P.R. Laws tit. 12, § 8133
(a) Pursuant to § 8131(c) of this title, each retail electricity supplier shall file an annual compliance report to the Commission in order to evidence compliance with the renewable portfolio standard applicable to each calendar year. After evaluating such annual compliance report, the Commission shall issue a resolution determining compliance or noncompliance with the renewable portfolio standard applicable to the calendar year under review.
(b) If the Commission determines that the retail electricity supplier has complied with the renewable portfolio standard applicable to the calendar year under review, the Commission shall issue a resolution to such effect within thirty (30) days counted as of the date of receipt of the annual compliance report and, if applicable, the Commission shall require the retail electricity supplier to transfer to the Commission the number of RECs as necessary to comply with the renewable portfolio standard applicable, and the Commission shall retire and cancel each transferred REC. Likewise, the Commission shall determine if the retail electricity supplier is authorized to temporarily retain RECs to evidence compliance with the renewable portfolio standard applicable to subsequent calendar years. Furthermore, the Commission shall determine the number of RECs and/or the amount of megawatt-hour (MWh) that the retail electricity supplier is authorized to retain temporarily to evidence compliance with the renewable portfolio standard applicable to subsequent calendar years.
(c) If the Commission believes that the retail electricity supplier has failed to comply with the applicable renewable portfolio standard, the Commission shall issue an initial noncompliance notice stating the nature of the noncompliance and grant a thirty (30)-day term counted as of the notice for the retail electricity supplier to respond to such notice.
(d) Initial non-compliance notice response.— The retail electricity supplier shall file its response to the initial noncompliance notice within a thirty (30) -day term counted as of notice. The concerning retail electricity supplier may justify its noncompliance by showing in detail that he/she acted reasonably and in good faith to comply with the renewable portfolio standard. To establish the reasonableness and good faith of the supplier’s noncompliance defense, the retail electricity supplier must prove to the satisfaction of the Commission that its noncompliance was due to one or more of the following reasons:
(1) A force majeure or unavoidable accident as defined in this chapter;
(2) any unforeseen substantial loss of the renewable resource;
(3) work-related riots and strikes;
(4) breach of contractual clauses of a renewable energy purchase agreement by a contracting party thereto (other than the retail electricity supplier);
(5) insufficiency of sustainable renewable energy or alternative renewable energy producers;
(6) the excessive cost of acquisition of the electric power generated by a renewable energy producer, and
(7) any other justification accepted by the Commission through regulation to such effect that is consistent with the public policy set forth hereunder.
(e) Should the Commission issue an initial noncompliance notice, it shall determine whether the response to the initial noncompliance notice satisfies the criteria established in subsection (d) of this section, and shall issue a final determination and resolution in writing with findings of fact and conclusions of law, which shall be notified to the concerning retail electricity provider.
(1) Should the Commission determine that the retail electricity supplier proved compliance with the renewable portfolio standard, the procedure established in subsection (b) of this section shall be followed.
(2) Pursuant to the provisions of subsection (d) of this section, should the Commission determine that the retail electricity supplier provided a justification for its noncompliance with the renewable portfolio standard, it shall issue a final resolution which shall include, among other information deemed pertinent by the Commission:
(A) A statement that the retail electricity supplier has shown to the satisfaction of the Commission that it acted reasonably and in good-faith to achieve compliance with the renewable portfolio standard for the calendar year under review, and that the response to the initial noncompliance notice satisfies the criteria established in subsection (d) of this section;
(B) a reasonable corrective action plan to comply with the renewable portfolio standard applicable to the subsequent calendar years, and
(C) a moratorium on any fine imposed to the supplier.
(3) Should the Commission determine that the retail electricity supplier failed to provide adequate justification for its noncompliance, the final resolution of the Commission shall include, in addition to any other information deemed pertinent by the Commission:
(A) A statement that the retail electricity supplier has failed to show to the satisfaction of the Commission that it has acted reasonably and in good-faith to achieve compliance with the renewable portfolio standard for the calendar year under review, and that the response to the initial noncompliance notice fails to satisfy the criteria under subsection (d) of this section.
(B) It shall provide a reasonable corrective action plan to comply with the renewable portfolio standard applicable to subsequent calendar years.
(C) Provide for the imposition of fines to the retail electricity supplier.
When the Commission determines that a retail electricity supplier has failed to comply with the renewable portfolio standard, the Commission shall render a report to the Governor and the Legislature, together with a copy of the administrative record of the concerning retail electricity supplier, not later than thirty (30) days after the final resolution has been issued, without perjury of any subsequent lawful proceeding.
(f) Fine to be imposed.— After the corresponding administrative procedures, if the Commission should determine that a retail electricity supplier has failed to comply with the renewable portfolio standard applicable to the calendar year under review, the Commission shall issue a resolution specifying the amount of megawatt-hours (MWh) for which the retail electricity supplier has failed to comply with the renewable portfolio standard applicable, an administrative fine, and order for the supplier to pay the administrative fine imposed within a term not greater than thirty (30) days.
(g) No fine or penalty imposed by the Commission shall have a lesser economic value than the potential cost for the retail electricity supplier to comply with the renewable portfolio standard through the purchase of RECs, multiplied by a factor of two (2). The retail electricity supplier shall pay off the fine imposed by the Commission under this section within a period not greater than thirty (30) days after notice to such effect. Any arrear in the payment of the fine imposed shall be subject to interest and penalties as determined by the Commission through regulation. The payment of the administrative fine shall be made as specified by the Commission in the notice of the fine.
History —July 19, 2010, No. 82, § 2.12.