of said chapter 132, as so appearing, is hereby further amended by striking out, in line 25, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 109. Said section 34A of said chapter 132, as so appearing, is hereby further amended by striking out, in line 35, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 110. Said section 34A of said chapter 132, as so appearing, is hereby further amended by striking out, in line 37, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 111. Section 16 of chapter 132A of the General Laws, as so appearing, is hereby amended by striking out, in line 15, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 112. Section 7 of chapter 141 of the General Laws, as so appearing, is hereby amended by striking out, in line 18, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 113. Section 14 of chapter 142A of the General Laws, as so appearing, is hereby amended by striking out, in line 37, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 114. Section 71S of chapter 143 of the General Laws, as so appearing, is hereby amended by striking out, in lines 4 and 5, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 115. Section 57 of chapter 147 of the General Laws, as so appearing, is hereby amended by striking out, in line 18, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 116. Section 26E of chapter 148 of the General Laws, as so appearing, is hereby amended by striking out, in line 30, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 117. Section 148 of chapter 149 of the General Laws, as so appearing, is hereby amended by striking out, in line 26, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 118. Section 71F of chapter 151A of the General Laws, as so appearing, is hereby amended by inserting after the word "amount", in line 30, the following words:- ; provided, however, that.
SECTION 119. Said chapter 151A is hereby further amended by inserting after section 71H the following section:-
Section 71I. (a) Any employee of a generation facility, an electric company, or a gas company, each as defined in section 1 of chapter 164, who is terminated after July 1, 1997, through no fault of his own as a result of the restructuring of the electricity or gas industries in the commonwealth, and is otherwise eligible for unemployment benefits, shall receive reemployment assistance benefits, as provided pursuant to section 71F of this chapter, and health insurance benefits, as provided pursuant to section 71G of this chapter. No such employee shall be denied or be determined to be ineligible for any such benefits if the employer has provided notice of the cessation of employment. Such benefits shall be in addition to any benefits any employee may receive pursuant to the provisions of an agreement resulting from collective bargaining by the owners of electric companies, generation facilities, who owned such facilities as of July 1, 1997, or a gas company and an organization or organizations representing such employee in any such negotiations of said agreement.
(b) Any employer at a generation facility, an electric company, or a gas company where such eligible employee had been terminated shall be billed an amount equal to 100 per cent of the amount of reemployment assistance benefits paid under said section 71F and an amount equal to 100 per cent of the amount of health insurance benefits paid under said section 71G, and shall otherwise be subject to section 71H.
SECTION 120. Section 4 of chapter 155 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 3, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 121. Section 5 of said chapter 155, as so appearing, is hereby amended by striking out, in line 1, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 122. Section 5A of said chapter 155, as so appearing, is hereby amended by striking out, in line 1, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 123. Section 16 of chapter 158 of the General Laws, as so appearing, is hereby amended by striking out, in line 7, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 124. Section 39 of said chapter 158, as so appearing, is hereby amended by striking out, in line 8, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 125. Section 40 of said chapter 158, as so appearing, is hereby amended by striking out, in line 4, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 126. Section 10 of chapter 159 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 1, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 127. Section 59 of said chapter 159, as so appearing, is hereby amended by striking out, in lines 11 and 12, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 128. Said section 59 of said chapter 159, as so appearing, is hereby further amended by striking out, in line 15, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 129. Said section 59 of said chapter 159, as so appearing, is hereby further amended by striking out, in line 26, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 130. Said section 59 of said chapter 159, as so appearing, is hereby further amended by striking out, in line 28, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 131. Section 65 of said chapter 159, as so appearing, is hereby amended by striking out, in line 5, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 132. Said section 65 of said chapter 159, as so appearing, is hereby further amended by striking out, in line 18, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 133. Said section 65 of said chapter 159, as so appearing, is hereby further amended by striking out, in lines 23 and 24, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 134. Said section 65 of said chapter 159, as so appearing, is hereby further amended by striking out, in line 27, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 135. Said section 65 of said chapter 159, as so appearing, is hereby further amended by striking out, in line 28, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 136. Said section 65 of said chapter 159, as so appearing, is hereby further amended by striking out, in line 37, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 137. Section 70 of said chapter 159, as so appearing, is hereby amended by striking out, in line 21, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 138. Said section 70 of said chapter 159, as so appearing, is hereby further amended by striking out, in line 51, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 139. Said section 70 of said chapter 159, as so appearing, is hereby further amended by striking out, in line 63, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 140. Said section 70 of said chapter 159, as so appearing, is hereby further amended by striking out, in line 65, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 141. Section 73 of said chapter 159, as so appearing, is hereby amended by striking out, in line 5, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 142. Section 74 of said chapter 159, as so appearing, is hereby amended by striking out, in line 4, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 143. Said section 74 of said chapter 159, as so appearing, is hereby further amended by striking out, in line 17, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 144. Said section 74 of said chapter 159, as so appearing, is hereby further amended by striking out, in line 21, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 145. Said section 74 of said chapter 159, as so appearing, is hereby further amended by striking out, in line 46, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 146. Section 78 of said chapter 159, as so appearing, is hereby amended by striking out, in line 19, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 147. Section 79 of said chapter 159, as so appearing, is hereby amended by striking out, in lines 5 and 6, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 148. Section 80 of said chapter 159, as so appearing, is hereby amended by striking out, in line 23, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 149. Said section 80 of said chapter 159, as so appearing, is hereby further amended by striking out, in lines 34 and 35, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 150. Said section 80 of said chapter 159, as so appearing, is hereby further amended by striking out, in lines 35 and 36, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 151. Said section 80 of said chapter 159, as so appearing, is hereby further amended by striking out, in line 40, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 152. Section 1 of chapter 159A of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 32, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 153. Section 2 of said chapter 159A, as so appearing, is hereby amended by striking out, in line 3, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 154. Section 3 of said chapter 159A, as so appearing, is hereby amended by striking out, in line 6, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 155. Section 2 of chapter 159B of the General Laws, as so appearing, is hereby amended by striking out, in lines 21 and 22, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 156. Said section 2 of said chapter 159B, as so appearing, is hereby further amended by striking out, in line 38, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 157. Said section 2 of said chapter 159B, as so appearing, is hereby further amended by striking out, in line 88, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 158. Section 6B of chapter 159B, as so appearing, is hereby amended by striking out, in lines 29 and 30, the words "of public utilities".
SECTION 159. Section 1 of chapter 160 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 7, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 160. Section 104 of said chapter 160, as so appearing, is hereby amended by striking out, in line 15, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 161. Said section 104 of said chapter 160, as so appearing, is hereby further amended by striking out, in line 20, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 162. Section 127A of said chapter 160, as so appearing, is hereby amended by striking out, in line 1, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 163. Section 134A of said chapter 160, as so appearing, is hereby amended by striking out, in lines 30 and 31, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 164. Said section 134A of said chapter 160, as so appearing, is hereby further amended by striking out, in line 35, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 165. Section 145 of said chapter 160, as so appearing, is hereby amended by striking out, in line 3, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 166. Section 147A of said chapter 160, as so appearing, is hereby amended by striking out, in lines 3 and 4, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 167. Section 1 of chapter 161 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 8, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 168. Section 82 of said chapter 161, as so appearing, is hereby amended by striking out, in line 9, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 169. Section 85 of said chapter 161, as so appearing, is hereby amended by striking out, in line 16, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 170. Said section 85 of said chapter 161, as so appearing, is hereby further amended by striking out, in lines 19 and 20, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 171. Said section 85 of said chapter 161, as so appearing, is hereby further amended by striking out, in line 21, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 172. Said section 85 of said chapter 161, as so appearing, is hereby further amended by striking out, in line 26, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 173. Section 3 of chapter 161A of the General Laws, as so appearing, is hereby amended by striking out, in lines 72 and 73, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 174. Section 5 of said chapter 161A, as so appearing, is hereby amended by striking out, in line 184, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 175. Section 11A of said chapter 161A, as so appearing, is hereby amended by striking out, in line 7, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 176. Section 22 of said chapter 161A, as so appearing, is hereby amended by striking out, in line 2, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 177. Said section 22 of said chapter 161A, as so appearing, is hereby further amended by striking out, in line 4, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 178. Section 6 of chapter 161B of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 61, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 179. Section 8 of said chapter 161B, as so appearing, is hereby amended by striking out, in line 82, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 180. Said chapter 161B is hereby further amended by striking out section 16, as so appearing, and inserting in place thereof the following section:-
Section 16. In the event of any conflict between the regulatory powers and duties of the department of telecommunications and energy in respect to mass transportation service within an area, the department of telecommunications and energy shall resolve such dispute and exercise such powers as it deems required in the particular instance.
SECTION 181. Section 1 of chapter 162 of the General Laws, as so appearing, is hereby amended by striking out, in line 2, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 182. Section 1 of chapter 163 of the General Laws, as so appearing, is hereby amended by striking out, in line 2, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 183. Section 1 of chapter 164 of the General Laws, as so appearing, is hereby amended by inserting before the definition of "Alternative energy producer" the following definition:-
"Aggregator", an entity which groups together electricity customers for retail sale purposes, except for public entities, quasi-public entities or authorities, or subsidiary organizations thereof, established pursuant to the laws of the commonwealth.
SECTION 184. Said section 1 of said chapter 164, as so appearing, is hereby further amended by inserting after the definition of "Alternative energy producer" the following definition:-
"Ancillary services", those functions which support generation, transmission, and distribution, and shall include the following services: (1) reactive power/voltage control; (2) loss compensation; (3) scheduling and dispatch; (4) load following; (5) system protection service; and (6) energy imbalance service.
SECTION 185. Said section 1 of said chapter 164, as so appearing, is hereby further amended by inserting after the definition of "Cogeneration facility" the following definition:-
"Contract termination fee", the fees owed by the distribution company to its wholesale power supplier, as determined and approved by the department.
SECTION 186. Said section 1 of said chapter 164, as so appearing, is hereby further amended by striking out, in line 59, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 187. Said section 1 of said chapter 164, as so appearing, is hereby further amended by inserting after the definition of "Department" the following six definitions:-
"Default Service", the electricity services provided to a retail customer upon either the (i) failure of a distribution company or supplier to provide such electricity services as required by law or as contracted for under the standard service offer, (ii) the completion of the term of the standard service offer, or (iii) upon the inability of a customer to receive standard service transition rates during the term of the standard service offer pursuant to section 1B.
"Distributed generation", a generation facility or renewable energy facility connected directly to distribution facilities or to retail customer facilities which alleviate or avoid transmission or distribution constraints or the installation of new transmission facilities or distribution facilities.
"Distribution", the delivery of electricity over lines which operate at a voltage level typically equal to or greater than 110 volts and less than 69,000 volts to an end-use customer within the commonwealth. The distribution of electricity shall be subject to the jurisdiction of the department.
"Distribution company", a company engaging in the distribution of electricity or owning, operating, or controlling distribution facilities; provided, however, a distribution company shall not include any entity which owns or operates plant or equipment used to produce electricity, steam, and chilled water, or any affiliate engaged solely in the provision of such electricity, steam, and chilled water, where the electricity produced by such entity or its affiliate is primarily for the benefit of hospitals and non-profit educational institutions, and where such plant or equipment was in operation prior to January 1, 1986.
"Distribution facility", plant or equipment used for the distribution of electricity and which is not a transmission facility, a cogeneration facility, or a small power production facility.
"Distribution service", the delivery of electricity to the customer by the electric distribution company from points on the transmission system or from a generating plant, at distribution voltage.
SECTION 188. Said section 1 of said chapter 164, as so appearing, is hereby further amended by striking out the definition of "Electric company" and inserting in place thereof the following four definitions:-
"Electric company", a corporation organized under the laws of the commonwealth for the purpose of making by means of water power, steam power or otherwise and selling, or distributing and selling, or only distributing, electricity within the commonwealth, or authorized by special act so to do, even though subsequently authorized to make or sell gas; provided, however, that electric company shall not mean an alternative energy producer; and provided further, that a distribution company shall not include any entity which owns or operates a plant or equipment used to produce electricity, steam, and chilled water, or any affiliate engaged solely in the provision of such electricity, steam, and chilled water, where the electricity produced by such entity or its affiliate is primarily for the benefit of hospitals and non-profit educational institutions, and where such plant or equipment was in operation prior to January 1, 1986.
"Electric service", the provision of generation, transmission, distribution, or ancillary services.
"Energy efficiency", the implementation of an action, policy, or measure which entails the application of the least amount of energy required to produce a desired or given output.
"FERC", the federal energy regulatory commission.
SECTION 189. Said section 1 of said chapter 164, as so appearing, is hereby further amended by striking out the definition of "Gas company" and inserting in place thereof the following seven definitions:-
"Gas company", a corporation organized for the purpose of making and selling, or distributing and selling, gas within the commonwealth, even though subsequently authorized to make or sell electricity; provided, however, that gas company shall not mean an alternative energy producer.
"Generation", the act or process of transforming other forms of energy into electric energy, or the amount of electric energy so produced.
"Generation company", a company engaged in the business of producing, manufacturing, or generating electricity for retail sale to the public.
"Generation facility", plant or equipment used to produce, manufacture, or otherwise generate electricity and which is not a transmission facility.
"Generation service", the provision of generation and related services to a customer.
"Horizontal market power", a situation in which one or a few market participants combined have undue concentration in the ownership of facilities at the same level in the chain of production resulting in the ability to influence price to his or their own benefit.
"Mitigation", all actions or occurrences which reduce the amount of money that a distribution company seeks to collect through the transition charge, including those amounts resulting from both matters within the company's control and from matters not wholly within the company's control. Mitigation shall, in accordance with the provisions of section 1G, include, but not be limited to, the following: (1) sales of capacity, energy, ancillary services, reserves, and emission allowances from generating facilities that are wholly or partly owned by the company; (2) sales of capacity, energy, ancillary services, reserves, and emission allowances from generating facilities with which the company has a power purchase agreement; (3) adjustments to the company's minimum obligations under purchase power agreements that decrease such obligations, such as those that may be obtained through contract buy-out or renegotiation; (4) residual value; (5) sales and voluntary write downs of company generation-related assets; (6) any market value in excess of net book value associated with the sale, lease, transfer, or other use of the assets of the company unrelated to the provision of transmission service or distribution service at regulated prices, including, but not limited to, rights-of-way, property, and intangible assets when the costs associated with the acquisition of those assets have been reflected in the company's rates for regulated service; provided, however, that the department shall determine their market values based on the highest prices that such assets could reasonably realize after an open and competitive sale; and (7) any allowed refinancing of stranded assets or other debt obligations as provided by law.
SECTION 190. Said section 1 of said chapter 164, as so appearing, is hereby further amended by inserting after the definition of "Primary energy source" the following six definitions:-
"Renewable energy" or "renewables", either (i) resources whose common characteristic is that they are nondepletable or are naturally replenishable but flow-limited, or (ii) existing or emerging non-fossil fuel energy sources or technologies, which have significant potential for commercialization in New England and New York, and shall include the following: solar photovoltaic or solar thermal electric energy; wind energy; ocean thermal, wave, or tidal energy; fuel cells; landfill gas; waste-to-energy which is a component of conventional municipal solid waste plant technology in commercial use; naturally flowing water and hydroelectric; and low-emission, advanced biomass power conversion technologies, such as gasification using such biomass fuels as wood, agricultural, or food wastes, energy crops, biogas, biodiesel, or organic refuse-derived fuel. The following technologies or fuels shall not be considered renewable energy supplies: coal, oil, natural gas except when used in fuel cells, and nuclear power.
"Residual value", the value of electric company assets, not including the income which may be obtained through generation facility operation.
"Retail access", the use of transmission and distribution facilities owned by a transmission company or a distribution company to transmit or distribute electricity from a generation company, supplier, or aggregator to retail customers.
"Retail customer", a customer who purchases electricity for its own consumption.
"Securitization", the use of rate reduction bonds to refinance debt and equity associated with transition costs pursuant to section 1H.
"Service territory", the geographic area in which a distribution company provided distribution service on July 1, 1997.
SECTION 191. Said section 1 of said chapter 164, as so appearing, is hereby further amended by inserting after the definition of "Small power production facility" the following definition:-
"Supplier", any supplier of generation service to retail customers, including power marketers, brokers, and marketing affiliates of distribution companies, except that no electric company shall be considered a supplier.
SECTION 192. Said section 1 of said chapter 164, as so appearing, is hereby further amended by adding the following nine definitions:-
"Transition charge", the charge that provides the mechanism for recovery of an electric company's transition costs.
"Transition costs", the embedded costs as determined pursuant to section 1H which remain after accounting for maximum possible mitigation, subject to determination by the department.
"Transmission", the delivery of power over lines that operate at a voltage level typically equal to or greater than 69,000 volts from generating facilities across interconnected high voltage lines to where it enters a distribution system.
"Transmission company", a company engaging in the transmission of electricity or owning, operating, or controlling transmission facilities. A transmission company shall provide transmission service to all generation companies, municipal lighting plants, suppliers, and load aggregators in the commonwealth, whether affiliated or not, on comparable, nondiscriminatory prices and terms, pursuant to provisions of federal law and regulation.
"Transmission facility", plant or equipment used for the transmission of electricity, as determined by the federal energy regulatory commission pursuant to federal law and regulation.
"Transmission service", the delivery of electricity to a retail customer, supplier, distribution company, or wholesale customer by a transmission company.
"Unbundled rates", rates designed to separate the costs of providing generation, the costs of transmission and distribution services, and transition and general access charges.
"Vertical market power", a situation in which one or a few market participants, having joint ownership of facilities at differing levels of the chain of production, such as generation, transmission, and distribution, possess the ability to use such joint ownership to influence price to the participants' own benefit.
"Wholesale generation company", a company engaged in the business of producing, manufacturing, or generating electricity for sale at wholesale only.
SECTION 193. Said chapter 164 is hereby further amended by inserting after section 1 the following eight sections:-
Section 1A. (a) The department is hereby authorized and directed to require electric companies organized pursuant to the provisions of this chapter to accommodate retail access to generation services and choice of suppliers by retail customers, unless otherwise provided by this chapter. Such companies shall file plans that include, but shall not be limited to, the provisions set forth in this section.
On or before January 1, 1998, each electric company organized under the provisions of this chapter, which has not filed a plan prior to the enactment of this section, shall file with the department a detailed plan for restructuring its operations to allow for the introduction of retail competition in generation supply in accordance with the provisions of this chapter. The department shall review each plan and make an express finding to determine whether such plan is consistent or substantially complies with the provisions of this chapter. An electric company that has filed a plan which substantially complies or is consistent with this chapter as determined by the department shall not be required to file a new plan, and the department shall allow such plans previously approved or pending before the department to be implemented. Approval of such previously filed or approved plans shall be deemed to satisfy the requirements contained in section 1G including for the department to conduct an audit of previously incurred costs and find reasonable mitigation of transition costs, and shall allow the department to approve charges for transition costs, provided that the department shall audit, review and reconcile the difference between projected transition costs and actual transition costs by March 1, 2000, and every 18 months, thereafter and provided that such approved plans provide a reduction of 10% for customers choosing the standard service transition rate from the average of undiscounted rates for the sale of electricity in effect during August 1997 or such other date as the department may determine. Each plan shall be designed to implement a restructured electric generation market by March 1, 1998. Each electric company shall offer retail access to all customers as of said date. The department may issue an initial order prior to March 1, 1998, approving any plan filed pursuant to this section subject to further review and reconciliation in order to allow implementation of retail access for all customers after March 1, 1998.
Each restructuring plan shall include, without limitation, the following: an estimate and detailed accounting of total transition costs eligible for recovery pursuant to subsection (b) of section 1G; a description of the company's strategies to mitigate such transition costs; unbundled prices or rates for generation, distribution, transmission, and other services; proposed charges for the recovery of transition costs; proposed programs to provide universal service for all customers; proposed programs and recovery mechanisms to promote energy conservation and demand-side management; procedures for ensuring direct retail access to all electric generation suppliers; and discussions of the impact of the plan on the company's employees and the communities served by the company.
The department shall review the restructuring plan filed by each electric company and shall issue an order accepting, modifying, or rejecting such plan at the earliest date possible. If the department rejects a restructuring plan, the department shall state the specific reasons for rejection and direct the company to file an alternative plan addressing these objections within 30 days of the department's order rejecting the plan. The department shall review this alternative plan and issue a final order within 60 days of the filing of the revised plan.
(b)(1) If an electric company chooses to divest itself of its existing non-nuclear generation facilities, such electric company shall transfer or separate ownership of generation, transmission, and distribution facilities into independent affiliates of the electric company or functionally separate such facilities within 30 business days of federal approval. The transmission facilities owned by the electric company, including all rights-of-way, property, fiber optic cable, and other tangible or intangible assets used directly or indirectly by the utility in the transmission of electricity, as of December 31, 1996, or acquired thereafter, shall be transferred to a transmission company at a price that shall equal the book value of said transmission facilities on the electric company's accounts net of depreciation as of the date of transfer. The distribution facilities owned by an electric company, including all rights-of-way, property, fiber optic cable, and other tangible or intangible assets used directly or indirectly by the utility in the distribution of electricity, as of December 31, 1996, or acquired thereafter, shall be transferred to a successor distribution company at a price that shall equal the book value of the distribution facilities on the electric company's accounts net of depreciation as of the date of transfer. The newly created distribution companies shall be prohibited from selling electricity at retail, except as provided in sections 1B to 1F, inclusive, and shall be prohibited from directly owning, operating, or controlling transmission facilities, generating facilities, or marketing affiliates, and shall be prohibited from selling, leasing, renting, or otherwise transferring all or a portion of any assets it obtains from the utility pursuant to this section without the expressed approval of the department. In providing such approval, the department shall conduct evidentiary hearings and must issue a finding that such transfers will mitigate to the maximum extent possible the total amount of transition costs of the utility and will minimize the impact of recovery of transition costs on ratepayers in the commonwealth. Except as otherwise provided in this section, an electric company divesting existing non-nuclear generation facilities shall be in no way disadvantaged by virtue of the fact that it has or plans to divest its existing electricity generating facilities. In the event that an electric company chooses to divest its existing generation facilities, such electric company shall demonstrate to the department that the sale process is equitable and maximizes the value of the existing generation facilities being sold.
(2) For the purposes of this section and sections 1B to 1H, inclusive, the requirement to divest generation facilities shall be deemed satisfied if an electric company divests its non-nuclear generation facilities by (i) selling such non-nuclear facilities in a competitive auction or sale in a process approved by the department which shall ensure complete, uninhibited, non-discriminatory access to all data and information by any and all interested parties seeking to participate in such auction or sale; provided, however, that an affiliated company may participate and bid in such competitive auction or sale; or (ii) transferring such non-nuclear generation facilities and purchase power contracts to an affiliated company at a value determined to be reasonable and appropriate by the department including but not limited to a value based on the sale value of comparable plants through prior divestiture actions; provided, however, that in no instance shall such minimum price be lower than the highest price per kilowattage of capacity for any capacity sold in New England, as determined by the department; provided, further, that in the case of the divestiture of any non-nuclear generation facility currently containing only combustion turbine generation capacity of less than 50 megawatts but situated on a site containing free standing retired or unused structures formerly containing steam electric generating units of greater than 200 megawatts capacity, the electric company so divesting shall cause, either through its own efforts prior to said divestiture or through assignment of such obligation to the purchaser of each facility in an agreement approved by the department, said unused structures to be appropriately removed and decommissioned, which may be subject to a re-use plan. The minimum price for the transfer of such assets pursuant to this paragraph shall be determined and approved by the department prior to any such proceeding.
(3) All proceeds from any such divestiture and sale of generation facilities pursuant to paragraphs (1) and (2), net of tax effects and less any other adjustments approved by the department that inure to the benefit of ratepayers, shall be applied to reduce the amount of the selling electric company's transition costs.
(c) If an electric company chooses not to sell its existing non-nuclear generation facilities, then the electric company's recovery of transition costs shall be net of any market value in excess of book value of the non-divested non-nuclear facilities, as determined in this section and in accordance with section 1G, and it shall transfer all of its non-nuclear generation facilities and purchased power contracts to an affiliate that is a generating company at a price to be determined and approved by the department herein prior to any such proceeding; and in accordance with subsection (b). Such generation company affiliate shall exist separate from and independent of the distribution and transmission operations of such electric company. There shall exist strict separation between such generation affiliate and the distribution and transmission operations of such electric company. Both nuclear and non-nuclear generation facilities and the electric company's purchased power contracts shall be subject to a valuation by the department where such facilities are either sold or assessed by an assessor independent of the electric company or otherwise valued pursuant to the provisions of this chapter, to determine the maximum market value of such assets that could reasonably be realized after an open and competitive sale, and the electric company's recovery of transition costs shall be net of any market value in excess of book value as determined in this section in a competitive market. A generation company formed pursuant to this section shall be prohibited from acquiring new generation facilities as of March 1, 1998. If an electric company chooses not to divest all of its non-nuclear generating facilities, then the electric company's recovery of transition costs shall be net of any market value in excess of book value of the non-divested non-nuclear facilities, as determined in this section and in accordance with section 1G. Such electric company shall not be assessed or charged any costs through its rates established by the department to transfer such generation facilities to an unregulated affiliate or subsidiary or as a consequence of transferring such generation facilities to an unregulated affiliate or subsidiary; provided, however, that should any generation facility so transferred to an unregulated subsidiary be further sold, transferred to, or disposed of, to a third party within 48 months of the generation facility's transfer to an unregulated affiliate or subsidiary of the electric company, then any amount recovered in such a sale, transfer, or disposition in excess of the remaining net book value of the generation facility shall be applied to reduce the amount of the selling electric company's transition costs. Except as otherwise provided in this section, an electric company retaining all or a portion of its existing generation facilities shall be in no way disadvantaged by virtue of the fact that it is so retaining existing generation facilities.
(d) In the event that (i) an electric company with generation facilities in the commonwealth owns, or has an affiliate that owns, generation facilities in another state in the New England region, and (ii) an electric company or its affiliate continues to operate one or more generation facilities in another state in the New England region, then the electric company, should it choose not to divest its existing fossil-fuel fired generation facilities and its existing hydroelectric generation facilities, shall be allowed for purposes of efficiency and local ownership of local generation facilities, to retain any such facilities as set forth in subsection (c); provided, however, that an electric company not divesting its existing fossil-fuel fired and hydroelectric generation facilities shall not recover through rates, charges, or elsewhere any amount of transition costs associated with the retained existing fossil-fuel fired generation facilities and existing hydroelectric generation facilities. Each reference to existing generation facilities in this section shall include, without limitation, existing generation facilities, regardless of size, and associated property. The department should determine a value for any facilities retained pursuant to this subsection and reduce the amount of the electric company's transition costs by such value in accordance with subsection (b).
(e) A generation company shall not be subject to regulation as a public utility or as an electric company, except as specifically provided in this chapter. A wholesale generation company shall be subject to regulation only as specifically provided in this chapter.
Section 1B. (a) The department shall define service territories for each distribution company by March 1, 1998, based on the service territories actually served on July 1, 1997, and following to the extent possible municipal boundaries. After March 1, 1998, until terminated by effect of law or otherwise, the distribution company shall have the exclusive obligation to provide distribution service to all retail customers within its service territory, and no other person shall provide distribution service within such service territory without the written consent of such distribution company which shall be filed with the department and the clerk of the municipality so affected.
(b) Each distribution company shall provide a standard service transition rate to those customers who are within said company's service territory and who choose not to purchase electricity from a non-affiliated generation company after March 1, 1998. A distribution company shall provide a standard service transition rate which, together with the transmission, distribution, and transition charges, produces for such a service package for all retail customers including the facilities on Deer island operated by the Massachusetts Water Resources Authority, prior to the implementation of securitization pursuant to section 1H and the application of a residual value credit pursuant to section 1A or the deduction of the market value of generation facilities pursuant to said section 1A, a rate reduction of at least 10 per cent beginning on March 1, 1998. Said reduction shall be applied against the average of the undiscounted rates for the sale of electricity in effect during August 1997 or such other date as the department may determine to be representative of 1997 rates for such company, but excluding customers with contracts for electricity sales that provide for percentage discounts below cost-based or tariffed rates executed and approved by the department prior to January 1, 1997. Upon the approval by the department of (i) a financing order to implement securitization pursuant to section 1H or (ii) the residual value credits from divestitures or market valuations for such a company, the distribution company shall apply the net proceeds from the divestiture and the net savings from the securitization. The total rate reduction, net proceeds from the divestiture and the net savings from securitization, in combination with the rate reduction implemented by or on March 1, 1998, shall be 15 per cent on or before September 1, 1999, applied against the rate adjusted for inflation from August 1997 or such other date as the department may determine to be representative of 1997 rates for such company, which was the benchmark for the March 1, 1998, rate reduction; provided, however that a company unable to meet the rate reduction required under this section shall be subject to the provisions of paragraph (3) of subsection (c) of section 1G. The standard service transition rate shall be offered for a transition period of seven years at prices and on terms approved by the department and shall require a distribution company to purchase electricity after a competitive bid process that is reviewed and approved by the department. Any customer who has chosen retail access from a non-affiliated generation company but who otherwise requires electric service due to said generation company's failure to provide contracted service shall be eligible for service through the distribution company's default service provided pursuant to the provisions of subsection (d).
(c) Effective March 1, 1998, no electric company regulated by the department and no affiliate of such electric company shall be allowed to use the distribution system of another electric company or make sales, either directly or indirectly through third parties, to end-use customers in another electric company's service territory unless the department has approved a restructuring plan for the supplying electric company which provides for comparable direct access to end-use customers within its own distribution service territory or the supplying electric company has entered into an agreement, on or before January 1, 1997, for direct access to an end-use customer located on the border of its service territory, in which event the department shall authorize service by an electric company to such end-use customer. No electric company and no affiliate of such electric company shall be allowed to prohibit sales of electricity or restrict such sales through non-comparable distribution charges to end-use customers in its service territory by another electric company or its affiliate operating under a restructuring plan approved by the department.
(d) Beginning on March 1, 1998, each distribution company shall provide its customers with default service and shall offer a default service rate to its customers who have chosen retail electricity service from a non-utility affiliated generation company or supplier but who require electric service because of a failure of such company or the supplier to provide contracted service or who, for any reason, have stopped receiving such service, and to all customers at the end of the term of the standard offer. The distribution company shall procure such service through competitive bidding; provided, however, that the default service rate so procured shall not exceed the average monthly market price of electricity; and provided, further, that all bids shall include payment options with rates that remain uniform for periods of up to six months. Any department-approved provider of service, including an affiliate of a distribution company, shall be eligible to participate in the competitive bidding process. Notwithstanding the actual issuer of a ratepayer's bill, the default service provider shall be entitled to furnish a one-page insert accompanying the ratepayer's bill. The department may authorize an alternate generation company or supplier to provide default service, as described herein, if such alternate service is in the public interest. In implementing the provisions of this section, the department shall ensure universal service for all ratepayers and sufficient funding to meet the need therefor.
(e) As of March 1, 1999, the total, average rates for all of the distribution company's customers purchasing electricity under said standard service transition rate, shall be subject to an inflation cap through the remainder of the standard offer period. The calculation and implementation of the rate reduction and the inflation cap shall be subject to adjustment, review, and approval in accordance with procedures in the rules and regulations promulgated by the department, which shall require that, the economic value of the rate reduction required under this section, be maintained during the standard service transition rate period.
(f) The department is hereby authorized and directed to promulgate rules and regulations necessary to carry out the provisions of this section, including the procedure for default service procurement and governing a customer's ability to return to the standard service after choosing retail access from a non-utility affiliated generation company.
Section 1C. Any marketing company formed by an electric company shall be in the form of an affiliate of the electric company and shall be separate from any generation, transmission, or distribution company affiliate of the electric company. The department shall promulgate standards of conduct which shall ensure the separation of such affiliates and which shall be consistent with the following provisions: (i) a distribution company shall not give any affiliates any preference over non-affiliated suppliers or customers thereof in matters relating to any product or service; (ii) all products, services, discounts, rebates, and fee waivers offered by a distribution company shall be available to all customers and suppliers simultaneously, to the extent technically possible, on a comparable basis; (iii) a distribution company shall process all same or similar requests for any product, service, or information in the same manner and within the same period of time; (iv) a distribution company shall not condition or tie the provision of any product, service, or rate agreement by the distribution company to the provision of any product or service to which an affiliate is involved; (v) a distribution company shall not share with any affiliate any market information acquired or developed by the distribution company in the course of responding to requests for distribution service or any proprietary customer information without the prior written authorization by the customer; (vi) a distribution company shall refrain from presenting that any advantage accrues to customers or others in the use of its services as a result of that customer or others dealing with any such affiliate; (vii) a distribution company shall not engage in joint advertising or marketing programs with any affiliate; and (viii) employees of a distribution company shall not be shared with, and shall be physically separated from those of, any generating or marketing affiliate.
Section 1D. Beginning January 1, 1998, all electric and gas bills sent to a retail customer shall be unbundled to separately reflect the rates charged for generation, transmission, and distribution services, as well as any other charges, as added pursuant to any provision of law, contained in the total retail price. Any transition charge, if so allowed to be assessed, shall be reflected separately on bills as of March 1, 1998. Electric and gas bills may reflect the total costs of services, without breakdown for type of service, in addition to, but not instead of, separately itemized rates for generation, transmission, and distribution services and transition charges as of March 1, 1998. Not later than six months after said March 1, in order to promote customer choice and convenience in a restructured electricity and gas market, distribution companies shall create and send bills to retail customers pursuant to either of the following billing options: (1) single bill from the distribution company that shows such charges; or (2) two bills: one from the non-utility supplier that shows energy-related charges, and one from the distribution company that shows distribution-related charges; provided, however, that all bills shall contain information concerning the quantity of gas or electricity consumed by said customer during the same billing period for the previous year. Costs for such inserts shall be apportioned accordingly between the parties. The department is hereby authorized and directed to determine whether any additional information shall be required to be disclosed on the bills and to promulgate rules and regulations to implement the provisions of this subsection. Rules and regulations relative to the appeals process for billing disputes or damage claims made by customers shall be published and distributed to customers as part of an education and outreach program.
Section 1E. (a) The department is hereby authorized to promulgate rules and regulations to establish and require performance based rates for each distribution, transmission, and gas company organized and doing business in the commonwealth pursuant to the provisions of this chapter. In promulgating such performance based rate schemes, the department shall establish service quality standards each distribution, transmission, and gas company, including, but not limited to, standards for customer satisfaction service outages, distribution facility upgrades, repairs and maintenance, telephone service, billing service, and public safety provided, however, that such service quality standards shall include benchmarks for employee staff levels and employee training programs for each such distribution, transmission, and gas company.
(b) In complying with the service quality standards and employee benchmarks established pursuant to this section, a distribution, transmission, or gas company that makes a performance based rating filing after the effective date of this act shall not be allowed to engage in labor displacement or reductions below staffing levels in existence on November 1, 1997, unless such are part of a collective bargaining agreement or agreements between such company and the applicable organization or organizations representing such workers, or with the approval of the department following an evidentiary hearing at which the burden shall be upon the company to demonstrate that such staffing reductions shall not adversely disrupt service quality standards as established by the department herein. Nothing in this paragraph shall prevent reduction of forces below the November 1, 1997 level through early retirement and severances negotiated with labor organizations before said date.
(c) Each distribution, transmission, and gas company shall file a report with the department by March first of each year comparing its performance during the previous calendar year to the department's service quality standards and any applicable national standards as may be adopted by the department. The department shall be authorized to levy a penalty against any distribution, transmission, or gas company which fails to meet the service quality standards in an amount up to and including the equivalent of 2 per cent of such company's transmission and distribution service revenues for the previous calendar year.
(d) The department is authorized and directed to promulgate regulations relative to an alternative dispute resolution process for the handling of damage claims by customers in an amount under $100. The department shall establish a 60 day timeline for the resolution of all mediation claims. The department shall issue a biannual report to the house and senate clerks and the joint committee on government regulations which shall include, but not be limited to, the following information: nature of consumer claims, number of consumer claims and resolutions of consumer claims reviewed by the department during the previous six months. Said report shall be available for public review at the department.
Section 1F. The department is hereby authorized and directed to require electric companies organized pursuant to this chapter to accommodate retail access to generation services and choice of suppliers by retail customers, unless otherwise provided by this chapter. The department shall promulgate rules and regulations to provide retail customers with the utmost consumer protections contained in law, including, but not limited to, the following provisions:
(1) The department shall license to do business in the commonwealth all generation companies, aggregators, suppliers, energy marketers, and energy brokers in accordance with the provisions of subparagraphs (i), (ii), and (iii). The department shall maintain a list of all licensed generation companies, aggregators, energy brokers, energy marketers, and suppliers, which shall be available to any consumer requesting such information through the department for a reasonable fee.
(i) All generation companies shall submit a license application to the department for approval to sell electric power or provide generation services within the commonwealth. Such application shall include the following: the company's technical ability, as defined pursuant to regulations promulgated by the department, to generate or otherwise obtain and deliver electricity and provide any other proposed services; documentation of financial capability of the applicant to provide the proposed services; a description of the company's form of ownership; and documentation regarding any valid purchase power contracts between the company, the company's affiliates, or the company's parent or subsidiary, and any electric company formed pursuant to the provisions of this chapter. A license shall not be granted unless and until all of the above information is provided with the payment of a fee, the amount to be determined by the department.
(ii) All private, non-profit, or co-operative aggregators established pursuant to sections 135 and 136 seeking to do business in the commonwealth shall submit a license application to the department, subject to rules and regulations promulgated by the department and subject to the payment of a fee, the amount to be determined by the department.
(iii) All energy brokers, energy marketers, and other suppliers seeking to do business in the commonwealth shall submit a license application to the department, subject to rules and regulations promulgated by the department and subject to the payment of a fee, the amount to be determined by the department.
(2) Pursuant to this paragraph, the department shall promulgate rules and regulations which shall include, but not be limited to, the following provisions: (i) a requirement that all distribution companies, generation companies, aggregators, marketers and suppliers notify their customers in writing of the terms of their agreement to provide service at the time service is initiated, a formal procedure allowing a customer to file a complaint against a distribution or generation company, aggregator, or supplier; and (ii) a formal dispute resolution procedure developed in consultation with the Massachusetts office of dispute resolution, which shall include options for mediation, arbitration, facilitation or other dispute resolutions methods. Under such procedure, the department or a professional neutral provided by the Massachusetts office of dispute resolution and approved by the department will assist in resolving disputes between any customer and a distribution or generation company, aggregator, or supplier against which a complaint is issued, subject to a penalty determined by the department, including any fines authorized by paragraph (7). No distribution or generation company may disconnect or discontinue service to a customer for a disputed amount if that customer has filed a complaint which is pending with the department.
(3) The department is hereby authorized and directed to establish rules and regulations to (i) promote effective competition; (ii) to investigate disputes; (iii) to institute a complaint mechanism for the resolution of disputes, including, but not limited to, those arising from alleged vertical or horizontal market power abuses; (iv) to hear such disputes in the first instance at an informal level and, if requested, at a formal hearing before the department; (v) to refer complaints to the attorney general where appropriate; and (vi) to impose fines or penalties, including when appropriate a reduction in return on equity of a regulated distribution company, for violations of any regulations establishing the corporate rules of conduct.
(4)(i) The department shall require that distribution companies provide discounted rates for low income customers comparable to the low-income discount rate in effect prior to March 1, 1998. Said discount shall be in addition to any reduction in rates that becomes effective pursuant to said subsection (b) of said section 1B on March 1, 1998, and to any subsequent rate reductions provided by a distribution company after said date pursuant to said subsection. The cost of such discounts shall be included in the rates charged to all other customers of a distribution company. Each distribution company shall guarantee payment to the generation supplier for all power sold to low-income customers at said discounted rates. Eligibility for the discount rates established herein shall be established upon verification of a low-income customer's receipt of any means tested public benefit, or verification of eligibility for the low-income home energy assistance program, or its successor program, for which eligibility does not exceed 175 per cent of the federal poverty level based on a household's gross income. Said public benefits may include, but are not limited to, assistance which provides cash, housing, food, or medical care, including, but not limited to, transitional assistance for needy families, supplemental security income, emergency assistance to elders, disabled, and children, food stamps, public housing, federally-subsidized or state-subsidized housing, the low-income home energy assistance program, veterans' benefits, and similar benefits. The division of energy resources shall make available to distribution companies the eligibility guidelines for said public benefit programs. Each distribution company shall conduct substantial outreach efforts to make said low-income discount available to eligible customers and shall report to said division, at least annually, as to its outreach activities and results. Outreach may include establishing an automated program of matching customer accounts with lists of recipients of said means tested public benefit programs and based on the results of said matching program, to presumptively offer a low-income discount rate to eligible customers so identified; provided, however, that the distribution company, within 60 days of said presumptive enrollment, informs any such low-income customer of said presumptive enrollment and all rights and obligations of a customer under said program, including the right to withdraw from said program without penalty.
Not later than March 1, 1999 the department shall conduct an investigation and report to the joint committee on government regulations regarding the cost and benefits of expanding eligibility for the discount rates established in clause (i) of subparagraph (4) of the first paragraph of section 1F to any low-income customer who is eligible for any means tested public benefit for which eligibility does not exceed 175 per cent of the federal poverty level based on gross household income. The department shall further provide to said committee any legislative recommendations necessary to implement this section.
(ii) Prior to the termination of the seven year period of the standard service transition rate, the department shall, in consultation with said division, evaluate the effects of electricity restructuring on the affordability of electric power for low-income customers. The department shall make recommendations to the general court relative to the continuation of the low-income discount rate authorized pursuant to this subsection or to make modifications thereto. The department shall, in its recommendations, consider whether or not to modify said discount by establishing a sliding scale low-income discount program.
(iii) A residential customer eligible for low-income discount rates shall receive the service on demand and may return to standard offer service at any time including from default service. Each distribution company shall periodically notify all customers of the availability of and method of obtaining low-income discount rates and standard offer service. An existing residential customer eligible for low-income discount on the date of start of retail access who orders service for the first time from a distribution company shall be offered standard offer service by that distribution company. A residential customer eligible for low-income discount receiving standard offer service shall be allowed to retain standard offer service upon moving within the service territory of a distribution company.
(iv) There shall be no charge to any residential customer for initiating or terminating low-income discount rates, default service, or standard offer service when said initiation or termination request is made after a regular meter reading has occurred and the customer is in receipt of the results of said reading. A distribution company may impose a reasonable charge, as set by the department through regulation, for initiating or terminating low-income discount rates, default service, or standard offer service when a customer does not make such an initiation or termination request upon the receipt of said results and prior to the receipt of the next regularly scheduled meter reading. For purposes of this subsection, there shall be a regular meter reading conducted of every residential account no less often than once every two months. Notwithstanding the foregoing, there shall be no charge when the initiation or termination is involuntary on the part of the customer.
(5)(i) Before service is initiated by a generation company, aggregator, or supplier to any customer, the generation company, aggregator, or supplier shall disclose information on rates and other information to a customer in a written statement which the customer may retain. The department shall promulgate rules and regulations prescribing the form, content, and distribution of such information to be disclosed, which shall include, but not be limited to, the following: the disclosure of the rate to be charged; whether the generation company or supplier operates under collective bargaining agreements and whether such generation company or supplier operates with employees hired as replacements during the course of a labor dispute; any charges, fees, penalties, or other conditions imposed upon a customer should he or she choose to purchase power from another generation company, aggregator, or supplier during the term specified in the contract; the fuel mix and emissions of the generation sources; whether a credit agency will be contacted; deposit requirements and the interest paid on deposits; due date of bills and all consequences of late payment; consumer rights where a bill is estimated; consumer rights of third-party billing and like arrangements; consumer rights to deferred payment arrangements; low-income rates; limits, if any, on warranty and damages; the applicable provisions of this section; the provisions for default service; a toll-free telephone number for service complaints; any other fees, charges, or penalties; and the methods by which a consumer shall be notified of any changes to any of these items. A generation company, a supplier, or an aggregator licensed by the department to do business in the commonwealth pursuant to this section shall prepare an information booklet describing a customer's rights under the provisions of this chapter. Such company, supplier, or aggregator shall annually mail this booklet to its customers.
(ii) A generation company, an aggregator, or a supplier shall be allowed to advertise the percentage of its power or energy portfolio that is generated by employers that operate under collective bargaining agreements or that operate with employees hired as replacements during the course of a labor dispute or that connotes or signifies to the ratepayer the relative environmentally beneficial effects of the power or energy sold by said generation company, an aggregator, or a supplier pursuant to rules and regulations promulgated by the department.
(iii) In addition to the disclosure requirements provided for in subparagraphs (i) and (ii), the department shall promulgate such rules and regulations prescribing information to be disclosed by a generation company in any advertising or marketing of electricity rates, which regulations shall include, but not be limited to, disclosure of the rate to be charged in bold print in the case of print advertisements or through clear spoken language in the case of television or radio advertisements and on any monthly billing materials. The department shall coordinate with the attorney general to avoid duplication and to ensure consistency with the attorney general's regulations.
(6) The department shall promulgate uniform labeling regulations which shall be applicable to all suppliers as a condition of licensure pursuant to paragraph (1). Such information to be required by regulation in said labeling shall include price data, information on price variability, and customer service information and information about whether the generation company or supplier operates under collective bargaining agreements and whether such generation company or supplier operates with employees hired as replacements during the course of a labor dispute, fuel sources, and air emissions of sulfur dioxide, nitrogen dioxides, carbon dioxide, heavy metals, and any other emission which the department may determine causes significant health or environmental impact and for which sufficiently accurate and reliable data is available. The department shall require that such an electricity information label provide prospective and existing customers with adequate information by which to readily evaluate power supply options available in the market. Electricity suppliers shall be required to present such information, including information about the environmental characteristics of the sale of electric power products and services and whether the generation company or supplier operates under collective bargaining agreements and whether such generation company or supplier operates with employees hired as replacements during the course of a labor dispute to customers, in conformance with department requirements as to form and substance, and shall comply with federal and state laws governing unfair advertising and labeling.
(7) The department shall establish a code of conduct applicable to the provision of distribution and transmission services and the retail sale of electricity to all customers, including, but not limited to, rules and regulations governing the confidentiality of customer records, metering, billing, and information systems, and conformance with fair labor practices. The department is authorized and directed to oversee quality and reliability of service and to require that quality and reliability are the same as or better than levels that exist on November 1, 1997. The department is authorized and directed to retain or make increasingly protective of retail ratepayers the rules adopted by the department and codified at Title 220 of the Code of Massachusetts Regulations, sections 25, 27, 28, and 29, and the policies reflected in the department's adjudication of customer complaints, and, notwithstanding anything in this chapter to the contrary, shall continue to apply them to generation and thus to all generation companies, generation facilities, aggregators, and suppliers. The department is authorized and directed to promulgate rules and regulations to establish service quality standards for each distribution, transmission, and gas company, including, but not limited to, standards for universal service, customer satisfaction, service outages, telephone service, billing service, and public and employee safety. Any person, firm, electric or generation company, supplier, or other corporation doing business in the commonwealth who violates any provisions of said code or of any rule or regulation promulgated by the department pursuant to sections 1A to 1H, inclusive, or any provision of chapter 93A, pursuant to authority established by section 102C, shall be subject to a civil penalty not to exceed $25,000 for each violation for each day that the violation persists; provided, however, that the maximum civil penalty shall not exceed $1,000,000 for any related series of violations. Any such civil penalty shall be determined by the department after a public hearing. In determining the amount of the penalty, the department shall consider the following: the appropriateness of the penalty to the size of the business of the person, firm, or corporation charged; the gravity of the violation; and the good faith of the person, firm, or corporation charged in attempting to achieve compliance after notification of a violation.
(8)(a) Each customer choosing a generation company or its affiliate, subsidiary, or parent company, or a supplier or aggregator shall be required to affirmatively choose such entity. It shall be unlawful for a generation company, supplier, or aggregator to provide power or other services to such a customer without first obtaining said affirmative choice from the customer. For the purposes of this section, the term "affirmative choice" shall mean the signing of a letter of authorization, third party verification, or the completion of a toll-free call made by the customer to an independent third party operating in a location physically separate from the telemarketing representative who has obtained the customer's initial oral authorization to change to a new electricity provider. For the purposes of this section, the term "third party verification" shall mean an appropriately qualified and independent third party operating in a location physically separate from the telemarketing representative who has obtained the customer's oral authorization to change to a new electricity service provider, such authorization to include appropriate verification data, such as the customer's date of birth and social security number; provided, however, any such information or data in the possession of the third party verifier or the marketing company shall not be used, in any instance, for commercial or other marketing purposes, and shall not be sold, delivered, or shared with any other party for such purposes. Such authorization shall include appropriate verification data, such as the customer's date of birth and social security number; provided, however, any information or data in possession of the independent third party verifier or the marketing company shall not be used, in any instance, for commercial or other marketing purposes, and shall not be sold, delivered, or shared with any other party for such purposes.
For the purposes of this section, the term "letter of authorization" shall mean, (i) a separate document, an easily separable document containing only the authorizing language described in paragraph (d), whose sole purpose is to authorize a generation company, aggregator, or supplier to initiate a primary generation company, aggregator, or supplier change. The letter of authorization must be signed and dated by the consumer requesting the primary generation company, aggregator, or supplier change.
(ii) The letter of authorization shall not be combined with inducements of any kind on the same document.
(iii) At a minimum, the letter of authorization must be printed with a readable type of sufficient size to be clearly legible and must contain clear and unambiguous language that confirms:
(1) The consumer's billing name and address;
(2) The decision to change electricity service from the current generation company, aggregator, or supplier to the prospective generation company, aggregator or supplier;
(3) That the consumer understands that only one generation company, aggregator, or supplier may be designated as the consumer's electric company; and
(4) That the consumer understands that any primary generation company, aggregator, or supplier selection the consumer chooses may involve a charge to the consumer for changing the consumer's primary generation company, aggregator, or supplier.
(iv) Letters of authorization shall not suggest or require that a consumer take some action in order to retain the consumer's current generation company, aggregator, or supplier.
(v) If any portion of a letter of authorization is translated into another language, then all portions of the letter of authorization must be translated into that language.
Each customer choosing a generation company or its affiliate, subsidiary, or parent company, a supplier or aggregator shall have the right to rescind, without charge or penalty, his or her choice of generation company, aggregator, or supplier no later than midnight on the third day following the customer's receipt of a written confirmation of an agreement to purchase electricity. Upon the switching of a customer's service provider, there shall be included in the customer's first bill an acknowledgment to be completed by the customer agreeing to the service switch. Such bill shall also include all information mandated under clause (i) of subparagraph (5).
Each customer choosing a generation company or its affiliate subsidiary, or parent company, a supplier or aggregator shall have the right to rescind, without charge or penalty, the choice of generation company, aggregator, or supplier no later than midnight on the third day following the customer's receipt of a written confirmation of an agreement to purchase electricity and a statement of the terms and conditions of service as described in subsection (5)(i). Upon switching of a customer's service provider, there shall be included in the customer's bill for distribution service an acknowledgment of the service switch, along with information on how to file a complaint regarding an unauthorized switch.
(b) A customer may initiate a complaint that his retail electricity service has been switched by or to another service provider without his prior authorization. Said complainant shall file the complaint with the department within 30 days after the statement date of the notice indicating that the customer's retail electricity service has been switched. The department shall, within 10 business days of receiving the complaint, request from the customer a copy of the customer's electricity bill, the name of the original service provider, the name of the new service provider, and any other information the department may deem relevant. The customer shall, within 15 business days of the department's notifying the customer, submit to the department the requested information. Within 15 business days of receiving the request of information from the customer, the department shall send (i) to the customer, a letter acknowledging receipt of the information; (ii) to the original service provider, a letter informing it of the pending complaint and requesting it to provide information relevant to the service switch; and (iii) to the new service provider, a letter informing it of the pending complaint, requesting the proof of the customer's affirmative choice to switch his service provider, and requesting it to provide other information the department deems relevant. The original service provider and the new service provider shall, within five business days of the department's request, return the requested information to the department. Within 25 business days after receiving a copy of the customer's third party verification and all relevant information as required herein, the department shall determine if the customer authorized the new service provider to switch the customer's service.
(c) If the department determines that the new service provider does not possess the required proof of the customer's affirmative choice, the department shall calculate and require the new service provider to refund the following: (i) to the customer, the difference between what the customer would have paid to the previous service provider and actual charges paid to the new service provider; (ii) to the customer, any reasonable expense the customer incurred in switching back to the original service provider; and (iii) to the original service provider, any lost revenue, which shall consist of the amount of money the original service provider would have received for the service used by the customer during the time the customer received services from the new service provider if the customer's service had not been switched. This amount shall gross, irrespective of expenses, what the original service provider would have reasonably incurred providing the services to the customer. The department shall promulgate rules and regulations for the implementation of this subsection.
(d) Any generation company, supplier, or aggregator determined by the department to have switched any customer's service provider without proper authorization from the customer one or more times in a 12 month period shall be subject to a civil penalty not to exceed $1,000 for the first offense and not less than $2,000 nor more than $3,000 for any subsequent offense per customer. In determining the amount of the civil penalty, the department shall consider the nature, circumstances, and gravity of the violation, the degree of the respondent's culpability, and the respondent's history of prior offenses.
(e) Any generation company, supplier, or aggregator determined to have switched any customer's service provider without proper authorization more than 20 times in a 12 month period may, after a full hearing and determination by the department that such generation company supplier or aggregator intentionally, maliciously or fraudulently switched the service or more than 20 customers in a 12 month period, be prohibited from selling electricity in the commonwealth for a period of up to one year. In determining the length of suspension, the department shall consider the nature, circumstances and gravity of each violation and the degree of the culpability of the generation company, supplier or aggregator.
(f) The department shall track instances in which a generation company, supplier, or aggregator switched a customer's electricity service without the customer's prior authorization. The department shall keep a record of all unauthorized switches which occurred during a calendar year. Beginning with calendar year 1999, the department shall, by March 31 of each year, file an annual report with the joint committee on government regulations and the house and senate committees on ways and means detailing the total number of unauthorized switches, enforcement procedures undertaken by the department against such slamming tactics, so-called, the total amount of dollars returned to customers, the total amount of dollars collected in civil penalties pursuant to subsection (c), and the overall impact of the provisions of this section.
(9) Distribution companies which have at any time in the past three years billed their commercial or industrial customers, including institutional customers, in part on a demand basis, shall, in response to a customer's written request, provide such customers with a complete and accurate historic record of monthly demand profiles. Distribution companies shall be required to exercise best efforts to furnish such data to the customer on a timely basis. At a distribution company's election, the data may be provided in written form or electronically; provided, however, that, in the case of an electronic response by the distribution company, the distribution company shall be allowed to bill the customer for the out-of-pocket cost of providing such electronic record. The historic record of monthly demand shall be for a period not less than the most recent 12 months and shall include, at a minimum, the highest demand level observed over the month as well as the average monthly demand sustained over the month. To the extent deviations in the definition of the month are consistent with the distribution company's prior billing practices, such adjustments shall be permitted and so noted. To the extent the distribution company has imputed a demand usage profile in any or all prior periods, the distribution company shall indicate where prior measurements have not been based on actual recorded usage. In those instances where a distribution company has applied an imputed method for purposes of estimating a customer's demand profile, such distribution company shall describe the method used to define monthly demands.
Section 1G. (a)(1) The department shall, in accordance with the provisions of this section, identify and determine, upon application by a distribution company and the applicable electric company, those costs and categories of costs for generation-related assets, investments, and obligations, as determined pursuant to subsection (b), which may be allowed to be recovered through a non-bypassable transition charge authorized to be assessed and collected in accordance with the provisions of subsection (e). The department shall conduct a comprehensive audit of each distribution company and applicable electric company in order to assure substantial compliance with the provisions of this section; provided, however, that said audit shall be conducted in an expeditious manner. The department shall be authorized to contract for such services through an auditing or accounting company or organization which is fully independent of any such distribution company or applicable electric company. The department shall make a finding that any agreement filed by a company under this section is substantially consistent with an initial audit before allowing the recovery of transition costs by an electric company doing business in the commonwealth to commence. For electric companies without an agreement, transition costs shall not be reviewed or approved by the department until the department completes an initial audit of electric company records maintained on file at the department. Such audit shall include an accounting of all costs eligible for recovery in accordance with the provisions of this section. The department shall complete the comprehensive audit no later than December 31, 1998. No amount shall be collected by a distribution company through such non-bypassable transition charge unless such amount has been approved by the department in accordance with the provisions of this section.
(2) Notwithstanding any other provision of this section, the department shall review a financing order periodically, at a minimum not less than every 18 months from the inception of the original financing order, to determine if the amount of reimbursable transition costs amounts proved to be accurate. Such review shall be limited to a comparison of assumed costs and assumed mitigation to the actual costs determined through actual mitigation. If the amount of reimbursable transition costs amounts previously included in a financing order exceeds the correct amount of the reimbursable transition costs amounts, then the electric company shall provide ratepayers with a uniform rate credit based on usage that in total equals the amount of the excess including carrying costs or pay to the financing entity an amount equal to such excess and, provided that all reserve funds are fully funded, the financing entity shall use or escrow such funds to redeem or otherwise reduce the amount of the principal of the electric rate reduction bonds; provided, however, that any such transfers or adjustments shall not affect the rate of transition charges, the collection of such charges, or the transfer to the bondholder trustee of the charges which have been collected.
(b)(1) The department may allow a distribution company, which qualifies pursuant to the requirements of subsection (c), and upon the commencement of mitigation efforts as required by subsection (d), to collect a charge for net, non-mitigable past investment commitments incurred prior to January 1, 1996, by the applicable investor-owned electric company during its operations within a regulated electricity system which, subject to the conditions included in this section, are classified to be transition costs in accordance with the provisions of this section. The department shall develop guidelines and parameters to identify and determine which transition costs may be recovered by collection of a transition charge, which shall include only the following:
(i) the amount of any unrecovered fixed costs determined by the department for those costs and categories of costs for generation-related assets and obligations to have been prudently incurred and associated with producing electricity from existing generation facilities which were being collected in department-approved rates on January 1, 1997, and that become uneconomic as a result of the creation of a competitive generation market, in that these costs may not be recoverable in market prices in a competitive market;
(ii) the department-authorized recovery for nuclear entitlements by those electric companies which have divested their non-nuclear generation facilities pursuant to section 1A and those previously incurred or known liabilities incurred for post-shutdown and decommissioning costs associated with nuclear power plants which are not recoverable from the decommissioning fund as administered by the federal nuclear regulatory commission; provided, however, that the department shall monitor the amount to be recovered to assure that it shall not exceed the actual total costs necessary to effect shutdown and decommissioning;
(iii) the unrecovered amount of the reported book balances of existing generation-related regulatory assets, as approved by the department; provided, that, for the purposes of this clause, the term "regulatory assets" shall refer to the unrecovered balance of deferred costs that otherwise would have been recognized in the period in which they were incurred but have been specifically approved for deferral and later recovery by the department; and
(iv) the amount by which the costs of existing contractual commitments for purchased power exceeds the competitive market price for such power, upon the reaffirmation, restructuring, renegotiation, or termination of such contracts, or the liquidated payments associated with the disposal of these contracts in a department-approved divestiture plan, as determined in accordance with the provisions of paragraph (2) of subsection (d) of this section.
(2) In addition to the aforementioned amounts of transition costs allowed to be recovered pursuant to clauses (i) to (iv), inclusive, a distribution company may be allowed to recover through the transition charge certain costs incurred after January 1, 1996, which shall include only the following:
(i) in order to mitigate potential negative impacts on utility personnel directly affected by electric industry restructuring, costs associated with employee-related transition costs for personnel performing services in connection with services provided by electric utilities, as approved by the department, including costs incurred and projected for severance, retraining, early retirement, outplacement, supplemental unemployment benefits, and related expenses for the personnel; provided, that said costs result either from the execution of agreements reached through collective bargaining for union personnel or from the company's programs and policies for non-union personnel; provided, however, that there shall be no recovery for employee-related transition costs associated with officers, senior supervisory employees, and professional employees performing predominantly regulatory functions; and provided, further, that these costs so incurred and approved by the department shall be eligible for recovery only until March 1, 2005;
(ii) any payments or payments in lieu of taxes made pursuant to section 38H of chapter 59; and
(iii) any costs to remove and decommission retired structures at fossil fuel-fired generation facilities required pursuant to paragraph (2) of subsection (b) of section 1A.
(3) To the extent that the department does allow a distribution company to collect a transition charge under this subsection (b), for purposes of the computation of any carrying costs that the department may determine to allow, the cost of equity component of any such computation shall be determined as follows:
(a) to the extent that the cumulative average of the transition charge is no more than $0.01 per kilowatt-hour, the company may collect total revenue under that transition charge sufficient to provide for carrying charges computed with a cost of equity capital no more than one hundred basis points above the cost of common equity capital determined by the department in the most recent adjudicated base rate proceeding under section 94 of this chapter prior to December 31, 1996 that involved an electric company;
(b) to the extent that the cumulative average of the transition charge is more than $0.01 but not more than $0.02 per kilowatt hour, the company may collect total revenue under that transition charge sufficient to provide for carrying charges computed with a cost of equity capital no more than the rate set forth in subsection (a), less one basis point for each one tenth of one mil by which the cumulative average transition charge is more than $0.01; and
(c) to the extent that the cumulative average of the transition charge is more than $0.02 the company may collect total revenue under that transition charge sufficient to provide for carrying charges computed with a cost of equity capital no more than the rate set forth in subsection (a), less 100 basis points, and less an additional two basis points for each one tenth of one mil ($0.0001) by which the cumulative average transition is more than $0.02 above the market rate for power provided under comparable terms.
(d) provided that in no event shall the department determine to allow any carrying costs for any period beyond the year 2009 on any unamortized balance of costs allowable as transition costs under clauses (i) and (ii) of paragraph (1) of subsection (b).
(c)(1) The department may, in accordance with the provisions of this subsection, authorize a distribution company to recover eligible transition costs if the following conditions are met:
(i) the company has filed on or before March 1, 1998, a plan to provide all of its retail customers the ability to purchase electricity from an alternative supplier or generation company as of March 1, 1998;
(ii) the distribution company, through the applicable electric company, has developed and will implement a plan to divest itself of its portfolio of all non-nuclear generation assets by August 1, 1999, pursuant to subsection (b) of section 1A;
(iii) the applicable electric company, pursuant to subsection (d) of this section, has developed and will implement a plan for all required, necessary, and reasonable mitigation methods to reduce potential transition costs; and
(iv) the plan formulated pursuant to clause (i) herein provides a standard service transition rate and rate reduction as required pursuant to section 1B.
(2) A distribution company is hereby authorized to attain the additional rate reduction required pursuant to said section 1B through the use of securitization, subject to the provisions of section 1H. A distribution company's use of securitization shall be approved by the department and shall be subject to the achievement of mitigation efforts satisfactory to the department pursuant to subsection (d); provided, that if a company chooses to achieve any such required rate reduction through securitization, the company shall demonstrate to the department that said rate reduction is not financially viable without the use of securitization.
(3) If, after the submittal of a restructuring plan to the department pursuant to section 1A, a distribution company claims that it is unable to meet a price reduction of 10 per cent reduction pursuant to subsection (a) of section 1A and subsection (b) of section 1B it shall petition the department to explore any and all possible mechanisms and options within the limits of the constitution which may be available to the department to achieve compliance with the provisions of this section, including, but not limited to, the department may authorize an alternate generation company or supplier to provide the standard offer service package as set forth in subsection (b) of section 1B if said alternate service is determined by the department to be in the public interest and necessary to achieve said required rate reductions for its consumers.
(4) If, after the submittal of a restructuring plan to the department pursuant to section 1A, a distribution company claims that it is unable to meet a price reduction of 15 per cent reduction pursuant to subsection (b) of section 1B it shall petition the department to explore any and all possible mechanisms and options within the limits of the constitution which may be available to the department to achieve compliance with the provisions of this section, including, but not limited to, the department may authorize an alternate generation company or supplier to provide the standard offer service package as set forth in subsection (b) of section 1B if said alternate service is determined by the department to be in the public interest and necessary to achieve said required rate reductions for its consumers; provided, however, that the department may, upon petition of a company unable to comply with the rate reduction required under subsection (b) of section 1B, certify that the petitioner is eligible to receive funds from the Ratepayer Parity Trust Fund, established pursuant to section 62 of chapter 10. The department shall, in cooperation with the secretary of administration and finance, promulgate regulations to establish a procedure to disburse monies appropriated from said trust fund. The department shall consider and may adopt proposals submitted by other parties, including but not limited to the office of the attorney general, outlining means and mechanisms by which a company could further mitigate its assets in order to comply with said rate reduction of 15 per cent as referenced in subsection (b) of section 1B; provided, however, in the event a company claims that it is unable to meet at least the 15 per cent reduction as set forth in subsection (b) of section 1B, the department shall work with said company to explore and implement all methods to achieve the required 15 per cent reduction; and provided, further, that said company shall be excluded from the provisions of paragraph (2) of subsection (b) of section 1A or subsection (c).
(d)(1) Any electric company seeking to recover transition costs pursuant to this section shall, in accordance with the provisions of this subsection, mitigate any such transition costs. Prior to the approval by the department of any plan allowing for such recovery, the department shall issue an order finding that the electric company has taken all reasonable steps to mitigate to the maximum extent possible the total amount of transition costs that will be recovered and to minimize the impact of recovery of such transition costs on ratepayers in the commonwealth. Mitigation efforts which an electric company shall engage in shall include, but not be limited to, the following: (i) the divestiture of non-nuclear generation facilities in accordance with the provisions of section 1A; provided, however, that all net proceeds from such divestiture pursuant to said section 1A shall be dedicated to reducing such company's total transition cost amount and the transition charge allowed to be assessed and collected by a distribution company pursuant to this section; (ii) the electric company, in accordance with the provisions of paragraph (2), shall engage in good faith efforts to renegotiate, restructure, reaffirm, terminate, or dispose of existing contractual commitments for purchased power which exceed the competitive market price for such power as determined in accordance with said paragraph (2); provided, however, that the department shall not begin to review a registration application filed pursuant to paragraph (1) of section 1F until such company with a purchased power contract with a price determined to be above-market commences such good faith efforts with such electric company as required herein; and provided further, that the department shall promulgate rules and regulations which shall establish a standard for good faith; (iii) an examination and analysis of the historic level of performance over the life of such contractual commitments for purchase power, regardless of whether or not they exceed the competitive market price; (iv) upon the determination of an amount of transition costs, further mitigation shall include netting against such above-market costs any below market assets other than those associated with distribution or transmission which are owned by the company; (v) except to the extent that such matters are provided for in collective bargaining agreements or asset purchase agreements negotiated prior to this act, or amendments to such previously negotiated asset purchase agreements, by obtaining written commitments that purchasers of divested operations will offer employment to the impacted employees who were employed in non-managerial positions to provide services for the divested operations at any time during the three month period prior to the divestiture, at levels of wages and overall compensation not lower than the employees' prior levels for a period of six months; and (vi) any other mitigation and analytical activities which the department determines to be reasonable and effective mechanisms for reducing identifiable transition costs.
(2)(i) In order to mitigate any costs in excess of the projected market value of power associated with purchased power contracts approved by the department on or by December 31, 1995, except with respect to facilities which burn trash to generate electricity, electric companies and the sellers under such contracts shall make good faith efforts to renegotiate those contracts which contain a price for electricity which is above-market as of March 1, 1998, in order to achieve reductions in the transition charges, authorized to be assessed pursuant to subsection (e), which are attributable to any such contract, as determined by the department. For the purposes of this chapter, the standard of good faith shall not require either party to agree to a proposal or require the making of concessions, but shall require active participation in negations and a willingness to make reasonable concessions in order to equitably mitigate stranded costs, and to provide justification for proposals, and a sincere effort to reach agreement. Beginning July 1, 1998, and at least annually thereafter, the department shall continue to review said aforementioned purchased power contracts in order to determine if such contracts contain a price for electricity which is above-market as of the date of review. If such contract is determined to be above-market, the electric company and the seller under such contract shall, in accordance with the provisions of this chapter, attempt to make a good-faith effort to renegotiate such contract in order to achieve further reductions in the transition charge. If an electric company has as a part of a department-approved divestiture plan assigned such contract to a buyer having adequate financial resources, the electric company shall have met its obligations under this paragraph. Furthermore, if a seller under such contract has consented to assignment of the existing contract to the buyer and has agreed to release the electric company from its obligations under such contract, the seller shall have met its obligations under this paragraph.
(ii) Upon a finding by the department that a negotiated contract buyout or other modification to the terms and conditions of such contracts is likely to achieve savings to the ratepayers and is otherwise in the public interest, the remaining amounts in excess of market value associated with such contract shall be included in the transition charges, which are authorized to be assessed pursuant to said subsection (e) and upon commencement of mitigation efforts as required herein. Upon a finding by the department that a seller has made a bona fide offer for a contract buyout or modification which is likely to achieve ratepayer savings and is otherwise in the public interest, which offer has been refused by the purchasing electric company, only those amounts in excess of market value associated with such contract that would not have been mitigated by such offer shall be included in the transition charges authorized pursuant to said subsection (e), and the seller shall be deemed to have met its obligation to negotiate in good faith. In order to compel such negotiations, (a) electricity companies are hereby authorized to use securitization, only to the extent allowed pursuant to section 1H, to finance the costs of buydowns or buyouts of said contracts, and (b) the department shall not begin to review a licensure application filed pursuant to paragraph (1) of section 1F until such time as the seller under a purchased power contract with a price determined to be above-market has commenced good faith efforts in accordance with the standard for good faith set forth in subparagraph (i) of paragraph (2). The department is hereby authorized to approve the recovery of such costs associated with such contract buydowns or buyouts. At least every 30 days, said companies shall report the status of such renegotiations to the department.
(3) An electric company which fails to commence and complete the divestiture of its non-nuclear generation assets shall not be eligible to benefit from the securitization provisions and the issuance of electric rate reduction bonds pursuant to section 1H, subject to determination by the department. An electric company, which chooses under section 1A not to divest all of its non-nuclear generation facilities shall subject its nuclear and non-nuclear generation facilities and purchased power contracts to a valuation pursuant to said section 1A under which the department shall determine the market value of such generation facilities and contracts. The department shall require a reconciliation of projected transition costs to actual transition costs by March 1, 2000, and for every 18 months thereafter through March 1, 2008, or the termination date of any transition charge allowed to be assessed pursuant to subsection (e).
(4) Securitization shall not be made available pursuant to section 1H unless the electric company proves to the satisfaction of the department the following: (i) it has fully mitigated, as defined in section 1, the related transition costs, including but not limited to, as applicable, divestiture of its non-nuclear generation facilities pursuant to section 1A, renegotiation of existing power purchase contracts, and the valuation of assets of the company, including, but not limited to, rights-of-way, property, and intangible assets; (ii) savings to ratepayers will result from securitization; (iii) all such savings derived from securitization shall inure to the benefit of ratepayers; (iv) except to the extent that such matters are provided for in collective bargaining agreements or asset purchase agreements negotiated prior to this act, or amendments to such previously negotiated asset purchase agreements, it has obtained written commitments that purchasers of divested operations will offer employment to the impacted employees who were employed in non-managerial positions to provide services for the divested operations at any time during the three month period prior to the divestiture, at levels of wages and overall compensation no lower than the employees' prior levels; and (v) the electric company demonstrates that it has established, with the approval of the department, an order of preference for use of bond proceeds such that transition costs having the greatest impact on customer rates will be the first to be reduced by those proceeds.
(e) The department is hereby authorized and directed to allow any approved transition costs to be recovered from ratepayers through a non-bypassable transition charge collected by the distribution company providing transmission or distribution service to such ratepayers. For each electric company submitting requests to the department for the recovery of transition costs, the department shall impose a cap upon the level of the transition charge, which shall remain in effect until altered upon action by the department; provided, however, that in no instance shall such charge be adjusted to reflect inflation. Any transition charge collected shall be used for the specific purposes of paying for transition costs as identified pursuant to the provisions of subsection (b) of this section. Amortization of transition cost recovery may be accelerated relative to recovery of such costs assumed in current rates, but in no case shall such amortization result in an increase in rates for any class of customer of an electric company over rates in effect as of December 31, 1997, for that company. The department shall, on a case by case basis, determine the date upon which there shall be no allowance for transition cost recovery in any rate charged by any transmission or distribution company.
(f) The department shall, in writing, notify the joint committee on government regulations of the general court within one business day upon the approval and initiation of a transition charge to any electric company pursuant to the provisions of this section. Subsequent to such notification, said committee may conduct a public hearing or hearings on such a determination for the purpose of updating the general court on the methodology used by the department to determine allowable transition cost recovery and the results of mitigation measures agreed to by electric companies to lower their transition costs.
(g) Effective as of March 1, 1998, if the utility and the department have received at least a six months notice of the customer's plans to install on-site cogeneration equipment, renewable energy technologies, fuel cells, or to purchase electricity through cogeneration equipment, a customer that reduces purchases of electricity through the operation of, or purchases from, on-site generation or cogeneration equipment, shall not be subject to an exit charge if (i) such customer provided less than or equal to 10 per cent of the annual gross revenues collected by its previous service provider in the year prior to the customer leaving the system after the retail date established in this bill; provided, however, that in the event that two or more customers who, at any time within a 36-month time period, leave such system, after the retail access date established in this bill, and represent together the aggregate of greater than or equal to more than 10 per cent of the annual gross revenues collected by such previous service provider in the year prior to the initial exit from the system, all such customers shall be subject to an exit charge based upon that portion of the annual gross revenues which is over the 10 per cent limit; and provided, further, that such fee shall be prorated amongst such customers who have left or are leaving on the system based upon the proportion of annual gross revenues each customer represented within the total amount of gross revenues being subtracted from the service provider's system; or (ii) the customer reduces purchases through the operation of, or purchases from, on site renewable energy technologies, fuel cells, or cogeneration equipment with a combined heat and power system efficiency of at least 50 per cent, based upon the higher heating value of the fuel used in the system; or (iii) the customer reduces purchases through the operation of, or purchases from, an on site generation or cogeneration facility of 60 kilowatts or less which is eligible for net metering. Except as provided in existing contracts or tariffs, the department and the utility shall not require more than six months notice of the customer's plans to install said equipment. Any such exit charge shall be payable to the customer's distribution company for the benefit of other customers. Such exit charge may be equal to but no greater than the expected value of the access charge payments the customer would have paid out but for the operation of such equipment and shall be determined by the department based upon federal and state law, any applicable judicial determinations, and criteria promulgated by the department through rules and regulations. Notwithstanding clauses (i) to (iv), inclusive, if the total kilowatt hour usage in any service territory falls below usage levels following the installation of such on-site generation or cogeneration equipment, and the department determines that the aggregate reduction in future purchases of electricity and transition charge payments resulting from customers' installing such equipment will have a significant adverse impact on electric bill to be paid by other customers in said distribution company's territory during the remaining period of transition cost recovery, then the department may order that an exit charge shall be paid on such terms as determined by the department based upon criteria promulgated herein and through rules and regulations. The department shall issue a report on July 1, 1999 and every year thereafter, for the period of transition cost recovery, relative to degree of impact on the aggregate reduction of the electricity and impact on transition charges due to implementation or use of cogeneration systems, fuel cell and renewable energy technologies.
(h) If an electric company or distribution company challenges through the administrative or judicial process a determination of the department relative to an amount or particular component of transition costs allowed or disallowed to be recovered pursuant to the provisions of this section, or if an electric company or distribution company challenges through the administrative or judicial process the manner or mechanism the department utilizes to determine an amount or particular of such transition costs, such challenge shall not prevent the department from implementing any provision of chapter 25, 25A or 164 as it relates to said electric company or distribution company or any other electric company or distribution company not involved in the dispute. During the period of time such challenge is in effect until a resolution of such is attained, said electric company or distribution company shall continue to collect any and all monies so authorized to be collected and maintain the amount under dispute in an escrow account. Once a resolution of such challenge is attained, the department shall, if necessary, make any adjustment upwards or downwards to any charge such electric company or distribution company is allowed to collect pursuant to section 1H, and such electric company or distribution company shall dispose of such monies in said escrow account accordingly.
(i) The department is hereby authorized and directed to promulgate rules and regulations to carry out the provisions of this section.
Section 1H. (a) As used in this section the following words shall, unless the context otherwise requires, have the following meanings:-
"Agency", the Massachusetts Industrial Finance Agency, established pursuant to section 31 of chapter 23A.
"Authority", the Massachusetts Health and Educational Facilities authority, established pursuant to chapter 614 of the acts of 1968.
"Department", the department of telecommunications and energy.
"Electric company", an electric company as defined in section 1.
"Electric rate reduction bonds", bonds, notes, certificates of participation or beneficial interest, or other evidences of indebtedness or ownership, issued pursuant to an executed indenture, financing document, or other agreement of the financing entity, secured by or payable from transition property, the proceeds of which are used to provide, recover, finance, or refinance transition costs or to acquire transition property and that are secured by or payable from transition property.
"Financing entity", (i) the Massachusetts Industrial Finance Agency and the Massachusetts Health and Educational Facilities Authority acting jointly pursuant to a mutual agreement, (ii) any special purpose trust, or (iii) any financing entity which is authorized by the department pursuant to a financing order to issue electric rate reduction bonds or acquire transition property in accordance with the provisions of this section.
"Financing order", an order of the department adopted in accordance with this section approving a plan, which shall include, without limitation, a procedure to review and approve periodic adjustments to transition charges to include recovery of principal and interest and the costs of issuing, servicing, and retiring electric rate reduction bonds contemplated by the financing order.
"Reimbursable transition costs amounts", the total amount authorized by the department in a financing order to be collected through the transition charge, as defined pursuant to section 1, and allocated to an electric company in accordance with a financing order.
"Special purpose trust", any trust, partnership, limited partnership, association, corporation, nonprofit corporation, limited liability company, or other entity established and authorized by the agency and the authority to acquire transition property or to issue rate reduction bonds, or both, subject to approvals by the agency and the authority and the powers of the agency and the authority as provided by the agency and the authority in their resolutions authorizing the entities to issue rate reduction bonds.
"Transition costs", the costs determined pursuant to section 1G which remain after accounting for maximum possible mitigation, subject to determination by the department.
"Transition charge", the charge to the customers which provides the mechanism for the recovery of an electric company's transition costs.
"Transition property", the property right created pursuant to this section, including, without limitation, the right, title, and interest of an electric company or a financing entity to all revenues, collections, claims, payments, money, or proceeds of or arising from or constituting reimbursable transition costs amounts which are the subject of a financing order, including those non-bypassable rates and other charges that are authorized by the department in the financing order to recover transition costs and the costs of providing, recovering, financing, or refinancing the transition costs, including the costs of issuing, servicing, and retiring electric rate reduction bonds.
(b)(1) The department may issue financing orders in accordance with this section to facilitate the provision, recovery, financing, or refinancing of transition costs. A financing order shall specify that amounts collected from a customer shall be allocated first to current and past due transition charges and then other charges and that, upon the issuance of electric rate reduction bonds, transition charges collected shall be allocated first to transition property and second to transition charges, if any, that are not subject to a financing order.
(2) An electric company may, by January 1, 1999, and from time to time thereafter as established by the department, file with the department an application that provides that its transition costs may be recovered through reimbursable transition costs amounts, which would therefore constitute transition property under this section. An electric company may, upon the department's written determination of substantial and documentable relative rate reduction, utilize a financing entity other than the state-designated financing entity or special purpose trust. The department shall promulgate rules and regulations establishing the form and content of said applications and establishing the procedure to be utilized for the filing and approval of said applications. The department may view such applications in separate proceedings or in an order instituting investigation or order instituting rule making, or both. The electric company shall in its application specify that its customers would benefit from reduced electricity rates through the issuance of electric rate reduction bonds. The department shall determine reimbursable transition costs amounts recoverable in one or more financing orders if the department determines, as part of its findings in connection with the financing order, that the designation of the reimbursable transition costs amounts and the issuance of electric rate reduction bonds by the financing entity in connection with some or all of the reimbursable transition costs amounts would reduce rates that an electric company's customers would have paid if the financing order were not adopted, and that such rates will be reduced in aggregate amounts equal to savings realized by the electric company with respect to the financing order; provided, however, that said bonds may qualify for tax-exempt status to the full extent of state and federal law; provided further, that the department shall consult with the financing entity in making its determinations concerning electric rate reduction bonds; and provided, further, that the electric company has complied with the applicable transition cost mitigation measure, pursuant to subsection (d) of section 1G. The transition charge and its payment as provided in the financing order shall be binding on all current and future distribution companies and users of such distribution system until the bonds are paid in full by the financing entity. A financing order shall expire after two years if no rate reduction bonds have been issued pursuant thereto.
(3) Notwithstanding any other general or special law, rule, or regulation to the contrary, except as otherwise provided in this section with respect to transition property which has been made the basis for the issuance of electric rate reduction bonds, the financing orders and the reimbursable transition costs amounts shall be irrevocable, and the department shall not have authority, either by rescinding, altering, or amending the financing order or otherwise, to revalue or revise for ratemaking purposes the transition costs, determine that the reimbursable transition costs amounts or transition charges are unjust or unreasonable, or in any way reduce or impair the value of transition property either directly or indirectly by taking reimbursable transition costs amounts into account when setting other rates for the electric company, nor shall the amount of revenues arising with respect thereto be subject to reduction, impairment, postponement, or termination. Except as otherwise provided in this paragraph, the commonwealth does hereby pledge and agree with the owners of transition property and holders of electric rate reduction bonds that the commonwealth shall not (i) alter the provisions of this chapter which make the transition charges imposed by the financing order irrevocable and binding or (ii) limit or alter the reimbursable transition costs amounts, transition property, financing orders, and all rights thereunder until the electric rate reduction bonds, together with the interest thereon, are fully met and discharged. The financing entity as agent for the commonwealth is hereby authorized to include this pledge and undertaking for the commonwealth in these electric rate reduction bonds.
(4)(i) Financing orders issued pursuant to the provisions of this section shall not constitute a debt or liability of the commonwealth or of any political subdivision thereof, other than the financing entity, and shall not constitute a pledge of the full faith and credit of the commonwealth or any of its political subdivisions, other than the financing entity, but shall be payable solely from the funds provided therefor pursuant to the provisions of this section. All the bonds shall contain on the face thereof the following statement: Neither the full faith and credit nor the taxing power of the commonwealth of Massachusetts is pledged to the payment of the principal of, or interest on, this bond.
(ii) The issuance of electric rate reduction bonds pursuant to the provisions of this section shall not obligate the commonwealth, or any political subdivision thereof, to levy or to pledge any form of taxation therefor or to make any appropriation for their payment.
(iii) The exercise of the powers granted by this section shall be in all respects for the benefit of the people of the commonwealth, for the increase of their commerce and prosperity, and for the improvement of their health and living conditions. As the exercise of such powers shall constitute the performance of essential governmental functions, the financing entity shall not be required to pay any taxes or assessments upon the property acquired or used by the financing entity pursuant to the provisions of this section or upon the income therefrom. The bonds or other instruments issued pursuant to the provisions of this section, their transfer and the income therefrom, including any profit made on the sale thereof, shall at all times be free from taxation within the commonwealth.
(iv) Any electric rate reduction bonds or other instruments issued by the financing entity shall be used to pay for mitigated transition costs related to subsection (b) of section 1G.
(v) Electric rate reduction bonds and other instruments so approved and issued by a financing entity pursuant to the provisions of this section are hereby made securities in which all public officers and public bodies of the commonwealth and its political subdivisions, all insurance companies, and savings banks, cooperative banks and trust companies in their banking departments and within the limits set by section 14 of chapter 167E, banking associations, investment companies, executors, trustees, and other fiduciaries, and all other persons whatsoever who are now or may hereafter be authorized to invest in bonds or other obligations of a similar nature, may properly and legally invest funds, including capital in their control or belonging to them, and such bonds are hereby made obligations which may properly and legally be made eligible for the investment of savings deposits and the income thereof in the manner provided by section 15B of chapter 167. Such bonds are hereby made securities which may properly and legally be deposited with and received by any state or municipal officer or any agency or political subdivision of the commonwealth for any purpose for which the deposit of bonds or other obligations of the commonwealth is now or may hereafter be authorized by law.
(vi) The repayment of terms of any electric rate reduction bonds issued for the purpose of paying for transition costs related to clause (iv) of paragraph 1 of subsection (b) of section 1G shall, subject to the department's approval, extend for not more than 15 years; provided, that in the event the department determines that a longer repayment period would inure to the benefit of residential ratepayers, the department shall approve any securitization plan that maximizes rate affordability to such ratepayers.
(5) The department shall establish procedures for the expeditious processing of applications for financing orders, including the approval or disapproval thereof within 120 days of the electric company filing; provided, however, that an electric company shall file a new application with the department within 45 days of any such disapproval, if so ordered by the department. A financing order shall also include a procedure whereby the department shall periodically review the rate of transition charges authorized therein on each anniversary of the date of such order and at such additional intervals as may be provided for in such order, and shall approve adjustments, if required, within 60 days of each such anniversary and of each such additional interval date, such rate of transition charges if and to the extent necessary to ensure the timely recovery of revenues sufficient to provide for the payment of all principal, interest, premium, if any, and other charges in respect of the electric rate reduction bonds approved by the department pursuant to such financing order.
(6) Reimbursable transition costs amounts shall constitute transition property when, and to the extent that, a financing order authorizing the reimbursable transition costs amounts have become effective in accordance with the provisions of this section. The transition 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 financing order, but in any event until the electric rate reduction bonds are paid in full, including all principal, interest, premium, costs, and arrearages thereon. Prior to its sale or other transfer by the electric company pursuant to this section, transition property shall be a vested contract right of the electric company, notwithstanding any contrary treatment thereof for accounting, tax, or other purpose.
(7) Any unanticipated transition changes that are generated in excess of the amounts necessary to pay principal, premium, if any, interest, and expenses of the issuance of the electric rate reduction bonds shall be remitted to the financing entity to be held or distributed in accordance with the financing order and, provided that all reserve funds are fully funded, may be used to benefit customers if this would not result in a recharacterization of the tax, accounting, and other intended characteristics of the financing, including, but not limited to, the following intended characteristics: (i) avoiding the recognition of debt on the electric company's balance sheet for financial accounting and regulatory purposes; (ii) treating the electric rate reduction bonds as debt of the electric company or its affiliates for federal income tax purposes; (iii) treating the transfer of the transition property by the electric company as a true sale for bankruptcy purposes; and (iv) avoiding any adverse impact of the financing on the electric company's credit rating.
(8) In no event shall any financing order (i) authorize or require the customers of an electric company other than the electric company applying for such financing order and its successors to pay any transition charges or other amounts with respect to the transactions authorized by such financing order; or (ii) authorize, permit, or require that any amounts arising from the transactions authorized by such financing order be used to subsidize or benefit an electric company or the customers thereof other than the electric company and the affiliates thereof applying for such financing order and its affiliates' customers. A financing order shall require that transition charges be paid over to the financing entity within one calendar month of collection.
(c)(1) The financing entity may issue electric rate reduction bonds approved by the department in the pertinent financing orders. Electric rate reduction bonds shall be nonrecourse to the credit of it or any assets of the electric company, other than the transition property as specified in the pertinent financing order.
(2) Electric companies may sell or assign all or portions of their interest in transition property to an affiliate. Electric companies or their affiliates may sell or assign their interests to one or more financing entities that make that property the basis for issuance of electric rate reduction bonds to the extent approved in the pertinent financing orders. Electric companies, their affiliates, or financing entities may pledge transition property as collateral for electric rate reduction bonds to the extent approved in the pertinent financing orders providing for a security interest in the transition property, in the manner as set forth in subsection (d).
In addition, transition property may be sold or assigned by either (i) the financing entity or a trustee for the holders of electric rate reduction bonds in connection with the exercise of remedies upon a default, or (ii) any person acquiring the transition property after a sale or assignment pursuant to this subsection.
(3) To the extent that any interest in transition property is so sold or assigned, or is so pledged as collateral, the department shall require, pursuant to the policing and regulatory power of the commonwealth, the electric company and any successor or any other entity acting as an electric company within the service territory to contract with the financing entity that it will continue to operate its system to provide service to its customers, will collect amounts in respect of the reimbursable transition costs amounts for the benefit and account of the financing entity, and will account for and remit these amounts to or for the account of the financing entity. Contracting with the financing entity in accordance with such authorization shall not impair or negate the characterization of the sale, assignment, or pledge as an absolute transfer, a true sale, or security interest, as applicable.
(4) Notwithstanding any general or special law, rule, or regulation to the contrary, any provision under this section or a financing order requiring the department take action with respect to the subject matter of a financing order shall be binding upon the department, as it may be constituted from time to time, and any successor agency exercising functions similar to the department and the department shall have no authority to rescind, alter, or amend that requirement in a financing order.
(d)(1) A security interest in transition property is valid and enforceable against the pledgor and third parties, subject to the rights of any third parties holding security interests in the transition property perfected in the manner described in this subsection, and attaches when all of the following have taken place: (i) the department has issued the financing order authorizing the bondable reimbursable transition costs amounts included in the transition property; (ii) value has been given by the pledgees of the transition property; and (iii) the pledgor has signed a security agreement covering the transition property.
(2) A valid and enforceable security interest in transition property shall be perfected when it has attached and when a financing statement has been filed in accordance with article 9 of chapter 106 naming the pledgor of the transition property as "debtor" and identifying the transition property. Any description of the transition property shall be sufficient if it refers to the financing order creating the transition property. A copy of the financing statement shall be filed with the department by the electric company which is the pledgor or transferor of the transition property, and the department may require the electric company to make other filings with respect to the security interest in accordance with procedures it may establish; provided, however, that the filings shall not affect the perfection of the security interest.
(3) A perfected security interest in transition property shall be a continuously perfected security interest in all revenues and proceeds arising with respect thereto, whether or not the revenues or proceeds have accrued. Conflicting security interests shall rank according to priority in time of perfection. Transition property shall constitute property for all purposes, including for contracts securing electric rate reduction bonds, whether or not the revenues and proceeds arising with respect thereto have accrued.
(4) Subject to the terms of the security agreement covering the transition property and the rights of any third parties holding security interests in the transition property perfected in the manner described in this subsection, the validity and relative priority of a security interest created pursuant to this subsection shall not be defeated or adversely affected by the commingling of revenues arising with respect to the transition property with other funds of the electric company that is the pledge or transferor of the transition property. Subject to the terms of the security agreement, the pledgees of the transition property shall have a perfected security interest in all cash and deposit accounts of the electric company in which revenues arising with respect to the transition property have been commingled with other funds, but the perfected security interest shall be limited to an amount not greater than the amount of the revenues with respect to the transition property received by the electric company within 12 months before either (i) any default under the security agreement, or (ii) the institution of insolvency proceedings by or against the electric company, less payments from the revenues to the pledgees during that 12-month period.
(5) If an event of default occurs under the security agreement covering the transition property, the pledgees of the transition property, subject to the terms of the security agreement, shall have all rights and remedies of a secured party upon default pursuant to article 9 of chapter 106 and such other rights and remedies as may be provided in the financing order, and shall be entitled to foreclose or otherwise enforce their security interest in the transition property, subject to the rights of any third parties holding prior security interests in the transition property perfected in the manner provided in this section. In addition, the department may require, in the financing order creating the transition property, that, in the event of default by the electric company in payment of revenues arising with respect to the transition property, the commission and any successor thereto, upon the application by the pledgees or transferees, including transferees under subsection (f), of the transition property, and without limiting any other remedies available to the pledgees or transferees by reason of the default, shall order the sequestration and payment to the pledgees or transferees of revenues arising with respect to the transition property. Any order shall remain in full force and effect notwithstanding any bankruptcy, reorganization, or other insolvency proceedings with respect to the debtor, pledgor, or transferor of the transition property. Any surplus in excess of amounts necessary to pay principal, premium, if any, interest, costs, and arrearages on the electric rate reduction bonds, and other costs arising under the security agreement, shall be remitted to the debtor or to the pledgor or transferor.
(6) The state secretary shall establish and maintain a separate system of records to reflect the date and time of receipt of all filings made under this subsection (d) to perfect security interests in transition property and to effect the transfer to an assignee of any interest in a financing order.
(e) Unless otherwise ordered by the department with respect to any series of electric rate reduction bonds on or prior to the issuance of the series, there shall exist a statutory lien as provided in this subsection. Upon the effective date of the financing order, there shall exist a first priority lien on all transition property then existing or thereafter arising pursuant to the terms of the financing order. This lien shall arise by operation of this subsection automatically without any action on the part of the electric company, any affiliate thereof, the financing entity, or any other person. This lien shall secure all obligations, then existing or subsequently arising, to the holders of the electric rate reduction bonds issued pursuant to the financing order, the trustee or representative for the holders, and any other entity specified in the financing order. The persons for whose benefit this lien is established shall, upon the occurrence of any defaults specified in the financing order, have all rights and remedies of a secured party upon default pursuant to article 9 of chapter 106, and shall be entitled to foreclose or otherwise enforce this statutory lien in the transition property. This lien shall attach to the transition property regardless of whom shall own, or shall subsequently be determined to own, the transition property, including any electric company, any affiliate thereof, the financing entity, or any other person. This lien shall be valid, perfected, and enforceable against the owner of the transition property and all third parties upon the effectiveness of the financing order without any further public notice; provided, however, that any person may, but shall not be required to, file a financing statement in accordance with subsection (d). Financing statements so filed may be "protective filings" and shall not be evidence of the ownership of the transition property.
A perfected statutory lien in transition property shall be a continuously perfected lien in all revenues and proceeds arising with respect thereto, whether or not the revenues or proceeds have accrued. Conflicting liens shall rank according to priority in time of perfection. Transition property shall constitute property for all purposes, including for contracts securing rate reduction bonds, whether or not the revenues and proceeds arising with respect thereto have accrued.
In addition, the department may require, in the financing order creating the transition property, that, in the event of default by the electric company in payment of revenues arising with respect to transition property, the department and any successor thereto, upon the application by the beneficiaries of the statutory lien, and without limiting any other remedies available to the beneficiaries by reason of the default, shall order the sequestration and payment to the beneficiaries of revenues arising with respect to the transition property. Any order shall remain in full force and effect notwithstanding any bankruptcy, reorganization, or other insolvency proceedings with respect to the debtor, pledgor, or transferor of the transition property. Any surplus in excess of amounts necessary to pay principal, premium, if any, interest, costs, and arrearages on the electric rate reduction bonds, and other costs arising in connection with the documents governing the electric rate reduction bonds, shall be remitted to the debtor or to the pledgor or transferor.
(f)(1) A transfer of transition property by an electric company to an affiliate or to a financing entity, or by an affiliate of an electric company or a financing entity to another financing entity, which the parties have in the governing documentation expressly stated to be a sale or other absolute transfer, in a transaction approved in a financing order, shall be treated as an absolute transfer of all of the transferor's right, title, and interest, as in a true sale, and not as a pledge or other financing, of the transition property, other than for federal and state income purposes. Granting to holders of electric rate reduction bonds a preferred right to revenues of the electric company, or the provision by the company of other credit enhancement with respect to electric rate reduction bonds, shall not impair or negate the characterization of any transfer as a true sale, other than for federal and state income purposes.
(2) A transfer of transition property shall be deemed perfected as against third persons when both of the following have taken place: (i) the department has issued the financing order authorizing the fixed transition amounts included in the transition property; and (ii) an assignment of the transition property in writing has been executed and delivered to the transferee.
(3) As between bona fide assignees of the same right for value without notice, the assignee first filing a financing statement in accordance with article 9 of chapter 106 naming the assignor of the transition property as debtor and identifying the transition property has priority. Any description of the transition property shall be sufficient if it refers to the financing order creating the transition property. A copy of the financing statement shall be filed by the assignee with the department. The department may require the assignor or the assignee to make other filings with respect to the transfer in accordance with procedures it may establish, but these filings shall not affect the perfection of the transfer.
(g) Any successor to the electric company, whether pursuant to any bankruptcy, reorganization, or other insolvency proceeding, or pursuant to any merger, sale, or transfer, by operation of law, or otherwise, shall perform and satisfy all obligations of the electric company pursuant to this section in the same manner and to the same extent as the electric company, including, but not limited to, collecting and paying to the holders of electric rate reduction bonds or their representatives or the financing entity, revenues arising with respect to the transition property sold to the financing entity or pledged to secure electric rate reduction bonds. This requirement that a successor electric company perform the obligations of its predecessor is made pursuant to the commonwealth's policing and regulatory authority.
SECTION 194. Section 2 of said chapter 164, as so appearing, is hereby amended by inserting after the word "producer", in line 14, the following words:- other than persons, firms, associations, and private corporations expressly excluded from the definition of "electric company" in section 1 of this chapter.
SECTION 195. Said section 2 of said chapter 164, as so appearing, is hereby further amended by adding the following sentence:- Electric companies, which engage in generation and which are not part of a vertically integrated electric company or do not have a distribution affiliate in the commonwealth, shall be exempt from the provisions of sections 3 to 33, inclusive, and section 93.
SECTION 196. Said chapter 164 is hereby further amended by inserting after section 34 the following two sections:-
Section 34A. (a) Any city or town receiving street lighting service from an electric company pursuant to a tariff which provides for the use by such municipality of lighting equipment owned by the electric company, such as lighting ballasts, fixtures, and other equipment necessary for the conversion of electric energy into street lighting service, shall have the rights with respect to such lighting equipment as set forth in this section. Such rights shall apply in the event that such municipality does not establish a municipal lighting plant in accordance with this chapter or such lighting plant is established but ownership and control of the distribution facilities needed to deliver electric energy to such lighting equipment is held and retained by the electric company serving the municipality prior to the establishment of the lighting plant. A municipality subject to the provisions of this section, at its option, upon 60 days notice to the electric company and to the department, and subject to the provisions of subsections (b) to (e), inclusive, may:
(i) convert its street lighting service from the subject tariff to an alternative tariff approved by the department providing for delivery service by the electric company of electric energy, whether supplied by the electric company or any other person, over distribution facilities and wires owned by the electric company to lighting equipment owned or leased by the municipality, and further providing for the use by such municipality of the space on any pole, lamp post, or other mounting surface previously used by the electric company for the mounting of the lighting equipment of the electric company;
(ii) purchase electric energy for use in such municipal lighting equipment from the electric company or any other person allowed by law to provide electric energy; and
(iii) acquire, or compensate the electric company for, the lighting equipment of the electric company in the municipality in accordance with subsection (b).
(b) Any municipality exercising the option to convert its street lighting service pursuant to subsection (a) shall be required to compensate the electric company for its unamortized investment, net of any salvage value obtained by the electric company under the circumstances, in the lighting equipment owned by the electric company in the municipality as of the date the electric company receives notice of such exercise pursuant to subsection (a). In meeting this requirement, the municipality may acquire all or any part of such lighting equipment of the electric company upon the payment of the unamortized investment allocable to such acquired equipment. Upon such payment, the municipality shall have the right to use, alter, remove, or replace such acquired equipment in any way the municipality deems appropriate. In addition, the municipality may request that the electric company remove any unacquired part of such lighting equipment. Thereupon, the municipality shall pay to the electric company the cost of removal by the electric company, along with the unamortized investment allocable to such unacquired part, net of any salvage value attributable to the removed equipment.
(c) In connection with the exercise by any municipality of the option to convert its street lighting service pursuant to subsection (a), any person other than the electric company controlling the right to use space on any pole, lamp post, or other mounting surface previously used by the electric company in such municipality shall allow the municipality to assume the rights and obligations of the electric company with respect to such space for the unexpired term of any lease or other agreement under which the electric company used such space; provided, however, that in the assumption of the rights and obligations of the electric company by such a municipality, such municipality shall in no way or form restrict, impede, or prohibit universal access for the provision of electric and other services.
(d) In connection with the exercise by any municipality of the option to convert its street lighting service pursuant to subsection (a), any dispute concerning the terms of the alternative tariff, the compensation to be paid the electric company, or any other matter arising in connection with such exercise, including, but not limited to, the terms on which space is to be provided to the municipality in accordance with subsection (c), shall be resolved by the department within 60 days of any request for such resolution by the municipality or any person involved in such dispute.
(e) Notwithstanding any general or special law, rule, or regulation to the contrary, any affiliate of any electric company whose street lighting service is converted by any municipality in accordance with the provisions of this section may solicit and compete for the business of any such municipality for the provision of lighting equipment or any other service such as equipment maintenance in connection therewith.
Section 34B. A distribution company or a telephone company engaging in the removal of an existing pole and the installation of a new pole in place thereof shall complete the transfer of wires, all repairs, and the removal of the existing pole from the site within 90 days from the date of installation of the new pole; provided, however, that for any approved commercial or industrial construction project, the completion of which is expected to take longer than one year, said company shall be required to remove such pole within six months from the date of installation of the new pole. The owner of such pole shall notify all other users of the starting date of such removal and installation work at least 48 hours prior to the commencement of such work, and said owner shall require all other users to remove their wiring and other attachments from the poles in a timely manner.
SECTION 197. Said chapter 164 is hereby further amended by inserting after section 47 the following four sections:-
Section 47A. (a) Any municipal lighting plant established pursuant to the provisions of this chapter or special law shall be exempt from the requirements to allow competitive choice of generation supply, unless and until such lighting plant is dissolved pursuant to existing statutory procedures.
(b) A municipal lighting plant established pursuant to the provisions of this chapter or special law may prohibit retail sales by suppliers and electric companies to customers within the service territory of said lighting plant; provided, however, that a municipal lighting plant may supply generation service outside its own service territory for retail purposes only if outside suppliers may provide generation service within the service territory of said municipal lighting plant by mutual agreement with said lighting plant. Such agreement, upon execution, shall be submitted to the department and shall detail the manner in which any such supplier shall conduct business within the service territory of said lighting plant.
(c) A municipal lighting plant may sell electricity at wholesale, for resale, to aggregators, or other entities in bulk and shall not, in doing so, be deemed to be supplying generation services outside its own service territory for the purposes of subsection (b).
(d) A municipal lighting plant may sell electricity at retail, by mutual agreement or by order of the department as provided pursuant to section 47 or section 60 of this chapter, in the service territory of an adjoining electric company or a municipal lighting plant, and such sale shall not be deemed to be supplying generation service outside its own service territory for the purposes of subsection (b). Such mutual agreement shall be between the municipal lighting plant selling such electricity at retail and the adjoining electric company or other municipal lighting plant.
(e) No municipality, private corporation, or other entity selling or distributing electricity shall use existing lines or extend its lines except by mutual agreement with a municipal lighting plant or by order of the department as provided pursuant to section 47 or section 60 of this chapter in order to distribute or sell electricity to customers presently served by such municipal lighting plant.
(f) If a municipal lighting plant has not allowed retail customers served by it competitive choice of generation supply by March 1, 2003, the governing body for each city or town with such municipal lighting plant shall conduct a study, which shall include the holding of public hearings, and may make recommendations which may include, but shall not be limited to, conducting a referendum relative to competitive choice of generation supply for the customers of such municipal lighting plant.
Section 47B. Any municipality acting by and through its municipal light board may construct, purchase, operate, own, lease, rent, maintain, dispose of, share costs of, or otherwise have the right to the use, or portions thereof, of subtransmission, transmission, distribution, and generation facilities and equipment located outside of the municipality's limits. All such subtransmission, transmission, distribution, and generation facilities and equipment, or portions thereof, referred to in this section so constructed, purchased, owned, leased, rented, operated, maintained, or otherwise having the right to be used by any municipality shall hereafter be considered "plant" under the provisions of sections 34, 40, and 57 of this chapter. Any municipality acting by and through its municipal light board is hereby authorized to pay for the construction, purchase, lease, rent, or the right to use, or portions thereof, of the subtransmission, transmission, distribution, and generation facilities and equipment referred to in this section from those amounts accumulated for depreciation.
Section 47C. (a) Any municipal lighting plant created in a manner provided for in this chapter shall be allowed to form cooperative public corporations for the purpose of furnishing efficient, low cost, and reliable electric power and energy-related services as provided in this section.
(b) A municipal lighting plant cooperative established pursuant to the provisions of this section shall constitute a body politic and corporate and is constituted a public instrumentality, and the exercise of the powers conferred by this section shall be deemed and held to be the performance of an essential public function.
(c) Any number of municipal lighting plants may associate themselves together and with other public corporations, established under the laws of the commonwealth or any other state or the federal government, as a municipal lighting plant cooperative, with or without capital stock, for the transaction of any lawful business associated with the purchase, acquisition, distribution, sale, resale, supply, and disposition of energy or energy-related services to wholesale or retail customers, subject to federal and state laws and regulations; provided, however, that no such cooperative organized pursuant to this section shall be associated or create a partnership with the corporation established pursuant to chapter 775 of the acts of 1975; and provided, further, that said corporation established pursuant to said chapter 775 shall not be allowed to participate in any activity or have an ownership share in any cooperative formed pursuant to this section.
(d) A municipal lighting plant cooperative may be formed for any purpose stated in subsection (c) which may lawfully be carried out by any other corporation; provided, that a municipal lighting plant cooperative shall be organized and shall conduct its business primarily for the mutual benefit of its members as patrons of the cooperative. A municipal lighting plant cooperative shall have all of the powers of a natural person, including the power to participate with others in any partnership, joint venture or other association, transaction, or arrangement of any kind. In addition, each municipal lighting plant cooperative shall have the following powers:
(i) To have perpetual succession by its corporate name unless a limited period of duration is stated in the articles of incorporation;
(ii) To sue and be sued, complain, and defend its corporate name;
(iii) To have and use a corporate seal;
(iv) To purchase, take, receive, lease, or otherwise acquire, own, hold, improve, use, and deal in and with real or personal property or any interest therein, wherever situated;
(v) To sell, convey, mortgage, pledge, lease, exchange, transfer, or otherwise dispose of all or any part of its property and assets;
(vi) To purchase, take, receive, subscribe for, or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge, or otherwise dispose of, use, and deal in and with shares or other interest in, or obligations of, other domestic or foreign corporations, associations, partnerships, or individuals, or direct or indirect obligations of the United States or any other government, state, territory, governmental district, or municipality, or any instrumentality thereof;
(vii) To make contracts and incur liabilities, borrow money at rates of interest the cooperative may determine, issue notes, bonds, certificates of indebtedness, and other obligations, receive funds from members and pay interest thereon, issue capital stock and certificates representing equity interests in assets, allocate earnings and losses at the times and in the manner the articles of incorporation or bylaws or other contract specify, create book credits, capital funds, and reserves, and secure obligations by mortgage or pledge of any of its property, franchises, and income;
(viii) To lend money for corporate purposes, invest and reinvest funds, and take and hold real and personal property as security for the payment of funds loaned or invested;
(ix) To conduct business, carry on operations, have offices, and exercise the powers granted by this subsection, within or without this commonwealth;
(x) To elect or appoint officers and agents of the corporation, define their duties, and fix their compensation;
(xi) To make and alter bylaws, not inconsistent with its articles of incorporation or with the laws of this commonwealth, for the administration and regulation of the affairs of the cooperative;
(xii) To make donations for the public welfare or for charitable, scientific, or educational purposes;
(xiii) To pay pensions and establish pension plans, pension trusts, profit-sharing plans, stock bonus plans, stock option plans, and other incentive plans for any or all of its directors, officers, and employees;
(xiv) To be a partner, member, associate, or manager of any partnership, joint venture, trust, or other enterprise;
(xv) To cease corporate activities and surrender its corporate franchise;
(xvi) To purchase, acquire, distribute, sell, resell, supply, and dispose of energy in any form or other services;
(xvii) To purchase, acquire, distribute, sell, resell, supply, and provide any energy or energy-related services to wholesale or retail customers within or without the commonwealth;
(xviii) To have access on comparable terms to energy transportation systems for delivery of energy to its members and other customers;
(xix) To sell electricity to any consumer, including, but not limited to, a consumer that receives electric distribution, transmission, or other services from an entity other than the municipal light plant cooperative organized under subsection (a), other than consumers served by municipal light plants which are not members of a municipal light plant cooperative, that is selling such electricity to such consumer; provided, that an entity providing such distribution, transmission, or other services shall provide non-discriminatory access and pricing for the use of its property and services and shall otherwise facilitate such transactions;
(xx) To contract with natural persons, firms, corporations, business trusts, partnerships, public and private agencies, non-profit organizations and corporations, other cooperatives, and local municipalities to accomplish any purposes of the cooperative;
(xxi) To have and exercise all powers necessary or convenient to effect its purposes;
(xxii) To exercise and perform all or part of its power and functions through one or more wholly-owned or partly-owned corporations or other business entities; and
(xxiii) To exercise all other powers not inconsistent with the state constitution or the United States Constitution, which may be reasonably necessary or appropriate for or incidental to the effectuation of its authorized purposes or to the exercise of any of the foregoing powers, and generally to exercise in connection with its property and affairs, and in connection with property within its control, any and all powers which might be exercised by a natural person or a private corporation in connection with similar property and affairs.
(e) A municipal lighting plant cooperative organized pursuant to this section shall be managed by a board of not less than three directors. The directors shall be elected by and from the members of the cooperative at such time, in such manner, and for such term of office as the bylaws may prescribe and shall hold office during the term for which they were elected and until their successors are elected and qualified. Any vacancy occurring in the board of directors, and any directorship to be filled by reason of an increase in the number of directors, may be filled by the board of directors unless the articles of incorporation or the bylaws provide that a vacancy or directorship so created shall be filled in some other manner. A director elected or appointed to fill a vacancy shall be elected or appointed for the unexpired term of the predecessor in office.
(f) Any municipal lighting plant cooperative organized pursuant to the provisions of this section may enact bylaws to govern itself in the implementation of the provisions of this section which are not inconsistent with the provisions of this section.
(g) The provisions of chapter 258 shall apply to the municipal lighting plant cooperatives established under the provisions of this section as if said municipal lighting plant cooperatives were municipal lighting plants.
(h) The right of a member of a cooperative to vote may be limited, enlarged, or denied to the extent specified in the articles of incorporation or bylaws. Unless so limited, enlarged, or denied, each member shall be entitled to one vote on each matter submitted to a vote of members.
(i) A member of the board of directors or an officer of any cooperative subject to the provisions of this section shall have immunity from liability equivalent to that granted to directors and officers of for-profit corporations in the commonwealth. Except for debts lawfully contracted between a member and the cooperative, no member shall be liable for the debts of the cooperative to an amount exceeding the sum remaining unpaid on his or her membership fee or subscription to capital stock.
(j) Except as provided for herein, a municipal lighting plant cooperative shall be exempt from paying taxes, including, but not limited to taxes on its income and real and personal property situated within the commonwealth and owned by the municipal light plant cooperative; provided, however, that the cooperative shall agree, in lieu of property taxes, to pay to any governmental body authorized to levy local property taxes the amount which would be assessable as local property taxes on the real and tangible personal property if such property were the property of a domestic corporation; provided, further, that no such municipal lighting plant cooperative shall be allowed to commence any such operations allowed pursuant to this section or exercise any such powers pursuant to subsection (d) until such payment in lieu of taxes is executed. The cooperative shall pay all sales or excise taxes which are properly assessed on its business activities under this section to the extent such taxes are assessed against domestic corporations.
(k) A municipal lighting plant cooperative created pursuant to the provisions of this section shall be exempt from the public records requirement of section 10 of chapter 66 and the open meeting requirements of section 23B of chapter 39 only in those instances when necessary for protecting trade secrets, confidential, competitively sensitive or other proprietary information provided in the course of proceedings conducted pursuant to this chapter.
Section 47D. A municipal lighting plant created pursuant to the provisions of this chapter or any special law shall be exempt from the public records requirement of section 10 of chapter 66 and the open meeting requirements of section 23B of chapter 39 only in those instances when necessary for protecting trade secrets, confidential, competitively sensitive or other proprietary information provided in the course of proceedings conducted pursuant to this chapter when such municipal lighting plant board determines that such disclosure will adversely affect its ability to conduct business in relation to or other entities making, selling, or distributing electric power and energy pursuant to this chapter.
SECTION 198. Section 56D of said chapter 164, as appearing in the 196 Official Edition, is hereby amended by striking out the fifth and sixth sentences and inserting in place thereof the following sentence:- This section shall not apply to contracts for the supply of electricity to a municipal lighting plant.
SECTION 199. Section 57 of said chapter 164, as so appearing, is hereby amended by inserting after the word "years", in line 32, the following words:- , and for the cost of plant, nuclear decommissioning costs, the costs of contractual commitments, and deferred costs related to such commitments which the city council, the board of selectmen, or the municipal light board, if any, determines are above market value.
SECTION 200. Section 69G of said chapter 164, as so appearing, is hereby amended by striking out the definition of "Certificate" and inserting in place thereof the following definition:-
"Certificate", a certificate of environmental impact and public interest, as provided for in sections 69K and 69K½.
SECTION 201. Said section 69G of said chapter 164, as so appearing, is hereby further amended by striking out, in line 18, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 202. Said section 69G of said chapter 164, as so appearing, is hereby further amended by striking out the definition of "Facility" and inserting in place thereof the following definition:-
"Facility", (1) a generating facility; (2) a new electric transmission line having a design rating of 69 kilovolts or more and which is one mile or more in length on a new transmission corridor; (3) a new electric transmission line having a design rating of 115 kilovolts or more which is 10 miles or more in length on an existing transmission corridor except reconductoring or rebuilding of transmission lines at the same voltage; (4) an ancillary structure which is an integral part of the operation of any transmission line which is a facility; (5) a unit, including associated buildings and structures, designed for or capable of the manufacture or storage of gas, except such units below a minimum threshold size as established by regulation; and (6) a new pipeline for the transmission of gas having a normal operating pressure in excess of 100 pounds per square inch gauge which is greater than one mile in length except restructuring, rebuilding, or relaying of existing transmission lines of the same capacity.
SECTION 203. Said section 69G of said chapter 164, as so appearing, is hereby further amended by inserting after the definition of "Gas company" the following definition:-
"Generating facility", any generating unit designed for or capable of operating at a gross capacity of 100 megawatts or more, including associated buildings, ancillary structures, transmission and pipeline interconnections that are not otherwise facilities, and fuel storage facilities.
SECTION 204. Section 69H of said chapter 164, as so appearing, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-
There is hereby established an energy facilities siting board within the department, but not under the supervision or control of the department. Said board shall implement the provisions contained in sections 69H to 69Q, inclusive, so as to provide a reliable energy supply for the commonwealth with a minimum impact on the environment at the lowest possible cost. To accomplish this, the board shall review the need for, cost of, and environmental impacts of transmission lines, natural gas pipelines, facilities for the manufacture and storage of gas, and oil facilities; provided, however, that the board shall review only the environmental impacts of generating facilities, consistent with the commonwealth's policy of allowing market forces to determine the need for and cost of such facilities. Such reviews shall be conducted consistent with section 69J¼ for generating facilities and with section 69J for all other facilities.
SECTION 205. The fifth paragraph of said section 69H of said chapter 164, as so appearing, is hereby further amended by adding the following paragraph:-
(4) The board shall have the opportunity to issue orders with respect to any matter over which it has jurisdiction. Any applicant who violates any such order shall be subject to a civil penalty not to exceed $1000 for each violation for each day that the violation persists; provided, however, that the maximum civil penalty shall not exceed $200,000 for any related series of violations.
SECTION 206. Section 69H½ of said chapter 164, as so appearing, is hereby amended by striking out, in line 20, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 207. Section 69I of said chapter 164, as so appearing, is hereby amended by striking out the fourth paragraph and inserting in place thereof the following paragraph:-
As regional plans covering longer time periods are developed, they shall be filed with the department. Neither said department, the board, nor any other person, in taking any action pursuant to sections 69I to 69J¼, inclusive, shall be subject to any of the provisions of sections 61 to 62H, inclusive, of chapter 30.
SECTION 208. Said section 69I of said chapter 164, as so appearing, is hereby further amended by adding the following two paragraphs:-
The department and the siting board shall prepare and file with the general court, by March first of each year, an annual report for the previous calendar year detailing the substance of all plans and forecasts filed pursuant to this section, any and all actions taken by the department pursuant to implementing the provisions of this section, and an analysis of the reliability and diversity of electric power and gas needs based on such filings with the department and decisions made and issued by the department.
The department is authorized to exempt any electric or gas company from any or all provisions of this section upon a determination by the department and the siting board, after notice and hearing, that an alternative process is in the public interest.
SECTION 209. Section 69J of said chapter 164, as so appearing, is hereby amended by adding the following paragraph:-
The provisions of this section shall not apply in the case of a petition to construct a generating facility, which shall be subject to the provisions of section 69J¼.
SECTION 210. Said chapter 164 is hereby further amended by inserting after section 69J the following section:-
Section 69J¼. No applicant shall commence construction of a generating facility unless a petition for approval of construction of that generating facility has been approved by the board. In addition, no state agency of the commonwealth shall issue a construction permit for any such generating facility unless the petition to construct such generating facility has been approved by the board pursuant to this section.
To streamline its review of petitions to construct generating facilities which have state of the art environmental performance characteristics, the board periodically shall conduct a rulemaking to establish a technology performance standard generating facilities emissions, including, but not limited to, emissions of sulfur dioxide, nitrogen oxides, particulate matter, fine particulates, carbon monoxide, volatile organic compounds, and heavy metals. As to each such pollutant, the performance standard shall reflect the best available control technology or the lowest achievable emissions rate, whichever would be applicable in the commonwealth for such pollutant that year. The performance standard shall also reflect the best available and most efficient technology to control and reduce water withdrawals. Such standard shall reflect emission rates that are achievable by state of the art fossil fuel generating and control technologies, as demonstrated by air permits for construction that have been issued by the department of environmental protection. The technology performance standard shall be used solely to determine whether a petition to construct a generating facility shall include information regarding other fossil fuel generation technologies. The promulgation or application of this standard shall not in any way supersede or impair the authority of the department of environmental protection with respect to these or other facilities.
A petition to construct a generating facility shall include, in such form and detail as the board shall from time to time prescribe, the following information: (i) a description of the proposed generating facility, including any ancillary structures and related facilities; (ii) a description of the environmental impacts and the costs associated with the mitigation, control, or reduction of the environmental impacts of the proposed generating facility; (iii) a description of the project development and site selection process used in choosing the design and location of the proposed generating facility; (iv) either (a) evidence that the expected emissions from the facility meet the technology performance standard in effect at the time of filing, or (b) a description of the environmental impacts, costs, and reliability of other fossil fuel generating technologies, and an explanation of why the proposed technology was chosen; and (v) any other information necessary to demonstrate that the generating facility meets the requirements for approval specified in this section.
The board shall, after public notice and a period for comment, be authorized to issue and revise its own list of guidelines. Sufficient data shall be required from the applicant by these guidelines to enable the board to review the local and regional land use impact, local and regional cumulative health impact, water resource impact, wetlands impact, air quality impact, solid waste impact, radiation impact, visual impact, and noise impact of the proposed generating facility; provided, however, that these guidelines shall not require any data related to the necessity or cost of the proposed generating facility, except for data related to the costs associated with the mitigation, control, or reduction of the environmental impacts of the proposed generating facility, and, if the proposed facility does not meet the technology performance standard in effect at the time of filing, data related to the costs, including costs associated with the mitigation, control, or reduction of environmental impacts, of other fossil fuel generating technologies. Within 60 days of the filing of a petition to construct a generating facility, the board shall conduct a public hearing in each locality in which the generating facility would be located. In addition, the board shall, within 180 days of the filing thereof, conduct public evidentiary hearings on every petition to construct a generating facility. Such evidentiary hearings shall be adjudicatory proceedings under the provisions of chapter 30A.
The board shall, within one year from the date of filing, approve a petition to construct a generating facility if the board determines that the petition meets the following requirements: (i) the description of the proposed generating facility and its environmental impacts are substantially accurate and complete; (ii) the description of the site selection process used is accurate; and (iii) the plans for the construction of the proposed generating facility are consistent with current health and environmental protection policies of the commonwealth and with such energy policies as are adopted by the commonwealth for the specific purpose of guiding the decisions of the board; (iv) such plans minimize the environmental impacts consistent with the minimization of costs associated with the mitigation, control, and reduction of the environmental impacts of the proposed generating facility; and (v) if the petitioner was required to provide information on other fossil fuel generating technologies, the construction of the proposed generating facility on balance contributes to a reliable, low-cost, diverse, regional energy supply with minimal environmental impacts. Nothing in this chapter shall be construed as requiring the board to make findings regarding the need for, the cost of, or alternative sites for a generating facility; provided, however, that the board may, at its discretion, evaluate a noticed alternative site for a generating facility if the applicant requests such an evaluation, or if such an evaluation is an efficient method of administering an alternative site review required by another state or local agency. In addition, nothing in this chapter shall be construed as requiring the board to make findings regarding alternative generating technologies for a proposed generating facility whose expected emissions meet the technology performance standard in effect at the time of filing.
If the board determines that the standards set forth above have not been met, it shall, within one year of the date of filing, either reject, in whole or in part, the petition, setting forth in writing its reasons for such rejection, or approve the petition subject to stated conditions. In the event of rejection or conditional approval, the applicant may, within 180 days, submit an amended petition. Public and evidentiary hearings on the amended petition shall be held on the same terms and conditions applicable to the original petition.
Upon fulfilling the requirements of this section, a generating facility shall be deemed to contribute to a necessary energy supply for the commonwealth with a minimum impact on the environment at the lowest possible cost. If the board approves a petition to construct a generating facility, the approval shall have no bearing or precedent-setting effect upon any department proceeding regarding the recovery of costs associated with the generating facility or upon any proceeding conducted pursuant to section 94A of this chapter.
SECTION 211. Section 69K of said chapter 164, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 3, the word "need" and inserting in place thereof the following word:- interest.
SECTION 212. Said section 69K of said chapter 164, as so appearing, is hereby further amended by striking out, in line 26, the word "need" and inserting in place thereof the following word:- interest.
SECTION 213. Said section 69K of said chapter 164, as so appearing, is hereby further amended by adding the following paragraph:-
The provisions of this section shall not apply in the case of a petition for a certificate with respect to a generating facility, which shall be subject to the provisions of section 69K½.
SECTION 214. Said chapter 164 is hereby further amended by inserting after section 69K the following section:-
Section 69K½. Any applicant that proposes to construct or operate a generating facility in the commonwealth may petition the board for a certificate of environmental impact and public interest with respect to such generating facility. The board shall consider such petition; provided, that (i) the applicant is prevented from building a generating facility because it cannot meet standards imposed by a state or local agency with reasonable and commercially available equipment; or (ii) because the processing or granting by a state or local agency of any approval, consent, permit, or certificate has been unduly delayed for any reason, including the preparation and publication of any environmental impact report required by section 62 of chapter 30; or (iii) the applicant believes there are inconsistencies among resource use permits issued by such state or local agencies; or (iv) the applicant believes that a nonregulatory issue or condition has been raised or imposed by such state or local agencies, such as, but not limited to, aesthetics and recreation; or (v) the generating facility cannot be constructed due to any disapprovals, conditions, or denials by a state or local agency or body, except with respect to any lands or interests therein, excluding public ways, owned or managed by any state agency or local government; or (vi) the facility cannot be constructed because of delays caused by the appeal of any approval, consent, permit, or certificate.
In addition to the foregoing determinations, the board shall, upon petition, consider an application for a certificate of environmental impact and public interest if it finds that any state or local agency has imposed a burdensome condition or limitation on any license or permit which has a substantial impact on the responsibilities of the board as set forth pursuant to section 69H. Any generating facility, with respect to which a certificate is issued by the board, shall thereafter be constructed, maintained, and operated in conformity with such certificate and any terms and conditions contained therein.
A certificate shall be issued only in accordance with the provisions of sections 69K to 69 O½, inclusive. Notwithstanding the provisions of any other law to the contrary, a certificate may be so issued; provided, however, that when so issued no state agency or local government shall require any approval, consent, permit, certificate, or condition for the construction, operation, or maintenance of the generating facility with respect to which the certificate is issued, and no state agency or local government shall impose or enforce any law, ordinance, by-law, rule, or regulation nor take any action nor fail to take any action which would delay or prevent the construction, operation, or maintenance of such generating facility; provided, however, that the board shall not issue a certificate, the effect of which would be to grant or modify a permit, approval, or authorization, which, if so granted or modified by the appropriate state or local agency, would be invalid because of a conflict with applicable federal water or air standards or requirements. A certificate, if issued, shall be in the form of a composite of all individual permits, approvals, or authorizations which would otherwise be necessary for the construction and operation of the generating facility, and that portion of the certificate which relates to subject matters within the jurisdiction of a state or local agency shall be enforced by said agency under the other applicable laws of the commonwealth as if it had been directly granted by the said agency.
A certificate may be transferred to any other electric company by the holder thereof, subject to the terms and conditions contained therein. The board may amend the terms and conditions of a certificate in accordance with the requirement of subsection (d) of section 69L½. Each national pollutant discharge elimination system permit issued by the board pursuant to the provisions of this chapter shall have a fixed term which shall not exceed five years and which shall commence to run when the certificate is issued.
SECTION 215. Section 69L of said chapter 164, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 1, the word "An" and inserting in place thereof the following:- Except in the case of an application for a certificate with respect to a generating facility, which shall be subject to the provisions of section 69L½, an.
SECTION 216. Said chapter 164 is hereby further amended by inserting after section 69L the following section:-
Section 69L½. (a) An applicant for a certificate pursuant to section 69K½ shall file with the board a petition, in such form as the board may prescribe, containing the following information:
(1) A description of the location of the generating facility to be constructed or operated thereon;
(2) A summary of the studies which the applicant has made of the environmental impact of the generating facility and a statement of the reasons for its choice of the location;
(3) A copy of the petition for the construction of a generating facility approved under the provisions of section 69J¼; provided, however, that this requirement may be waived by the board for emergency or unforeseen conditions which may jeopardize the health and safety of the public;
(4) A statement setting forth the reasons for the application for the certificate, which statement shall include the following: (i) all licenses, permits, and other regulatory approvals required by law for the construction or operation of the generating facility which have been granted; (ii) a representation as to the good faith effort made by the applicant to obtain from state agencies and local governments the licenses, permits, and other regulatory approvals required by law for construction or operation of the generating facility; (iii) either (a) a representation as to the inability, if any, of the applicant to comply with any law, ordinance, by-law, rule, and regulation affecting the construction or operation of the generating facility, or (b) a representation as to the applicant's inability to proceed with the construction or operation of the generating facility by reason of the denial, delay, appeal, or imposition of a burdensome condition in issuing specified licenses, permits, or approvals; and (iv) such other information as the applicant may deem relevant or the board may by regulation require; and
(5) A copy or copies of said information, studies, and other pertinent information shall be filed and made available for public inspection and copying; provided, however, that the board shall not permit disclosure, other than to another government agency concerned with the same matter, of any information, other than data pertaining to the nature or constituency of any water or air discharge, obtained by or submitted to the board pursuant to the provisions of sections 69H to 69R, inclusive, upon a showing, satisfactory to a majority of the board, that such information if made public would divulge methods or processes entitled to protection as trade secrets of any person.
(b) Each petition shall be accompanied by an affidavit of the applicant certifying that: (i) a copy of the petition and a notice as to the date on which the petition is to be filed have been served on each of the following: the mayor of each city and the board of selectmen of each town in which any part of the proposed generating facility is to be located, the secretary of each executive office, and the attorney general; and (ii) public notice thereof containing a summary of the petition and the date on which notice is to be filed was given by publication, in such manner as the board may by regulation provide.
(c) Failure to give such service or notice may be cured pursuant to an order of the board subsequent to the filing of the petition. The board may further order additional service and notice on such other persons as it deems appropriate.
(d) Each petition may be amended by the applicant at any time, subject to such reasonable requirements of notice as the board may impose. A petition for an amendment of a certificate shall be in such form and subject to such requirements of notice and hearings as the board may provide, consistent with the nature and extent of the proposed amendment.
SECTION 217. Section 69M of said chapter 164, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 2, the words "section sixty-nine L" and inserting in place thereof the following words:- section 69L or section 69L½, whichever is applicable.
SECTION 218. Said section 69M of said chapter 164, as so appearing, is hereby further amended by striking out, in line 5, the words "section sixty-nine L" and inserting in place thereof the following words:- section 69L or section 69L½, whichever is applicable,.
SECTION 219. Section 69N of said chapter 164, as so appearing, is hereby amended by striking out, in line 4, the words "section sixty-nine L" and inserting in place thereof the following words:- section 69L or section 69L½, whichever is applicable.
SECTION 220. Said section 69N of said chapter 164, as so appearing, is hereby further amended by striking out, in line 6, the words "section sixty-nine L" and inserting in place thereof the following words:- 69L or section 69L½, whichever is applicable.
SECTION 221. Section 69 O of said chapter 164, as so appearing, is hereby amended by inserting after the word "petition", in line 2, the following words:- for a certificate pursuant to section 69K.
SECTION 222. Said section 69 O of said chapter 164, as so appearing, is hereby further amended by adding the following paragraph:-
The provisions of this section shall not apply in the case of a petition for a certificate with respect to a generating facility filed pursuant to section 69K½, which shall be subject to the provisions of section 69 O½.
SECTION 223. Said chapter 164 is hereby further amended by inserting after section 69 O the following section:-
Section 69 O½. As expeditiously as possible, but in no event later than 180 days from the date of filing a petition for a certificate with regard to a generating facility pursuant to section 69K½, the board shall, by a majority vote, render a decision upon the petition either by denying the petition or by granting the petition, or by granting the petition subject to such terms and conditions as the board may determine. Neither the board nor any other person shall be bound by the requirements of sections 61 to 62H, inclusive, of chapter 30 to the extent that compliance with said requirements will prevent the board from rendering a decision upon the petition within the time limits of the section.
A certificate shall be issued only if the board determines that the issues raised by state agencies or local governments regarding the proposed generating facility have been addressed in a comprehensive manner by the board either in its approval of said generating facility under section 69J¼ or in its review under section 69K½. The board shall make its decision in writing and shall include therein its findings and opinions with respect to the following: (i) the compatibility of the generating facility with considerations of environmental protection, public health, and public safety; (ii) the extent to which construction and operation of the generating facility will fail to conform with existing state and local laws, ordinances, by-laws, rules, and regulations and reasonableness of exemption thereunder, if any, consistent with the implementation of the energy policies contained in this chapter; and (iii) the public interest or convenience requiring construction and operation of the generating facility.
SECTION 224. Section 69R of said chapter 164, as appearing in the 1996 Official Edition, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-
Any electric or gas company, generation company, or wholesale generation company may petition the department for the right to exercise the power of eminent domain with respect to the facility or facilities specified and contained in a petition submitted in accordance with section 69J or a bulk power supply substation if such electric or gas company is unable to reach agreement with the owners of land for the acquisition of any necessary estate or interest in land. The applicant shall forward, at the time of filing such petition, a copy thereof to each city, town, and property owner affected.
SECTION 225. Said section 69R of said chapter 164, as so appearing, is hereby further amended by striking out, in lines 19 and 20, the words "the community in which the greater portion of the unit is located" and inserting in place thereof the following:- in the community in which the land to be taken is located. For facilities involving takings in several communities, a public hearing or hearings shall be held in communities in proximity to the land to be taken, as determined by the department.
SECTION 226. Said section 69R of said chapter 164, as so appearing, is hereby further amended by striking out the seventh paragraph and inserting in place thereof the following paragraph:-
This section shall not be construed as abrogating the department's jurisdiction described in section 72 in respect to transmission lines or the department's jurisdiction described in sections 75B to 75G, inclusive, in respect to natural gas transmission lines.
SECTION 227. Section 76B of said chapter 164, as so appearing, is hereby amended by striking out, in line 5, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 228. Said chapter 164 is hereby further amended by striking out section 78, as so appearing, and inserting in place thereof the following section:-
Section 78. If any electric, gas, generation, transmission, or distribution company, or any supplier violates or fails to comply with the provisions of law, or violates or fails to comply with any lawful order of the department, the department shall give written notice thereof to such company or supplier and to the attorney general.
SECTION 229. Said chapter 164 is hereby further amended by striking out section 79, as so appearing, and inserting in place thereof the following section:-
Section 79. The supreme judicial or superior court shall have jurisdiction in equity, upon application of the department, to enforce its lawful orders and all laws relative to cities and towns engaged in the manufacture and sale or distribution and sale of electricity or gas, generation, transmission or distribution companies, or suppliers.
SECTION 230. Section 87 of said chapter 164, as so appearing, is hereby amended by striking out, in lines 1 and 2, the words "manufacture or sale" and inserting in place thereof the following words:- manufacture, sale or distribution.
SECTION 231. Section 92 of said chapter 164, as so appearing, is hereby amended by inserting after the word "or", in line 3, the second time it appears, the following words:- the distribution of.
SECTION 232. Said section 92 of said chapter 164, as so appearing, is hereby further amended by striking out, in line 10, the words "electricity or".
SECTION 233. Section 92A of said chapter 164, as so appearing, is hereby amended by striking out, in line 2, the words "or electricity".
SECTION 234. Said section 92A of said chapter 164, as so appearing, is hereby further amended by striking out, in line 5, the words "or electricity".
SECTION 235. Said section 92A of said chapter 164, as so appearing, is hereby further amended by striking out, in line 9, the words "or electricity".
SECTION 236. Said section 92A of said chapter 164, as so appearing, is hereby further amended by striking out, in line 15, the words "or electricity".
SECTION 237. The last paragraph of section 94 of said chapter 164, as so appearing, is hereby amended by adding the following sentence:- Generation companies and suppliers shall be exempt from the provisions of this section.
SECTION 238. Section 94A of said chapter 164, as so appearing, is hereby amended by adding the following sentence:- The department is authorized to exempt any electric or generation company from any or all of the provisions of this section upon a determination by the department, after notice and a hearing, that an alternative process or incentive mechanism is in the public interest.
SECTION 239. Section 94G of said chapter 164, as so appearing, is hereby amended by adding the following subsection:-
(g) The department is authorized to exempt any electric or generation company or supplier from any or all of the provisions of this section upon a determination by the department, after notice and a hearing, that an alternative process or incentive mechanism is in the public interest.
SECTION 240. Section 94G½ of said chapter 164, as so appearing, is hereby amended by adding the following paragraph:-
The department is authorized to exempt any electric, generation, or gas company from any or all of the provisions of this section upon a determination by the department, after notice and a hearing, that an alternative process or incentive mechanism is in the public interest.
SECTION 241. Section 95 of said chapter 164, as so appearing, is hereby amended by striking out, in line 2, the words "manufacture or sale" and inserting in place thereof the following words:- manufacture, sale, or distribution.
SECTION 242. Section 96 of said chapter 164, as so appearing, is hereby amended by inserting after the word "companies", in line 4, the following:- or to a wholesale generation company.
SECTION 243. Said section 96 of said chapter 164, as so appearing, is hereby further amended by inserting after the word "interest", in line 12, the following words:- ; provided, however, that the purchase or sale of properties by, or the consolidation or merger of, wholesale generation companies shall not require departmental approval.
SECTION 244. Said chapter 164 is hereby further amended by inserting after section 102B the following section:-
Section 102C. (a) The attorney general is hereby authorized to bring an action under section 4 of chapter 93A to enforce the consumer protection provisions of sections 1B, 1C, 1D, 1E, 1F, and 137 of this chapter and to obtain restitution, civil penalties, injunctive relief and any other relief awarded pursuant to said chapter 93A. At the attorney general's discretion, pursuant to subsection (c) of section 2 of said chapter 93A, the attorney general shall promulgate rules and regulations relative to methods, acts, and practices of electric and generation companies and suppliers.
(b) All electric companies, aggregators, marketers, and all suppliers doing business in the commonwealth shall submit to arbitration, if such arbitration is requested by a retail electric customer or any company or other such entity organized and governed pursuant to the provisions of this chapter alleging an unfair or deceptive trade practice by its retail electric suppliers or electric company. The department shall, in coordination with the office of consumer affairs, promulgate rules and regulations to implement this section to provide for the expeditious treatment of complaints brought by any retail consumer. Said rules and regulations shall include, but not be limited to, a description of the procedures available to redress violations of the rules and regulations and afford said consumers the opportunity to participate in a voluntary mediation process with the supplier or electric company to settle the claim without recourse to arbitration, and a provision that any violation of said rules and regulations shall be deemed an unfair and deceptive act pursuant to the provisions of chapter 93A. Said arbitration shall be performed by the department or by a state-certified professional arbitrator or arbitration firm appointed by the department and operating in accordance with the rules and regulations promulgated by the department.
SECTION 245. Section 125A of said chapter 164, as appearing in the 1996 Official Edition, is hereby amended by inserting after the word "company", in line 1, the following words:- , generation company, wholesale generation company, or supplier.
SECTION 246. Section 128 of said chapter 164, as so appearing, is hereby amended by inserting after the word "distribution", in line 2, the following words:- or only distribution,.
SECTION 247. Said chapter 164 is hereby further amended by adding the following four sections:-
Section 134. (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; provided, however, that such municipality or group of municipalities shall not aggregate electrical load if such are served by an existing municipal lighting plant. Such municipality or group of municipalities may group retail electricity customers to solicit bids, broker, and contract for electric power and energy services for such customers. Such municipality or group of municipalities may enter into agreements for services to facilitate the sale and purchase of electric energy and other related services. Such service agreements may be entered into by a single city, town, county, or by a group of cities, towns, or counties.
A municipality or group of municipalities 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 as authorized by this section shall be regulated by any applicable laws or regulations which govern aggregated electric power and energy services in competitive markets.
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 municipality or group of municipalities establishing load aggregation pursuant to this section shall, in consultation with the division of energy resources, pursuant to section 6 of chapter 25A, develop a plan, for review by its citizens, detailing the process and consequences of aggregation. Any municipal load aggregation plan established pursuant to this section shall provide for universal access, reliability, and equitable treatment of all classes of customers and shall meet any requirements established by law or the department concerning aggregated service. Said plan shall be filed with the department, for its final review and approval, and shall include, without limitation, an organizational structure of the program, its operations, and its funding; rate setting and other costs to participants; the methods for entering and terminating agreements with other entities; the rights and responsibilities of program participants; and termination of the program. Prior to its decision, the department shall conduct a public hearing. The department shall not approve any such plan if the price for energy would initially exceed the price of the standard offer, as established pursuant to section 1B of this chapter, for such citizens in the municipality or group of municipalities, unless the applicant can demonstrate that the price for energy under the aggregation plan will be lower than the standard offer in the subsequent years or the applicant can demonstrate that such excess price is due to the purchase of renewable energy as described by the division of energy resources pursuant to chapter 25A.
Participation by any retail customer in a municipal or group aggregation program shall be voluntary. If such aggregated entity is not fully operational on the retail access date, any ratepayer to be automatically enrolled therein shall receive standard offer service unless affirmatively electing not to do so. Within 30 days of the date the aggregated entity is fully operational, such ratepayers shall be transferred to the aggregated entity according to an opt-out provision herein. 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 aggregated entity, any ratepayer choosing to opt-out within 180 days shall do so without penalty and shall be entitled to receive standard offer service as if he was originally enrolled therein. 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 aggregated entity to fully inform participating ratepayers in advance of automatic enrollment that they are to be automatically enrolled and that they have the right to opt-out of the aggregated entity without penalty. In addition, such disclosure shall prominently state all charges to be made and shall include full disclosure of the standard offer rate, how to access it, and the fact that it is available to them without penalty. The division 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.
(b) A municipality or group of municipalities establishing a load aggregation program pursuant to subsection (a) may, by a vote of its town meeting or legislative body, whichever is applicable, adopt an energy plan which shall define the manner in which the municipality or municipalities may implement demand side management programs and renewable energy programs that are consistent with any state energy conservation goals developed pursuant to chapter 25A or chapter 164. After adoption of the energy plan by such town meeting or other legislative body, the city or town clerk shall submit the plan to the department to certify that it is consistent with any such state energy conservation goals. If the plan is certified by the department, the municipality or group of municipalities may apply to the Massachusetts Technology Park Corporation for monies from the Massachusetts Renewable Energy Trust Fund, established pursuant to subsection (a) of chapter 40J, and receive, and if approved, expend moneys from the demand side management system benefit charges or line charges in an amount not to exceed that contributed by retail customers within said municipality or group municipalities. This will not prevent said municipality or municipalities from applying to the Massachusetts Technology Park Corporation for additional funds. If the department determines that the energy plan is not consistent with any such state-wide goals, it shall inform the municipality or group of municipalities within six months by written notice the reasons why it is not consistent with any such state-wide goals. The municipality or group of municipalities may re-apply at anytime with an amended version of the energy plan.
The municipality or group of municipalities shall not be prohibited from proposing for certification an energy plan which is more specific, detailed, or comprehensive or which covers additional subject areas than any such state-wide conservation goals. This subsection shall not prohibit a municipality or group of municipalities from considering, adopting, enforcing, or in any other way administering an energy plan which does not comply with any such state-wide conservation goals so long as it does not violate the laws of the commonwealth.
The municipality or group of municipalities shall, within two years of approval of its plan or such further time as the department may allow, provide written notice to the department that its plan is implemented. The department may revoke certification of the energy plan if the municipality or group of municipalities fails to substantially implement the plan or if it is determined by independent audit that the funds were misspent within the time allowed under this subsection.
Section 135. Any for-profit corporation, non-profit corporation, or quasi-public authority, organized pursuant to the laws of the commonwealth, is hereby authorized to establish a corporate retail load aggregator for the purpose of purchasing bulk electricity to serve affiliated corporations or affiliated business units organized pursuant to the laws of the commonwealth which are not sited within the boundaries of a municipal light department within the commonwealth. A corporate retail load aggregator shall be authorized (i) to purchase electricity from any entity authorized to sell electricity; (ii) to sell electricity at retail to any corporate affiliate or business unit located outside of the boundaries of communities served by municipal light departments within the commonwealth; and (iii) to enter into such contracts and agreements as are necessary or appropriate to provide such service. A corporate retail load aggregator shall be prohibited from engaging in the generation of electric power and from owning or operating any facilities for the transmission or distribution of electric power, with the exception of meters.
A corporation may establish a corporate retail load aggregator upon authorization by a majority vote of its board of directors. After a corporation has voted to establish a corporate retail load aggregator, the secretary of the corporation shall forthwith transmit to the department a certified copy thereof. A corporation that has established a corporate retail load aggregator shall appoint, by a majority vote of its board of directors or, as the case may be, a manager or a managing board of the corporate retail load aggregator. Such manager or managing board shall have full charge of the operation and management of the corporate retail load aggregator; the entry into contracts and agreements pursuant to which power will be purchased and sold; the employment of attorneys, agents, and servants; the collection of bills; and the keeping of accounts. At the discretion of the corporation, corporate officials may serve as such manager or on such managing board. The compensation and term of office of such manager or managing board shall be fixed by the corporation.
Nothing in this section shall be construed as relieving any company which provides generation, transmission, or distribution of electricity or any combination thereof, from any obligation relative to the transmission and distribution of electricity to the corporation forming a corporate retail load aggregator.
Corporate load aggregators shall be subject to any rules and regulations promulgated by the department through existing statute or amendments thereto, including licensure requirements.
Section 136. (a) Any number of persons may associate themselves together as a cooperative, with or without capital stock, for the transaction of any lawful business associated with the purchase, acquisition, distribution, sale, resale, supply, and disposition of energy or energy-related services to wholesale or retail customers, subject to federal and state laws and regulations. Unless otherwise served by a municipal light plant constructed or acquired pursuant to the provisions of this chapter or special law, any natural person, firm, corporation, business trust, partnership, public or private agency, non-profit organization or corporation, cooperative, or local municipality may become a member or shareholder of a cooperative. Such member or shareholder may thus access any services the cooperative has to offer and participate in the governance of the cooperative as provided in this subsection or by the bylaws of the cooperative.
(b) A cooperative may be established for any purpose outlined in subsection (a) of this section that may lawfully be carried out by any other corporation; provided, that a cooperative shall be organized and shall conduct its business primarily for the mutual benefit of its members as patrons of the cooperative. A cooperative shall have all of the powers of a natural person, including the power to participate with others in any partnership, joint venture, or other association, transaction, or arrangement of any kind. In addition, each cooperative subject to this chapter shall have the following powers:
(i) To have perpetual succession by its corporate name unless a limited period of duration is stated in the articles of incorporation;
(ii) To sue and be sued, complain, and defend its corporate name;
(iii) To have and use a corporate seal;
(iv) To purchase, take, receive, lease, or otherwise acquire, own, hold, improve, use, and deal in and with real or personal property or any interest therein, wherever situated;
(v) To sell, convey, mortgage, pledge, lease, exchange, transfer, or otherwise dispose of all or any part of its property and assets;
(vi) To purchase, take, receive, subscribe for, or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge, or otherwise dispose of, use, and deal in and with shares or other interest in, or obligations of, other domestic or foreign corporations, associations, partnerships, or individuals, or direct or indirect obligations of the United States or any other government, state, territory, governmental district, or municipality, or any instrumentality thereof;
(vii) To make contracts and incur liabilities, borrow money at rates of interest the cooperative may determine, issue notes, bonds, certificates of indebtedness, and other obligations, receive funds from members and pay interest thereon, issue capital stock and certificates representing equity interests in assets, allocate earnings and losses at the times and in the manner the articles of incorporation or bylaws or other contract specify, create book credits, capital funds, and reserves, and secure obligations by mortgage or pledge of any of its property, franchises, and income;
(viii) To lend money for corporate purposes, invest and reinvest funds, and take and hold real and personal property as security for the payment of funds loaned or invested;
(ix) To conduct business, carry on operations, have offices, and exercise the powers granted by this subsection, within or without this commonwealth;
(x) To elect or appoint officers and agents of the corporation, define their duties, and fix their compensation;
(xi) To make and alter bylaws, not inconsistent with its articles of incorporation or with the laws of this commonwealth, for the administration and regulation of the affairs of the cooperative;
(xii) To make donations for the public welfare or for charitable, scientific, or educational purposes;
(xiii) To pay pensions and establish pension plans, pension trusts, profit-sharing plans, stock bonus plans, stock option plans, and other incentive plans for any or all of its directors, officers, and employees;
(xiv) To be a partner, member, associate, or manager of any partnership, joint venture, trust, or other enterprise;
(xv) To cease corporate activities and surrender its corporate franchise;
(xvi) To purchase, acquire, distribute, sell, resell, supply, and dispose of energy or other services;
(xvii) To purchase, acquire, distribute, sell, resell, supply, and provide any energy or energy-related services to wholesale or retail customers;
(xviii) To have access on comparable terms to energy transportation systems for delivery of energy to its members and other customers;
(xix) To sell electricity to any consumer, including, but not limited to, a consumer that receives electric distribution, transmission, or other services from an entity other than the cooperative organized under subsection (a), other than consumers served by municipal light plants, that is selling such electricity to such consumer; provided, that an entity providing such distribution, transmission, or other services shall provide non-discriminatory access and pricing for the use of its property and services and shall otherwise facilitate such transactions;
(xx) To contract with natural persons, firms, corporations, business trusts, partnerships, public and private agencies, non-profit organizations and corporations, other cooperatives, and local municipalities to accomplish any purposes of the cooperative; and
(xxi) To have and exercise all powers necessary or convenient to effect its purposes.
(c) A cooperative organized pursuant to this section shall be managed by a board of not less than three directors. The directors shall be elected by and from the members of the cooperative at such time, in such manner, and for such term of office as the bylaws may prescribe and shall hold office during the term for which they were elected and until their successors are elected and qualified. Any vacancy occurring in the board of directors, and any directorship to be filled by reason of an increase in the number of directors, may be filled by the board of directors unless the articles of incorporation or the bylaws provide that a vacancy or directorship so created shall be filled in some other manner. A director elected or appointed to fill a vacancy shall be elected or appointed for the unexpired term of the predecessor in office.
(d) Any cooperative organized pursuant to the provisions of this section may enact bylaws to govern itself in the implementation of the provisions of this section which are not inconsistent with the provisions of this section.
(e) The right of a member of a cooperative to vote may be limited, enlarged, or denied to the extent specified in the articles of incorporation or bylaws. Unless so limited, enlarged, or denied, each member shall be entitled to one vote on each matter submitted to a vote of members.
(f) A member of the board of directors or an officer of any cooperative subject to the provisions of this section shall have immunity from liability equivalent to that granted to directors and officers of for-profit corporations in the commonwealth. Except for debts lawfully contracted between a member and the cooperative, no member shall be liable for the debts of the cooperative to an amount exceeding the sum remaining unpaid on his or her membership fee or subscription to capital stock.
Section 137. Notwithstanding any general or special law, rule, or regulation to the contrary, any non-profit institution in the commonwealth or any agency, executive office, department, board, commission, bureau, division, or authority of the commonwealth, including the executive, legislative, and judicial branches of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, may, unless located within the boundaries of a community served by a municipal light department, participate in and become a member of any program organized and administered, pursuant to the provisions of this chapter, by or on behalf of any public instrumentality of the commonwealth or of any subsidiary organization thereof for the purpose of group purchasing of electricity, natural gas, telecommunications services, or similar products.
SECTION 248. Section 1 of chapter 164A of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 3, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 249. Section 8 of said chapter 164A, as so appearing, is hereby amended by striking out, in lines 73 and 74, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 250. Section 1 of chapter 165 of the General Laws, as so appearing, is hereby amended by striking out, in line 7, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 251. Section 28 of said chapter 165, as so appearing, is hereby amended by striking out, in line 3, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 252. Section 4 of chapter 166 of the General Laws, as so appearing, is hereby amended by striking out, in line 3, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 253. Section 7 of said chapter 166, as so appearing, is hereby amended by striking out, in line 6, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 254. Section 8 of said chapter 166, as so appearing, is hereby amended by striking out, in line 9, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 255. Section 11 of said chapter 166, as so appearing, is hereby amended by striking out, in line 3, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 256. Section 15E of said chapter 166, as so appearing, is hereby amended by striking out, in line 62, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 257. Said section 15E of said chapter 166, as so appearing, is hereby further amended by striking out, in line 65, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 258. Said section 15E of said chapter 166, as so appearing, is hereby further amended by striking out, in line 71, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 259. Said section 15E of said chapter 166, as so appearing, is hereby further amended by striking out, in lines 76 and 77, the words "Department of Public Utilities" and inserting in place thereof the following words:- said department's.
SECTION 260. Said section 15E of said chapter 166, as so appearing, is hereby further amended by striking out, in line 83, the letters "D.P.U." and inserting in place thereof the following words:- said department's.
SECTION 261. Said section 15E of said chapter 166, as so appearing, is hereby further amended by striking out, in line 125, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 262. Said section 15E of said chapter 166, as so appearing, is hereby further amended by striking out, in line 131, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 263. Section 22A of said chapter 166, as so appearing, is hereby amended by striking out, in line 5, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 264. Section 22L of said chapter 166, as so appearing, is hereby amended by striking out, in line 4, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 265. Section 25A of said chapter 166, as so appearing, is hereby amended by striking out, in line 24, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 266. Said section 25A of said chapter 166, as so appearing, is hereby further amended by striking out the last paragraph and inserting in place thereof the following two paragraphs:-
No attachments shall be made without the consent of the utility to the poles, towers, piers, abutments, conduits, manholes, and other fixtures necessary to sustain, protect, or operate the wires or cables of any lines used principally for the supply of electricity in bulk.
Said department, pursuant to the provisions of this section, shall determine a just and reasonable rate for the use of poles and communication ducts and conduits of a utility for attachments of a licensee by assuring the utility recovery of not less than the additional costs of making provision for attachments nor more than the proportional capital and operating expenses of the utility attributable to that portion of the pole, duct, or conduit occupied by the attachment. Such portion shall be computed by determining the percentage of the total usable space on a pole or the total capacity of the duct or conduit that is occupied by the attachment.
SECTION 267. Section 27 of said chapter 166, as so appearing, is hereby amended by striking out, in line 6, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 268. Section 44 of said chapter 166, as so appearing, is hereby amended by striking out, in line 11, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 269. Said section 44 of said chapter 166, as so appearing, is hereby further amended by striking out, in line 25, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 270. Section 1 of chapter 166A of the General Laws, as amended by section 110 of chapter 43 of the acts of 1997, is hereby further amended by striking out the definition of "Community antenna television system" or "CATV system" and inserting in place thereof the following two definitions:-
"Commission", the commission appointed pursuant to section 2 of chapter 25.
"Community antenna television system" or "CATV system", a facility as defined by federal law at 47 USC section 522 (7).
SECTION 271. Said section 1 of said chapter 166A, as most recently amended by said section 33 of chapter 88 of the acts of 1997, is hereby further amended by striking out the definition of "Director" and inserting in place thereof the following definition:-
"Department", the department of telecommunications and energy established pursuant to chapter 25.
SECTION 272. Said section 1 of said chapter 166A, as most recently amended by said section 33 of said chapter 88, is hereby further amended by striking out the definition of "Licensee" and inserting in place thereof the following definition:-
"Licensee", a person who is issued a license pursuant to section 3.
SECTION 273. Section 2 of said chapter 166A, as most recently amended by section 35 of said chapter 88, is hereby further amended by striking out the first three paragraphs and inserting in place thereof the following paragraph:-
There shall be established in the department of telecommunications and energy a division of community antenna television. Subject to the provisions of section 4 of chapter 25, the chairman of the department shall designate a director of said division who shall have the full scope of authority of all of the provisions of this chapter, including, but not limited to, presiding at hearings pursuant to section 2A; the right to maintain or intervene in an action pursuant to section 12; the authority to hear appeals and issue enforcement orders pursuant to section 14; the authority to regulate rates pursuant to section 15; the authority to promulgate rules and regulations pursuant to section 16; its enforcement powers pursuant to section 17; and all other authority to carry out the duties and responsibilities of this chapter. Appeals of any decision, order, or ruling of the director may be brought within 14 days of the issuance of said decision to the full body of the commissioners of the department. When so requested by any party interested, the department shall rule upon any question of substantive law properly arising in the course of any proceeding before the division within 14 days. Except as otherwise provided in this chapter, appeals taken from orders of the department shall be governed by section 5 of chapter 25.
SECTION 274. Said section 10 of said chapter 166A is hereby amended by striking out, in line 6, as appearing in the 1996 Official Edition, the words "every three months" and inserting in place thereof the following:- annually.
SECTION 275. Section 12 of said chapter 166A, inserted by section 124 of said chapter 43, is hereby further amended by striking out the words "division and the consumer's council" and inserting in place thereof the following word:- department.
SECTION 276. Section 5 of chapter 167B of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 78, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 277. Section 20 of said chapter 167B, as so appearing, is hereby further amended by striking out, in line 55, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 278. Section 1 of chapter 182 of the General Laws, as so appearing, is hereby amended by striking out, in lines 6 and 7, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 279. Section 32 of chapter 184 of the General Laws, as so appearing, is hereby amended by striking out, in line 96, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 280. Section 5 of chapter 187 of the General Laws, as so appearing, is hereby amended by striking out, in line 17, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 281. Said section 5 of said chapter 187, as so appearing, is hereby further amended by striking out, in line 23, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 282. Section 76 of chapter 233 of the General Laws, as so appearing, is hereby amended by striking out, in line 6, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 283. Section 34 of chapter 262 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 56, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 284. Said section 34 of said chapter 262, as so appearing, is hereby further amended by striking out, in line 60, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 285. Said section 34 of said chapter 262, as so appearing, is hereby further amended by striking out, in line 66, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 286. Said section 34 of said chapter 262, as so appearing, is hereby further amended by striking out, in line 70, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 287. Section 44 of said chapter 262, as so appearing, is hereby amended by striking out, in line 1, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 288. Section 120D of chapter 266, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 41, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 289. Section 6 of chapter 268 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 3, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 290. Section 33 of said chapter 268, as so appearing, is hereby amended by striking out, in line 6, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 291. Chapter 268A of the General Laws is hereby amended by inserting after section 8A the following section:-
Section 8B. No member of the department of telecommunications and energy commission, appointed pursuant to section 2 of chapter 25, shall, within one year after his service has ceased or terminated on said commission, be employed by, or lobby said commission on behalf of, any company or regulated industry over which said commission had jurisdiction during the tenure of such member of the commission.
SECTION 292. Section 17B of chapter 271 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out, in line 3, the words "public utilities" and inserting in place thereof the following words:- telecommunications and energy.
SECTION 293. Chapter 614 of the acts of 1968 is hereby amended by striking out section 1 and inserting in place thereof the following section:-
Section 1. Declaration of Policy. - It is hereby declared that, for the benefit of the people of the commonwealth, the increase of their commerce, welfare, and prosperity, and the improvement of their health and living conditions, it is essential that this and future generations of youth be given the fullest opportunity to learn and to develop their intellectual and mental capacities; that it is essential that institutions for higher education within the commonwealth be provided with appropriate additional means to assist such youth in achieving the required levels of learning and development of their intellectual and mental capacities; that it is essential that hospitals and other charitable institutions within the commonwealth be provided with appropriate additional means to expand, enlarge, and establish health care, hospital, charitable, and other related facilities; that it is essential that cultural institutions within the commonwealth be provided with appropriate additional means to expand the services and resources which they offer for the intellectual and artistic enrichment of the people of the commonwealth and for educational and scientific purposes; and that it is the purpose of this act to provide a measure of assistance and an alternative method to enable institutions for higher education, hospitals, other charitable institutions, and cultural institutions in the commonwealth to provide the facilities and structures which are sorely needed to accomplish the purposes of this act, all to the public benefit and good, to the extent and manner provided herein.
SECTION 294. Paragraph (b) of section 3 of said chapter 614, as most recently amended by section 1 of chapter 789 of the acts of 1985, is hereby further amended by inserting after the word "parties", in line 60, the following words:- ; and, notwithstanding anything in this definition to the contrary, "project" may also include any capital or operating expenditure which may legally be made by any participating institution and the thing produced or acquired by such expenditure.
SECTION 295. Paragraph (g) of said section 3 of said chapter 614, as amended by section 2 of said chapter 789, is hereby further amended by inserting after the word "facility", in line 9, the following words:- ; or any other non-profit charitable institution in the commonwealth not otherwise eligible to participate under this act; provided, however, that such other non-profit charitable institution may only undertake the financing and construction or acquisition of a project or undertake the refunding or refinancing of obligations or of a mortgage or of advances to the extent that such projects, obligations, mortgages, or advances consist of or result from the purchase of energy or from energy conservation or related projects of such other non-profit charitable institution; and provided further, that such other non-profit charitable institution participates in or is a member of a group power purchasing program organized and administered by or on behalf of the authority.
SECTION 296. Section 5 of chapter 614 of the acts of 1968 is hereby amended by inserting after paragraph (o) the following paragraph:-
(o½) to issue electric rate reduction bonds, as defined in section 1H of chapter 164 of the General Laws, for the benefit of any electric company, as defined in section 1 of said chapter 164, that is determined to be eligible for said bond financing by the department of telecommunications and energy pursuant to said chapter 164, provided, however, that such electric rate reduction bonds shall constitute bonds as defined in clause (d) of section 3; provided, further, that such an electric company shall be deemed to be a participating institution as defined in clause (n) of section 3; and provided further, that the financing or refinancing of transition costs or the acquiring of transition property as provided for in said section 1H of said chapter 164 shall be deemed to be a project as defined in clause (b) of section 3.
SECTION 297. Sections 2 and 3 of chapter 292 of the acts of 1978 are hereby repealed.
SECTION 298. The first sentence of subsection (e) of section 7 of chapter 465 of the acts of 1980, as appearing in section 89 of chapter 233 of the acts of 1983, is hereby amended by striking out, in lines 1 and 2, the words "and the department are hereby each severally" and inserting in place thereof the following word:- is.
SECTION 299. The third sentence of said section (e) of said section 7 of said chapter 465, as so appearing, is hereby amended by striking out, in line 1, the words "or department".
SECTION 300. The sixth sentence of said section (e) of said section 7 of said chapter 465, as so appearing, is hereby amended by striking out, in lines 1 and 2, the words "or department".
SECTION 301. Section 3 of chapter 234 of the acts of 1985, is hereby repealed.
SECTION 302. Section 8 of chapter 428 of the acts of 1993 is hereby amended by inserting after the word "generators", in line 7, the following words:- who are then.
SECTION 303. Said section 8 of said chapter 428 is hereby further amended by striking out, in line 8, the words "storing waste" and inserting in place thereof the following words:- are storing or have in storage waste.
SECTION 304. Notwithstanding any general or special law, rule, or regulation to the contrary, the Massachusetts emergency management agency is hereby authorized to make an assessment against each operator of a nuclear power plant inside and outside of the commonwealth which is within a ten mile radius of a municipality within the commonwealth to defray the costs incurred by the office of emergency preparedness in the performance of its duties pertaining to nuclear safety emergency preparedness in an amount to be appropriated annually by the general court.
SECTION 305. Notwithstanding any general or special law, rule or regulation to the contrary, the department of telecommunications and energy is hereby authorized and directed to coordinate with the operator of the bulk power system in New England, the federal energy regulatory commission, and the other public utility commissions in the states of Connecticut, Maine, New Hampshire, New York, Rhode Island, and Vermont to adopt and implement appropriate policy initiatives and statutory reforms, including, but not limited to, the further development of the operator of the bulk power system, to ensure the independent operation of the regional bulk power system in order to provide for full and fair competition in electric generation while preserving the reliability of the system.
The governor of the commonwealth, acting by and through said department, is hereby authorized and directed to pursue the formation of a regional oversight committee with members from the various public utilities regulatory bodies from Connecticut, Maine, New Hampshire, New York, Rhode Island, and Vermont to monitor any independent systems operator serving the New England/New York area formed through federal statute or regulation. Said committee shall be encouraged to pursue regional coordination of transmission oversight, including, but not limited to, the development and execution of a regional compact agreement, subject to federal congressional and executive approval, in an effort to jointly monitor issues of reliability which affect the region as a whole and to require publicly and investor-owned utilities located in the aforementioned states that sell energy to retail customers in the commonwealth to adhere to enforceable standards and protocols to protect the reliability of the regional transmission and distribution systems.
SECTION 306. Notwithstanding any general or special law, rule, or regulation to the contrary, any person who is licensed pursuant to the provisions of the sixth paragraph of section 53 of chapter 146 of the General Laws or covered by section 7 of chapter 141 of the General Laws shall continue to be licensed or covered by said statutes as if such person was an employee of a previously regulated utility for so long as such person performs the same work in the same location or locations for any successor employer or employers. In the event a person who has been licensed as an employee of a utility pursuant to the provisions of said section 53 of said chapter 146 or covered by said section 7 of said chapter 141 seeks licensure under the non-utility sections of said statutes, such person shall have credited towards any experience requirements of said statutes or any rules or regulations made thereunder, all relevant service performed in the employment of the utility or successor employers. The board of regulations of the division of registration and the department of public safety shall promulgate rules and regulations in order to ensure the continuation of exemption from licensure under this section is limited to those steps necessary to enable the existing utility industry workforce to work in their places and locations of employment as of the effective date of this act. Said requirements relative to such continuation of exemption from licensure shall require, without limitation, said company or applicant to submit the names of individuals, jobs performed, nature of work, and work locations of individuals seeking continuation of said exemption.
SECTION 307. Notwithstanding any general or special law, rule, or regulation to the contrary, since the restructuring of the electricity industry in the commonwealth and the transition to expanded customer retail choice and competitive markets in said industry will trigger shifts in the natural gas utility industry as regulated by the department of telecommunications and energy, said gas utilities, in the implementation of any restructuring of or the unbundling of the rate structure for the natural gas industry in the commonwealth, shall consider the experience and expertise of the work force in order to ensure the safety and reliability of the natural gas system and the continued provision of high quality customer service, and to avoid economic dislocation.
SECTION 308. Notwithstanding any general or special law, rule, or regulation to the contrary, if and to the extent that the power cost component of the standard service transition rate to retail customers is below the cost at which the electric company procures power for such standard service transition rate from its wholesale suppliers pursuant to chapter 164, the department of telecommunications and energy shall investigate whether or not it is appropriate to extend, through additional amendment to the provisions of said chapter 164 by the general court, such a comparability credit at an equal amount for all other retail customers, especially residential ratepayers, who are purchasing power from other suppliers. Any cost deferrals required under this section shall be recovered with a return commencing when the deficiency for sales under the standard service transition rate no longer exists with a plan to be filed by the electric company and approved by the department. Upon the enactment of enabling legislation, the department shall issue rules and regulations concerning this comparability credit which shall address issues including, but not limited to, the length of time for the credit and which customers would qualify for the credit.
SECTION 309. Notwithstanding any general or special law, rule, or regulation to the contrary, the department of telecommunications and energy, the division of energy resources, and the office of the attorney general shall, within 45 days after the effective date of this act, file with the executive office of administration and finance a detailed budget analyses relative to the additional fiscal and personnel resources, if any, each such agency shall require in the fiscal year beginning July 1, 1998 in order to implement the provisions of this act. Said analyses shall be forwarded to the house and senate committees on ways and means, the joint committee on government regulations and the joint committee on energy, respectively, within five business days of submission to said executive office. Said analyses shall contain recommendations, if any, for the establishment, through an assessment process upon entities regulated by said department, of new revenue sources to adequately fund said fiscal and personnel requirements.
SECTION 310. Notwithstanding any general or special law, rule, or regulation to the contrary, any petition to construct a generating facility filed pursuant to section 69J of chapter 164 of the General Laws, which is pending before the energy facilities siting board as of the effective date of this act, may be reviewed pursuant to the provisions of either section 69J or section 69J¼ of said chapter 164, at the petitioner's discretion and request; provided, however, that any petition to construct a generating facility pursuant to said section 69J of said chapter 164, which has been subject to a public hearing prior to the effective date of this act, shall be subject to the provisions of said section 69J and not the provisions of said section 69J¼.
SECTION 311. Notwithstanding any general or special law, rule, or regulation to the contrary, there is hereby created a study commission, which shall be authorized and directed to review and analyze outstanding concerns regarding the siting of energy facilities in the commonwealth. Such concerns shall include, but not be limited to, the following: (i) the development of a procedure for coordinating and consolidating applications to construct generating facilities between and among the board, the department of environmental protection, and other appropriate agencies, to enable one-stop shopping, so-called, for necessary permits or certificates or other appropriate streamlining of the permitting system; (ii) the expansion of such coordinated procedures to other energy facilities, if appropriate; (iii) possible changes to the energy facilities siting board's procedures for reviewing electric and gas transmission lines in light of recent and proposed changes in the structure and regulation of the electric and gas industries, including regional approaches to the siting of such facilities; (iv) clarification of the energy facilities siting board's jurisdiction over the repowering of existing generating facilities at existing sites and the appropriate standards for reviewing such repowerings; (v) the development of coordinated procedures to encourage the reuse of existing industrial sites for the development of generating facilities; (vi) the issue of application fees paid by developers to the energy facilities siting board and the correlation of such fees to the board's procedures, as statutorily revised pursuant to this act, in reviewing such applications; provided, that said study shall include, but not be limited to, recommendations, if any, on reducing the application fee paid by developers to the board in light of the board's statutorily revised standards of review of such applications pursuant to the provisions of this act; (vii) the establishment of a site characterization and suitability commission within the department of environmental protection, which would promulgate criteria to be applied to sites included in an application before the energy facilities siting board and rule on suitability of a proposed site as before said application is approved; and (viii) the possibility of requiring applicants to provide either (a) evidence that the proposed facility would employ the best available and most efficient technology to control and reduce water withdrawals, or (b) a description of the environmental impacts, costs, and reliability of the water withdrawal method chosen and an explanation of why the proposed technology was chosen.
Said study commission shall consist of the following members: the chairman of the department of telecommunications and energy, or his designee, who shall serve as the chairman of said study commission; the commissioner of the department of environmental protection, or his designee; a member of the energy facilities siting board other than the chairman of the department of telecommunications and energy, who shall be selected to serve on said commission by the governor; the house and senate chairmen of the joint committee on government regulations; the house and senate chairmen of the joint committee on energy; and ten members to be appointed by the governor, one of whom shall be a representative of the Massachusetts municipal association, one of whom shall be a representative of the Massachusetts association of health boards, two of whom shall be a representative of an environmental protection organization, two of whom shall be representatives of the electric industry, including one member of the electric generation industry and one member representing an electric utility, one of whom shall be a representative of the gas industry, one of whom shall represent residential ratepayers, and two of whom shall be recommended by the Massachusetts AFL-CIO. Said study commission shall issue a final report, which shall include the results of its review and analysis, to the joint committees on government regulations and energy, respectively, and the house and senate committees on ways and means on or before December 31, 1998.
SECTION 312. Notwithstanding any general or special law, rule, or regulation to the contrary, no sooner than January 1, 2000, the department of telecommunications and energy, in conjunction with the division of energy resources, is hereby authorized and directed to commence an investigation and study relative to the manner in which metering, meter maintenance and testing, customer billing, and information services have been provided by distribution companies since March 1, 1998, pursuant to the provisions of chapter 164 of the General Laws, to analyze and determine whether such services should be unbundled and provided through a competitive market, whether in doing so any substantive savings accrues to consumers, and whether such substantive savings can be effected with little, if no, disruptions to employee staffing levels of those distribution companies presently conducting those activities. Said study shall also include an investigation and review of the creation of exclusive distribution service territories, pursuant to section 1B of said chapter 164, to determine if such exclusivity shall be terminated or altered in any manner. As part of its investigation and study, said department shall consult with and seek input from, through a public hearing process conducted in accordance with the provisions of chapter 30A of the General Laws, any and all interested parties, including, but not limited to, employees of and representatives of employees of distribution companies engaged in such services, electricity ratepayers, consumer representatives, and representatives of electricity services interests, including distribution and transmission companies and natural gas industry interest. Said department shall require all distribution companies operating in the commonwealth pursuant to said chapter 164 to file detailed information relative to their costs of providing such metering, billing, and information services, including, but not limited to, capital costs, depreciation, operating expenses, and taxes. In the event that said department determines that such services shall be subject to unbundling and competition, or that territorial exclusivity shall be terminated or altered in any manner, said department shall, by no later than January 1, 2001, file its recommendations, along with drafts of legislation necessary to implement said recommendations, with the clerk of the house of representatives. Any unbundling and creation of retail competition of such services shall not commence unless statutorily allowed through amendments to said chapter 164 upon said department's compliance with the provisions herein. In the event of unbundling of retail competition in metering and billing services, the department will ensure that firms providing these services collect the correct amounts from ratepayers. If the department determines a firm is not collecting the full amount due or a firm defaults on its obligation to collect sums owed to the electric company, the distribution company, a transmission company, a generation company, the financing entity, or electric rate reduction bondholders, it shall order that such firm cease and desist metering and billing operations and the distribution company resume providing such services within 30 days.
SECTION 313. Notwithstanding any general or special law, rule, or regulation to the contrary, all distribution transformers sold or first installed in the commonwealth after December 31, 1999, shall meet the minimum efficiency levels contained in tables 4-1 and 4-2 of National Electrical Manufacturers Association standard TP1-1996. Efficiency shall be tested in accordance with TP1-1996. These requirements shall only apply to transformers within the scope of TP1-1996. For the purposes of this section, the term "distribution transformer" shall be defined as transformers designed for operation on electrical distribution systems at primary voltages of 34.5kV and below and secondary voltages of 600 volts or below.
SECTION 314. Notwithstanding any general or special law, rule, or regulation to the contrary, the department of telecommunications and energy shall, by no later than July 1, 1998, disclose publicly all rates approved by said department prior to July 1, 1997, for the sale of electricity pursuant to section 94 of chapter 164 of the General Laws which were previously not disclosed to the public pursuant to section 5D of chapter 25 of the General Laws. For the purposes of this section, any such rate shall be considered public information and in no manner shall continue to receive non-disclosure status pursuant to said section 5D of said chapter 25.
SECTION 315. Notwithstanding the provisions of any general or special law, rule, or regulation to the contrary, any distribution company, aggregator, gas company, municipal lighting plant, or supplier, as defined and governed pursuant to the provisions of chapter 164 of the General Laws, shall be required to provide electricity or gas services to persons or corporations engaged in the business of agriculture or farming, as defined pursuant to section 1A of chapter 128 of the General Laws, at rates, prices, and charges established at least 10 per cent below any other rate, price, or charge category, with further rate, price, or charge considerations granted for off-peak consumption.
SECTION 316. Notwithstanding any general or special law, rule, or regulation to the contrary, the chairman of the department of telecommunications and energy is hereby authorized and directed, in conjunction with the commissioner of the community antenna television commission established pursuant to chapter 166A of the General Laws, to conduct an investigation and study relative to the adequacy and effectiveness of existing licensing and regulation of cable television operations by municipalities and the commonwealth in meeting the needs of consumers across the commonwealth. In conducting such investigation and study, said director shall consult with municipal officials, consumer organizations and representatives, cable operators, and any other interested parties. Said director shall report his findings, along with any recommendations for legislation, with the joint committee on government regulations of the general court, by no later than September 1, 1998.
SECTION 317. No later than January 1, 2002, the department of revenue shall commence an investigation and study of the viability and effectiveness of the provisions of paragraph (3) of the clause Sixteenth of section 5 of chapter 59 of the General Laws and section 38H of said chapter 59 including the payment in lieu of taxes agreements authorized pursuant to subsection (a) of said section 38H of said chapter 59, in alleviating any undue fiscal hardships suffered by cities and towns as a result of reduced property tax revenues from either the devaluation of property on which is located electricity generation facilities or the sale by electric or generation companies of such property and the subsequent termination of generation activities thereon. Said department shall also study and analyze the fiscal implications of applying the exemption provided therein to facilities over 30 megawatts. Said department shall also monitor the implementation of subsection (c) of said section 38H of said chapter 59 and analyze the fiscal implications which arise from such provisions. Said department shall, by May 1, 2002, file its recommendations and findings, including a determination as to whether or not such provisions relative to payments in lieu of taxes should be altered in any manner, with the joint committees on taxation and government regulations, respectively, and the house and senate committees on ways and means.
SECTION 318. The department of revenue shall, within 30 days of the effective date of this act, commence an investigation and study as to the potential fiscal implications to the revenues of the commonwealth, including any potential impacts arising from out-of-state occurrences, for the following two proposed amendments to the state tax code as follows:
(1) Amending section 6 of chapter 62 of the General Laws by inserting the following two subsections:-
(j) Any individual who contracts with a retail electricity supplier to purchase renewably-generated electricity in excess of minimum requirements under any renewables portfolio standard established by law, shall be entitled to take an income tax deduction equivalent to 50 per cent of the above-market price. The determination of above-market price shall be performed and certified by the department based on an analysis of current market conditions. The department may promulgate any rules, regulations, or procedures necessary to make such a determination.
(k) Any individual who purchases company qualifying energy efficiency equipment shall be entitled to an income tax deduction equivalent of 20 per cent of the cost up to a maximum of $10,000 annually. The division of energy resources shall, through a public hearing process, determine a level of efficiency necessary to qualify a product for the deduction. Systems to be considered shall include high-efficiency lighting and ballasts, residential and commercial refrigerators and freezers, electric and gas water heating systems, ground-source or high efficiency heat pumps, horizontal-axis washing machines, and high-efficiency furnaces. The division shall set the minimum qualifying efficiency standard based upon achieving significant improvements over federal appliance efficiency standards and with the intent of creating incentives to purchase equipment consuming less energy than 75 per cent of similar products on the market. The division shall have the authority to add or alter qualifying products based upon changes in technology and federal standards.
(2) Amending section 31A of chapter 63 of the General Laws by inserting the following two subsections:-
(n) Any business which contracts with a retail electricity supplier to purchase renewably-generated electricity in excess of minimum requirements under any renewables portfolio standard established by law, shall be entitled to take a business tax deduction equivalent to 25 per cent of the above-market price. The determination of above market price shall be performed and certified by the department based on an analysis of current market conditions. The department may devise any rules or procedures necessary to make such a determination.
(o) Any business purchasing qualifying energy efficiency equipment shall be entitled to an income tax deduction equivalent to 10 per cent of the cost up to a maximum of $50,000 annually. The division of energy resources shall, through a public hearing process, determine a level of efficiency necessary to qualify a product for the deduction. Systems to be considered shall include high-efficiency lighting and ballasts, residential and commercial refrigerators and freezers, electric and gas water heating systems, ground-source or high efficiency heat pumps, horizontal-axis washing machines, and high-efficiency furnaces. The division shall set the minimum qualifying efficiency standard based upon achieving significant improvements over federal appliance efficiency standards and with the intent of creating incentives to purchase equipment consuming less energy than 75 per cent of similar products on the market. The division shall have the authority to add or alter qualifying products based upon changes in technology and federal standards.
Upon the completion of its investigation and study, the department of revenue shall file a report, detailing its findings and recommendations, with the joint committees on taxation and government regulations, respectively, and the house and senate committees on ways and means.
SECTION 319. Notwithstanding any general or special law, rule, or regulation to the contrary, the department of telecommunications and energy and the division of energy resources shall submit any rules and regulations promulgated under the provisions of this act to the joint committee on government regulations for its review at least 30 days prior to the effective date of said regulations.
SECTION 320. Any petition or other matter pursuant to said chapter 166A of the General Laws before the community antenna television commission, established by section 1 of chapter 1103 of the acts of 1971, which is pending on January 1, 1998, shall be deemed to constitute a petition to or other matter within the jurisdiction of the department of telecommunications and energy.
SECTION 321. All employees of the community antenna television commission, established by section 1 of chapter 1103 of the acts of 1971, transferred by this act to the department of telecommunications and energy, who immediately prior to January 1, 1998, either hold permanent appointment in positions classified under chapter 31 of the General Laws or have tenure in their positions by reason of section 9A of chapter 30 of the General Laws, are hereby transferred to the department of telecommunications and energy, every such transfer to be without impairment of civil service status, seniority, retirement, or other rights of the employee and without interruption of service within the meaning of said chapter 31 or said section 9A and without reduction in compensation or salary grade, notwithstanding any change in title or duties resulting from such transfer, subject to the provisions of said chapter 31 and the rules and regulations adopted thereunder; provided, however, that the position of executive director of said community antenna television commission and said division of community antenna television, established by section 2 of said chapter 166A, shall become a managerial position of the department, classified in accordance with section 45 of chapter 30, and the salary shall be determined in accordance with section 46C of said chapter 30.
All employees of said community antenna television commission who, immediately prior to July 1, 1998, neither hold permanent appointment in such positions nor have such tenure, are hereby transferred to the department of telecommunications and energy, every such transfer to be without impairment of seniority, retirement, or other rights of such employees, and without interruption of services within the meaning of said section 9A of chapter 30 and without reduction in compensation or salary grade, notwithstanding any change in title or duties resulting from such transfer.
Nothing in this section shall be construed to confer upon any employee any rights not held immediately prior to the effective date of this act or to prohibit any reduction of salary or grade, transfer, reassignment, suspension, discharge, layoff, or abolition of position not prohibited prior to said July 1, 1998.
SECTION 322. All petitions, hearings, and other proceedings duly brought before and all prosecutions and legal and other proceedings duly begun by the community antenna television commission, established by section 1 of chapter 1103 of the acts of 1971, prior to January 1, 1998, shall continue unabated and remain in force notwithstanding the passage of this act and shall thereafter be completed before or by the department of telecommunications and energy.
All orders, rules, and regulations duly made, and all licenses or other approvals granted, and all legal and decisional precedents established by said community antenna television commission shall continue in force under said department and the provisions thereof shall be enforced, until superseded, revised, rescinded, or canceled in accordance with law by said department.
All questions regarding the identification of such petitions, hearings, prosecutions, proceedings, orders, rules, regulations, licenses, and other approvals, and regarding the completion or enforcement of matters so transferred, shall be determined by the chairman of said department.
SECTION 323. All books, papers, records, property, documents, equipment, lands, interests in land, buildings, facilities, and other property, both personal and real, which, immediately prior to January 1, 1998, are in the custody of the community antenna television commission, established by section 1 of chapter 1103 of the acts of 1971, are hereby transferred to the department of telecommunications and energy. All questions regarding the identification and disposition of such property shall be determined by the chairman of said department in accordance with applicable law.
SECTION 324. All existing contracts, memoranda of understanding, leases and obligations of the community antenna television commission, established by section 1 of chapter 1103 of the acts of 1971, which are in force immediately prior to January 1, 1998, shall thereafter be performed by the department of telecommunications and energy, in accordance with applicable law and as the chairman of said department may determine. No existing right or remedy of any character shall be lost, impaired, or affected by the provisions of this act.
SECTION 325. All monies heretofore appropriated for the community antenna television commission, established by section 1 of chapter 1103 of the acts of 1971, remaining unexpended on the effective date of this act are hereby transferred to the department of telecommunications and energy and shall be available for expenditure by said department for the purposes for which such funds were originally appropriated. All questions regarding the identification and use of such monies shall be determined by the chairman of said department.
SECTION 326. Wherever the name of the community antenna television commission, established by section 1 of chapter 1103 of the acts of 1971, appears in any general or special law, or in any order, rule, regulation, or other document, such name shall mean and shall be construed as referring to the department of telecommunications and energy.
SECTION 327. The regulations of the community antenna television commission, established by section 1 of chapter 1103 of the acts of 1971, codified in 207 Code of Massachusetts Regulations shall remain in full force and effect until such time as the department of telecommunications and energy may amend or rescind such regulations or adopt new regulations.
SECTION 328. Wherever in any general or special law or in any rule or regulation there is provided a right of appeal to the community antenna television commission, established by section 1 of chapter 1103 of the acts of 1971, a right of appeal to the commissioners of the department of telecommunications and energy shall exist, and such appeal shall be made pursuant to the provisions of any applicable law, rule, or regulation or amendments thereto or, in the absence of such applicable law, rule, or regulation, pursuant to chapter 30A of the General Laws.
SECTION 329. All functions, rights, obligations, powers, duties, and statutory provisions which, prior to January 1, 1998, were assigned to or exercised by the community antenna television commission, established by section 1 of chapter 1103 of the acts of 1971, shall continue to be exercised and performed by, and to be assigned to, the department of telecommunications and energy, except as such powers, duties, or other statutory duties are modified by this act.
SECTION 330. Notwithstanding the provisions of any general or special law to the contrary, the secretary of administration and finance is hereby authorized and directed to commence, in conjunction with the division of energy resources and the division of operational services, an investigation and report concerning the viability, effectiveness, and cost of requiring all state agencies and facilities to enter into contracts for the purchase of electricity that include a minimum 10% of kilowatt-hour sales derived from reliable renewable energy generating sources which are available in the commonwealth on the effective date of this act. Said report shall also project the increase in such renewable energy sources likely to be developed as a result of any of the provisions of this act, the costs to the commonwealth of procuring new renewable energy from such sources over a ten year horizon, and the benefits to such renewable energy providers of the commonwealth's preferred purchase from such sources. Said report shall be submitted to house and senate committees on ways and means by March 1, 2000, and such report shall be updated annually thereafter.
SECTION 331. (a) Notwithstanding the provisions of any general or special law to the contrary, the secretary of administration and finance, in consultation with the commissioner of the division of capital planning and operations, shall require any state agency that initiates, after the effective date of this act, the construction of a new facility, or substantial renovation of an existing facility that includes the replacement of systems, components, and other building elements which affect energy or water consumption, and which is either owned or operated by the commonwealth, shall design and construct such facility to minimize the life-cycle cost of the facility by utilizing energy efficiency, water conservation, or other renewable energy technologies pursuant to the following criteria:
(i) State agencies shall conduct a life-cycle cost analysis of any such facility's proposed design that evaluates the short-term and long-term cost and technical feasibility of using a passive or active solar energy system, wind-powered energy system or other renewable energy system to provide lighting, heat, water heating, or electricity. State agencies shall utilize solar or wind-powered systems when the life-cycle cost analysis has determined that such systems are economically feasible;
(ii) Each new educational facility, including any municipal educational facility financed through the school building assistance bureau, for which the projected demand for hot water exceeds 1,000 gallons per day, or which operates a heated swimming pool, shall be constructed, whenever economically and physically feasible, with a solar or other renewable energy system as the primary energy source for the domestic hot water system or swimming pool of the facility;
(iii) Each such state agency shall attempt, in the design, construction, equipping and operation of such facilities, to coordinate these efforts with the division of energy resources in order to maximize reliance and benefits of renewable energy research and investment activities promoted by this act; and
(iv) Each such state agency shall file with said division a report detailing its compliance with the provisions of this section with respect to each such facility.
(b) Notwithstanding the provisions of section 11C of chapter 25A of the General Laws, the division of capital planning and operations may procure energy management services jointly with a state agency or building authority that is procuring energy or related services. The provisions of said section 11C shall apply to the extent determined feasible by the commissioner of the division.
(c) For purposes of this section, the term "economically-feasible" shall mean providing a payback period of not more than 10 years, as determined by a life-cycle cost analysis. The division of capital planning and operations shall establish, by no later than January 1, 1999, a methodology for use by agencies in assessing life-cycle costs. The division of energy resources shall issue an annual report to the general court detailing the compliance record of all state agencies with the construction and renovation provisions in this section.
SECTION 332. The division of energy resources shall conduct a study and analysis in order to determine to what extent the renewable portfolio standard, so-called, as established pursuant to section 11F of chapter 25A of the General Laws, shall create a process for awarding certified renewable energy credits to renewable energy generators or retail suppliers. In developing said process, the division is shall create a mechanism for assessing fines and penalties for violations of said process. In order to implement such a certified renewable energy credits process, upon a determination of said division, said division shall file recommendations, including drafts of legislation, with the general court, and such program shall not be implemented until provided for by law.
SECTION 333. The division of energy resources shall conduct a study and analysis in order to determine whether standards for the energy-efficiency of residential buildings financed in whole or in part by the department of community affairs, the Massachusetts Housing Finance Agency, or by the Massachusetts Home Mortgage Finance Agency should be implemented and enforced. The study shall consider (i) a prohibition of the use of electric resistance heat unless the building is superinsulated pursuant to standards established by the commissioner, or unless the building has a heat pump that meets energy-efficiency standards established by the commissioner, (ii) whether the department of community affairs, the Massachusetts Housing Finance Agency, and the Massachusetts Home Mortgage Finance Agency should finance projects which do not meet the standards set by the commissioner of energy resources pursuant to this section, (iii) whether owners, managers, landlords or tenants of the aforementioned residential buildings are able or enabled to access, and implement demand side management information and materials, (iv) whether the competitive electricity market is including or excluding residential buildings so financed, such that those buildings are receiving and able to participate in the same or similar energy conservation opportunities that have become available to other residential buildings not mentioned, herein, (v) any other short term or long term energy efficiency projects and economic feasibility and life-cycle costs as it relates to the above residential buildings. The division of energy resources shall issue a report to the general court detailing the results of the study and recommendations by March 1, 2001.
SECTION 334. Notwithstanding any general or special law, rule or regulation to the contrary, there is hereby created a special commission, which is hereby authorized and directed to investigate and study the role of the Massachusetts Municipal Wholesale Electric Company, hereinafter called MMWEC, in the deregulated market created by a restructured electric utility industry as provided in this act. Said commission shall file its report with the clerks of the house and senate, and the joint committee on government regulations on or before February 15, 1998. Said committee shall be comprised of three members of the senate, two of whom shall be appointed by the senate president, and one of whom shall be appointed by the leader of the minority, but which appointments shall include a senator from the MMWEC community where the generation facility is located; three members of the house, two of whom shall be appointed by the speaker of the house and one of whom shall be appointed by the minority leader, but which appointments shall include the representative from the MMWEC community where the generation facility is located; two ratepayers from the MMWEC communities appointed by the governor; a member of the MMWEC board of directors to be appointed by the board; a member of the commission of the department of telecommunications and energy to be appointed by the commission; the commissioner of the division of energy resources; and a member of the Massachusetts Municipal Association.
SECTION 335. Notwithstanding any general or special law, rule, or regulation, to the contrary, the operation in rental housing of an energy monitoring system installed prior to July 1, 1997, whereby the cost of heat or air conditioning is allocated or charged by the owner to the tenant based upon measurements made by a computerized monitoring system and pursuant to a rental agreement shall be permitted. Upon request of an affected tenant, the consumer division of the department of telecommunications and energy shall have jurisdiction to determine whether the allocation of cost to such tenant was substantially correct.
SECTION 336. The executive office of environmental affairs, the department of environmental protection, and the energy facilities siting board shall, in cooperation with each other, develop a report to analyze the environmental benefits accruing pursuant to the implementation of generation performance standards in section 142N of chapter 111 of the General Laws. Said study shall explore whether or not said department shall promulgate regulations to establish uniform performance standards for any additional pollutants other than the previously established standard established pursuant to said section 142N of said chapter 111 prior to May 1, 2003. Said report shall include any recommendations, together with proposed legislation, designed to implement the recommendations, including any expansion of said generation performance standards.
SECTION 337. The commissioners of the department of public utilities appointed and sworn to said positions on October 1, 1997, are hereby authorized to remain in said positions for the statutorily authorized initial term of one year that is established for the expanded department of telecommunications and energy commission pursuant to section 2 of chapter 25 of the General Laws. Notwithstanding the provisions of said section 2, the said commissioners shall be eligible for reappointment to subsequent three-year terms at the discretion of the governor. In the event that the said commissioners decline or are not nominated to said three-year extended appointments, they are hereby declared exempt from the provisions of section 8B of chapter 268A of the General Laws.
SECTION 338. Notwithstanding any general or special law, rule, or regulation to the contrary, no property of the Holyoke Water Power Company which is used in the manufacture and generation of electricity, except pollution control equipment operated and maintained by said company, shall be exempt from taxation pursuant to the provisions of paragraph (3) of the clause Sixteenth of section 5 of chapter 59 of the General Laws.
SECTION 339. Notwithstanding any general or special law, rule, or regulation to the contrary, the department of telecommunications and energy and the division of energy resources shall establish a pilot program to implement the provisions of section 134 of chapter 164 of the General Laws. Said pilot program shall consist of four initial aggregation programs, which shall consist of two municipal aggregation programs and two aggregation programs by a county or a regional government which has voted prior to the effective date of this act to pursue the creation of a county administered aggregation program; provided, however, that a county or regional government which votes to pursue the creation of an aggregation program administered by such county or regional government after the effective date of this act may submit an aggregation plan to said department, after consultation with said division, which may, during the pilot program established herein, approve such plan and the implementation of such plan prior to the conclusion of the pilot program if said department determines that such approval is in the best interest of the ratepayers of the county or the regional government.
SECTION 340. There is hereby created a special commission on the deregulation and convergence of industry, which shall study the ramifications of past and future efforts to restructure the major regulated businesses and industries serving the commonwealth's consumers, including, but not limited to, the electric utility industry, telephone and telecommunications industry, including the Internet system, the gas industry, the transportation industry, and the cable television industry. Said commission shall consist of: the co-chairs of the joint committee on government regulations and four additional members of the general court, including two from the minority party, one selected by the minority leader of the house of representatives and one selected by the minority leader of the senate, who among them will elect a chairman; the secretary of administration and finance or his designee; a commissioner of the department of telecommunications and energy; the attorney general, or his designee; the director of the office of consumer affairs and business regulation; one representative from each of the five aforementioned major regulated industries; one consumer protection advocate; two members representing the interests of industry employees, one of whom shall be a representative of organized labor, and one person who shall be a member of the Massachusetts municipal association. Said commission shall study and make recommendations on the potential convergence of these industries in merged or joint projects or activities and the future regulatory role of the commonwealth over these industries, including, but not limited to, requiring the department of telecommunications and energy to promulgate model rules and regulations governing the conduct, operation, and rate structure of merged regulated industries, including, but not limited to, merged electric and cable television companies, merged electric and gas companies, and merged telephone and cable television companies, and the impact on consumers of said merged industries. Said commission shall issue an initial report to the joint committee on government regulations on or before July 1, 1999.
SECTION 341. Notwithstanding any general or special law or regulation to the contrary, an electric company shall not be required to divest or otherwise include within its transition cost calculation, a generation facility that ceased to generate electricity as of January 1, 1993 and that is retired from rate base; provided that said facility and the property on which it is located is subject to a long-term lease to a non-profit, educational entity.
SECTION 342. The provisions of sections 200, 202 to 205, inclusive, and 207 to 226, inclusive, of this act shall take effect 90 days after the effective date of this act.
SECTION 343. The provisions of section 71I of chapter 151A of the General Laws, as inserted by section 119 of this act, shall expire on December 31, 2005.
SECTION 344. The provisions of section 273 of this act shall expire on December 31, 2001.