The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
|
Sub. S. B. No. 221 As Pending in the Senate Energy and Public Utilities CommitteeAs Pending in the Senate Energy and Public Utilities Committee
127th General Assembly | Regular Session | 2007-2008 |
| |
A BILL
To amend sections 122.41, 122.451, 3706.01, 3706.02,
3706.03, 3706.04, 3706.041, 3706.05, 3706.06,
3706.07, 3706.08, 3706.09, 3706.10, 3706.11,
3706.12, 3706.13, 3706.14, 3706.15, 3706.16,
3706.17, 3706.18, 4905.31, 4905.40, 4928.02,
4928.05, 4928.14, 4928.17, 4928.20, and 4928.21
and to
enact
sections 1551.41, 4928.111,
4928.141,
4928.142,
4928.64, 4928.68, and
4928.69 of the
Revised Code
to revise state
energy policy to
address electric
service price
regulation and to provide for new
bonding
authority
for advanced
energy projects,
advanced (including
sustainable resource)
energy
portfolio
standards, energy
efficiency
standards, and
greenhouse gas emission
reporting
and carbon
control planning
requirements.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 122.41, 122.451, 3706.01, 3706.02,
3706.03, 3706.04, 3706.041, 3706.05, 3706.06, 3706.07, 3706.08,
3706.09, 3706.10, 3706.11, 3706.12, 3706.13, 3706.14, 3706.15,
3706.16, 3706.17, 3706.18, 4905.31, 4905.40, 4928.02, 4928.05,
4928.14, 4928.17, 4928.20, and 4928.21 be amended and sections
1551.41,
4928.111,
4928.141, 4928.142, 4928.64, 4928.68, and
4928.69 of
the Revised
Code be enacted to read as follows:
Sec. 122.41. (A) The development financing advisory
council
and the director of development are invested with the
powers and
duties provided in Chapter 122. of the Revised Code,
in order to
promote the welfare of the people of the state, to
stabilize the
economy, to provide employment, to assist in the
development
within the state of industrial, commercial,
distribution, and
research activities required for the people of
the state, and for
their gainful employment, or otherwise to
create or preserve jobs
and employment opportunities, or improve
the economic welfare of
the people of the state, and also to
assist in the financing of
air, water, or thermal pollution
control facilities, advanced
energy facilities, and solid waste disposal facilities by
mortgage
insurance as provided in section 122.451 of the Revised
Code. It
is hereby determined that the accomplishment of such
purposes is
essential so that the people of the state may
maintain their
present high standards in comparison with the
people of other
states and so that opportunities for employment
and for favorable
markets for the products of the state's natural
resources,
agriculture, and manufacturing shall be improved and
that it is
necessary for the state to establish the programs
authorized
pursuant to Chapter 122. of the Revised Code, to
establish the
development financing advisory council, and
to invest
it and the
director of development with the powers and duties
provided in
Chapter 122. of the Revised Code. The powers granted
to the
director of development by Chapter 165. of the Revised
Code are
independent of and in addition and alternate to, and are
not
limited or restricted by, Chapter 122. of the Revised Code.
(B) The development financing advisory council shall:
(1) Make recommendations to the director of development as
to
applications for assistance pursuant to sections 122.39 to
122.62
or Chapter 166. of the Revised Code. The council
may revise its
recommendations to reflect any changes in the proposed assistance
made by the
director.
(2) Advise the director in the administration of sections
122.39 to 122.62 and Chapter 166. of the Revised Code;
(3) Adopt bylaws to govern the conduct of the council's
business.
Sec. 122.451. Upon application of any person, partnership,
or corporation, or upon application of any community improvement
corporation organized as provided in section 1724.01 of the
Revised Code, the director of development, with controlling board
approval, may, pledging therefor moneys in the mortgage insurance
fund created by section 122.561 of the Revised Code, insure or
make advance commitments to insure not more than ninety per cent
of any mortgage payments required. Before insuring any such
mortgage payments the director shall determine that:
(A) The project, in accordance with Section 13 of Article
VIII, Ohio Constitution, will create or preserve jobs and
employment opportunities, or improve the economic welfare of the
people of the state, or be an air quality facility, advanced
energy facility, waste water
facility, or solid waste facility, as
defined in section 3706.01,
6121.01, or 6123.01 of the Revised
Code.
(B) The principal obligation, including initial service
charges and appraisal, inspection, and other fees approved by the
director, does not exceed one hundred per cent of the cost of the
project.
(C) The mortgage has a satisfactory maturity date in no
case
later than twenty-five years from the date of the insurance.
(D) The mortgagor is responsible and able to meet the
payments under the mortgage.
(E) The mortgage contains complete amortization provisions
satisfactory to the director requiring periodic payments by the
mortgagor which may include principal and interest payments, cost
of local property taxes and assessments, land lease rentals, if
any, and hazard insurance on the property and such mortgage
insurance premiums as are required under section 122.561 of the
Revised Code, all as the director from time to time prescribes or
approves.
(F) The mortgage is in such form and contains such terms
and
provisions with respect to property insurance, repairs,
alterations, payment of taxes and assessments, default reserves,
delinquency charges, default remedies, anticipation of maturity,
additional and secondary liens, and other matters as the director
may prescribe.
The director may take assignments of insured mortgages and
other forms of security and may take title by foreclosure or
conveyance to any project when an insured mortgage loan thereon
is
clearly in default and when in the opinion of the director
such
acquisition is necessary to safeguard the mortgage insurance
fund,
and may sell, or on a temporary basis lease or rent, such
project.
Sec. 1551.41. The department of natural resources, the
environmental protection agency, and the public utilities
commission jointly by rule shall develop an
interim policy
framework for the supervision and regulation by
those agencies of
pilot and demonstration carbon sequestration
activities located
in or sequestration products produced in this
state.
Sec. 3706.01. As used in this chapter:
(A) "Governmental agency" means a department, division, or
other unit of state government, a municipal corporation, county,
township, and other political subdivision, or any other public
corporation or agency having the power to acquire, construct, or
operate air quality facilities, the United States or any agency
thereof, and any agency, commission, or authority established
pursuant to an interstate compact or agreement.
(B) "Person" means any individual, firm, partnership,
association, or corporation, or any combination thereof.
(C) "Air contaminant" means particulate matter, dust,
fumes,
gas, mist, smoke, noise, vapor, heat, radioactivity,
radiation, or
odorous substance, or any combination thereof.
(D) "Air pollution" means the presence in the ambient air
of
one or more air contaminants in sufficient quantity and of
such
characteristics and duration as to injure human health or
welfare,
plant or animal life, or property, or that unreasonably
interferes
with the comfortable enjoyment of life or property.
(E) "Ambient air" means that portion of the atmosphere
outside of buildings and other enclosures, stacks, or ducts that
surrounds human, plant, or animal life, or property.
(F) "Emission" means the release into the outdoor
atmosphere
of an air contaminant.
(G) "Air quality facility" means any
of the following:
(1) Any method, or any modification
or replacement of
property,
process, device, structure, or
equipment that removes,
reduces,
prevents, contains, alters,
conveys, stores, disperses,
or
disposes of air contaminants or
substances containing air
contaminants, or that renders less
noxious or reduces the
concentration of air contaminants in the
ambient air, including,
without limitation, facilities and
expenditures that qualify as
air pollution control facilities
under section 103 (C)(4)(F) of
the Internal Revenue Code of 1954,
as amended, and regulations
adopted thereunder;
(2) Motor vehicle
inspection stations operated in accordance
with, and any
equipment used for motor vehicle inspections
conducted under,
section 3704.14 of the Revised Code and rules
adopted under it;
(3) Ethanol or other biofuel facilities, including any
equipment used at the
ethanol or other biofuel facility for the
production of ethanol or other biofuels;
(4) Any property or portion thereof used for the collection,
storage,
treatment, utilization, processing, or final disposal of
a by-product or
solid
waste resulting from any method, process,
device, structure,
or
equipment that removes, reduces, prevents,
contains, alters,
conveys, stores, disperses, or disposes of air
contaminants, or
that renders less noxious or reduces the
concentration of air
contaminants in the ambient air;
(5) Any property, device, or
equipment that promotes the
reduction of emissions of air
contaminants into the ambient air
through improvements in the
efficiency of energy utilization or
energy conservation;
(6) Any coal research and development project conducted under
Chapter 1555. of the Revised Code;
(7) As determined by the director of the Ohio coal
development office, any property or portion thereof that is used
for the collection, storage, treatment, utilization, processing,
or final disposal of a by-product resulting from a coal research
and development project as defined in section 1555.01 of the
Revised Code or from the use of clean coal technology, excluding
any property or portion thereof that is used primarily for other
subsequent commercial purposes;
(8) Any property or portion thereof that is part of the
FutureGen project of the United States department of energy or
related to the siting of the FutureGen project;
(9) Any property, device, or equipment that reduces emissions
of air contaminants into the ambient air through the generation of
electricity using sustainable resources;
(10) Any property, device, or equipment necessary for the
manufacture and production of equipment that qualifies as an air
quality facility.
"Air quality facility"
further
includes any
property or
system to be used in whole or
in part for any of
the purposes
in
divisions (G)(1) to (8)(10) of this section,
whether
another
purpose
is also
served, and any property or system
incidental to
or
that
has to
do with, or the end purpose of
which is, any of the
foregoing. Air
quality facilities that are
defined in this
division for
industry, commerce, distribution, or
research,
including public
utility companies, are hereby
determined to be
those
that qualify as facilities for the
control of air pollution
and
thermal pollution related to air
under Section 13 of Article
VIII, Ohio Constitution.
(H) "Project," or "air quality project," or "advanced energy
project" means any air
quality
facility or advanced energy
facility, including undivided or other interests therein,
acquired
or to be acquired or constructed or to be constructed by
the Ohio
air quality development authority under this chapter, or
acquired
or to be acquired or constructed or to be constructed by
a
governmental agency or person with all or a part of the cost
thereof being paid from a loan or grant from the authority under
this chapter or otherwise paid from the proceeds of air quality
revenue bonds, including all buildings and facilities that the
authority determines necessary for the operation of the project,
together with all property, rights, easements, and interests that
may be required for the operation of the project.
(I) "Cost" as applied to an air quality project or advanced
energy project means the
cost of acquisition and construction, the
cost of acquisition of
all land, rights-of-way, property rights,
easements, franchise
rights, and interests required for such
acquisition and
construction, the cost of demolishing or removing
any buildings
or
structures on land so acquired, including the
cost of
acquiring
any lands to which such buildings or structures
may be
moved, the
cost of acquiring or constructing and equipping
a
principal office
and sub-offices of the authority, the cost of
diverting highways,
interchange of highways, and access roads to
private property,
including the cost of land or easements for
such
access roads, the
cost of public utility and common carrier
relocation or
duplication, the cost of all machinery,
furnishings,
and
equipment, financing charges, interest prior to
and during
construction and for no more than eighteen months
after completion
of construction, engineering, expenses of
research and development
with respect to air quality facilities, the cost of any commodity
contract, including fees and expenses related thereto,
legal
expenses, plans,
specifications, surveys, studies,
estimates of
cost and revenues,
working capital, other expenses
necessary or
incident to
determining the feasibility or
practicability of
acquiring or
constructing such project,
administrative expense,
and such other
expense as may be
necessary or incident to the
acquisition or
construction of the
project, the financing of such
acquisition or
construction,
including the amount authorized in
the resolution of
the
authority providing for the issuance of air
quality revenue
bonds
to be paid into any special funds from the
proceeds of such
bonds, and the financing of the placing of such
project in
operation. Any obligation, cost, or expense incurred by
any
governmental agency or person for surveys, borings,
preparation
of
plans and specifications, and other engineering
services, or
any
other cost described above, in connection with
the
acquisition or
construction of a project may be regarded as a
part of the cost of
that project and may be reimbursed out of the
proceeds of air
quality revenue bonds as authorized by this
chapter.
(J) "Owner" includes an individual, copartnership,
association, or corporation having any title or interest in any
property, rights, easements, or interests authorized to be
acquired by this chapter.
(K) "Revenues" means all rentals and other charges
received
by the authority for the use or services of any air
quality
project, any gift or grant received with respect to any
air
quality project, any moneys received with respect to the
lease,
sublease, sale, including installment sale or conditional
sale, or
other disposition of an air quality project, moneys
received in
repayment of and for interest on any loans made by
the authority
to a person or governmental agency, whether from
the United States
or any department, administration, or agency
thereof, or
otherwise, proceeds of such bonds to the extent that
use thereof
for payment of principal of, premium, if any, or
interest on the
bonds is authorized by the authority, amounts received or
otherwise derived from a commodity contract or from the sale of
the related commodity under such a contract, proceeds
from any
insurance,
condemnation, or guaranty pertaining to a
project or
property
mortgaged to secure bonds or pertaining to
the financing
of the
project, and income and profit from the
investment of the
proceeds
of air quality revenue bonds or of any
revenues.
(L) "Public roads" includes all public highways, roads,
and
streets in the state, whether maintained by the state,
county,
city, township, or other political subdivision.
(M) "Public utility facilities" includes tracks, pipes,
mains, conduits, cables, wires, towers, poles, and other
equipment
and appliances of any public utility.
(N) "Construction," unless the context indicates a
different
meaning or intent, includes reconstruction,
enlargement,
improvement, or providing furnishings or equipment.
(O) "Air quality revenue Revenue bonds," unless the context
indicates
a different meaning or intent, includes air quality
revenue notes,
air quality revenue renewal notes, and air quality
revenue
refunding bonds, except that notes issued in anticipation
of the
issuance of bonds shall have a maximum maturity of five
years as
provided in section 3706.05 of the Revised Code and
notes
or
renewal notes issued as the definitive obligation may be
issued
maturing at such time or times with a maximum maturity of
forty
years from the date of issuance of the original note.
(P) "Solid waste" means any garbage; refuse; sludge from a
waste water treatment plant, water supply treatment plant, or air
pollution control facility; and other discarded material,
including solid, liquid, semisolid, or contained gaseous material
resulting from industrial, commercial, mining, and agricultural
operations, and from community activities, but not including
solid
or dissolved material in domestic sewage, or solid or
dissolved
material in irrigation return flows or industrial
discharges that
are point sources subject to permits under
section 402 of the
"Federal Water Pollution Control Act
Amendments of 1972," 86 Stat.
880, 33 U.S.C.A. 1342, as amended,
or source, special nuclear, or
byproduct material as defined by
the "Atomic Energy Act of 1954,"
68 Stat. 921, 42 U.S.C.A. 2011,
as amended.
(Q) "Sludge" means any solid, semisolid, or liquid waste,
other than a recyclable by-product, generated from a municipal,
commercial, or industrial waste water treatment plant, water
supply plant, or air pollution control facility or any other such
wastes having similar characteristics and effects.
(R) "Ethanol or other biofuel facility" means a plant at
which
ethanol or other biofuel is
produced.
(S) "Ethanol" means fermentation ethyl alcohol derived from
agricultural products, including potatoes, cereal, grains, cheese
whey, and sugar beets; forest products; or other renewable or
biomass
resources, including residue and waste generated from the
production, processing, and marketing of agricultural products,
forest products, and other renewable or biomass resources, that
meets all of
the specifications in the American society for
testing and
materials (ASTM) specification D 4806-88 and is
denatured as
specified in Parts 20 and 21 of Title 27 of the Code
of Federal
Regulations.
(T) "Biofuel" means any fuel that is made from cellulosic
biomass resources, including renewable organic matter, crop waste
residue, wood, aquatic plants and other crops, animal waste, solid
waste, or sludge, and that is used for the production of energy
for transportation or other purposes.
(U) "FutureGen project" means the buildings, equipment, and
real property and functionally related buildings, equipment, and
real property, including related research projects that support
the development and operation of the buildings, equipment, and
real property, designated by the United States department of
energy and the FutureGen industrial alliance, inc., as the
coal-fueled, zero-emissions power plant designed to prove the
technical and economic feasibility of producing electricity and
hydrogen from coal and nearly eliminating carbon dioxide emissions
through capture and permanent storage.
(V) "Commodity contract" means a contract or series of
contracts entered into in connection with the acquisition or
construction of air quality facilities or advanced energy
facilities for the purchase or sale of
a commodity that is
eligible for prepayment with the proceeds of
federally taxable or
tax exempt bonds under sections 103, 141, and 148 of the
Internal
Revenue Code of 1986, as amended, and regulations adopted
under
it.
(W) "Sustainable resources" includes, but is not limited to,
solar, wind, tidal or wave,
biomass, including, but not limited
to, biomass involving the utilization of trees or any part
thereof, biofuel, hydro, or
geothermal resources that are used in
the generation of
electricity and includes fuel cells powered by
sustainable resources.
(X) "Advanced energy facility" means any method or any
modification or replacement of any property, process, device,
structure, or equipment that meets any of the following:
(1) With regard to clean coal technology, 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;
(2) With regard to advanced nuclear energy production,
consists of generation III technology as defined by the nuclear
regulatory commission, other later technology, or significant
improvements to existing facilities;
(3) With regard to fuel cells used in the generation of
electricity, consists of, but is not limited to, a proton exchange
membrane fuel cell,
phosphoric acid fuel cell, molten carbonate
fuel cell, or solid
fuel cell;
(4) With regard to cogeneration technology, consists of a
technology using a heat engine or power station to generate
electricity and useful heat simultaneously.
"Advanced energy facility" further includes any property or
system to be used in whole or in part for any of the purposes of
divisions (X)(1) to (4) of this section, whether another purpose
also is served, and any property or system incidental to or that
has to do with, or the end purpose of which is, any of the
foregoing.
Sec. 3706.02. There is hereby created the Ohio air quality
development authority. Such authority is a body both corporate
and
politic in this state, and the carrying out of its purposes
and
the exercise by it of the powers conferred by Chapter 3706.
of the
Revised Code shall be held to be, and are hereby
determined to be,
essential governmental functions and public
purposes of the state,
but the authority shall not be immune from
liability by reason
thereof.
The authority shall consist of seven members as follows:
five
members appointed by the governor, with the advice and
consent of
the senate, no more than three of whom shall be
members of the
same political party, and the director of
environmental protection
and the director of health, who shall be
members ex officio
without compensation. Each appointive member
shall be a resident
of the state, and a qualified elector
therein. The members of the
authority first appointed shall
continue in office for terms
expiring on June 30, 1971, June 30,
1973, June 30, 1975, June 30,
1977, and June 30, 1978,
respectively, the term of each member to
be designated by the
governor. Appointed members' terms of office
shall be for eight
years, commencing on the first day of July and
ending on the
thirtieth day of June. Each appointed member shall
hold office
from the date of his appointment until the end of the
term for
which he was appointed. Any member appointed to fill a
vacancy
occurring prior to the expiration of the term for which
his the
member's
predecessor was appointed shall hold office for
the remainder of
such term. Any appointed member shall continue in
office
subsequent to the expiration date of his the member's term
until
his the member's successor
takes office, or until a period
of sixty days has elapsed,
whichever occurs first. A member of the
authority is eligible
for reappointment. Each appointed member of
the authority,
before entering upon his official duties, shall
take an oath as
provided
by Section 7 of Article XV, Ohio
Constitution. The governor may
at any time remove any member of
the authority for misfeasance,
nonfeasance, or malfeasance in
office. The authority shall elect
one of its appointed members as
chairman chairperson and another
as
vice-chairman
vice-chairperson, and shall appoint a
secretary-treasurer who
need
not be a member of the authority. Four members of the
authority
shall constitute a quorum, and the affirmative vote of
four
members shall be necessary for any action taken by vote of
the
authority. No vacancy in the membership of the authority shall
impair the rights of a quorum by such vote to exercise all the
rights and perform all the duties of the authority.
Before the issuance of any air quality revenue bonds under
Chapter 3706. of the Revised Code, each appointed member of the
authority shall give a surety bond to the state in the penal sum
of twenty-five thousand dollars and the secretary-treasurer shall
give such a bond in the penal sum of fifty thousand dollars, each
such surety bond to be conditioned upon the faithful performance
of the duties of the office, to be executed by a surety company
authorized to transact business in this state, and to be approved
by the governor and filed in the office of the secretary of
state.
Each appointed member of the authority shall receive an
annual
salary of five thousand dollars, payable in monthly
installments.
Each member shall be reimbursed for his the
actual
expenses
necessarily incurred in the performance of his official
duties.
All expenses incurred in carrying out Chapter 3706. of the
Revised
Code shall be payable solely from funds provided under
Chapter
3706. of the Revised Code, appropriated for such purpose
by the
general assembly, or provided by the controlling board. No
liability
or
obligation shall be incurred by the authority
beyond
the extent to which moneys have been so provided or
appropriated.
Sec. 3706.03. (A) It is hereby declared to be the public
policy
of the state through the operations of the Ohio air
quality
development authority under this chapter to contribute
toward one
or more of the following: to provide for the
conservation of air
as a natural resource of the state, and to
prevent or abate the
pollution thereof, to provide for the
comfort, health, safety, and
general welfare of all employees, as
well as all other inhabitants
of the state, to assist in the
financing of air quality facilities
and advanced energy
facilities for industry, commerce,
distribution, and research,
including
public utility companies,
to create or preserve jobs
and
employment opportunities or
improve the economic welfare of
the
people, or assist and
cooperate with governmental agencies in
achieving such purposes.
In Additionally, advanced energy
facilities for industry, commerce, distribution, or research,
including public utility companies, are hereby deemed to qualify
as facilities for the control of air pollution and thermal
pollution related to air under Section 13, Article VIII, Ohio
Constitution.
(B) In furtherance of such public policy the
Ohio air
quality
development authority may initiate, acquire,
construct,
maintain,
repair, and operate air quality projects and advanced
energy projects or
cause the same to be
operated pursuant to a
lease, sublease, or
agreement with any
person or governmental
agency; may make loans
and grants to
governmental agencies for
the acquisition or
construction of air
quality facilities and
advanced energy facilities by such governmental
agencies; may
make loans
to persons for the acquisition or
construction of air
quality
facilities and advanced energy facilities by such persons;
may enter
into commodity contracts with, or make loans for the
purpose of
entering into commodity contracts to, any person,
governmental
agency, or entity located within or without the
state in
connection with the acquisition or construction of air
quality
facilities and advanced energy facilities; and may issue
air quality revenue
bonds of this state
payable solely from
revenues, to pay the cost
of such projects,
including any related
commodity contracts. Any air quality project
or advanced energy
project shall be determined by
the authority to be not
inconsistent with
any applicable air
quality standards duly
established and then
required to be met
pursuant to the "Clean
Air Act," 84 Stat. 1679
(1970), 42
U.S.C.A. 1857, as amended. Any
resolution of the
authority
providing for acquiring or
constructing such projects or
for
making a loan or grant for such
projects shall include a
finding
by the authority that such
determination has been made.
Determinations by resolution of the
authority that a project is
an
air quality facility or advanced
energy facility under this chapter and is consistent with
the
purposes of section 13 of Article VIII, Ohio Constitution,
and
this chapter, shall be conclusive as to the validity and
enforceability of the air quality revenue bonds issued to finance
such project and of the resolutions, trust agreements or
indentures, leases, subleases, sale agreements, loan agreements,
and other agreements made in connection therewith, all in
accordance with their terms.
(C) Nothing in this chapter authorizes the Ohio air quality
development authority to build, own, or operate an air quality
facility or advanced energy facility, except as may be required to
effect the financing of the facility.
Sec. 3706.04. The Ohio air quality development authority
may:
(A) Adopt bylaws for the regulation of its affairs and the
conduct of its business;
(B) Adopt an official seal;
(C) Maintain a principal office and suboffices at such
places
within the state as it designates;
(D) Sue and plead in its own name; be sued and impleaded
in
its own name with respect to its contracts or torts of its
members, employees, or agents acting within the scope of their
employment, or to enforce its obligations and covenants made
under
sections 3706.05, 3706.07, and 3706.12 of the Revised Code.
Any
such actions against the authority shall be brought in the
court
of common pleas of the county in which the principal office
of the
authority is located, or in the court of common pleas of
the
county in which the cause of action arose, provided such
county is
located within this state, and all summonses,
exceptions, and
notices of every kind shall be served on the
authority by leaving
a copy thereof at the principal office with
the person in charge
thereof or with the secretary-treasurer of
the authority.
(E) Make loans and grants to governmental agencies for the
acquisition or construction of air quality projects or advanced
energy projects by any such
governmental agency and adopt rules
and procedures for making
such loans and grants;
(F) Acquire, construct, reconstruct, enlarge, improve,
furnish, equip, maintain, repair, operate, lease or rent to, or
contract for operation by, a person or governmental agency, air
quality projects or advanced energy projects, and establish rules
for the use of such
projects;
(G) Make available the use or services of any air quality
project or advanced energy project to one or more persons, one or
more governmental
agencies, or any combination thereof;
(H) Issue air quality revenue bonds and notes and air
quality
revenue refunding bonds of the state, payable solely from
revenues
as provided in section 3706.05 of the Revised Code,
unless the
bonds be refunded by refunding bonds, for the purpose
of paying
any part of the cost of one or more air quality
projects or
advanced energy projects or parts thereof;
(I) Acquire by gift or purchase, hold, and dispose of real
and personal property in the exercise of the powers of the
authority and the performance of its duties under this chapter;
(J) Acquire, in the name of the state, by purchase or
otherwise, on such terms and in such manner as the authority
finds
proper, or by the exercise of the right of condemnation in
the
manner provided by section 3706.17 of the Revised Code, such
public or private lands, including public parks, playgrounds, or
reservations, or parts thereof or rights therein, rights-of-way,
property, rights, easements, and interests as it finds necessary
for carrying out this chapter, but excluding the acquisition by
the exercise of the right of condemnation of any air quality
facility or advanced energy facility owned by any person or
governmental agency; and
compensation shall be paid for public or
private lands so taken;
(K) Make and enter into all contracts and agreements and
execute all instruments necessary or incidental to the
performance
of its duties and the execution of its powers under
this chapter.
(1) When the cost under any such contract or agreement,
other
than compensation for personal services, involves an
expenditure
of more than two thousand dollars, the authority
shall make a
written contract with the lowest responsive and
responsible
bidder, in accordance with section 9.312 of the
Revised Code,
after advertisement for not less than two
consecutive weeks in a
newspaper of general circulation in
Franklin county, and in such
other publications as the authority
determines, which notice shall
state the general character of the
work and the general character
of the materials to be furnished,
the place where plans and
specifications therefor may be
examined, and the time and place of
receiving bids; provided,
that a contract or lease for the
operation of an air quality
project or advanced energy project
constructed and owned by the authority or an agreement
for
cooperation in the acquisition or construction of an air
quality
project or advanced energy project pursuant to section 3706.12 of
the Revised Code
or any contract for the construction of an air
quality project
or advanced energy project that is to be leased by
the authority to, and operated by,
persons who that are not
governmental agencies and the cost of such
project is to be
amortized exclusively from rentals or other
charges paid to the
authority by persons who that are not governmental
agencies is not
subject to the foregoing requirements and the
authority may enter
into such contract, lease, or agreement
pursuant to negotiation
and upon such terms and conditions and
for such period as it finds
to be reasonable and proper in the
circumstances and in the best
interests of proper operation or of
efficient acquisition or
construction of such project.
(2) Each bid for a contract for the construction,
demolition,
alteration, repair, or reconstruction of an
improvement shall
contain the full name of every person
interested in it and meet
the requirements of section 153.54 of
the Revised Code.
(3) Each bid for a contract except as provided in division
(K)(2) of this section shall contain the full name of every
person
interested in it and shall be accompanied by a sufficient
bond or
certified check on a solvent bank that if the bid is
accepted a
contract will be entered into and the performance
thereof secured.
(4) The authority may reject any and all bids.
(5) A bond with good and sufficient surety, approved by
the
authority, shall be required of every contractor awarded a
contract except as provided in division (K)(2) of this section,
in
an amount equal to at least fifty per cent of the contract
price,
conditioned upon the faithful performance of the contract.
(L) Employ managers, superintendents, and other employees
and
retain or contract with consulting engineers, financial
consultants, accounting experts, architects, attorneys, and such
other consultants and independent contractors as are necessary in
its judgment to carry out this chapter, and fix the compensation
thereof. All expenses thereof shall be payable solely from the
proceeds of air quality revenue bonds or notes issued under this
chapter, from revenues, or from funds appropriated for such
purpose by the general assembly.
(M) Receive and accept from any federal agency, subject to
the approval of the governor, grants for or in aid of the
construction of any air quality project or advanced energy project
or for research and
development with respect to air quality
facilities and advanced energy facilities, and receive
and accept
aid or contributions from any source of money,
property, labor, or
other things of value, to be held, used, and
applied only for the
purposes for which such grants and
contributions are made;
(N) Engage in research and development with respect to air
quality facilities and advanced energy facilities;
(O) Purchase fire and extended coverage and liability
insurance for any air quality project and advanced energy project
and for the principal
office and suboffices of the authority,
insurance protecting the
authority and its officers and employees
against liability for
damage to property or injury to or death of
persons arising from
its operations, and any other insurance the
authority may agree
to provide under any resolution authorizing
its air quality
revenue bonds or in any trust agreement securing
the same;
(P) Charge, alter, and collect rentals and other charges
for
the use or services of any air quality project or advanced energy
project as provided in
section 3706.13 of the Revised Code;
(Q) Provide coverage for its employees under Chapters
145.,
4123., and 4141. of the Revised Code;
(R) Develop, encourage, promote, support, and implement
programs to achieve best cost rates
for state-owned buildings,
facilities, and operations,
state-supported colleges and
universities, willing local
governments, and willing school
districts through pooled purchases
of electricity and the
financing of taxable or tax-exempt
prepayment of commodities;
(S) Develop, encourage, promote, support, and implement
programs to achieve optimal cost
financing for electric
generating facilities to be constructed on
or after January 1,
2009;
(T) Develop, encourage, and provide incentives for
investments in energy efficiency;
(U) Develop, encourage, promote, and support implementation
in this state of sustainable resource energy installations;
(V) Lead, encourage, promote, and support siting, financing,
construction, and operation for early implementations of
next-generation base load generating systems, including clean coal
generating facilities with carbon capture or sequestration or
advanced nuclear power plants, and reduce the costs of associated
risks;
(W) Engage in and coordinate state-supported energy research
and development with respect to reliable, affordable, and
sustainable energy in this state;
(X) Develop, encourage, promote, support, and implement
programs to attract and retain key
industrial and
energy-intensive
sectors of the economy of this
state;
(Y) Do all acts necessary or proper to carry out the
powers
expressly granted in this chapter.
Any instrument by which real property is acquired pursuant to
this section
shall identify the agency of the state that has the
use and benefit of the
real property as specified in section
5301.012 of the Revised Code.
Sec. 3706.041. (A) With respect to projects, and the
financing thereof, for industry, commerce, distribution, or
research, including public utility companies, under agreements
whereby the person to whom the project is to be leased, subleased,
or sold, or to whom a loan is to be made for the project, is to
make payments sufficient to pay all of the principal of, premium,
if any, and interest on the air quality revenue bonds issued for
the project, or the counterparty under any related commodity
contract agrees to make payments sufficient in amount to pay all
of the principal of, premium, if any, and interest on the related
air quality revenue bonds, the Ohio air quality development
authority may, in addition to other powers under
this chapter:
(1) Make loans for the acquisition or construction of the
project to such person upon such terms as the authority may
determine or authorize, including secured or unsecured loans,
and,
in connection therewith, enter into loan agreements and
other
agreements, including commodity contracts, accept notes and other
forms of obligation to
evidence such indebtedness and mortgages,
liens, pledges,
assignments, or other security interests to secure
such
indebtedness, which may be prior or subordinate
to
or on a
parity with other indebtedness, obligations, mortgages,
pledges,
assignments, other security interests, or liens or
encumbrances,
and take such actions as may be considered by it
appropriate to
protect such security and safeguard against
losses,
including,
without limitation thereto, foreclosure and
the bidding
upon and
purchase of property upon foreclosure or
other sale.
(2) Sell such project under such terms as it may
determine,
including, without limitation thereto, sale by
conditional sale or
installment sale, under which title may pass
prior to or after
completion of the project or payment or
provisions for payment of
all principal of, premium, if any, and
interest on such bonds, or
at any other time provided in such
agreement pertaining to such
sale, and including sale under an
option to purchase at a price
which may be a nominal amount or
less than true value at the time
of purchase.
(3) Grant a mortgage, lien, or other encumbrance on, or
pledge or assignment of, or other security interest with respect
to, all or any part of the project, revenues, reserve funds, or
other funds established in connection with such bonds, or on, of,
or with respect to any lease, sublease, sale, conditional sale or
installment sale agreement, loan agreement, or other agreement
pertaining to the lease, sublease, sale, or other disposition of
a
project or pertaining to a loan made for a project, or any
guaranty or insurance agreement made with respect thereto, or any
interest of the authority therein, or any other interest granted,
assigned, or released to secure payments of the principal of,
premium, if any, or interest on the bonds or to secure any other
payments to be made by the authority, which mortgage, lien,
encumbrance, pledge, assignment, or other security interest may
be
prior or subordinate to or on a parity with any other
mortgage,
assignment, other security interest, or lien or
encumbrance.
(4) Provide that the interest on such bonds may be at a
variable rate or rates changing from time to time in accordance
with a base or formula as authorized by the authority.
(5) Contract for the acquisition or construction of such
project or any part thereof, including any related commodity
contracts, and for the leasing, subleasing, sale
or other
disposition of such project in a manner determined by
the
authority in its sole discretion, without necessity for
competitive bidding or performance bonds.
(B) Property comprising a project shall not be subject to
taxes or assessments and so long as the bonds or notes issued to
finance the costs of such project are outstanding, and the
transfer of title to or possession of such property to the person
to whom a loan or installment sale or conditional sale with
respect to such project is made shall not be subject to the taxes
levied pursuant to Chapters 5739. and 5741. of the Revised Code.
The authority shall certify the property comprising a
project
which is exempt from taxes and assessments pursuant to
this
section, and shall send, by certified mail, copies of such
certification to the owner of such exempt property, to the tax
commissioner, and to the county auditor of the county or counties
in which any such exempt property is located.
Each county auditor shall maintain a separate list of all
property exempt pursuant to this section and sections 6121.044
and
6123.041 of the Revised Code, in addition to the list of
exempt
property required to be maintained pursuant to section
5713.07 of
the Revised Code.
(C) The authority, in the lease, sale or loan agreement
with
respect to a project referred to in division (A) of this
section,
shall make appropriate provision for adequate
maintenance of the
project.
(D) With respect to the projects referred to in this
section,
the authority granted by this section is cumulative and
supplementary to all other authority granted in this chapter.
The
authority granted by this section does not alter or impair
any
similar authority granted elsewhere in this chapter for or
with
respect to other projects.
Sec. 3706.05. The Ohio air quality development authority
may
at any time issue revenue bonds and notes of the state in
such
principal amount as, in the opinion of the authority, are
necessary for the purpose of paying any part of the cost of one
or
more air quality projects or advanced energy projects or parts
thereof, including one or more
payments pursuant to a commodity
contract entered into in
connection with the acquisition or
construction of air quality
facilities or advanced energy
facilities. The authority may
at any time issue renewal notes,
issue bonds to pay such notes
and whenever it deems refunding
expedient, refund any bonds by
the issuance of air quality revenue
refunding bonds of the state,
whether the bonds to be refunded
have or have not matured, and
issue bonds partly to refund bonds
then outstanding, and partly
for any other authorized purpose. The
refunding bonds shall be
sold and the proceeds applied to the
purchase, redemption, or
payment of the bonds to be refunded.
Except as may otherwise be
expressly provided by the authority,
every issue of its bonds or
notes shall be general obligations of
the authority payable out
of the revenues of the authority that
are pledged for such
payment, without preference or priority of
the first bonds
issued, subject only to any agreements with the
holders of
particular bonds or notes pledging any particular
revenues. Such
pledge shall be valid and binding from the time the
pledge is
made and the revenues so pledged and thereafter received
by the
authority shall immediately be subject to the lien of such
pledge
without any physical delivery thereof or further act, and
the
lien of any such pledge is valid and binding as against all
parties having claims of any kind in tort, contract, or otherwise
against the authority, irrespective of whether such parties have
notice thereof. Neither the resolution nor any trust agreement
by
which a pledge is created need be filed or recorded except in
the
records of the authority.
Whether or not the bonds or notes are of such form and
character as to be negotiable instruments, the bonds or notes
shall have all the qualities and incidents of negotiable
instruments, subject only to the provisions of the bonds or notes
for registration.
The bonds and notes shall be authorized by resolution of
the
authority, shall bear such date or dates, and shall mature at
such
time or times, in the case of any such note or any renewals
thereof not exceeding five years from the date of issue of such
original note and in the case of any such bond not exceeding
forty
years from the date of issue, as such resolution or
resolutions
may provide. The bonds and notes shall bear interest
at such rate
or rates, be in such denominations, be in such form,
either coupon
or registered, carry such registration privileges,
be payable in
such medium of payment, at such place or places,
and be subject to
such terms of redemption as the authority may
authorize. The bonds
and notes of the authority may be sold by
the authority, at public
or private sale, at or at not less than
such price or prices as
the authority determines. The bonds and
notes shall be executed by
the chairperson and
vice-chairperson of the
authority, either or
both of whom may use a facsimile signature,
the official seal of
the authority or a facsimile thereof shall
be
affixed thereto or
printed thereon and attested, manually or
by
facsimile signature,
by the secretary-treasurer of the
authority,
and any coupons
attached thereto shall bear the
signature or
facsimile signature
of the chairperson of
the
authority.
In case any officer whose
signature, or a facsimile
of whose
signature, appears on any
bonds, notes or coupons ceases
to be
such officer before delivery
of bonds or notes, such
signature or
facsimile shall nevertheless
be sufficient for all
purposes the
same as if the officer had
remained in office
until such
delivery, and in case the seal of
the authority has been changed
after a facsimile has been
imprinted on such bonds or notes, such
facsimile seal will
continue to be sufficient for all purposes.
Any resolution or resolutions authorizing any bonds or
notes
or any issue thereof may contain provisions, subject to
such
agreements with bondholders or noteholders as may then
exist,
which provisions shall be a part of the contract with the
holders
thereof, as to: the pledging of all or any part of the
revenues of
the authority to secure the payment of the bonds or
notes or of
any issue thereof; the use and disposition of
revenues of the
authority; a covenant to fix, alter, and collect
rentals and other
charges so that pledged revenues will be
sufficient to pay costs
of operation, maintenance, and repairs,
pay principal of and
interest on bonds or notes secured by the
pledge of such revenues,
and provide such reserves as may be
required by the applicable
resolution or trust agreement; the
setting aside of reserve funds,
sinking funds, or replacement and
improvement funds and the
regulation and disposition thereof; the
crediting of the proceeds
of the sale of bonds or notes to and
among the funds referred to
or provided for in the resolution
authorizing the issuance of the
bonds or notes; the use, lease,
sale, or other disposition of any
air quality project or any
other assets of the authority;
limitations on the purpose to
which the proceeds of sale of bonds
or notes may be applied and
the pledging of such proceeds to
secure the payment of the bonds
or notes or of any issue thereof;
as to notes issued in
anticipation of the issuance of bonds, the
agreement of the
authority to do all things necessary for the
authorization,
issuance, and sale of such bonds in such amounts as
may be
necessary for the timely retirement of such notes;
limitations on
the issuance of additional bonds or notes; the
terms upon which
additional bonds or notes may be issued and
secured; the
refunding of outstanding bonds or notes; the
procedure, if any,
by which the terms of any contract with
bondholders or
noteholders may be amended or abrogated, the amount
of bonds or
notes the holders of which must consent thereto, and
the manner
in which such consent may be given; limitations on the
amount of
moneys to be expended by the authority for operating,
administrative, or other expenses of the authority; securing any
bonds or notes by a trust agreement in accordance with section
3706.07 of the Revised Code; any other matters, of like or
different character, that in any way affect the security or
protection of the bonds or notes.
Neither the members of the authority nor any person
executing
the bonds or notes shall be liable personally on the
bonds or
notes or be subject to any personal liability or
accountability by
reason of the issuance thereof.
Sec. 3706.06. The issuance of air quality revenue bonds and
notes or air
quality revenue refunding bonds under Chapter 3706.
of the Revised Code need
not comply with any other law applicable
to the issuance of bonds or notes.
Sec. 3706.07. In the discretion of the Ohio air quality
development authority, any air quality revenue bonds or notes or
air quality revenue refunding bonds issued under Chapter 3706. of
the Revised Code, may be secured by a trust agreement between the
authority and a corporate trustee, which trustee may be any trust
company or bank having the powers of a trust company within or
without the state.
Any such trust agreement may pledge or assign revenues of
the
authority to be received, but shall not convey or mortgage
any air
quality project or any part thereof. Any such trust
agreement or
any resolution providing for the issuance of such
bonds or notes
may contain such provisions for protecting and
enforcing the
rights and remedies of the bondholders or
noteholders as are
reasonable and proper and not in violation of
law, including
covenants setting forth the duties of the
authority in relation to
the acquisition of property, the
construction, improvement,
maintenance, repair, operation, and
insurance of the air quality
project or projects in connection
with which such bonds or notes
are authorized, the rentals or
other charges to be imposed for the
use or services of any air
quality project, the application of
revenues received or otherwise derived from a commodity contract
or from the sale of the related commodity under such contract, the
custody, safeguarding, and application of
all moneys, and
provisions for the employment of consulting
engineers in
connection with the construction or operation of
such air quality
project or projects. Any bank or trust company
incorporated under
the laws of this state that may act as
depository of the proceeds
of bonds or notes or of revenues may
furnish such indemnifying
bonds or may pledge such securities as
are required by the
authority. Any such trust agreement may set
forth the rights and
remedies of the bondholders and noteholders
and of the trustee,
and may restrict the individual right of
action by bondholders and
noteholders as is customary in trust
agreements or trust
indentures securing similar bonds. Such
trust agreement may
contain such other provisions as the
authority determines
reasonable and proper for the security of
the bondholders or
noteholders. All expenses incurred in
carrying out the provisions
of any such trust agreement may be
treated as a part of the cost
of the operation of the air quality
project or projects. Any such
trust agreement or resolution
authorizing the issuance of air
quality revenue bonds may provide
the method whereby the general
administrative overhead expenses
of the authority shall be
allocated among the several projects
acquired or constructed by it
as a factor of the operation
expense of each such project.
Sec. 3706.08. Any holder of air quality revenue bonds
issued
under Chapter 3706. of the Revised Code, or any of the
coupons
appertaining thereto, and the trustee under any trust
agreement,
except to the extent the rights given by such chapter
may be
restricted by the applicable resolution or such trust
agreement,
may by suit, action, mandamus, or other proceedings,
protect and
enforce any rights under the laws of the state or
granted under
such chapter, trust agreement, or the resolution
authorizing the
issuance of such bonds, and may enforce and
compel the performance
of all duties required by such chapter, or
by the trust agreement
or resolution, to be performed by the Ohio
air quality development
authority or any officer thereof,
including the fixing, charging,
and collecting of rentals or
other charges.
Sec. 3706.09. Air quality revenue Revenue bonds and notes
and air
quality revenue refunding bonds issued under Chapter 3706.
of the
Revised Code do not constitute a debt, or a pledge of the
faith
and credit, of the state or any political subdivision
thereof,
and the holders or owners thereof have no right to have
taxes
levied by the general assembly or taxing authority of any
political subdivision of the state for the payment of the
principal thereof or interest thereon, but such bonds and notes
are payable solely from the revenues and funds pledged for their
payment as authorized by such chapter, unless the notes are
issued
in anticipation of the issuance of bonds or the bonds are
refunded
by refunding bonds issued under such chapter, which
bonds or
refunding bonds shall be payable solely from revenues
and funds
pledged for their payment as authorized by such
sections. All such
bonds and notes shall contain on the face
thereof a statement to
the effect that the bonds or notes, as to
both principal and
interest, are not debts of the state or any
political subdivision
thereof, but are payable solely from
revenues and funds pledged
for their payment.
All expenses incurred in carrying out Chapter 3706. of the
Revised Code are payable solely from funds provided under such
chapter. Such chapter does not authorize the Ohio air quality
development authority to incur indebtedness or liability on
behalf
of or payable by the state or any political subdivision
thereof.
Sec. 3706.10. All moneys, funds, properties, and assets
acquired by the Ohio air quality development authority under
Chapter 3706. of the Revised Code, whether as proceeds from the
sale of air quality revenue bonds or as revenues, or otherwise,
shall be held by it in trust for the purposes of carrying out its
powers and duties, shall be used and reused as provided in such
chapter, and shall at no time be part of other public funds.
Such
funds, except as otherwise provided in any resolution
authorizing
its air quality revenue bonds or in any trust
agreement securing
the same, or except when invested pursuant to
section 3706.11 of
the Revised Code, shall be kept in
depositories selected by the
authority in the manner provided in
Chapter 135. of the Revised
Code, and the deposits shall be
secured as provided in Chapter
135. of the Revised Code. The
resolution authorizing the issuance
of such bonds of any issue or
the trust agreement securing such
bonds shall provide that any
officer to whom, or any bank or trust
company to which, such
moneys are paid shall act as trustee of
such moneys and hold and
apply them for the purposes hereof,
subject to such conditions as
such chapter and such resolutions or
trust agreement provide.
Sec. 3706.11. Moneys in the funds of the Ohio air quality
development
authority, except as otherwise provided in any
resolution authorizing the
issuance of its air quality revenue
bonds or in any trust agreement securing
the same, in excess of
current needs, may be invested in notes, bonds, or
other
obligations of the United States of America or any agency or
instrumentality thereof, or in obligations of this state or any
political
subdivision thereof. Income from all such investments of
moneys in any fund
shall be credited to such funds as the
authority determines, subject to the
provisions of any such
resolution or trust agreement and such investments may
be sold at
such times as the authority determines.
Sec. 3706.12. The Ohio air quality development authority
may
charge, alter, and collect rentals or other charges for the
use or
services of any air quality project or advanced energy project and
contract in the
manner provided by this section with one or more
persons, one or
more governmental agencies, or any combination
thereof, desiring
the use or services of such project, and fix the
terms,
conditions, rentals, or other charges for such use or
services.
Such rentals or other charges shall not be subject to
supervision
or regulation by any other authority, commission,
board, bureau,
or agency of the state and such contract may
provide for
acquisition by such person or governmental agency of
all or any
part of such air quality project or advanced energy
project for such consideration payable
over the period of the
contract or otherwise as the authority in
its sole discretion
determines to be appropriate, but subject to
the provisions of any
resolution authorizing the issuance of air
quality revenue bonds
or notes or air quality revenue refunding
bonds of the authority
or any trust agreement securing the same.
Any governmental agency
that has power to construct, operate, and
maintain air quality
facilities or advanced energy facilities may enter into a contract
or
lease with the authority whereby the use or services of any air
quality project or advanced energy project of the authority will
be made available to such
governmental agency and may pay for such
use or services such
rentals or other charges as may be agreed to
by the authority and
such governmental agency.
Any governmental agency or combination of governmental
agencies may cooperate with the authority in the acquisition or
construction of an air quality project or advanced energy project
and shall enter into such
agreements with the authority as may be
necessary, with a view to
effective cooperative action and
safeguarding of the respective
interests of the parties thereto,
which agreements shall provide
for such contributions by the
parties thereto in such proportion
as may be agreed upon and such
other terms as may be mutually
satisfactory to the parties
including without limitation the
authorization of the construction
of the project by one of the
parties acting as agent for all of
the parties and the ownership
and control of the project by the
authority to the extent
necessary or appropriate for purposes of
the issuance of air
quality revenue bonds by the authority. Any
governmental agency
may provide the funds for the payment of such
contribution as is
required under such agreements by the levy of
taxes, assessments
or rentals and other charges for the use of the
utility system of
which the air quality project or advanced energy
project is a part or to which it is
connected, if otherwise
authorized by the laws governing such
governmental agency in the
construction of the type of air
quality project or advanced energy
project provided for in the agreements, and may pay the
proceeds
from the collection of such taxes, assessments, utility
rentals,
or other charges to the authority pursuant to such
agreements; or
the governmental agency may issue bonds or notes,
if authorized by
such laws, in anticipation of the collection of
such taxes,
assessments, utility rentals, or other charges and
may pay the
proceeds of such bonds or notes to the authority
pursuant to such
agreements. In addition any governmental agency
may provide the
funds for the payment of such contribution by the
appropriation of
money or, if otherwise authorized by law, by the
issuance of bonds
or notes and may pay such appropriated money or
the proceeds of
such bonds or notes to the authority pursuant to
such agreements.
The agreement by the governmental agency to
provide such
contribution, whether from appropriated money or
from the proceeds
of such taxes, assessments, utility rentals, or
other charges, or
such bonds or notes, or any combination
thereof, shall not be
subject to Chapter 133. of the Revised Code
or any regulations or
limitations contained therein. The
proceeds from the collection of
such taxes or assessments, and
any interest earned thereon, shall
be paid into a special fund
immediately upon the collection
thereof by the governmental
agency for the purpose of providing
such contribution at the
times required under such agreements.
When the contribution of any governmental agency is to be
made over a period of time from the proceeds of the collection of
special assessments, the interest accrued and to accrue before
the
first installment of such assessments shall be collected
which is
payable by such governmental agency on such contribution
under the
terms and provisions of such agreements shall be
treated as part
of the cost of the improvement for which such
assessments are
levied, and that portion of such assessments as
are collected in
installments shall bear interest at the same
rate as such
governmental agency is obligated to pay on such
contribution under
the terms and provisions of such agreements
and for the same
period of time as the contribution is to be made
under such
agreements. If the assessment or any installment
thereof is not
paid when due, it shall bear interest until the
payment thereof at
the same rate as such contribution and the
county auditor shall
annually place on the tax list and duplicate
the interest
applicable to such assessment and the penalty and
additional
interest thereon as otherwise authorized by law.
Any governmental agency, pursuant to a favorable vote of
the
electors in an election held before or after June 1, 1970,
for the
purpose of issuing bonds to provide funds to acquire,
construct,
or equip, or provide real estate and interests in real
estate for,
an air quality facility or advanced energy facility, whether or
not such
governmental agency, at the time of such election, had
the
authority to pay the proceeds from such bonds or notes issued
in
anticipation thereof to the authority as provided in this
section, may issue such bonds or notes in anticipation of the
issuance thereof and pay the proceeds thereof to the authority in
accordance with its agreement with the authority; provided, that
the legislative authority of the governmental agency find and
determine that the air quality project or advanced energy project
to be acquired or
constructed by the authority in cooperation with
such
governmental agency will serve the same public purpose and
meet
substantially the same public need as the facility otherwise
proposed to be acquired or constructed by the governmental agency
with the proceeds of such bonds or notes.
Sec. 3706.13. Each air quality project or advanced energy
project, when constructed
and placed in operation, shall be
maintained and kept in good
condition and repair by the Ohio air
quality development
authority, or the authority shall cause the
same to be maintained
and kept in good condition and repair. Each
such project shall
be operated by such operating employees as the
authority employs
or pursuant to a contract or lease with a person
or governmental
agency. All public or private property damaged or
destroyed in
carrying out the powers granted by Chapter 3706. of
the Revised
Code, shall be restored or repaired and placed in its
original
condition, as nearly as practicable, or adequate
compensation
shall be paid therefor from funds provided under such
chapter.
On or before the twentieth day of April in each year, the
authority shall make a report of its activities for the preceding
calendar year to the governor and the general assembly. Each
such
report shall set forth a complete operating and financial
statement covering the authority's operations during the year.
The
authority shall cause an audit of its books and accounts to
be
made at least once each year by certified public accountants
and
the cost thereof may be treated as a part of the cost of
construction or of operations of its projects.
Sec. 3706.14. All air quality revenue bonds issued under
this chapter are
lawful investments of banks, societies for
savings, savings and loan
associations, deposit guarantee
associations, trust companies, trustees,
fiduciaries, insurance
companies, including domestic for life and domestic not
for life,
trustees or other officers having charge of sinking and bond
retirement or other special funds of political subdivisions and
taxing
districts of this state, the commissioners of the sinking
fund of the state,
the administrator of workers' compensation, the
state teachers retirement
system, the public employees retirement
system, the school employees
retirement system, and the Ohio
police and fire pension fund,
and are acceptable as security for
the deposit of public moneys.
Sec. 3706.15. The exercise of the powers granted by
Chapter
3706. of the Revised Code, will be for the benefit of the
people
of the state, for the improvement of their health, safety,
convenience, and welfare, and for the enhancement of their
residential, agricultural, recreational, economic, commercial,
and
industrial opportunities and is a public purpose. As the
operation
and maintenance of air quality projects or advanced energy
projects will constitute
the performance of essential governmental
functions, the Ohio air
quality development authority shall not be
required to pay any
taxes or assessments upon any air quality such
project, or upon any
property acquired or used by the authority
under Chapter 3706. of
the Revised Code, or upon the income
therefrom, nor shall the
transfer to or from the Ohio air quality
development authority of
title or possession of any air quality
project or advanced energy project, part thereof, or
item included
or to be included in any such project, be subject
to the taxes
levied pursuant to Chapters 5739. and 5741. of the
Revised Code,
and the bonds and notes issued under this chapter,
their transfer,
and the income therefrom, including any profit
made on the sale
thereof, shall at all times be free from
taxation within the
state.
Sec. 3706.16. The Ohio air quality development authority
may
acquire by purchase, whenever it finds such purchase
expedient,
any land, property, rights, rights-of-way, franchises,
easements,
and other interests in lands as it finds to be
necessary or
convenient for the construction and operation of any
air quality
project or advanced energy project, upon such terms and at such
price as it
considers reasonable and are agreed upon between the
authority
and the owner thereof, and take title thereto in the
name of the
state.
Any governmental agency, notwithstanding any contrary
provision of law and without the necessity for an advertisement,
auction, order of court, or other action or formality, other than
the regular and formal action of such governmental agency
concerned, may lease, lend, grant, or convey to the authority, at
its request, upon such terms as the proper authorities of such
governmental agency find reasonable and fair any real property or
interests therein including improvements thereto or personal
property which is necessary or convenient to effect the
authorized
purposes of the authority, including public roads and
real or
personal property already devoted to public use.
Sec. 3706.17. The Ohio air quality development authority
may
acquire by appropriation pursuant to division (J) of section
3706.04 of the Revised Code any land, rights, rights-of-way,
franchises, easements, or other property necessary or proper for
the construction or the efficient operation of any air quality
project or advanced energy project. In any proceedings for
appropriation under this
section, the procedure to be followed
shall be in accordance with
Chapter 163. of the Revised Code.
This section does not empower the authority to take or
disturb property or facilities belonging to and required for the
proper and convenient operation of any public utility or any
common carrier engaged in interstate commerce, unless provision
is
made for the restoration, relocation, or duplication of such
property or facilities elsewhere at the sole cost of the
authority.
Sec. 3706.18. When the Ohio air quality development
authority finds it necessary to change the location of any
portion
of any public road, state highway, railroad, or public
utility
facility in connection with the construction of an air
quality
project or advanced energy project, it shall cause the same to be
reconstructed at
such location as the division of government
having jurisdiction
over such road, highway, railroad, or public
utility facility
finds most favorable. Such reconstruction shall
be of
substantially the same type and in as good condition as the
original road, highway, railroad, or public utility facility.
The
cost of such reconstruction, relocation, or removal and any
damage
incurred in changing the location of any such road,
highway,
railroad, or public utility facility shall be paid by
the
authority as a part of the cost of such air quality the project.
When the authority finds it necessary that any public
highway
or portion thereof be vacated by reason of the
acquisition or
construction of an air quality project or advanced energy project,
the
authority may request the director of transportation, in
writing,
to vacate such highway or portion thereof in accordance
with
section 5511.07 of the Revised Code if the highway or portion
thereof to be vacated is on the state highway system, or, if the
highway or portion thereof to be vacated is under the
jurisdiction
of the county commissioners, the authority shall
request
the
director, in writing, to petition the board of county
commissioners, in
the manner provided in section 5553.041 of the
Revised Code, to
vacate such highway or portion thereof. The
authority shall pay to
the director or to the county, as a part
of the cost of such air
quality the project, any amounts required
to
be deposited with any
court in connection with proceedings for
the determination of
compensation and damages and all amounts of
compensation and
damages finally determined to be payable as a
result of such
vacation.
The authority may make reasonable regulations for the
installation, construction, maintenance, repair, renewal,
relocation, and removal of railroad or public utility facilities
in, on, over, or under any air quality project or advanced energy
project. Whenever the
authority determines that it is necessary
that any such
facilities installed or constructed in, on, over, or
under
property of the authority pursuant to such regulations be
relocated, the public utility owning or operating such facilities
shall relocate or remove them in accordance with the order of the
authority. The cost and expenses of such relocation or removal,
including the cost of installing such facilities in a new
location, and the cost of any lands, or any rights or interests
in
lands, and the cost of any other rights, acquired to
accomplish
such relocation or removal, may be paid by the
authority as a part
of the cost of such air quality the project. In
case of any such
relocation or removal of facilities, the
railroad or public
utility owning or operating them, its
successors, or assigns may
maintain and operate such facilities,
with the necessary
appurtenances, in the new location in, on,
over, or under the
property of the authority for as long a period
and upon the same
terms as it had the right to maintain and
operate such facilities
in their former location.
Sec. 4905.31. Except as provided in section 4933.29 of the
Revised Code, Chapters 4901., 4903., 4905., 4907., 4909., 4921.,
and 4923., and 4928. of the Revised Code do not prohibit a public
utility
from filing a schedule or entering into any reasonable
arrangement with another public utility or with its customers,
consumers, or employees providing for:
(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 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 such arrangement,
sliding scale, minimum charge, classification, variable rate, or
device is lawful unless it is filed with and approved by the
commission.
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 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. 4905.40. (A) A public utility or a railroad may,
when
authorized by order of the public utilities commission,
issue
stocks, bonds, notes, and other evidences of indebtedness,
payable
at periods of more than twelve months after their date of
issuance, when necessary:
(1) For the acquisition of property, the construction,
completion, extension, renewal, or improvement of its facilities,
or the improvement of its service; or
(2) For reorganization or readjustment of its indebtedness
and capitalization, for the discharge or lawful refunding of its
obligation, or for the reimbursement of moneys actually expended
for such purposes from income or from any other moneys in the
treasury of the public utility or railroad not secured or
obtained
from the issue of stocks, bonds, notes, or other
evidences of
indebtedness of such public utility or railroad. No
reimbursement
of moneys expended for such purposes from income or
other moneys
in the treasury shall be authorized unless the
applicant has kept
its accounts and vouchers of such expenditures
in such manner as
to enable the commission to ascertain the
amount and purposes of
such expenditures.
(B) Any public utility, subject to the jurisdiction of the
commission, may, when authorized by the commission, issue shares
of common capital stock to acquire or pay for shares of common
capital stock of a public utility of this or an adjoining state
whose property is so located as to permit the operation of the
properties of such utilities as an integrated system if the
applicant owns, or by this issue will acquire, not less than
sixty-five per cent of the issued and outstanding common capital
shares of the company whose shares are to be acquired, and if the
consideration to be capitalized by the acquiring company does not
exceed the par or stated value at which the shares so acquired
were issued.
(C) Any bonds, notes, or other evidences of indebtedness
payable at periods of more than twelve months after their date
may
be issued as provided in sections 4905.40 to
4905.43 of the
Revised Code, regardless of the amount of the capital stock of
the
public utility or railroad, subject to the approval of the
commission of the excess of such bonds, notes, or other evidences
of indebtedness above the amount of the capital stock of such
public utility or railroad.
(D) The commission shall authorize on the best terms
obtainable such issues of stocks, bonds, and other evidences of
indebtedness as are necessary to enable any public utility to
comply with any contract made between such public utility and any
municipal corporation prior to June 30, 1911.
(E) The commission may authorize a public utility that is an
electric
light company
to issue equity securities, or debt
securities having a term of
more than twelve months from the date
of issuance, for the
purpose of yielding to the company the
capacity to acquire a
facility that produces fuel for the
generation of electricity.
(F) In any proceeding under division (A)(1) of this
section
initiated by a public utility, the commission shall
determine and
set forth in its order:
(1) Whether the purpose to which the issue or any proceeds
of
it shall be applied was or is reasonably required by the
utility
to meet its present and prospective obligations to
provide
utility
service;
(2) Whether the amount of the issue and the probable cost
of
such stocks, bonds, notes, or other evidences of indebtedness
is
just and reasonable;
(3) What effect, if any, the issuance of such stocks,
bonds,
notes, or other evidences of indebtedness and the cost
thereof
will have upon the present and prospective revenue
requirements of
the utility.
(G) Sections 4905.40 to 4905.42 of the Revised Code do not
apply to stocks, bonds, notes, or other evidence of indebtedness
issued for the purpose of financing oil or natural gas drilling,
producing, gathering, and associated activities and facilities by
a producer which supplies to no more than twenty purchasers only
such gas as is produced, gathered, or purchased by such producer
within this state.
(H) Each public utility seeking authorization from the
commission for the issuance of securities to finance the
installation, construction, extension, or improvement of an air
quality facility or advanced energy facility, as defined in
section 3706.01 of the Revised
Code, shall consider the
availability of financing therefor from
the Ohio air quality
development authority and shall demonstrate
to the commission that
the proposed financing will be obtained on
the best terms
obtainable.
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) Recognize the continuing emergence of competitive
electricity
markets through the development and implementation of
flexible regulatory
treatment;
(G) 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;
(H) Ensure retail electric service consumers just and
reasonable rates and protection
against unreasonable sales
practices,
market deficiencies, and
market
power;
(I) Preclude imbalances in knowledge and expertise among
parties in a proceeding under this chapter to eliminate any
appearance of disproportionate influence by any of those parties;
(J) Ensure that consumers and shareholders share the benefits
of electric utility investment
in facilities supplying retail
electric generation service;
(K) Provide coherent, transparent means of giving appropriate
incentives to technologies that can adapt successfully to
potential environmental mandates;
(L) Protect at-risk populations when considering the
implementation of any new advanced energy technology;
(M) Encourage implementation of distributed generation across
customer classes through regular review and updating of rules
governing critical issues such as, but not limited to,
interconnection standards, standby charges, and net metering;
(N) Encourage the education of small business owners in this
state regarding the use of, and encourage the use of, energy
efficiency programs and advanced energy technologies in their
businesses;
(O) Facilitate the state's effectiveness in the global
economy.
Sec. 4928.05. (A)(1)(a) 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.
(b) Notwithstanding division (A)(1)(a) of this section, the
commission may so supervise and regulate competitive retail
electric service provided to consumers by an electric utility in
this state if the commission determines the supervision and
regulation is necessary to implement the state policy specified in
section 4928.02 of the Revised Code.
(c) 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.
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. 4928.111. An electric distribution utility for which a
standard service offer consisting of an electric security plan
under section 4928.14 of the Revised Code has been approved by the
public utilities commission shall file with the commission a
long-term energy delivery infrastructure modernization plan or any
plan providing for the utility's recovery of costs and a just and
reasonable rate of return on such infrastructure modernization. A
plan shall specify the initiatives the utility must take to
improve electric service reliability by rebuilding, upgrading, or
replacing the utility's distribution system. The plan shall be
filed under an application under section 4909.18 of the Revised
Code.
Sec. 4928.14. (A) After its market development period, an
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 (B) Except as
otherwise provided in this section, the standard service offer of
an electric utility in effect on the effective date of the
amendment of this section by S.B. 221 of the 127th general
assembly shall continue, as to each customer and customer class,
as the utility's standard service offer for the purpose of
compliance with division (A) of this section as the section is so
amended.
(C) Beginning on the effective date of the amendment of this
section by S.B. 221 of the 127th general assembly and pursuant to
filing requirements the commission shall prescribe by rule, a
utility may file an application for commission approval of a
modified standard service offer. Upon that filing, the commission
shall set the date and time for hearing, send written notice of
the hearing to the utility, and publish notice of the hearing one
time in a newspaper of general circulation in each county in the
service area affected by the application.
(D)(1) A standard service offer proposed under division (C)
of this section, and herein designated an electric security plan,
shall adjust a utility's standard service offer relative to a
change in one or more costs incurred on or after January 1, 2009,
by the utility in rendering retail electric generation service
under the offer, as each such cost shall be specified in the
application. However, the amount of the adjustment shall be offset
by any positive revenue associated with that cost. Costs may
include, but not be limited to, any of the following:
(a) Environmental compliance costs incurred by the utility
for any specified generating facility, as determined by the
commission;
(b) The utility's cost of fuel for any specified generating
facility or of purchased power, incurred to maintain reliable
electricity supply for its generating service territory;
(c) The cost of construction of a specified generating
facility that is located in this state and that, superseding
Chapter 4906. of the Revised Code, the commission determines and
certificates the need for on the basis of resource planning
projections developed in accordance with policies and procedures
the commission shall prescribe by rule. A price adjustment under
division (D)(1)(c) of this section shall be a blended price and
shall be for the life of the facility.
(d) A cost based upon a specified index, which cost shall be
allocated to the appropriate customer class or classes.
However, costs under this division shall exclude financial
penalties, fines, court costs, and attorney's fees associated with
noncompliance with state or federal environmental laws or with
facilities' permits.
A standard service offer that includes costs under division
(D)(1)(a), (b), or (c) of this section may provide for automatic
increases or decreases in the standard service offer price. A
standard service offer that includes costs under division
(D)(1)(d) of this section shall provide for automatic increases or
decreases in the standard service offer price or prices.
In the case of an advanced energy technology or facility
under section 4928.142 of the Revised Code, the costs of which are
included in a standard service offer as authorized under this
division, the portion of the standard service offer price
attributable to those costs shall be bypassable by a consumer that
has exercised choice of supplier under section 4928.03 of the
Revised Code, but bypassable only to the extent the commission
determines that the advanced energy technology or facilities
implemented by that supplier are comparable to that implemented by
the utility under section 4928.142 of the Revised Code as of the
issuance of an order under division (D)(5) of this section for the
purpose of the utility's compliance with division (A) of section
4928.142 of the Revised Code.
(2)(a) For the purpose of a utility's initial application
under division (D)(1) of this section, the adjustment for a
particular cost shall be determined using a baseline measure of
cost and associated revenue as of January 1, 2008.
(b) If a utility continues to provide its standard service
offer pursuant to an electric security plan, for any later such
application by the utility, the baseline measure shall be the cost
and associated revenue as determined under the utility's then
existing approved plan.
(3) A standard service offer under division (D)(1) of this
section may specify the standard, factors, or methodology that the
commission shall use for the purpose of division (E)(2)(b) of this
section if the utility, within such timeframe as the commission
shall specify in its order under division (D)(5) of this section,
later files an application pursuant to division (E) of this
section.
(4) Regarding an application filed under division (D)(1) of
this section by a utility that transferred all or part of its
generating facilities to an affiliate of the utility and to the
extent authorized by federal law, the commission may consider
purchased power or other contracts or agreements between the
utility and any of its affiliates or between the utility and the
holding company owning or controlling the utility.
(5) The burden of proof under division (D)(5) of this section
shall be on the utility. The commission by order may approve or
modify and approve a standard service offer under division (D)(1)
of this section if it finds both of the following:
(a) The offer and the prices it establishes are just,
reasonable, and prudent as to each customer class and are in
furtherance of the policy specified in section 4928.02 of the
Revised Code.
(b) Adjustments for construction costs under division
(D)(1)(c) of this section are consistent with section 4909.15 of
the Revised Code.
(c) The utility is in compliance with section 4928.141 of the
Revised Code.
In its order, the commission shall prescribe any requirements
for the utility as the commission considers necessary for the
utility to implement the policy specified in section 4928.02 of
the Revised Code. The order also shall provide a schedule and the
procedural and substantive terms and conditions for periodic
commission review of the approved offer.
(E)(1) A standard service offer proposed under division (C)
of this section, and herein designated a market rate option, shall
require that the utility's standard service offer price be
determined periodically through an open, competitive bidding
process. Prior to the approval of such an offer under division
(E)(2) of this section, the utility shall conduct such competitive
bidding for the purpose of establishing the original price under
the offer.
(2) The burden of proof under division (E)(2) of this section
shall be on the utility. The commission by order shall approve or
modify and approve the standard service offer under division
(E)(1) of this section if the commission determines all of the
following are met:
(a) The utility is in compliance with section 4928.141 of the
Revised Code.
(b) With respect to generation service, the relevant markets
are subject to effective competition. For that purpose and except
as otherwise provided under division (D)(3) of this section, the
commission shall consider the factors prescribed in division (D)
of section 4928.06 of the Revised Code and such other or
additional factors as the commission may prescribe by rule. The
commission shall prescribe by rule the methodology it will use to
evaluate whether the effective competition standard under division
(E)(2)(b) of this section is met.
(c) The standard service offer price for a customer class as
determined under competitive bidding under division (E)(1) of this
section is more favorable than, or at least comparable to, its
price-to-compare for that class. That price-to-compare shall be
the price that the commission shall determine for the comparable
time period and in the manner of an electric security plan under
division (D) of this section:
In its order, the commission shall prescribe any requirements
for the utility as it considers necessary for the utility to
implement the policy specified in section 4928.02 of the Revised
Code. The order also shall provide the procedural and substantive
terms and conditions for periodic commission review of the
approved offer. That review shall provide for the reconciliation
of the standard service offer price to ensure that the price is
just, reasonable, and prudent and in furtherance of the policy
specified in section 4928.02 of the Revised Code.
(F) A utility's standard service offer approved under this
section shall take effect on the date the commission shall specify
in the approval order and, on that date, the newly approved offer
shall supersede the prior standard service offer of the utility.
(G)(1) Nothing in this section precludes a utility for which
a standard service offer under division (D) of this section has
been approved by the commission in accordance with this section
from later filing an application under division (E) of this
section, or vice versa.
(2) The commission has no authority to require a utility, for
which it has ever approved a market rate option standard service
offer under division (E) of this section, to file an application
under division (D) of this section.
(H) The failure of a
supplier to provide retail electric
generation service to
customers within the certified territory of
the 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
until the
customer chooses an alternative supplier. A supplier is
deemed under this
division 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) The supplier has defaulted on its contracts with
customers,
is in receivership, or has filed for bankruptcy.
(2) The supplier is no longer capable of providing the
service.
(3) 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) The supplier's certification has been suspended,
conditionally
rescinded, or rescinded under division (D) of
section 4928.08 of the Revised
Code.
(I) Nothing in this section limits an electric distribution
utility providing competitive retail electric service to electric
load centers within the certified territory of another such
utility.
Sec. 4928.141. During a proceeding under section 4928.14 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. 4928.142. (A) Subject to division (B) of this section,
an electric distribution utility by the end of 2025 shall provide
a portion of the electricity supply required for its standard
service offer under section 4928.14 of the Revised Code from
advanced energy. That portion shall equal twenty-five per cent of
the total number of kilowatt-hours of electricity supplied by the
utility to any and all electric consumers whose electric load
centers are located within the utility's certified territory.
However, subject to division (B) of this section, nothing in this
section precludes a utility from providing a greater percentage.
The advanced energy supply shall be consistent with the following
requirements:
(1) At least half of the advanced energy implemented by 2025
shall be generated from sustainable resources as defined in
section 3706.01 of the Revised Code and shall include solar power.
The remainder
shall be supplied from advanced energy facilities
as defined in
divisions (X)(1) to (4) of section 3706.01 of the
Revised Code.
(2) At least half of the advanced energy implemented by the
end of 2025 shall be met through facilities located in this state.
The utility shall comply with division (A) of this section in
a manner that considers available technology, costs, job creation,
and economic impacts. To be counted toward the utility's
compliance with division (A) of this section, the on-site
construction of an advanced energy technology or facility shall be
initiated after the effective date of this section. Any such
technology or facility that complies with that division shall be
and remain counted toward the utility's compliance.
(B)(1) If the commission determines, after notice and
hearing, that the utility has failed to comply with division (A)
of this section, the commission shall issue an order requiring the
utility to comply fully within such time as shall be specified in
the order and shall specify in the order the process and schedule
for verifying to the commission the utility's compliance with the
order.
(2) Full compliance shall not be mandated under division
(B)(1) of this section to the extent that the ratio between the
blended advanced energy and nonadvanced energy price under this
section in 2025 and the portion of that price attributable to
nonadvanced energy exceeds one and three-hundredths.
(3) Only division (B)(2) of section 4928.16 of the Revised
Code applies if the commission determines in an order issued under
division (B)(1) of this section that the utility has failed to
comply with division (A) of this section, or if the commission by
order determines in a later proceeding and after notice and
hearing that the utility has failed to comply with an order issued
under division (B)(1) of this section.
(C) 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 with divisions (A) and (B) of this section and any
interim goals or strategy for utility compliance with those
divisions or for encouraging the use of advanced energy 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 for the purpose of its compliance with division (A) of
this section, or the enforcement of that provision under division
(B) of this section.
Sec. 4928.17. (A) Except as otherwise provided in sections
4928.14 and 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 utility may divest
itself of shall sell or transfer any generating
asset at any
time
facility it owns in whole or in part to any person without 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 up to every two four years,
without paying a switching
fee. Any such
person that opts out 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
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.
Sec. 4928.21. (A) A customer that desires to remove itself
from the pool of customers eligible to participate in governmental
aggregation under section 4928.20 of the Revised Code may register
with the public utilities commission to appear on the "do not
aggregate" list.
(B) The commission, by rule, shall establish a "do not
aggregate" list. The commission shall maintain the "do not
aggregate" list and make it publicly available on the commission's
web site.
(C) If a customer is enrolled in a governmental aggregation
program at the time the customer first appears on the "do not
aggregate" list, the governmental aggregator shall remove the
customer from the program at the next two-year opt out opportunity
that is available to the customer under division (D) of section
4928.20 of the Revised Code.
Sec. 4928.64. The public utilities commission shall adopt
rules to establish energy efficiency standards applicable to
electric distribution utilities such that, by 2025, any such
utility shall implement energy efficiency measures that will
result in not less than twenty-five per cent of actual growth in
electric load and not less than ten per cent of total peak demand
being achieved through those measures. The rules shall include a
requirement that an electric distribution utility provide a
customer upon request with three years' consumption data in an
accessible form. Additionally, the rules may provide for
decoupling.
Sec. 4928.68. 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
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. 4928.69. The public utilities commission shall adopt
rules establishing greenhouse gas emission reporting requirements,
including participation in the climate registry,
and carbon
control planning requirements for each electric
generating
facility located in this state that emits greenhouse
gases,
including facilities in operation on the effective date of
this
section.
Section 2. That existing sections 122.41, 122.451, 3706.01,
3706.02, 3706.03, 3706.04, 3706.041, 3706.05, 3706.06, 3706.07,
3706.08, 3706.09, 3706.10, 3706.11, 3706.12, 3706.13, 3706.14,
3706.15, 3706.16, 3706.17, 3706.18, 4905.31, 4905.40, 4928.02,
4928.05, 4928.14, 4928.17, 4928.20, and 4928.21 of the Revised
Code are
hereby
repealed.
|