As Reported by the Senate Energy and Public Utilities Committee

129th General Assembly Regular Session 2011-2012

Sub. S. B. No. 289

Senators Coley, Schiavoni 

Cosponsors: Senators Jones, Balderson, Cafaro, Gentile, Bacon, Brown, Manning, Seitz, Turner, Eklund, Lehner, Oelslager, Sawyer 

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A BILL

To amend sections 3706.25 and 4928.01 of the Revised

1

Code to include cogeneration technology using

2

waste or byproduct gas from an air contaminant

3

source as a renewable energy resource.

4

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

Section 1. That sections 3706.25 and 4928.01 of the Revised	5
Code be amended to read as follows:	6

Sec. 3706.25. As used in sections 3706.25 to 3706.30 of the	7
Revised Code:	8

(A) "Advanced energy project" means any technologies,	9
products, activities, or management practices or strategies that	10
facilitate the generation or use of electricity or energy and that	11
reduce or support the reduction of energy consumption or support	12
the production of clean, renewable energy for industrial,	13
distribution, commercial, institutional, governmental, research,	14
not-for-profit, or residential energy users including, but not	15
limited to, advanced energy resources and renewable energy	16
resources. "Advanced energy project" includes any project	17
described in division (A), (B), or (C) of section 4928.621 of the	18
Revised Code.	19

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

20

(1) Any method or any modification or replacement of any	21
property, process, device, structure, or equipment that increases	22
the generation output of an electric generating facility to the	23
extent such efficiency is achieved without additional carbon	24
dioxide emissions by that facility;	25

(2) Any distributed generation system consisting of customer	26
cogeneration of electricity and thermal output simultaneously	27
technology, primarily to meet the energy needs of the customer's	28
facilities;	29

(3) Advanced nuclear energy technology consisting of	30
generation III technology as defined by the nuclear regulatory	31
commission; other, later technology; or significant improvements	32
to existing facilities;	33

(4) Any fuel cell used in the generation of electricity,	34
including, but not limited to, a proton exchange membrane fuel	35
cell, phosphoric acid fuel cell, molten carbonate fuel cell, or	36
solid oxide fuel cell;	37

(5) Advanced solid waste or construction and demolition	38
debris conversion technology, including, but not limited to,	39
advanced stoker technology, and advanced fluidized bed	40
gasification technology, that results in measurable greenhouse gas	41
emissions reductions as calculated pursuant to the United States	42
environmental protection agency's waste reduction model (WARM).	43

(C) "Air contaminant source" has the same meaning as in	44
section 3704.01 of the Revised Code.	45

(D) "Cogeneration technology" means technology that produces	46
electricity and useful thermal output simultaneously.	47

(E) "Renewable energy resource" means solar photovoltaic or	48
solar thermal energy, wind energy, power produced by a	49
hydroelectric facility, geothermal energy, fuel derived from solid	50
wastes, as defined in section 3734.01 of the Revised Code, through	51
fractionation, biological decomposition, or other process that	52
does not principally involve combustion, biomass energy, energy	53
produced by cogeneration technology that is placed into service on	54
or before December 31, 2015, and for which more than ninety per	55
cent of the total annual energy input is from combustion of a	56
waste or byproduct gas from an air contaminant source in this	57
state, which source has been in operation since on or before	58
January 1, 1985, provided that the cogeneration technology is a	59
part of a facility located in a county having a population of more	60
than three hundred sixty-five thousand but less than three hundred	61
seventy thousand according to the most recent federal decennial	62
census, biologically derived methane gas, or energy derived from	63
nontreated by-products of the pulping process or wood	64
manufacturing process, including bark, wood chips, sawdust, and	65
lignin in spent pulping liquors. "Renewable energy resource"	66
includes, but is not limited to, any fuel cell used in the	67
generation of electricity, including, but not limited to, a proton	68
exchange membrane fuel cell, phosphoric acid fuel cell, molten	69
carbonate fuel cell, or solid oxide fuel cell; wind turbine	70
located in the state's territorial waters of Lake Erie; methane	71
gas emitted from an abandoned coal mine; storage facility that	72
will promote the better utilization of a renewable energy resource	73
that primarily generates off peak; or distributed generation	74
system used by a customer to generate electricity from any such	75
energy. As used in this division, "hydroelectric facility" means a	76
hydroelectric generating facility that is located at a dam on a	77
river, or on any water discharged to a river, that is within or	78
bordering this state or within or bordering an adjoining state and	79
meets all of the following standards:	80

(1) The facility provides for river flows that are not	81
detrimental for fish, wildlife, and water quality, including	82
seasonal flow fluctuations as defined by the applicable licensing	83
agency for the facility.	84

(2) The facility demonstrates that it complies with the water	85
quality standards of this state, which compliance may consist of	86
certification under Section 401 of the "Clean Water Act of 1977,"	87
91 Stat. 1598, 1599, 33 U.S.C. 1341, and demonstrates that it has	88
not contributed to a finding by this state that the river has	89
impaired water quality under Section 303(d) of the "Clean Water	90
Act of 1977," 114 Stat. 870, 33 U.S.C. 1313.	91

(3) The facility complies with mandatory prescriptions	92
regarding fish passage as required by the federal energy	93
regulatory commission license issued for the project, regarding	94
fish protection for riverine, anadromous, and catadromus	95
catadromous fish.	96

(4) The facility complies with the recommendations of the	97
Ohio environmental protection agency and with the terms of its	98
federal energy regulatory commission license regarding watershed	99
protection, mitigation, or enhancement, to the extent of each	100
agency's respective jurisdiction over the facility.	101

(5) The facility complies with provisions of the "Endangered	102
Species Act of 1973," 87 Stat. 884, 16 U.S.C. 1531 to 1544, as	103
amended.	104

(6) The facility does not harm cultural resources of the	105
area. This can be shown through compliance with the terms of its	106
federal energy regulatory commission license or, if the facility	107
is not regulated by that commission, through development of a plan	108
approved by the Ohio historic preservation office, to the extent	109
it has jurisdiction over the facility.	110

(7) The facility complies with the terms of its federal	111
energy regulatory commission license or exemption that are related	112
to recreational access, accommodation, and facilities or, if the	113
facility is not regulated by that commission, the facility	114
complies with similar requirements as are recommended by resource	115
agencies, to the extent they have jurisdiction over the facility;	116
and the facility provides access to water to the public without	117
fee or charge.	118

(8) The facility is not recommended for removal by any	119
federal agency or agency of any state, to the extent the	120
particular agency has jurisdiction over the facility.	121

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

122

(1) "Ancillary service" means any function necessary to the	123
provision of electric transmission or distribution service to a	124
retail customer and includes, but is not limited to, scheduling,	125
system control, and dispatch services; reactive supply from	126
generation resources and voltage control service; reactive supply	127
from transmission resources service; regulation service; frequency	128
response service; energy imbalance service; operating	129
reserve-spinning reserve service; operating reserve-supplemental	130
reserve service; load following; back-up supply service;	131
real-power loss replacement service; dynamic scheduling; system	132
black start capability; and network stability service.	133

(2) "Billing and collection agent" means a fully independent	134
agent, not affiliated with or otherwise controlled by an electric	135
utility, electric services company, electric cooperative, or	136
governmental aggregator subject to certification under section	137
4928.08 of the Revised Code, to the extent that the agent is under	138
contract with such utility, company, cooperative, or aggregator	139
solely to provide billing and collection for retail electric	140
service on behalf of the utility company, cooperative, or	141
aggregator.	142

(3) "Certified territory" means the certified territory	143
established for an electric supplier under sections 4933.81 to	144
4933.90 of the Revised Code.	145

(4) "Competitive retail electric service" means a component	146
of retail electric service that is competitive as provided under	147
division (B) of this section.	148

(5) "Electric cooperative" means a not-for-profit electric	149
light company that both is or has been financed in whole or in	150
part under the "Rural Electrification Act of 1936," 49 Stat. 1363,	151
7 U.S.C. 901, and owns or operates facilities in this state to	152
generate, transmit, or distribute electricity, or a not-for-profit	153
successor of such company.	154

(6) "Electric distribution utility" means an electric utility	155
that supplies at least retail electric distribution service.	156

(7) "Electric light company" has the same meaning as in	157
section 4905.03 of the Revised Code and includes an electric	158
services company, but excludes any self-generator to the extent	159
that it consumes electricity it so produces, sells that	160
electricity for resale, or obtains electricity from a generating	161
facility it hosts on its premises.	162

(8) "Electric load center" has the same meaning as in section	163
4933.81 of the Revised Code.	164

(9) "Electric services company" means an electric light	165
company that is engaged on a for-profit or not-for-profit basis in	166
the business of supplying or arranging for the supply of only a	167
competitive retail electric service in this state. "Electric	168
services company" includes a power marketer, power broker,	169
aggregator, or independent power producer but excludes an electric	170
cooperative, municipal electric utility, governmental aggregator,	171
or billing and collection agent.	172

(10) "Electric supplier" has the same meaning as in section	173
4933.81 of the Revised Code.	174

(11) "Electric utility" means an electric light company that	175
has a certified territory and is engaged on a for-profit basis	176
either in the business of supplying a noncompetitive retail	177
electric service in this state or in the businesses of supplying	178
both a noncompetitive and a competitive retail electric service in	179
this state. "Electric utility" excludes a municipal electric	180
utility or a billing and collection agent.	181

(12) "Firm electric service" means electric service other	182
than nonfirm electric service.	183

(13) "Governmental aggregator" means a legislative authority	184
of a municipal corporation, a board of township trustees, or a	185
board of county commissioners acting as an aggregator for the	186
provision of a competitive retail electric service under authority	187
conferred under section 4928.20 of the Revised Code.	188

(14) A person acts "knowingly," regardless of the person's	189
purpose, when the person is aware that the person's conduct will	190
probably cause a certain result or will probably be of a certain	191
nature. A person has knowledge of circumstances when the person is	192
aware that such circumstances probably exist.	193

(15) "Level of funding for low-income customer energy	194
efficiency programs provided through electric utility rates" means	195
the level of funds specifically included in an electric utility's	196
rates on October 5, 1999, pursuant to an order of the public	197
utilities commission issued under Chapter 4905. or 4909. of the	198
Revised Code and in effect on October 4, 1999, for the purpose of	199
improving the energy efficiency of housing for the utility's	200
low-income customers. The term excludes the level of any such	201
funds committed to a specific nonprofit organization or	202
organizations pursuant to a stipulation or contract.	203

(16) "Low-income customer assistance programs" means the	204
percentage of income payment plan program, the home energy	205
assistance program, the home weatherization assistance program,	206
and the targeted energy efficiency and weatherization program.	207

(17) "Market development period" for an electric utility	208
means the period of time beginning on the starting date of	209
competitive retail electric service and ending on the applicable	210
date for that utility as specified in section 4928.40 of the	211
Revised Code, irrespective of whether the utility applies to	212
receive transition revenues under this chapter.	213

(18) "Market power" means the ability to impose on customers	214
a sustained price for a product or service above the price that	215
would prevail in a competitive market.	216

(19) "Mercantile customer" means a commercial or industrial	217
customer if the electricity consumed is for nonresidential use and	218
the customer consumes more than seven hundred thousand kilowatt	219
hours per year or is part of a national account involving multiple	220
facilities in one or more states.	221

(20) "Municipal electric utility" means a municipal	222
corporation that owns or operates facilities to generate,	223
transmit, or distribute electricity.	224

(21) "Noncompetitive retail electric service" means a	225
component of retail electric service that is noncompetitive as	226
provided under division (B) of this section.	227

(22) "Nonfirm electric service" means electric service	228
provided pursuant to a schedule filed under section 4905.30 of the	229
Revised Code or pursuant to an arrangement under section 4905.31	230
of the Revised Code, which schedule or arrangement includes	231
conditions that may require the customer to curtail or interrupt	232
electric usage during nonemergency circumstances upon notification	233
by an electric utility.	234

(23) "Percentage of income payment plan arrears" means funds	235
eligible for collection through the percentage of income payment	236
plan rider, but uncollected as of July 1, 2000.	237

(24) "Person" has the same meaning as in section 1.59 of the	238
Revised Code.	239

(25) "Advanced energy project" means any technologies,	240
products, activities, or management practices or strategies that	241
facilitate the generation or use of electricity or energy and that	242
reduce or support the reduction of energy consumption or support	243
the production of clean, renewable energy for industrial,	244
distribution, commercial, institutional, governmental, research,	245
not-for-profit, or residential energy users, including, but not	246
limited to, advanced energy resources and renewable energy	247
resources. "Advanced energy project" also includes any project	248
described in division (A), (B), or (C) of section 4928.621 of the	249
Revised Code.	250

(26) "Regulatory assets" means the unamortized net regulatory	251
assets that are capitalized or deferred on the regulatory books of	252
the electric utility, pursuant to an order or practice of the	253
public utilities commission or pursuant to generally accepted	254
accounting principles as a result of a prior commission	255
rate-making decision, and that would otherwise have been charged	256
to expense as incurred or would not have been capitalized or	257
otherwise deferred for future regulatory consideration absent	258
commission action. "Regulatory assets" includes, but is not	259
limited to, all deferred demand-side management costs; all	260
deferred percentage of income payment plan arrears;	261
post-in-service capitalized charges and assets recognized in	262
connection with statement of financial accounting standards no.	263
109 (receivables from customers for income taxes); future nuclear	264
decommissioning costs and fuel disposal costs as those costs have	265
been determined by the commission in the electric utility's most	266
recent rate or accounting application proceeding addressing such	267
costs; the undepreciated costs of safety and radiation control	268
equipment on nuclear generating plants owned or leased by an	269
electric utility; and fuel costs currently deferred pursuant to	270
the terms of one or more settlement agreements approved by the	271
commission.	272

(27) "Retail electric service" means any service involved in	273
supplying or arranging for the supply of electricity to ultimate	274
consumers in this state, from the point of generation to the point	275
of consumption. For the purposes of this chapter, retail electric	276
service includes one or more of the following "service	277
components": generation service, aggregation service, power	278
marketing service, power brokerage service, transmission service,	279
distribution service, ancillary service, metering service, and	280
billing and collection service.	281

(28) "Starting date of competitive retail electric service"	282
means January 1, 2001.	283

(29) "Customer-generator" means a user of a net metering	284
system.	285

(30) "Net metering" means measuring the difference in an	286
applicable billing period between the electricity supplied by an	287
electric service provider and the electricity generated by a	288
customer-generator that is fed back to the electric service	289
provider.	290

(31) "Net metering system" means a facility for the	291
production of electrical energy that does all of the following:	292

(a) Uses as its fuel either solar, wind, biomass, landfill	293
gas, or hydropower, or uses a microturbine or a fuel cell;	294

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

295

(c) Operates in parallel with the electric utility's	296
transmission and distribution facilities;	297

(d) Is intended primarily to offset part or all of the	298
customer-generator's requirements for electricity.	299

(32) "Self-generator" means an entity in this state that owns	300
or hosts on its premises an electric generation facility that	301
produces electricity primarily for the owner's consumption and	302
that may provide any such excess electricity to another entity,	303
whether the facility is installed or operated by the owner or by	304
an agent under a contract.	305

(33) "Rate plan" means the standard service offer in effect	306
on the effective date of the amendment of this section by S.B. 221	307
of the 127th general assembly, July 31, 2008.	308

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

309

(a) Any method or any modification or replacement of any	310
property, process, device, structure, or equipment that increases	311
the generation output of an electric generating facility to the	312
extent such efficiency is achieved without additional carbon	313
dioxide emissions by that facility;	314

(b) Any distributed generation system consisting of customer	315
cogeneration of electricity and thermal output simultaneously	316
technology;	317

(c) Clean coal technology that includes a carbon-based	318
product that is chemically altered before combustion to	319
demonstrate a reduction, as expressed as ash, in emissions of	320
nitrous oxide, mercury, arsenic, chlorine, sulfur dioxide, or	321
sulfur trioxide in accordance with the American society of testing	322
and materials standard D1757A or a reduction of metal oxide	323
emissions in accordance with standard D5142 of that society, or	324
clean coal technology that includes the design capability to	325
control or prevent the emission of carbon dioxide, which design	326
capability the commission shall adopt by rule and shall be based	327
on economically feasible best available technology or, in the	328
absence of a determined best available technology, shall be of the	329
highest level of economically feasible design capability for which	330
there exists generally accepted scientific opinion;	331

(d) Advanced nuclear energy technology consisting of	332
generation III technology as defined by the nuclear regulatory	333
commission; other, later technology; or significant improvements	334
to existing facilities;	335

(e) Any fuel cell used in the generation of electricity,	336
including, but not limited to, a proton exchange membrane fuel	337
cell, phosphoric acid fuel cell, molten carbonate fuel cell, or	338
solid oxide fuel cell;	339

(f) Advanced solid waste or construction and demolition	340
debris conversion technology, including, but not limited to,	341
advanced stoker technology, and advanced fluidized bed	342
gasification technology, that results in measurable greenhouse gas	343
emissions reductions as calculated pursuant to the United States	344
environmental protection agency's waste reduction model (WARM).	345

(g) Demand-side management and any energy efficiency	346
improvement.	347

(35) "Air contaminant source" has the same meaning as in	348
section 3704.01 of the Revised Code.	349

(36) "Cogeneration technology" means technology that produces	350
electricity and useful thermal output simultaneously.	351

(37) "Renewable energy resource" means solar photovoltaic or	352
solar thermal energy, wind energy, power produced by a	353
hydroelectric facility, geothermal energy, fuel derived from solid	354
wastes, as defined in section 3734.01 of the Revised Code, through	355
fractionation, biological decomposition, or other process that	356
does not principally involve combustion, biomass energy, energy	357
produced by cogeneration technology that is placed into service on	358
or before December 31, 2015, and for which more than ninety per	359
cent of the total annual energy input is from combustion of a	360
waste or byproduct gas from an air contaminant source in this	361
state, which source has been in operation since on or before	362
January 1, 1985, provided that the cogeneration technology is a	363
part of a facility located in a county having a population of more	364
than three hundred sixty-five thousand but less than three hundred	365
seventy thousand according to the most recent federal decennial	366
census, biologically derived methane gas, or energy derived from	367
nontreated by-products of the pulping process or wood	368
manufacturing process, including bark, wood chips, sawdust, and	369
lignin in spent pulping liquors. "Renewable energy resource"	370
includes, but is not limited to, any fuel cell used in the	371
generation of electricity, including, but not limited to, a proton	372
exchange membrane fuel cell, phosphoric acid fuel cell, molten	373
carbonate fuel cell, or solid oxide fuel cell; wind turbine	374
located in the state's territorial waters of Lake Erie; methane	375
gas emitted from an abandoned coal mine; storage facility that	376
will promote the better utilization of a renewable energy resource	377
that primarily generates off peak; or distributed generation	378
system used by a customer to generate electricity from any such	379
energy. As used in division (A)(35)(37) of this section,	380
"hydroelectric facility" means a hydroelectric generating facility	381
that is located at a dam on a river, or on any water discharged to	382
a river, that is within or bordering this state or within or	383
bordering an adjoining state and meets all of the following	384
standards:	385

(a) The facility provides for river flows that are not	386
detrimental for fish, wildlife, and water quality, including	387
seasonal flow fluctuations as defined by the applicable licensing	388
agency for the facility.	389

(b) The facility demonstrates that it complies with the water	390
quality standards of this state, which compliance may consist of	391
certification under Section 401 of the "Clean Water Act of 1977,"	392
91 Stat. 1598, 1599, 33 U.S.C. 1341, and demonstrates that it has	393
not contributed to a finding by this state that the river has	394
impaired water quality under Section 303(d) of the "Clean Water	395
Act of 1977," 114 Stat. 870, 33 U.S.C. 1313.	396

(c) The facility complies with mandatory prescriptions	397
regarding fish passage as required by the federal energy	398
regulatory commission license issued for the project, regarding	399
fish protection for riverine, anadromous, and catadromous fish.	400

(d) The facility complies with the recommendations of the	401
Ohio environmental protection agency and with the terms of its	402
federal energy regulatory commission license regarding watershed	403
protection, mitigation, or enhancement, to the extent of each	404
agency's respective jurisdiction over the facility.	405

(e) The facility complies with provisions of the "Endangered	406
Species Act of 1973," 87 Stat. 884, 16 U.S.C. 1531 to 1544, as	407
amended.	408

(f) The facility does not harm cultural resources of the	409
area. This can be shown through compliance with the terms of its	410
federal energy regulatory commission license or, if the facility	411
is not regulated by that commission, through development of a plan	412
approved by the Ohio historic preservation office, to the extent	413
it has jurisdiction over the facility.	414

(g) The facility complies with the terms of its federal	415
energy regulatory commission license or exemption that are related	416
to recreational access, accommodation, and facilities or, if the	417
facility is not regulated by that commission, the facility	418
complies with similar requirements as are recommended by resource	419
agencies, to the extent they have jurisdiction over the facility;	420
and the facility provides access to water to the public without	421
fee or charge.	422

(h) The facility is not recommended for removal by any	423
federal agency or agency of any state, to the extent the	424
particular agency has jurisdiction over the facility.	425

(B) For the purposes of this chapter, a retail electric	426
service component shall be deemed a competitive retail electric	427
service if the service component is competitive pursuant to a	428
declaration by a provision of the Revised Code or pursuant to an	429
order of the public utilities commission authorized under division	430
(A) of section 4928.04 of the Revised Code. Otherwise, the service	431
component shall be deemed a noncompetitive retail electric	432
service.	433

Section 2. That existing sections 3706.25 and 4928.01 of the	434
Revised Code are hereby repealed.	435

Section 3.  Section 4928.01 of the Revised Code is presented	436
in this act as a composite of the section as amended by both Am.	437
Sub. S.B. 181 and Am. Sub. S.B. 232 of the 128th General Assembly.	438
The General Assembly, applying the principle stated in division	439
(B) of section 1.52 of the Revised Code that amendments are to be	440
harmonized if reasonably capable of simultaneous operation, finds	441
that the composite is the resulting version of the section in	442
effect prior to the effective date of the section as presented in	443
this act.	444