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Sub. S. B. No. 289 As Enrolled
(129th General Assembly)
(Substitute Senate Bill Number 289)
AN ACT
To amend sections 3706.25 and 4928.01 of the Revised
Code to include cogeneration technology using
waste or byproduct gas from an air contaminant
source as a renewable energy resource.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 3706.25 and 4928.01 of the Revised
Code be amended to read as follows:
Sec. 3706.25. As used in sections 3706.25 to 3706.30 of the
Revised Code:
(A) "Advanced energy project" means any technologies,
products, activities, or management practices or strategies that
facilitate the generation or use of electricity or energy and that
reduce or support the reduction of energy consumption or support
the production of clean, renewable energy for industrial,
distribution, commercial, institutional, governmental, research,
not-for-profit, or residential energy users including, but not
limited to, advanced energy resources and renewable energy
resources. "Advanced energy project" includes any project
described in division (A), (B), or (C) of section 4928.621 of the
Revised Code.
(B) "Advanced energy resource" means any of the following:
(1) Any method or any modification or replacement of any
property, process, device, structure, or equipment that increases
the generation output of an electric generating facility to the
extent such efficiency is achieved without additional carbon
dioxide emissions by that facility;
(2) Any distributed generation system consisting of customer
cogeneration of electricity and thermal output simultaneously
technology, primarily to meet the energy needs of the customer's
facilities;
(3) Advanced nuclear energy technology consisting of
generation III technology as defined by the nuclear regulatory
commission; other, later technology; or significant improvements
to existing facilities;
(4) Any fuel cell used in the generation of electricity,
including, but not limited to, a proton exchange membrane fuel
cell, phosphoric acid fuel cell, molten carbonate fuel cell, or
solid oxide fuel cell;
(5) Advanced solid waste or construction and demolition
debris conversion technology, including, but not limited to,
advanced stoker technology, and advanced fluidized bed
gasification technology, that results in measurable greenhouse gas
emissions reductions as calculated pursuant to the United States
environmental protection agency's waste reduction model (WARM).
(C) "Air contaminant source" has the same meaning as in
section 3704.01 of the Revised Code.
(D) "Cogeneration technology" means technology that produces
electricity and useful thermal output simultaneously.
(E) "Renewable energy resource" means solar photovoltaic or
solar thermal energy, wind energy, power produced by a
hydroelectric facility, geothermal energy, fuel derived from solid
wastes, as defined in section 3734.01 of the Revised Code, through
fractionation, biological decomposition, or other process that
does not principally involve combustion, biomass energy, energy
produced by cogeneration technology that is placed into service on
or before December 31, 2015, and for which more than ninety per
cent of the total annual energy input is from combustion of a
waste or byproduct gas from an air contaminant source in this
state, which source has been in operation since on or before
January 1, 1985, provided that the cogeneration technology is a
part of a facility located in a county having a population of more
than three hundred sixty-five thousand but less than three hundred
seventy thousand according to the most recent federal decennial
census, biologically derived methane gas, or energy derived from
nontreated by-products of the pulping process or wood
manufacturing process, including bark, wood chips, sawdust, and
lignin in spent pulping liquors. "Renewable energy resource"
includes, but is not limited to, any fuel cell used in the
generation of electricity, including, but not limited to, a proton
exchange membrane fuel cell, phosphoric acid fuel cell, molten
carbonate fuel cell, or solid oxide fuel cell; wind turbine
located in the state's territorial waters of Lake Erie; methane
gas emitted from an abandoned coal mine; storage facility that
will promote the better utilization of a renewable energy resource
that primarily generates off peak; or distributed generation
system used by a customer to generate electricity from any such
energy. As used in this division, "hydroelectric facility" means a
hydroelectric generating facility that is located at a dam on a
river, or on any water discharged to a river, that is within or
bordering this state or within or bordering an adjoining state and
meets all of the following standards:
(1) The facility provides for river flows that are not
detrimental for fish, wildlife, and water quality, including
seasonal flow fluctuations as defined by the applicable licensing
agency for the facility.
(2) The facility demonstrates that it complies with the water
quality standards of this state, which compliance may consist of
certification under Section 401 of the "Clean Water Act of 1977,"
91 Stat. 1598, 1599, 33 U.S.C. 1341, and demonstrates that it has
not contributed to a finding by this state that the river has
impaired water quality under Section 303(d) of the "Clean Water
Act of 1977," 114 Stat. 870, 33 U.S.C. 1313.
(3) The facility complies with mandatory prescriptions
regarding fish passage as required by the federal energy
regulatory commission license issued for the project, regarding
fish protection for riverine, anadromous, and catadromus
catadromous fish.
(4) The facility complies with the recommendations of the
Ohio environmental protection agency and with the terms of its
federal energy regulatory commission license regarding watershed
protection, mitigation, or enhancement, to the extent of each
agency's respective jurisdiction over the facility.
(5) The facility complies with provisions of the "Endangered
Species Act of 1973," 87 Stat. 884, 16 U.S.C. 1531 to 1544, as
amended.
(6) The facility does not harm cultural resources of the
area. This can be shown through compliance with the terms of its
federal energy regulatory commission license or, if the facility
is not regulated by that commission, through development of a plan
approved by the Ohio historic preservation office, to the extent
it has jurisdiction over the facility.
(7) The facility complies with the terms of its federal
energy regulatory commission license or exemption that are related
to recreational access, accommodation, and facilities or, if the
facility is not regulated by that commission, the facility
complies with similar requirements as are recommended by resource
agencies, to the extent they have jurisdiction over the facility;
and the facility provides access to water to the public without
fee or charge.
(8) The facility is not recommended for removal by any
federal agency or agency of any state, to the extent the
particular agency has jurisdiction over the facility.
Sec. 4928.01. (A) As used in this chapter:
(1) "Ancillary service" means any function necessary to the
provision of electric transmission or distribution service to a
retail customer and includes, but is not limited to, scheduling,
system control, and dispatch services; reactive supply from
generation resources and voltage control service; reactive supply
from transmission resources service; regulation service; frequency
response service; energy imbalance service; operating
reserve-spinning reserve service; operating reserve-supplemental
reserve service; load following; back-up supply service;
real-power loss replacement service; dynamic scheduling; system
black start capability; and network stability service.
(2) "Billing and collection agent" means a fully independent
agent, not affiliated with or otherwise controlled by an electric
utility, electric services company, electric cooperative, or
governmental aggregator subject to certification under section
4928.08 of the Revised Code, to the extent that the agent is under
contract with such utility, company, cooperative, or aggregator
solely to provide billing and collection for retail electric
service on behalf of the utility company, cooperative, or
aggregator.
(3) "Certified territory" means the certified territory
established for an electric supplier under sections 4933.81 to
4933.90 of the Revised Code.
(4) "Competitive retail electric service" means a component
of retail electric service that is competitive as provided under
division (B) of this section.
(5) "Electric cooperative" means a not-for-profit electric
light company that both is or has been financed in whole or in
part under the "Rural Electrification Act of 1936," 49 Stat. 1363,
7 U.S.C. 901, and owns or operates facilities in this state to
generate, transmit, or distribute electricity, or a not-for-profit
successor of such company.
(6) "Electric distribution utility" means an electric utility
that supplies at least retail electric distribution service.
(7) "Electric light company" has the same meaning as in
section 4905.03 of the Revised Code and includes an electric
services company, but excludes any self-generator to the extent
that it consumes electricity it so produces, sells that
electricity for resale, or obtains electricity from a generating
facility it hosts on its premises.
(8) "Electric load center" has the same meaning as in section
4933.81 of the Revised Code.
(9) "Electric services company" means an electric light
company that is engaged on a for-profit or not-for-profit basis in
the business of supplying or arranging for the supply of only a
competitive retail electric service in this state. "Electric
services company" includes a power marketer, power broker,
aggregator, or independent power producer but excludes an electric
cooperative, municipal electric utility, governmental aggregator,
or billing and collection agent.
(10) "Electric supplier" has the same meaning as in section
4933.81 of the Revised Code.
(11) "Electric utility" means an electric light company that
has a certified territory and is engaged on a for-profit basis
either in the business of supplying a noncompetitive retail
electric service in this state or in the businesses of supplying
both a noncompetitive and a competitive retail electric service in
this state. "Electric utility" excludes a municipal electric
utility or a billing and collection agent.
(12) "Firm electric service" means electric service other
than nonfirm electric service.
(13) "Governmental aggregator" means a legislative authority
of a municipal corporation, a board of township trustees, or a
board of county commissioners acting as an aggregator for the
provision of a competitive retail electric service under authority
conferred under section 4928.20 of the Revised Code.
(14) A person acts "knowingly," regardless of the person's
purpose, when the person is aware that the person's conduct will
probably cause a certain result or will probably be of a certain
nature. A person has knowledge of circumstances when the person is
aware that such circumstances probably exist.
(15) "Level of funding for low-income customer energy
efficiency programs provided through electric utility rates" means
the level of funds specifically included in an electric utility's
rates on October 5, 1999, pursuant to an order of the public
utilities commission issued under Chapter 4905. or 4909. of the
Revised Code and in effect on October 4, 1999, for the purpose of
improving the energy efficiency of housing for the utility's
low-income customers. The term excludes the level of any such
funds committed to a specific nonprofit organization or
organizations pursuant to a stipulation or contract.
(16) "Low-income customer assistance programs" means the
percentage of income payment plan program, the home energy
assistance program, the home weatherization assistance program,
and the targeted energy efficiency and weatherization program.
(17) "Market development period" for an electric utility
means the period of time beginning on the starting date of
competitive retail electric service and ending on the applicable
date for that utility as specified in section 4928.40 of the
Revised Code, irrespective of whether the utility applies to
receive transition revenues under this chapter.
(18) "Market power" means the ability to impose on customers
a sustained price for a product or service above the price that
would prevail in a competitive market.
(19) "Mercantile customer" means a commercial or industrial
customer if the electricity consumed is for nonresidential use and
the customer consumes more than seven hundred thousand kilowatt
hours per year or is part of a national account involving multiple
facilities in one or more states.
(20) "Municipal electric utility" means a municipal
corporation that owns or operates facilities to generate,
transmit, or distribute electricity.
(21) "Noncompetitive retail electric service" means a
component of retail electric service that is noncompetitive as
provided under division (B) of this section.
(22) "Nonfirm electric service" means electric service
provided pursuant to a schedule filed under section 4905.30 of the
Revised Code or pursuant to an arrangement under section 4905.31
of the Revised Code, which schedule or arrangement includes
conditions that may require the customer to curtail or interrupt
electric usage during nonemergency circumstances upon notification
by an electric utility.
(23) "Percentage of income payment plan arrears" means funds
eligible for collection through the percentage of income payment
plan rider, but uncollected as of July 1, 2000.
(24) "Person" has the same meaning as in section 1.59 of the
Revised Code.
(25) "Advanced energy project" means any technologies,
products, activities, or management practices or strategies that
facilitate the generation or use of electricity or energy and that
reduce or support the reduction of energy consumption or support
the production of clean, renewable energy for industrial,
distribution, commercial, institutional, governmental, research,
not-for-profit, or residential energy users, including, but not
limited to, advanced energy resources and renewable energy
resources. "Advanced energy project" also includes any project
described in division (A), (B), or (C) of section 4928.621 of the
Revised Code.
(26) "Regulatory assets" means the unamortized net regulatory
assets that are capitalized or deferred on the regulatory books of
the electric utility, pursuant to an order or practice of the
public utilities commission or pursuant to generally accepted
accounting principles as a result of a prior commission
rate-making decision, and that would otherwise have been charged
to expense as incurred or would not have been capitalized or
otherwise deferred for future regulatory consideration absent
commission action. "Regulatory assets" includes, but is not
limited to, all deferred demand-side management costs; all
deferred percentage of income payment plan arrears;
post-in-service capitalized charges and assets recognized in
connection with statement of financial accounting standards no.
109 (receivables from customers for income taxes); future nuclear
decommissioning costs and fuel disposal costs as those costs have
been determined by the commission in the electric utility's most
recent rate or accounting application proceeding addressing such
costs; the undepreciated costs of safety and radiation control
equipment on nuclear generating plants owned or leased by an
electric utility; and fuel costs currently deferred pursuant to
the terms of one or more settlement agreements approved by the
commission.
(27) "Retail electric service" means any service involved in
supplying or arranging for the supply of electricity to ultimate
consumers in this state, from the point of generation to the point
of consumption. For the purposes of this chapter, retail electric
service includes one or more of the following "service
components": generation service, aggregation service, power
marketing service, power brokerage service, transmission service,
distribution service, ancillary service, metering service, and
billing and collection service.
(28) "Starting date of competitive retail electric service"
means January 1, 2001.
(29) "Customer-generator" means a user of a net metering
system.
(30) "Net metering" means measuring the difference in an
applicable billing period between the electricity supplied by an
electric service provider and the electricity generated by a
customer-generator that is fed back to the electric service
provider.
(31) "Net metering system" means a facility for the
production of electrical energy that does all of the following:
(a) Uses as its fuel either solar, wind, biomass, landfill
gas, or hydropower, or uses a microturbine or a fuel cell;
(b) Is located on a customer-generator's premises;
(c) Operates in parallel with the electric utility's
transmission and distribution facilities;
(d) Is intended primarily to offset part or all of the
customer-generator's requirements for electricity.
(32) "Self-generator" means an entity in this state that owns
or hosts on its premises an electric generation facility that
produces electricity primarily for the owner's consumption and
that may provide any such excess electricity to another entity,
whether the facility is installed or operated by the owner or by
an agent under a contract.
(33) "Rate plan" means the standard service offer in effect
on the effective date of the amendment of this section by S.B. 221
of the 127th general assembly, July 31, 2008.
(34) "Advanced energy resource" means any of the following:
(a) Any method or any modification or replacement of any
property, process, device, structure, or equipment that increases
the generation output of an electric generating facility to the
extent such efficiency is achieved without additional carbon
dioxide emissions by that facility;
(b) Any distributed generation system consisting of customer
cogeneration of electricity and thermal output simultaneously
technology;
(c) Clean coal technology that includes a carbon-based
product that is chemically altered before combustion to
demonstrate a reduction, as expressed as ash, in emissions of
nitrous oxide, mercury, arsenic, chlorine, sulfur dioxide, or
sulfur trioxide in accordance with the American society of testing
and materials standard D1757A or a reduction of metal oxide
emissions in accordance with standard D5142 of that society, or
clean coal technology that includes the design capability to
control or prevent the emission of carbon dioxide, which design
capability the commission shall adopt by rule and shall be based
on economically feasible best available technology or, in the
absence of a determined best available technology, shall be of the
highest level of economically feasible design capability for which
there exists generally accepted scientific opinion;
(d) Advanced nuclear energy technology consisting of
generation III technology as defined by the nuclear regulatory
commission; other, later technology; or significant improvements
to existing facilities;
(e) Any fuel cell used in the generation of electricity,
including, but not limited to, a proton exchange membrane fuel
cell, phosphoric acid fuel cell, molten carbonate fuel cell, or
solid oxide fuel cell;
(f) Advanced solid waste or construction and demolition
debris conversion technology, including, but not limited to,
advanced stoker technology, and advanced fluidized bed
gasification technology, that results in measurable greenhouse gas
emissions reductions as calculated pursuant to the United States
environmental protection agency's waste reduction model (WARM).
(g) Demand-side management and any energy efficiency
improvement.
(35) "Air contaminant source" has the same meaning as in
section 3704.01 of the Revised Code.
(36) "Cogeneration technology" means technology that produces
electricity and useful thermal output simultaneously.
(37) "Renewable energy resource" means solar photovoltaic or
solar thermal energy, wind energy, power produced by a
hydroelectric facility, geothermal energy, fuel derived from solid
wastes, as defined in section 3734.01 of the Revised Code, through
fractionation, biological decomposition, or other process that
does not principally involve combustion, biomass energy, energy
produced by cogeneration technology that is placed into service on
or before December 31, 2015, and for which more than ninety per
cent of the total annual energy input is from combustion of a
waste or byproduct gas from an air contaminant source in this
state, which source has been in operation since on or before
January 1, 1985, provided that the cogeneration technology is a
part of a facility located in a county having a population of more
than three hundred sixty-five thousand but less than three hundred
seventy thousand according to the most recent federal decennial
census, biologically derived methane gas, or energy derived from
nontreated by-products of the pulping process or wood
manufacturing process, including bark, wood chips, sawdust, and
lignin in spent pulping liquors. "Renewable energy resource"
includes, but is not limited to, any fuel cell used in the
generation of electricity, including, but not limited to, a proton
exchange membrane fuel cell, phosphoric acid fuel cell, molten
carbonate fuel cell, or solid oxide fuel cell; wind turbine
located in the state's territorial waters of Lake Erie; methane
gas emitted from an abandoned coal mine; storage facility that
will promote the better utilization of a renewable energy resource
that primarily generates off peak; or distributed generation
system used by a customer to generate electricity from any such
energy. As used in division (A)(35)(37) of this section,
"hydroelectric facility" means a hydroelectric generating facility
that is located at a dam on a river, or on any water discharged to
a river, that is within or bordering this state or within or
bordering an adjoining state and meets all of the following
standards:
(a) The facility provides for river flows that are not
detrimental for fish, wildlife, and water quality, including
seasonal flow fluctuations as defined by the applicable licensing
agency for the facility.
(b) The facility demonstrates that it complies with the water
quality standards of this state, which compliance may consist of
certification under Section 401 of the "Clean Water Act of 1977,"
91 Stat. 1598, 1599, 33 U.S.C. 1341, and demonstrates that it has
not contributed to a finding by this state that the river has
impaired water quality under Section 303(d) of the "Clean Water
Act of 1977," 114 Stat. 870, 33 U.S.C. 1313.
(c) The facility complies with mandatory prescriptions
regarding fish passage as required by the federal energy
regulatory commission license issued for the project, regarding
fish protection for riverine, anadromous, and catadromous fish.
(d) The facility complies with the recommendations of the
Ohio environmental protection agency and with the terms of its
federal energy regulatory commission license regarding watershed
protection, mitigation, or enhancement, to the extent of each
agency's respective jurisdiction over the facility.
(e) The facility complies with provisions of the "Endangered
Species Act of 1973," 87 Stat. 884, 16 U.S.C. 1531 to 1544, as
amended.
(f) The facility does not harm cultural resources of the
area. This can be shown through compliance with the terms of its
federal energy regulatory commission license or, if the facility
is not regulated by that commission, through development of a plan
approved by the Ohio historic preservation office, to the extent
it has jurisdiction over the facility.
(g) The facility complies with the terms of its federal
energy regulatory commission license or exemption that are related
to recreational access, accommodation, and facilities or, if the
facility is not regulated by that commission, the facility
complies with similar requirements as are recommended by resource
agencies, to the extent they have jurisdiction over the facility;
and the facility provides access to water to the public without
fee or charge.
(h) The facility is not recommended for removal by any
federal agency or agency of any state, to the extent the
particular agency has jurisdiction over the facility.
(B) For the purposes of this chapter, a retail electric
service component shall be deemed a competitive retail electric
service if the service component is competitive pursuant to a
declaration by a provision of the Revised Code or pursuant to an
order of the public utilities commission authorized under division
(A) of section 4928.04 of the Revised Code. Otherwise, the service
component shall be deemed a noncompetitive retail electric
service.
SECTION 2. That existing sections 3706.25 and 4928.01 of the
Revised Code are hereby repealed.
SECTION 3. Section 4928.01 of the Revised Code is presented
in this act as a composite of the section as amended by both Am.
Sub. S.B. 181 and Am. Sub. S.B. 232 of the 128th General Assembly.
The General Assembly, applying the principle stated in division
(B) of section 1.52 of the Revised Code that amendments are to be
harmonized if reasonably capable of simultaneous operation, finds
that the composite is the resulting version of the section in
effect prior to the effective date of the section as presented in
this act.
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