Section VI of HB 589, named the “Distributed Resources Access Act,” creates new opportunities in North Carolina for solar energy development in ways other than utility-scale solar farms. It authorizes, for the first time, the leasing of solar energy facilities for retail customers and subscription to shared community solar energy facilities. N.C.G.S. § 62-126.7 states, “No person shall engage in the leasing of a solar energy facility without having applied for and obtained a certificate authorizing those operations from the Commission.” Open issues are the criteria and process that the Commission would use for this certification and the consequences for leasing facilities without a certificate.

On October 17, the Utilities Commission issued an Order Proposing Rules and Requesting Comments to start addressing these issues. Specifically, the Commission has proposed new Rule R8-72 setting forth the application requirements, an application form, the process for the sale or other transfer or amendment to a certificate, the steps for review and approval of the application, and the procedure on a complaint against an entity leasing facilities without a license. In general, under the proposed rule, the certification process is fairly streamlined: the application requirements are clearly articulated and closely track the language of the statute; after filing, the Commission will require the applicant file notice with “the utility within whose assigned service territory the applicant proposes to operate;” the Public Staff shall (and the utility or intervenors may) file its recommendation regarding the completeness of the application within 20 days after the notice is served; if no objections to the application are filed within 30 days, the Commission will make its decision on the application without a hearing; if there are objections, the Commission will schedule a hearing. All lessors must file a certificate of continued compliance with the law on or before October 1 of each year.

If a person solicits business or leases solar facilities without a certificate, the Commission can permanently enjoin that person from conducting business and impose a civil penalty of ten thousand dollars ($10,000) per occurrence.

Any persons wishing to intervene and comment on the proposed rule, or propose an alternative rule, must do so on or before November 8. Reply Comments are due by November 22.