AN ACT TO AMEND TITLE 26 OF THE DELAWARE CODE RELATING TO LARGE ENERGY USE FACILITIES.

The threshold for 'large energy use facility' was lowered from 75 MW to 50 MW at an 85% load factor. The third prong (30 MW plus NAICS code 518210 for data center services) was removed entirely, and the petroleum/refinery exemption was also removed. New definitions for 'load ramp period' and 'contract capacity' were added.

Section 203G now requires ESAs to include 12 minimum provisions: 10-year minimum contract term (15 years total including load ramp), 90% demand floor for distribution and supply charges, 5-year maximum load ramp period, 5-year advance termination notice, exit fees for unrecovered costs, curtailment readiness measures, enforceable interruptibility obligations, bonding or letters of credit backed by investment-grade entities, and local labor/prevalent wage considerations.

A detailed load shed protocol was added requiring utilities to curtail large energy use facilities before other loads during emergencies, with a hierarchy: pre-emergency curtailment under PJM Connect and Manage framework first, then non-critical large energy use facilities, then critical large energy use facilities. Facilities that build new in-state generation meeting specific criteria (not previously in PJM Base Residual Auction, matching load characteristics, consistent with state emissions and RPS targets) are exempt from curtailment requirements.

A new Incremental Cost Test (ICT) mechanism was added requiring an independent consultant retained by the Commission to measure revenues from a large energy use facility against incremental costs on a 3-year cycle. If revenues are lower than incremental costs, the utility must develop a proposal to bring additional revenues, potentially including a class-specific Consumer Protection and Infrastructure Fee. Surplus funds after cost recovery must be applied as direct bill credits to residential and small commercial customers.

The Commission's approval factors for ESAs were expanded to 9 items, adding consideration of Community Benefits Agreements, developer viability and experience, impact on the local area, and whether the project triggers supplemental transmission projects. Application requirements now include 8 specific items including studies of impact on electricity costs and grid reliability in Delaware.

A new annual reporting requirement was added: utilities must provide the Commission with detailed project-specific information for each anticipated large energy use facility, and the Commission must submit a report to the Governor and General Assembly by December 31 of each year listing ESA applications received and their disposition.

Large energy use facilities must contribute to the Low-Income Charge at $0.000190 per kWh and to the Green Energy Fund at $0.000712 per kWh. They are classified as 'end-use customers' for renewable portfolio standard purposes (losing any exemption) and must bear a proportional allocation of fuel cell provider charges.

The Commission must act on ESA applications within 90 days (extendable by 90 days for good cause). Utilities must establish the new rate class within 180 days of finalization of Commission regulations. The load shed protocol applies only to loads interconnected after December 31, 2026. The Act takes effect upon enactment.

A grandfathering provision was added: facilities already in operation as of the effective date are not considered large energy use facilities, but any expansion that increases usage above the thresholds triggers the ESA approval requirement. ESAs also cannot be transferred to another entity without written Commission approval.

The bill changed from a single-sponsor Senate amendment (Sen. Hansen) to a multi-chamber bill sponsored by Rep. Burns, Rep. Heffernan, Rep. Minor-Brown, and Sen. Hansen with additional co-sponsors from both chambers, indicating broader legislative support for the final version.