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Sub. H. B. No. 133As Passed by the SenateAs Passed by the Senate
125th General Assembly | Regular Session | 2003-2004 |
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REPRESENTATIVES Olman, Driehaus, Strahorn, Carmichael, Distel, Hartnett, G. Smith, Niehaus, Schmidt, Barrett, Fessler, Harwood, Hollister, Hughes, Latta, McGregor, S. Patton, T. Patton, Price, Reidelbach, Seitz, J. Stewart
SENATOR Blessing
A BILL
To amend sections 4906.06, 4906.08, 4906.10, 4906.98, 4906.99, 4928.62, and 4928.63 and to enact section 4906.97 of the Revised Code to change filing and notice timelines for applications filed with the Power Siting Board; to modify approval standards regarding a major electric generating facility; to authorize the Board or its chairperson to order the suspension of an activity during the Board's consideration of a complaint about the activity; to authorize the Board to impose a forfeiture for a violation of power siting law; and to modify the provision of financial assistance under the Energy Efficiency Revolving Loan Program.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4906.06, 4906.08, 4906.10, 4906.98, 4906.99, 4928.62, and 4928.63 be amended and section 4906.97 of the Revised Code be enacted to read as follows:
Sec. 4906.06. (A) An applicant for a certificate shall
file with the office of the
chairman
chairperson of the power
siting board an
application, in such form as the board prescribes, containing the
following information: (1) A description of the location and of the major utility
facility
to be built thereon; (2) A summary of any studies
which
that have been made by or
for the applicant of the environmental impact of the facility; (3) A statement explaining the need for the facility; (4) A statement of the reasons why the proposed location
is best suited for the facility; (5) A statement of how the facility fits into the
applicant's forecast contained in the report submitted under
section 4935.04 of the Revised Code; (6) Such other information as the applicant may consider
relevant or as the board
may by rule or order
may require. Copies of
the studies referred to in division (A)(2) of this section shall
be filed with the office of the
chairman
chairperson, if
ordered, and shall be available for public inspection. The application shall be filed not less than two years,
except one year in the case of transmission lines, nor more than
five years prior to the planned date of commencement of
construction. Such Either period may be waived by the board for
unforeseen emergencies
good cause shown. (B) Each application shall be accompanied by proof of
service of a copy of such application on the chief executive
officer of each municipal corporation and county, and the head of
each public agency charged with the duty of protecting the
environment or of planning land use, in the area in which any
portion of such facility is to be located. (C) Each applicant shall within seven fifteen days after the date of the filing
of the application shall give public notice to persons residing in the
municipal corporations and counties entitled to receive notice
under division (B) of this section, by the publication of a
summary of the application in newspapers of general circulation
in such area. Proof of such publication shall be filed with the
office of the
chairman
chairperson. (D) Inadvertent failure of service on, or notice to, any
of the persons identified in divisions (B) and (C) of this
section may be cured pursuant to orders of the board designed to
afford them adequate notice to enable them to participate
effectively in the proceeding. In addition, the board
may, after
filing,
may require the applicant to serve notice of the application
or copies thereof or both upon such other persons, and file proof
thereof, as the board considers appropriate. (E) An application for an amendment of a certificate shall
be in such form and contain such information as the board
prescribes. Notice of such an application shall be given as
required in divisions (B) and (C) of this section. (F) Each application for certificate or an amendment shall
be accompanied by the application fee prescribed by board rule.
All application fees, supplemental application fees, and other
fees collected by the board shall be deposited in the state
treasury to the credit of the power siting board fund, which is
hereby created. The
chairman
chairperson shall administer and
authorize
expenditures from the fund for any of the purposes of this
chapter. If the
chairman
chairperson determines that moneys
credited to the
fund from an applicant's fee are not sufficient to pay the
board's expenses associated with its review of the application,
he
the chairperson shall request the approval of the controlling
board to assess
a supplemental application fee upon an applicant to pay
anticipated additional expenses associated with the board's
review of the application or an amendment to an application. If
the
chairman
chairperson finds that an application fee exceeds
the amount
needed to pay the board's expenses for review of the application,
he
the chairperson shall cause a refund of the excess amount to
be issued to the
applicant from the fund.
Sec. 4906.08. (A) The parties to a certification
proceeding shall include: (2) Each person entitled to receive service of a copy of
the application under division (B) of section 4906.06 of the
Revised Code, if it the person has filed with the power siting board a
notice of intervention as a party, within thirty days after the
date it the person was served with a copy of the application; (3) Any person residing in a municipal corporation or
county entitled to receive service of a copy of the application
under division (B) of section 4906.06 of the Revised Code; and
any other person, if such a the person has petitioned the board for
leave to intervene as a party within thirty days after the date
of publication of the notice required by division (C) of section
4906.06 of the Revised Code, and if such that petition has been
granted by the board for good cause shown. (B) The board may, in extraordinary circumstances for good
cause shown, may grant a petition, for leave to intervene as a party
to participate in subsequent phases of the proceeding, that is filed by a
person identified in division (A)(2) or (3) of this section, but
who that failed to file a timely notice of intervention or petition
for leave to intervene, as the case may be. (C) The board shall accept written or oral testimony from
any person at the public hearing, but the right to call and
examine witnesses shall be reserved for parties. However, the
board may adopt rules to exclude repetitive, immaterial, or
irrelevant testimony.
Sec. 4906.10. (A) The power siting board shall render a
decision upon the record either granting or denying the
application as filed, or granting it upon such terms, conditions,
or modifications of the construction, operation, or maintenance
of the major utility facility as the board considers appropriate.
The certificate shall be conditioned upon the facility being in
compliance with standards and rules adopted under sections
1501.33, 1501.34, and 4561.32 and Chapters 3704., 3734., and
6111. of the Revised Code. The period of initial operation
under a certificate shall expire two years after the date on
which electric power is first generated by the facility.
During
the period of initial operation, the facility shall be subject to
the enforcement and monitoring powers of the director of
environmental protection under Chapters 3704., 3734., and 6111.
of the Revised Code and to the emergency provisions under
those chapters. If a major utility facility constructed in accordance with
the
terms and conditions of its certificate is unable to operate in
compliance with all applicable requirements of state laws, rules,
and standards pertaining to air pollution, the facility may apply
to the director of environmental protection for a conditional
operating permit under division (G) of section 3704.03 of the
Revised Code and the rules adopted thereunder. The operation of
a major utility facility in compliance with a conditional
operating permit is not in violation of its certificate. After
the expiration of the period of initial operation of a major
utility facility, the facility shall be under the jurisdiction of
the environmental protection agency and shall comply with all
laws, rules, and standards pertaining to air pollution, water
pollution, and solid and hazardous waste disposal. The board shall not grant a certificate for the
construction, operation, and maintenance of a major utility
facility, either as proposed or as modified by the board, unless
it finds and determines all of the following: (1) The basis of the need for the facility. In if the case of
a major utility facility described in division (B)(1) of section
4906.01 of the Revised Code to be constructed on or after
the effective date of this
amendment, the board shall
presume the need for the facility as that need is stated in an application
pursuant to division (A)(3) of section 4906.06 of the Revised Code. is an electric transmission line or gas or natural gas transmission line; (2) The nature of the probable environmental impact; (3) That the facility represents the minimum adverse
environmental impact, considering the state of available
technology and the nature and economics of the various
alternatives, and other pertinent considerations; (4) In the case of an electric transmission line or generating facility, that the
facility is consistent with regional plans for expansion of the
electric power grid of the electric systems serving this state
and interconnected utility systems and that the facility will
serve the interests of electric system economy and reliability; (5) That the facility will comply with Chapters 3704.,
3734., and 6111. of the Revised Code and all rules and standards
adopted under those chapters and under sections 1501.33, 1501.34,
and 4561.32 of the Revised Code. In determining whether the
facility will comply with all rules and standards adopted under
section 4561.32 of the Revised Code, the board shall consult with
the office of aviation of the division of
multi-modal planning and programs of
the department of transportation
under section 4561.341 of the Revised Code. (6) That the facility will serve the public interest,
convenience, and necessity; (7) In addition to the provisions contained in divisions
(A)(1) to (6) of this section and rules adopted
under those divisions, what
its impact will be on the viability as agricultural land of any
land in an existing agricultural district established under
Chapter 929. of the Revised Code that is located within the site
and alternative site of the proposed major utility facility.
Rules adopted to evaluate impact under division (A)(7) of this
section shall not require the compilation, creation, submission,
or production of any information, document, or other data
pertaining to land not located within the site and alternative
site. (8) That the facility incorporates maximum feasible water
conservation practices as determined by the board, considering
available technology and the nature and economics of the various
alternatives. (B) If the board determines that the location of all or a
part of the proposed facility should be modified, it may
condition its certificate upon that modification, provided that
the municipal corporations and counties, and persons residing
therein, affected by the modification shall have been given
reasonable notice thereof. (C) A copy of the decision and any opinion issued
therewith shall be served upon each party.
Sec. 4906.97. (A) Upon a finding by the power siting board that there are reasonable grounds to believe that a person has violated a provision of section 4906.98 of the Revised Code, the board shall fix a time for hearing such complaint and shall notify the person. The notice shall be served not less than fifteen days before the date of hearing and shall state the matters that are the subject of the complaint. Parties to the complaint are entitled to be heard, to be represented by counsel, and to have process to enforce the attendance of witnesses. (B) The power siting board by order or its chairperson, with written notice to the person and opportunity to respond, may require that any activity that is the subject of a complaint under division (A) of this section be suspended for the duration of the board's consideration of the complaint. Upon a showing by the party against which the complaint was filed that all matters have been addressed satisfactorily, the chairperson shall terminate the suspension. (C) After notice and opportunity for hearing in accordance with division (A) of this section and upon a finding by the board that a person has violated a provision of section 4906.98 of the Revised Code, the board by order may assess a forfeiture of not more than five thousand dollars for each day of the violation, but the aggregate of forfeitures for a related series of violations shall not exceed one million dollars. In determining the amount of any forfeiture, the board shall consider all of the following: (1) The gravity of the violation; (2) The person's history of prior violations; (3) The person's good faith efforts to comply and undertake corrective action; (4) The person's ability to pay the forfeiture; (5) The cost of the project; (6) The effect of the forfeiture on the person's ability to continue as an applicant; (7) Such other matters as justice requires.
(D) The attorney general, upon written request of the board, shall bring a civil action to recover any forfeiture assessed under division (C) of this section but not paid, or to seek other appropriate relief, including injunctive relief. The action shall be brought in the court of common pleas of Franklin county. The court shall give precedence to the action over all other cases.
(E) All forfeitures collected under division (C) or (D) of this section shall be deposited into the state treasury to the credit of the general revenue fund.
Sec. 4906.98. (A) No person shall willfully construct a major
utility facility without first obtaining a certificate. (B) No person shall willfully construct, operate, or maintain a major
utility facility other than in compliance with the certificate
he
the person has obtained.
(C) No person shall fail to comply with any order issued pursuant to this chapter or with a suspension otherwise required under division (B) of section 4906.97 of the Revised Code.
Sec. 4906.99. Whoever willfully violates
any provision of section 4906.98 of the Revised Code shall may be
fined not less than one thousand dollars nor more than ten thousand dollars
for
each day of violation, or imprisoned for not more than one year, or both.
Sec. 4928.62. (A) Beginning on the starting date of competitive
retail electric service, there is hereby created the energy
efficiency revolving loan program, which shall be administered by
the director of development. Under the program, the director may
authorize the use of moneys in the energy efficiency revolving
loan fund for financial assistance for projects in this state. To the extent
feasible given approved applications for assistance, the assistance shall be
distributed among the certified territories of electric distribution utilities
and participating electric cooperatives, and among the service areas of
participating municipal electric utilities, in amounts proportionate to the
remittances of each utility and cooperative under divisions (B)(1)
and (3) of section
4928.61 of the Revised Code. The assistance shall may be made or provided through
approved
lending institutions by the director of development in the form of direct loans or grants, or through lending institutions in the form of loan participation agreements at below market
rates, loan guarantees for such loans, and or linked deposits for
such loans. The total of all grants provided in any one fiscal year shall not exceed ten per cent of the revenues paid into the energy efficiency revolving loan fund during the previous fiscal year. The director
shall not authorize financial assistance under the program unless
the director first determines all of the following: (1) The project will include an investment in products,
technologies, or services, including energy efficiency for low-income housing,
for residential, small commercial and small
industrial business, local government, educational institution, nonprofit
entity, or agricultural customers of an electric distribution
utility in this state or a participating municipal electric
utility or electric cooperative in this state. (2) The project will improve energy efficiency in a cost-efficient manner
by using both the most appropriate national, federal, or
other standards for products as determined by the director, and the best
practices for use of technology, products, or services in the
context of the total facility or building. (3) The project will benefit the economic and environmental
welfare of the citizens of this state. (4) The receipt of financial assistance is a major factor in the
applicant's decision to proceed with or invest in the project. (B) In carrying out sections 4928.61 to 4928.63 of the Revised Code, the
director may do all of the
following for the purpose of the energy efficiency revolving loan
program: (1) Acquire in the name of the director any property of any kind
or character in accordance with this section, by purchase, purchase at
foreclosure, or exchange, on such terms and in such manner as the director
considers proper; (2) Make and enter into all contracts and agreements necessary
or incidental to the performance of the director's duties and the exercise
of the director's powers under those sections; (3) Employ or enter into contracts with financial consultants,
marketing consultants, consulting engineers, architects, managers,
construction experts, attorneys, technical monitors, energy evaluators, or
other employees or agents as the director considers necessary, and
shall fix their compensation; (4) Adopt rules prescribing the application procedures for
financial assistance under the program; the terms and conditions of any
loans, grants, loan guarantees participation agreements, linked deposits, and contracts; criteria
pertaining to the eligibility of participating lending institutions; and any
other matters necessary for the implementation of the program; (5) Do all things necessary and appropriate for the operation of
the program. (C) Financial statements, financial data, and trade secrets
submitted to or received by the director from an applicant or recipient of
financial assistance under sections 4928.61 to 4928.63
of the Revised Code, or any information taken from those
statements, data, or trade secrets for any purpose, are not public
records for the purpose of section 149.43 of the Revised Code.
Sec. 4928.63. The director of development and the public benefits advisory
board have the powers and duties
provided in sections 4928.61 and 4928.62 of the Revised Code, in
order to promote the welfare of the people of this state, to stabilize the
economy, to assist in the improvement and development within this state of
not-for-profit entity, industrial, commercial, distribution,
residential, and research buildings and activities required for
the people of this state, to improve the economic welfare of the
people of this state, and also to assist in the improvement of
air, water, or thermal pollution control facilities and solid
waste disposal facilities. It is hereby determined that the
accomplishment of those purposes is essential so that the people
of this state may maintain their present high standards in
comparison with the people of other states and so that
opportunities for improving the economic welfare of the people of
this state, for improving the housing of residents of this state,
and for favorable markets for the products of this state's natural
resources, agriculture, and manufacturing shall be improved; and
that it is necessary for this state to establish the program
authorized pursuant to sections 4928.61 and 4928.62 of the Revised
Code, to establish the energy efficiency revolving
loan program and program fund and the energy efficiency revolving loan program
advisory board, and to vest the director and the board with the powers and
duties provided in sections 4928.61 and 4928.62 of the Revised Code.
Section 2. That existing sections 4906.06, 4906.08, 4906.10, 4906.98, 4906.99, 4928.62, and 4928.63 of the Revised Code are hereby repealed.
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