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-CITE-
16 USC Sec. 839d 01/26/98-EXPCITE-
TITLE 16 - CONSERVATION
CHAPTER 12H - PACIFIC NORTHWEST ELECTRIC POWER PLANNING AND
CONSERVATION-HEAD-
Sec. 839d. Conservation and resource acquisition-STATUTE-
(a) Conservation measures; resources
(1) The Administrator shall acquire such resources through
conservation, implement all such conservation measures, and acquire
such renewable resources which are installed by a residential or
small commercial consumer to reduce load, as the Administrator
determines are consistent with the plan, or if no plan is in effect
with the criteria of section 839b(e)(1) of this title and the
considerations of section 839b(e)(2) of this title and, in the case
of major resources, in accordance with subsection (c) of this
section. Such conservation measures and such resources may
include, but are not limited to -
(A) loans and grants to consumers for insulation or
weatherization, increased system efficiency, and waste energy
recovery by direct application,
(B) technical and financial assistance to, and other
cooperation with, the Administrator's customers and governmental
authorities to encourage maximum cost-effective voluntary
conservation and the attainment of any cost-effective
conservation objectives adopted by individual States or
subdivisions thereof,
(C) aiding the Administrator's customers and governmental
authorities in implementing model conservation standards adopted
pursuant to section 839b(f) of this title, and
(D) conducting demonstration projects to determine the cost
effectiveness of conservation measures and direct application of
renewable energy resources.
(2) In addition to acquiring electric power pursuant to section
839c(c) of this title, or on a short-term basis pursuant to section
11(b)(6)(i) of the Federal Columbia River Transmission System Act
(16 U.S.C. 838i(b)(6)(i)), the Administrator shall acquire, in
accordance with this section, sufficient resources -
(A) to meet his contractual obligations that remain after
taking into account planned savings from measures provided for in
paragraph (1) of this subsection, and
(B) to assist in meeting the requirements of section 839b(h) of
this title.
The Administrator shall acquire such resources without considering
restrictions which may apply pursuant to section 839c(b) of this
title.
(b) Acquisition of resources
(1) Except as specifically provided in this section, acquisition
of resources under this chapter shall be consistent with the plan,
as determined by the Administrator.
(2) The Administrator may acquire resources (other than major
resources) under this chapter which are not consistent with the
plan, but which are determined by the Administrator to be
consistent with the criteria of section 839b(e)(1) of this title
and the considerations of section 839b(e)(2) of this title.
(3) If no plan is in effect, the Administrator may acquire
resources under this chapter which are determined by the
Administrator to be consistent with the criteria of section
839b(e)(1) of this title and the considerations of section
839b(e)(2) of this title.
(4) The Administrator shall acquire any non-Federal resources to
replace Federal base system resources only in accordance with the
provisions of this section. The Administrator shall include in the
contracts for the acquisition of any such non-Federal replacement
resources provisions which will enable him to ensure that such
non-Federal replacement resources are developed and operated in a
manner consistent with the considerations specified in section
839b(e)(2) of this title.
(5) Notwithstanding any acquisition of resources pursuant to this
section, the Administrator shall not reduce his efforts to achieve
conservation and to acquire renewable resources installed by a
residential or small commercial consumer to reduce load, pursuant
to subsection (a)(1) of this section.
(c) Procedure for acquiring major resources, implementing
conservation measures, paying or reimbursing investigation and
preconstruction expenses, or granting billing credits
(1) For each proposal under subsection (a), (b), (f), (h), or (l)
of this section to acquire a major resource, to implement a
conservation measure which will conserve an amount of electric
power equivalent to that of a major resource, to pay or reimburse
investigation and preconstruction expenses of the sponsors of a
major resource, or to grant billing credits or services involving a
major resource, the Administrator shall -
(A) publish notice of the proposed action in the Federal
Register and provide a copy of such notice to the Council, the
Governor of each State in which facilities would be constructed
or a conservation measure implemented, and the Administrator's
customers;
(B) not less than sixty days following publication of such
notice, conduct one or more public hearings, presided over by a
hearing officer, at which testimony and evidence shall be
received, with opportunity for such rebuttal and
cross-examination as the hearing officer deems appropriate in the
development of an adequate hearing record;
(C) develop a record to assist in evaluating the proposal which
shall include the transcript of the public hearings, together
with exhibits, and such other materials and information as may
have been submitted to, or developed by, the Administrator; and
(D) following completion of such hearings, promptly provide to
the Council and make public a written decision that includes, in
addition to a determination respecting the requirements of
subsection (a), (b), (f), (h), (l), or (m) of this section, as
appropriate -
(i) if a plan is in effect, a finding that the proposal is
either consistent or inconsistent with the plan or,
notwithstanding its inconsistency with the plan, a finding that
it is needed to meet the Administrator's obligations under this
chapter, or
(ii) if no plan is in effect, a finding that the proposal is
either consistent or inconsistent with the criteria of section
839b(e)(1) of this title and the considerations of section
839b(e)(2) of this title or notwithstanding its inconsistency,
a finding that it is needed to meet the Administrator's
obligations under this chapter.
In the case of subsection (f) of this section, such decision
shall be treated as satisfying the applicable requirements of
this subsection and of subsection (f) of this section, if it
includes a finding of probable consistency, based upon the
Administrator's evaluation of information available at the time
of completion of the hearing under this paragraph. Such decision
shall include the reasons for such finding.
(2) Within sixty days of the receipt of the Administrator's
decision pursuant to paragraph (1)(D) of this subsection, the
Council may determine by a majority vote of all members of the
Council, and notify the Administrator -
(A) that the proposal is either consistent or inconsistent with
the plan, or
(B) if no plan is in effect, that the proposal is either
consistent or inconsistent with the criteria of section
839b(e)(1) of this title and the considerations of section
839b(e)(2) of this title.
(3) The Administrator may not implement any proposal referred to
in paragraph (1) that is determined pursuant to paragraph (1) or
(2) by either the Administrator or the Council to be inconsistent
with the plan or, if no plan is in effect, with the criteria of
section 839b(e)(1) of this title and the considerations of section
839b(e)(2) of this title -
(A) unless the Administrator finds that, notwithstanding such
inconsistency, such resource is needed to meet the
Administrator's obligations under this chapter, and
(B) until the expenditure of funds for that purpose has been
specifically authorized by Act of Congress enacted after December
5, 1980.
(4) Before the Administrator implements any proposal referred to
in paragraph (1) of this subsection, the Administrator shall -
(A) submit to the appropriate committees of the Congress the
administrative record of the decision (including any
determination by the Council under paragraph (2)) and a statement
of the procedures followed or to be followed for compliance with
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.),
(B) publish notice of the decision in the Federal Register, and
(C) note the proposal in the Administrator's annual or
supplementary budget submittal made pursuant to the Federal
Columbia River Transmission System Act (16 U.S.C. 838 and
following).
The Administrator may not implement any such proposal until ninety
days after the date on which such proposal has been noted in such
budget or after the date on which such decision has been published
in the Federal Register, whichever is later.
(5) The authority of the Council to make a determination under
paragraph (2)(B) if no plan is in effect shall expire on the date
two years after the establishment of the Council.
(d) Acquisition of resources other than major resources
The Administrator is authorized to acquire a resource, other than
a major resource, whether or not such resource meets the criteria
of section 839b(e)(1) of this title and the considerations of
section 839b(e)(2) of this title but which he determines is an
experimental, developmental, demonstration, or pilot project of a
type with a potential for providing cost-effective service to the
region. The Administrator shall make no obligation for the
acquisition of such resource until it is included in the annual
budgets submitted to the Congress pursuant to the Federal Columbia
River Transmission System Act (16 U.S.C. 838 et seq.).
(e) Effectuation of priorities; use of customers and local entities
(1) In order to effectuate the priority given to conservation
measures and renewable resources under this chapter, the
Administrator shall, to the maximum extent practicable, make use of
his authorities under this chapter to acquire conservation measures
and renewable resources, to implement conservation measures, and to
provide credits and technical and financial assistance for the
development and implementation of such resources and measures
(including the funding of, and the securing of debt for, expenses
incurred during the investigation and preconstruction of resources,
as authorized in subsection (f) of this section).
(2) To the extent conservation measures or acquisition of
resources require direct arrangements with consumers, the
Administrator shall make maximum practicable use of customers and
local entities capable of administering and carrying out such
arrangements.
(f) Agreements; investigation and initial development of renewable
resources other than major resources; reimbursement of
investigation and preconstruction expenses
(1) For resources which the Administrator determines may be
eligible for acquisition under this section and satisfy the
criteria of section 839b(e)(1) of this title and the considerations
of section 839b(e)(2) of this title or, if a plan is in effect, to
be consistent with the plan, the Administrator is authorized to
enter into agreements with sponsors of -
(A) a renewable resource, other than a major resource, to fund
or secure debt incurred in the investigation and initial
development of such resource, or
(B) any other resource to provide for the reimbursement of the
sponsor's investigation and preconstruction expenses concerning
such resource (which expenses shall not include procurement of
capital equipment or construction material for such resource).
In the case of any resource referred to in subparagraph (B) of this
paragraph, such reimbursement is authorized only if -
(i) such resource is subsequently denied State siting approval
or other necessary Federal or State permits, or approvals,
(ii) such investigation subsequently demonstrates, as
determined by the Administrator, that such resource does not meet
the criteria of section 839b(e)(1) of this title and the
considerations of section 839b(e)(2) of this title or is not
acceptable because of environmental impacts, or
(iii) after such investigation the Administrator determines not
to acquire the resource and the sponsor determines not to
construct the resource.
(2) The Administrator may exercise the authority of this
subsection only after he determines that the failure to do so would
result in inequitable hardship to the consumers of such sponsors.
The Administrator may provide reimbursement under this subsection
only for expenses incurred after December 5, 1980.
(3) Any agreement under paragraph (1) of this subsection shall
provide the Administrator an option to acquire any such resource,
including a renewable resource, and shall include such other
provisions, as the Administrator deems appropriate, for the
Administrator's recovery from such sponsors or any assignee of the
sponsors, if such sponsor or assignee continues development of the
resource, of any advances made by the Administrator pursuant to
such agreement.
(4) The Administrator shall not reimburse any expense incurred by
the sponsors (except necessary expenses involved in the liquidation
of the resource) after the date of a final denial of application
for State siting approval or after the date the Administrator
determines that the resource to be inconsistent with the plan or
the criteria of section 839b(e)(1) of this title and the
considerations of section 839b(e)(2) of this title.
(g) Environmental impact statements
At the request of the appropriate State, any environmental impact
statement which may be required with respect to a resource, to the
extent determined possible by the Administrator in accordance with
applicable law and regulations, may be prepared jointly and in
coordination with any required environmental impact statement of
the State or any other statement which serves the purpose of an
environmental impact statement which is required by State law.
(h) Billing credits
(1) If a customer so requests, the Administrator shall grant
billing credits to such customer, and provide services to such
customer at rates established for such services, for -
(A) conservation activities independently undertaken or
continued after December 5, 1980, by such customer or political
subdivision served by such customer which reduce the obligation
of the Administrator that would otherwise have existed to acquire
other resources under this chapter, or
(B) resources constructed, completed, or acquired after
December 5, 1980, by a customer, an entity acting on behalf of
such customer, or political subdivision served by the customer
which reduce the obligation of the Administrator to acquire
resources under this chapter. Such resources shall be renewable
resources or multipurpose projects or other resources which are
not inconsistent with the plan or, in the absence of a plan, not
inconsistent with the criteria of section 839b(e)(1) of this
title and the considerations of section 839b(e)(2) of this title.
(2) The energy and capacity on which a credit under this
subsection to a customer is based shall be the amount by which a
conservation activity or resource actually changes the customer's
net requirement for supply of electric power or reserves from the
Administrator.
(3) The amount of credits for conservation under this subsection
shall be set to credit the customer implementing or continuing the
conservation activity for which the credit is granted for the
savings resulting from such activity. The rate impact on the
Administrator's other customers of granting the credit shall be
equal to the rate impact such customers would have experienced had
the Administrator been obligated to acquire resources in an amount
equal to that actually saved by the activity for which the credit
is granted.
(4) For resources other than conservation, the customer shall be
credited for net costs actually incurred by such customer, an
entity acting on behalf of such customer, or political subdivision
served by such customer, in acquiring, constructing, or operating
the resource for which the credit is granted. The rate impact to
the Administrator's other customers of granting the credit shall be
no greater than the rate impact such customers would have
experienced had the Administrator been obligated to acquire
resources in an amount equal to that actually produced by the
resource for which the credit is granted.
(5) Retail rate structures which are voluntarily implemented by
the Administrator's customers and which induce conservation or
installation of consumer-owned renewable resources shall be
considered, for purposes of this subsection, to be (A) conservation
activities independently undertaken or carried on by such
customers, or (B) customer-owned renewable resources, and shall
qualify for billing credits upon the same showing as that required
for other conservation or renewable resource activities.
(6) Prior to granting any credit or providing services pursuant
to this subsection, the Administrator shall -
(A) comply with the notice provisions of subsection (c) of this
section, and include in such notice the methodology the
Administrator proposes to use in determining the amount of any
such credit;
(B) include the cost of such credit in the Administrator's
annual or amended budget submittal to the Congress made pursuant
to the Federal Columbia River Transmission System Act (16 U.S.C.
838(j)) (16 U.S.C. 838 et seq.);
(C) require that resources in excess of customer's reasonable
load growth shall have been offered to others for ownership
participation or other sponsorship pursuant to subsection (m) of
this section, except in the case of conservation, multi-purpose
projects uniquely suitable for development by the customer, or
renewable resources; and
(D) require that the operators of any generating resource for
which a billing credit is to be granted agree to operate such
resource in a manner compatible with the planning and operation
of the region's process power system.
(i) Contracts
Contracts for the acquisition of resources and for billing
credits for major resources, including conservation activities,
entered into pursuant to this section shall contain such terms and
conditions, applicable after the contract is entered into, as will
-
(1) insure timely construction, scheduling, completion, and
operation of resources,
(2) insure that the costs of any acquisition are as low as
reasonably possible, consistent (A) with sound engineering,
operating, and safety practices, and (B) the protection,
mitigation, and enhancement of fish and wildlife, including
related spawning grounds and habitat affected by the development
of such resources, and
(3) insure that the Administrator exercises effective
oversight, inspection, audit, and review of all aspects of such
construction and operation.
Such contracts shall contain provisions assuring that the
Administrator has the authority to approve all costs of, and
proposals for, major modifications in construction, scheduling or
operations and to assure that the Administrator is provided with
such current information as he deems necessary to evaluate such
construction and operation.
(j) Obligations not to be considered general obligations of United
States or secured by full faith and credit of United States
(1) All contractual and other obligations required to be carried
out by the Administrator pursuant to this chapter shall be secured
solely by the Administrator's revenues received from the sale of
electric power and other services. Such obligations are not, nor
shall they be construed to be, general obligations of the United
States, nor are such obligations intended to be or are they secured
by the full faith and credit of the United States.
(2) All contracts entered into by the Administrator for the
acquisition of resources pursuant to this chapter shall require
that, in the sale of any obligations, all offerings and promotional
material for the sale of such obligations shall include the
language contained in the second sentence of paragraph (1) of this
subsection. The Administrator shall monitor and enforce such
requirement.
(k) Equitable distribution of benefits
In the exercise of his authorities pursuant to this section, the
Administrator shall, consistent with the provisions of this chapter
and the Administrator's obligations to particular customer classes,
insure that benefits under this section, including financial and
technical assistance, conduct of conservation demonstrations, and
experimental projects, services, and billing credits, are
distributed equitably throughout the region.
(l) Investigations
(1) The Administrator is authorized and directed to investigate
opportunities for adding to the region's resources or reducing the
region's power costs through the accelerated or cooperative
development of resources located outside the States of Idaho,
Montana, Oregon, and Washington if such resources are renewable
resources, and are now or in the future planned or considered for
eventual development by nonregional agencies or authorities that
will or would own, sponsor, or otherwise develop them. The
Administrator shall keep the Council fully and currently informed
of such investigations, and seek the Council's advice as to the
desirability of pursuing such investigations.
(2) The Administrator is authorized and directed to investigate
periodically opportunities for mutually beneficial interregional
exchanges of electric power that reduce the need for additional
generation or generating capacity in the Pacific Northwest and the
regions with which such exchanges may occur. The Council shall
take into consideration in formulating a plan such investigations.
(3) After the Administrator submits a report to Congress pursuant
to paragraph (5) of this subsection, the Administrator is
authorized to acquire resources consistent with such investigations
and consistent with the plan or, if no plan is in effect, with the
priorities of section 839b(e)(1) of this title and the
considerations of section 839b(e)(2) of this title. Such
acquisitions shall be in accordance with the provisions of this
subsection.
(4) The Administrator shall conduct the investigations and the
acquisitions, if any, authorized under this subsection with the
assistance of other Federal agencies as may be appropriate.
(5) No later than July 1, 1981, the Administrator shall submit to
the Congress a report of the results of the investigations
undertaken pursuant to this subsection, together with the prospects
for obtaining additional resources under the authority granted by
this subsection and for reductions in generation or generating
capacity through exchanges.
(m) Offering of reasonable shares to each Pacific Northwest
electric utility
Except as to resources under construction on December 5, 1980,
the Administrator shall determine in each case of a major resource
acquisition that a reasonable share of the particular resource, or
a reasonable equivalent, has been offered to each Pacific Northwest
electric utility for ownership, participation, or other
sponsorship, but not in excess of the amounts needed to meet such
utility's Regional load.-SOURCE-
(Pub. L. 96-501, Sec. 6, Dec. 5, 1980, 94 Stat. 2717.)-REFTEXT-
REFERENCES IN TEXT
The National Environmental Policy Act of 1969, referred to in
subsec. (c)(4)(A), is Pub. L. 91-190, Jan. 1, 1970, 83 Stat. 852,
as amended, which is classified generally to chapter 55 (Sec. 4321
et seq.) of Title 42, The Public Health and Welfare. For complete
classification of this Act to the Code, see Short Title note set
out under section 4321 of Title 42 and Tables.
The Federal Columbia River Transmission System Act, referred to
in subsecs. (c)(4)(C), (d), (h)(6)(B), is Pub. L. 93-454, Oct. 18,
1974, 88 Stat. 1376, as amended, which is classified generally to
chapter 12G (Sec. 838 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title note set
out under section 838 of this title and Tables.-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 838k, 839b, 839c, 839e,
839f, 839g of this title; title 26 section 149.