ASSEMBLY, No. 938
STATE OF NEW JERSEY
Introduced Pending Technical Review by Legislative Counsel
PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION
By Assemblyman KRAMER
An Act concerning certain power purchase agreements, amending R.S.48:2-46, and supplementing Title 48 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) a. The Board of Public Utilities shall have the authority, with respect to a power purchase agreement entered into between an electric public utility and a governmental non-utility electric generator, to extend (1) the commencement date or commercial operation date of the non-utility electricity generating facility, including a resource recovery facility as defined in section 2 of P.L.1985, c.38 (C.13:1E-137); (2) the date relating to the ability of any party to the power purchase agreement to terminate the agreement prior to the operation of the non-utility electricity generating facility; or (3) any other date, deadline or timing matter related to the power purchase agreement.
b. The board shall have the authority to extend a date, deadline or timing matter related to a power purchase agreement pursuant to subsection a. of this section when:
(1) the power purchase agreement was previously approved by the board;
(2) the power purchase agreement is determined by the board to be in the long-term public interest of the State's ratepayers and electric power consumers;
(3) the governmental non-utility electric generator has received all required permits, licenses and approvals with respect to the construction of the non-utility electricity generating facility;
(4) the non-utility electricity generating facility is intended to provide service to at least two counties in this State;
(5) the extension is consistent with the New Jersey Energy Master
Plan adopted pursuant to section 12 of P.L.1977, c.146 (C.52:27F-14);
(6) the extension is recommended by the Department of Environmental Protection;
(7) the governmental non-utility electric generator consents to the extension;
(8) the extension is consistent with all applicable federal laws, rules and regulations concerning non-utility electric generators; and
(9) the power purchase agreement was approved by the board as an exception to the competitive procurement process otherwise required pursuant to the Stipulation of Settlement adopted by order of the board issued under Docket No. 8010-687B.
2. R.S.48:2-46 is amended to read as follows:
48:2-46. a. The Superior Court, [appellate division] Appellate Division is hereby given jurisdiction to review any order of the board and to set aside such order, in whole or in part, when it clearly appears that there was no evidence before the board to support the same reasonably or that the same was without the jurisdiction of the board.
No order shall be set aside, in whole or in part, for any irregularity or informality in the proceedings of the board unless the irregularity or informality tends to defeat or impair the substantial right or interest of the appellant.
b. If any order of the board issued under the authority granted pursuant to section 1 of P.L. , c. (C. )(pending in the Legislature as this bill) is reviewed by the Superior Court, Appellate Division, the court shall give due deference to the board's expertise and knowledge with respect to the matters related to the order and shall not set aside the order, in whole or in part, unless it clearly appears that there was no evidence before the board to support the exercise of that authority.
Whenever the court reviews any order of the board issued under the authority granted pursuant to section 1 of P.L. , c. (C. ) (pending in the Legislature as this bill), the court shall not apply any other standard of review other than that set forth in this subsection.
(cf: P.L.1962, c.198, s.26)
3. This act shall take effect immediately.
STATEMENT
This bill would authorize the Board of Public Utilities (BPU) to extend any deadline contained in a power purchase agreement between an electric public utility and a governmental non-utility electric generator providing solid waste disposal services as well as generating electricity for sale.
The BPU would be authorized to extend a date, deadline or timing matter related to any such power purchase agreement only if:
(1) the power purchase agreement was previously approved by the board;
(2) the power purchase agreement is determined by the board to be in the long-term public interest of the State's ratepayers and electric power consumers;
(3) the governmental non-utility electric generator has received all required permits, licenses and approvals with respect to the construction of the non-utility electricity generating facility;
(4) the non-utility electricity generating facility is intended to provide service to at least two New Jersey counties;
(5) the extension is consistent with the New Jersey Energy Master Plan;
(6) the extension is recommended by the Department of Environmental Protection;
(7) the governmental non-utility electric generator consents to the extension;
(8) the extension is consistent with all applicable federal laws, rules and regulations concerning non-utility electric generators; and
(9) the power purchase agreement was approved by the board as an exception to the competitive procurement process otherwise required pursuant to the Stipulation of Settlement adopted by order of the board issued under Docket No. 8010-687B.
This bill also would clarify the standards of review that a court could employ in reviewing any extension of a date, deadline or timing matter related to any such power purchase agreement. A recent court decision questioned the authority of the BPU to order extensions such as those provided for in this bill. Accordingly, this bill would clarify that the board does explicitly possess such authority.
Authorizes BPU to extend deadline in power purchase agreements between electric utilities and non-utility electric generators also providing regional solid waste disposal services.