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(127th General Assembly)
(Amended Substitute Senate Bill Number 221)
AN ACT
To amend sections 4905.31, 4928.01,
4928.02,
4928.05,
4928.09, 4928.14, 4928.17, 4928.20,
4928.31, 4928.34, 4928.35,
4928.61, 4928.67,
4929.01, and 4929.02;
to
enact
sections 9.835,
3318.112,
4928.141,
4928.142,
4928.143,
4928.144,
4928.145, 4928.146,
4928.151, 4928.24,
4928.621,
4928.64, 4928.65, 4928.66,
4928.68,
4928.69, and
4929.051; and to repeal sections
4928.41,
4928.42, 4928.431, and 4928.44 of
the
Revised
Code to
revise state
energy policy
to
address
electric
service
price
regulation,
establish
alternative
energy
benchmarks
for
electric
distribution
utilities
and electric
services
companies,
provide for
the use of
renewable
energy
credits, establish
energy
efficiency
standards
for electric
distribution
utilities,
require
greenhouse gas
emission
reporting and
carbon
dioxide control planning
for
utility-owned
generating facilities,
authorize
energy price
risk management
contracts, and
authorize for natural gas
utilities revenue
decoupling related to energy
conservation and
efficiency.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 4905.31, 4928.01,
4928.02, 4928.05,
4928.09, 4928.14, 4928.17, 4928.20, 4928.31, 4928.34,
4928.35,
4928.61,
4928.67, 4929.01, and
4929.02 be amended and
sections
9.835, 3318.112, 4928.141,
4928.142,
4928.143, 4928.144,
4928.145,
4928.146, 4928.151, 4928.24, 4928.621,
4928.64,
4928.65,
4928.66,
4928.68, 4928.69, and
4929.051 of
the
Revised
Code be enacted
to
read
as follows:
Sec. 9.835. (A) As used in this section:
(1) "Energy price risk management contract" means a contract
that mitigates for the term of the contract the price volatility
of energy sources, including, but not limited to, natural gas,
gasoline, oil, and diesel fuel, and that is a budgetary and
financial tool only and not a contract for the procurement of an
energy source.
(2) "Political subdivision" means a county, city, village,
township, park district, or school district.
(3) "State entity" means the general assembly, the supreme
court, the court of claims, the office of an elected state
officer, or a department, bureau, board, office, commission,
agency, institution, or other instrumentality of this state
established by the constitution or laws of this state for the
exercise of any function of state government, but excludes a
political subdivision, an institution of higher education, the
public employees retirement system, the Ohio police and fire
pension fund, the state teachers retirement system, the school
employees retirement system, the state highway patrol retirement
system, or the city of Cincinnati retirement system.
(4) "State official" means the elected or appointed official,
or that person's designee, charged with the management of a state
entity.
(B) If it determines that doing so is in the best interest of
the state entity or the political subdivision, and subject to,
respectively, state or local appropriation to pay amounts due, a
state official or the legislative or other governing authority of
a political
subdivision may enter into an energy price risk
management
contract. Money
received pursuant to such a contract
entered
into by a state
official shall be deposited to the
credit of the
general revenue
fund of this state, and, unless
otherwise
provided by ordinance or
resolution enacted or adopted
by the
legislative authority of the
political subdivision
authorizing
any such contract, money
received under the contract
shall be
deposited to the credit of
the general fund of the
political
subdivision.
Sec. 3318.112. (A) As used in this section, "solar ready"
means capable of accommodating the eventual installation of roof
top, solar photovoltaic energy equipment.
(B) The Ohio school facilities commission shall adopt rules
prescribing standards for solar ready equipment in school
buildings under their jurisdiction. The rules shall include, but
not be limited to, standards regarding roof space limitations,
shading and obstruction, building orientation, roof loading
capacity, and electric systems.
(C) A school district may seek, and the commission may grant
for good cause shown, a waiver from part or all of the standards
prescribed under division (B) of this section.
Sec. 4905.31. Except as provided in section 4933.29 of the
Revised Code, Chapters 4901., 4903., 4905., 4907., 4909., 4921.,
and 4923., 4927., 4928., and 4929. of the Revised Code do not
prohibit a public utility
from filing a schedule or establishing
or entering into any reasonable
arrangement with another public
utility or with one or more of its customers,
consumers, or
employees, and do not prohibit a mercantile customer of an
electric distribution utility as those terms are defined in
section 4928.01 of the Revised Code or a group of those customers
from establishing a reasonable arrangement with that utility or
another public utility electric light company, providing for any
of the following:
(A) The division or distribution of its surplus profits;
(B) A sliding scale of charges, including variations in
rates
based upon either of the following:
(1) Stipulated stipulated variations in cost as provided in
the
schedule or arrangement;
(2) Any emissions fee levied upon an electric light
company
under Substitute Senate Bill No. 359 of the 119th general
assembly
as provided in the schedule. The public utilities
commission shall
permit an electric light company to recover the
emissions fee
pursuant to such a variable rate schedule.
(3) Any emissions fee levied upon an electric light
company
under division (C) or (D) of section 3745.11 of the
Revised Code
as provided in the schedule. The public utilities
commission shall
permit an electric light company to recover any
such emission fee
pursuant to such a variable rate schedule.
(4) Any schedule of variable rates filed under division
(B)
of this section shall provide for the recovery of any such
emissions fee by applying a uniform percentage increase to the
base rate charged each customer of the electric light company for
service during the period that the variable rate is in effect.
(C) A minimum charge for service to be rendered unless
such
minimum charge is made or prohibited by the terms of the
franchise, grant, or ordinance under which such public utility is
operated;
(D) A classification of service based upon the quantity
used,
the time when used, the purpose for which used, the
duration of
use, and any other reasonable consideration;
(E) Any other financial device that may be practicable or
advantageous to the parties interested. No In the case of a
schedule or arrangement concerning a public utility electric light
company, such other financial device may include a device to
recover costs incurred in conjunction with any economic
development and job retention program of the utility within its
certified territory, including recovery of revenue foregone as a
result of any such program; any development and implementation of
peak demand reduction and energy efficiency programs under section
4928.66 of the Revised Code; any acquisition and deployment of
advanced metering, including the costs of any meters prematurely
retired as a result of the advanced metering implementation; and
compliance with any government mandate.
No such schedule or arrangement,
sliding scale, minimum
charge, classification, variable rate, or
device is lawful unless
it is filed with and approved by the
commission pursuant to an
application that is submitted by the public utility or the
mercantile customer or group of mercantile customers of an
electric distribution utility and is posted on the commission's
docketing information system and is accessible through the
internet.
Every such public utility is required to conform its
schedules of rates, tolls, and charges to such arrangement,
sliding scale, classification, or other device, and where
variable
rates are provided for in any such schedule or
arrangement, the
cost data or factors upon which such rates are
based and fixed
shall be filed with the commission in such form
and at such times
as the commission directs. The commission
shall review the cost
data or factors upon which a variable rate
schedule filed under
division (B)(2) or (3) of this section is
based and shall adjust
the base rates of the electric light
company or order the company
to refund any charges that it has
collected under the variable
rate schedule that the commission
finds to have resulted from
errors or erroneous reporting. After
recovery of all of the
emissions fees upon which a variable rate
authorized under
division (B)(2) or (3) of this section is based,
collection of the
variable rate shall end and the variable rate
schedule shall be
terminated.
Every such schedule or reasonable arrangement, sliding scale,
minimum charge,
classification, variable rate, or device shall be
under the
supervision and regulation of the commission, and is
subject to
change, alteration, or modification by the commission.
Sec. 4928.01. (A) As used in this chapter:
(1) "Ancillary service" means any function necessary to the
provision of electric transmission or distribution service to a
retail
customer and includes, but is not limited to, scheduling,
system
control, and dispatch services; reactive supply from
generation
resources and voltage control service; reactive supply
from
transmission resources service; regulation service; frequency
response service; energy imbalance service; operating
reserve-spinning reserve service; operating reserve-supplemental
reserve service; load following; back-up supply service;
real-power loss replacement service; dynamic scheduling; system
black start capability; and network stability service.
(2) "Billing and collection agent" means a fully independent
agent, not affiliated with or otherwise controlled by an electric
utility, electric services company, electric cooperative, or
governmental
aggregator subject to certification under section
4928.08 of the Revised Code, to the extent
that the agent is under
contract with such utility, company, cooperative, or
aggregator
solely to provide billing and collection for retail electric
service on behalf of the utility company, cooperative, or
aggregator.
(3) "Certified territory" means the certified territory
established for an electric supplier under sections 4933.81 to
4933.90
of the Revised Code as amended by Sub. S.B. No. 3 of
the
123rd
general assembly.
(4) "Competitive retail electric service" means a component
of
retail electric service that is competitive as provided under
division
(B) of this section.
(5) "Electric cooperative" means a not-for-profit electric
light
company that both is or has been financed in whole or in
part under the
"Rural
Electrification
Act of 1936," 49
Stat. 1363,
7 U.S.C.
901, and owns or operates facilities in this state to
generate, transmit,
or distribute electricity, or a not-for-profit
successor of such company.
(6) "Electric distribution utility" means an electric utility
that supplies at least retail electric distribution service.
(7) "Electric light company" has the same meaning as in
section
4905.03 of the Revised Code and includes an electric
services
company, but excludes any
self-generator to the extent
that it
consumes electricity it so
produces or to the extent it,
sells that electricity for
resale electricity it so
produces, or
obtains electricity from a generating facility it hosts on its
premises.
(8) "Electric load center" has the same meaning as in section
4933.81 of the Revised Code.
(9) "Electric services company" means an electric light
company
that is engaged on a for-profit or not-for-profit basis in
the business
of supplying or arranging for the supply of only a
competitive retail electric
service in
this state. "Electric
services company" includes a power marketer, power
broker,
aggregator, or independent power producer but excludes an
electric
cooperative, municipal electric
utility, governmental aggregator,
or billing and collection agent.
(10) "Electric supplier" has the same meaning as in section
4933.81 of the Revised Code.
(11) "Electric utility" means an electric light company that
has a certified territory and
is engaged on a for-profit basis
either
in the
business of supplying a
noncompetitive retail
electric service in this state
or
in the
businesses of supplying
both a noncompetitive and a
competitive
retail electric service
in this state. "Electric utility"
excludes
a
municipal electric
utility or a billing and collection agent.
(12) "Firm electric service" means electric service other
than nonfirm
electric service.
(13) "Governmental aggregator" means a legislative authority
of a
municipal corporation, a board of township trustees, or a
board of county
commissioners acting as an
aggregator for the
provision of a competitive retail electric service under
authority
conferred under
section 4928.20 of the Revised Code.
(14) A person acts "knowingly," regardless of the person's
purpose, when the person is aware that the person's conduct will
probably cause a certain result or will probably be of a certain
nature. A person has knowledge of circumstances when the person
is
aware that such circumstances probably exist.
(15) "Level of funding for low-income customer energy
efficiency
programs provided through electric utility rates" means
the level
of funds specifically included in an electric utility's
rates on
October 5, 1999, pursuant to an order of the
public
utilities commission issued under Chapter 4905. or 4909. of
the
Revised Code and in effect on October 4, 1999, for the purpose of
improving the energy
efficiency of housing for the utility's
low-income customers. The
term excludes the level of any such
funds committed to a specific
nonprofit organization or
organizations pursuant to a stipulation
or contract.
(16) "Low-income customer assistance programs" means the
percentage of income payment plan program, the home
energy
assistance program, the home weatherization assistance
program,
and
the targeted energy efficiency and weatherization program.
(17) "Market development period" for an electric utility
means the
period of time beginning on the starting date of
competitive
retail electric service and ending on the applicable
date for that
utility as specified in section 4928.40 of
the
Revised Code,
irrespective of whether the utility applies to
receive
transition
revenues under this chapter.
(18) "Market power" means the ability to impose on customers
a
sustained price for a product or service above the price that
would prevail in a competitive market.
(19) "Mercantile commercial customer" means a commercial
or
industrial customer if the electricity consumed is for
nonresidential use and the customer consumes more than seven
hundred thousand kilowatt hours per year or is part of a national
account involving multiple facilities in one or more states.
(20) "Municipal electric utility" means a municipal
corporation
that owns or operates facilities to generate,
transmit, or
distribute electricity.
(21) "Noncompetitive retail electric service" means a
component
of retail electric service that is noncompetitive as
provided
under division (B) of this section.
(22) "Nonfirm electric service" means electric service
provided
pursuant to a schedule filed under section 4905.30 of the
Revised
Code or pursuant to an arrangement under section 4905.31
of the
Revised Code,
which schedule or arrangement includes
conditions
that may
require the customer to curtail or interrupt
electric
usage
during nonemergency circumstances upon
notification
by an
electric utility.
(23) "Percentage of income payment plan arrears" means
funds
eligible for collection through the percentage of income
payment
plan rider, but uncollected as of July 1, 2000.
(24) "Person" has the same meaning as in section 1.59 of
the
Revised Code.
(25) "Advanced energy project" means any technologies,
products, activities, or management practices or strategies that
facilitate the generation or use of electricity and that reduce or
support the reduction of energy consumption or support the
production of clean, renewable energy for industrial,
distribution, commercial, institutional, governmental,
research,
not-for-profit, or residential energy users. Such energy includes,
including,
but is not limited to, wind power; geothermal energy;
solar
thermal energy; and energy produced by micro turbines in
distributed generation applications with high electric
efficiencies, by combined heat and power applications, by fuel
cells powered by hydrogen derived from wind, solar, biomass,
hydroelectric, landfill gas, or geothermal sources, or by solar
electric generation, landfill gas, or hydroelectric generation
advanced energy resources and renewable energy resources.
"Advanced energy project" also includes any project described in
division (A), (B), or (C) of section 4928.621 of the Revised Code.
(26) "Regulatory assets" means the unamortized net
regulatory
assets that are capitalized or deferred on the
regulatory books of
the electric utility,
pursuant to an order or
practice of the
public utilities
commission or pursuant to
generally accepted
accounting
principles as a result of a prior
commission
rate-making
decision, and that would otherwise have
been charged
to expense
as incurred or would not have been
capitalized or
otherwise
deferred for future regulatory
consideration absent
commission
action. "Regulatory assets"
includes,
but is not
limited to, all deferred demand-side
management costs;
all
deferred percentage of income payment plan
arrears;
post-in-service capitalized charges and assets recognized
in
connection with statement of financial accounting standards no.
109 (receivables from customers for income taxes); future nuclear
decommissioning costs and fuel disposal costs as those costs have
been determined by the commission in the electric utility's
most
recent rate or accounting application proceeding addressing
such
costs; the undepreciated costs of safety and radiation
control
equipment on nuclear generating plants owned or leased by
an
electric utility; and fuel costs currently deferred pursuant to
the terms of one or more settlement agreements approved by the
commission.
(27) "Retail electric service" means any service involved
in
supplying or arranging for the supply of electricity to
ultimate
consumers in this state, from the point of generation to
the
point
of consumption. For the purposes of this chapter,
retail
electric
service includes one or more of the following
"service
components": generation service, aggregation service,
power
marketing service, power brokerage service, transmission
service,
distribution service, ancillary service, metering
service, and
billing and collection service.
(28) "Small electric generation facility" means an
electric
generation plant and associated facilities designed for,
or
capable of, operation at a capacity of less than two megawatts.
(29)(28) "Starting date of competitive retail electric
service"
means January 1, 2001, except as provided in division (C)
of
this
section.
(30)(29) "Customer-generator" means a user of a net metering
system.
(31)(30) "Net metering" means measuring the difference in an
applicable
billing period between the electricity supplied by an
electric service
provider and the electricity generated by a
customer-generator that is fed
back to the electric service
provider.
(32)(31) "Net metering system" means a facility for the
production of
electrical energy that does all of the following:
(a) Uses as its fuel either solar, wind, biomass, landfill
gas,
or hydropower,
or uses a microturbine or a fuel cell;
(b) Is located on a customer-generator's premises;
(c) Operates in parallel with the electric utility's
transmission
and distribution facilities;
(d) Is intended primarily to offset part or all of the
customer-generator's requirements for electricity.
(33)(32) "Self-generator" means an entity in this state that
owns
or hosts on its premises an electric
generation facility
that produces electricity
primarily for the owner's
consumption
and that may provide any
such excess electricity to retail
electric service providers another entity,
whether the facility
is installed or operated by
the owner or by
an agent under a
contract.
(33) "Rate plan" means the standard service offer in effect
on the effective date of the amendment of this section by S.B. 221
of the 127th general assembly.
(34) "Advanced energy resource" means any of the following:
(a) Any method or any modification or replacement of any
property, process, device, structure, or equipment that increases
the generation output of an electric generating facility to the
extent such efficiency is achieved without additional
carbon
dioxide emissions by that facility;
(b) Any distributed generation system consisting of customer
cogeneration of electricity and thermal output simultaneously,
primarily to meet the energy needs of the customer's facilities;
(c) Clean coal technology that includes a carbon-based
product that is chemically altered before combustion to
demonstrate a reduction, as expressed as ash, in emissions of
nitrous oxide, mercury, arsenic, chlorine, sulfur dioxide, or
sulfur trioxide in accordance with the American society of testing
and materials standard D1757A or a reduction of metal oxide
emissions in accordance with standard D5142 of that society, or
clean coal
technology that includes the design capability to
control or
prevent the emission of carbon dioxide, which design
capability
the commission shall adopt by rule and shall be based
on
economically feasible best available technology or, in the
absence
of a determined best available technology, shall be of
the highest
level of economically feasible design capability for
which there
exists generally accepted scientific opinion;
(d) Advanced nuclear energy technology consisting of
generation III technology as defined by the nuclear regulatory
commission; other, later technology; or significant improvements
to existing facilities;
(e) Any fuel cell used in the generation of electricity,
including, but not limited to, a proton exchange membrane fuel
cell, phosphoric acid fuel cell, molten carbonate fuel cell, or
solid oxide fuel cell;
(f) Advanced solid waste or
construction and demolition
debris conversion technology,
including, but not limited to,
advanced stoker technology, and
advanced fluidized bed
gasification technology, that results in
measurable greenhouse
gas emissions reductions as calculated
pursuant to the United
States environmental protection agency's
waste reduction model
(WARM).
(g) Demand-side management and any energy efficiency
improvement.
(35) "Renewable energy resource" means solar photovoltaic
or
solar thermal energy, wind energy, power produced by a
hydroelectric facility, geothermal
energy,
fuel
derived from
solid wastes, as defined in section 3734.01 of
the
Revised Code,
through fractionation, biological decomposition,
or
other
process that does not principally involve combustion,
biomass
energy, biologically
derived
methane
gas, or energy
derived
from nontreated by-products of the
pulping
process or
wood
manufacturing process, including bark,
wood
chips,
sawdust, and
lignin in spent pulping liquors.
"Renewable
energy
resource"
includes, but is not limited to, any
fuel cell
used
in
the
generation of electricity, including, but not limited
to,
a
proton exchange membrane fuel cell, phosphoric acid fuel
cell,
molten carbonate fuel cell, or solid oxide fuel cell; wind turbine
located in the state's territorial waters of Lake Erie; storage
facility that will promote
the better utilization of a renewable
energy resource that primarily
generates off peak; or distributed
generation
system used by a
customer to generate
electricity
from
any such
energy. As used in
division (A)(35) of this
section, "hydroelectric facility" means a
hydroelectric
generating facility that is located at a dam on a
river, or on
any water discharged to a river, that is
within or
bordering this
state or within or
bordering an
adjoining state and meets all of
the
following
standards:
(a) The facility provides for river flows that are not
detrimental for fish, wildlife, and water quality, including
seasonal flow fluctuations as defined by the applicable licensing
agency for the facility.
(b) The facility demonstrates that it complies with the
water
quality standards of this state, which compliance may
consist of
certification under Section 401 of the "Clean Water
Act of 1977,"
91 Stat. 1598, 1599, 33 U.S.C. 1341, and
demonstrates that it has
not contributed to a finding by this
state that the river has
impaired water quality under Section
303(d) of the "Clean Water
Act of 1977," 114 Stat. 870, 33
U.S.C. 1313.
(c) The facility complies with mandatory prescriptions
regarding fish passage as required by the federal energy
regulatory commission license issued for the project, regarding
fish protection for riverine, anadromous, and catadromus fish.
(d) The facility complies with the recommendations of the
Ohio environmental protection agency and with the terms of its
federal energy regulatory commission license regarding watershed
protection, mitigation, or enhancement, to the extent of each
agency's respective jurisdiction over the facility.
(e) The facility complies with provisions of the "Endangered
Species Act of 1973," 87 Stat. 884, 16 U.S.C. 1531 to 1544, as
amended.
(f) The facility does not harm cultural resources of the
area. This can be shown through compliance with the terms of its
federal energy regulatory commission license or, if the facility
is not regulated by that commission, through development of a plan
approved by the Ohio historic preservation office, to the extent
it has jurisdiction over the facility.
(g) The facility complies with the terms of its federal
energy regulatory commission license or exemption that are related
to recreational access, accommodation, and facilities or, if the
facility is not regulated by that commission, the facility
complies
with similar requirements as are recommended by resource
agencies, to the extent they have jurisdiction over the facility;
and the facility provides access to water to the public
without
fee or charge.
(h) The facility is not recommended for removal by any
federal agency or agency of any state, to the extent the
particular agency has jurisdiction over the facility.
(B) For the purposes of this chapter, a retail electric
service
component shall be deemed a competitive retail electric
service if the service
component is competitive
pursuant to a
declaration by a provision of the Revised Code or
pursuant to an
order of the public utilities commission authorized under
division
(A) of section 4928.04 of the Revised
Code.
Otherwise, the
service component shall be deemed a noncompetitive
retail electric
service.
(C) Prior to January 1, 2001, and after application by
an
electric utility, notice, and an opportunity to be heard, the
public
utilities
commission may issue an order
delaying the
January 1, 2001, starting date of competitive retail
electric
service for the electric utility for a
specified number of days
not to exceed six months, but only for extreme
technical
conditions
precluding the start of competitive retail electric
service on
January 1, 2001.
Sec. 4928.02. It is the policy of this state to do the
following
throughout this state beginning on the starting date of
competitive retail
electric service:
(A) Ensure the availability to consumers of adequate,
reliable,
safe, efficient, nondiscriminatory, and reasonably
priced retail electric
service;
(B) Ensure the availability of unbundled and comparable
retail
electric service that provides consumers with the supplier,
price, terms,
conditions, and quality
options they elect to meet
their respective needs;
(C) Ensure diversity of electricity supplies and suppliers,
by
giving consumers effective choices over the selection of those
supplies
and suppliers and by encouraging the development of
distributed and small
generation facilities;
(D) Encourage innovation and market access for cost-effective
supply- and demand-side retail electric service including, but not
limited to, demand-side management, time-differentiated
pricing,
and implementation of advanced metering infrastructure;
(E) Encourage cost-effective and efficient access to
information
regarding the operation of the transmission and
distribution systems of
electric utilities in order to
promote
both effective customer choice of retail electric service and the
development of performance standards and targets for service
quality for all consumers, including annual achievement reports
written in plain language;
(F) Ensure that an electric utility's transmission and
distribution systems are available to a customer-generator or
owner of distributed generation, so that the customer-generator or
owner can market and deliver the electricity it produces;
(G) Recognize the continuing emergence of competitive
electricity
markets through the development and implementation of
flexible regulatory
treatment;
(G)(H) Ensure effective competition in the provision of
retail
electric service by avoiding anticompetitive subsidies
flowing
from a
noncompetitive retail electric
service to a
competitive
retail electric service or to a product
or service
other than
retail electric service, and vice versa, including by
prohibiting the recovery of any generation-related costs through
distribution or transmission rates;
(H)(I) Ensure retail electric service consumers protection
against unreasonable sales
practices,
market deficiencies, and
market
power;
(I)(J) Provide coherent, transparent means of giving
appropriate
incentives to technologies that can adapt
successfully to
potential environmental mandates;
(K) Encourage implementation of distributed generation across
customer classes through regular review and updating of
administrative rules governing critical issues such as, but not
limited to, interconnection standards, standby charges, and net
metering;
(L) Protect at-risk populations, including, but not limited
to, when considering the implementation of any new advanced energy
or renewable
energy
resource;
(M) Encourage the education of small business owners in this
state regarding the use of, and encourage the use of, energy
efficiency programs and alternative energy resources in their
businesses;
(N) Facilitate the state's effectiveness in the global
economy.
In carrying out this policy, the commission shall consider
rules as they apply to the costs of electric distribution
infrastructure, including, but not limited to, line extensions,
for the purpose of development in this state.
Sec. 4928.05. (A)(1) On and after the starting date of
competitive
retail electric service, a competitive retail electric
service
supplied by an electric utility or electric services
company shall not be
subject to supervision and
regulation by a
municipal corporation under Chapter 743. of the Revised Code or by
the public utilities
commission under Chapters 4901. to 4909.,
4933., 4935., and 4963.
of the Revised Code, except section
sections 4905.10 and 4905.31, division
(B) of section 4905.33, and
sections
4905.35 and 4933.81 to 4933.90; except
sections
4905.06,
4935.03, 4963.40,
and 4963.41 of the
Revised Code only
to the
extent related to service
reliability and public
safety;
and
except as otherwise provided in this chapter. The
commission's
authority to enforce those excepted provisions with
respect to a
competitive retail electric service shall be such
authority
as is
provided for their enforcement under Chapters
4901. to 4909.,
4933., 4935., and 4963. of the Revised Code and
this chapter.
Nothing in this division shall be construed to
limit the
commission's authority under sections 4928.141 to
4928.144 of the
Revised Code.
On and after the starting date of competitive retail
electric service, a
competitive retail electric service supplied
by an electric
cooperative shall not be subject to supervision and
regulation by the
commission under Chapters 4901. to 4909., 4933.,
4935., and 4963.
of the Revised Code, except as otherwise
expressly provided
in sections 4928.01 to 4928.10 and 4928.16 of
the Revised Code.
(2) On and after the starting date of competitive retail
electric service,
a noncompetitive retail electric service
supplied by an
electric utility shall be subject to supervision
and regulation by the
commission under Chapters 4901. to 4909.,
4933., 4935., and 4963.
of the Revised Code and this chapter, to
the extent that
authority
is not preempted by federal law. The
commission's authority to
enforce those provisions with respect to
a noncompetitive retail
electric service shall be the authority
provided under those chapters
and this chapter, to the extent the
authority is not preempted by
federal law. Notwithstanding
Chapters 4905. and 4909. of the Revised Code, commission authority
under this chapter shall include the authority to provide for the
recovery, through
a reconcilable rider on an electric
distribution utility's
distribution rates, of all transmission
and
transmission-related costs, including ancillary and
congestion
costs, imposed on or charged to the utility by the
federal energy
regulatory commission or a regional transmission
organization,
independent transmission operator, or similar
organization
approved by the federal energy regulatory
commission.
The commission shall exercise its jurisdiction with respect
to the
delivery of electricity by an electric utility in this
state on or after
the starting date of competitive retail electric
service so as to ensure
that no aspect of the delivery of
electricity by the utility to
consumers in this state that
consists of a noncompetitive retail
electric service is
unregulated.
On and after that starting date, a noncompetitive retail
electric service
supplied by an electric
cooperative shall not be
subject to supervision and regulation by the
commission under
Chapters 4901. to 4909., 4933., 4935., and 4963.
of the Revised
Code, except sections 4933.81 to 4933.90 and 4935.03 of the
Revised Code. The commission's
authority to enforce those excepted
sections with respect to a noncompetitive
retail electric service
of an electric cooperative shall be such authority as
is provided
for their enforcement under Chapters 4933. and 4935.
of the
Revised Code.
(B) Nothing in this chapter affects the authority of the
commission under Title XLIX of the Revised Code to regulate an
electric light company in this state or an electric service
supplied in
this state prior to the starting date of competitive
retail electric
service.
Sec. 4928.09. (A)(1) No person shall operate in this state
as an
electric utility, an electric services company, or a billing
and collection
agent, or a regional transmission organization
approved by the federal energy regulatory commission and having
the responsibility for maintaining reliability in all or part of
this state on and after the starting date of competitive retail
electric service
unless that person first
does both of the
following:
(a) Consents irrevocably to the jurisdiction of the courts of
this state and service of process in this state, including,
without
limitation, service of summonses and
subpoenas, for any
civil or criminal proceeding arising out of or
relating to such
operation, by providing that irrevocable consent
in accordance
with division (A)(4) of this section;
(b) Designates an agent authorized to receive that service of
process in this state, by filing with the commission a document
designating that agent.
(2) No person shall continue to operate as such an electric
utility, electric services company, or billing and collection
agent, or regional transmission organization described in division
(A)(1) of this section
unless that person continues to consent to
such jurisdiction and service
of process in this state and
continues to designate an agent as
provided under this division,
by refiling in accordance with
division (A)(4) of this section the
appropriate documents filed
under division (A)(1) of this section
or, as applicable, the
appropriate amended documents filed under
division (A)(3) of this
section. Such refiling shall occur during
the month of December
of every fourth year after the initial
filing of a document under
division (A)(1) of this section.
(3) If the address of the person filing a document under
division
(A)(1) or (2) of this section changes, or if a person's
agent or
the address of the agent changes, from that listed on the
most recently filed of such documents, the person shall file an
amended document containing the new information.
(4) The consent and designation required by divisions (A)(1)
to
(3) of this section shall be in writing, on forms prescribed by
the public utilities commission. The original of each such
document
or amended document shall be legible and shall be filed
with the
commission, with a copy filed with the office of the
consumers'
counsel and with the attorney general's office.
(B) A person who enters this state pursuant to a summons,
subpoena, or other form of process authorized by this section is
not subject to arrest or service of process, whether civil or
criminal, in connection with other matters that arose before the
person's entrance into this state pursuant to such summons,
subpoena, or other form of process.
(C) Divisions (A) and (B) of this section do not apply to any
of
the following:
(1) A corporation incorporated under the laws of this state
that
has appointed a statutory agent pursuant to section 1701.07
or 1702.06
of the Revised Code;
(2) A foreign corporation licensed to transact business in
this
state that has appointed a designated agent pursuant to
section 1703.041
of the Revised Code;
(3) Any other person that is a resident of this state or that
files consent to service of process and designates a statutory
agent
pursuant to other laws of this state.
Sec. 4928.14. (A) After its market development period, an
electric distribution utility in this state shall provide
consumers, on a
comparable and
nondiscriminatory basis within its
certified territory, a market-based
standard
service offer of all
competitive retail electric services
necessary to maintain
essential electric service to consumers,
including a firm supply
of electric generation service. Such
offer shall be filed with the
public utilities commission under
section 4909.18 of the Revised
Code.
(B) After that market development period, each electric
distribution utility also shall offer customers within its
certified territory an option to purchase competitive retail
electric service the price of which is determined through a
competitive bidding process. Prior to January 1, 2004, the
commission shall adopt rules concerning the conduct of the
competitive bidding process, including the information
requirements necessary for customers to choose this option and the
requirements to evaluate qualified bidders. The commission may
require that the competitive bidding process be reviewed by an
independent third party. No generation supplier shall be
prohibited from participating in the bidding process, provided
that any winning bidder shall be considered a certified supplier
for purposes of obligations to customers. At the election of the
electric distribution utility, and approval of the commission, the
competitive bidding option under this division may be used as the
market-based standard offer required by division (A) of this
section. The commission may determine at any time that a
competitive bidding process is not required, if other means to
accomplish generally the same option for customers is readily
available in the market and a reasonable means for customer
participation is developed.
(C) After the market development period, the The failure of a
supplier to provide retail electric generation service to
customers within the certified territory of the an electric
distribution utility shall result in the supplier's customers,
after reasonable notice, defaulting to the utility's standard
service offer filed under division (A) of this section sections
4928.141, 4928.142, and 4928.143 of the Revised Code until the
customer chooses an alternative supplier. A supplier is deemed
under this
division section to have failed to
provide such service
if the commission finds, after reasonable notice and
opportunity
for hearing, that any of the following conditions are met:
(1)(A) The supplier has defaulted on its contracts with
customers,
is in receivership, or has filed for bankruptcy.
(2)(B) The supplier is no longer capable of providing the
service.
(3)(C) The supplier is unable to provide delivery to
transmission or
distribution facilities for such period of time as
may be reasonably
specified by commission rule adopted under
division (A) of section
4928.06 of the Revised Code.
(4)(D) The supplier's certification has been suspended,
conditionally
rescinded, or rescinded under division (D) of
section 4928.08 of the Revised
Code.
Sec. 4928.141. (A) Beginning January 1, 2009, an electric
distribution utility shall provide consumers, on a comparable and
nondiscriminatory basis within its certified territory, a
standard service offer of all competitive retail
electric
services necessary to maintain essential electric service
to
consumers, including a firm supply of electric generation
service. To that end, the electric distribution utility shall
apply to the public
utilities commission to establish the
standard service offer in
accordance with section 4928.142 or
4928.143 of the Revised Code and, at its discretion, may apply
simultaneously under both sections, except that the utility's
first standard service offer application at minimum shall include
a filing under section 4928.143 of the Revised Code.
Only a
standard service offer authorized in accordance
with section
4928.142 or 4928.143 of
the Revised Code, shall serve as the
utility's standard
service
offer for the purpose of compliance
with this section; and
that
standard service offer shall serve
as the utility's default
standard service offer for the purpose
of section
4928.14 of the Revised Code. Notwithstanding
the
foregoing provision, the rate plan of an electric distribution
utility shall continue for the purpose of the utility's compliance
with this division until a standard service offer is first
authorized under section 4928.142 or 4928.143 of the Revised Code,
and, as applicable, pursuant to
division (D) of section 4928.143
of the Revised Code, any rate
plan that extends
beyond December
31, 2008, shall continue to be
in effect for the subject electric
distribution
utility for the
duration of the plan's term. A
standard
service offer under section 4928.142 or 4928.143 of the
Revised
Code shall exclude any previously authorized allowances
for
transition costs, with such exclusion being effective on and
after
the date that the allowance is scheduled to end under the
utility's rate plan.
(B) The commission shall set the time for hearing of a filing
under section 4928.142 or 4928.143 of the Revised Code, send
written notice of the hearing to the electric distribution
utility, and publish notice
in a newspaper of general circulation
in each county in the
utility's certified territory. The
commission shall adopt rules
regarding filings under those
sections.
Sec. 4928.142. (A) For the purpose of complying with section
4928.141 of the Revised Code and subject to division (D) of this
section and, as applicable, subject to the rate plan requirement
of division (A)
of section 4928.141 of the Revised Code, an
electric distribution
utility may establish a standard
service
offer price for retail
electric generation service that is
delivered to the utility under a
market-rate offer.
(1) The market-rate offer shall be determined through a
competitive bidding process that provides for all of the
following:
(a) Open, fair, and transparent competitive solicitation;
(b) Clear product definition;
(c) Standardized bid evaluation criteria;
(d) Oversight by an independent third party that shall design
the solicitation, administer the bidding, and ensure that the
criteria specified in division (A)(1)(a) to (c) of this section
are met;
(e) Evaluation of the submitted bids prior to
the selection
of the least-cost bid winner or winners.
No generation supplier shall be prohibited from participating
in the bidding process.
(2) The public utilities commission shall modify rules, or
adopt new rules as necessary, concerning the conduct of the
competitive bidding process and the qualifications of bidders,
which rules shall foster supplier participation in the bidding
process and shall be consistent with the requirements of division
(A)(1) of this section.
(B) Prior to initiating a competitive bidding process for a
market-rate offer under division (A) of this section, the electric
distribution utility
shall file an application with the
commission. An electric distribution utility may file
its
application with the commission prior to the effective date of
the commission rules required under division (A)(2) of this
section, and, as the commission determines necessary, the utility
shall immediately conform its filing to the rules upon their
taking effect.
An application under this division shall detail the electric
distribution utility's
proposed compliance with the requirements
of division (A)(1) of
this section and with commission rules
under division (A)(2) of
this section and demonstrate that all of
the
following requirements are met:
(1) The electric distribution utility or its transmission
service affiliate belongs
to at least one regional transmission
organization that has been approved by
the federal energy
regulatory commission; or there otherwise is comparable and
nondiscriminatory
access to the electric transmission grid.
(2) Any such regional transmission organization has a
market-monitor function and the ability to take actions to
identify and mitigate market power or the electric distribution
utility's market
conduct; or a similar market monitoring function
exists with commensurate ability to identify and monitor market
conditions and mitigate conduct associated with the exercise of
market power.
(3) A published source of information is available publicly
or through subscription that identifies pricing information for
traded electricity on- and off-peak energy products that are
contracts for delivery beginning at least two years from the date
of the publication and is updated on a regular basis.
The commission shall initiate a proceeding and, within ninety
days after the application's filing date, shall determine by order
whether the electric distribution utility and its market-rate
offer meet all of the
foregoing requirements. If the finding is
positive, the electric distribution utility
may initiate its
competitive bidding process. If the finding is
negative as to one
or more requirements, the commission in the
order shall direct
the
electric distribution utility regarding how any deficiency
may be
remedied in a timely manner to the commission's
satisfaction;
otherwise, the electric distribution utility shall
withdraw the
application. However, if such remedy is made and the
subsequent finding is
positive and also if the electric
distribution utility made a
simultaneous filing under this
section and section 4928.143 of the
Revised Code, the utility
shall not initiate its competitive bid
until at least one hundred
fifty days after the filing date of
those applications.
(C) Upon the completion of the competitive bidding process
authorized by divisions (A) and (B) of this section, including for
the
purpose of division (D) of this section, the commission shall
select the least-cost bid winner or winners of that process, and
such selected bid or bids, as prescribed as retail rates by the
commission, shall be the electric distribution
utility's
standard service offer unless the commission, by order
issued
before the third calendar day following the conclusion of
the
competitive bidding process for the market rate offer,
determines
that one or more of the following criteria were not
met:
(1) Each portion of the bidding process was oversubscribed,
such that the amount of supply bid upon was greater than the
amount of the load bid out.
(2) There were four or more bidders.
(3) At least twenty-five per cent of the load is bid upon by
one or more persons other than the electric distribution utility.
All costs incurred by the electric distribution utility as a
result
of or related
to the competitive bidding process or to
procuring
generation
service to provide the standard service
offer,
including the
costs of energy and capacity and the costs
of all
other products
and services procured as a result of the
competitive
bidding
process, shall be timely recovered through
the standard
service
offer price, and, for that purpose, the
commission shall
approve
a reconciliation mechanism, other
recovery mechanism, or
a
combination of such mechanisms for the
utility.
(D) The first application filed under this section by an
electric distribution
utility that, as of the effective date of
this section, directly
owns, in whole or in part, operating
electric generating
facilities that had been used and useful
in
this state shall
require that a portion
of that utility's
standard service offer
load for the first five
years of the
market
rate offer be
competitively bid under division
(A) of
this
section as follows:
ten per cent of the
load in
year one
and not less
than
twenty per cent in year two,
thirty
per cent
in year
three,
forty per cent in year four, and
fifty
per cent
in year
five. Consistent with those percentages,
the commission
shall determine the actual percentages for each
year of years one
through five.
The
standard service offer price
for
retail
electric
generation service under this first
application
shall
be a
proportionate blend of the bid price
and
the
generation
service
price for the remaining standard
service
offer load,
which
latter
price shall be equal to the electric
distribution
utility's most recent standard service offer price,
adjusted
upward or downward as the commission determines
reasonable,
relative to the jurisdictional portion of any
known
and
measurable changes from the level of any one or more of the
following costs as reflected in that most recent standard service
offer price:
(1) The electric distribution utility's prudently incurred
cost of fuel used to produce electricity;
(2) Its prudently incurred purchased power costs;
(3) Its prudently incurred costs of satisfying the supply and
demand portfolio
requirements of this state, including, but not
limited to,
renewable energy resource and energy efficiency
requirements;
(4) Its costs prudently incurred to comply with environmental
laws and regulations, with consideration of the derating of any
facility associated with those costs.
In making any adjustment to the most recent standard service
offer price on the basis of costs described in division (D) of
this section, the commission shall include the benefits that may
become available to the electric distribution utility as a result
of or in connection with the costs included in the adjustment,
including, but not limited to, the utility's receipt of emissions
credits or its receipt of tax benefits or of other benefits, and,
accordingly, the commission may impose such conditions on the
adjustment to ensure that any such benefits are properly aligned
with the associated cost responsibility. The
commission shall
also determine how such adjustments will affect
the electric
distribution utility's return on common equity that
may be
achieved by those adjustments. The commission shall not
apply its
consideration of the return on common equity to reduce
any
adjustments authorized under this division unless the
adjustments
will cause the electric distribution utility to earn a
return on
common equity that is significantly in excess of the
return on
common equity that is earned by publicly traded
companies,
including utilities, that face comparable business and
financial
risk, with such adjustments for capital structure as may
be
appropriate. The burden of proof for demonstrating that
significantly excessive earnings will not occur shall be on the
electric distribution utility.
Additionally, the commission may adjust the electric
distribution utility's most recent standard service offer price by
such just and reasonable amount that the commission determines
necessary to address any emergency that threatens the utility's
financial integrity or to ensure that the resulting revenue
available to the utility for providing the standard service offer
is not so inadequate as to result, directly or indirectly, in a
taking of property without compensation pursuant to Section 19 of
Article I, Ohio Constitution. The electric
distribution utility
has the burden of demonstrating that any
adjustment to its most
recent standard service offer price is
proper in accordance with
this division.
(E) Beginning in the second year of a blended price under
division (D) of this section and notwithstanding any other
requirement of this section, the commission may alter
prospectively the proportions specified in that division to
mitigate any effect of an abrupt or significant change in the
electric
distribution utility's standard service offer price that
would
otherwise result in general or with respect to any rate
group or
rate schedule but for such alteration. Any such
alteration shall
be made not more often than annually, and the
commission shall
not, by altering those proportions and in any
event, including because of the length of time, as authorized
under division (C) of this section, taken to approve the market
rate offer, cause the
duration of the blending period to exceed
ten years as counted
from the effective date of the approved
market rate offer.
Additionally, any such alteration shall be
limited to an
alteration affecting the prospective proportions
used during the
blending period and shall not affect any blending
proportion
previously approved and applied by the commission
under this
division.
(F) An electric distribution utility that has received
commission approval of its first application under division (C) of
this section shall not, nor ever shall be authorized or required
by the commission to, file an
application under section 4928.143
of the Revised Code.
Sec. 4928.143. (A) For the purpose of complying with section
4928.141 of the Revised Code, an electric distribution utility may
file an application for public utilities commission approval of an
electric security plan as prescribed under division (B) of this
section. The utility may file that application prior to the
effective date of any rules the commission may adopt for the
purpose of this section, and, as the commission determines
necessary, the utility immediately shall conform its filing to
those rules upon their taking effect.
(B) Notwithstanding any other provision of Title XLIX of the
Revised Code to the contrary except division (D) of this section,
divisions (I), (J), and (K) of section 4928.20, division (E) of
section 4928.64, and section 4928.69 of the Revised Code:
(1) An electric
security plan shall include provisions
relating to the supply and
pricing of electric generation
service. In addition, if the proposed electric security plan has a
term longer than three years, it may include provisions in the
plan to permit the commission to test the plan
pursuant to
division (E) of this section and any transitional
conditions that
should be adopted by the commission if the
commission terminates
the plan as authorized under that division.
(2) The plan may
provide for or include, without limitation,
any of the following:
(a) Automatic recovery of any of the following costs of the
electric distribution utility, provided the cost is prudently
incurred:
the cost of fuel used to
generate the electricity
supplied under the
offer; the cost of purchased power
supplied
under the offer, including the
cost of energy and
capacity, and
including purchased power
acquired from an affiliate; the cost of
emission allowances; and the cost of federally
mandated carbon or
energy
taxes;
(b) A reasonable allowance for construction work in progress
for any of the electric distribution utility's cost of
constructing an electric generating facility or
for an
environmental expenditure for any electric generating
facility of
the electric distribution utility, provided the cost is incurred
or the expenditure occurs
on or after January 1, 2009. Any such
allowance shall be subject
to the construction work in progress
allowance limitations of
division (A) of section 4909.15 of the
Revised Code, except that
the commission may authorize such an
allowance upon the incurrence
of the cost or occurrence of the
expenditure. No such allowance
for generating
facility
construction shall be authorized,
however, unless the
commission
first determines in the proceeding
that there is need
for the
facility based on resource planning
projections submitted
by the
electric distribution utility. Further, no such allowance shall be
authorized unless the facility's construction was sourced through
a competitive bid process, regarding which process the commission
may adopt rules. An allowance approved under division (B)(2)(b) of
this section shall
be
established as a nonbypassable surcharge
for
the life of the facility.
(c) The establishment of a nonbypassable
surcharge for the
life of an electric generating facility that is owned or operated
by the electric distribution utility, was sourced through a
competitive bid process subject to any such rules as the
commission adopts under division (B)(2)(b) of this section, and is
newly used and useful on or
after January 1,
2009, which
surcharge shall cover all costs of the utility
specified in the
application, excluding costs recovered through a
surcharge under
division (B)(2)(b) of this section. However, no surcharge shall
be authorized unless the commission first
determines in the
proceeding that there is need for the facility
based on resource
planning projections submitted by the electric distribution
utility.
Additionally, if a surcharge is authorized for a
facility pursuant
to plan approval under division (C) of this
section and as a
condition of the continuation of the surcharge,
the electric distribution utility shall
dedicate to Ohio
consumers the capacity and energy and the rate associated with the
cost of
that facility. Before the commission authorizes any
surcharge
pursuant to this division, it may consider, as
applicable, the
effects of any decommissioning, deratings, and
retirements.
(d) Terms, conditions, or charges relating to limitations on
customer shopping for retail electric generation service,
bypassability, standby, back-up, or supplemental power service,
default
service, carrying costs,
amortization periods, and
accounting or
deferrals, including
future
recovery of such
deferrals, as would
have the effect of
stabilizing or providing
certainty regarding
retail electric
service;
(e) Automatic increases or decreases in any component of the
standard service offer price;
(f) Provisions for the electric distribution utility to
securitize any phase-in,
inclusive of
carrying charges, of the
utility's standard service
offer price, which phase-in is
authorized in accordance with section
4928.144 of the Revised
Code; and
provisions for the recovery of
the utility's
cost of
securitization.
(g) Provisions relating to transmission, ancillary,
congestion, or any related service required for the standard
service offer, including provisions for the recovery of any cost
of such service that the electric distribution utility incurs on
or after that date pursuant to the standard
service offer;
(h) Provisions regarding the utility's distribution service,
including,
without limitation and notwithstanding any provision
of Title XLIX
of the Revised Code to the contrary, provisions
regarding single
issue ratemaking, a revenue decoupling mechanism
or any other incentive
ratemaking, and provisions regarding
distribution infrastructure
and
modernization
incentives for
the electric distribution utility. The latter may include a
long-term
energy delivery
infrastructure
modernization plan for
that
utility or any plan
providing for the
utility's recovery
of
costs, including lost
revenue, shared savings, and avoided
costs,
and a just and
reasonable rate of
return on such
infrastructure
modernization. As part of
its determination as to
whether to allow in an electric
distribution utility's electric
security plan inclusion of any
provision described in division
(B)(2)(h) of this section, the
commission shall examine the
reliability of the electric
distribution utility's distribution
system and ensure that
customers' and the electric distribution
utility's expectations
are aligned and that the electric
distribution utility is placing
sufficient emphasis on and
dedicating sufficient resources to the
reliability of its
distribution system.
(i) Provisions under which the electric distribution utility
may implement
economic development, job retention, and energy
efficiency
programs, which
provisions may allocate program costs
across all
classes of
customers of the utility and those of
electric distribution utilities in the
same
holding company
system.
(C)(1) The burden of proof in the proceeding shall be on the
electric distribution utility. The commission shall issue an order
under this division
for an initial application under this section
not later than one hundred fifty days after
the application's
filing date and, for any subsequent application
by the utility
under this section, not later than two hundred
seventy-five days
after the application's filing date. Subject to
division (D) of
this
section, the commission by order shall
approve or modify
and
approve an application filed under division
(A) of this
section if
it finds that the electric security plan
so approved,
including
its pricing and all other terms and
conditions,
including any
deferrals and any future recovery of
deferrals, is
more
favorable in
the aggregate as compared to the
expected
results
that would
otherwise apply under section
4928.142 of
the Revised
Code. Additionally, if the commission so
approves an
application
that contains a surcharge under division
(B)(2)(b)
or
(c) of
this section, the commission shall ensure
that the
benefits
derived for any purpose for which the surcharge
is
established
are
reserved and made available to those that bear
the
surcharge.
Otherwise, the commission by order shall
disapprove
the
application.
(2)(a) If the commission modifies and approves an application
under division (C)(1) of this section, the electric distribution
utility may withdraw the application, thereby terminating it, and
may file a new standard service offer under this section or a
standard service offer under section 4928.142 of the Revised Code.
(b) If the utility terminates an application pursuant to
division (C)(2)(a) of this section or if the commission
disapproves an application under division (C)(1) of this section,
the commission shall issue such order as is necessary to continue
the provisions, terms, and conditions of
the utility's most recent
standard service offer, along with any
expected increases or
decreases in fuel costs from those contained
in that offer, until
a subsequent offer is authorized pursuant to
this section or
section 4928.142 of the Revised Code,
respectively.
(D) Regarding the rate plan requirement of division (A) of
section 4928.141 of the Revised Code, if an electric distribution
utility that has a rate
plan that extends beyond December 31,
2008, files an application
under this section for the purpose of
its compliance with division
(A) of section 4928.141 of the
Revised Code, that rate plan
and
its terms and conditions are
hereby incorporated into its proposed
electric security plan and
shall continue in effect until the date
scheduled under the rate
plan for its expiration, and that portion
of the electric
security plan shall not be subject to commission
approval or
disapproval under division (C) of this section, and the earnings
test
provided for in division (F) of this section shall not apply
until
after the expiration of the rate plan.
However, that
utility may include in its electric security plan
under this
section, and the commission may approve, modify and
approve, or
disapprove subject to division (C) of this section,
provisions
for the incremental recovery or the deferral of any
costs that
are not being recovered under the rate plan and that
the utility
incurs during that continuation period to comply with
section
4928.141, division (B) of section 4928.64, or division (A)
of
section 4928.66 of the Revised Code.
(E) If an electric security plan approved under division (C)
of this section, except one withdrawn by the utility as authorized
under that division, has a term, exclusive of phase-ins or
deferrals, that exceeds three years from the effective date of the
plan, the commission shall test the plan in the fourth year, and
if applicable, every fourth year thereafter, to determine whether
the plan, including its then-existing pricing and all other terms
and conditions, including any deferrals and any future recovery of
deferrals, continues to be more favorable in the aggregate and
during
the remaining term of the plan as compared
to the
expected
results that would otherwise apply under section
4928.142 of the
Revised Code. The
commission shall also
determine the prospective effect of the
electric security plan to
determine if that effect is
substantially likely to provide the
electric distribution utility
with a return on common equity that
is significantly in excess of
the return on common equity that is
likely to be earned by
publicly traded companies, including
utilities, that face
comparable business and financial risk, with
such adjustments for
capital structure as may be appropriate. The
burden of proof for
demonstrating that significantly excessive
earnings will not occur
shall be on
the electric distribution
utility. If the test results are in the
negative or the
commission finds that continuation of the electric
security plan
will result in a return on equity that is
significantly in excess
of the return on common equity that is
likely to be earned by
publicly traded companies, including
utilities, that will face
comparable business and financial risk,
with such adjustments for
capital structure as may be appropriate,
during the balance of
the plan, the
commission may
terminate the electric security
plan, but not
until it shall have provided interested parties
with notice
and
an opportunity to be heard. The commission may
impose such
conditions on
the plan's termination as it considers
reasonable
and necessary to
accommodate the transition from an
approved
plan to the more
advantageous alternative. In the event
of an
electric security plan's termination
pursuant to this
division,
the commission
shall permit the continued deferral and
phase-in
of any amounts
that occurred prior to that termination
and the
recovery of those amounts as contemplated under that
electric
security plan.
(F) With regard to the provisions that are included in an
electric security plan under this section, the commission shall
consider, following the end of each annual period of the plan, if
any such adjustments resulted in excessive earnings as measured by
whether the earned return on common equity of the electric
distribution utility is significantly in excess of the return on
common equity that was earned during the same period by publicly
traded companies, including utilities, that face comparable
business and financial risk, with such adjustments for capital
structure as may be appropriate. Consideration also shall be given
to the capital requirements of future committed investments in
this state. The burden of proof for
demonstrating that
significantly excessive earnings did not occur
shall be on the
electric distribution utility. If the commission
finds that such
adjustments, in the aggregate, did result in
significantly
excessive earnings, it shall require the electric
distribution
utility to return to consumers the amount of the
excess by
prospective adjustments; provided that, upon making such
prospective adjustments, the electric distribution utility shall
have the right to terminate the plan and immediately file an
application pursuant to section 4928.142 of the Revised Code. Upon
termination of a plan under this division, rates shall be set on
the same basis as specified in division (C)(2)(b) of this section,
and the commission shall permit the continued deferral and
phase-in of any amounts that occurred prior to that termination
and the recovery of those amounts as contemplated under that
electric security plan. In making its determination of
significantly excessive earnings under this division, the
commission shall not consider, directly or indirectly, the
revenue, expenses, or earnings of any affiliate or parent
company.
Sec. 4928.144. The public utilities commission by order may
authorize
any just and reasonable phase-in of any electric
distribution utility
rate or
price established under sections
4928.141 to 4928.143 of the Revised Code,
and
inclusive of
carrying charges, as the commission considers
necessary to ensure
rate or price stability for consumers. If the
commission's order
includes such a
phase-in, the order also shall provide for the
creation of
regulatory assets pursuant to generally accepted
accounting principles, by authorizing the
deferral
of
incurred
costs equal to
the amount not collected,
plus
carrying charges
on
that amount.
Further, the order shall
authorize the
collection of
those
deferrals through a
nonbypassable surcharge
on any such rate or price so established
for the electric
distribution utility by the commission.
Sec. 4928.145. During a proceeding under sections 4928.141
to 4928.144 of the Revised Code and upon submission of an
appropriate discovery request, an electric distribution utility
shall make available to the requesting party every contract or
agreement that is between the utility or any of its affiliates and
a party to the proceeding, consumer, electric services company, or
political subdivision and that is relevant to the proceeding,
subject to such protection for proprietary or confidential
information as is determined appropriate by the public utilities
commission.
Sec. 4928.146. Nothing in sections 4928.141 to 4928.145 of
the Revised Code precludes or prohibits an electric distribution
utility providing
competitive retail electric service to electric
load centers
within the certified territory of another such
utility.
Sec. 4928.151. The public utilities commission shall adopt
and enforce rules prescribing a uniform, statewide policy
regarding electric transmission and distribution line extensions
and requisite substations and related facilities that are
requested by nonresidential customers of electric utilities, so
that, on and after the effective date of the initial rules so
adopted, all such utilities apply the same policies and charges to
those customers. Initial rules shall be adopted not later than six
months after the effective date of this section. The rules shall
address the just and reasonable allocation to and utility recovery
from the requesting customer or other customers of the utility of
all costs of any such line extension and any requisite substation
or related facility, including, but not limited to, the costs of
necessary technical studies, operations and maintenance costs, and
capital costs, including a return on capital costs.
Sec. 4928.17. (A) Except as otherwise provided in sections
4928.142 or 4928.143 or
4928.31 to 4928.40 of the Revised Code and
beginning
on the
starting date of competitive retail electric
service, no
electric
utility
shall engage in this state, either
directly or
through an
affiliate, in the
businesses of supplying
a
noncompetitive retail
electric service
and supplying a
competitive retail electric
service, or in the
businesses of
supplying a noncompetitive retail
electric service
and supplying
a product or service other than
retail electric
service, unless
the utility implements and
operates under a
corporate separation
plan that is approved by the
public utilities
commission under
this section, is consistent with
the policy
specified in section
4928.02 of the Revised Code, and
achieves all of the following:
(1) The plan provides, at minimum, for the provision of the
competitive retail electric service or the nonelectric product or
service through a fully separated affiliate of the utility, and
the plan
includes separate accounting requirements, the code of
conduct as
ordered by
the commission pursuant to a rule it shall
adopt under division (A)
of section 4928.06 of the Revised Code,
and such other measures as are
necessary to
effectuate the policy
specified
in section 4928.02 of the Revised Code.
(2) The plan satisfies the public interest in preventing
unfair
competitive advantage and preventing the abuse of market
power.
(3) The plan is sufficient to ensure that the utility will
not
extend any undue preference or advantage to any affiliate,
division, or
part of its own business engaged in the business of
supplying the
competitive retail electric service or nonelectric
product or service,
including, but not limited to, utility
resources such as trucks, tools, office
equipment, office space,
supplies, customer and marketing information,
advertising, billing
and mailing systems, personnel, and training, without
compensation
based upon fully loaded embedded costs charged to the affiliate;
and to
ensure that any such affiliate, division, or part will not
receive undue preference or advantage from any affiliate,
division, or part of the business engaged in business of supplying
the noncompetitive retail electric service. No such utility,
affiliate, division, or part shall extend such undue preference.
Notwithstanding any other division of this section, a utility's
obligation
under division (A)(3) of this section shall be
effective
January 1, 2000.
(B) The commission may approve, modify and approve, or
disapprove
a corporate separation plan filed with the commission
under division
(A) of this section. As part of the code of conduct
required under
division (A)(1) of this section, the commission
shall adopt rules
pursuant to division (A) of section 4928.06 of
the Revised Code
regarding corporate separation and procedures for
plan filing and approval.
The rules shall include limitations on
affiliate practices solely for the
purpose of
maintaining a
separation of the affiliate's business from the
business of the
utility to prevent unfair competitive
advantage by virtue of that
relationship. The rules also shall
include an opportunity for any
person having a real and substantial interest
in the corporate
separation plan to file specific objections to the plan and
propose specific
responses to issues
raised in the objections,
which objections and responses the
commission shall address in its
final order. Prior to commission
approval of the plan, the
commission shall afford a hearing upon
those aspects of the plan
that the commission determines
reasonably require a hearing. The
commission may reject and
require refiling of a substantially
inadequate plan under this
section.
(C) The commission shall issue an order approving or
modifying
and approving a corporate separation plan under this
section, to be effective
on the date specified in the
order, only
upon findings that the plan reasonably complies with
the
requirements of division (A) of this section and will provide
for
ongoing compliance with the policy specified in section 4928.02 of
the
Revised Code. However, for good cause shown, the commission
may issue an
order approving or modifying and approving a
corporate separation plan under
this section that does not comply
with division (A)(1) of this section but
complies with such
functional separation requirements as the commission
authorizes to
apply for an interim period prescribed in the order, upon a
finding that such alternative plan will provide for ongoing
compliance with
the policy specified in section 4928.02 of the
Revised Code.
(D) Any party may seek an amendment to a corporate separation
plan approved under this section, and the commission, pursuant to
a request
from any party or on its own initiative, may order as
it
considers necessary the filing of an amended corporate
separation
plan to reflect changed circumstances.
(E) Notwithstanding section 4905.20, 4905.21, 4905.46, or
4905.48
of the Revised Code, an No electric distribution
utility
may divest
itself of shall sell or transfer any
generating
asset
it wholly or partly owns at any
time
without obtaining prior
commission approval,
subject to the
provisions of Title
XLIX of
the Revised Code
relating to the
transfer of transmission,
distribution, or
ancillary service
provided by such generating
asset.
Sec. 4928.20. (A) The legislative authority of a
municipal
corporation may adopt an ordinance, or the board of township
trustees of a township or the board of county commissioners of a
county may adopt a resolution, under which, on or after the
starting
date of competitive retail electric service, it may
aggregate in
accordance with this section the retail electrical
loads located,
respectively, within the municipal corporation,
township, or
unincorporated area of the county and, for that
purpose, may enter
into service agreements to facilitate for those
loads the sale and
purchase of electricity. The legislative
authority or board also
may exercise such authority jointly with
any other such
legislative authority or board. For customers that
are not mercantile commercial customers, an ordinance or
resolution under
this division shall specify whether the
aggregation will occur
only with the prior, affirmative consent of
each person owning, occupying,
controlling, or using an electric
load center proposed to be
aggregated or will occur automatically
for all such persons
pursuant to the opt-out requirements of
division (D) of this
section. The aggregation of mercantile
commercial customers shall occur only with the prior, affirmative
consent of each such person owning, occupying, controlling, or
using an electric load center proposed to be aggregated. Nothing
in this division, however, authorizes the aggregation of
the
retail electric
loads of an electric load center, as defined in
section 4933.81 of the Revised
Code, that is
located in the
certified territory of
a nonprofit electric supplier under
sections 4933.81 to 4933.90 of the Revised
Code or an
electric
load center served by
transmission or distribution facilities of a
municipal electric utility.
(B) If an ordinance or resolution adopted under division (A)
of
this section specifies that aggregation of customers that are
not mercantile commercial customers will occur automatically
as
described in that division, the ordinance or resolution shall
direct the
board of elections to submit the question of the
authority to aggregate to the electors of the respective municipal
corporation, township, or unincorporated area of a county at a
special election on the day of the next primary or general
election in the municipal corporation, township, or county. The
legislative authority or board shall certify a copy of the
ordinance or resolution to the board of elections not less than
seventy-five days before the day of the special election. No
ordinance or resolution adopted under division (A) of this section
that provides for an election under this division shall take
effect unless approved by a majority
of the electors voting upon
the ordinance or resolution at the election held
pursuant to this
division.
(C) Upon the applicable requisite authority under divisions
(A)
and (B) of this section, the legislative authority or board
shall
develop a plan of operation and governance for the
aggregation
program so authorized. Before adopting a plan under
this
division, the legislative authority or board shall hold at
least
two public hearings on the plan. Before the first hearing,
the
legislative authority or board shall publish notice of the
hearings once a week for two consecutive weeks in a newspaper of
general circulation in the jurisdiction. The notice shall
summarize the plan and state the date, time, and location of each
hearing.
(D) No legislative authority or board, pursuant to an
ordinance or
resolution under divisions (A) and (B) of this
section that
provides for automatic aggregation of customers that
are not mercantile commercial customers as described in division
(A) of
this section, shall aggregate the electrical load of any
electric load center
located within its
jurisdiction unless it in
advance clearly discloses to the person owning,
occupying,
controlling,
or using the load center that the person will be
enrolled
automatically in the aggregation program and will remain
so
enrolled unless the person affirmatively elects by a stated
procedure not to be so enrolled. The disclosure shall state
prominently the rates, charges, and other terms and conditions of
enrollment. The stated procedure shall allow any person enrolled
in the
aggregation program the opportunity to opt out of the
program every two three years,
without paying a switching fee. Any
such
person that opts out before the commencement of the
aggregation
program pursuant to
the
stated procedure shall
default to the
standard service offer
provided under division (A)
of section
4928.14 or division (D) of
section 4928.35 of the
Revised Code
until the person chooses an
alternative supplier.
(E)(1) With respect to a governmental aggregation for a
municipal
corporation that is authorized pursuant to divisions (A)
to (D) of
this section, resolutions may be proposed by initiative
or referendum
petitions in accordance with sections 731.28 to
731.41 of the
Revised Code.
(2) With respect to a governmental aggregation for a township
or
the unincorporated area of a county, which aggregation is
authorized
pursuant to divisions (A) to (D) of this section,
resolutions
may be proposed by initiative or referendum petitions
in accordance with
sections 731.28 to 731.40 of the Revised Code,
except
that:
(a) The petitions shall be filed, respectively, with the
township
fiscal officer or the board of county commissioners, who
shall perform those duties
imposed under those
sections upon the
city auditor or village clerk.
(b) The petitions shall contain the signatures of not less
than
ten per cent of the total number of electors in,
respectively, the township or
the unincorporated area
of the
county who voted for the office of governor at the
preceding
general election for that office in that area.
(F) A governmental aggregator under division (A) of this
section
is not a public utility engaging in the wholesale purchase
and resale of
electricity, and provision of the aggregated service
is not a wholesale
utility
transaction. A governmental aggregator
shall be subject to
supervision and regulation by the public
utilities commission only
to the extent of any competitive retail
electric service it
provides and commission authority under this
chapter.
(G) This section does not apply in the case of a municipal
corporation that supplies such aggregated service to electric load
centers to which its municipal electric utility also supplies a
noncompetitive retail electric service through transmission or
distribution facilities the utility singly or jointly owns or
operates.
(H) A governmental aggregator shall not include in its
aggregation the accounts of any of the following:
(1) A customer that has opted out of the aggregation;
(2) A customer in contract with a certified competitive
electric services company
retail electric services provider;
(3) A customer that has a special contract with an electric
distribution utility;
(4) A customer that is not located within the governmental
aggregator's governmental boundaries;
(5) Subject to division (C) of section 4928.21 of the Revised
Code, a customer who appears on the "do not aggregate" list
maintained under that section.
(I) Customers that are part of a governmental aggregation
under this section shall be responsible only for such portion of a
surcharge under section 4928.144 of the Revised Code that is
proportionate to the benefits, as determined by the commission,
that the governmental aggregation's customers as an aggregated
group receive. The proportionate surcharge so established shall
apply to each customer of the governmental aggregation while the
customer is part of that aggregation. If a customer ceases being
such a customer, the otherwise applicable surcharge shall apply.
Nothing in this section shall result in less than full recovery by
an electric distribution utility of any surcharge authorized under
section 4928.144 of the Revised Code.
(J) On behalf of the customers that are part of a
governmental aggregation under this section and by filing written
notice with the public utilities commission, the legislative
authority that formed or is forming that governmental aggregation
may elect not to receive standby service within the meaning of
division (B)(2)(e) of section 4928.143 of the Revised Code from an
electric distribution utility in whose certified territory the
governmental aggregation is located and that operates under an
approved electric security plan under that section. Upon the
filing of that notice, the electric distribution utility shall not
charge any such customer to whom electricity is delivered under
the governmental aggregation for the standby service. Any such
consumer that returns to the utility for competitive retail
electric service shall pay the market price of power incurred by
the utility to serve that consumer plus any amount attributable to
the utility's cost of compliance with the alternative energy
resource provisions of section 4928.64 of the Revised Code to
serve the consumer. Such market price shall include, but not be
limited to, capacity and energy charges; all charges associated
with the provision of that power supply through the regional
transmission organization, including, but not limited to,
transmission, ancillary services, congestion, and settlement and
administrative charges; and all other costs incurred by the
utility that are associated with the procurement, provision, and
administration of that power supply, as such costs may be approved
by the commission. The period of time during which the market
price and alternative energy resource amount shall be so assessed
on the consumer shall be from the time the consumer so returns to
the electric distribution utility until the expiration of the
electric security plan. However, if that period of time is
expected to be more than two years, the commission may reduce the
time period to a period of not less than two years.
(K) The commission shall adopt rules to encourage and promote
large-scale governmental aggregation in this state. For that
purpose, the commission shall conduct an immediate review of any
rules it has adopted for the purpose of this section that are in
effect on the effective date of the amendment of this section by
S.B. 221 of the 127th general assembly. Further, within the
context of an electric security plan under section 4928.143 of the
Revised Code, the commission shall consider the effect on
large-scale governmental aggregation of any nonbypassable
generation charges, however collected, that would be established
under that plan, except any nonbypassable generation charge that
relates to a cost incurred by the electric distribution utility,
the deferral of which has been authorized by the commission prior
to the effective date of the amendment of this section by S.B. 221
of the 127th general assembly.
Sec. 4928.24. The public utilities commission shall employ a
federal energy advocate to monitor the activities of the federal
energy regulatory commission and other federal agencies and to
advocate on behalf of the interests of retail electric service
consumers in this state. The attorney general shall represent the
advocate before the federal energy regulatory commission and other
federal agencies. Among other duties assigned to the advocate by
the commission, the advocate shall examine the value of the
participation of this state's electric utilities in regional
transmission organizations and submit a report to the public
utilities commission on whether continued participation of those
utilities is in the interest of those consumers.
Sec. 4928.31. (A) Not later than ninety days after the
effective date of this section, an electric utility supplying
retail electric
service in this state on that date
shall file with
the public utilities commission a plan for the
utility's provision
of retail electric service in this state
during the market
development period. This transition plan shall
be in such form as
the commission shall prescribe by rule adopted
under division (A)
of section 4928.06 of the Revised Code and
shall include all of
the following:
(1) A rate unbundling plan that specifies, consistent with
divisions (A)(1) to (7) of section 4928.34 of the Revised Code and
any rules adopted by the commission under division (A) of section
4928.06 of the Revised Code, the unbundles components for electric
generation, transmission, and distribution service and such other
unbundled
service components as the commission requires, to be
charged by the utility beginning on the starting date of
competitive retail electric service and that includes information
the commission requires to fix and determine those components;
(2) A corporate separation plan consistent with section
4928.17
of the Revised Code and any rules adopted by the
commission
under division (A) of section 4928.06 of the Revised
Code;
(3) Such plan or plans as the commission requires to address
operational support systems and any other technical implementation
issues pertaining to competitive retail electric service
consistent with any rules adopted by the commission under division
(A) of section 4928.06 of the Revised Code;
(4) An employee assistance plan for providing severance,
retraining, early
retirement, retention,
outplacement, and other
assistance for the utility's employees
whose employment is
affected by electric industry restructuring
under this chapter;
(5) A consumer education plan consistent with former section
4928.42 of the Revised
Code and any rules adopted by the
commission under
division (A) of section 4928.06 of the Revised
Code.
A transition plan under this section may include tariff terms
and
conditions to address reasonable requirements for changing
suppliers,
length of commitment by a customer for service, and
such other matters
as are necessary to accommodate electric
restructuring. Additionally, a
transition plan under this section
may include an
application for the opportunity to receive
transition revenues as authorized
under sections 4928.31 to
4928.40 of the Revised Code, which application shall be
consistent
with those sections and any rules adopted by the commission under
division (A) of section 4928.06 of the Revised Code. The
transition plan also
may include a plan for the independent
operation of the utility's
transmission facilities consistent with
section 4928.12 of the Revised Code,
division
(A)(13) of section
4928.34 of the Revised Code, and any rules adopted by the
commission under division (A) of section 4928.06 of the Revised
Code.
The commission may reject and require refiling, in whole or
in
part, of any substantially inadequate transition plan.
(B) The electric utility shall provide public notice of its
filing under division (A) of this section, in a form and manner
that the commission shall prescribe by rule adopted under division
(A) of section 4928.06 of the Revised Code. However, the
adoption
of rules regarding the public notice under this division,
regarding the form of the transition plan under division (A) of
this section, and regarding procedures for expedited discovery
under
division (A) of section 4928.32 of the Revised Code are not
subject to division (D) of section 111.15 of the Revised Code.
Sec. 4928.34. (A) The public utilities commission shall not
approve or prescribe a transition plan under division (A) or
(B)
of section 4928.33 of the Revised Code unless
the commission first
makes all of the following determinations:
(1) The unbundled components for the electric transmission
component of retail electric service, as specified in the
utility's rate
unbundling plan required by
division (A)(1) of
section 4928.31 of the Revised Code, equal the
tariff rates
determined by the federal energy regulatory commission that are
in
effect on the date of the approval of the transition plan under
sections
4928.31 to 4928.40 of the Revised Code, as each such rate
is
determined
applicable to each particular customer class and
rate schedule by the
commission. The unbundled transmission
component shall include a sliding
scale of charges under division
(B) of section 4905.31 of the Revised Code to
ensure that refunds
determined or approved by the federal energy regulatory
commission
are flowed through to retail electric customers.
(2) The unbundled components for retail electric distribution
service in the rate unbundling plan equal the difference between
the costs
attributable to the utility's transmission and
distribution rates
and charges under its schedule of rates and
charges in effect on
the effective date of this section, based
upon the record in the most recent
rate proceeding of the utility
for which the utility's schedule was
established, and the tariff
rates for
electric transmission service determined by the federal
energy
regulatory commission as described in division (A)(1) of
this
section.
(3) All other unbundled components required by the commission
in
the rate unbundling plan equal the costs attributable to the
particular
service as reflected in the utility's schedule of rates
and
charges in effect on the effective date of this section.
(4) The unbundled components for retail electric generation
service in the rate unbundling plan equal the residual amount
remaining
after the determination of the transmission,
distribution, and other
unbundled components, and after any
adjustments necessary to reflect the effects of the amendment of
section
5727.111 of the Revised Code by Sub. S.B. No. 3 of the
123rd general
assembly.
(5) All unbundled components in the rate unbundling plan have
been adjusted to reflect any base rate reductions on file with the
commission
and as scheduled to be in effect by December 31, 2005,
under
rate settlements in
effect on the effective date of this
section. However, all
earnings obligations, restrictions, or caps
imposed on an
electric utility in a commission order prior to the
effective date of this
section are void.
(6) Subject to division (A)(5) of this section, the total of
all
unbundled components in the rate unbundling
plan are capped
and shall equal during the market development period, except
as
specifically provided in this chapter,
the total of all rates and
charges in
effect under the applicable bundled schedule of the
electric utility
pursuant to section 4905.30 of the Revised Code
in effect on the
day before the effective date of this section,
including the transition
charge determined under section 4928.40
of the Revised Code, adjusted for any
changes in the
taxation of
electric utilities and retail electric service under
Sub. S.B. No.
3 of the 123rd General Assembly, the universal
service rider
authorized by section 4928.51 of the Revised Code,
and the
temporary rider authorized by section 4928.61 of the Revised Code.
For the
purpose of
this division, the rate cap applicable to a
customer receiving electric
service pursuant to an
arrangement
approved by the commission under section 4905.31 of the
Revised
Code is, for the term of the arrangement, the total
of all rates
and charges in effect under the
arrangement. For any rate schedule
filed pursuant to section 4905.30 of the Revised Code or any
arrangement subject to approval pursuant to section 4905.31 of the
Revised Code, the initial tax-related adjustment to the rate
cap
required by this division shall be equal to the rate of
taxation
specified in section 5727.81 of the Revised Code and
applicable to
the schedule or arrangement. To the extent such total annual
amount of the tax-related adjustment is greater than or less than
the comparable amount of the total annual tax reduction
experienced by the electric utility as a result of the provisions
of Sub. S.B. No. 3 of the 123RD 123rd
general assembly, such
difference
shall be addressed by the commission through accounting
procedures, refunds,
or an annual surcharge
or credit to
customers, or through other appropriate means, to
avoid placing
the financial
responsibility for the difference upon the electric
utility or its
shareholders. Any adjustments in the rate of
taxation specified
in 5727.81 of the Revised Code section shall
not occur without a
corresponding adjustment to the rate cap for
each such rate
schedule or arrangement. The department of taxation
shall advise
the commission and
self-assessors under section
5727.81 of the Revised Code prior to
the effective date of any
change in the rate of taxation specified
under that
section, and
the commission shall modify the rate cap to reflect
that
adjustment
so that the rate cap adjustment is effective as of the
effective
date of the
change in the rate of taxation. This
division shall be applied,
to the extent possible, to eliminate
any increase in the price of
electricity for customers that
otherwise may occur as a result of
establishing the taxes
contemplated in section 5727.81 of the
Revised Code.
(7) The rate unbundling plan complies with any rules adopted
by
the commission under division (A) of section 4928.06 of the
Revised Code.
(8) The corporate separation plan required by division (A)(2)
of
section 4928.31 of the Revised Code complies with section
4928.17
of the Revised Code and any rules adopted by the
commission
under division (A) of section 4928.06 of the Revised
Code.
(9) Any plan or plans the commission requires to address
operational support systems and any other technical implementation
issues pertaining to competitive retail electric service comply
with any
rules adopted by the commission under division (A) of
section
4928.06 of the Revised Code.
(10) The employee assistance plan required by division (A)(4)
of
section 4928.31 of the Revised Code sufficiently provides
severance,
retraining, early retirement, retention, outplacement,
and other assistance
for the utility's employees whose employment
is affected by electric industry
restructuring under this chapter.
(11) The consumer education plan required under division
(A)(5)
of section 4928.31 of the Revised Code complies with former
section 4928.42
of the Revised Code and any rules adopted by the
commission under
division (A) of section 4928.06 of the Revised
Code.
(12) The transition revenues for which an electric utility is
authorized a
revenue opportunity under sections 4928.31 to 4928.40
of the Revised Code are
the allowable transition costs of the
utility as such costs are determined by
the commission pursuant to
section 4928.39 of the Revised Code, and the
transition charges
for the customer classes and rate schedules of the utility
are the
charges determined pursuant to section 4928.40 of the Revised
Code.
(13) Any independent transmission plan
included in the
transition plan filed under section 4928.31 of the Revised
Code
reasonably
complies with section 4928.12 of the Revised Code and
any
rules adopted by the
commission under division (A) of section
4928.06 of the Revised Code, unless
the commission, for good cause
shown, authorizes the utility to defer
compliance
until an order
is issued under division (G) of section 4928.35
of the Revised
Code.
(14) The utility is in compliance with sections 4928.01 to
4928.11
of the Revised Code and any rules or orders of the
commission
adopted or issued under those sections.
(15) All unbundled components in the rate unbundling plan
have
been adjusted to reflect the elimination of the tax on gross
receipts
imposed by section 5727.30 of the Revised Code.
In addition, a transition plan approved by the commission
under
section 4928.33 of the Revised Code but not containing an
approved independent
transmission plan shall contain the express
conditions that the utility will comply with an order issued under
division
(G) of section 4928.35 of the Revised Code.
(B) Subject to division (E) of section 4928.17 of the
Revised
Code, if the commission finds that any part of the
transition plan
would constitute an abandonment under sections 4905.20 and 4905.21
of the
Revised Code, the commission shall not approve that part of
the transition plan unless it makes the finding required for
approval of
an abandonment application under section 4905.21 of
the
Revised Code. Sections
4905.20 and 4905.21 of the Revised Code
otherwise shall not
apply to a transition plan under sections
4928.31 to 4928.40 of the
Revised Code.
Sec. 4928.35. (A) Upon approval of its transition plan
under
sections 4928.31 to 4928.40 of the Revised Code, an
electric
utility shall file in accordance with section 4905.30 of
the
Revised Code
schedules containing
the unbundled rate
components
set in the approved plan in accordance with
section
4928.34 of the
Revised Code. The schedules shall be in effect for
the
duration of
the utility's market development period, shall be
subject to
the
cap specified in division (A)(6) of section 4928.34
of the Revised
Code,
and shall not be adjusted during that period
by
the public
utilities commission except as otherwise authorized
by
division
(B) of this section or as otherwise authorized by
federal law or
except to reflect any change in tax law or tax
regulation that
has
a material effect on the electric utility.
(B) Efforts shall be made to reach agreements with electric
utilities in matters of litigation regarding property valuation
issues.
Irrespective of those efforts, the unbundled components
for an electric utility's retail electric generation service and
distribution service, as provided in division (A) of this section,
are not subject to adjustment for the utility's market development
period, except that the commission shall order an equitable
reduction in those components for all customer classes to reflect
any refund a utility receives as a result of the resolution of
utility personal property tax valuation litigation that is
resolved on or after the effective date of this section and not
later than
December 31, 2005. Immediately upon the
issuance of
that order, the electric utility shall file revised
rate schedules
under section 4909.18 of the Revised Code to effect
the order.
(C) The schedule under division (A) of this section
containing the
unbundled distribution components shall provide
that electric distribution
service under the schedule will be
available to all retail electric
service customers in the electric
utility's certified territory
and their suppliers on a
nondiscriminatory and comparable basis on and after
the starting
date of competitive retail electric service.
The schedule also
shall include an obligation to build
distribution facilities when
necessary to provide adequate
distribution service, provided that
a customer requesting that
service may be required to pay all or
part of the reasonable
incremental cost of the new facilities, in
accordance with rules,
policy, precedents, or orders of the
commission.
(D) During the market development period, an electric
distribution utility shall provide consumers on a comparable and
nondiscriminatory basis within its certified territory a
standard
service offer of all competitive retail electric services
necessary to maintain essential electric service to consumers,
including a firm supply of electric generation service priced in
accordance with the schedule containing the utility's unbundled
generation service component. Immediately upon approval of its
transition plan, the utility shall file the standard service offer
with the commission under section 4909.18 of the Revised Code,
during the
market development period. The failure of a supplier to
deliver
retail electric generation service shall result in the
supplier's customers, after reasonable notice, defaulting to the
utility's standard service offer filed under this division until
the customer chooses an alternative supplier. A supplier is
deemed
under this section to have failed to deliver such service
if any
of the conditions specified in divisions (B)(1) to (4) of
section
4928.14 of the Revised Code is met.
(E) An amendment of a corporate separation plan contained in
a
transition plan approved by the commission under section 4928.33
of the
Revised Code shall be filed and approved as a corporate
separation plan pursuant to section 4928.17 of the Revised
Code.
(F) Any change to an electric utility's opportunity to
receive
transition revenues under a transition plan approved in
accordance with
section 4928.33 of the Revised Code shall be
authorized
only as provided in sections 4928.31 to 4928.40 of the
Revised
Code.
(G) The commission, by order, shall require each electric
utility
whose approved transition plan did not include an
independent
transmission plan as described in division (A)(13) of
section 4928.34 of the Revised Code to be a member of, and
transfer control of transmission facilities it owns or controls in
this state
to, one or more qualifying transmission entities, as
described in division (B) of section 4928.12 of the Revised Code,
that are planned to be operational on and after December 31, 2003.
However, the commission may extend that date if, for reasons
beyond the
control of the utility, a qualifying transmission
entity is not planned to be
operational on that date. The
commission's order may specify an earlier date on which the
transmission
entity or entities are planned to be
operational if
the commission considers it necessary to carry out the policy
specified in section
4928.02 of the Revised Code or to encourage
effective competition
in retail electric service in this state.
Upon the issuance of the order, each such utility shall file
with
the commission a plan for such independent operation of the
utility's
transmission facilities consistent with this division.
The
commission may reject and require refiling of any
substantially
inadequate plan submitted under this division.
After reasonable notice and opportunity for hearing, the
commission shall approve the plan upon a finding that the plan
will result
in the utility's compliance with the order, this
division, and any rules
adopted under division (A) of section
4928.06 of the Revised Code. The
approved independent
transmission
plan shall be deemed a part of the
utility's
transition plan for
purposes of sections 4928.31 to 4928.40
of the
Revised Code.
Sec. 4928.61. (A) There is hereby established in the state
treasury the advanced energy fund, into which
shall be deposited
all advanced energy revenues remitted to the
director of
development under division (B) of this section, for
the exclusive
purposes of funding the advanced energy program
created under
section 4928.62 of the Revised Code and paying the program's
administrative costs. Interest on the fund shall be credited to
the
fund.
(B) Advanced energy revenues shall include all of the
following:
(1) Revenues remitted to the director after collection by
each
electric distribution utility in this state of a temporary
rider on
retail electric distribution service rates as such rates
are
determined by the public utilities commission pursuant to this
chapter. The rider shall be a uniform amount statewide, determined
by the
director of development, after consultation with the public
benefits
advisory board created by section 4928.58 of the Revised
Code. The
amount shall be determined by dividing an aggregate
revenue target for a given
year as determined by the director,
after consultation with the advisory
board, by the number of
customers of electric distribution utilities in this
state in the
prior year. Such aggregate revenue target shall not exceed more
than fifteen million dollars in any year through 2005 and shall
not exceed
more than five million dollars in any year after 2005.
The rider shall be
imposed beginning on the effective date of the
amendment of this section by Sub. H.B. 251 of the 126th general
assembly, January 4, 2007, and shall terminate at the end of ten
years following the starting date of competitive retail electric
service or until the advanced energy fund, including interest,
reaches one hundred million dollars,
whichever is first.
(2) Revenues from
payments, repayments, and collections
under the advanced energy program and from program
income;
(3) Revenues remitted to the director after collection by
a
municipal electric utility or electric cooperative in this
state
upon the utility's or cooperative's decision to participate in the
advanced energy fund;
(4) Revenues from renewable energy compliance payments as
provided under division (C)(2) of section 4928.64 of the Revised
Code;
(5) Revenue from forfeitures under division (C) of section
4928.66 of the Revised Code;
(6) Interest earnings on the advanced energy fund.
(C)(1) Each electric distribution utility in this state shall
remit to the director on a quarterly basis the revenues described
in divisions
(B)(1) and (2) of this section. Such remittances
shall
occur within thirty days after the end of each calendar
quarter.
(2) Each participating electric cooperative and participating
municipal electric utility shall remit to the director on a
quarterly
basis the revenues described in division (B)(3) of this
section.
Such remittances shall occur within thirty days after
the end of each calendar quarter. For the purpose of division
(B)(3) of this section, the participation of an electric
cooperative or municipal electric utility in the energy efficiency
revolving loan program as it existed immediately prior to the
effective date of the amendment of this section by Sub. H.B. 251
of the 126th general assembly, January 4, 2007, does not
constitute a decision to participate in the advanced energy fund
under this section as so amended.
(3) All remittances under divisions (C)(1) and (2) of this
section shall continue only until the end of ten years following
the
starting date of competitive retail electric service or
until
the advanced energy fund, including interest, reaches
one hundred
million dollars, whichever is first.
(D) Any moneys collected in rates for non-low-income customer
energy efficiency programs, as of October 5, 1999, and not
contributed to the energy efficiency revolving
loan fund
authorized under this section prior to the effective date of its
amendment by Sub. H.B. 251 of the 126th general assembly, January
4, 2007, shall be used to
continue to fund cost-effective,
residential energy efficiency programs, be
contributed into the
universal service fund as a supplement to that required under
section
4928.53 of the Revised Code, or be returned to ratepayers
in the form of a rate reduction at the option of the affected
electric
distribution utility.
Sec. 4928.621. (A) Any Edison technology center in this state
is eligible to apply for and receive assistance pursuant to
section 4928.62 of the Revised Code for the purposes of creating
an
advanced energy manufacturing center in this state that will
provide for the exchange of information and expertise regarding
advanced energy, assisting with the design of advanced energy
projects, developing workforce training programs for such
projects, and encouraging investment in advanced energy
manufacturing technologies for advanced energy products and
investment in sustainable manufacturing operations that create
high-paying jobs in this state.
(B) Any university or group of universities in this state
that
conducts research on any advanced energy resource or any
not-for-profit corporation formed to address issues affecting the
price and availability of electricity and having members that are
small businesses may apply for and
receive assistance pursuant to
section 4928.62 of the Revised Code
for the purpose of
encouraging research in this state that is
directed at innovation
in or the refinement of those resources or
for the purpose of
educational outreach regarding those resources
and, to that end,
shall use that assistance to establish such a
program
of
research or education outreach. Any such educational
outreach
shall be directed at an increase in, innovation
regarding, or
refinement of
access by or of application or
understanding of
businesses and
consumers in this state
regarding, advanced
energy
resources.
(C) Any independent group located in this state the express
objective of which is to educate small businesses in this state
regarding renewable energy resources and energy efficiency
programs, or any small business located in this state electing to
utilize an advanced energy project or participate in an energy
efficiency program, is eligible to apply for and receive
assistance pursuant to section 4928.62 of the Revised Code.
(D) Nothing in this section shall be construed as limiting
the eligibility of any qualifying entity to apply for or receive
assistance pursuant to section 4928.62 of the Revised Code.
Sec. 4928.64. (A)(1) As used in sections 4928.64 and 4928.65
of
the Revised Code, "alternative energy resource" means an
advanced
energy
resource or renewable
energy resource, as
defined in section 4928.01 of the Revised Code that has a
placed-in-service
date of January
1, 1998, or after; or a
mercantile customer-sited
advance energy resource or renewable
energy resource, whether new
or existing, that the mercantile
customer commits for integration
into the electric distribution
utility's demand-response, energy
efficiency, or peak demand
reduction programs as provided under
division (B)(2)(b) of
section 4928.66 of the Revised Code,
including, but not limited
to, any of the following:
(a) A resource that has the effect of improving the
relationship between real and reactive power;
(b) A resource that makes efficient use of waste heat or
other thermal capabilities owned or controlled by a mercantile
customer;
(c) Storage technology that allows a mercantile customer more
flexibility to modify its demand or load and usage
characteristics;
(d) Electric generation equipment owned or controlled by a
mercantile customer that uses an advanced energy resource or
renewable energy resource;
(e) Any advanced energy resource or renewable energy resource
of the mercantile customer that can be utilized effectively as
part of any advanced energy resource plan of an electric
distribution utility and would otherwise qualify as an alternative
energy resource if it were utilized directly by an electric
distribution utility.
(2) For the purpose of this section and as it considers
appropriate, the public utilities commission may classify any new
technology as such an advanced energy resource or a renewable
energy resource.
(B)
By 2025 and thereafter, an electric distribution utility
shall provide
from
alternative energy resources, including, at
its discretion, alternative energy resources obtained pursuant to
an electricity supply contract, a portion of the electricity
supply
required
for
its standard service offer under section
4928.141
of
the
Revised
Code, and an electric services company
shall
provide a
portion of its electricity supply for retail
consumers
in this state from alternative energy resources,
including, at its discretion, alternative energy resources
obtained pursuant to an electricity supply contract. That
portion
shall equal twenty-five per cent of
the
total
number of
kilowatt hours of electricity sold by
the subject
utility or
company
to any and all retail electric consumers whose electric
load
centers
are
served by that utility and are located within
the
utility's
certified
territory or, in the
case of an
electric
services
company, are served by the company and are
located
within this
state.
However,
nothing in this section
precludes
a utility or
company from
providing a
greater
percentage. The
baseline for a utility's or company's compliance
with the
alternative energy resource requirements of this section
shall be
the average of
such total kilowatt hours it sold in the
preceding
three calendar years, except that the commission may
reduce a
utility's or company's baseline to adjust for new
economic growth
in the utility's certified territory or, in the
case of an
electric services company, in the company's service
area in this
state.
Of the alternative energy resources implemented by
the
subject
utility or
company by 2025 and thereafter:
(1) Half may be generated from
advanced energy
resources;
(2) At least half shall be generated from renewable
energy
resources, including one-half
per cent from solar energy
resources, in
accordance with the
following benchmarks:
By end of year |
Renewable energy resources |
Solar energy resources |
2009 |
0.25% |
0.004% |
2010 |
0.50% |
0.010% |
2011 |
1% |
0.030% |
2012 |
1.5% |
0.060% |
2013 |
2% |
0.090% |
2014 |
2.5% |
0.12% |
2015 |
3.5% |
0.15% |
2016 |
4.5% |
0.18% |
2017 |
5.5% |
0.22% |
2018 |
6.5% |
0.26% |
2019 |
7.5% |
0.3% |
2020 |
8.5% |
0.34% |
2021 |
9.5% |
0.38% |
2022 |
10.5% |
0.42% |
2023 |
11.5% |
0.46% |
2024 and each calendar year thereafter |
12.5% |
0.5% |
(3) At least one-half of the renewable energy resources
implemented by
the
utility or company shall
be met
through
facilities located in this state; the remainder
shall be met with
resources that can be shown to be deliverable into this
state.
(C)(1) The commission annually shall review
an electric
distribution utility's or electric services
company's compliance
with the most recent
applicable benchmark
under division (B)(2)
of this section and, in the course of that
review, shall identify
any undercompliance or noncompliance of the
utility or company
that it determines is weather-related, related
to equipment or
resource shortages for advanced energy or
renewable energy
resources as applicable, or is otherwise outside
the utility's or
company's control.
(2) Subject to the cost cap provisions of division (C)(3) of
this section, if
the commission
determines,
after notice
and
opportunity for hearing, and based
upon its findings in that
review regarding avoidable
undercompliance or noncompliance, but
subject to division (C)(4) of this section, that
the
utility or
company
has failed
to comply
with any such
benchmark,
the
commission
shall impose a renewable
energy
compliance
payment
on the
utility or company.
(a) The compliance payment pertaining to the solar energy
resource benchmarks under division (B)(2) of this section shall be
an amount per megawatt hour of undercompliance or noncompliance in
the period under review, starting at four hundred fifty dollars
for 2009, four hundred dollars for 2010 and 2011, and similarly
reduced every two years thereafter through 2024 by fifty dollars,
to a minimum of fifty dollars.
(b) The compliance payment pertaining to
the renewable
energy resource benchmarks under division (B)(2) of this section
shall equal the number of additional
renewable energy credits
that
the electric distribution utility or electric services
company would have
needed to comply with
the
applicable
benchmark in the period
under review times an
amount that shall
begin at forty-five dollars and shall be
adjusted annually by the
commission to reflect any change in the
consumer price index as
defined in section 101.27 of the Revised
Code, but shall not be
less than forty-five dollars.
(c) The compliance payment shall not be passed through by the
electric distribution
utility or electric services company to
consumers. The compliance payment shall be
remitted to
the
commission, for deposit to the credit of the
advanced energy fund
created under section 4928.61 of the Revised
Code. Payment of the
compliance
payment shall be
subject to
such collection and
enforcement
procedures as apply to
the
collection of a
forfeiture under
sections 4905.55 to 4905.60
and 4905.64 of the
Revised Code.
(3) An electric distribution utility or an electric services
company need not comply with a benchmark under division (B)(1) or
(2) of this section to the extent that its reasonably expected
cost of that compliance exceeds its reasonably expected cost of
otherwise producing or acquiring the requisite electricity by
three per cent or more.
(4)(a) An electric distribution utility or electric services
company may request the commission to make a force majeure
determination pursuant to this division regarding all or part of
the utility's or company's compliance with any minimum benchmark
under division (B)(2) of this section during the period of review
occurring pursuant to division (C)(2) of this section. The
commission may require the electric distribution utility or
electric services company to make solicitations for renewable
energy resource credits as part of its default service before the
utility's or company's request of force majeure under this
division can be made.
(b) Within ninety days after the filing of a request by an
electric distribution utility or electric services company under
division (C)(4)(a) of this section, the commission shall determine
if renewable energy resources are reasonably available in the
marketplace in sufficient quantities for the utility or company to
comply with the subject minimum benchmark during the review
period. In making this determination, the commission shall
consider whether the electric distribution utility or electric
services company has made a good faith effort to acquire
sufficient renewable energy or, as applicable, solar energy
resources to so comply, including, but not limited to, by banking
or seeking renewable energy resource credits or by seeking the
resources through long-term contracts. Additionally, the
commission shall consider the availability of renewable energy or
solar energy resources in this state and other jurisdictions in
the PJM interconnection regional transmission organization or its
successor and the midwest system operator or its successor.
(c) If, pursuant to division (C)(4)(b) of this section, the
commission determines that renewable energy or solar energy
resources are not reasonably available to permit the electric
distribution utility or electric services company to comply,
during the period of review, with the subject minimum benchmark
prescribed under division (B)(2) of this section, the commission
shall modify that compliance obligation of the utility or company
as it determines appropriate to accommodate the finding.
Commission modification shall not automatically reduce the
obligation for the electric distribution utility's or electric
services company's compliance in subsequent years. If it modifies
the electric distribution utility or electric services company
obligation under division (C)(4)(c) of this section, the
commission may require the utility or company, if sufficient
renewable energy resource credits exist in the marketplace, to
acquire additional renewable energy resource credits in subsequent
years equivalent to the utility's or company's modified obligation
under division (C)(4)(c) of this section.
(5) The commission shall establish a process to provide for
at least an annual review of the alternative energy resource
market in this
state and in the service territories of the
regional transmission
organizations that manage transmission
systems located in this
state. The commission shall use the
results of this study to
identify any needed changes to the
amount of the renewable
energy
compliance payment specified
under divisions (C)(2)(a) and (b) of
this
section.
Specifically, the commission may increase the
amount
to
ensure
that payment of compliance payments is not used
to
achieve
compliance with this section in lieu of actually
acquiring or
realizing
energy derived from renewable energy
resources.
However, if the
commission
finds that the amount of
the
compliance payment should
be
otherwise changed, the
commission
shall present this finding
to
the general assembly
for
legislative enactment.
(D)(1) The commission annually shall submit to the general
assembly in accordance with section 101.68 of the Revised Code a
report describing the compliance of electric distribution
utilities and electric services companies with division (B) of
this section and any strategy for
utility and company compliance
or for encouraging the use of
alternative
energy resources
in
supplying
this state's electricity needs in
a manner
that
considers
available technology, costs, job creation,
and
economic
impacts. The commission shall allow and consider
public
comments
on the report prior to its submission to the
general
assembly.
Nothing in the report shall be binding on any
person,
including
any utility or company for the purpose of its
compliance
with any
benchmark
under division (B) of this
section, or the
enforcement
of that
provision under division
(C) of this section.
(2) The governor, in consultation with the commission
chairperson,
shall appoint an alternative energy advisory
committee. The
committee shall examine available technology for
and related
timetables, goals, and costs of the alternative
energy resource requirements
under division (B) of this section
and shall
submit to the
commission a semiannual report of its
recommendations.
(E) All costs incurred by an electric distribution
utility
in complying with the
requirements of this section shall be
bypassable by any consumer
that has exercised choice of supplier
under section 4928.03 of the
Revised Code.
Sec. 4928.65. An electric distribution utility or electric
services company may use
renewable energy credits any time in
the
five calendar years following the date of their purchase or
acquisition from any
entity, including, but not limited to, a
mercantile customer or an owner or operator of a hydroelectric
generating facility that is located at a dam on a river, or on any
water discharged to a river, that is
within or bordering this
state or within or bordering an adjoining
state, for
the
purpose of complying with the
renewable energy
and solar
energy
resource
requirements of
division (B)(2) of
section
4928.64 of
the Revised
Code. The
public
utilities
commission
shall adopt
rules
specifying that
one unit of
credit shall
equal one
megawatt
hour
of
electricity derived
from
renewable energy
resources. The
rules
also shall provide
for
this state a
system
of
registering
renewable energy
credits
by specifying
which of
any
generally
available
registries
shall be used for
that
purpose and
not by
creating
a
registry. That selected
system
of
registering
renewable energy credits shall allow a
hydroelectric
generating
facility to be eligible for obtaining
renewable energy
credits
and shall allow customer-sited projects
or actions the
broadest
opportunities to be eligible for
obtaining renewable
energy
credits.
Sec. 4928.66. (A)(1)(a) Beginning in 2009, an electric
distribution
utility
shall implement
energy efficiency programs
that achieve
energy savings equivalent to at least three-tenths
of one per cent
of the total, annual average, and normalized
kilowatt-hour sales of the electric distribution utility during
the preceding three calendar years to customers in this state. The
savings requirement, using such a three-year average, shall
increase to an additional five-tenths of one per
cent in 2010,
seven-tenths of one per cent in 2011, eight-tenths
of one per
cent
in 2012, nine-tenths of one per cent in 2013, one
per cent
from
2014 to 2018, and two per cent each year
thereafter,
achieving a
cumulative, annual energy savings in excess of
twenty-two
per cent by the end of
2025.
(b) Beginning in 2009, an electric distribution utility shall
implement peak demand reduction programs designed to achieve a one
per cent reduction in peak demand in 2009 and an additional
seventy-five hundredths of one per cent reduction each year
through 2018. In 2018, the standing committees in the house of
representatives and the senate primarily dealing with energy
issues shall make recommendations to the general assembly
regarding future peak demand reduction targets.
(2) For the purposes of divisions (A)(1)(a) and (b) of this
section:
(a) The baseline for energy savings under division (A)(1)(a)
of this section shall be the average of the total kilowatt hours
the electric distribution utility sold in the preceding three
calendar years, and the baseline for a peak demand reduction under
division (A)(1)(b) of this section shall be the average peak
demand on the utility in the preceding three calendar years,
except that the commission may reduce either baseline to adjust
for new economic growth in the utility's certified territory.
(b) The commission may amend the benchmarks set forth in
division (A)(1)(a) or (b) of this section if, after application by
the electric distribution utility, the commission determines that
the amendment is necessary because the utility cannot reasonably
achieve the benchmarks due to regulatory, economic, or
technological reasons beyond its reasonable control.
(c) Compliance with divisions (A)(1)(a) and (b) of this
section shall be measured by
including the effects of all
demand-response programs for
mercantile customers of the subject
electric distribution utility and all such mercantile
customer-sited energy efficiency and peak demand reduction
programs, adjusted upward by the appropriate loss factors. Any
mechanism designed to recover the cost of energy efficiency and
peak demand reduction programs under divisions (A)(1)(a) and (b)
of this section may exempt mercantile customers that commit their
demand-response or other customer-sited capabilities, whether
existing or new, for integration into the electric distribution
utility's demand-response, energy efficiency, or peak demand
reduction programs, if the commission determines that that
exemption reasonably encourages such customers to commit those
capabilities to those programs. If a mercantile customer makes
such existing or new demand-response, energy efficiency, or peak
demand reduction capability available to an electric distribution
utility pursuant to division (A)(2)(c) of this section, the
electric utility's baseline under division (A)(2)(a) of this
section shall be adjusted to exclude the effects of all such
demand-response, energy efficiency, or peak demand reduction
programs that may have existed during the period used to establish
the baseline. The baseline also shall be normalized for changes in
numbers of customers, sales, weather, peak demand, and other
appropriate factors so that the compliance measurement is not
unduly influenced by factors outside the control of the electric
distribution utility.
(d) Programs implemented by a utility may include
demand-response programs, customer-sited programs, and
transmission and distribution infrastructure improvements that
reduce line losses. Division (A)(2)(c) of this section shall be
applied to include facilitating efforts by a mercantile customer
or group of those customers to offer customer-sited
demand-response, energy efficiency, or peak demand reduction
capabilities to the electric distribution utility as part of a
reasonable arrangement submitted to the commission pursuant to
section 4905.31 of the Revised Code.
(e) No programs or improvements described in division
(A)(2)(d) of this section shall conflict with any statewide
building code adopted by the board of building standards.
(B) In accordance with rules it shall adopt, the public
utilities commission shall produce and docket at the commission an
annual report containing the results of its verification of the
annual levels of energy efficiency and of peak demand reductions
achieved
by each electric distribution utility pursuant to
division (A) of
this section. A copy of the report shall be
provided to the
consumers' counsel.
(C) If the commission determines, after notice and
opportunity for hearing
and based upon its report under division
(B) of this section, that
an electric distribution utility has
failed to comply with an
energy efficiency or peak demand
reduction
requirement of division (A) of
this section, the
commission shall
assess a
forfeiture on the
utility as provided
under sections
4905.55 to
4905.60 and 4905.64
of the Revised
Code, either in
the amount, per day per
undercompliance or
noncompliance,
relative to the period of the
report, equal to
that prescribed
for
noncompliances under section
4905.54 of the
Revised Code,
or in
an amount equal to the then
existing market
value of one
renewable energy credit per
megawatt hour of
undercompliance
or
noncompliance. Revenue from
any forfeiture
assessed under this
division shall be deposited to
the credit
of the advanced energy
fund created under section
4928.61
of
the Revised Code.
(D) The commission may establish rules regarding the content
of an application by an electric distribution utility for
commission approval of a revenue decoupling mechanism under this
division. Such an application shall not be considered an
application to increase rates and may be included as part of a
proposal to establish, continue, or expand energy efficiency or
conservation programs. The commission by order may approve an
application under this division if it determines both that the
revenue decoupling mechanism provides for the recovery of revenue
that otherwise may be foregone by the utility as a result of or in
connection with the implementation by the electric distribution
utility of any energy efficiency or energy conservation programs
and reasonably aligns the interests of the utility and of its
customers in favor of those programs.
(E) The commission additionally shall adopt rules that
require an electric distribution utility
to provide a customer
upon request with two years' consumption data
in an accessible
form.
Sec. 4928.67. (A)(1) Beginning on the starting date of
competitive retail electric service, a retail electric service
provider in
this state Except as provided in division (A)(2) of
this section, an electric utility shall develop a standard
contract or tariff
providing
for net energy metering.
Any time that the total rated
generating
capacity used
by
customer-generators is less
than one per cent of
the provider's
aggregate customer
peak demand in
this state, the
provider shall
make this
contract or tariff
available to
customer-generators,
upon request
and on a
first-come,
first-served basis. The
That contract or tariff shall be
identical in
rate
structure, all retail rate components, and any
monthly
charges,
to the contract or
tariff to which the same
customer
would be
assigned if that
customer were not a
customer-generator.
(2) An electric utility shall also develop
a separate
standard contract or tariff providing for net
metering for
a
hospital, as defined in section 3701.01 of the
Revised Code,
that is also a customer-generator, subject to all of the
following:
(a) No limitation, including that in
divisions (A)(31)(a)
and (d) of section 4928.01
of
the Revised Code, shall apply
regarding the availability of the
contract or tariff to such
hospital customer-generators.
(b) The contract or tariff shall be based both upon the rate
structure, rate components, and any charges to which the hospital
would
otherwise be assigned if the hospital were not a
customer-generator and upon the market value of the
customer-generated electricity at the time it is generated.
(c) The contract or tariff shall allow the hospital
customer-generator to operate its electric generating facilities
individually or collectively without any wattage limitation on
size.
(2)(B)(1) Net metering under this section shall be
accomplished
using a
single meter capable of registering the flow
of
electricity in each
direction. If its existing electrical
meter is
not capable of measuring
the flow of electricity in two
directions, the customer-generator
shall be responsible for all
expenses involved in purchasing and
installing a meter that is
capable of measuring electricity flow
in two directions.
(3) Such an (2) The electric service provider utility, at its
own expense and
with the written consent of the
customer-generator, may install
one or
more additional meters to
monitor the flow of electricity
in each
direction.
(B)(3) Consistent with the other provisions of this section,
the
measurement of net electricity supplied or generated shall be
calculated
in the following manner:
(1)(a) The electric service provider utility shall measure
the net
electricity produced or consumed during the billing
period, in
accordance with normal metering practices.
(2)(b) If the electricity supplied by the electric service
provider utility
exceeds the electricity generated by the
customer-generator and fed back
to the electric service provider
utility
during the billing period, the
customer-generator shall
be billed
for the net electricity supplied by
the electric
service provider utility,
in accordance with normal metering
practices. If electricity is
provided to the electric service
provider utility, the credits for that
electricity shall appear
in the
next billing cycle.
(C)(1)(4) A net metering system used by a customer-generator
shall
meet all applicable safety and performance standards
established
by the national electrical code, the institute of
electrical and
electronics engineers, and underwriters
laboratories.
(2)(C) The public utilities commission shall adopt rules
relating to
additional control and testing requirements for
customer-generators
which that the commission determines are
necessary
to protect public and
worker safety and system
reliability.
(D) An electric service provider utility shall not require a
customer-generator whose net metering system meets the standards
and
requirements provided for in divisions (B)(4) and (C)(1) and
(D)
of
this section to do any of the following:
(1) Comply with additional safety or performance standards;
(2) Perform or pay for additional tests;
(3) Purchase additional liability insurance.
Sec. 4928.68. To the extent permitted by federal law, the
public
utilities commission shall adopt
rules establishing
greenhouse
gas emission reporting requirements,
including
participation in
the climate registry,
and carbon
dioxide
control
planning requirements
for each electric
generating
facility
that is located in this
state, is owned or operated by
a public
utility that is subject to
the commission's
jurisdiction, and
emits greenhouse
gases,
including facilities
in operation on
the effective date of
this
section.
Sec. 4928.69. Notwithstanding any provision of Chapter 4928.
of the Revised Code and except as otherwise provided in an
agreement filed with and approved by the public utilities
commission under section 4905.31 of the Revised Code, an electric
distribution utility shall not charge any person that is a
customer of a municipal electric utility that is in existence on
or before January 1, 2008, any surcharge, service termination
charge, exit fee, or transition charge.
Sec. 4929.01. As used in this chapter:
(A)
"Alternative rate plan" means a method, alternate to the
method of section 4909.15 of the Revised Code, for establishing
rates and
charges, under
which rates and charges may be
established for a commodity sales service or
ancillary service
that
is not exempt pursuant to section 4929.04 of the Revised Code
or for a distribution service.
Alternative rate plans may
include, but are not
limited to, methods that provide adequate and
reliable natural gas services
and goods in this state; minimize
the costs and time expended in the
regulatory process; tend to
assess the costs of any natural gas service or
goods to the
entity, service, or goods that cause such costs to be incurred;
afford rate stability; promote and reward efficiency, quality of
service, or
cost containment by a natural gas company; or provide
sufficient flexibility
and incentives to the natural gas industry
to achieve high quality,
technologically advanced, and readily
available natural gas services and goods
at just and reasonable
rates and charges; or establish revenue decoupling mechanisms.
Alternative rate plans also may
include, but
are not limited to,
automatic adjustments based on a specified
index or changes in a
specified cost or costs.
(B)
"Ancillary service" means a service that is ancillary to
the
receipt or delivery of natural gas to consumers, including,
but not limited
to, storage, pooling, balancing, and transmission.
(C)
"Commodity sales service" means the sale of natural gas
to
consumers, exclusive of any distribution or ancillary service.
(D)
"Comparable service" means any regulated service or
goods
whose availability, quality, price, terms, and conditions
are the
same as or
better than those of the services or goods that
the
natural gas company
provides to a person with which it is
affiliated or which it controls, or, as
to any consumer, that the
natural gas company offers to that consumer as part
of a bundled
service that includes both regulated and exempt services or
goods.
(E)
"Consumer" means any person or association of persons
purchasing, delivering, storing, or transporting, or seeking to
purchase,
deliver, store, or transport, natural gas, including
industrial consumers,
commercial consumers, and residential
consumers, but not including natural gas
companies.
(F)
"Distribution service" means the delivery of natural gas
to a
consumer at the consumer's facilities, by and through the
instrumentalities
and facilities of a natural gas company,
regardless of the party having title
to the natural gas.
(G)
"Natural gas company" means a natural gas company, as
defined
in section 4905.03 of the Revised Code, that is a public
utility as defined in
section
4905.02 of the Revised Code
and
excludes a retail natural gas supplier.
(H) "Person," except as provided in division (N) of this
section, has the same meaning as in section 1.59 of the Revised
Code, and
includes this state and any political subdivision,
agency, or other
instrumentality of this state and includes the
United States
and any agency or other instrumentality of the
United
States.
(I)
"Billing or collection agent" means a fully independent
agent, not affiliated with or otherwise controlled by a retail
natural gas supplier or governmental aggregator subject to
certification under section
4929.20 of the Revised Code, to the
extent that the agent is under
contract with such supplier or
aggregator solely to provide billing and
collection for
competitive retail natural gas service on behalf of
the supplier
or aggregator.
(J)
"Competitive retail natural gas service" means any
retail
natural gas service that may be competitively offered to
consumers
in this state as a result of revised schedules approved
under
division (C)
of section 4929.29 of the Revised Code, a rule
or
order adopted or issued by the public utilities commission
under
Chapter 4905. of the Revised Code, or an exemption granted
by the
commission under sections 4929.04 to 4929.08 of the Revised
Code.
(K)
"Governmental aggregator" means either of the following:
(1) A legislative authority
of a municipal corporation, a
board of township trustees, or a
board of county commissioners
acting exclusively under section 4929.26 or 4929.27 of the Revised
Code as an aggregator for the
provision of competitive retail
natural gas service;
(2) A municipal corporation acting exclusively under Section
4 of Article XVIII, Ohio Constitution, as an aggregator for the
provision of competitive retail natural gas service.
(L)(1)
"Mercantile customer" means a customer that consumes,
other than for residential use, more than five hundred thousand
cubic feet of natural gas per year at a single location within
this state or consumes natural gas, other than for residential
use, as part of an undertaking having more than three
locations
within or outside of this state.
"Mercantile customer"
excludes a
customer for which a declaration under division (L)(2)
of this
section is in effect pursuant to that division.
(2) A not-for-profit customer that consumes, other than for
residential use, more than five hundred thousand cubic feet of
natural gas per year at a single location within this state or
consumes natural gas, other than for residential use, as
part of
an undertaking having more than three locations within or
outside
this state may file a declaration under division (L)(2) of
this
section with the public utilities commission. The
declaration
shall take effect upon the date of filing, and by
virtue of the
declaration, the customer is not a mercantile
customer for the
purposes of this section and sections 4929.20 to
4929.29 of the
Revised Code or the purposes of a governmental
natural gas
aggregation or arrangement or other contract entered
into after
the declaration's effective date for the supply or
arranging of
the supply of natural gas to the customer to a
location within
this state. The customer may file a rescission of
the declaration
with the commission at any time. The rescission
shall not affect
any governmental natural gas aggregation or
arrangement or other
contract entered into by the customer prior
to the date of the
filing of the rescission and shall have effect
only with respect
to any subsequent such aggregation or
arrangement or other
contract. The commission shall prescribe
rules under section
4929.10 of the Revised Code specifying the
form of the declaration
or a rescission and procedures by which a
declaration or
rescission may be filed.
(M)
"Retail natural gas service" means commodity sales
service, ancillary service, natural gas aggregation service,
natural gas marketing service, or natural gas brokerage service.
(N)
"Retail natural gas supplier" means any person, as
defined in section 1.59 of the Revised Code, that is engaged on a
for-profit or
not-for-profit basis in the business of supplying or
arranging for
the supply of a competitive retail natural gas
service to
consumers in this state that are not mercantile
customers.
"Retail natural gas supplier" includes a
marketer,
broker, or aggregator, but excludes a natural gas
company, a
governmental aggregator as defined in division (K)(1) or (2) of
this section, an entity described in division (B) or
(C) of
section 4905.02 of the Revised Code, or a billing or
collection
agent, and excludes a producer or gatherer of gas to
the extent
such producer or gatherer is not a natural gas company
under
section 4905.03 of the Revised Code.
(O) "Revenue decoupling mechanism" means a rate design or
other cost recovery mechanism that provides recovery of the fixed
costs of service and a fair and reasonable rate of return,
irrespective of system throughput or volumetric sales.
Sec. 4929.02. (A) It is the policy of this state to,
throughout
this state:
(1) Promote the availability to consumers of adequate,
reliable, and
reasonably priced natural gas services and goods;
(2) Promote the availability of unbundled and comparable
natural gas
services and goods that provide wholesale and retail
consumers with the
supplier, price, terms, conditions, and quality
options they elect to meet
their respective needs;
(3) Promote diversity of natural gas supplies and suppliers,
by giving
consumers effective choices over the selection of those
supplies and
suppliers;
(4) Encourage innovation and market access for
cost-effective
supply- and
demand-side natural gas services and
goods;
(5) Encourage cost-effective and efficient access to
information regarding
the operation of the distribution systems of
natural gas companies in order to
promote effective customer
choice of natural gas services and goods;
(6) Recognize the continuing emergence of competitive
natural
gas markets
through the development and implementation of
flexible
regulatory treatment;
(7) Promote an expeditious transition to the provision of
natural gas
services and goods in a manner that achieves effective
competition and
transactions between willing buyers and willing
sellers to reduce or eliminate
the need for regulation of natural
gas services and goods under
Chapters 4905. and 4909. of the
Revised Code;
(8) Promote effective competition in the provision of
natural
gas services
and goods by avoiding subsidies flowing to or
from
regulated natural gas
services and goods;
(9) Ensure that the risks and rewards of a natural gas
company's offering
of nonjurisdictional and exempt services and
goods do not affect the rates,
prices, terms, or conditions of
nonexempt, regulated services and goods of a
natural gas company
and do not affect the financial capability of a natural
gas
company to comply with the policy of this state specified in this
section;
(10) Facilitate the state's competitiveness in the global
economy;
(11) Facilitate additional choices for the supply of natural
gas for residential consumers, including aggregation;
(12) Promote an alignment of natural gas company interests
with consumer interest in energy efficiency and energy
conservation.
(B) The public utilities commission and the office of the
consumers' counsel shall follow the policy
specified in this
section in carrying out exercising their respective authorities
relative to sections 4929.03 to
4929.30 of the Revised Code.
(C) Nothing in Chapter 4929. of the Revised Code shall be
construed to
alter the public utilities commission's construction
or application of
division (A)(6) of section 4905.03 of the
Revised Code.
Sec. 4929.051. An alternative rate plan filed by a natural
gas company under section 4929.05 of the Revised Code and
proposing a revenue decoupling mechanism may be an application not
for an increase in rates if the rates, joint rates, tolls,
classifications, charges, or rentals are based upon the billing
determinants and revenue requirement authorized by the public
utilities commission in the company's most recent rate case
proceeding and the plan also establishes, continues, or expands an
energy efficiency or energy conservation program.
SECTION 2. That existing sections 4905.31, 4928.01,
4928.02,
4928.05, 4928.09, 4928.14,
4928.17,
4928.20, 4928.31,
4928.34,
4928.35, 4928.61,
4928.67,
4929.01, and 4929.02 and
sections
4928.41, 4928.42,
4928.431, and 4928.44
of the
Revised
Code are
hereby
repealed.
SECTION 3. Nothing in this act affects the legal validity or
the force and effect of an electric distribution utility's rate
plan, as defined in section 4928.01 of the Revised Code as amended
by this act, or the plan's terms and conditions, including any
provisions regarding cost recovery.
SECTION 4. Section 4929.051 of the Revised Code, as enacted
by this act, shall not be applied in favor of a claim or finding
that an application described in that section but submitted to the
Public Utilities Commission prior to the act's effective date is
an application to increase rates.
SECTION 5. The Governor's Energy Advisor periodically shall
submit a written report to the General Assembly pursuant to
section 101.68 of the Revised Code and report in person to and as
requested by the standing committees of the House of
Representatives and the Senate that have primary responsibility
for energy efficiency and conservation issues regarding
initiatives undertaken by the Advisor and state government
pursuant to numbered paragraphs 3 and 4 of Executive Order
2007-02S, "Coordinating Ohio Energy Policy and State Energy
Utilization. The first written report shall be submitted not later
than sixty days after the effective date of this act.
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