(a) This subchapter does not apply to a major utility facility:
(1) For which, before July 24, 1973, an application for the approval of the major utility facility was made to any federal, state, regional, or local governmental agency that possesses the jurisdiction to consider the matters prescribed for finding and determination in § 23-18-519(a) and (b);
(2) For which, before July 24, 1973, the Arkansas Public Service Commission issued a certificate of convenience and necessity or otherwise approved the construction of the major utility facility;
(3) Over which an agency of the federal government has exclusive jurisdiction;
(4) A majority of which is owned by one (1) or more exempt wholesale generators as defined in § 23-1-101(5); or
(5) That is a major utility facility for generating electric energy, if the majority of the major utility facility is owned by any person, including without limitation a public utility that will not recover the cost of the major utility facility in rates subject to regulation by the commission.
(b) (1) (A) A person intending to construct a major utility facility excluded or exempted from this subchapter may elect to waive the exclusion or exemption by delivering notice of the waiver to the commission.
(B) The filing of an application by a public utility under § 23-18-511 is not a notice of waiver or an election to waive an exclusion or exemption.
(C) The responsibility for determining whether a proposed major utility facility is exempt from the requirements of this subchapter is within the primary and exclusive jurisdiction of the commission.
(2) Upon the commission's receipt of the notice of an election to waive the exclusion or exemption, this subchapter shall thereafter apply to each major utility facility identified in the notice.
(c) A public utility owning a minority interest in an exempt major utility facility shall not be entitled to recover its costs of ownership or operation in rates subject to the jurisdiction of the commission without first obtaining the right to own and operate a portion of the major utility facility under a certificate of public convenience and necessity under §§ 23-3-201 -- 23-3-206.