Sub. S. B. No. 181 As Reported by the Senate Environment and Natural Resources Committee

As Reported by the Senate Environment and Natural Resources Committee

128th General Assembly

Regular Session

2009-2010

Sub. S. B. No. 181

Senator Stewart

Cosponsors: Senators Goodman, Schaffer, Seitz, Niehaus

A BILL

To amend sections 1541.083 and 4928.01 and to enact

section 1513.372 of the Revised Code to provide

immunity from liability for eligible landowners

who provide access to abandoned mine land for

purposes of reclamation or acid mine drainage

abatement and to provide immunity from liability

for nonprofit organizations that provide funding

or service for such reclamation or acid mine

drainage abatement; to designate that methane gas

emitted from an abandoned coal mine constitutes a

renewable energy resource rather than an advanced

energy resource for purposes of the law governing

the promotion of renewable energy usage,

electricity supplied from renewable energy

sources, and renewable energy credits; and to

authorize the Chief of the Division of Mineral

Resources Management in the Department of Natural

Resources to make leases to remove coal by

underground mining methods at Burr Oak State Park

pursuant to lease agreements and real estate

transactions that have been entered into not later

than January 1, 2011.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 1541.083 and 4928.01 be amended and	23
section 1513.372 of the Revised Code be enacted to read as	24
follows:	25

Sec. 1513.372. (A) As used in this section:

(1) "Abandoned mine land" means land or water resources that	27
were previously degraded by adverse effects of coal mining	28
practices to which one of the following applies:	29

(a) The coal mining practices occurred prior to August 3,	30
1977, and there is no continuing reclamation responsibility under	31
state or federal law.	32

(b) The coal mining practices occurred prior to April 10,	33
1972.	34

(c) The coal mining practices were conducted pursuant to a	35
license that was issued prior to April 10, 1972.	36

(2) "Eligible landowner" means a landowner who provides	37
access without charge to abandoned mine land that is located on	38
the landowner's property for the purpose of allowing the	39
implementation of a reclamation project on the abandoned mine	40
land. "Eligible landowner" does not include a person that is	41
responsible under state or federal law to reclaim the land or	42
address water pollution existing or emanating from abandoned mine	43
land.	44

(3) "Landowner" means a person who holds a fee interest in	45
real property.	46

(4) "Nonprofit organization" means a corporation,	47
association, group, institution, society, or other organization	48
that is exempt from federal income taxation under section	49
501(c)(3) of the "Internal Revenue Code of 1986," 100 Stat. 2085,	50
26 U.S.C. 501(c)(3), as amended, that provides funding or service	51
for a reclamation project.	52

(5) "Reclamation project" means reclamation or an acid mine	53
drainage abatement project that is conducted in compliance with	54
this chapter and rules adopted under it on abandoned mine land	55
that is located on property owned by an eligible landowner.	56

(6) "Reclamation project sponsor" means a person that	57
provides funding or equipment, materials, or services at no cost	58
or at cost for a reclamation project. "Reclamation project	59
sponsor" does not include a person that is responsible under state	60
or federal law to reclaim the land or address water pollution	61
existing or emanating from abandoned mine land.	62

(7) "Reclamation project work area" means the portion of a	63
parcel of real property on which a reclamation project is	64
conducted and the roads providing ingress to and egress from the	65
reclamation project.	66

(B) Except as provided in divisions (C) and (D) of this	67
section, an eligible landowner or nonprofit organization is immune	68
from liability as follows:	69

(1) For any injury to or damage suffered by a person working	70
under the direct supervision of the reclamation project sponsor	71
while the person is within the reclamation project work area;	72

(2) For any injury to or damage suffered by a third party	73
that arises out of or occurs as a result of an act or omission of	74
the reclamation project sponsor during the implementation of the	75
reclamation project;	76

(3) For any injury to or damage suffered by a third party	77
that arises out of or occurs as a result of the reclamation	78
project;	79

(4) For any pollution resulting from a reclamation project;

(5) For the operation, maintenance, or repair of an acid mine	81
drainage abatement facility constructed or installed during a	82
reclamation project unless the eligible landowner negligently	83
damages or destroys the acid mine drainage abatement facility or	84
denies access to the reclamation project sponsor who is	85
responsible for the operation, maintenance, or repair of the acid	86
mine drainage abatement facility.	87

(C) The eligible landowner shall notify a project sponsor of	88
a known, latent, dangerous condition located at a reclamation	89
project work area that is not the subject of the reclamation	90
project. The immunity established in division (B) of this section	91
does not apply to any injury, damage, or pollution resulting from	92
the eligible landowner's failure to notify the project sponsor of	93
such a known, latent, dangerous condition.	94

(D) The immunity established in division (B) of this section	95
does not apply with regard to either of the following:	96

(1) An injury to a person within the reclamation project work	97
area that results from an eligible landowner's or nonprofit	98
organization's acts or omissions that are reckless or constitute	99
gross negligence or willful or wanton misconduct;	100

(2) An eligible landowner or nonprofit organization who	101
engages in any unlawful activities with respect to a reclamation	102
project.	103

(E) The chief of the division of mineral resources management	104
shall adopt rules in accordance with Chapter 119. of the Revised	105
Code that are necessary to implement this section.	106

(F) Nothing in this section eliminates the responsibilities	107
of a reclamation project sponsor established in sections 1513.27,	108
1513.28, and 1513.37 of the Revised Code pertaining to water	109
quality protection.	110

Sec. 1541.083. The chief of the division of parks and	111
recreation, with the approval of the director of natural	112
resources, the attorney general, and the governor, may make leases	113
to parties making application therefor granting permission to take	114
and remove halite from beneath the surface of Headlands state park	115
in Lake county, and coal by underground mining methods from	116
beneath the surface of Jefferson state park in Jefferson county	117
and from beneath the surface of Burr Oak state park in Athens and	118
Morgan counties pursuant to lease agreements and real estate	119
transactions that have been entered into not later than January 1,	120
2011, if hethe chief finds that such taking and removal will in	121
no way affect the surface of the land or the use thereof as a	122
public park. As the chief deems in the best interest of the state,	123
such leases may be made either upon a royalty or rental basis, and	124
may be either for a term of years or until the economic extraction	125
of the mineral covered thereby has been completed. Upon request	126
from the lessee of any such lease, the chief may consent to its	127
cancellation, but any equipment or improvement thereon owned by	128
the lessee may be held as security by the chief for payment of all	129
rentals, royalties, and damages due the state at the time of	130
cancellation.	131

Sec. 4928.01. (A) As used in this chapter:

132

(1) "Ancillary service" means any function necessary to the	133
provision of electric transmission or distribution service to a	134
retail customer and includes, but is not limited to, scheduling,	135
system control, and dispatch services; reactive supply from	136
generation resources and voltage control service; reactive supply	137
from transmission resources service; regulation service; frequency	138
response service; energy imbalance service; operating	139
reserve-spinning reserve service; operating reserve-supplemental	140
reserve service; load following; back-up supply service;	141
real-power loss replacement service; dynamic scheduling; system	142
black start capability; and network stability service.	143

(2) "Billing and collection agent" means a fully independent	144
agent, not affiliated with or otherwise controlled by an electric	145
utility, electric services company, electric cooperative, or	146
governmental aggregator subject to certification under section	147
4928.08 of the Revised Code, to the extent that the agent is under	148
contract with such utility, company, cooperative, or aggregator	149
solely to provide billing and collection for retail electric	150
service on behalf of the utility company, cooperative, or	151
aggregator.	152

(3) "Certified territory" means the certified territory	153
established for an electric supplier under sections 4933.81 to	154
4933.90 of the Revised Code.	155

(4) "Competitive retail electric service" means a component	156
of retail electric service that is competitive as provided under	157
division (B) of this section.	158

(5) "Electric cooperative" means a not-for-profit electric	159
light company that both is or has been financed in whole or in	160
part under the "Rural Electrification Act of 1936," 49 Stat. 1363,	161
7 U.S.C. 901, and owns or operates facilities in this state to	162
generate, transmit, or distribute electricity, or a not-for-profit	163
successor of such company.	164

(6) "Electric distribution utility" means an electric utility	165
that supplies at least retail electric distribution service.	166

(7) "Electric light company" has the same meaning as in	167
section 4905.03 of the Revised Code and includes an electric	168
services company, but excludes any self-generator to the extent	169
that it consumes electricity it so produces, sells that	170
electricity for resale, or obtains electricity from a generating	171
facility it hosts on its premises.	172

(8) "Electric load center" has the same meaning as in section	173
4933.81 of the Revised Code.	174

(9) "Electric services company" means an electric light	175
company that is engaged on a for-profit or not-for-profit basis in	176
the business of supplying or arranging for the supply of only a	177
competitive retail electric service in this state. "Electric	178
services company" includes a power marketer, power broker,	179
aggregator, or independent power producer but excludes an electric	180
cooperative, municipal electric utility, governmental aggregator,	181
or billing and collection agent.	182

(10) "Electric supplier" has the same meaning as in section	183
4933.81 of the Revised Code.	184

(11) "Electric utility" means an electric light company that	185
has a certified territory and is engaged on a for-profit basis	186
either in the business of supplying a noncompetitive retail	187
electric service in this state or in the businesses of supplying	188
both a noncompetitive and a competitive retail electric service in	189
this state. "Electric utility" excludes a municipal electric	190
utility or a billing and collection agent.	191

(12) "Firm electric service" means electric service other	192
than nonfirm electric service.	193

(13) "Governmental aggregator" means a legislative authority	194
of a municipal corporation, a board of township trustees, or a	195
board of county commissioners acting as an aggregator for the	196
provision of a competitive retail electric service under authority	197
conferred under section 4928.20 of the Revised Code.	198

(14) A person acts "knowingly," regardless of the person's	199
purpose, when the person is aware that the person's conduct will	200
probably cause a certain result or will probably be of a certain	201
nature. A person has knowledge of circumstances when the person is	202
aware that such circumstances probably exist.	203

(15) "Level of funding for low-income customer energy	204
efficiency programs provided through electric utility rates" means	205
the level of funds specifically included in an electric utility's	206
rates on October 5, 1999, pursuant to an order of the public	207
utilities commission issued under Chapter 4905. or 4909. of the	208
Revised Code and in effect on October 4, 1999, for the purpose of	209
improving the energy efficiency of housing for the utility's	210
low-income customers. The term excludes the level of any such	211
funds committed to a specific nonprofit organization or	212
organizations pursuant to a stipulation or contract.	213

(16) "Low-income customer assistance programs" means the	214
percentage of income payment plan program, the home energy	215
assistance program, the home weatherization assistance program,	216
and the targeted energy efficiency and weatherization program.	217

(17) "Market development period" for an electric utility	218
means the period of time beginning on the starting date of	219
competitive retail electric service and ending on the applicable	220
date for that utility as specified in section 4928.40 of the	221
Revised Code, irrespective of whether the utility applies to	222
receive transition revenues under this chapter.	223

(18) "Market power" means the ability to impose on customers	224
a sustained price for a product or service above the price that	225
would prevail in a competitive market.	226

(19) "Mercantile customer" means a commercial or industrial	227
customer if the electricity consumed is for nonresidential use and	228
the customer consumes more than seven hundred thousand kilowatt	229
hours per year or is part of a national account involving multiple	230
facilities in one or more states.	231

(20) "Municipal electric utility" means a municipal	232
corporation that owns or operates facilities to generate,	233
transmit, or distribute electricity.	234

(21) "Noncompetitive retail electric service" means a	235
component of retail electric service that is noncompetitive as	236
provided under division (B) of this section.	237

(22) "Nonfirm electric service" means electric service	238
provided pursuant to a schedule filed under section 4905.30 of the	239
Revised Code or pursuant to an arrangement under section 4905.31	240
of the Revised Code, which schedule or arrangement includes	241
conditions that may require the customer to curtail or interrupt	242
electric usage during nonemergency circumstances upon notification	243
by an electric utility.	244

(23) "Percentage of income payment plan arrears" means funds	245
eligible for collection through the percentage of income payment	246
plan rider, but uncollected as of July 1, 2000.	247

(24) "Person" has the same meaning as in section 1.59 of the	248
Revised Code.	249

(25) "Advanced energy project" means any technologies,	250
products, activities, or management practices or strategies that	251
facilitate the generation or use of electricity or energy and that	252
reduce or support the reduction of energy consumption or support	253
the production of clean, renewable energy for industrial,	254
distribution, commercial, institutional, governmental, research,	255
not-for-profit, or residential energy users, including, but not	256
limited to, advanced energy resources and renewable energy	257
resources. "Advanced energy project" also includes any project	258
described in division (A), (B), or (C) of section 4928.621 of the	259
Revised Code.	260

(26) "Regulatory assets" means the unamortized net regulatory	261
assets that are capitalized or deferred on the regulatory books of	262
the electric utility, pursuant to an order or practice of the	263
public utilities commission or pursuant to generally accepted	264
accounting principles as a result of a prior commission	265
rate-making decision, and that would otherwise have been charged	266
to expense as incurred or would not have been capitalized or	267
otherwise deferred for future regulatory consideration absent	268
commission action. "Regulatory assets" includes, but is not	269
limited to, all deferred demand-side management costs; all	270
deferred percentage of income payment plan arrears;	271
post-in-service capitalized charges and assets recognized in	272
connection with statement of financial accounting standards no.	273
109 (receivables from customers for income taxes); future nuclear	274
decommissioning costs and fuel disposal costs as those costs have	275
been determined by the commission in the electric utility's most	276
recent rate or accounting application proceeding addressing such	277
costs; the undepreciated costs of safety and radiation control	278
equipment on nuclear generating plants owned or leased by an	279
electric utility; and fuel costs currently deferred pursuant to	280
the terms of one or more settlement agreements approved by the	281
commission.	282

(27) "Retail electric service" means any service involved in	283
supplying or arranging for the supply of electricity to ultimate	284
consumers in this state, from the point of generation to the point	285
of consumption. For the purposes of this chapter, retail electric	286
service includes one or more of the following "service	287
components": generation service, aggregation service, power	288
marketing service, power brokerage service, transmission service,	289
distribution service, ancillary service, metering service, and	290
billing and collection service.	291

(28) "Starting date of competitive retail electric service"	292
means January 1, 2001.	293

(29) "Customer-generator" means a user of a net metering	294
system.	295

(30) "Net metering" means measuring the difference in an	296
applicable billing period between the electricity supplied by an	297
electric service provider and the electricity generated by a	298
customer-generator that is fed back to the electric service	299
provider.	300

(31) "Net metering system" means a facility for the	301
production of electrical energy that does all of the following:	302

(a) Uses as its fuel either solar, wind, biomass, landfill	303
gas, or hydropower, or uses a microturbine or a fuel cell;	304

(b) Is located on a customer-generator's premises;

305

(c) Operates in parallel with the electric utility's	306
transmission and distribution facilities;	307

(d) Is intended primarily to offset part or all of the	308
customer-generator's requirements for electricity.	309

(32) "Self-generator" means an entity in this state that owns	310
or hosts on its premises an electric generation facility that	311
produces electricity primarily for the owner's consumption and	312
that may provide any such excess electricity to another entity,	313
whether the facility is installed or operated by the owner or by	314
an agent under a contract.	315

(33) "Rate plan" means the standard service offer in effect	316
on the effective date of the amendment of this section by S.B. 221	317
of the 127th general assembly, July 31, 2008.	318

(34) "Advanced energy resource" means any of the following:

319

(a) Any method or any modification or replacement of any	320
property, process, device, structure, or equipment that increases	321
the generation output of an electric generating facility to the	322
extent such efficiency is achieved without additional carbon	323
dioxide emissions by that facility;	324

(b) Any distributed generation system consisting of customer	325
cogeneration of electricity and thermal output simultaneously,	326
primarily to meet the energy needs of the customer's facilities;	327

(c) Clean coal technology that includes a carbon-based	328
product that is chemically altered before combustion to	329
demonstrate a reduction, as expressed as ash, in emissions of	330
nitrous oxide, mercury, arsenic, chlorine, sulfur dioxide, or	331
sulfur trioxide in accordance with the American society of testing	332
and materials standard D1757A or a reduction of metal oxide	333
emissions in accordance with standard D5142 of that society, or	334
clean coal technology that includes the design capability to	335
control or prevent the emission of carbon dioxide, which design	336
capability the commission shall adopt by rule and shall be based	337
on economically feasible best available technology or, in the	338
absence of a determined best available technology, shall be of the	339
highest level of economically feasible design capability for which	340
there exists generally accepted scientific opinion;	341

(d) Advanced nuclear energy technology consisting of	342
generation III technology as defined by the nuclear regulatory	343
commission; other, later technology; or significant improvements	344
to existing facilities;	345

(e) Any fuel cell used in the generation of electricity,	346
including, but not limited to, a proton exchange membrane fuel	347
cell, phosphoric acid fuel cell, molten carbonate fuel cell, or	348
solid oxide fuel cell;	349

(f) Advanced solid waste or construction and demolition	350
debris conversion technology, including, but not limited to,	351
advanced stoker technology, and advanced fluidized bed	352
gasification technology, that results in measurable greenhouse gas	353
emissions reductions as calculated pursuant to the United States	354
environmental protection agency's waste reduction model (WARM).	355

(g) Demand-side management and any energy efficiency	356
improvement;	357

~~(h) Methane gas emitted from an operating or abandoned coal~~	358
~~mine~~.	359

(35) "Renewable energy resource" means solar photovoltaic or	360
solar thermal energy, wind energy, power produced by a	361
hydroelectric facility, geothermal energy, fuel derived from solid	362
wastes, as defined in section 3734.01 of the Revised Code, through	363
fractionation, biological decomposition, or other process that	364
does not principally involve combustion, biomass energy,	365
biologically derived methane gas, or energy derived from	366
nontreated by-products of the pulping process or wood	367
manufacturing process, including bark, wood chips, sawdust, and	368
lignin in spent pulping liquors. "Renewable energy resource"	369
includes, but is not limited to, any fuel cell used in the	370
generation of electricity, including, but not limited to, a proton	371
exchange membrane fuel cell, phosphoric acid fuel cell, molten	372
carbonate fuel cell, or solid oxide fuel cell; wind turbine	373
located in the state's territorial waters of Lake Erie; methane	374
gas emitted from an abandoned coal mine; storage facility that	375
will promote the better utilization of a renewable energy resource	376
that primarily generates off peak; or distributed generation	377
system used by a customer to generate electricity from any such	378
energy. As used in division (A)(35) of this section,	379
"hydroelectric facility" means a hydroelectric generating facility	380
that is located at a dam on a river, or on any water discharged to	381
a river, that is within or bordering this state or within or	382
bordering an adjoining state and meets all of the following	383
standards:	384

(a) The facility provides for river flows that are not	385
detrimental for fish, wildlife, and water quality, including	386
seasonal flow fluctuations as defined by the applicable licensing	387
agency for the facility.	388

(b) The facility demonstrates that it complies with the water	389
quality standards of this state, which compliance may consist of	390
certification under Section 401 of the "Clean Water Act of 1977,"	391
91 Stat. 1598, 1599, 33 U.S.C. 1341, and demonstrates that it has	392
not contributed to a finding by this state that the river has	393
impaired water quality under Section 303(d) of the "Clean Water	394
Act of 1977," 114 Stat. 870, 33 U.S.C. 1313.	395

(c) The facility complies with mandatory prescriptions	396
regarding fish passage as required by the federal energy	397
regulatory commission license issued for the project, regarding	398
fish protection for riverine, anadromous, and catadromus fish.	399

(d) The facility complies with the recommendations of the	400
Ohio environmental protection agency and with the terms of its	401
federal energy regulatory commission license regarding watershed	402
protection, mitigation, or enhancement, to the extent of each	403
agency's respective jurisdiction over the facility.	404

(e) The facility complies with provisions of the "Endangered	405
Species Act of 1973," 87 Stat. 884, 16 U.S.C. 1531 to 1544, as	406
amended.	407

(f) The facility does not harm cultural resources of the	408
area. This can be shown through compliance with the terms of its	409
federal energy regulatory commission license or, if the facility	410
is not regulated by that commission, through development of a plan	411
approved by the Ohio historic preservation office, to the extent	412
it has jurisdiction over the facility.	413

(g) The facility complies with the terms of its federal	414
energy regulatory commission license or exemption that are related	415
to recreational access, accommodation, and facilities or, if the	416
facility is not regulated by that commission, the facility	417
complies with similar requirements as are recommended by resource	418
agencies, to the extent they have jurisdiction over the facility;	419
and the facility provides access to water to the public without	420
fee or charge.	421

(h) The facility is not recommended for removal by any	422
federal agency or agency of any state, to the extent the	423
particular agency has jurisdiction over the facility.	424

(B) For the purposes of this chapter, a retail electric	425
service component shall be deemed a competitive retail electric	426
service if the service component is competitive pursuant to a	427
declaration by a provision of the Revised Code or pursuant to an	428
order of the public utilities commission authorized under division	429
(A) of section 4928.04 of the Revised Code. Otherwise, the service	430
component shall be deemed a noncompetitive retail electric	431
service.	432

Section 2. That existing sections 1541.083 and 4928.01 of the	433
Revised Code are hereby repealed.	434