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S. B. No. 315 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
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Senator Jones (by request)
A BILL
To amend sections 122.075, 123.011, 125.836, 133.06,
156.01, 156.02, 156.03, 156.04, 303.213, 1505.09,
1509.01, 1509.02, 1509.03, 1509.06, 1509.07,
1509.10, 1509.11, 1509.22, 1509.221, 1509.222,
1509.223, 1509.23, 1509.31, 1509.50, 1514.01,
1514.02, 1514.021, 1514.03, 1514.05, 3706.27,
4905.90, 4905.91, 4905.95, 4906.01, 4906.03,
4906.05, 4906.06, 4906.07, 4906.10, 4906.20,
4906.99, 4928.01, 4928.02, 4928.143, 4928.61,
4928.62, 4928.66, 4935.04, and 6111.30 and to
enact sections 4905.911, 4928.111, 4928.70,
4928.71, 4928.72, and 6111.32 of the Revised Code
to make changes to the energy and natural
resources laws and related programs of the state.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 101.01. That sections 122.075, 123.011, 125.836,
133.06, 156.01, 156.02, 156.03, 156.04, 303.213, 1505.09, 1509.01,
1509.02, 1509.03, 1509.06, 1509.07, 1509.10, 1509.11, 1509.22,
1509.221, 1509.222, 1509.223, 1509.23, 1509.31, 1509.50, 1514.01,
1514.02, 1514.021, 1514.03, 1514.05, 3706.27, 4905.90, 4905.91,
4905.95, 4906.01, 4906.03, 4906.05, 4906.06, 4906.07, 4906.10,
4906.20, 4906.99, 4928.01, 4928.02, 4928.143, 4928.61, 4928.62,
4928.66, 4935.04, and 6111.30 be amended and sections 4905.911,
4928.111, 4928.70, 4928.71, 4928.72, and 6111.32 of the Revised
Code be enacted to read as follows:
Sec. 122.075. (A) As used in this section:
(1) "Alternative fuel" has the same meaning as in section
125.831 of the Revised Code.
(2) "Biodiesel" means a mono-alkyl ester combustible liquid
fuel that is derived from vegetable oils or animal fats, or any
combination of those reagents, and that meets American society for
testing and materials specification D6751-03a for biodiesel fuel
(B100) blend stock distillate fuels.
(3) "Diesel fuel" and "gasoline" have the same meanings as in
section 5735.01 of the Revised Code.
(4) "Ethanol" has the same meaning as in section 5733.46 of
the Revised Code.
(5) "Blended biodiesel" means diesel fuel containing at least
twenty per cent biodiesel by volume.
(6) "Blended gasoline" means gasoline containing at least
eighty-five per cent ethanol by volume.
(7) "Incremental cost" means either of the following:
(a) The difference in cost between blended gasoline and
gasoline containing ten per cent or less ethanol at the time that
the blended gasoline is purchased;
(b) The difference in cost between blended biodiesel and
diesel fuel containing two per cent or less biodiesel at the time
that the blended biodiesel is purchased.
(B) For the purpose of improving the air quality in this
state, the director of development shall establish an alternative
fuel transportation grant program under which the director may
make grants and loans to businesses, nonprofit organizations,
public school systems, or local governments for the purchase and
installation of alternative fuel refueling or distribution
facilities and terminals, for the purchase and use of alternative
fuel, and to pay the costs of educational and promotional
materials and activities intended for prospective alternative fuel
consumers, fuel marketers, and others in order to increase the
availability and use of alternative fuel.
(C) The director, in consultation with the director of
agriculture, shall adopt rules in accordance with Chapter 119. of
the Revised Code that are necessary for the administration of the
alternative fuel transportation grant program. The rules shall
establish at least all of the following:
(1) An application form and procedures governing the
application process for a grant receiving funds under the program;
(2) A procedure for prioritizing the award of grants and
loans under the program. The procedures shall give preference to
all of the following:
(a) Publicly accessible refueling facilities;
(b) Entities seeking grants applying to the program that have
secured funding from other sources, including, but not limited to,
private or federal
grants incentives;
(c) Entities that have presented compelling evidence of
demand in the market in which the facilities or terminals will be
located;
(d) Entities that have committed to utilizing purchased or
installed facilities or terminals for the greatest number of
years;
(e) Entities that will be purchasing or installing facilities
or terminals for any type of alternative fuel.
(3) A requirement that the maximum grant incentive for the
purchase and installation of an alternative fuel refueling or
distribution facility or terminal be eighty per cent of the cost
of the facility or terminal, except that at least twenty per cent
of the total net cost of the facility or terminal shall be
incurred by the grant recipient and not compensated for by any
other source;
(4) A requirement that the maximum grant incentive for the
purchase of alternative fuel be eighty per cent of the cost of the
fuel or, in the case of blended biodiesel or blended gasoline,
eighty per cent of the incremental cost of the blended biodiesel
or blended gasoline;
(5) Any other criteria, procedures, or guidelines that the
director determines are necessary to administer the program,
including fees, charges, interest rates, and payment schedules.
(D) An applicant for a grant or loan under this section that
sells motor vehicle fuel at retail shall agree that if the
applicant receives a grant funding, the applicant will report to
the director the gallon or gallon equivalent amounts of
alternative fuel the applicant sells at retail in this state for a
period of three years after the grant is awarded project is
completed.
The director shall enter into a written confidentiality
agreement with the applicant regarding the gallon or gallon
equivalent amounts sold as described in this division, and upon
execution of the agreement this information is not a public
record.
(E) There is hereby created in the state treasury the
alternative fuel transportation grant fund. The fund shall consist
of money transferred to the fund under division (C) of section
125.836 and under division (B)(2) of section 3706.27 of the
Revised Code, money that is appropriated to it by the general
assembly, and money as may be specified by the general assembly
from the advanced energy fund created by section 4928.61 of the
Revised Code. Money in the fund shall be used to make grants and
loans under the alternative fuel transportation grant program and
by the director in the administration of that program.
Sec. 123.011. (A) As used in this section:
(1) "Construct" includes reconstruct, improve, renovate,
enlarge, or otherwise alter.
(2) "Energy consumption analysis" means the evaluation of all
energy consuming systems, components, and equipment by demand and
type of energy, including the internal energy load imposed on a
facility by its occupants and the external energy load imposed by
climatic conditions.
(3) "Energy performance index" means a number describing the
energy requirements of a facility per square foot of floor space
or per cubic foot of occupied volume as appropriate under defined
internal and external ambient conditions over an entire seasonal
cycle.
(4) "Facility" means a building or other structure, or part
of a building or other structure, that includes provision for a
heating, refrigeration, ventilation, cooling, lighting, hot water,
or other major energy consuming system, component, or equipment.
(5) "Life-cycle cost analysis" means a general approach to
economic evaluation that takes into account all dollar costs
related to owning, operating, maintaining, and ultimately
disposing of a project over the appropriate study period.
(6) "Political subdivision" means a county, township,
municipal corporation, board of education of any school district,
or any other body corporate and politic that is responsible for
government activities in a geographic area smaller than that of
the state.
(7) "State funded" means funded in whole or in part through
appropriation by the general assembly or through the use of any
guarantee provided by this state.
(8) "State institution of higher education" has the same
meaning as in section 3345.011 of the Revised Code.
(9) "Cogeneration" means the simultaneous production of
thermal energy and electricity for use primarily within a building
or complex of buildings.
(B) There is hereby created within the department of
administrative services the office of energy services. The office
shall be under the supervision of a manager, who shall be
appointed by the director of administrative services. The director
shall assign to the office such number of employees and furnish
such equipment and supplies as are necessary for the performance
of the office's duties.
The office shall develop energy efficiency and conservation
programs in each of the following areas:
(1) New construction design and review;
(2) Existing building audit and retrofit;
(3) Energy efficient procurement;
(4) Alternative fuel vehicles.
The office may accept and administer grants from public and
private sources for carrying out any of its duties under this
section.
(C) No state agency, department, division, bureau, office,
unit, board, commission, authority, quasi-governmental entity, or
institution, including those agencies otherwise excluded from the
jurisdiction of the department under division (A)(3) of section
123.01 of the Revised Code, shall lease, construct, or cause to be
leased or constructed, within the limits prescribed in this
section, a state-funded facility, without a proper life-cycle cost
analysis or, in the case of a lease, an energy consumption
analysis, as computed or prepared by a qualified architect or
engineer in accordance with the rules required by division (D) of
this section.
Construction shall proceed only upon the disclosure to the
office, for the facility chosen, of the life-cycle costs as
determined in this section and the capitalization of the initial
construction costs of the building. The results of life-cycle cost
analysis shall be a primary consideration in the selection of a
building design. That analysis shall be required only for
construction of buildings with an area of five thousand square
feet or greater. For projects with an estimated construction cost
exceeding fifty million dollars, the analysis shall include a
review of cogeneration as an energy source. An energy consumption
analysis for the term of a proposed lease shall be required only
for the leasing of an area of twenty thousand square feet or
greater within a given building boundary. That analysis shall be a
primary consideration in the selection of a facility to be leased.
Nothing in this section shall deprive or limit any state
agency that has review authority over design, construction, or
leasing plans from requiring a life-cycle cost analysis or energy
consumption analysis.
(D) For the purposes of assisting the department in its
responsibility for state-funded facilities pursuant to section
123.01 of the Revised Code and of cost-effectively reducing the
energy consumption of those and any other state-funded facilities,
thereby promoting fiscal, economic, and environmental benefits to
this state, the office shall promulgate rules specifying
cost-effective, energy efficiency and conservation standards that
may govern the lease, design, construction, operation, and
maintenance of all state-funded facilities, except facilities of
state institutions of higher education or facilities operated by a
political subdivision. The office of energy efficiency in the
department of development shall cooperate in providing information
and technical expertise to the office of energy services to ensure
promulgation of rules of maximum effectiveness. The standards
prescribed by rules promulgated under this division may draw from
or incorporate, by reference or otherwise and in whole or in part,
standards already developed or implemented by any competent,
public or private standards organization or program. The rules
also may include any of the following:
(1) Specifications for a life-cycle cost analysis that shall
determine, for the economic life of such state-funded facility,
the reasonably expected costs of facility ownership, operation,
and maintenance including labor and materials. Life-cycle cost may
be expressed as an annual cost for each year of the facility's
use.
A life-cycle cost analysis additionally may include an energy
consumption analysis that conforms to division (D)(2) of this
section.
(2) Specifications for an energy consumption analysis of the
facility's heating, refrigeration, ventilation, cooling, lighting,
hot water, and other major energy consuming systems, components,
and equipment.
A life-cycle cost analysis and energy consumption analysis
shall be based on the best currently available methods of
analysis, such as those of the national institute of standards and
technology, the United States department of energy or other
federal agencies, professional societies, and directions developed
by the department.
(3) Specifications for energy performance indices, to be used
to audit and evaluate competing design proposals submitted to the
state.
(4) A requirement that, not later than two years after April
6, 2007, each state-funded facility, except a facility of a state
institution of higher education or a facility operated by a
political subdivision, is managed by at least one building
operator certified under the building operator certification
program or any equivalent program or standards as shall be
prescribed in the rules and considered reasonably equivalent.
(5) An application process by which a manager of a specified
state-funded facility, except a facility of a state institution of
higher education or a facility operated by a political
subdivision, may apply for a waiver of compliance with any
provision of the rules required by divisions (D)(1) to (4) of this
section.
(E) The office of energy services shall promulgate rules to
ensure that energy efficiency and conservation will be considered
in the purchase of products and equipment, except motor vehicles,
by any state agency, department, division, bureau, office, unit,
board, commission, authority, quasi-governmental entity, or
institution. Minimum energy efficiency standards for purchased
products and equipment may be required, based on federal testing
and labeling where available or on standards developed by the
office. The rules shall apply to the competitive selection of
energy consuming systems, components, and equipment under Chapter
125. of the Revised Code where possible.
The office also shall ensure energy efficient and energy
conserving purchasing practices by doing all of the following:
(1) Cooperatively with the office of energy efficiency,
identifying available energy efficiency and conservation
opportunities;
(2) Providing for interchange of information among purchasing
agencies;
(3) Identifying laws, policies, rules, and procedures that
need modification;
(4) Monitoring experience with and the cost-effectiveness of
this state's purchase and use of motor vehicles and of major
energy-consuming systems, components, equipment, and products
having a significant impact on energy consumption by government;
(5) Cooperatively with the office of energy efficiency,
providing technical assistance and training to state employees
involved in the purchasing process.
The department of development shall make recommendations to
the office regarding planning and implementation of purchasing
policies and procedures supportive of energy efficiency and
conservation.
(F)(1) The office of energy services shall require all state
agencies, departments, divisions, bureaus, offices, units,
commissions, boards, authorities, quasi-governmental entities,
institutions, and state institutions of higher education to
implement procedures ensuring that all their passenger automobiles
acquired in each fiscal year, except for those passenger
automobiles acquired for use in law enforcement or emergency
rescue work, achieve a fleet average fuel economy of not less than
the fleet average fuel economy for that fiscal year as shall be
prescribed by the office by rule. The office shall promulgate the
rule prior to the beginning of the fiscal year in accordance with
the average fuel economy standards established pursuant to federal
law for passenger automobiles manufactured during the model year
that begins during the fiscal year.
(2) Each state agency, department, division, bureau, office,
unit, commission, board, authority, quasi-governmental entity,
institution, and state institution of higher education shall
determine its fleet average fuel economy by dividing:
(a) The total number of passenger vehicles acquired during
the fiscal year, except for those passenger vehicles acquired for
use in law enforcement or emergency rescue work, by
(b) A sum of terms, each of which is a fraction created by
dividing:
(i) The number of passenger vehicles of a given make, model,
and year, except for passenger vehicles acquired for use in law
enforcement or emergency rescue work, acquired during the fiscal
year, by
(ii) The fuel economy measured by the administrator of the
United States environmental protection agency, for the given make,
model, and year of vehicle, that constitutes an average fuel
economy for combined city and highway driving.
As used in division (F)(2) of this section, "acquired" means
leased for a period of sixty continuous days or more, or
purchased.
(G) Each state agency, department, division, bureau, office,
unit, board, commission, authority, quasi-governmental entity,
institution, and state institution of higher education shall
comply with any applicable provision of this section or of a rule
promulgated pursuant to division (D) or (F) of this section.
Sec. 125.836. (A) As used in this section:
(1) "Biodiesel," "blended biodiesel," and "diesel fuel" have
the same meanings as in section 125.831 of the Revised Code.
(2) "Credit" means a credit generated by the acquisition of
alternative fueled vehicles in accordance with the "Energy Policy
Act of 1992," 106 Stat. 2897, 42 U.S.C. 13257.
(3) "Incremental cost" means the difference in cost between
blended biodiesel and conventional petroleum-based diesel fuel at
the time the blended biodiesel is purchased.
(B) The department of administrative services shall establish
and administer a credit banking and selling program. The
department may sell or trade credits in accordance with procedures
established pursuant to the "Energy Policy Act of 1992," 106 Stat.
2897, 42 U.S.C. 13258.
(C) There is hereby created in the state treasury the
"biodiesel revolving fund," to which shall be credited moneys
received from the sale of credits under this section, any moneys
appropriated to the fund by the general assembly, and any other
moneys obtained or accepted by the department for crediting to the
fund. Moneys credited to the fund shall be used to pay for the
incremental cost of biodiesel for use in vehicles owned or leased
by the state that use diesel fuel. The director of administrative
services, after consultation with the director of development, may
direct the director of budget and management to transfer available
moneys in the biodiesel revolving fund to the alternative fuel
transportation grant fund created in section 122.075 of the
Revised Code to be used by the department of development for the
purposes specified in that section.
(D) The director of administrative services shall adopt rules
under Chapter 119. of the Revised Code that are necessary for the
administration of the credit banking and selling program.
Sec. 133.06. (A) A school district shall not incur, without
a vote of the electors, net indebtedness that exceeds an amount
equal to one-tenth of one per cent of its tax valuation, except as
provided in divisions (G) and (H) of this section and in division
(C) of section 3313.372 of the Revised Code, or as prescribed in
section 3318.052 or 3318.44 of the Revised Code, or as provided in
division (J) of this section.
(B) Except as provided in divisions (E), (F), and (I) of this
section, a school district shall not incur net indebtedness that
exceeds an amount equal to nine per cent of its tax valuation.
(C) A school district shall not submit to a vote of the
electors the question of the issuance of securities in an amount
that will make the district's net indebtedness after the issuance
of the securities exceed an amount equal to four per cent of its
tax valuation, unless the superintendent of public instruction,
acting under policies adopted by the state board of education, and
the tax commissioner, acting under written policies of the
commissioner, consent to the submission. A request for the
consents shall be made at least one hundred twenty days prior to
the election at which the question is to be submitted.
The superintendent of public instruction shall certify to the
district the superintendent's and the tax commissioner's decisions
within thirty days after receipt of the request for consents.
If the electors do not approve the issuance of securities at
the election for which the superintendent of public instruction
and tax commissioner consented to the submission of the question,
the school district may submit the same question to the electors
on the date that the next special election may be held under
section 3501.01 of the Revised Code without submitting a new
request for consent. If the school district seeks to submit the
same question at any other subsequent election, the district shall
first submit a new request for consent in accordance with this
division.
(D) In calculating the net indebtedness of a school district,
none of the following shall be considered:
(1) Securities issued to acquire school buses and other
equipment used in transporting pupils or issued pursuant to
division (D) of section 133.10 of the Revised Code;
(2) Securities issued under division (F) of this section,
under section 133.301 of the Revised Code, and, to the extent in
excess of the limitation stated in division (B) of this section,
under division (E) of this section;
(3) Indebtedness resulting from the dissolution of a joint
vocational school district under section 3311.217 of the Revised
Code, evidenced by outstanding securities of that joint vocational
school district;
(4) Loans, evidenced by any securities, received under
sections 3313.483, 3317.0210, 3317.0211, and 3317.64 of the
Revised Code;
(5) Debt incurred under section 3313.374 of the Revised Code;
(6) Debt incurred pursuant to division (B)(5) of section
3313.37 of the Revised Code to acquire computers and related
hardware;
(7) Debt incurred under section 3318.042 of the Revised Code.
(E) A school district may become a special needs district as
to certain securities as provided in division (E) of this section.
(1) A board of education, by resolution, may declare its
school district to be a special needs district by determining both
of the following:
(a) The student population is not being adequately serviced
by the existing permanent improvements of the district.
(b) The district cannot obtain sufficient funds by the
issuance of securities within the limitation of division (B) of
this section to provide additional or improved needed permanent
improvements in time to meet the needs.
(2) The board of education shall certify a copy of that
resolution to the superintendent of public instruction with a
statistical report showing all of the following:
(a) The history of and a projection of the growth of the tax
valuation;
(c) The estimated cost of permanent improvements proposed to
meet such projected needs.
(3) The superintendent of public instruction shall certify
the district as an approved special needs district if the
superintendent finds both of the following:
(a) The district does not have available sufficient
additional funds from state or federal sources to meet the
projected needs.
(b) The projection of the potential average growth of tax
valuation during the next five years, according to the information
certified to the superintendent and any other information the
superintendent obtains, indicates a likelihood of potential
average growth of tax valuation of the district during the next
five years of an average of not less than one and one-half per
cent per year. The findings and certification of the
superintendent shall be conclusive.
(4) An approved special needs district may incur net
indebtedness by the issuance of securities in accordance with the
provisions of this chapter in an amount that does not exceed an
amount equal to the greater of the following:
(a) Twelve per cent of the sum of its tax valuation plus an
amount that is the product of multiplying that tax valuation by
the percentage by which the tax valuation has increased over the
tax valuation on the first day of the sixtieth month preceding the
month in which its board determines to submit to the electors the
question of issuing the proposed securities;
(b) Twelve per cent of the sum of its tax valuation plus an
amount that is the product of multiplying that tax valuation by
the percentage, determined by the superintendent of public
instruction, by which that tax valuation is projected to increase
during the next ten years.
(F) A school district may issue securities for emergency
purposes, in a principal amount that does not exceed an amount
equal to three per cent of its tax valuation, as provided in this
division.
(1) A board of education, by resolution, may declare an
emergency if it determines both of the following:
(a) School buildings or other necessary school facilities in
the district have been wholly or partially destroyed, or condemned
by a constituted public authority, or that such buildings or
facilities are partially constructed, or so constructed or planned
as to require additions and improvements to them before the
buildings or facilities are usable for their intended purpose, or
that corrections to permanent improvements are necessary to remove
or prevent health or safety hazards.
(b) Existing fiscal and net indebtedness limitations make
adequate replacement, additions, or improvements impossible.
(2) Upon the declaration of an emergency, the board of
education may, by resolution, submit to the electors of the
district pursuant to section 133.18 of the Revised Code the
question of issuing securities for the purpose of paying the cost,
in excess of any insurance or condemnation proceeds received by
the district, of permanent improvements to respond to the
emergency need.
(3) The procedures for the election shall be as provided in
section 133.18 of the Revised Code, except that:
(a) The form of the ballot shall describe the emergency
existing, refer to this division as the authority under which the
emergency is declared, and state that the amount of the proposed
securities exceeds the limitations prescribed by division (B) of
this section;
(b) The resolution required by division (B) of section 133.18
of the Revised Code shall be certified to the county auditor and
the board of elections at least one hundred days prior to the
election;
(c) The county auditor shall advise and, not later than
ninety-five days before the election, confirm that advice by
certification to, the board of education of the information
required by division (C) of section 133.18 of the Revised Code;
(d) The board of education shall then certify its resolution
and the information required by division (D) of section 133.18 of
the Revised Code to the board of elections not less than ninety
days prior to the election.
(4) Notwithstanding division (B) of section 133.21 of the
Revised Code, the first principal payment of securities issued
under this division may be set at any date not later than sixty
months after the earliest possible principal payment otherwise
provided for in that division.
(G) The board of education may contract with an architect,
professional engineer, or other person experienced in the design
and implementation of energy conservation measures for an analysis
and recommendations pertaining to installations, modifications of
installations, or remodeling that would significantly reduce
energy consumption in buildings owned by the district. The report
shall include estimates of all costs of such installations,
modifications, or remodeling, including costs of design,
engineering, installation, maintenance, repairs, and debt service,
forgone residual value of materials or equipment replaced by the
energy conservation measure, as defined by the Ohio school
facilities commission, a baseline analysis of actual energy
consumption data for the preceding five three years, and estimates
of the amounts by which energy consumption and resultant
operational and maintenance costs, as defined by the commission,
would be reduced.
If the board finds after receiving the report that the amount
of money the district would spend on such installations,
modifications, or remodeling is not likely to exceed the amount of
money it would save in energy and resultant operational and
maintenance costs over the ensuing fifteen years, the board may
submit to the commission a copy of its findings and a request for
approval to incur indebtedness to finance the making or
modification of installations or the remodeling of buildings for
the purpose of significantly reducing energy consumption.
If the commission determines that the board's findings are
reasonable, it shall approve the board's request. Upon receipt of
the commission's approval, the district may issue securities
without a vote of the electors in a principal amount not to exceed
nine-tenths of one per cent of its tax valuation for the purpose
of making such installations, modifications, or remodeling, but
the total net indebtedness of the district without a vote of the
electors incurred under this and all other sections of the Revised
Code, except section 3318.052 of the Revised Code, shall not
exceed one per cent of the district's tax valuation.
So long as any securities issued under division (G) of this
section remain outstanding, the board of education shall monitor
the energy consumption and resultant operational and maintenance
costs of buildings in which installations or modifications have
been made or remodeling has been done pursuant to division (G) of
this section and shall maintain and annually update a report
documenting the reductions in energy consumption and resultant
operational and maintenance cost savings attributable to such
installations, modifications, or remodeling. The report shall be
certified by an architect or engineer independent of any person
that provided goods or services to the board in connection with
the energy conservation measures that are the subject of the
report. The resultant operational and maintenance cost savings
shall be certified by the school district treasurer. The report
shall be submitted annually to the commission.
(H) With the consent of the superintendent of public
instruction, a school district may incur without a vote of the
electors net indebtedness that exceeds the amounts stated in
divisions (A) and (G) of this section for the purpose of paying
costs of permanent improvements, if and to the extent that both of
the following conditions are satisfied:
(1) The fiscal officer of the school district estimates that
receipts of the school district from payments made under or
pursuant to agreements entered into pursuant to section 725.02,
1728.10, 3735.671, 5709.081, 5709.082, 5709.40, 5709.41, 5709.62,
5709.63, 5709.632, 5709.73, 5709.78, or 5709.82 of the Revised
Code, or distributions under division (C) of section 5709.43 of
the Revised Code, or any combination thereof, are, after
accounting for any appropriate coverage requirements, sufficient
in time and amount, and are committed by the proceedings, to pay
the debt charges on the securities issued to evidence that
indebtedness and payable from those receipts, and the taxing
authority of the district confirms the fiscal officer's estimate,
which confirmation is approved by the superintendent of public
instruction;
(2) The fiscal officer of the school district certifies, and
the taxing authority of the district confirms, that the district,
at the time of the certification and confirmation, reasonably
expects to have sufficient revenue available for the purpose of
operating such permanent improvements for their intended purpose
upon acquisition or completion thereof, and the superintendent of
public instruction approves the taxing authority's confirmation.
The maximum maturity of securities issued under division (H)
of this section shall be the lesser of twenty years or the maximum
maturity calculated under section 133.20 of the Revised Code.
(I) A school district may incur net indebtedness by the
issuance of securities in accordance with the provisions of this
chapter in excess of the limit specified in division (B) or (C) of
this section when necessary to raise the school district portion
of the basic project cost and any additional funds necessary to
participate in a project under Chapter 3318. of the Revised Code,
including the cost of items designated by the Ohio school
facilities commission as required locally funded initiatives, the
cost of other locally funded initiatives in an amount that does
not exceed fifty per cent of the district's portion of the basic
project cost, and the cost for site acquisition. The school
facilities commission shall notify the superintendent of public
instruction whenever a school district will exceed either limit
pursuant to this division.
(J) A school district whose portion of the basic project cost
of its classroom facilities project under sections 3318.01 to
3318.20 of the Revised Code is greater than or equal to one
hundred million dollars may incur without a vote of the electors
net indebtedness in an amount up to two per cent of its tax
valuation through the issuance of general obligation securities in
order to generate all or part of the amount of its portion of the
basic project cost if the controlling board has approved the
school facilities commission's conditional approval of the project
under section 3318.04 of the Revised Code. The school district
board and the Ohio school facilities commission shall include the
dedication of the proceeds of such securities in the agreement
entered into under section 3318.08 of the Revised Code. No state
moneys shall be released for a project to which this section
applies until the proceeds of any bonds issued under this section
that are dedicated for the payment of the school district portion
of the project are first deposited into the school district's
project construction fund.
Sec. 156.01. As used in sections 156.01 to 156.05 of the
Revised Code:
(A) "Avoided capital costs" means a measured reduction in the
cost of future equipment or other capital purchases that results
from implementation of one or more energy or water conservation
measures, when compared to an established baseline for previous
such cost.
(B) "Energy conservation measure" means an installation or
modification of an installation in, or a remodeling of, an
existing building in order to reduce energy consumption and
operating costs. The term includes any of the following:
(1) Installation or modification of insulation in the
building structure and systems within the building;
(2) Installation or modification of storm windows and doors,
multiglazed windows and doors, and heat absorbing or heat
reflective glazed and coated window and door systems; installation
of additional glazing; reductions in glass area; and other window
and door system modifications that reduce energy consumption and
operating costs;
(3) Installation or modification of automatic energy control
systems;
(4) Replacement or modification of heating, ventilating, or
air conditioning systems;
(5) Application of caulking and weather stripping;
(6) Replacement or modification of lighting fixtures to
increase the energy efficiency of the lighting system without
increasing the overall illumination of a building unless the
increase in illumination is necessary to conform to the applicable
state or local building code for the proposed lighting system;
(7) Installation or modification of energy recovery systems;
(8) Installation or modification of cogeneration systems that
produce steam or forms of energy such as heat, as well as
electricity, for use primarily within a building or complex of
buildings;
(9) Installation or modification of trigeneration systems
that produce heat and cooling, as well as electricity, for use
primarily within a building or complex of buildings;
(10) Installation or modification of systems that harvest
renewable energy from solar, wind, water, biomass, bio-gas, or
geothermal sources, for use primarily within a building or complex
of buildings;
(11) Retro-commissioning or recommissioning energy-related
systems to verify that they are installed and calibrated to
optimize energy and operational performance within a building or
complex of buildings;
(12) Consolidation, virtualization, and optimization of
computer servers, data storage devices, or other information
technology hardware and infrastructure;
(13) Any other modification, installation, or remodeling
approved by the director of administrative services as an energy
conservation measure for one or more buildings owned by the either
of the following:
(b) A state institution of higher education as defined in
section 3345.011 of the Revised Code that implements the energy
conservation measure in consultation with the director.
(C) "Energy saving measure" means the acquisition and
installation, by purchase, lease, lease-purchase, lease with an
option to buy, or installment purchase, of an energy conservation
measure and any attendant architectural and engineering consulting
services.
(D) "Energy, water, or wastewater cost savings" means a
measured reduction in, as applicable, the cost of fuel, energy or
water consumption, wastewater production, or stipulated operation
or maintenance resulting from the implementation of one or more
energy or water conservation measures, when compared to an
established baseline for previous such costs, respectively.
(E) "Operating cost savings" means a measured reduction in
the cost of stipulated operation or maintenance created by the
installation of new equipment or implementation of a new service,
when compared with an established baseline for previous such
stipulated costs.
(F) "Water conservation measure" means an installation or
modification of an installation in, or a remodeling of, an
existing building or the surrounding grounds in order to reduce
water consumption. The term includes any of the following:
(1) Water-conserving fixture, appliance, or equipment, or the
substitution of a nonwater-using fixture, appliance, or equipment;
(2) Water-conserving, landscape irrigation equipment;
(3) Landscaping measure that reduces storm water runoff
demand and capture and hold applied water and rainfall, including
landscape contouring such as the use of a berm, swale, or terrace
and including the use of a soil amendment, including compost, that
increases the water-holding capacity of the soil;
(4) Rainwater harvesting equipment or equipment to make use
of water collected as part of a storm water system installed for
water quality control;
(5) Equipment for recycling or reuse of water originating on
the premises or from another source, including treated, municipal
effluent;
(6) Equipment needed to capture water for nonpotable uses
from any nonconventional, alternate source, including air
conditioning condensate or gray water;
(7) Any other modification, installation, or remodeling
approved by the board of trustees of a state institution of higher
education as defined in section 3345.011 of the Revised Code
director of administrative services as a water conservation
measure for one or more buildings or the surrounding grounds owned
by either of the following:
(b) A state institution of higher education as defined in
section 3345.011 of the Revised Code that implements the water
conservation measure in consultation with the director.
(G) "Water saving measure" means the acquisition and
installation, by the purchase, lease, lease-purchase, lease with
an option to buy, or installment purchases of a water conservation
measure and any attendant architectural and engineering consulting
services.
Sec. 156.02. (A) The director of administrative services may
contract with an energy services company, contractor, architect,
professional engineer, or other person experienced in the design
and implementation of energy conservation measures for a report
containing an analysis and recommendations pertaining to the
implementation of energy conservation measures that would
significantly reduce energy consumption and operating costs in any
buildings owned by the state. The report shall include estimates
of all costs of such measures, including the costs of design,
engineering, installation, maintenance, repairs, and debt service,
and estimates of the amounts by which energy consumption and
operating costs would be reduced.
(B) Upon the request of the board of trustees or managing
authority of a state institution of higher education as defined in
section 3345.011 of the Revised Code, the director may contract
with or a water services company, architect, professional
engineer, contractor, or other person experienced in the design
and implementation of energy or water conservation measures for a
report containing an analysis and recommendations pertaining to
the implementation of energy or water conservation measures that
result in energy, water, or wastewater cost savings, operating
cost savings, or avoided capital costs for the institution. The
report shall include estimates of all costs of such installations,
including the costs of design, engineering, installation,
maintenance, repairs, and debt service, and estimates of the
energy, water, or wastewater cost savings, operating cost savings,
and avoided capital costs created.
Sec. 156.03. (A) If the director of administrative services
wishes to enter into an installment payment contract pursuant to
section 156.04 of the Revised Code or any other contract to
implement one or more energy saving measures or, in the case of a
state institution of higher education pursuant to division (B) of
section 156.02 of the Revised Code, energy or water saving
measures, the director may proceed under Chapter 153. of the
Revised Code, or, alternatively, the director may request the
controlling board to exempt the contract from Chapter 153. of the
Revised Code.
If the controlling board by a majority vote approves an
exemption, that chapter shall not apply to the contract and
instead the director shall request proposals from at least three
parties for the implementation of the energy or water saving
measures. Prior to providing any interested party a copy of any
such request, the director shall advertise, in a newspaper of
general circulation in the county where the contract is to be
performed, and may advertise by electronic means pursuant to rules
adopted by the director, the director's intent to request
proposals for the implementation of the energy or water saving
measures. The notice shall invite interested parties to submit
proposals for consideration and shall be published at least thirty
days prior to the date for accepting proposals.
(B) Upon receiving the proposals, the director shall analyze
them and, after considering the cost estimates of each proposal
and the availability of funds to pay for each with current
appropriations or by financing the cost of each through an
installment payment contract under section 156.04 of the Revised
Code, may select one or more proposals or reject all proposals. In
selecting proposals, the director shall select the one or more
proposals most likely to result in the greatest savings when the
cost of the proposal is compared to the reduced energy and
operating costs that will result from implementing the proposal.
However, in the case of a state institution of higher education
pursuant to division (B) of section 156.02 of the Revised Code,
the director shall select the one or more proposals most likely to
result in the greatest energy, water, or wastewater savings,
operating costs savings, and avoided capital costs created.
(C)(1) No contract shall be awarded to implement energy or
water saving measures under this section, other than in the case
of a state institution of higher education, unless the director
finds that one or both of the following circumstances exists, as
applicable:
(a) In the case of a contract for a cogeneration system
described in division (H) of section 156.01 of the Revised Code,
the cost of the contract is not likely to exceed the amount of
money that would be saved in energy and operating costs over no
more than five years;
(b) In the case of any contract for any energy saving measure
other than a cogeneration system, the cost of the contract is not
likely to exceed the amount of money that would be saved in energy
and operating costs over no more than ten years.
(2) In the case of a state institution of higher education
pursuant to division (B) of section 156.02 of the Revised Code, no
contract shall be awarded to implement energy or water saving
measures for the institution under this section unless the
director finds that both of the following circumstances exists:
(a)(1) Not less than one-fifteenth of the costs of the
contract shall be paid within two years from the date of purchase;
(b)(2) The remaining balance of the cost of the contract
shall be paid within fifteen years from the date of purchase.
Sec. 156.04. (A) In accordance with this section and section
156.03 of the Revised Code, the director of administrative
services may enter into an installment payment contract for the
implementation of one or more energy or water saving measures. If
the director wishes an installment payment contract to be exempted
from Chapter 153. of the Revised Code, the director shall proceed
pursuant to section 156.03 of the Revised Code.
(B)(1) Any installment payment contract under this section,
other than in the case of a state institution of higher education,
for one or more energy saving measures shall provide that all
payments, except payments for repairs and obligations on
termination of the contract prior to its expiration, are to be a
stated percentage of calculated savings of energy and operating
costs attributable to the one or more measures over a defined
period of time and are to be made only to the extent that those
savings actually occur. No such contract shall contain any of the
following:
(a) A requirement of any additional capital investment or
contribution of funds, other than funds available from state or
federal grants;
(b) In the case of a contract for an energy saving measure
that is a cogeneration system described in division (H) of section
156.01 of the Revised Code, a payment term longer than five years;
(c) In the case of a contract for any energy saving measure
that is not a cogeneration system, a payment term longer than ten
years.
(2) Any installment payment contract under this section for
one or more energy or water saving measures for a state
institution of higher education pursuant to division (B) of
section 156.02 of the Revised Code, shall provide that all
payments, except payments for repairs and obligations on
termination of the contract prior to its expiration, are to be a
stated percentage of calculated energy, water, or wastewater cost
savings, operating costs, and avoided capital costs attributable
to the one or more measures over a defined period of time and are
to be made only to the extent that those calculated amounts
actually occur. No such contract shall contain either of the
following:
(a)(1) A requirement of any additional capital investment or
contribution of funds, other than funds available from state or
federal grants;
(b)(2) A payment term longer than fifteen years.
(C) Any installment payment contract entered into under this
section shall terminate no later than the last day of the fiscal
biennium for which funds have been appropriated to the department
of administrative services by the general assembly and shall be
renewed in each succeeding fiscal biennium in which any balance of
the contract remains unpaid, provided that both an appropriation
for that succeeding fiscal biennium and the certification required
by section 126.07 of the Revised Code are made.
(D) Any installment payment contract entered into under this
section shall be eligible for financing provided through the Ohio
air quality development authority under Chapter 3706. of the
Revised Code.
Sec. 303.213. (A) As used in this section, "small wind farm"
means wind turbines and associated facilities with a single
interconnection to the ele-ctrical grid and designed for, or
capable of, operation at an aggregate capacity of less than five
megawatts.
(B) Notwithstanding division (A) of section 303.211 of the
Revised Code, sections 303.01 to 303.25 of the Revised Code confer
power on a board of county commissioners or board of zoning
appeals to adopt zoning regulations governing the location,
erection, construction, reconstruction, change, alteration,
maintenance, removal, use, or enlargement of any small wind farm,
whether publicly or privately owned, or the use of land for that
purpose, which regulations may be more strict than the regulations
prescribed in rules adopted under division (C)(B)(2) of section
4906.20 of the Revised Code.
(C) The designation under this section of a small wind farm
as a public utility for purposes of sections 303.01 to 303.25 of
the Revised Code shall not affect the classification of a small
wind farm for purposes of state or local taxation.
(D) Nothing in division (C) of this section shall be
construed as affecting the classification of a telecommunications
tower as defined in division (B) or (E) of section 303.211 of the
Revised Code or any other public utility for purposes of state and
local taxation.
Sec. 1505.09. There is hereby created in the state treasury
the geological mapping fund, to be administered by the chief of
the division of geological survey. The fund shall be used for the
purposes of performing the necessary field, laboratory, and
administrative tasks to map and make public reports on the
geology, geologic hazards, and energy and mineral resources of the
state. The source of moneys for the fund shall include, but not be
limited to, the mineral severance tax as specified in section
5749.02 of the Revised Code and, the fees collected under rules
adopted under section 1505.05 of the Revised Code, and ten per
cent of the money collected from fees under division (H) of
section 1509.22 of the Revised Code. The chief may seek federal or
other moneys in addition to the mineral severance tax and, fees,
and money credited to the fund to carry out the purposes of this
section. If the chief receives federal moneys for the purposes of
this section, the chief shall deposit those moneys into the state
treasury to the credit of a fund created by the controlling board
to carry out those purposes. Other moneys received by the chief
for the purposes of this section in addition to the mineral
severance tax, fees, money credited to the geological mapping fund
under section 1509.22 of the Revised Code, and federal moneys
shall be credited to the geological mapping fund.
Sec. 1509.01. As used in this chapter:
(A) "Well" means any borehole, whether drilled or bored,
within the state for production, extraction, or injection of any
gas or liquid mineral, excluding potable water to be used as such,
but including natural or artificial brines and oil field waters.
(B) "Oil" means crude petroleum oil and all other
hydrocarbons, regardless of gravity, that are produced in liquid
form by ordinary production methods, but does not include
hydrocarbons that were originally in a gaseous phase in the
reservoir.
(C) "Gas" means all natural wet gas and all other fluid
hydrocarbons that are not oil, including condensate dry gas.
(D) "Condensate" means liquid hydrocarbons recovered at the
surface that were originally in the gaseous phase in the
reservoir.
(E) "Pool" means an underground reservoir containing a common
accumulation of oil or gas, or both, but does not include a gas
storage reservoir. Each zone of a geological structure that is
completely separated from any other zone in the same structure may
contain a separate pool.
(F) "Field" means the general area underlaid by one or more
pools.
(G) "Drilling unit" means the minimum acreage on which one
well may be drilled, but does not apply to a well for injecting
gas into or removing gas from a gas storage reservoir.
(H) "Waste" includes all of the following:
(1) Physical waste, as that term generally is understood in
the oil and gas industry;
(2) Inefficient, excessive, or improper use, or the
unnecessary dissipation, of reservoir energy;
(3) Inefficient storing of oil or gas;
(4) Locating, drilling, equipping, operating, or producing an
oil or gas well in a manner that reduces or tends to reduce the
quantity of oil or gas ultimately recoverable under prudent and
proper operations from the pool into which it is drilled or that
causes or tends to cause unnecessary or excessive surface loss or
destruction of oil or gas;
(5) Other underground or surface waste in the production or
storage of oil, gas, or condensate, however caused.
(I) "Correlative rights" means the reasonable opportunity to
every person entitled thereto to recover and receive the oil and
gas in and under the person's tract or tracts, or the equivalent
thereof, without having to drill unnecessary wells or incur other
unnecessary expense.
(J) "Tract" means a single, individually taxed parcel of land
appearing on the tax list.
(K) "Owner," unless referring to a mine, means the person who
has the right to drill on a tract or drilling unit, to drill into
and produce from a pool, and to appropriate the oil or gas
produced therefrom either for the person or for others, except
that a person ceases to be an owner with respect to a well when
the well has been plugged in accordance with applicable rules
adopted and orders issued under this chapter. "Owner" does not
include a person who obtains a lease of the mineral rights for oil
and gas on a parcel of land if the person does not attempt to
produce or produce oil or gas from a well or obtain a permit under
this chapter for a well or if the entire interest of a well is
transferred to the person in accordance with division (B) of
section 1509.31 of the Revised Code.
(L) "Royalty interest" means the fee holder's share in the
production from a well.
(M) "Discovery well" means the first well capable of
producing oil or gas in commercial quantities from a pool.
(N) "Prepared clay" means a clay that is plastic and is
thoroughly saturated with fresh water to a weight and consistency
great enough to settle through saltwater in the well in which it
is to be used, except as otherwise approved by the chief of the
division of oil and gas resources management.
(O) "Rock sediment" means the combined cutting and residue
from drilling sedimentary rocks and formation.
(P) "Excavations and workings," "mine," and "pillar" have the
same meanings as in section 1561.01 of the Revised Code.
(Q) "Coal bearing township" means a township designated as
such by the chief of the division of mineral resources management
under section 1561.06 of the Revised Code.
(R) "Gas storage reservoir" means a continuous area of a
subterranean porous sand or rock stratum or strata into which gas
is or may be injected for the purpose of storing it therein and
removing it therefrom and includes a gas storage reservoir as
defined in section 1571.01 of the Revised Code.
(S) "Safe Drinking Water Act" means the "Safe Drinking Water
Act," 88 Stat. 1661 (1974), 42 U.S.C.A. 300(f), as amended by the
"Safe Drinking Water Amendments of 1977," 91 Stat. 1393, 42
U.S.C.A. 300(f), the "Safe Drinking Water Act Amendments of 1986,"
100 Stat. 642, 42 U.S.C.A. 300(f), and the "Safe Drinking Water
Act Amendments of 1996," 110 Stat. 1613, 42 U.S.C.A. 300(f), and
regulations adopted under those acts.
(T) "Person" includes any political subdivision, department,
agency, or instrumentality of this state; the United States and
any department, agency, or instrumentality thereof; and any legal
entity defined as a person under section 1.59 of the Revised Code.
(U) "Brine" means all saline geological formation water
resulting from, obtained from, or produced in connection with
exploration, drilling, well stimulation, production of oil or gas,
or plugging of a well.
(V) "Waters of the state" means all streams, lakes, ponds,
marshes, watercourses, waterways, springs, irrigation systems,
drainage systems, and other bodies of water, surface or
underground, natural or artificial, that are situated wholly or
partially within this state or within its jurisdiction, except
those private waters that do not combine or effect a junction with
natural surface or underground waters.
(W) "Exempt Mississippian well" means a well that meets all
of the following criteria:
(1) Was drilled and completed before January 1, 1980;
(2) Is located in an unglaciated part of the state;
(3) Was completed in a reservoir no deeper than the
Mississippian Big Injun sandstone in areas underlain by
Pennsylvanian or Permian stratigraphy, or the Mississippian Berea
sandstone in areas directly underlain by Permian stratigraphy;
(4) Is used primarily to provide oil or gas for domestic use.
(X) "Exempt domestic well" means a well that meets all of the
following criteria:
(1) Is owned by the owner of the surface estate of the tract
on which the well is located;
(2) Is used primarily to provide gas for the owner's domestic
use;
(3) Is located more than two hundred feet horizontal distance
from any inhabited private dwelling house other than an inhabited
private dwelling house located on the tract on which the well is
located;
(4) Is located more than two hundred feet horizontal distance
from any public building that may be used as a place of resort,
assembly, education, entertainment, lodging, trade, manufacture,
repair, storage, traffic, or occupancy by the public.
(Y) "Urbanized area" means an area where a well or production
facilities of a well are located within a municipal corporation or
within a township that has an unincorporated population of more
than five thousand in the most recent federal decennial census
prior to the issuance of the permit for the well or production
facilities.
(Z) "Well stimulation" or "stimulation of a well" means the
process of enhancing well productivity, including hydraulic
fracturing operations.
(AA) "Production operation" means all operations and
activities and all related equipment, facilities, and other
structures that may be used in or associated with the exploration
and production of oil, gas, or other mineral resources that are
regulated under this chapter, including operations and activities
associated with site preparation, site construction, access road
construction, well drilling, well completion, well stimulation,
well site activities, reclamation, and plugging. "Production
operation" also includes all of the following:
(1) The piping, equipment, and facilities used for the
production and preparation of hydrocarbon gas or liquids for
transportation or delivery;
(2) The processes of extraction and recovery, lifting,
stabilization, treatment, separation, production processing,
storage, waste disposal, and measurement of hydrocarbon gas and
liquids, including related equipment and facilities;
(3) The processes and related equipment and facilities
associated with production compression, gas lift, gas injection,
fuel gas supply, well drilling, well stimulation, and well
completion activities, including dikes, pits, and earthen and
other impoundments used for the temporary storage of fluids and
waste substances associated with well drilling, well stimulation,
and well completion activities.
(BB) "Annular overpressurization" means the accumulation of
fluids within an annulus with sufficient pressure to allow
migration of annular fluids into underground sources of drinking
water.
(CC) "Idle and orphaned well" means a well for which a bond
has been forfeited or an abandoned well for which no money is
available to plug the well in accordance with this chapter and
rules adopted under it.
(DD) "Temporarily inactive well" means a well that has been
granted temporary inactive status under section 1509.062 of the
Revised Code.
(EE) "Material and substantial violation" means any of the
following:
(1) Failure to obtain a permit to drill, reopen, convert,
plugback, or plug a well under this chapter;
(2) Failure to obtain or maintain insurance coverage that is
required under this chapter;
(3) Failure to obtain or maintain a surety bond that is
required under this chapter;
(4) Failure to plug an abandoned well or idle and orphaned
well unless the well has been granted temporary inactive status
under section 1509.062 of the Revised Code or the chief of the
division of oil and gas resources management has approved another
option concerning the abandoned well or idle and orphaned well;
(5) Failure to restore a disturbed land surface as required
by section 1509.072 of the Revised Code;
(6) Failure to reimburse the oil and gas well fund pursuant
to a final order issued under section 1509.071 of the Revised
Code;
(7) Failure to comply with a final nonappealable order of the
chief issued under section 1509.04 of the Revised Code;
(8) Failure to submit a report, test result, fee, or document
that is required in this chapter or rules adopted under it.
(FF) "Severer" has the same meaning as in section 5749.01 of
the Revised Code.
(GG) "Horizontal well" means a well that is drilled for the
production of oil or gas in which the wellbore reaches a
horizontal or near horizontal position and the well is stimulated.
(HH) "Well pad" means the area that is cleared or prepared
for the drilling of a well.
(II) "Dry gas" means all natural gas that contains no
appreciable quantity of dissolved liquid hydrocarbon.
(JJ) "Wet gas" means natural gas that contains ethane,
propane, butane, or other hydrocarbons or any combination of them.
Sec. 1509.02. There is hereby created in the department of
natural resources the division of oil and gas resources
management, which shall be administered by the chief of the
division of oil and gas resources management. The division has
sole and exclusive authority to regulate the permitting, location,
and spacing of oil and gas wells and production operations within
the state, excepting only those activities regulated under federal
laws for which oversight has been delegated to the environmental
protection agency and activities regulated under sections 6111.02
to 6111.029 of the Revised Code. The regulation of oil and gas
activities is a matter of general statewide interest that requires
uniform statewide regulation, and this chapter and rules adopted
under it constitute a comprehensive plan with respect to all
aspects of the locating, drilling, well stimulation, completing,
and operating of oil and gas wells within this state, including
site construction and restoration, permitting related to those
activities, and the disposal of wastes from those wells. The chief
may enter into cooperative agreements with other state agencies,
as the chief determines necessary, to assist in the enforcement of
this chapter, rules adopted under it, and other pertinent
provisions of the Revised Code and to ensure public health and
safety. Nothing in this section affects the authority granted to
the director of transportation and local authorities in section
723.01 or 4513.34 of the Revised Code, provided that the authority
granted under those sections shall not be exercised in a manner
that discriminates against, unfairly impedes, or obstructs oil and
gas activities and operations regulated under this chapter.
The chief shall not hold any other public office, nor shall
the chief be engaged in any occupation or business that might
interfere with or be inconsistent with the duties as chief.
All moneys collected by the chief pursuant to sections
1509.06, 1509.061, 1509.062, 1509.071, 1509.13, 1509.22, 1509.221,
1509.222, 1509.34, and 1509.50 of the Revised Code, ninety per
cent of the money collected from fees levied under division (H) of
section 1509.22 of the Revised Code, ninety per cent of moneys
received by the treasurer of state from the tax levied in
divisions (A)(5) and (6) of section 5749.02 of the Revised Code,
all civil penalties paid under section 1509.33 of the Revised
Code, and, notwithstanding any section of the Revised Code
relating to the distribution or crediting of fines for violations
of the Revised Code, all fines imposed under divisions (A) and (B)
of section 1509.99 of the Revised Code and fines imposed under
divisions (C) and (D) of section 1509.99 of the Revised Code for
all violations prosecuted by the attorney general and for
violations prosecuted by prosecuting attorneys that do not involve
the transportation of brine by vehicle shall be deposited into the
state treasury to the credit of the oil and gas well fund, which
is hereby created. Fines imposed under divisions (C) and (D) of
section 1509.99 of the Revised Code for violations prosecuted by
prosecuting attorneys that involve the transportation of brine by
vehicle and penalties associated with a compliance agreement
entered into pursuant to this chapter shall be paid to the county
treasury of the county where the violation occurred.
The fund shall be used solely and exclusively for the
purposes enumerated in division (B) of section 1509.071 of the
Revised Code, for the expenses of the division associated with the
administration of this chapter and Chapter 1571. of the Revised
Code and rules adopted under them, and for expenses that are
critical and necessary for the protection of human health and
safety and the environment related to oil and gas production in
this state. The expenses of the division in excess of the moneys
available in the fund shall be paid from general revenue fund
appropriations to the department.
Sec. 1509.03. (A) The chief of the division of oil and gas
resources management shall adopt, rescind, and amend, in
accordance with Chapter 119. of the Revised Code, rules for the
administration, implementation, and enforcement of this chapter.
The rules shall include an identification of the subjects that the
chief shall address when attaching terms and conditions to a
permit with respect to a well and production facilities of a well
that are located within an urbanized area or with respect to a
horizontal well and production facilities associated with a
horizontal well. The subjects shall include all of the following:
(1) Safety concerning the drilling or operation of a well;
(2) Protection of the public and private water supply,
including the amount of water used and the source or sources of
the water;
(3) Fencing and screening of surface facilities of a well;
(4) Containment and disposal of drilling and production
wastes;
(5) Construction of access roads for purposes of the drilling
and operation of a well;
(6) Noise mitigation for purposes of the drilling of a well
and the operation of a well, excluding safety and maintenance
operations.
No person shall violate any rule of the chief adopted under
this chapter.
(B)(1) Any order issuing, denying, or modifying a permit or
notices required to be made by the chief pursuant to this chapter
shall be made in compliance with Chapter 119. of the Revised Code,
except that personal service may be used in lieu of service by
mail. Every order issuing, denying, or modifying a permit under
this chapter and described as such shall be considered an
adjudication order for purposes of Chapter 119. of the Revised
Code.
Division (B)(1) of this section does not apply to a permit
issued under section 1509.06 of the Revised Code.
(2) Where notice to the owners is required by this chapter,
the notice shall be given as prescribed by a rule adopted by the
chief to govern the giving of notices. The rule shall provide for
notice by publication except in those cases where other types of
notice are necessary in order to meet the requirements of the law.
(C) The chief or the chief's authorized representative may at
any time enter upon lands, public or private, for the purpose of
administration or enforcement of this chapter, the rules adopted
or orders made thereunder, or terms or conditions of permits or
registration certificates issued thereunder and may examine and
copy records pertaining to the drilling, conversion, or operation
of a well for injection of fluids and logs required by division
(C) of section 1509.223 of the Revised Code. No person shall
prevent or hinder the chief or the chief's authorized
representative in the performance of official duties. If entry is
prevented or hindered, the chief or the chief's authorized
representative may apply for, and the court of common pleas may
issue, an appropriate inspection warrant necessary to achieve the
purposes of this chapter within the court's territorial
jurisdiction.
(D) The chief may issue orders to enforce this chapter, rules
adopted thereunder, and terms or conditions of permits issued
thereunder. Any such order shall be considered an adjudication
order for the purposes of Chapter 119. of the Revised Code. No
person shall violate any order of the chief issued under this
chapter. No person shall violate a term or condition of a permit
or registration certificate issued under this chapter.
(E) Orders of the chief denying, suspending, or revoking a
registration certificate; approving or denying approval of an
application for revision of a registered transporter's plan for
disposal; or to implement, administer, or enforce division (A) of
section 1509.224 and sections 1509.22, 1509.222, 1509.223,
1509.225, and 1509.226 of the Revised Code pertaining to the
transportation of brine by vehicle and the disposal of brine so
transported are not adjudication orders for purposes of Chapter
119. of the Revised Code. The chief shall issue such orders under
division (A) or (B) of section 1509.224 of the Revised Code, as
appropriate.
Sec. 1509.06. (A) An application for a permit to drill a new
well, drill an existing well deeper, reopen a well, convert a well
to any use other than its original purpose, or plug back a well to
a different source of supply, including associated production
operations, shall be filed with the chief of the division of oil
and gas resources management upon such form as the chief
prescribes and shall contain each of the following that is
applicable:
(1) The name and address of the owner and, if a corporation,
the name and address of the statutory agent;
(2) The signature of the owner or the owner's authorized
agent. When an authorized agent signs an application, it shall be
accompanied by a certified copy of the appointment as such agent.
(3) The names and addresses of all persons holding the
royalty interest in the tract upon which the well is located or is
to be drilled or within a proposed drilling unit;
(4) The location of the tract or drilling unit on which the
well is located or is to be drilled identified by section or lot
number, city, village, township, and county;
(5) Designation of the well by name and number;
(6) The geological formation to be tested or used and the
proposed total depth of the well;
(7) The type of drilling equipment to be used;
(8) If the well is for the injection of a liquid, identity of
the geological formation to be used as the injection zone and the
composition of the liquid to be injected;
(9) For an application for a permit to drill a new well
within an urbanized area, a sworn statement that the applicant has
provided notice by regular mail of the application to the owner of
each parcel of real property that is located within five hundred
feet of the surface location of the well and to the executive
authority of the municipal corporation or the board of township
trustees of the township, as applicable, in which the well is to
be located. In addition, the notice shall contain a statement that
informs an owner of real property who is required to receive the
notice under division (A)(9) of this section that within five days
of receipt of the notice, the owner is required to provide notice
under section 1509.60 of the Revised Code to each residence in an
occupied dwelling that is located on the owner's parcel of real
property. The notice shall contain a statement that an application
has been filed with the division of oil and gas resources
management, identify the name of the applicant and the proposed
well location, include the name and address of the division, and
contain a statement that comments regarding the application may be
sent to the division. The notice may be provided by hand delivery
or regular mail. The identity of the owners of parcels of real
property shall be determined using the tax records of the
municipal corporation or county in which a parcel of real property
is located as of the date of the notice.
(10) A plan for restoration of the land surface disturbed by
drilling operations. The plan shall provide for compliance with
the restoration requirements of division (A) of section 1509.072
of the Revised Code and any rules adopted by the chief pertaining
to that restoration.
(11) A description by name or number of the county, township,
and municipal corporation roads, streets, and highways that the
applicant anticipates will be used for access to and egress from
the well site;
(12) For an application for a permit for a horizontal well, a
copy of an agreement, containing reasonable terms, concerning
maintenance of the roads, streets, and highways described in
division (A)(11) of this section between the applicant and the
board of county commissioners of each county, and the board of
township trustees of each township and the legislative authority
of each municipal corporation, as applicable, in which any such
road, street, or highway is located. If such an agreement cannot
be executed, the applicant may include with the application an
affidavit on a form prescribed by the chief attesting that the
applicant is willing and attempted in good faith to enter into an
agreement under this division with the applicable board of county
commissioners, board of township trustees, or legislative
authority of the municipal corporation, but that no agreement was
executed.
(13) An identification of each source of ground water and
surface water that will be used in the production operations of
the well. The identification of each source of water shall
indicate if the water will be withdrawn from the Lake Erie
watershed or the Ohio river watershed. In addition, the applicant
shall provide the estimated rate and volume of the water
withdrawal for the production operations.
(14) Except as provided in division (A)(15) of this section,
for an application for a permit to drill a new well within an
urbanized area, the results of sampling of all water wells within
three hundred feet of the proposed well prior to commencement of
drilling. The sampling shall be conducted in accordance with the
guidelines established in "Best Management Practices For
Pre-drilling Water Sampling," April 30, 2005. The division shall
furnish those guidelines upon request and shall make them
available on the division's web site. The chief may revise the
distance established in this division for purposes of pre-drilling
water sampling if the chief determines that such a revision is
necessary to protect a water supply or if the chief determines
that conditions at the proposed well site warrant such a revision.
(15) For an application for a permit to drill a new
horizontal well, the results of sampling of all water wells within
one thousand five hundred feet of the proposed horizontal well
prior to commencement of drilling. The sampling shall be conducted
in accordance with the guidelines established in "Best Management
Practices For Pre-drilling Water Sampling," April 30, 2005. The
division shall furnish those guidelines upon request and shall
make them available on the division's web site. The chief may
revise the distance established in this division for purposes of
pre-drilling water sampling if the chief determines that such a
revision is necessary to protect a water supply or if the chief
determines that conditions at the proposed well site warrant such
a revision.
(16) Such other relevant information as the chief prescribes
by rule.
Each application shall be accompanied by a map, on a scale
not smaller than four hundred feet to the inch, prepared by an
Ohio registered surveyor, showing the location of the well and
containing such other data as may be prescribed by the chief. If
the well is or is to be located within the excavations and
workings of a mine, the map also shall include the location of the
mine, the name of the mine, and the name of the person operating
the mine.
(B) The chief shall cause a copy of the weekly circular
prepared by the division to be provided to the county engineer of
each county that contains active or proposed drilling activity.
The weekly circular shall contain, in the manner prescribed by the
chief, the names of all applicants for permits, the location of
each well or proposed well, the information required by division
(A)(11) of this section, and any additional information the chief
prescribes. In addition, the chief promptly shall transfer an
electronic copy or facsimile, or if those methods are not
available to a municipal corporation or township, a copy via
regular mail, of a drilling permit application to the clerk of the
legislative authority of the municipal corporation or to the clerk
of the township in which the well or proposed well is or is to be
located if the legislative authority of the municipal corporation
or the board of township trustees has asked to receive copies of
such applications and the appropriate clerk has provided the chief
an accurate, current electronic mailing address or facsimile
number, as applicable.
(C)(1) Except as provided in division (C)(2) of this section,
the chief shall not issue a permit for at least ten days after the
date of filing of the application for the permit unless, upon
reasonable cause shown, the chief waives that period or a request
for expedited review is filed under this section. However, the
chief shall issue a permit within twenty-one days of the filing of
the application unless the chief denies the application by order.
(2) If the location of a well or proposed well will be or is
within an urbanized area, the chief shall not issue a permit for
at least eighteen days after the date of filing of the application
for the permit unless, upon reasonable cause shown, the chief
waives that period or the chief at the chief's discretion grants a
request for an expedited review. However, the chief shall issue a
permit for a well or proposed well within an urbanized area within
thirty days of the filing of the application unless the chief
denies the application by order.
(D) An applicant may file a request with the chief for
expedited review of a permit application if the well is not or is
not to be located in a gas storage reservoir or reservoir
protective area, as "reservoir protective area" is defined in
section 1571.01 of the Revised Code. If the well is or is to be
located in a coal bearing township, the application shall be
accompanied by the affidavit of the landowner prescribed in
section 1509.08 of the Revised Code.
In addition to a complete application for a permit that meets
the requirements of this section and the permit fee prescribed by
this section, a request for expedited review shall be accompanied
by a separate nonrefundable filing fee of two hundred fifty
dollars. Upon the filing of a request for expedited review, the
chief shall cause the county engineer of the county in which the
well is or is to be located to be notified of the filing of the
permit application and the request for expedited review by
telephone or other means that in the judgment of the chief will
provide timely notice of the application and request. The chief
shall issue a permit within seven days of the filing of the
request unless the chief denies the application by order.
Notwithstanding the provisions of this section governing expedited
review of permit applications, the chief may refuse to accept
requests for expedited review if, in the chief's judgment, the
acceptance of the requests would prevent the issuance, within
twenty-one days of their filing, of permits for which applications
are pending.
(E) A well shall be drilled and operated in accordance with
the plans, sworn statements, and other information submitted in
the approved application.
(F) The chief shall issue an order denying a permit if the
chief finds that there is a substantial risk that the operation
will result in violations of this chapter or rules adopted under
it that will present an imminent danger to public health or safety
or damage to the environment, provided that where the chief finds
that terms or conditions to the permit can reasonably be expected
to prevent such violations, the chief shall issue the permit
subject to those terms or conditions, including, if applicable,
terms and conditions regarding subjects identified in rules
adopted under section 1509.03 of the Revised Code. The issuance of
a permit shall not be considered an order of the chief.
(G) Each application for a permit required by section 1509.05
of the Revised Code, except an application to plug back an
existing well that is required by that section and an application
for a well drilled or reopened for purposes of section 1509.22 of
the Revised Code, also shall be accompanied by a nonrefundable fee
as follows:
(1) Five hundred dollars for a permit to conduct activities
in a township with a population of fewer than ten thousand;
(2) Seven hundred fifty dollars for a permit to conduct
activities in a township with a population of ten thousand or
more, but fewer than fifteen thousand;
(3) One thousand dollars for a permit to conduct activities
in either of the following:
(a) A township with a population of fifteen thousand or more;
(b) A municipal corporation regardless of population.
(4) If the application is for a permit that requires
mandatory pooling, an additional five thousand dollars;
(5) If the application is for a permit that requires unit
operation of a pool pursuant to section 1509.28 of the Revised
Code, an additional fifteen thousand dollars.
For purposes of calculating fee amounts, populations shall be
determined using the most recent federal decennial census.
Each application for the revision or reissuance of a permit
shall be accompanied by a nonrefundable fee of two hundred fifty
dollars.
(H) Prior to the issuance of a permit to drill a proposed
horizontal well or a proposed well that is to be located in an
urbanized area, the division shall conduct a site review to
identify and evaluate any site-specific terms and conditions that
may be attached to the permit. At the site review, a
representative of the division shall consider fencing, screening,
and landscaping requirements, if any, for similar structures in
the community in which the well is proposed to be located. The
terms and conditions that are attached to the permit shall include
the establishment of fencing, screening, and landscaping
requirements for the surface facilities of the proposed well,
including a tank battery of the well.
(I) A permit shall be issued by the chief in accordance with
this chapter. A permit issued under this section for a well that
is or is to be located in an urbanized area shall be valid for
twelve months, and all other permits issued under this section
shall be valid for twenty-four months.
(J) An applicant or a permittee, as applicable, shall submit
to the chief an update of the information that is required under
division (A)(13) of this section if any of that information
changes.
(K) A permittee or a permittee's authorized representative
shall notify an inspector from the division at least twenty-four
hours, or another time period agreed to by the chief's authorized
representative, prior to the commencement of well pad construction
and of drilling, reopening, converting, well stimulation, or
plugback operations.
Sec. 1509.07. An (A)(1) Except as provided in division
(A)(2) of this section, an owner of any well, except an exempt
Mississippian well or an exempt domestic well, shall obtain
liability insurance coverage from a company authorized to do
business in this state in an amount of not less than one million
dollars bodily injury coverage and property damage coverage to pay
damages for injury to persons or damage to property caused by the
drilling, operation, or plugging of all the owner's wells in this
state. However, if any well is located within an urbanized area,
the owner shall obtain liability insurance coverage in an amount
of not less than three million dollars for bodily injury coverage
and property damage coverage to pay damages for injury to persons
or damage to property caused by the drilling, operation, or
plugging of all of the owner's wells in this state. The
(2) An owner of a horizontal well shall obtain liability
insurance coverage from a company authorized to do business in
this state in an amount of not less than five million dollars
bodily injury coverage and property damage coverage to pay damages
for injury to persons or damage to property caused by the
drilling, operation, or plugging of all the owner's wells in this
state. The insurance policy shall include a reasonable level of
coverage available for an environmental endorsement covering any
pollution and contamination occurring as a result of the drilling,
operation, or plugging of the owner's wells.
(3) An owner shall maintain the coverage required under
division (A)(1) or (2) of this section until all the owner's wells
are plugged and abandoned or are transferred to an owner who has
obtained insurance as required under this section and who is not
under a notice of material and substantial violation or under a
suspension order. The owner shall provide proof of liability
insurance coverage to the chief of the division of oil and gas
resources management upon request. Upon failure of the owner to
provide that proof when requested, the chief may order the
suspension of any outstanding permits and operations of the owner
until the owner provides proof of the required insurance coverage.
(B)(1) Except as otherwise provided in this section, an owner
of any well, before being issued a permit under section 1509.06 of
the Revised Code or before operating or producing from a well,
shall execute and file with the division of oil and gas resources
management a surety bond conditioned on compliance with the
restoration requirements of section 1509.072, the plugging
requirements of section 1509.12, the permit provisions of section
1509.13 of the Revised Code, and all rules and orders of the chief
relating thereto, in an amount set by rule of the chief.
(2) The owner may deposit with the chief, instead of a surety
bond, cash in an amount equal to the surety bond as prescribed
pursuant to this section or negotiable certificates of deposit or
irrevocable letters of credit, issued by any bank organized or
transacting business in this state or by any savings and loan
association as defined in section 1151.01 of the Revised Code,
having a cash value equal to or greater than the amount of the
surety bond as prescribed pursuant to this section. Cash or
certificates of deposit shall be deposited upon the same terms as
those upon which surety bonds may be deposited. If certificates of
deposit are deposited with the chief instead of a surety bond, the
chief shall require the bank or savings and loan association that
issued any such certificate to pledge securities of a cash value
equal to the amount of the certificate that is in excess of the
amount insured by any of the agencies and instrumentalities
created under the "Federal Deposit Insurance Act," 64 Stat. 873
(1950), 12 U.S.C. 1811, as amended, and regulations adopted under
it, including at least the federal deposit insurance corporation,
bank insurance fund, and savings association insurance fund. The
securities shall be security for the repayment of the certificate
of deposit.
Immediately upon a deposit of cash, certificates of deposit,
or letters of credit with the chief, the chief shall deliver them
to the treasurer of state who shall hold them in trust for the
purposes for which they have been deposited.
(3) Instead of a surety bond, the chief may accept proof of
financial responsibility consisting of a sworn financial statement
showing a net financial worth within this state equal to twice the
amount of the bond for which it substitutes and, as may be
required by the chief, a list of producing properties of the owner
within this state or other evidence showing ability and intent to
comply with the law and rules concerning restoration and plugging
that may be required by rule of the chief. The owner of an exempt
Mississippian well is not required to file scheduled updates of
the financial documents, but shall file updates of those documents
if requested to do so by the chief. The owner of a nonexempt
Mississippian well shall file updates of the financial documents
in accordance with a schedule established by rule of the chief.
The chief, upon determining that an owner for whom the chief has
accepted proof of financial responsibility instead of bond cannot
demonstrate financial responsibility, shall order that the owner
execute and file a bond or deposit cash, certificates of deposit,
or irrevocable letters of credit as required by this section for
the wells specified in the order within ten days of receipt of the
order. If the order is not complied with, all wells of the owner
that are specified in the order and for which no bond is filed or
cash, certificates of deposit, or letters of credit are deposited
shall be plugged. No owner shall fail or refuse to plug such a
well. Each day on which such a well remains unplugged thereafter
constitutes a separate offense.
(4) The surety bond provided for in this section shall be
executed by a surety company authorized to do business in this
state.
The chief shall not approve any bond until it is personally
signed and acknowledged by both principal and surety, or as to
either by the principal's or surety's attorney in fact, with a
certified copy of the power of attorney attached thereto. The
chief shall not approve a bond unless there is attached a
certificate of the superintendent of insurance that the company is
authorized to transact a fidelity and surety business in this
state.
All bonds shall be given in a form to be prescribed by the
chief and shall run to the state as obligee.
(5) An owner of an exempt Mississippian well or an exempt
domestic well, in lieu of filing a surety bond, cash in an amount
equal to the surety bond, certificates of deposit, irrevocable
letters of credit, or a sworn financial statement, may file a
one-time fee of fifty dollars, which shall be deposited in the oil
and gas well plugging fund created in section 1509.071 of the
Revised Code.
(C) An owner, operator, producer, or other person shall not
operate a well or produce from a well at any time if the owner,
operator, producer, or other person has not satisfied the
requirements established in this section.
Sec. 1509.10. (A) Any person drilling within the state
shall, within sixty days after the completion of drilling
operations to the proposed total depth or after a determination
that a well is a dry or lost hole, file with the division of oil
and gas resources management all wireline electric logs and an
accurate well completion record on a form that is approved by the
chief of the division of oil and gas resources management that
designates:
(1) The purpose for which the well was drilled;
(2) The character, depth, and thickness of geological units
encountered, including coal seams, mineral beds, associated fluids
such as fresh water, brine, and crude oil, natural gas, and sour
gas, if such seams, beds, fluids, or gases are known;
(3) The dates on which drilling operations were commenced and
completed;
(4) The types of drilling tools used and the name of the
person that drilled the well;
(5) The length in feet of the various sizes of casing and
tubing used in drilling the well, the amount removed after
completion, the type and setting depth of each packer, all other
data relating to cementing in the annular space behind such casing
or tubing, and data indicating completion as a dry, gas, oil,
combination oil and gas, brine injection, or artificial brine well
or a stratigraphic test;
(6) The number of perforations in the casing and the
intervals of the perforations;
(7) The elevation above mean sea level of the point from
which the depth measurements were made, stating also the height of
the point above ground level at the well, the total depth of the
well, and the deepest geological unit that was penetrated in the
drilling of the well;
(8) If applicable, the type, volume, and concentration of
acid, and the date on which acid was used in acidizing the well;
(9) If applicable, the type and volume of the fluid, not
including cement and its constituents, used to drill the well. For
each proprietary component in the fluid, the owner shall identify
the chemical class to which the component belongs and provide the
proportion of the component to the amount of the fluid in which it
was used.
(10) If applicable, the type and volume of fluid, not
including cement and its constituents, used to stimulate the
reservoir of the well, the reservoir breakdown pressure, the
method used for the containment of fluids recovered from the
fracturing of the well, the methods used for the containment of
fluids when pulled from the wellbore from swabbing the well, the
average pumping rate of the well, and the name of the person that
performed the well stimulation. For each proprietary component in
the fluid, the owner shall identify the chemical class to which
the component belongs and provide the proportion of the component
to the amount of the fluid in which it was used. In addition, the
owner shall include a copy of the log from the stimulation of the
well, a copy of the invoice for each of the procedures and methods
described in division (A)(9)(10) of this section that were used on
a well, and a copy of the pumping pressure and rate graphs.
However, the owner may redact from the copy of each invoice that
is required to be included under division (A)(9)(10) of this
section the costs of and charges for the procedures and methods
described in division (A)(9)(10) of this section that were used on
a well.
(10)(11) The name of the company that performed the logging
of the well and the types of wireline electric logs performed on
the well.
The well completion record shall be submitted in duplicate.
The first copy shall be retained as a permanent record in the
files of the division, and the second copy shall be transmitted by
the chief to the division of geological survey.
(B)(1) Not later than sixty days after the completion of the
drilling operations to the proposed total depth, the owner shall
file all wireline electric logs with the division of oil and gas
resources management and the chief shall transmit such logs
electronically, if available, to the division of geological
survey. Such logs may be retained by the owner for a period of not
more than six months, or such additional time as may be granted by
the chief in writing, after the completion of the well
substantially to the depth shown in the application required by
section 1509.06 of the Revised Code.
(2) If a well is not completed within sixty days after the
completion of drilling operations, the owner shall file with the
division of oil and gas resources management a supplemental well
completion record that includes all of the information required
under this section within sixty days after the completion of the
well.
(C) Upon request in writing by the chief of the division of
geological survey prior to the beginning of drilling of the well,
the person drilling the well shall make available a complete set
of cuttings accurately identified as to depth.
(D) The form of the well completion record required by this
section shall be one that has been approved by the chief of the
division of oil and gas resources management and the chief of the
division of geological survey. The filing of a log as required by
this section fulfills the requirement of filing a log with the
chief of the division of geological survey in section 1505.04 of
the Revised Code.
(E) If there is a material listed or designated under
division (A)(9) or (F) of this section or listed on the invoice
that is required by division (A)(9)(10) of this section is a
material for which the division of oil and gas resources
management does not have a material safety data sheet, the chief
shall obtain a copy of the material safety data sheet for the
material and post a copy of the material safety data sheet on the
division's web site.
(F) In addition to complying with the other requirements
established in this section, the owner of a well shall file with
the chief of the division of oil and gas resources management a
list of each chemical compound and its corresponding amount, not
including cement and its constituents, that was used during the
preceding year in the servicing, operating, and plugging of the
well in a form that the chief prescribes. For each proprietary
component that was used in the servicing, operating, and plugging
of the well, the owner shall identify the chemical class to which
the component belongs and provide the proportion of the component
to the amount of the fluid in which it was used. The list shall be
submitted on or before the thirtieth day of June of each year. An
owner that has more than one hundred wells shall submit
electronically the list of chemical compounds and the
corresponding amounts used in a format that is approved by the
chief.
The chief may inspect at any time the records concerning any
chemical compound that is used in the production operations of a
well.
(G) The chief shall post on the division's web site each
material safety data sheet obtained under division (E) of this
section and each list received under division (F) of this section.
(H) The owner of a well, upon request, shall provide to
emergency responders the exact chemical composition of each fluid
designated under divisions (A)(9) and (10) of this section and of
each chemical compound listed under division (F) of this section.
The exact chemical composition shall include identification of
each proprietary component.
Sec. 1509.11. (A) The owner of any well that is not a high
volume horizontal well and is producing or capable of producing
oil or gas shall file with the chief of the division of oil and
gas resources management, on or before the thirty-first day of
March, a statement of production of oil, gas, and brine for the
last preceding calendar year in such form as the chief may
prescribe. An owner that has more than one hundred such wells in
this state shall submit electronically the statement of production
in a format that is approved by the chief. The chief shall include
on the form, at the minimum, a request for the submittal of the
information that a person who is regulated under this chapter is
required to submit under the "Emergency Planning and Community
Right-To-Know Act of 1986," 100 Stat. 1728, 42 U.S.C.A. 11001, and
regulations adopted under it, and that the division does not
obtain through other reporting mechanisms.
(B) The owner of any high volume horizontal well that is
producing or capable of producing oil or gas shall file with the
chief, on or before the fifteenth day of the month following the
close of each calendar quarter, a statement of production of oil,
gas, wet gas, condensate, and brine for the preceding calendar
quarter in such form as the chief may prescribe. An owner that has
more than one hundred high volume horizontal wells in this state
shall submit electronically the statement of production in a
format that is approved by the chief. The chief shall include on
the form, at the minimum, a request for the submittal of the
information that a person who is regulated under this chapter is
required to submit under the "Emergency Planning and Community
Right-To-Know Act of 1986," 100 Stat. 1728, 42 U.S.C. 11001, and
regulations adopted under it, and that the division does not
obtain through other reporting mechanisms.
Sec. 1509.22. (A) Except when acting in accordance with
section 1509.226 of the Revised Code, no person shall place or
cause to be placed brine, crude oil, natural gas, or other fluids
associated with the exploration or development of oil and gas
resources in surface or ground water or in or on the land in such
quantities or in such manner as actually causes or could
reasonably be anticipated to cause either of the following:
(1) Water used for consumption by humans or domestic animals
to exceed the standards of the Safe Drinking Water Act;
(2) Damage or injury to public health or safety or the
environment.
(B) No person shall store or dispose of brine in violation of
a plan approved under division (A) of section 1509.222 or section
1509.226 of the Revised Code, in violation of a resolution
submitted under section 1509.226 of the Revised Code, or in
violation of rules or orders applicable to those plans or
resolutions.
(C) The chief of the division of oil and gas resources
management shall adopt rules and issue orders regarding storage
and disposal of brine and other waste substances; however, the
storage and disposal of brine and other waste substances and the
chief's rules relating to storage and disposal are subject to all
of the following standards:
(1) Brine from any well except an exempt Mississippian well
shall be disposed of only by injection into an underground
formation, including annular disposal if approved by rule of the
chief, which injection shall be subject to division (D) of this
section; by surface application in accordance with section
1509.226 of the Revised Code; in association with a method of
enhanced recovery as provided in section 1509.21 of the Revised
Code; or by other methods approved by the chief for testing or
implementing a new technology or method of disposal. Brine from
exempt Mississippian wells shall not be discharged directly into
the waters of the state.
(2) Muds, cuttings, and other waste substances shall not be
disposed of in violation of any rule.
(3) Pits or steel tanks shall be used as authorized by the
chief for containing brine and other waste substances resulting
from, obtained from, or produced in connection with drilling, well
stimulation, reworking, reconditioning, plugging back, or plugging
operations. The pits and steel tanks shall be constructed and
maintained to prevent the escape of brine and other waste
substances.
(4) A dike or pit may be used for spill prevention and
control. A dike or pit so used shall be constructed and maintained
to prevent the escape of brine and crude oil, and the reservoir
within such a dike or pit shall be kept reasonably free of brine,
crude oil, and other waste substances.
(5) Earthen impoundments constructed pursuant to the
division's specifications may be used for the temporary storage of
fluids used in the stimulation of a well.
(6) No pit, earthen impoundment, or dike shall be used for
the temporary storage of brine or other substances except in
accordance with divisions (C)(3) to (5) of this section.
(7) No pit or dike shall be used for the ultimate disposal of
brine or other liquid waste substances.
(D)(1) No person, without first having obtained a permit from
the chief, shall inject brine or other waste substances resulting
from, obtained from, or produced in connection with oil or gas
drilling, exploration, or production into an underground formation
unless a rule of the chief expressly authorizes the injection
without a permit. The permit shall be in addition to any permit
required by section 1509.05 of the Revised Code, and the permit
application shall be accompanied by a permit fee of one thousand
dollars. The chief shall adopt rules in accordance with Chapter
119. of the Revised Code regarding the injection into wells of
brine and other waste substances resulting from, obtained from, or
produced in connection with oil or gas drilling, exploration, or
production. The rules may authorize tests to evaluate whether
fluids or carbon dioxide may be injected in a reservoir and to
determine the maximum allowable injection pressure, which shall be
conducted in accordance with methods prescribed in the rules or in
accordance with conditions of the permit. In addition, the rules
shall include provisions regarding applications all of the
following:
(a) Applications for and issuance of the permits required by
this division; entry
(b) Entry to conduct inspections and to examine and copy
records to ascertain compliance with this division and rules,
orders, and terms and conditions of permits adopted or issued
under it; the
(c) The provision and maintenance of information through
monitoring, recordkeeping, and reporting; and
(d) Any other provisions in furtherance of the goals of this
section and the Safe Drinking Water Act. To
(2) The chief may adopt rules in accordance with Chapter 119.
of the Revised Code authorizing tests to evaluate whether fluids
or carbon dioxide may be injected in a reservoir and to determine
the maximum allowable injection pressure, which shall be conducted
in accordance with methods prescribed in the rules or in
accordance with conditions of the permit. In addition, the chief
may adopt rules that do both of the following:
(a) Establish the total depth of a well for which a permit
has been applied for or issued under this division;
(b) Establish requirements and procedures in accordance with
which the chief may address threats to public health and safety.
(3) To implement the goals of the Safe Drinking Water Act,
the chief shall not issue a permit for the injection of brine or
other waste substances resulting from, obtained from, or produced
in connection with oil or gas drilling, exploration, or production
unless the chief concludes that the applicant has demonstrated
that the injection will not result in the presence of any
contaminant in ground water that supplies or can reasonably be
expected to supply any public water system, such that the presence
of the contaminant may result in the system's not complying with
any national primary drinking water regulation or may otherwise
adversely affect the health of persons. This
(4) This division and rules, orders, and terms and conditions
of permits adopted or issued under it shall be construed to be no
more stringent than required for compliance with the Safe Drinking
Water Act unless essential to ensure that underground sources of
drinking water will not be endangered.
(5) The chief, by order, may require a person to whom a
permit was issued under this division prior to the effective date
of this amendment to comply with any or all of the rules adopted
under this division.
(E) The owner holding a permit, or an assignee or transferee
who has assumed the obligations and liabilities imposed by this
chapter and any rules adopted or orders issued under it pursuant
to section 1509.31 of the Revised Code, and the operator of a well
shall be liable for a violation of this section or any rules
adopted or orders or terms or conditions of a permit issued under
it.
(F) An owner shall replace the water supply of the holder of
an interest in real property who obtains all or part of the
holder's supply of water for domestic, agricultural, industrial,
or other legitimate use from an underground or surface source
where the supply has been substantially disrupted by
contamination, diminution, or interruption proximately resulting
from the owner's oil or gas operation, or the owner may elect to
compensate the holder of the interest in real property for the
difference between the fair market value of the interest before
the damage occurred to the water supply and the fair market value
after the damage occurred if the cost of replacing the water
supply exceeds this difference in fair market values. However,
during the pendency of any order issued under this division, the
owner shall obtain for the holder or shall reimburse the holder
for the reasonable cost of obtaining a water supply from the time
of the contamination, diminution, or interruption by the operation
until the owner has complied with an order of the chief for
compliance with this division or such an order has been revoked or
otherwise becomes not effective. If the owner elects to pay the
difference in fair market values, but the owner and the holder
have not agreed on the difference within thirty days after the
chief issues an order for compliance with this division, within
ten days after the expiration of that thirty-day period, the owner
and the chief each shall appoint an appraiser to determine the
difference in fair market values, except that the holder of the
interest in real property may elect to appoint and compensate the
holder's own appraiser, in which case the chief shall not appoint
an appraiser. The two appraisers appointed shall appoint a third
appraiser, and within thirty days after the appointment of the
third appraiser, the three appraisers shall hold a hearing to
determine the difference in fair market values. Within ten days
after the hearing, the appraisers shall make their determination
by majority vote and issue their final determination of the
difference in fair market values. The chief shall accept a
determination of the difference in fair market values made by
agreement of the owner and holder or by appraisers under this
division and shall make and dissolve orders accordingly. This
division does not affect in any way the right of any person to
enforce or protect, under applicable law, the person's interest in
water resources affected by an oil or gas operation.
(G) In any action brought by the state for a violation of
division (A) of this section involving any well at which annular
disposal is used, there shall be a rebuttable presumption
available to the state that the annular disposal caused the
violation if the well is located within a one-quarter-mile radius
of the site of the violation.
(H)(1) There is levied on the owner of an injection well who
has been issued a permit under division (D) of this section the
following fees:
(a) Ten cents per barrel of each substance that is delivered
to a well to be injected in the well when the substance is
produced within the division of oil and gas resources management
regulatory district in which the well is located or within an
adjoining oil and gas resources management regulatory district;
(b) One dollar per barrel of each substance that is delivered
to a well to be injected in the well when the substance is not
produced within the division of oil and gas resources management
regulatory district in which the well is located or within an
adjoining oil and gas resources management regulatory district.
(2) The maximum number of barrels of substance per injection
well in a calendar year on which a fee may be levied under
division (H) of this section is five hundred thousand. If in a
calendar year the owner of an injection well receives more than
five hundred thousand barrels of substance to be injected in the
owner's well and if the owner receives at least one substance that
is produced within the division's regulatory district in which the
well is located or within an adjoining regulatory district and at
least one substance that is not produced within the division's
regulatory district in which the well is located or within an
adjoining regulatory district, the fee shall be calculated first
on all of the barrels of substance that are not produced within
the division's regulatory district in which the well is located or
within an adjoining district at the rate established in division
(H)(2) of this section. The fee then shall be calculated on the
barrels of substance that are produced within the division's
regulatory district in which the well is located or within an
adjoining district at the rate established in division (H)(1) of
this section until the maximum number of barrels established in
division (H)(2) of this section has been attained.
(3) The owner of an injection well who is issued a permit
under division (D) of this section shall collect the fee levied by
division (H) of this section on behalf of the division of oil and
gas resources management and forward the fee to the division. The
chief shall transmit all money received under division (H) of this
section to the treasurer of state who shall deposit and credit the
money in accordance with division (H)(4) of this section. The
owner of an injection well who collects the fee levied by this
division may retain up to three per cent of the amount that is
collected.
(4) Ten per cent of the proceeds of the fees levied under
division (H) of this section shall be deposited in the state
treasury to the credit of the geological mapping fund created in
section 1505.09 of the Revised Code, and ninety per cent of the
proceeds shall be deposited in the state treasury to the credit of
the oil and gas well fund created in section 1509.02 of the
Revised Code.
(5) The chief shall adopt rules in accordance with Chapter
119. of the Revised Code establishing requirements and procedures
for collection of the fee levied by division (H) of this section.
(I)(1) Except as provided in division (I)(2) of this section,
the owner of an injection well who is issued a permit under
division (D) of this section shall not inject brine or other waste
substances into the well unless the owner first receives from the
transporter of the brine or other waste substances a list of each
chemical compound that was used in the drilling, stimulating,
servicing, operating, or plugging of the well from which the brine
or other waste substances originated. The owner of the well shall
maintain the list and make it available for inspection by the
chief at all times. In addition, the owner annually shall submit
to the chief all lists received under this division in a form
prescribed by the chief.
(2) If the owner of the well from which the brine or other
waste substances originated has submitted the information that is
required by section 1509.10 of the Revised Code and has so
notified the owner of the injection well into which the brine or
other waste substances will be injected, the owner of the
injection well may inject in the injection well brine or other
waste substances from that well without first receiving from the
transporter of the brine or other waste substances the information
that is required by division (I)(1) of this section.
(3) As used in this division, "transporter" means a
transporter that is registered under section 1509.222 of the
Revised Code.
Sec. 1509.221. (A) No person, without first having obtained
a permit from the chief of the division of oil and gas resources
management, shall drill a well or inject a substance into a well
for the exploration for or extraction of minerals or energy, other
than oil or natural gas, including, but not limited to, the mining
of sulfur by the Frasch process, the solution mining of minerals,
the in situ combustion of fossil fuel, or the recovery of
geothermal energy to produce electric power, unless a rule of the
chief expressly authorizes the activity without a permit. The
permit shall be in addition to any permit required by section
1509.05 of the Revised Code. The chief shall adopt rules in
accordance with Chapter 119. of the Revised Code governing the
issuance of permits under this section. The rules shall include
provisions regarding the matters the applicant for a permit shall
demonstrate to establish eligibility for a permit; the form and
content of applications for permits; the terms and conditions of
permits; entry to conduct inspections and to examine and copy
records to ascertain compliance with this section and rules,
orders, and terms and conditions of permits adopted or issued
thereunder; provision and maintenance of information through
monitoring, recordkeeping, and reporting; and other provisions in
furtherance of the goals of this section and the Safe Drinking
Water Act. To implement the goals of the Safe Drinking Water Act,
the chief shall not issue a permit under this section, unless the
chief concludes that the applicant has demonstrated that the
drilling, injection of a substance, and extraction of minerals or
energy will not result in the presence of any contaminant in
underground water that supplies or can reasonably be expected to
supply any public water system, such that the presence of the
contaminant may result in the system's not complying with any
national primary drinking water regulation or may otherwise
adversely affect the health of persons. The chief may issue,
without a prior adjudication hearing, orders requiring compliance
with this section and rules, orders, and terms and conditions of
permits adopted or issued thereunder. This section and rules,
orders, and terms and conditions of permits adopted or issued
thereunder shall be construed to be no more stringent than
required for compliance with the Safe Drinking Water Act, unless
essential to ensure that underground sources of drinking water
will not be endangered.
(B)(1) There is levied on the owner of an injection well who
has been issued a permit under division (D) of section 1509.22 of
the Revised Code the following fees:
(a) Five cents per barrel of each substance that is delivered
to a well to be injected in the well when the substance is
produced within the division of oil and gas resources management
regulatory district in which the well is located or within an
adjoining oil and gas resources management regulatory district;
(b) Twenty cents per barrel of each substance that is
delivered to a well to be injected in the well when the substance
is not produced within the division of oil and gas resources
management regulatory district in which the well is located or
within an adjoining oil and gas resources management regulatory
district.
(2) The maximum number of barrels of substance per injection
well in a calendar year on which a fee may be levied under
division (B) of this section is five hundred thousand. If in a
calendar year the owner of an injection well receives more than
five hundred thousand barrels of substance to be injected in the
owner's well and if the owner receives at least one substance that
is produced within the division's regulatory district in which the
well is located or within an adjoining regulatory district and at
least one substance that is not produced within the division's
regulatory district in which the well is located or within an
adjoining regulatory district, the fee shall be calculated first
on all of the barrels of substance that are not produced within
the division's regulatory district in which the well is located or
within an adjoining district at the rate established in division
(B)(2) of this section. The fee then shall be calculated on the
barrels of substance that are produced within the division's
regulatory district in which the well is located or within an
adjoining district at the rate established in division (B)(1) of
this section until the maximum number of barrels established in
division (B)(2) of this section has been attained.
(3) The owner of an injection well who is issued a permit
under division (D) of section 1509.22 of the Revised Code shall
collect the fee levied by division (B) of this section on behalf
of the division of oil and gas resources management and forward
the fee to the division. The chief shall transmit all money
received under division (B) of this section to the treasurer of
state who shall deposit the money in the state treasury to the
credit of the oil and gas well fund created in section 1509.02 of
the Revised Code. The owner of an injection well who collects the
fee levied by this division may retain up to three per cent of the
amount that is collected.
(4) The chief shall adopt rules in accordance with Chapter
119. of the Revised Code establishing requirements and procedures
for collection of the fee levied by division (B) of this section.
(C) In an action under section 1509.04 or 1509.33 of the
Revised Code to enforce this section, the court shall grant
preliminary and permanent injunctive relief and impose a civil
penalty upon the showing that the person against whom the action
is brought has violated, is violating, or will violate this
section or rules, orders, or terms or conditions of permits
adopted or issued thereunder. The court shall not require, prior
to granting such preliminary and permanent injunctive relief or
imposing a civil penalty, proof that the violation was, is, or
will be the result of intentional conduct or negligence. In any
such action, any person may intervene as a plaintiff upon the
demonstration that the person has an interest that is or may be
adversely affected by the activity for which injunctive relief or
a civil penalty is sought.
Sec. 1509.222. (A)(1) Except as provided in section 1509.226
of the Revised Code, no person shall transport brine by vehicle in
this state unless the business entity that employs the person
first registers with and obtains a registration certificate and
identification number from the chief of the division of oil and
gas resources management.
(2) No more than one registration certificate shall be
required of any business entity. Registration certificates issued
under this section are not transferable. An applicant shall file
an application with the chief, containing such information in such
form as the chief prescribes, but including a. The application
shall include at least all of the following:
(a) A list that identifies each vehicle that will be used in
the transportation of brine;
(b) A list that identifies each trailer or container that
will be used in the transportation of brine;
(c) A plan for disposal that provides for compliance with the
requirements of this chapter and rules of the chief pertaining to
the transportation of brine by vehicle and the disposal of brine
so transported and that lists all disposal sites that the
applicant intends to use, the;
(d) The bond required by section 1509.225 of the Revised
Code, and a;
(e) A certificate issued by an insurance company authorized
to do business in this state certifying that the applicant has in
force a liability insurance policy in an amount not less than
three hundred thousand dollars bodily injury coverage and three
hundred thousand dollars property damage coverage to pay damages
for injury to persons or property caused by the collecting,
handling, transportation, or disposal of brine. The
The insurance policy required by division (A)(2)(e) of this
section shall be maintained in effect during the term of the
registration certificate. The policy or policies providing the
coverage shall require the insurance company to give notice to the
chief if the policy or policies lapse for any reason. Upon such
termination of the policy, the chief may suspend the registration
certificate until proper insurance coverage is obtained. Each
(3) Each application for a registration certificate shall be
accompanied by a nonrefundable fee of five hundred dollars.
(3)(4) If a business entity that has been issued a
registration certificate under this section changes its name due
to a business reorganization or merger, the business entity shall
revise the bond or certificates of deposit required by section
1509.225 of the Revised Code and obtain a new certificate from an
insurance company in accordance with division (A)(2)(e) of this
section to reflect the change in the name of the business entity.
(B) The chief shall issue an order denying an application for
a registration certificate if the chief finds that either of the
following applies:
(1) The applicant, at the time of applying for the
registration certificate, has been found liable by a final
nonappealable order of a court of competent jurisdiction for
damage to streets, roads, highways, bridges, culverts, or
drainways pursuant to section 4513.34 or 5577.12 of the Revised
Code until the applicant provides the chief with evidence of
compliance with the order.
(2) The applicant's plan for disposal does not provide for
compliance with the requirements of this chapter and rules of the
chief pertaining to the transportation of brine by vehicle and the
disposal of brine so transported.
(C) No applicant shall attempt to circumvent division (B) of
this section by applying for a registration certificate under a
different name or business organization name, by transferring
responsibility to another person or entity, or by any similar act.
(D) A registered transporter shall apply to revise a disposal
plan under procedures that the chief shall prescribe by rule.
However, at a minimum, an application for a revision shall list
all sources and disposal sites of brine currently transported. The
chief shall deny any application for a revision of a plan under
this division if the chief finds that the proposed revised plan
does not provide for compliance with the requirements of this
chapter and rules of the chief pertaining to the transportation of
brine by vehicle and the disposal of brine so transported.
Approvals and denials of revisions shall be by order of the chief.
(E) The chief may adopt rules, issue orders, and attach terms
and conditions to registration certificates as may be necessary to
administer, implement, and enforce sections 1509.222 to 1509.226
of the Revised Code for protection of public health or safety or
conservation of natural resources.
(F) A registered transporter shall provide to the chief the
information that is required by division (I)(1) of section 1509.22
of the Revised Code.
Sec. 1509.223. (A) No permit holder or owner of a well shall
enter into an agreement with or permit any person to transport
brine produced from the well who is not registered pursuant to
section 1509.222 of the Revised Code or exempt from registration
under section 1509.226 of the Revised Code.
(B) Each registered transporter shall file with the chief of
the division of oil and gas resources management, on or before the
fifteenth day of April, a statement concerning brine transported,
including quantities transported and source and delivery points,
during the last preceding calendar year, and such other
information in such form as the chief may prescribe.
(C) Each registered transporter shall keep on each vehicle
used to transport brine a daily log and have it available upon the
request of the chief or an authorized representative of the chief
or a peace officer. The log shall, at a minimum, include all of
the following information:
(1) The name of the owner or owners of the well or wells
producing the brine to be transported;
(2) The date and time the brine is loaded;
(3) The name of the driver;
(4) The amount of brine loaded at each collection point;
(5) The disposal location;
(6) The date and time the brine is disposed of and the amount
of brine disposed of at each location.
The chief, by rule, may establish procedures for the
submission to the chief of the information that is required to be
included in the daily log. No registered transporter shall falsify
or fail to keep or submit the log required by this division.
(D) Each registered transporter shall legibly identify with
reflective paints all vehicles employed in transporting or
disposing of brine. Letters shall be no less than four inches in
height and shall indicate the identification number issued by the
chief, the word "brine," and the name and telephone number of the
transporter.
(E) The chief shall maintain and keep a current list of
persons registered to transport brine under section 1509.222 of
the Revised Code. The list shall be open to public inspection. It
is an affirmative defense to a charge under division (A) of this
section that at the time the permit holder or owner of a well
entered into an agreement with or permitted a person to transport
brine, the person was shown on the list as currently registered to
transport brine.
(F) Except as otherwise provided in this division, no person
shall be issued a registration certificate or renewal of a
registration certificate under section 1509.222 of the Revised
Code unless the business entity applying for the registration
certificate or renewal of a registration certificate installs an
electronic transponder of a type approved by the chief on each
vehicle that will be used to transport brine. The electronic
transponder shall allow the chief to electronically verify the
registration status of the transporter and the origin and
disposition of the fluid being transported for disposal.
The chief may waive the requirements established in this
division if the same business entity owns and operates both the
facility that will receive the brine for disposal and the well
that produced the brine that will be disposed of and the business
entity is not in the business of transporting brine for disposal
for any other person.
Sec. 1509.23. (A) Rules of the chief of the division of oil
and gas resources management may specify practices to be followed
in the drilling and treatment of wells, production of oil and gas,
and plugging of wells for protection of public health or safety or
to prevent damage to natural resources, including specification of
the following:
(2) Minimum distances that wells and other excavations,
structures, and equipment shall be located from water wells,
streets, roads, highways, rivers, lakes, streams, ponds, other
bodies of water, railroad tracks, public or private recreational
areas, zoning districts, and buildings or other structures. Rules
adopted under division (A)(2) of this section shall not conflict
with section 1509.021 of the Revised Code.
(3) Other methods of operation;
(4) Procedures, methods, and equipment and other requirements
for equipment to prevent and contain discharges of oil and brine
from oil production facilities and oil drilling and workover
facilities consistent with and equivalent in scope, content, and
coverage to section 311(j)(1)(c) of the "Federal Water Pollution
Control Act Amendments of 1972," 86 Stat. 886, 33 U.S.C.A. 1251,
as amended, and regulations adopted under it. In addition, the
rules may specify procedures, methods, and equipment and other
requirements for equipment to prevent and contain surface and
subsurface discharges of fluids, condensates, and gases.
(6) Requirements governing the location and construction of
fresh water impoundments that are part of a production operation.
(B) The chief, in consultation with the emergency response
commission created in section 3750.02 of the Revised Code, shall
adopt rules in accordance with Chapter 119. of the Revised Code
that specify the information that shall be included in an
electronic database that the chief shall create and host. The
information shall be that which the chief considers to be
appropriate for the purpose of responding to emergency situations
that pose a threat to public health or safety or the environment.
At the minimum, the information shall include that which a person
who is regulated under this chapter is required to submit under
the "Emergency Planning and Community Right-To-Know Act of 1986,"
100 Stat. 1728, 42 U.S.C.A. 11001, and regulations adopted under
it.
In addition, the rules shall specify whether and to what
extent the database and the information that it contains will be
made accessible to the public. The rules shall ensure that the
database will be made available via the internet or a system of
computer disks to the emergency response commission and to every
local emergency planning committee and fire department in this
state.
Sec. 1509.31. (A) Whenever the entire interest of an oil and
gas lease is assigned or otherwise transferred, the assignor or
transferor shall notify the holders of the royalty interests, and,
if a well or wells exist on the lease, the division of oil and gas
resources management, of the name and address of the assignee or
transferee by certified mail, return receipt requested, not later
than thirty days after the date of the assignment or transfer.
When notice of any such assignment or transfer is required to be
provided to the division, it shall be provided on a form
prescribed and provided by the division and verified by both the
assignor or transferor and by the assignee or transferee and shall
be accompanied by a nonrefundable fee of one hundred dollars for
each well. The notice form applicable to assignments or transfers
of a well to the owner of the surface estate of the tract on which
the well is located shall contain a statement informing the
landowner that the well may require periodic servicing to maintain
its productivity; that, upon assignment or transfer of the well to
the landowner, the landowner becomes responsible for compliance
with the requirements of this chapter and rules adopted under it,
including, without limitation, the proper disposal of brine
obtained from the well, the plugging of the well when it becomes
incapable of producing oil or gas, and the restoration of the well
site; and that, upon assignment or transfer of the well to the
landowner, the landowner becomes responsible for the costs of
compliance with the requirements of this chapter and rules adopted
under it and the costs for operating and servicing the well.
(B) When the entire interest of a well is proposed to be
assigned or otherwise transferred to the landowner for use as an
exempt domestic well, the owner who has been issued a permit under
this chapter for the well shall submit to the chief of the
division of oil and gas resources management an application for
the assignment or transfer that contains all documents that the
chief requires and a nonrefundable fee of one hundred dollars. The
application for such an assignment or transfer shall be prescribed
and provided by the chief. The chief may approve the application
if the application is accompanied by a release of all of the oil
and gas leases that are included in the applicable formation of
the drilling unit, the release is in a form such that the well
ownership merges with the fee simple interest of the surface
tract, and the release is in a form that may be recorded. However,
if the owner of the well does not release the oil and gas leases
associated with the well that is proposed to be assigned or
otherwise transferred or if the fee simple tract that results from
the merger of the well ownership with the fee simple interest of
the surface tract is less than five acres, the proposed exempt
domestic well owner shall post a five thousand dollar bond with
the division prior to the assignment or transfer of the well to
ensure that the well will be properly plugged. The chief, for good
cause, may modify the requirements of this section governing the
assignment or transfer of the interests of a well to the
landowner. Upon the assignment or transfer of the well, the owner
of an exempt domestic well is not subject to the severance tax
levied under section 5749.02 of the Revised Code, but is subject
to all applicable fees established in this chapter.
(C) The owner holding a permit under section 1509.05 of the
Revised Code is responsible for all obligations and liabilities
imposed by this chapter and any rules, orders, and terms and
conditions of a permit adopted or issued under it, and no
assignment or transfer by the owner relieves the owner of the
obligations and liabilities until and unless the assignee or
transferee files with the division the information described in
divisions (A)(1), (2), (3), (4), (5), (10), (11), and (12)(16) of
section 1509.06 of the Revised Code; obtains liability insurance
coverage required by section 1509.07 of the Revised Code, except
when none is required by that section; and executes and files a
surety bond, negotiable certificates of deposit or irrevocable
letters of credit, or cash, as described in that section. Instead
of a bond, but only upon acceptance by the chief, the assignee or
transferee may file proof of financial responsibility, described
in section 1509.07 of the Revised Code. Section 1509.071 of the
Revised Code applies to the surety bond, cash, and negotiable
certificates of deposit and irrevocable letters of credit
described in this section. Unless the chief approves a
modification, each assignee or transferee shall operate in
accordance with the plans and information filed by the permit
holder pursuant to section 1509.06 of the Revised Code.
(D) If a mortgaged property that is being foreclosed is
subject to an oil or gas lease, pipeline agreement, or other
instrument related to the production or sale of oil or natural gas
and the lease, agreement, or other instrument was recorded
subsequent to the mortgage, and if the lease, agreement, or other
instrument is not in default, the oil or gas lease, pipeline
agreement, or other instrument, as applicable, has priority over
all other liens, claims, or encumbrances on the property so that
the oil or gas lease, pipeline agreement, or other instrument is
not terminated or extinguished upon the foreclosure sale of the
mortgaged property. If the owner of the mortgaged property was
entitled to oil and gas royalties before the foreclosure sale, the
oil or gas royalties shall be paid to the purchaser of the
foreclosed property.
Sec. 1509.50. (A) An oil and gas regulatory cost recovery
assessment is hereby imposed by this section on an owner. An owner
shall pay the assessment in the same manner as a severer who is
required to file a return under section 5749.06 of the Revised
Code. However, an owner may designate a severer who shall pay the
owner's assessment on behalf of the owner on the return that the
severer is required to file under that section. If a severer so
pays an owner's assessment, the severer may recoup from the owner
the amount of the assessment. Except for an exempt domestic well,
the assessment imposed shall be in addition to the taxes levied on
the severance of oil and gas under section 5749.02 of the Revised
Code.
(B)(1) Except for an exempt domestic well, the oil and gas
regulatory cost recovery assessment shall be calculated on a
quarterly basis and shall be one of the following:
(a) If the sum of ten cents per barrel of oil for all of the
wells of the owner, one-half of one cent per one thousand cubic
feet of natural gas for all of the wells of the owner, and the
amount of the severance tax levied on each severer for all of the
wells of the owner under divisions (A)(5) and (6) of section
5749.02 of the Revised Code, as applicable, is greater than the
sum of fifteen dollars for each well owned by the owner, the
amount of the assessment is the sum of ten cents per barrel of oil
for all of the wells of the owner and one-half of one cent per one
thousand cubic feet of natural gas for all of the wells of the
owner.
(b) If the sum of ten cents per barrel of oil for all of the
wells of the owner, one-half of one cent per one thousand cubic
feet of natural gas for all of the wells of the owner, and apply
if the amount of the severance tax levied on each severer for all
of the wells of the owner under divisions (A)(5) and (6) of
section 5749.02 of the Revised Code, as applicable, is less than
the sum of fifteen dollars for each well owned by the owner,. The
assessment shall be calculated on a quarterly basis, and the
amount of the assessment is shall be the sum of fifteen dollars
for each well owned by the owner less the amount of the tax levied
on each severer for all of the wells of the owner under divisions
(A)(5) and (6) of section 5749.02 of the Revised Code, as
applicable.
(2) The oil and gas regulatory cost recovery assessment for a
well that becomes an exempt domestic well on and after June 30,
2010, shall be sixty dollars to be paid to the division of oil and
gas resources management on the first day of July of each year.
(C) All money collected pursuant to this section shall be
deposited in the state treasury to the credit of the oil and gas
well fund created in section 1509.02 of the Revised Code.
(D) Except for purposes of revenue distribution as specified
in division (B) of section 5749.02 of the Revised Code, the oil
and gas regulatory cost recovery assessment imposed by this
section shall be treated the same and equivalent for all purposes
as the taxes levied on the severance of oil and gas under that
section. However, the assessment imposed by this section is not a
tax under Chapter 5749. of the Revised Code.
Sec. 1514.01. As used in this chapter:
(A) "Surface mining" means all or any part of a process
followed in the production of minerals from the earth or from the
surface of the land by surface excavation methods, such as open
pit mining, dredging, placering, or quarrying, and includes the
removal of overburden for the purpose of determining the location,
quantity, or quality of mineral deposits, and the incidental
removal of coal at a rate less than one-sixth the total weight of
minerals and coal removed during the year, but does not include:
test or exploration boring; mining operations carried out beneath
the surface by means of shafts, tunnels, or similar mine openings;
the extraction of minerals, other than coal, by a landowner for
the landowner's own noncommercial use where such material is
extracted and used in an unprocessed form on the same tract of
land; the extraction of minerals, other than coal, from borrow
pits for highway construction purposes, provided that the
extraction is performed under a bond, a contract, and
specifications that substantially provide for and require
reclamation practices consistent with the requirements of this
chapter; the removal of minerals incidental to construction work,
provided that the owner or person having control of the land upon
which the construction occurs, the contractor, or the construction
firm possesses a valid building permit; the removal of minerals to
a depth of not more than five feet, measured from the highest
original surface elevation of the area to be excavated, where not
more than one acre of land is excavated during twelve successive
calendar months; routine dredging of a watercourse for purely
navigational or flood control purposes during which materials are
removed for noncommercial purposes, including activities conducted
by or on behalf of a conservancy district, organized under Chapter
6101. of the Revised Code, for flood control purposes that are
exempt from permitting requirements under section 10 of the
"Rivers and Harbors Act of 1899," 30 Stat. 1151, 33 U.S.C. 403, as
amended; or the extraction or movement of soil or minerals within
a solid waste facility, as defined in section 3734.01 of the
Revised Code, that is a sanitary landfill when the soil or
minerals are used exclusively for the construction, operation,
closure, and post-closure care of the facility or for maintenance
activities at the facility.
(B) "Minerals" means sand, gravel, clay, shale, gypsum,
halite, limestone, dolomite, sandstone, other stone, metalliferous
or nonmetalliferous ore, or other material or substance of
commercial value excavated in a solid state from natural deposits
on or in the earth, but does not include coal or peat.
(C) "Overburden" means all of the earth and other materials
that cover a natural deposit of minerals and also means such earth
and other materials after removal from their natural state in the
process of surface mining.
(D) "Spoil bank" means a pile of removed overburden.
(E) "Area of land affected" means the area of land that has
been excavated, or upon which a spoil bank exists, or both.
(F)(1) "Operation" or "surface mining operation" means all of
the premises, facilities, and equipment used in the process of
removing minerals, or minerals and incidental coal, by surface
mining from a mining area in the creation of which mining area
overburden or minerals, or minerals and incidental coal, are
disturbed or removed, such surface mining area being located upon
a single tract of land or upon two or more contiguous tracts of
land. Separation by a stream or roadway shall not preclude the
tracts from being considered contiguous.
(2) When the context indicates, "operation" or "in-stream
mining operation" means all of the premises, facilities, and
equipment used in the process of removing minerals by in-stream
mining from a mining area.
(G) "Operator" means any person engaged in surface mining who
removes minerals, or minerals and incidental coal, from the earth
by surface mining or who removes overburden for the purpose of
determining the location, quality, or quantity of a mineral
deposit. "Operator" also means any person engaged in in-stream
mining who removes minerals from the bottom of the channel of a
watercourse by in-stream mining.
(H) "Performance bond" means the surety bond required to be
filed under section 1514.04 of the Revised Code and includes cash,
an irrevocable letter of credit, and negotiable certificates of
deposit authorized to be deposited in lieu of the surety bond
under that section.
(I) "Dewatering" means the withdrawal of ground water from an
aquifer or saturated zone that may result in the lowering of the
water level within the aquifer or saturated zone or a decline of
the potentiometric surface within that aquifer or saturated zone.
(J) "Ground water" means all water occurring in an aquifer.
(K) "Cone of depression" means a depression or low point in
the water table or potentiometric surface of a body of ground
water that develops around a location from which ground water is
being withdrawn.
(L) "High water mark" means the line on the shore that is
established by the fluctuations of water and indicated by physical
characteristics such as a natural line impressed on the bank;
shelving; changes in the character of soil; destruction of
terrestrial vegetation; the presence of litter and debris; or
other appropriate means that consider the characteristics of the
surrounding area.
(M) "In-stream mining" means all or any part of a process
followed in the production of minerals from the bottom of the
channel of a watercourse that drains a surface area of more than
one hundred square miles. "In-stream mining" may be accomplished
by using any technique or by using surface excavation methods,
such as open pit mining, dredging, placering, or quarrying, and
includes the removal of overburden for the purpose of determining
the location, quantity, or quality of mineral deposits. "In-stream
mining" does not include either of the following:
(1) Routine dredging for purely navigational or flood control
purposes during which materials are removed for noncommercial
purposes;
(2) The extraction of minerals, other than coal, by a
landowner for the landowner's own noncommercial use when the
material is extracted and used in an unprocessed form on the same
tract of land.
For purposes of division (M) of this section, the number of
square miles of surface area that a watercourse drains shall be
determined by consulting the "gazetteer of Ohio streams," which is
a portion of the Ohio water plan inventory published in 1960 by
the division of water in the department of natural resources, or
its successor, if any.
(N) In provisions concerning in-stream mining, when the
context is appropriate, "land" is deemed to include an area of a
watercourse.
(O) "Watercourse" means any naturally occurring perennial or
intermittent stream, river, or creek flowing within a defined
stream bed and banks.
(P) "Certified mine foreperson" means the person whom the
operator of a surface mining operation places in charge of the
conditions and practices at the mine, who is responsible for
conducting workplace examinations under 30 C.F.R. part 56, as
amended, and who has passed an examination for the position
administered by the division of mineral resources management.
Sec. 1514.02. (A) After the dates the chief of the division
of mineral resources management prescribes by rule pursuant to
section 1514.08 of the Revised Code, but not later than July 1,
1977, nor earlier than July 1, 1975, no operator shall engage in
surface mining or conduct a surface mining operation without a
surface mining permit issued by the chief.
No person shall engage in in-stream mining or conduct an
in-stream mining operation without an in-stream mining permit
issued by the chief. However, a person who, on
the effective date
of this amendment
March 15, 2002, holds a valid permit to conduct
in-stream mining that is issued under section 10 of the "Rivers
and Harbors Appropriation Act of 1899," 30 Stat. 1151, 33 U.S.C.
403, as amended, shall not be required to obtain an in-stream
mining permit from the chief under this section until the existing
permit expires.
An application for a surface or in-stream mining permit shall
be upon the form that the chief prescribes and provides and shall
contain all of the following:
(1) The name and address of the applicant, of all partners if
the applicant is a partnership, or of all officers and directors
if the applicant is a corporation, and any other person who has a
right to control or in fact controls the management of the
applicant or the selection of officers, directors, or managers of
the applicant;
(2) A list of the minerals and coal, if any coal, sought to
be extracted, an estimate of the annual production rates for each
mineral and coal, and a description of the land upon which the
applicant proposes to engage in a surface or in-stream mining
operation, which description shall set forth the names of the
counties, townships, and municipal corporations, if any, in which
the land is located; the location of its boundaries; and a
description of the land of sufficient certainty that it may be
located and distinguished from other lands;
(3) The name of each county, township, or municipal
corporation, if any, that has in effect a zoning resolution or
ordinance that would affect the proposed surface or in-stream
mining operation or, if no such zoning resolution or ordinance is
in effect, a statement attesting to that fact. The application
also shall contain an explanation of how the applicant intends to
comply with any applicable provisions of a zoning resolution or
ordinance.
(4) An estimate of the number of acres of land that will
comprise the total area of land to be affected and an estimate of
the number of acres of land to be affected during the first year
of operation under the permit;
(5) The name and address of the owner of surface rights in
the land upon which the applicant proposes to engage in surface or
in-stream mining;
(6) A copy of the deed, lease, or other instrument that
authorizes entry upon the land by the applicant or the applicant's
agents if surface rights in the land are not owned by the
applicant;
(7) A statement of whether any surface or in-stream mining
permits or coal mining and reclamation permits are now held by the
applicant in this state and, if so, the numbers of the permits;
(8) A statement of whether the applicant, any partner if the
applicant is a partnership, any officer or director if the
applicant is a corporation, or any other person who has a right to
control or in fact controls the management of the applicant or the
selection of officers, directors, or managers of the applicant has
ever had a surface or in-stream mining permit or coal mining and
reclamation permit issued by this or any other state suspended or
revoked or has ever forfeited a surface or in-stream mining or
coal mining and reclamation bond or cash, an irrevocable letter of
credit, or a security deposited in lieu of a bond;
(9) A report of the results of test borings that the operator
has conducted on the area or otherwise has readily available,
including, to the extent that the information is readily available
to the operator, the nature and depth of overburden and material
underlying each mineral or coal deposit, and the thickness and
extent of each mineral or coal deposit. In the case of an
application for an in-stream mining permit, the report
additionally shall include sufficient information to show the
approximate depth to bedrock. All information relating to test
boring results submitted to the chief pursuant to this section
shall be kept confidential and not made a matter of public record,
except that the information may be disclosed by the chief in any
legal action in which the truthfulness of the information is
material.
(10) A complete plan for surface or in-stream mining and
reclamation of the area to be affected, which shall include a
statement of the intended future uses of the area and show the
approximate sequence in which mining and reclamation measures are
to occur, the approximate intervals following mining during which
the reclamation of all various parts of the area affected will be
completed, and the measures the operator will perform to prevent
damage to adjoining property and to achieve all of the following
general performance standards for mining and reclamation:
(a) Prepare the site adequately for its intended future uses
upon completion of mining;
(b) Where a plan of zoning or other comprehensive plan has
been adopted that governs land uses or the construction of public
improvements and utilities for an area that includes the area
sought to be mined, ensure that future land uses within the site
will not conflict with the plan. On and after
the effective date
of this amendment
March 15, 2002, division (A)(10)(b) of this
section does not apply to any surface or in-stream mining permit
or applications for a surface or in-stream mining permit, any
renewal of an existing surface or in-stream mining permit or
application for a renewal of an existing surface or in-stream
mining permit, any amendment or application for an amendment to an
existing surface or in-stream mining permit, or any modification
or application for a modification of a mining and reclamation plan
of an existing surface or in-stream mining permit unless the
application for such a permit, renewal, amendment, or modification
is a resubmission, revision, or reconsideration of an application
that was pending before the chief or was first approved prior to
the effective date of this amendment
March 15, 2002.
(c) Grade, contour, or terrace final slopes, wherever needed,
sufficient to achieve soil stability and control landslides,
erosion, and sedimentation. Highwalls will be permitted if they
are compatible with the future uses specified in the plan and
measures will be taken to ensure public safety. Where ponds,
impoundments, or other resulting bodies of water are intended for
recreational use, establish banks and slopes that will ensure safe
access to those bodies of water. Where such bodies of water are
not intended for recreation, include measures to ensure public
safety, but access need not be provided.
(d) Resoil the area of land affected, wherever needed, with
topsoil or suitable subsoil, fertilizer, lime, or soil amendments,
as appropriate, in sufficient quantity and depth to raise and
maintain a diverse growth of vegetation adequate to bind the soil
and control soil erosion and sedimentation;
(e) Establish a diverse vegetative cover of grass and legumes
or trees, grasses, and legumes capable of self-regeneration and
plant succession wherever required by the plan;
(f) Remove or bury any metal, lumber, equipment, or other
refuse resulting from mining, and remove or bury any unwanted or
useless structures;
(g) Reestablish boundary, section corner, government, and
other survey monuments that were removed by the operator;
(h) During mining and reclamation, ensure that contamination,
resulting from mining, of underground water supplies is prevented.
Upon completion of reclamation, ensure that any watercourse, lake,
or pond located within the site boundaries is free of substances
resulting from mining in amounts or concentrations that are
harmful to persons, fish, waterfowl, or other beneficial species
of aquatic life.
(i) During mining and reclamation, control drainage so as to
prevent the causing of flooding, landslides, and flood hazards to
adjoining lands resulting from the mining operation. Leave any
ponds in such condition as to avoid their constituting a hazard to
adjoining lands.
(j) During mining and reclamation, ensure that the effect of
any reduction of the quantity of ground water is minimized;
(k) Ensure that mining and reclamation are carried out in the
sequence and manner set forth in the plan and that reclamation
measures are performed in a timely manner. All reclamation of an
area of land affected shall be completed no later than three years
following the mining of the area unless the operator makes a
showing satisfactory to the chief that the future use of the area
requires a longer period for completing reclamation.
(l) During mining, store topsoil or fill in quantities
sufficient to complete the backfilling, grading, contouring,
terracing, and resoiling that are specified in the plan. Stabilize
the slopes of and plant each spoil bank to control soil erosion
and sedimentation wherever substantial damage to adjoining
property might occur.
(m) During mining, promptly remove, store, or cover any coal,
pyritic shale, or other acid producing materials in a manner that
will minimize acid drainage and the accumulation of acid water;
(n) During mining, detonate explosives in a manner that will
prevent damage to adjoining property;
(o) In the case of in-stream mining, do all of the following:
(i) Limit access to the channel of a watercourse to a single
point of entry on one bank of the watercourse;
(ii) Maintain riparian vegetation to the fullest extent
possible;
(iii) Upon cessation of in-stream mining, stabilize and
reclaim to the pre-mined condition the banks of a watercourse
affected by in-stream mining.
(11) For any applicant, except an applicant for an in-stream
mining permit, who intends to extract less than ten thousand tons
of minerals per year and no incidental coal, a current tax map, in
triplicate and notarized, and the appropriate United States
geological survey seven and one-half minute topographic map. Each
copy shall bear the applicant's name and shall identify the area
of land to be affected corresponding to the application.
(12) For any applicant for a surface mining permit who
intends to extract ten thousand tons of minerals or more per year
or who intends to extract any incidental coal irrespective of the
tonnage of minerals intended to be mined, a map, in triplicate, on
a scale of not more than four hundred feet to the inch, or three
copies of an enlarged United States geological survey topographic
map on a scale of not more than four hundred feet to the inch.
Each application for an in-stream mining permit shall include such
a map regardless of the tons of minerals that the applicant
intends to extract.
The map shall comply with all of the following:
(a) Be prepared and certified by a professional engineer or
surveyor registered under Chapter 4733. of the Revised Code;
(b) Identify the area of land to be affected corresponding to
the application;
(c) Show the probable limits of subjacent and adjacent deep,
strip, surface, or in-stream mining operations, whether active,
inactive, or mined out;
(d) Show the boundaries of the area of land to be affected
during the period of the permit and the area of land estimated to
be affected during the first year of operation, and name the
surface and mineral owners of record of the area and the owners of
record of adjoining surface properties;
(e) Show the names and locations of all streams, creeks, or
other bodies of water, roads, railroads, utility lines, buildings,
cemeteries, and oil and gas wells on the area of land to be
affected and within five hundred feet of the perimeter of the
area;
(f) Show the counties, municipal corporations, townships, and
sections in which the area of land to be affected is located;
(g) Show the drainage plan on, above, below, and away from
the area of land to be affected, indicating the directional flow
of water, constructed drainways, natural waterways used for
drainage, and the streams or tributaries receiving or to receive
this discharge;
(h) Show the location of available test boring holes that the
operator has conducted on the area of land to be affected or
otherwise has readily available;
(i) Show the date on which the map was prepared, the north
direction and the quadrangle sketch, and the exact location of the
operation;
(j) Show the type, kind, location, and references of all
existing boundary, section corner, government, and other survey
monuments within the area to be affected and within five hundred
feet of the perimeter of the area.
The certification of the maps shall read: "I, the
undersigned, hereby certify that this map is correct, and shows to
the best of my knowledge and belief all of the information
required by the surface or in-stream mining laws, as applicable,
of the state." The certification shall be signed and attested
before a notary public. The chief may reject any map as incomplete
if its accuracy is not so certified and attested.
(13) A certificate of public liability insurance issued by an
insurance company authorized to do business in this state or
obtained pursuant to sections 3905.30 to 3905.35 of the Revised
Code covering all surface or in-stream mining operations of the
applicant in this state and affording bodily injury and property
damage protection in amounts not less than the following:
(a) One hundred thousand dollars for all damages because of
bodily injury sustained by one person as the result of any one
occurrence, and three hundred thousand dollars for all damages
because of bodily injury sustained by two or more persons as the
result of any one occurrence;
(b) One hundred thousand dollars for all claims arising out
of damage to property as the result of any one occurrence, with an
aggregate limit of three hundred thousand dollars for all property
damage to which the policy applies.
(14) A sworn statement by the applicant that, during the term
of any permit issued under this chapter or of any renewal of such
a permit, the applicant will comply with all applicable zoning
resolutions or ordinances that are in effect at the time the
application is filed unless the resolutions or ordinances
subsequently become invalid during the term of the permit or
renewal;
(15) A copy of the advertisement that the applicant is
required to have published in accordance with section 1514.022 of
the Revised Code, if applicable;
(16) For any applicant whose operation may result in
dewatering, a compilation of data in a form that is prescribed by
the chief and that is suitable to conduct ground water modeling in
order to establish a projected cone of depression for purposes of
section 1514.13 of the Revised Code. The chief shall adopt rules
as provided in section 1514.08 of the Revised Code establishing
the minimum requirements and standards governing the data required
under this division.
(17) A statement by the applicant certifying that the
applicant has communicated with the county engineer of the county
in which the proposed surface or in-stream mining operation will
be located regarding any streets and roads under the county
engineer's jurisdiction that will be used by vehicles entering and
leaving the proposed surface or in-stream mining operation;
(18) In the case of an application for an in-stream mining
permit, and if required by the division of mineral resources
management after review of an applicant's proposed in-stream
mining plans, a hydraulic evaluation of the watercourse prepared
by a professional engineer registered under Chapter 4733. of the
Revised Code. The If the hydraulic evaluation is required, it
shall include, without limitation, all of the following:
(a) Soundings that depict the cross-sectional views of the
channel bottom of the watercourse and water elevations for the
watercourse;
(b) A profile of the channel bottom;
(c) An analysis of design flows and water surface profiles
for the watercourse prior to in-stream mining and the proposed
final mining condition;
(d) An analysis of the expected changes in the roughness
coefficient, resistance to water flow velocity, and hydraulic
gradient in the channel bottom due to the proposed mining;
(e) Any additional information that the chief requires in
order to evaluate the potential impact of in-stream mining on the
watercourse and to determine if any additional performance
standards are required to protect the environment and property
outside the limits of the operation as established in the permit.
The chief may allow an applicant to deviate from the
requirements of divisions (A)(18)(a) to (d) of this section if the
chief determines that such a deviation is appropriate.
(B) No permit application or amendment shall be approved by
the chief if the chief finds that the reclamation described in the
application will not be performed in full compliance with this
chapter or that there is not reasonable cause to believe that
reclamation as required by this chapter will be accomplished.
The chief shall issue an order denying an application for an
operating permit or an amendment if the chief determines that the
measures set forth in the plan are likely to be inadequate to
prevent damage to adjoining property or to achieve one or more of
the performance standards required in division (A)(10) of this
section.
No permit application or amendment shall be approved if the
approval would result in a violation of division (E), (F), or (G)
of section 1514.10 of the Revised Code.
No permit application or amendment shall be approved to
surface mine land adjacent to a public road in violation of
section 1563.11 of the Revised Code.
To ensure adequate lateral support, no permit application or
amendment shall be approved to engage in surface or in-stream
mining on land that is closer than fifty feet of horizontal
distance to any adjacent land or waters in which the operator
making application does not own the surface or mineral rights
unless the owners of the surface and mineral rights in and under
the adjacent land or waters consent in writing to surface or
in-stream mining closer than fifty feet of horizontal distance.
The consent, or a certified copy thereof, shall be attached to the
application as a part of the permanent record of the application
for a surface or in-stream mining permit.
The chief shall issue an order granting a permit upon the
chief's approval of an application, as required by this section,
filing of the performance bond required by section 1514.04 of the
Revised Code, payment of an acreage fee in the amount of
seventy-five dollars multiplied by the number of acres estimated
in the application that will comprise the area of land to be
affected within the first year of operation under the permit, and
payment of a permit fee. The amount of the permit fee for a
surface mining permit shall be five hundred dollars, and the
amount of the permit fee for an in-stream mining permit shall be
two hundred fifty dollars.
The chief may issue an order denying a permit if the chief
finds that the applicant, any partner if the applicant is a
partnership, any officer or director if the applicant is a
corporation, or any other person who has a right to control or in
fact controls the management of the applicant or the selection of
officers, directors, or managers of the applicant has
substantially or materially failed to comply or continues to fail
to comply with this chapter, which failure may consist of one or
more violations thereof, a rule adopted thereunder, or an order of
the chief or failure to perform reclamation as required by this
chapter. The chief may deny or revoke the permit of any person who
so violates or fails to comply or who purposely misrepresents or
omits any material fact in the application for the permit or an
amendment to a permit.
If the chief denies the permit, the chief shall state the
reasons for denial in the order denying the permit.
Each permit shall be issued upon condition that the operator
will comply with this chapter and perform the measures set forth
in the operator's plan of mining and reclamation in a timely
manner. The chief, mineral resources inspectors, or other
authorized representatives of the chief may enter upon the
premises of the operator at reasonable times for the purposes of
determining whether or not there is compliance with this chapter.
(C) If the chief approves an application for a surface mining
permit, the order granting the permit shall authorize the person
to whom the permit is issued to engage as the operator of a
surface mining operation upon the land described in the permit
during a period that shall expire fifteen years after the date of
issuance of the permit, or upon the date when the chief, after
inspection, orders the release of any remaining performance bond
deposited to assure satisfactory performance of the reclamation
measures required pursuant to this chapter, whichever occurs
earlier.
If the chief approves an application for an in-stream mining
permit, the order granting the permit shall authorize the person
to whom the permit is issued to engage as the operator of an
in-stream mining operation on the land described in the permit
during a period that shall expire two five years after the date of
issuance of the permit, or on the date when the chief, after
inspection, orders the release of any remaining bond, cash,
irrevocable letters of credit, or certificates of deposit that
were deposited to ensure satisfactory performance of the
reclamation measures required under this chapter, whichever occurs
earlier.
(D) Before an operator engages in a surface or in-stream
mining operation on land not described in the operator's permit,
but that is contiguous to the land described in the operator's
permit, the operator shall file with the chief an application for
an amendment to the operator's permit. Before approving an
amendment, the chief shall require the information, maps, fees,
and amount, except as otherwise provided by rule, of the
performance bond as required for an original application under
this section and shall apply the same prohibitions and
restrictions applicable to land described in an original
application for a permit. An applicant for a significant amendment
to a permit, as "significant" is defined by rule, shall include a
copy of the advertisement that the applicant is required to have
published in accordance with section 1514.022 of the Revised Code.
If the chief disapproves the amendment, the chief shall state the
reasons for disapproval in the order disapproving the amendment.
Upon the approval of an amendment by the chief, the operator shall
be authorized to engage in surface mining on the land or in-stream
mining in the watercourse described in the operator's original
permit plus the land or area of the watercourse described in the
amendment until the date when the permit expires, or when the
chief, after inspection, orders the release of any remaining
performance bond deposited to assure satisfactory performance of
the reclamation measures required pursuant to this chapter,
whichever occurs earlier.
(E) An operator, at any time and upon application therefor
and approval by the chief, may amend the plan of mining and
reclamation filed with the application for a permit in order to
change the reclamation measures to be performed, modify the
interval after mining within which reclamation measures will be
performed, change the sequence in which mining or reclamation will
occur at specific locations within the area affected, mine acreage
previously mined or reclaimed, or for any other purpose, provided
that the plan, as amended, includes measures that the chief
determines will be adequate to prevent damage to adjoining
property and to achieve the performance standards set forth in
division (A)(10) of this section. An application for a significant
amendment to a plan, as "significant" is defined by rule, shall
include a copy of the advertisement that the applicant is required
to have published in accordance with section 1514.022 of the
Revised Code.
The chief may propose one or more amendments to the plan in
writing within ninety days after the fifth anniversary of the date
of issuance of a surface mining permit or within ninety days after
the first anniversary of the date of issuance of an in-stream
mining permit. The chief's proposal may be made upon a finding of
any of the following conditions after a complete review of the
plan and inspection of the area of land affected, and the plan
shall be so amended upon written concurrence in the findings and
approval of the amendments by the operator:
(1) An alternate measure, in lieu of one previously approved
in the plan, will more economically or effectively achieve one or
more of the performance standards.
(2) Developments in reclamation technology make an alternate
measure to achieve one or more of the performance standards more
economical, feasible, practical, or effective.
(3) Changes in the use or development of adjoining lands
require changes in the intended future uses of the area of land
affected in order to prevent damage to adjoining property.
(F) The holder of a surface or in-stream mining permit who
desires to transfer the rights granted under the permit to another
person at any time during the term of the permit or its renewal
shall file with the chief an application for the transfer of the
permit. The chief shall issue an order approving or disapproving
the transfer of the permit in accordance with criteria and
procedures established by rule.
Sec. 1514.021. (A) A permit holder who wishes to continue
surface or in-stream mining operations after the expiration date
of the existing permit or renewal permit shall file with the chief
of the division of mineral resources management an application a
notice of intent to renew for
purposes of the renewal of a surface
or in-stream mining permit or renewal permit at least ninety days
before the expiration date of the existing permit or renewal
permit. The application notice of intent to renew shall be upon
the on a form that the chief prescribes and provides and shall be
accompanied by a permit renewal fee. The amount of the fee for
renewal of a surface mining permit or renewal permit shall be one
thousand dollars, and the amount of the fee for renewal of an
in-stream mining permit or renewal permit shall be five hundred
dollars.
(B) Upon receipt of an application for renewal a notice of
intent to renew form and the permit renewal fee under division (A)
of this section, the chief shall notify the applicant permit
holder to submit a renewal application package. The permit holder
shall submit a complete renewal package to the chief at least
thirty days prior to the expiration of the existing surface or
in-stream mining permit or renewal permit. The renewal application
package shall include all of the following:
(1) A map that is a composite of the information required to
be contained in the most recent annual report map under section
1514.03 of the Revised Code and of all surface or in-stream mining
and reclamation activities conducted under the existing permit or
renewal permit; the
(2) The annual report required under section 1514.03 of the
Revised Code;
in
(3) In the case of an applicant proposing a significant
change to the plan of mining and reclamation, as "significant" is
defined by rule, a copy of the advertisement that the applicant is
required to have be published in accordance with section 1514.022
of the Revised Code; and additional
(4) Additional maps, plans, and revised or updated
information that the chief determines to be necessary for permit
renewal. Within sixty days after receipt of this notification, the
applicant shall submit all the required information to the chief.
For a renewal permit requiring minor or minimal updates to
the existing permit, renewal permit, or accompanying information,
the chief may authorize a permit holder to file updated
information through a surface mining permit modification process
using a surface mining permit modification form. However, the
chief may require such a permit holder to submit a complete
renewal application package.
(C)(1) Upon receipt of the information complete renewal
application package required under division (B) of this section
and except as otherwise provided in division (C)(2) of this
section, the chief shall approve the application for renewal and
issue an order granting a renewal permit unless the chief finds
that any of the following applies:
(a) The permit holder's operation is not in substantial or
material compliance with this chapter, rules adopted and orders
issued under it, and the plan of mining and reclamation under the
existing permit or renewal permit.
(b) The permit holder has not provided evidence that a
performance bond filed under section 1514.04 of the Revised Code
applicable to lands affected under the existing permit or renewal
permit will remain effective until released under section 1514.05
of the Revised Code.
(c) The permit holder, any partner if the applicant permit
holder is a partnership, any officer or director if the applicant
permit holder is a corporation, or any other person who has a
right to control or in fact controls the management of the
applicant permit holder or the selection of officers, directors,
or managers of the
applicant permit holder has failed
substantially or materially to comply or continues to fail to
comply with this chapter as provided in section 1514.02 of the
Revised Code.
(2) If the application for renewal proposes significant
changes to the plan of mining and reclamation, as "significant" is
defined by rule, the chief may, but is not required to, approve
the application for renewal.
(D) Within sixty days after receiving the information and
permit renewal fees required under divisions (A) and (B) of this
section, the chief shall approve the application for renewal and
issue an order granting a renewal permit, issue an order denying
the application, or notify the applicant that the time limit for
issuing such an order has been extended. This extension of time
shall not exceed sixty days (1) After receiving a complete renewal
application package and permit renewal fees required under
divisions (A) and (B) of this section, the chief shall do one of
the following:
(a) Approve the application for renewal and issue an order
granting a renewal permit;
(b) Issue an order denying a renewal permit;
(c) Notify the applicant in accordance with division (D)(2)
of this section that there are deficiencies in the renewal
application package and that an extension of the time limit for
issuing an order approving or disapproving the renewal permit has
been granted.
In making a decision regarding a renewal application package,
the chief shall review the package for compliance with this
chapter and rules adopted under it.
(2) The chief shall notify a permit holder and, if
applicable, the permit holder's consultant, surveyor, or engineer
of deficiencies or errors in a renewal application package and
shall include in the notification a discussion of the deficiencies
or errors.
A permit holder shall have up to one hundred eighty days
after the expiration of the permit holder's permit or renewal
permit to submit a revised renewal application package. A permit
holder may request, in writing, an extension of the one
hundred-eighty-day period for revisions to the renewal application
package. The chief may approve a sixty-day extension. The chief
shall notify the permit holder of the chief's decision to either
grant or deny the extension.
Upon the submission of a revised renewal application package
that is determined to be complete by the chief, the chief shall
proceed to approve or deny the application in accordance with
division (D)(1)(a) or (b) of this section. If the revised renewal
application package is not submitted within one hundred eighty
days after the permit expiration date or, if an extension has been
granted, within two hundred forty days after the permit expiration
date, the chief shall issue an order denying the renewal permit in
accordance with division (D)(1)(b) of this section.
(E) If an applicant for a renewal permit has complied with
division (A) of this section, the applicant may continue surface
or in-stream mining operations under the existing permit or
renewal permit after its expiration date until the sixty-day
time
period for filing
the information required by the chief under
division (B) of this section a complete renewal application
package has expired under division (D) of this section or until
the chief issues an order under division (D) of this section
denying the renewal permit.
(F) A permit holder who fails to submit an application a
notice of intent to renew form and required permit renewal fees
within the time prescribed by division (A) of this section and a
renewal application package under division (B) of this section
shall cease surface or in-stream mining operations on the
expiration date of the existing permit or renewal permit. If such
a permit holder then submits a notice of intent to renew form, an
application for renewal, and the permit renewal fees otherwise
required by division (A) of this section on or before the
thirtieth day after the expiration date of the expired permit or
renewal permit and provides the information required by the chief
under division (B) of this section within sixty days after being
notified of the information required under that division the
permit expiration date, the permit holder need not submit the
final map and report required by section 1514.03 of the Revised
Code until the later of thirty days after the chief issues an
order denying the application for renewal or thirty days after the
chief's order is affirmed upon appeal under section 1513.13 or
1513.14 of the Revised Code. An applicant under this division who
fails to provide the information required by the chief under
division (B) of this section within the prescribed time period
shall submit the final map and report required by section 1514.03
of the Revised Code within thirty days after the expiration of
that prescribed period.
(G) If the chief issues an order denying an application for
renewal of a permit or renewal permit after the expiration date of
the permit, the permit holder shall cease surface or in-stream
mining operations immediately and, within thirty days after the
issuance of the order, shall submit the final report and map
required under section 1514.03 of the Revised Code. The chief
shall state the reasons for denial in the order denying renewal of
the
application permit. An applicant A permit holder may appeal
the chief's order denying the renewal under section 1513.13 of the
Revised Code and may continue surface or in-stream mining and
reclamation operations under the expired permit until the
reclamation commission affirms the chief's order under that
section and, if the applicant elects to appeal the order of the
commission under section 1513.14 of the Revised Code, until the
court of appeals affirms the order.
(H) The approval of an application for renewal under this
section authorizes the continuation of an existing surface mining
permit or renewal permit for a term of fifteen years from the
expiration date of the existing permit.
The approval of an application for renewal under this section
authorizes the continuation of an existing in-stream mining permit
or renewal permit for a term of
two five years from the expiration
date of the existing permit.
(I) Any renewal permit is subject to all the requirements of
this chapter and rules adopted under it.
Sec. 1514.03. Within thirty days after each anniversary date
of issuance of a surface or in-stream mining permit, the operator
shall file with the chief of the division of mineral resources
management an annual report, on a form prescribed and furnished by
the chief, that, for the period covered by the report, shall state
the amount of and identify the types of minerals and coal, if any
coal, produced and shall state the number of acres affected and
the number of acres estimated to be affected during the next year
of operation. An annual report is not required to be filed if a
final report is filed in lieu thereof.
Each annual report for a surface mining operation shall
include a progress map indicating the location of areas of land
affected during the period of the report and the location of the
area of land estimated to be affected during the next year. The
map shall be prepared in accordance with division (A)(11) or (12)
of section 1514.02 of the Revised Code, as appropriate, except
that a map prepared in accordance with division (A)(12) of that
section may be certified by the operator or authorized agent of
the operator in lieu of certification by a professional engineer
or surveyor registered under Chapter 4733. of the Revised Code.
However, the chief may require that an annual progress map or a
final map be prepared by a registered professional engineer or
registered surveyor if the chief has reason to believe that the
operator exceeded the boundaries of the permit area or, if the
operator filed the map required under division (A)(11) of section
1514.02 of the Revised Code, that the operator extracted ten
thousand tons or more of minerals during the period covered by the
report.
Each annual report for an in-stream mining operation shall
include a statement of the total tonnage removed by in-stream
mining for each month and of the surface acreage and depth of
material removed by in-stream mining and shall include a map that
identifies the area affected by the in-stream mining if the
in-stream mining for the year addressed by the report occurred
beyond the area identified in the most recent approved map,
soundings that depict the cross-sectional views of the channel
bottom of the watercourse if the soundings depict a
cross-sectional view of the channel bottom that is different from
the most recent approved map, and water elevations for the
watercourse if water elevations are different from those indicated
on the most recent approved map.
Each annual report shall be accompanied by a filing fee in
the amount of five hundred dollars, except in the case of an
annual report filed by a small operator or an in-stream mining
operator. A small operator, which is a surface mine operator who
intends to extract fewer than ten thousand tons of minerals and no
coal during the next year of operation under the permit, or an
in-stream mining operator shall include a filing fee in the amount
of two hundred fifty dollars with each annual report. The annual
report of any operator also shall be accompanied by an acreage fee
in the amount of seventy-five dollars multiplied by the number of
acres estimated in the report to be affected during the next year
of operation under the permit. The acreage fee shall be adjusted
by subtracting a credit of seventy-five dollars per excess acre
paid for the preceding year if the acreage paid for the preceding
year exceeds the acreage actually affected or by adding an
additional amount of seventy-five dollars per excess acre affected
if the acreage actually affected exceeds the acreage paid for the
preceding year.
With each annual report the operator shall file a performance
bond in the amount, unless otherwise provided by rule, of five
hundred dollars multiplied by the number of acres estimated to be
affected during the next year of operation under the permit for
which no performance bond previously was filed. Unless otherwise
provided by rule, the bond shall be adjusted by subtracting a
credit of five hundred dollars per excess acre for which bond was
filed for the preceding year if the acreage for which the bond was
filed for the preceding year exceeds the acreage actually
affected, or by adding an amount of five hundred dollars per
excess acre affected if the acreage actually affected exceeds the
acreage for which bond was filed for the preceding year.
Within thirty days after the expiration of the surface or
in-stream mining permit, or completion or abandonment of the
operation, whichever occurs earlier, the operator shall submit a
final report containing the same information required in an annual
report, but covering the time from the last annual report to the
expiration of the permit, or completion or abandonment of the
operation, whichever occurs earlier.
Each final report shall include a map indicating the location
of the area of land affected during the period of the report and
the location of the total area of land affected under the permit.
The map shall be prepared in accordance with division (A)(11) or
(12) of section 1514.02 of the Revised Code, as appropriate.
In the case of a final report for an in-stream mining
operation, the map also shall include the information required
under division (A)(18) of section 1514.02 of the Revised Code, as
applicable.
If the final report and certified map, as verified by the
chief, show that the number of acres affected under the permit is
larger than the number of acres for which the operator has paid an
acreage fee or filed a performance bond, upon notification by the
chief, the operator shall pay an additional acreage fee in the
amount of seventy-five dollars multiplied by the difference
between the number of acres affected under the permit and the
number of acres for which the operator has paid an acreage fee and
shall file an additional performance bond in the amount, unless
otherwise provided by rule, of five hundred dollars multiplied by
the difference between the number of acres affected under the
permit and the number of acres for which the operator has filed
bond.
If the final report and certified map, as verified by the
chief, show that the number of acres affected under the permit is
smaller than the number of acres for which the operator has filed
a performance bond, the chief shall order release of the excess
bond. However, the chief shall retain a performance bond in a
minimum amount of ten thousand dollars irrespective of the number
of acres affected under the permit. The release of the excess bond
shall be in an amount, unless otherwise provided by rule, equal to
five hundred dollars multiplied by the difference between the
number of acres affected under the permit and the number of acres
for which the operator has filed bond.
The fees collected pursuant to this section and section
1514.02 of the Revised Code shall be deposited with the treasurer
of state to the credit of the surface mining fund created under
section 1514.06 of the Revised Code.
If upon inspection the chief finds that any filing fee,
acreage fee, performance bond, or part thereof is not paid when
due or is paid on the basis of false or substantially inaccurate
reports, the chief may request the attorney general to recover the
unpaid amounts that are due the state, and the attorney general
shall commence appropriate legal proceedings to recover the unpaid
amounts.
Sec. 1514.05. (A) At any time within the period allowed an
operator by section 1514.02 of the Revised Code to reclaim an area
of land affected by surface or in-stream mining, the operator may
file a request, on a form provided by the chief of the division of
mineral resources management, for inspection of the area of land
upon which the reclamation, other than any required planting, is
completed. The request shall include all of the following:
(1) The location of the area and number of acres;
(3) A map showing the location of the acres reclaimed,
prepared and certified in accordance with division (A)(11) or (12)
of section 1514.02 of the Revised Code, as appropriate. In the
case of an in-stream mining operation, the map also shall include,
as applicable, the information required under division (A)(18) of
section 1514.02 of the Revised Code.
The chief shall make an inspection and evaluation of the
reclamation of the area of land for which the request was
submitted within ninety days after receipt of the request or, if
the operator fails to complete the reclamation or file the request
as required, as soon as the chief learns of the default.
Thereupon, if the chief approves the reclamation, other than any
required planting, as meeting the requirements of this chapter,
rules adopted thereunder, any orders issued during the mining or
reclamation, and the specifications of the plan for mining and
reclaiming, the chief shall issue an order to the operator and the
operator's surety releasing them from liability for one-half of
the total amount of their surety bond on deposit to ensure
reclamation for the area upon which reclamation is completed. If
the operator has deposited cash, an irrevocable letter of credit,
or certificates of deposit in lieu of a surety bond to ensure
reclamation, the chief shall issue an order to the operator
releasing one-half of the amount so held and promptly shall
transmit a certified copy of the order to the treasurer of state.
Upon presentation of the order to the treasurer of state by the
operator to whom it was issued, or by the operator's authorized
agent, the treasurer of state shall deliver to the operator or the
operator's authorized agent the cash, irrevocable letter of
credit, or certificates of deposit designated in the order.
If the chief does not approve the reclamation, other than any
required planting, the chief shall notify the operator by
certified mail. The notice shall be an order stating the reasons
for unacceptability, ordering further actions to be taken, and
setting a time limit for compliance. If the operator does not
comply with the order within the time limit specified, the chief
may order an extension of time for compliance after determining
that the operator's noncompliance is for good cause, resulting
from developments partially or wholly beyond the operator's
control. If the operator complies within the time limit or the
extension of time granted for compliance, the chief shall order
release of the performance bond in the same manner as in the case
of approval of reclamation, other than any required planting, by
the chief, and the treasurer of state shall proceed as in that
case. If the operator does not comply within the time limit and
the chief does not order an extension, or if the chief orders an
extension of time and the operator does not comply within the
extension of time granted for compliance, the chief shall issue
another order declaring that the operator has failed to reclaim
and, if the operator's permit has not already expired or been
revoked, revoking the operator's permit. The chief shall thereupon
proceed under division (C) of this section.
(B) At any time within the period allowed an operator by
section 1514.02 of the Revised Code to reclaim an area affected by
surface mining, the operator may file a request, on a form
provided by the chief, for inspection of the area of land on which
all reclamation, including the successful establishment of any
required planting, is completed. The request shall include all of
the following:
(1) The location of the area and number of acres;
(3) The type and date of any required planting of vegetative
cover and the degree of success of growth;
(4) A map showing the location of the acres reclaimed,
prepared and certified in accordance with division (A)(11) or (12)
of section 1514.02 of the Revised Code, as appropriate. In the
case of an in-stream mining operation, the map also shall include
the information required under division (A)(18) of section 1514.02
of the Revised Code.
The chief shall make an inspection and evaluation of the
reclamation of the area of land for which the request was
submitted within ninety days after receipt of the request or, if
the operator fails to complete the reclamation or file the request
as required, as soon as the chief learns of the default.
Thereupon, if the chief finds that the reclamation meets the
requirements of this chapter, rules adopted under it, any orders
issued during the mining and reclamation, and the specifications
of the plan for mining and reclaiming and decides to release any
remaining performance bond on deposit to ensure reclamation of the
area on which reclamation is completed, within ten days of
completing the inspection and evaluation, the chief shall order
release of the remaining performance bond in the same manner as in
the case of approval of reclamation other than required planting,
and the treasurer of state shall proceed as in that case.
If the chief does not approve the reclamation performed by
the operator, the chief shall notify the operator by certified
mail within ninety days of the filing of the application for
inspection or of the date when the chief learns of the default.
The notice shall be an order stating the reasons for
unacceptability, ordering further actions to be taken, and setting
a time limit for compliance. If the operator does not comply with
the order within the time limit specified, the chief may order an
extension of time for compliance after determining that the
operator's noncompliance is for good cause, resulting from
developments partially or wholly beyond the operator's control. If
the operator complies within the time limit or the extension of
time granted for compliance, the chief shall order release of the
remaining performance bond in the same manner as in the case of
approval of reclamation by the chief, and the treasurer of state
shall proceed as in that case. If the operator does not comply
within the time limit and the chief does not order an extension,
or if the chief orders an extension of time and the operator does
not comply within the extension of time granted for compliance,
the chief shall issue another order declaring that the operator
has failed to reclaim and, if the operator's permit has not
already expired or been revoked, revoking the operator's permit.
The chief then shall proceed under division (C) of this section.
(C) Upon issuing an order under division (A) or (B) of this
section declaring that the operator has failed to reclaim, the
chief shall make a finding as to the number and location of the
acres of land that the operator has failed to reclaim in the
manner required by this chapter. The chief shall order the release
of the performance bond in the amount of five hundred dollars per
acre for those acres that the chief finds to have been reclaimed
in the manner required by this chapter. The release shall be
ordered in the same manner as in the case of other approval of
reclamation by the chief, and the treasurer of state shall proceed
as in that case. If the operator has on deposit cash, an
irrevocable letter of credit, or certificates of deposit to ensure
reclamation of the area of the land affected, the chief at the
same time shall issue an order declaring that the remaining cash,
irrevocable letter of credit, or certificates of deposit are the
property of the state and are available for use by the chief in
performing reclamation of the area and shall proceed in accordance
with section 1514.06 of the Revised Code.
If the operator has on deposit a surety bond to ensure
reclamation of the area of land affected, the chief shall notify
the surety in writing of the operator's default and shall request
the surety to perform the surety's obligation and that of the
operator. The surety, within ten days after receipt of the notice,
shall notify the chief as to whether it intends to perform those
obligations.
If the surety chooses to perform, it shall arrange for work
to begin within thirty days of the day on which it notifies the
chief of its decision. If the surety completes the work as
required by this chapter, the chief shall issue an order to the
surety releasing the surety from liability under the bond in the
same manner as if the surety were an operator proceeding under
this section. If, after the surety begins the work, the chief
determines that the surety is not carrying the work forward with
reasonable progress, or that it is improperly performing the work,
or that it has abandoned the work or otherwise failed to perform
its obligation and that of the operator, the chief shall issue an
order terminating the right of the surety to perform the work and
demanding payment of the amount due as required by this chapter.
If the surety chooses not to perform and so notifies the
chief, does not respond to the chief's notice within ten days of
receipt thereof, or fails to begin work within thirty days of the
day it timely notifies the chief of its decision to perform its
obligation and that of the operator, the chief shall issue an
order terminating the right of the surety to perform the work and
demanding payment of the amount due, as required by this chapter.
Upon receipt of an order of the chief demanding payment of
the amount due, the surety immediately shall deposit with the
chief cash in the full amount due under the order for deposit with
the treasurer of state. If the surety fails to make an immediate
deposit, the chief shall certify it to the attorney general for
collection. When the chief has issued an order terminating the
right of the surety and has the cash on deposit, the cash is the
property of the state and is available for use by the chief, who
shall proceed in accordance with section 1514.06 of the Revised
Code.
Sec. 3706.27. (A) There is hereby created in the state
treasury the advanced energy research and development fund to
provide grants for advanced energy projects. There is hereby
created in the state treasury the advanced energy research and
development taxable fund to provide loans for advanced energy
projects.
(B)(1) The advanced energy research and development fund and
the advanced energy research and development taxable fund shall
consist of the proceeds of obligations issued under section 166.08
of the Revised Code. Money shall be credited to the respective
funds in the proportion that the executive director of the Ohio
air quality development authority, with the affirmative vote of a
majority of the members of the authority, determines appropriate.
(2) Any investment earnings from the money in the advanced
energy research and development fund and in the advanced energy
research and development taxable fund shall be credited to those
funds, respectively. Any repayment of loans made from money in the
advanced energy research and development taxable fund shall be
credited to the facilities establishment alternative fuel
transportation fund created in section
166.03 122.075 of the
Revised Code.
(C) The director of budget and management shall establish and
maintain records or accounts for or within these funds in such a
manner as to show the amount credited to the funds pursuant to
section 166.08 of the Revised Code and that the amounts so
credited have been expended for the purposes set forth in Section
2p or 13 of Article VIII, Ohio Constitution, and sections 166.08,
166.30, and 3706.26 of the Revised Code.
Sec. 4905.90. As used in sections 4905.90 to 4905.96 of the
Revised Code:
(A) "Condensate" means liquid hydrocarbons recovered at the
ground surface that result from condensation due to reduced
pressure or temperature of petroleum hydrocarbons that were
originally in the gaseous phase in the underground reservoir.
(B) "Contiguous property" includes, but is not limited to, a
manufactured home park as defined in section 3733.01 of the
Revised Code; a public or publicly subsidized housing project; an
apartment complex; a condominium complex; a college or university;
an office complex; a shopping center; a hotel; an industrial park;
and a race track.
(B)(C) "Gas" means natural gas, flammable gas, or gas which
is toxic or corrosive.
(C) "Gathering lines" and the "gathering of gas" have the
same meaning as in the Natural Gas Pipeline Safety Act and the
rules adopted by the United States department of transportation
pursuant to the Natural Gas Pipeline Safety Act, including 49
C.F.R. part 192, as amended.
(D) "Gas gathering pipeline" means a pipeline used to collect
and transport wet natural gas from a well facility to the inlet of
a gas processing plant. The pipeline may be upstream or downstream
from a wet natural gas compressor station.
(E) "Gas processing plant" means a plant that processes wet
natural gas into merchantable products, including transmission
quality gas or natural gas liquids.
(F) "High pressure gas gathering pipeline" means a gas
gathering pipeline that includes either of the following:
(1) A metallic gas gathering pipeline in which the MAOP
produces a hoop stress of twenty per cent or more of SMYS. If the
stress level is unknown, an operator must determine the stress
level according to the applicable provisions of 49 C.F.R. part 192
subpart C.
(2) A nonmetallic gas gathering pipeline in which the MAOP is
more than 125 pounds per square inch.
(G) "High pressure processing plant gas stub pipeline" means
a processing plant gas stub pipeline that includes either of the
following:
(1) A metallic processing plant gas stub pipeline in which
the MAOP produces a hoop stress of twenty per cent or more of
SMYS. If the stress level is unknown, an operator must determine
the stress level according to the applicable provisions of 49
C.F.R. part 192 subpart C.
(2) A nonmetallic processing plant gas stub pipeline in which
the MAOP is more than 125 pounds per square inch.
(H) "Intrastate pipe-line transportation" has the same
meaning as in 82 Stat. 720 (1968), 49 U.S.C.A. App. 1671, as
amended, but excludes the gathering of gas exempted by the Natural
Gas Pipeline Safety Act.
(E)(I) "Low pressure gas gathering pipeline" means a gas
gathering pipeline that includes either of the following:
(1) A metallic gas gathering pipeline in which the MAOP
produces a hoop stress of less than twenty per cent of SMYS. If
the stress level is unknown, an operator must determine the stress
level according to the applicable provisions of 49 C.F.R. part 192
subpart C.
(2) A nonmetallic gas gathering pipeline in which the MAOP is
125 pounds per square inch or less.
(J) "Low pressure processing plant gas stub pipeline" means a
processing plant gas stub pipeline that includes either of the
following:
(1) A metallic processing plant gas stub pipeline in which
the MAOP produces a hoop stress of less than twenty per cent of
SMYS. If the stress level is unknown, an operator must determine
the stress level according to the applicable provisions of 49
C.F.R. part 192 subpart C.
(2) A nonmetallic processing plant gas stub pipeline in which
the MAOP is 125 pounds per square inch or less.
(K) "MAOP" means the maximum pressure at which a gas
gathering pipeline or any segment of such a pipeline may be
operated under sections 4905.90 to 4905.96 of the Revised Code.
(L) "Master-meter system" means a pipe-line system that
distributes gas within a contiguous property for which the system
operator purchases gas for resale to consumers, including tenants.
Such pipe-line system supplies consumers who purchase the gas
directly through a meter, or by paying rent, or by other means.
The term includes a master-meter system as defined in 49 C.F.R.
191.3, as amended. The term excludes a pipeline within a
manufactured home, mobile home, or a building.
(F)(M) "Natural Gas Pipeline Safety Act" means the "Natural
Gas Pipeline Safety Act of 1968," 82 Stat. 720, 49 U.S.C.A. App.
1671 et seq., as amended.
(G)(N) "Operator" means any of the following:
(1) A gas company or natural gas company as defined in
section 4905.03 of the Revised Code, except that division (A)(5)
of that section does not authorize the public utilities commission
to relieve any producer of gas, as a gas company or natural gas
company, of compliance with sections 4905.90 to 4905.96 of the
Revised Code or the pipe-line safety code created under section
4905.91 of the Revised Code;
(2) A pipe-line company, as defined in section 4905.03 of the
Revised Code, when engaged in the business of transporting gas by
pipeline;
(3) A public utility that is excepted from the definition of
"public utility" under division (B) or (C) of section 4905.02 of
the Revised Code, when engaged in supplying or transporting gas by
pipeline within this state;
(4) Any person that owns, operates, manages, controls, or
leases any of the following:
(a) Intrastate pipe-line transportation facilities within
this state;
(b) Gas gathering lines within this state which are not
exempted by the Natural Gas Pipeline Safety Act;
(c) A master-meter system within this state.
"Operator" does not include an ultimate consumer who owns a
service line, as defined in 49 C.F.R. 192.3, as amended, on the
real property of that ultimate consumer.
(H)(O) "Operator of a master-meter system" means a person
described under division (F)(N)(4)(c) of this section. An operator
of a master-meter system is not a public utility under section
4905.02 or a gas or natural gas company under section 4905.03 of
the Revised Code.
(1) In addition to those defined in division (C) of section
1.59 of the Revised Code, a joint venture or a municipal
corporation;
(2) Any trustee, receiver, assignee, or personal
representative of persons defined in division (H)(P)(1) of this
section.
(J)(Q) "Processing plant gas stub pipeline" means a gas
pipeline that transports transmission quality gas from the
tailgate of a gas processing plant to the inlet of an interstate
or intrastate transmission line and that is considered an
extension of the gas processing plant and is not for public use.
(R) "Safety audit" means the public utilities commission's
audit of the premises, pipe-line facilities, and the records,
maps, and other relevant documents of a master-meter system to
determine the operator's compliance with sections 4905.90 to
4905.96 of the Revised Code and the pipe-line safety code.
(K)(S) "Safety inspection" means any inspection, survey, or
testing of a master-meter system which is authorized or required
by sections 4905.90 to 4905.96 of the Revised Code and the
pipe-line safety code. The term includes, but is not limited to,
leak surveys, inspection of regulators and critical valves, and
monitoring of cathodic protection systems, where applicable.
(L)(T) "Safety-related condition" means any safety-related
condition defined in 49 C.F.R. 191.23, as amended.
(M)(U) "SMYS" mean specified minimum yield strength that is
either of the following:
(1) For steel pipe manufactured in accordance with a listed
specification, the yield strength specified as a minimum in that
specification;
(2) For steel pipe manufactured in accordance with an unknown
or unlisted specification, the yield strength determined in
accordance with 49 C.F.R. 192.107(b).
(V) "Supervisory control and data acquisition system" means a
computer-based system or systems used by a controller in a control
room that collects and displays information about a pipeline
facility and may have the ability to send commands back to the
pipeline facility.
(W) "Total Mcfs of gas it supplied or delivered" means the
sum of the following volumes of gas that an operator supplied or
delivered, measured in units per one thousand cubic feet:
(2) Commercial and industrial sales;
(3) Other sales to public authorities;
(4) Interdepartmental sales;
(6) Transportation of gas.
(X) "Transmission quality gas" means gas consisting
predominantly of methane that meets all downstream specifications
for transportation in an intrastate or interstate transmission
pipeline and that is suitable for use by public consumers.
(Y) "Well facility" means a facility located at or near a
natural gas well that separates raw natural gas, condensate, and
water.
(Z) "Wet natural gas" means natural gas with a mixture of
natural gas liquids that normally include ethane, propane, butane,
and other condensates that are liquid if the temperature is
reduced below the hydrocarbon dew point temperature of the natural
gas and which may be processed to remove any or all of the natural
gas liquids.
(AA) "Wet natural gas compressor station" means a facility
that contains one or more compressors and that is used to increase
the pressure of raw natural gas for further transport by pipeline.
Sec. 4905.91. For the purpose of protecting the public
safety with respect to intrastate pipe-line transportation by any
operator:
(A) The public utilities commission shall:
(1) Adopt, and may amend or rescind, rules to carry out
sections 4905.90 to 4905.96 of the Revised Code, including rules
concerning pipe-line safety, drug testing, and enforcement
procedures. The commission shall adopt these rules only after
notice and opportunity for public comment. The rules adopted under
this division and any orders issued under sections 4905.90 to
4905.96 of the Revised Code constitute the pipe-line safety code.
The commission shall administer and enforce that code.
(2) Make certifications and reports to the United States
department of transportation as required under the Natural Gas
Pipeline Safety Act.
(1) Investigate any service, act, practice, policy, or
omission by any operator to determine its compliance with sections
4905.90 to 4905.96 of the Revised Code and the pipe-line safety
code;
(2) Investigate any intrastate pipe-line transportation
facility to determine if it is hazardous to life or property, as
provided in 82 Stat. 720 (1968), 49 U.S.C.A. App. 1679b(b)(2) and
(3);
(3) Investigate the existence or report of any safety-related
condition that involves any intrastate pipe-line transportation
facility;
(4) Enter into and perform contracts or agreements with the
United States department of transportation to inspect interstate
transmission facilities pursuant to the Natural Gas Pipeline
Safety Act;
(5) Accept grants-in-aid, cash, and reimbursements provided
for or made available to this state by the federal government to
carry out the Natural Gas Pipeline Safety Act or to enforce
sections 4905.90 to 4905.96 of the Revised Code and the pipe-line
safety code. All such grants-in-aid, cash, and reimbursements
shall be deposited to the credit of the gas pipe-line safety fund,
which is hereby created in the state treasury, to be used by the
commission for the purpose of carrying out this section.
(C) The commission's regulation of gathering lines shall
conform to the regulation of gathering lines in 49 C.F.R. 192 and
199, as amended, and the commission's annual certification
agreements with the United States department of transportation,
except that rule 4901:1-16-03, paragraph (D) of rule 4901:1-16-05,
and rule 4901:1-16-06 of the Ohio Administrative Code shall also
apply to gathering lines. The procedural rules under chapter
4901:1-16 of the Ohio Administrative Code shall also apply to
operators of gathering lines.
Sec. 4905.911. (A) The public utilities commission shall
require an operator of a low pressure gas gathering pipeline or
low pressure processing plant gas stub pipeline to comply with the
safety requirements of 49 C.F.R. 192, division (C) of this
section, and to do all of the following regarding that pipeline:
(1) Design, install, construct, initially inspect, and
initially test the pipeline in accordance with the requirements of
49 C.F.R. 192 applicable to transmission lines if the pipeline is
new, replaced, relocated, or otherwise changed;
(2) Control corrosion according to requirements of 49 C.F.R.
192 subpart I applicable to transmission lines if the pipeline is
metallic;
(3) Establish and carry out a damage prevention program under
49 C.F.R. 192.614;
(4) Establish and carry out a public education program under
49 C.F.R. 192.616;
(5) Establish the MAOP of the pipeline under 49 C.F.R.
192.619;
(6) Install and maintain pipeline markers according to the
requirements for transmission lines under 49 C.F.R. 192.707;
(7) Perform leakage surveys according to requirements in 49
C.F.R. 192.706;
(8) Retain a record of each required leakage survey conducted
under division (A)(7) of this section and 49 C.F.R. 192.706 for
five years or until the next leakage survey is completed,
whichever time period is longer.
(B) The commission shall require an operator of a high
pressure gas gathering pipeline or a high pressure processing
plant gas stub pipeline to comply with the safety requirements of
49 C.F.R. 192 applicable to transmission lines, except the
operator shall not have to comply with the requirements of 49
C.F.R. 192.150 or 49 C.F.R. 192 subpart O. The commission shall
also require the operator to comply with division (C) of this
section and to do all of the following regarding that pipeline:
(1) Install safety tape at a depth of two feet below grade to
warn excavators of imminent danger while excavating;
(2) Ensure the pipeline has inlet and outlet automated
shutdown valves;
(3) Ensure the pipeline has a minimum setback of two hundred
feet from any occupied structure, which may be waived by the owner
or occupant of the structure;
(4) Implement and document a protective remote supervisory
control and data acquisition system.
(C) The commission shall require an operator of a pipeline
subject to division (A) or (B) of this section to comply with all
of the following:
(1) The procedural rules under chapter 4901:1-16 of the Ohio
Administrative Code;
(2) Rule 4901:1-16-03 of the Ohio Administrative Code;
(3) Paragraphs (A) to (D) of rule 4901:1-16-04 of the Ohio
Administrative Code;
(4) Paragraphs (C) and (D) of rule 4901:1-16-05 of the Ohio
Administrative Code;
(5) Rule 4901:1-16-06 of the Ohio Administrative Code.
Sec. 4905.95. (A) Except as otherwise provided in division
(C) of this section:
(1) The public utilities commission, regarding any proceeding
under this section, shall provide reasonable notice and the
opportunity for a hearing in accordance with rules adopted under
section 4901.13 of the Revised Code.
(2) Sections 4903.02 to 4903.082, 4903.09 to 4903.16, and
4903.20 to 4903.23 of the Revised Code apply to all proceedings
and orders of the commission under this section and to all
operators subject to those proceedings and orders.
(B) If, pursuant to a proceeding it specially initiates or to
any other proceeding and after the hearing provided for under
division (A) of this section, the commission finds that:
(1) An operator has violated or failed to comply with, or is
violating or failing to comply with, sections 4905.90 to 4905.96
of the Revised Code or the pipe-line safety code, the commission
by order:
(a) Shall require the operator to comply and to undertake
corrective action necessary to protect the public safety;
(b) May assess upon the operator forfeitures of not more than
one hundred thousand dollars for each day of each violation or
noncompliance, except that the aggregate of such forfeitures shall
not exceed five hundred thousand one million dollars for any
related series of violations or noncompliances. In determining the
amount of any such forfeiture, the commission shall consider all
of the following:
(i) The gravity of the violation or noncompliance;
(ii) The operator's history of prior violations or
noncompliances;
(iii) The operator's good faith efforts to comply and
undertake corrective action;
(iv) The operator's ability to pay the forfeiture;
(v) The effect of the forfeiture on the operator's ability to
continue as an operator;
(vi) Such other matters as justice may require.
All forfeitures collected under this division or section 4905.96
of the Revised Code shall be deposited in the state treasury to
the credit of the general revenue fund.
(c) May direct the attorney general to seek the remedies
provided in section 4905.96 of the Revised Code.
(2) An intrastate pipe-line transportation facility is
hazardous to life or property, the commission by order:
(a) Shall require the operator of the facility to take
corrective action to remove the hazard. Such corrective action may
include suspended or restricted use of the facility, physical
inspection, testing, repair, replacement, or other action.
(b) May direct the attorney general to seek the remedies
provided in section 4905.96 of the Revised Code.
(C) If, pursuant to a proceeding it specially initiates or to
any other proceeding, the commission finds that an emergency
exists due to a condition on an intrastate pipe-line
transportation facility posing a clear and immediate danger to
life or health or threatening a significant loss of property and
requiring immediate corrective action to protect the public
safety, the commission may issue, without notice or prior hearing,
an order reciting its finding and may direct the attorney general
to seek the remedies provided in section 4905.96 of the Revised
Code. The order shall remain in effect for not more than forty
days after the date of its issuance. The order shall provide for a
hearing as soon as possible, but not later than thirty days after
the date of its issuance. After the hearing the commission shall
continue, revoke, or modify the order and may make findings under
and seek appropriate remedies as provided in division (B) of this
section.
Sec. 4906.01. As used in Chapter 4906. of the Revised Code:
(A) "Person" means an individual, corporation, business
trust, association, estate, trust, or partnership or any officer,
board, commission, department, division, or bureau of the state or
a political subdivision of the state, or any other entity.
(B)(1) "Major utility facility" means:
(a) Electric generating plant and associated facilities
designed for, or capable of, operation at a capacity of fifty
megawatts or more;
(b) An electric transmission line and associated facilities
of a design capacity of one hundred twenty-five kilovolts or more;
(c) A gas or natural gas transmission line and pipeline,
including its associated facilities, that meets either of the
following requirements:
(i) It is more than nine inches in outside diameter and is
designed for, or capable of, transporting gas or natural gas at
pressures in excess of one hundred twenty-five pounds per square
inch.
(ii) It is designed for, or capable of, transporting gas at
pressures in excess of 300 pounds per square inch.
(2) "Major utility facility" does not include gas or natural
gas any of the following:
(a) Gas transmission lines over which an agency of the United
States has exclusive jurisdiction, any;
(b) Any solid waste facilities as defined in section 6123.01
of the Revised Code, or either of the following as defined by the
power siting board:;
(a)(c) Electric, gas, natural gas distributing lines and gas
or natural gas gathering lines and associated facilities as
defined by the power siting board;
(b)(d) Any manufacturing facility that creates byproducts
that may be used in the generation of electricity as defined by
the power siting board;
(e) Gas gathering pipelines and processing plant gas stub
pipelines as defined in section 4905.90 of the Revised Code;
(f) Any gas processing plant as defined in section 4905.90 of
the Revised Code;
(g) Natural gas liquids finished products pipelines;
(h) Pipelines from a natural gas liquids processing plant to
an interstate or intrastate gas pipeline;
(i) Any natural gas liquids fractionation plant.
(C) "Commence to construct" means any clearing of land,
excavation, or other action that would adversely affect the
natural environment of the site or route of a major utility
facility, but does not include surveying changes needed for
temporary use of sites or routes for nonutility purposes, or uses
in securing geological data, including necessary borings to
ascertain foundation conditions.
(D) "Certificate" means a certificate of environmental
compatibility and public need issued by the power siting board
under section 4906.10 of the Revised Code or a construction
certificate issued by the board under rules adopted under division
(E) or (F) of section 4906.03 of the Revised Code.
(E) "Gas" means natural gas, flammable gas, or gas that is
toxic or corrosive.
(F) "Natural gas liquids finished product pipeline" means a
pipeline that carries finished product natural gas liquids to the
inlet of an interstate or intrastate finished product natural gas
liquid transmission pipeline, rail loading facility, or other
petrochemical or refinery facility.
(G) "Natural gas liquids fractionation plant" means a
facility that takes a feed of raw natural gas liquids and produces
finished product natural gas liquids.
(H) "Raw natural gas" means hydrocarbons that are produced in
a gaseous state from gas wells and that generally include methane,
ethane, propane, butanes, pentanes, hexanes, heptanes, octanes,
nonanes, and decanes, plus other naturally occurring impurities
like water, carbon dioxide, hydrogen sulfide, nitrogen, oxygen,
and helium.
(I) "Raw natural gas liquids" means naturally occurring
hydrocarbons contained in raw natural gas that are extracted in a
gas processing plant and liquefied and generally include mixtures
of ethane, propane, butanes, and natural gasoline.
(J) "Finished product natural gas liquids" means an
individual finished product produced by a natural gas liquids
fractionation plant as a liquid that meets the specifications for
commercial products as defined by the gas processors association.
Those products include ethane, propane, iso-butane, normal butane,
and natural gasoline.
Sec. 4906.03. The power siting board shall:
(A) Require such information from persons subject to its
jurisdiction as it considers necessary to assist in the conduct of
hearings and any investigations or studies it may undertake;
(B) Conduct any studies or investigations that it considers
necessary or appropriate to carry out its responsibilities under
this chapter;
(C) Adopt rules establishing criteria for evaluating the
effects on environmental values of proposed and alternative sites,
and projected needs for electric power, and such other rules as
are necessary and convenient to implement this chapter, including
rules governing application fees, supplemental application fees,
and other reasonable fees to be paid by persons subject to the
board's jurisdiction. The board shall make an annual accounting of
its collection and use of these fees and shall issue an annual
report of its accounting, in the form and manner prescribed by its
rules, not later than the last day of June of the year following
the calendar year to which the report applies.
(D) Approve or, disapprove, or modify and approve
applications for certificates;
(E) Notwithstanding sections 4906.06 to 4906.14 of the
Revised Code, the board may adopt rules to provide for an
abbreviated accelerated review of an application for a
construction certificate for construction of a major utility
facility related to a coal research and development project as
defined in section 1555.01 of the Revised Code, or to a coal
development project as defined in section 1551.30 of the Revised
Code, submitted to the Ohio coal development office for review
under division (B)(7) of section 1551.33 of the Revised Code.
Applications for construction certificates for construction of
major utility facilities for Ohio coal research and development
shall be filed with the board on the same day as the proposed
facility or project is submitted to the Ohio coal development
office for review.
The board shall render a decision on an application for a
construction certificate within ninety days after receipt of the
application and all of the data and information it may require
from the applicant. In rendering a decision on an application for
a construction certificate, the board shall only consider the
criteria and make the findings and determinations set forth in
divisions (A)(2), (3), (5), and (7) and division (B) of section
4906.10 of the Revised Code.
(F) Notwithstanding sections 4906.06 to 4906.14 of the
Revised Code, the board shall adopt rules to provide for an
accelerated review of an application for a construction
certificate for any of the following:
(1) An electric transmission line that is not more than two
miles in length;
(2) An electric generating facility that uses waste heat and
is primarily within the current boundary of an existing industrial
facility;
(3) A gas pipeline that is not more than five miles in
length.
The board shall adopt rules that provide for the automatic
certification to any entity described in this division when an
application by any such entity is not suspended by the board, an
administrative law judge, or the chairperson or executive director
of the board for good cause shown, within ninety days of
submission of the application. If an application is suspended, the
board shall approve, disapprove, or modify and approve the
application not later than ninety days after the date of the
suspension.
Sec. 4906.05. No certificate is required for a major utility
facility on which construction had already commenced on October
23, 1972, or within two years thereafter. This section does not
exempt such a facility from any other requirements of state and
local laws and regulations.
No certificate is required for any major utility facility
already in operation on October 23, 1972, and the facility shall
not be exempt from any applicable state or local laws or
regulations. A certificate is required for any substantial
addition to a facility already in operation. "Substantial
addition" shall be defined by the power siting board.
Any electric generating plant and associated facilities,
electric transmission line and associated facilities, or gas or
natural gas transmission line pipeline and associated facilities
which is not a major utility facility is not exempt from state or
local laws or regulations.
Sec. 4906.06. (A) An applicant for a certificate shall file
with the office of the chairperson of the power siting board an
application, in such form as the board prescribes, containing the
following information:
(1) A description of the location and of the major utility
facility;
(2) A summary of any studies that have been made by or for
the applicant of the environmental impact of the facility;
(3) A statement explaining the need for the facility;
(4) A statement of the reasons why the proposed location is
best suited for the facility;
(5) A statement of how the facility fits into the applicant's
forecast contained in the report submitted under section 4935.04
of the Revised Code;
(6) Such other information as the applicant may consider
relevant or as the board by rule or order may require. Copies of
the studies referred to in division (A)(2) of this section shall
be filed with the office of the chairperson, if ordered, and shall
be available for public inspection.
The application shall be filed not less than one year nor
more than five years prior to the planned date of commencement of
construction. Either The five-year period may be waived by the
board for good cause shown.
(B) Each application shall be accompanied by proof of service
of a copy of such application on the chief executive officer of
each municipal corporation and county, and the head of each public
agency charged with the duty of protecting the environment or of
planning land use, in the area in which any portion of such
facility is to be located.
(C) Each applicant within fifteen days after the date of the
filing of the application shall give public notice to persons
residing in the municipal corporations and counties entitled to
receive notice under division (B) of this section, by the
publication of a summary of the application in newspapers of
general circulation in such area. Proof of such publication shall
be filed with the office of the chairperson.
(D) Inadvertent failure of service on, or notice to, any of
the persons identified in divisions (B) and (C) of this section
may be cured pursuant to orders of the board designed to afford
them adequate notice to enable them to participate effectively in
the proceeding. In addition, the board, after filing, may require
the applicant to serve notice of the application or copies thereof
or both upon such other persons, and file proof thereof, as the
board considers appropriate.
(E) An application for an amendment of a certificate shall be
in such form and contain such information as the board prescribes.
Notice of such an application shall be given as required in
divisions (B) and (C) of this section.
(F) Each application for certificate or an amendment shall be
accompanied by the application fee prescribed by board rule. All
application fees, supplemental application fees, and other fees
collected by the board shall be deposited in the state treasury to
the credit of the power siting board fund, which is hereby
created. The chairperson shall administer and authorize
expenditures from the fund for any of the purposes of this
chapter. If the chairperson determines that moneys credited to the
fund from an applicant's fee are not sufficient to pay the board's
expenses associated with its review of the application, the
chairperson shall request the approval of the controlling board to
assess a supplemental application fee upon an applicant to pay
anticipated additional expenses associated with the board's review
of the application or an amendment to an application. If the
chairperson finds that an application fee exceeds the amount
needed to pay the board's expenses for review of the application,
the chairperson shall cause a refund of the excess amount to be
issued to the applicant from the fund.
Sec. 4906.07. (A) Upon the receipt of an application
complying with section 4906.06 of the Revised Code, the power
siting board shall promptly fix a date for a public hearing
thereon, not less than sixty nor more than ninety days after such
receipt, and shall conclude the proceeding as expeditiously as
practicable.
(B) On an application for an amendment of a certificate, the
board shall hold a hearing in the same manner as a hearing is held
on an application for a certificate if the proposed change in the
facility would result in any material increase in any
environmental impact of the facility or a substantial change in
the location of all or a portion of such facility other than as
provided in the alternates set forth in the application.
(C) The chairman chairperson of the power siting board shall
cause each application filed with the board to be investigated and
shall, not less than fifteen days prior to the date any
application is set for hearing submit a written report to the
board and to the applicant. A copy of such report shall be made
available to any person upon request. Such report shall set forth
the nature of the investigation, and shall contain recommended
findings with regard to division (A) of section 4906.10 of the
Revised Code and shall become part of the record and served upon
all parties to the proceeding.
Sec. 4906.10. (A) The power siting board shall render a
decision upon the record either granting or denying the
application as filed, or granting it upon such terms, conditions,
or modifications of the construction, operation, or maintenance of
the major utility facility as the board considers appropriate. The
certificate shall be conditioned upon the facility being in
compliance with standards and rules adopted under sections
1501.33, 1501.34, and 4561.32 and Chapters 3704., 3734., and 6111.
of the Revised Code. The period of initial operation under a
certificate shall expire two years after the date on which
electric power is first generated by the facility. During the
period of initial operation, the facility shall be subject to the
enforcement and monitoring powers of the director of environmental
protection under Chapters 3704., 3734., and 6111. of the Revised
Code and to the emergency provisions under those chapters. If a
major utility facility constructed in accordance with the terms
and conditions of its certificate is unable to operate in
compliance with all applicable requirements of state laws, rules,
and standards pertaining to air pollution, the facility may apply
to the director of environmental protection for a conditional
operating permit under division (G) of section 3704.03 of the
Revised Code and the rules adopted thereunder. The operation of a
major utility facility in compliance with a conditional operating
permit is not in violation of its certificate. After the
expiration of the period of initial operation of a major utility
facility, the facility shall be under the jurisdiction of the
environmental protection agency and shall comply with all laws,
rules, and standards pertaining to air pollution, water pollution,
and solid and hazardous waste disposal.
The board shall not grant a certificate for the construction,
operation, and maintenance of a major utility facility, either as
proposed or as modified by the board, unless it finds and
determines all of the following:
(1) The basis of the need for the facility if the facility is
an electric transmission line or gas or natural gas transmission
line pipeline;
(2) The nature of the probable environmental impact;
(3) That the facility represents the minimum adverse
environmental impact, considering the state of available
technology and the nature and economics of the various
alternatives, and other pertinent considerations;
(4) In the case of an electric transmission line or
generating facility, that the facility is consistent with regional
plans for expansion of the electric power grid of the electric
systems serving this state and interconnected utility systems and
that the facility will serve the interests of electric system
economy and reliability;
(5) That the facility will comply with Chapters 3704., 3734.,
and 6111. of the Revised Code and all rules and standards adopted
under those chapters and under sections 1501.33, 1501.34, and
4561.32 of the Revised Code. In determining whether the facility
will comply with all rules and standards adopted under section
4561.32 of the Revised Code, the board shall consult with the
office of aviation of the division of multi-modal planning and
programs of the department of transportation under section
4561.341 of the Revised Code.
(6) That the facility will serve the public interest,
convenience, and necessity;
(7) In addition to the provisions contained in divisions
(A)(1) to (6) of this section and rules adopted under those
divisions, what its impact will be on the viability as
agricultural land of any land in an existing agricultural district
established under Chapter 929. of the Revised Code that is located
within the site and alternative site of the proposed major utility
facility. Rules adopted to evaluate impact under division (A)(7)
of this section shall not require the compilation, creation,
submission, or production of any information, document, or other
data pertaining to land not located within the site and
alternative site.
(8) That the facility incorporates maximum feasible water
conservation practices as determined by the board, considering
available technology and the nature and economics of the various
alternatives.
(B) If the board determines that the location of all or a
part of the proposed facility should be modified, it may condition
its certificate upon that modification, provided that the
municipal corporations and counties, and persons residing therein,
affected by the modification shall have been given reasonable
notice thereof.
(C) A copy of the decision and any opinion issued therewith
shall be served upon each party.
Sec. 4906.20. (A) No person shall commence to construct an
economically significant wind farm in this state without first
having obtained a certificate from the power siting board. An
economically significant wind farm with respect to which such a
certificate is required shall be constructed, operated, and
maintained in conformity with that certificate and any terms,
conditions, and modifications it contains. A certificate shall be
issued only pursuant to this section. The certificate may be
transferred, subject to the approval of the board, to a person
that agrees to comply with those terms, conditions, and
modifications.
(B) The board shall adopt rules governing the certificating
of economically significant wind farms under this section. Initial
rules shall be adopted within one hundred twenty days after this
section's effective date June 24, 2008.
(1) The rules shall provide for an application process for
certificating economically significant wind farms that is
identical to the extent practicable to the process applicable to
certificating major utility facilities under sections 4906.06,
4906.07, 4906.08, 4906.09, 4906.10, 4906.11, and 4906.12 of the
Revised Code and shall prescribe a reasonable schedule of
application filing fees structured in the manner of the schedule
of filing fees required for major utility facilities.
(2) Additionally, the rules shall prescribe reasonable
regulations regarding any wind turbines and associated facilities
of an economically significant wind farm, including, but not
limited to, their location, erection, construction,
reconstruction, change, alteration, maintenance, removal, use, or
enlargement and including erosion control, aesthetics,
recreational land use, wildlife protection, interconnection with
power lines and with regional transmission organizations,
independent transmission system operators, or similar
organizations, ice throw, sound and noise levels, blade shear,
shadow flicker, decommissioning, and necessary cooperation for
site visits and enforcement investigations. The rules also shall
prescribe a minimum setback for a wind turbine of an economically
significant wind farm. That minimum shall be equal to a horizontal
distance, from the turbine's base to the property line of the wind
farm property, equal to one and one-tenth times the total height
of the turbine structure as measured from its base to the tip of
its highest blade and be at least seven hundred fifty feet in
horizontal distance from the tip of the turbine's nearest blade at
ninety degrees to the exterior of the nearest, habitable,
residential structure, if any, located on adjacent property at the
time of the certification application. The setback shall apply in
all cases except those in which all owners of property adjacent to
the wind farm property waive application of the setback to that
property pursuant to a procedure the board shall establish by rule
and except in which, in a particular case, the board determines
that a setback greater than the minimum is necessary.
(C) The board shall approve, or may modify and approve, an
application for economically significant wind farm certification
if it finds that the construction, operation, and maintenance of
the economically significant wind farm will comply with the rules
adopted under division (B) of this section. The certificate shall
be conditioned upon the economically significant wind farm
complying with rules adopted under section 4561.32 of the Revised
Code.
Sec. 4906.99. Whoever willfully violates any provision of
section 4906.98 of the Revised Code may be fined not less than one
thousand dollars nor more than ten one hundred thousand dollars
for each day of each violation, or imprisoned for not more than
one year, or both.
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;
(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.
"Advanced energy resource" does not include a waste energy
recovery system that is, or has been, included in an energy
efficiency program of an electric distribution utility pursuant to
requirements under section 4928.66 of the Revised Code.
(35) "Renewable energy resource" means solar photovoltaic or
solar thermal energy, wind energy, power produced by a
hydroelectric facility, geothermal energy, fuel derived from solid
wastes, as defined in section 3734.01 of the Revised Code, through
fractionation, biological decomposition, or other process that
does not principally involve combustion, biomass energy,
biologically derived methane gas, or energy derived from
nontreated by-products of the pulping process or wood
manufacturing process, including bark, wood chips, sawdust, and
lignin in spent pulping liquors. "Renewable energy resource"
includes, but is not limited to, any fuel cell used in the
generation of electricity, including, but not limited to, a proton
exchange membrane fuel cell, phosphoric acid fuel cell, molten
carbonate fuel cell, or solid oxide fuel cell; wind turbine
located in the state's territorial waters of Lake Erie; methane
gas emitted from an abandoned coal mine; waste energy recovery
system; 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. "Renewable energy resource" does
not include a waste energy recovery system that is, or has been,
included in an energy efficiency program of an electric
distribution utility pursuant to requirements under section
4928.66 of the Revised Code. As used in division (A)(35) of this
section, "hydroelectric facility" means a hydroelectric generating
facility that is located at a dam on a river, or on any water
discharged to a river, that is within or bordering this state or
within or bordering an adjoining state and meets all of the
following standards:
(a) The facility provides for river flows that are not
detrimental for fish, wildlife, and water quality, including
seasonal flow fluctuations as defined by the applicable licensing
agency for the facility.
(b) The facility demonstrates that it complies with the water
quality standards of this state, which compliance may consist of
certification under Section 401 of the "Clean Water Act of 1977,"
91 Stat. 1598, 1599, 33 U.S.C. 1341, and demonstrates that it has
not contributed to a finding by this state that the river has
impaired water quality under Section 303(d) of the "Clean Water
Act of 1977," 114 Stat. 870, 33 U.S.C. 1313.
(c) The facility complies with mandatory prescriptions
regarding fish passage as required by the federal energy
regulatory commission license issued for the project, regarding
fish protection for riverine, anadromous, and 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.
(36) "Waste energy recovery system" means a facility that
generates electricity through the conversion of energy from either
of the following:
(a) Exhaust heat from engines or manufacturing, industrial,
commercial, or institutional sites, except for exhaust heat from a
facility whose primary purpose is the generation of electricity;
(b) Reduction of pressure in gas pipelines before gas is
distributed through the pipeline, provided that the conversion of
energy to electricity is achieved without using additional fossil
fuels.
(37) "Smart grid" means capital improvements to an electric
distribution utility's distribution infrastructure, including, but
not limited to, advanced metering and automation of system
functions.
(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.
Sec. 4928.02. It is the policy of this state to do the
following throughout this state:
(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,
waste energy recovery systems, smart grid programs, and
implementation of advanced metering infrastructure;
(E) Encourage cost-effective and efficient access to
information regarding the operation of the transmission and
distribution systems of electric utilities in order to promote
both effective customer choice of retail electric service and the
development of performance standards and targets for service
quality for all consumers, including annual achievement reports
written in plain language;
(F) Ensure that an electric utility's transmission and
distribution systems are available to a customer-generator or
owner of distributed generation, so that the customer-generator or
owner can market and deliver the electricity it produces;
(G) Recognize the continuing emergence of competitive
electricity markets through the development and implementation of
flexible regulatory treatment;
(H) Ensure effective competition in the provision of retail
electric service by avoiding anticompetitive subsidies flowing
from a noncompetitive retail electric service to a competitive
retail electric service or to a product or service other than
retail electric service, and vice versa, including by prohibiting
the recovery of any generation-related costs through distribution
or transmission rates;
(I) Ensure retail electric service consumers protection
against unreasonable sales practices, market deficiencies, and
market power;
(J) Provide coherent, transparent means of giving appropriate
incentives to technologies that can adapt successfully to
potential environmental mandates;
(K) Encourage implementation of distributed generation across
customer classes through regular review and updating of
administrative rules governing critical issues such as, but not
limited to, interconnection standards, standby charges, and net
metering;
(L) Protect at-risk populations, including, but not limited
to, when considering the implementation of any new advanced energy
or renewable energy resource;
(M) Encourage the education of small business owners in this
state regarding the use of, and encourage the use of, energy
efficiency programs and alternative energy resources in their
businesses;
(N) Facilitate the state's effectiveness in the global
economy.
In carrying out this policy, the commission shall consider
rules as they apply to the costs of electric distribution
infrastructure, including, but not limited to, line extensions,
for the purpose of development in this state.
Sec. 4928.111. The public utilities commission shall consult
with electric distribution utilities to review the distribution
infrastructure in this state and shall consult with regional
transmission organizations and entities that own or control
transmission facilities to review the transmission infrastructure
in this state. The commission shall evaluate the distribution and
transmission infrastructure and shall order any necessary
upgrades, additions, or improvements to ensure adequate and
reliable service, enable new electric generation, and promote new
industry in this state.
Sec. 4928.143. (A) For the purpose of complying with section
4928.141 of the Revised Code, an electric distribution utility may
file an application for public utilities commission approval of an
electric security plan as prescribed under division (B) of this
section. The utility may file that application prior to the
effective date of any rules the commission may adopt for the
purpose of this section, and, as the commission determines
necessary, the utility immediately shall conform its filing to
those rules upon their taking effect.
(B) Notwithstanding any other provision of Title XLIX of the
Revised Code to the contrary except division (D) of this section,
divisions (I), (J), and (K) of section 4928.20, division (E) of
section 4928.64, and section 4928.69 of the Revised Code:
(1) An electric security plan shall include provisions
relating to the supply and pricing of electric generation service.
In addition, if the proposed electric security plan has a term
longer than three years, it may include provisions in the plan to
permit the commission to test the plan pursuant to division (E) of
this section and any transitional conditions that should be
adopted by the commission if the commission terminates the plan as
authorized under that division.
(2) The plan may provide for or include, without limitation,
any of the following:
(a) Automatic recovery of any of the following costs of the
electric distribution utility, provided the cost is prudently
incurred: the cost of fuel used to generate the electricity
supplied under the offer; the cost of purchased power supplied
under the offer, including the cost of energy and capacity, and
including purchased power acquired from an affiliate; the cost of
emission allowances; and the cost of federally mandated carbon or
energy taxes;
(b) A reasonable allowance for construction work in progress
for any of the electric distribution utility's cost of
constructing an electric generating facility or for an
environmental expenditure for any electric generating facility of
the electric distribution utility, provided the cost is incurred
or the expenditure occurs on or after January 1, 2009. Any such
allowance shall be subject to the construction work in progress
allowance limitations of division (A) of section 4909.15 of the
Revised Code, except that the commission may authorize such an
allowance upon the incurrence of the cost or occurrence of the
expenditure. No such allowance for generating facility
construction shall be authorized, however, unless the commission
first determines in the proceeding that there is need for the
facility based on resource planning projections the long-term
forecast report submitted by the electric distribution utility
pursuant to division (C) of section 4935.04 of the Revised Code
and any hearing record produced under that section. Further, no
such allowance shall be authorized unless the facility's
construction was sourced through a competitive bid process,
regarding which process the commission may adopt rules. An
allowance approved under division (B)(2)(b) of this section shall
be established as a nonbypassable surcharge for the life of the
facility.
(c) The establishment of a nonbypassable surcharge for the
life of an electric generating facility that is owned or operated
by the electric distribution utility, was sourced through a
competitive bid process subject to any such rules as the
commission adopts under division (B)(2)(b) of this section, and is
newly used and useful on or after January 1, 2009, which surcharge
shall cover all costs of the utility specified in the application,
excluding costs recovered through a surcharge under division
(B)(2)(b) of this section. However, no surcharge shall be
authorized unless the commission first determines in the
proceeding that there is need for the facility based on resource
planning projections the long-term forecast report submitted by
the electric distribution utility pursuant to division (C) of
section 4935.04 of the Revised Code and any hearing record
produced under that section. Additionally, if a surcharge is
authorized for a facility pursuant to plan approval under division
(C) of this section and as a condition of the continuation of the
surcharge, the electric distribution utility shall dedicate to
Ohio consumers the capacity and energy and the rate associated
with the cost of that facility. Before the commission authorizes
any surcharge pursuant to this division, it may consider, as
applicable, the effects of any decommissioning, deratings, and
retirements.
(d) Terms, conditions, or charges relating to limitations on
customer shopping for retail electric generation service,
bypassability, standby, back-up, or supplemental power service,
default service, carrying costs, amortization periods, and
accounting or deferrals, including future recovery of such
deferrals, as would have the effect of stabilizing or providing
certainty regarding retail electric service;
(e) Automatic increases or decreases in any component of the
standard service offer price;
(f) Consistent with sections 4928.23 to 4928.2318 of the
Revised Code, both of the following:
(i) Provisions for the electric distribution utility to
securitize any phase-in, inclusive of carrying charges, of the
utility's standard service offer price, which phase-in is
authorized in accordance with section 4928.144 of the Revised
Code;
(ii) Provisions for the recovery of the utility's cost of
securitization.
(g) Provisions relating to transmission, ancillary,
congestion, or any related service required for the standard
service offer, including provisions for the recovery of any cost
of such service that the electric distribution utility incurs on
or after that date pursuant to the standard service offer;
(h) Provisions regarding the utility's distribution service,
including, without limitation and notwithstanding any provision of
Title XLIX of the Revised Code to the contrary, provisions
regarding single issue ratemaking, a revenue decoupling mechanism
or any other incentive ratemaking, and provisions regarding
distribution infrastructure and modernization incentives for the
electric distribution utility. The latter may include a long-term
energy delivery infrastructure modernization plan for that utility
or any plan providing for the utility's recovery of costs,
including lost revenue, shared savings, and avoided costs, and a
just and reasonable rate of return on such infrastructure
modernization. As part of its determination as to whether to allow
in an electric distribution utility's electric security plan
inclusion of any provision described in division (B)(2)(h) of this
section, the commission shall examine the reliability of the
electric distribution utility's distribution system and ensure
that customers' and the electric distribution utility's
expectations are aligned and that the electric distribution
utility is placing sufficient emphasis on and dedicating
sufficient resources to the reliability of its distribution
system.
(i) Provisions under which the electric distribution utility
may implement economic development, job retention, and energy
efficiency programs, which provisions may allocate program costs
across all classes of customers of the utility and those of
electric distribution utilities in the same holding company
system.
(C)(1) The burden of proof in the proceeding shall be on the
electric distribution utility. The commission shall issue an order
under this division for an initial application under this section
not later than one hundred fifty days after the application's
filing date and, for any subsequent application by the utility
under this section, not later than two hundred seventy-five days
after the application's filing date. Subject to division (D) of
this section, the commission by order shall approve or modify and
approve an application filed under division (A) of this section if
it finds that the electric security plan so approved, including
its pricing and all other terms and conditions, including any
deferrals and any future recovery of deferrals, is more favorable
in the aggregate as compared to the expected results that would
otherwise apply under section 4928.142 of the Revised Code.
Additionally, if the commission so approves an application that
contains a surcharge under division (B)(2)(b) or (c) of this
section, the commission shall ensure that the benefits derived for
any purpose for which the surcharge is established are reserved
and made available to those that bear the surcharge. Otherwise,
the commission by order shall disapprove the application.
(2)(a) If the commission modifies and approves an application
under division (C)(1) of this section, the electric distribution
utility may withdraw the application, thereby terminating it, and
may file a new standard service offer under this section or a
standard service offer under section 4928.142 of the Revised Code.
(b) If the utility terminates an application pursuant to
division (C)(2)(a) of this section or if the commission
disapproves an application under division (C)(1) of this section,
the commission shall issue such order as is necessary to continue
the provisions, terms, and conditions of the utility's most recent
standard service offer, along with any expected increases or
decreases in fuel costs from those contained in that offer, until
a subsequent offer is authorized pursuant to this section or
section 4928.142 of the Revised Code, respectively.
(D) Regarding the rate plan requirement of division (A) of
section 4928.141 of the Revised Code, if an electric distribution
utility that has a rate plan that extends beyond December 31,
2008, files an application under this section for the purpose of
its compliance with division (A) of section 4928.141 of the
Revised Code, that rate plan and its terms and conditions are
hereby incorporated into its proposed electric security plan and
shall continue in effect until the date scheduled under the rate
plan for its expiration, and that portion of the electric security
plan shall not be subject to commission approval or disapproval
under division (C) of this section, and the earnings test provided
for in division (F) of this section shall not apply until after
the expiration of the rate plan. However, that utility may include
in its electric security plan under this section, and the
commission may approve, modify and approve, or disapprove subject
to division (C) of this section, provisions for the incremental
recovery or the deferral of any costs that are not being recovered
under the rate plan and that the utility incurs during that
continuation period to comply with section 4928.141, division (B)
of section 4928.64, or division (A) of section 4928.66 of the
Revised Code.
(E) If an electric security plan approved under division (C)
of this section, except one withdrawn by the utility as authorized
under that division, has a term, exclusive of phase-ins or
deferrals, that exceeds three years from the effective date of the
plan, the commission shall test the plan in the fourth year, and
if applicable, every fourth year thereafter, to determine whether
the plan, including its then-existing pricing and all other terms
and conditions, including any deferrals and any future recovery of
deferrals, continues to be more favorable in the aggregate and
during the remaining term of the plan as compared to the expected
results that would otherwise apply under section 4928.142 of the
Revised Code. The commission shall also determine the prospective
effect of the electric security plan to determine if that effect
is substantially likely to provide the electric distribution
utility with a return on common equity that is significantly in
excess of the return on common equity that is likely to be earned
by publicly traded companies, including utilities, that face
comparable business and financial risk, with such adjustments for
capital structure as may be appropriate. The burden of proof for
demonstrating that significantly excessive earnings will not occur
shall be on the electric distribution utility. If the test results
are in the negative or the commission finds that continuation of
the electric security plan will result in a return on equity that
is significantly in excess of the return on common equity that is
likely to be earned by publicly traded companies, including
utilities, that will face comparable business and financial risk,
with such adjustments for capital structure as may be appropriate,
during the balance of the plan, the commission may terminate the
electric security plan, but not until it shall have provided
interested parties with notice and an opportunity to be heard. The
commission may impose such conditions on the plan's termination as
it considers reasonable and necessary to accommodate the
transition from an approved plan to the more advantageous
alternative. In the event of an electric security plan's
termination pursuant to this division, the commission shall permit
the continued deferral and phase-in of any amounts that occurred
prior to that termination and the recovery of those amounts as
contemplated under that electric security plan.
(F) With regard to the provisions that are included in an
electric security plan under this section, the commission shall
consider, following the end of each annual period of the plan, if
any such adjustments resulted in excessive earnings as measured by
whether the earned return on common equity of the electric
distribution utility is significantly in excess of the return on
common equity that was earned during the same period by publicly
traded companies, including utilities, that face comparable
business and financial risk, with such adjustments for capital
structure as may be appropriate. Consideration also shall be given
to the capital requirements of future committed investments in
this state. The burden of proof for demonstrating that
significantly excessive earnings did not occur shall be on the
electric distribution utility. If the commission finds that such
adjustments, in the aggregate, did result in significantly
excessive earnings, it shall require the electric distribution
utility to return to consumers the amount of the excess by
prospective adjustments; provided that, upon making such
prospective adjustments, the electric distribution utility shall
have the right to terminate the plan and immediately file an
application pursuant to section 4928.142 of the Revised Code. Upon
termination of a plan under this division, rates shall be set on
the same basis as specified in division (C)(2)(b) of this section,
and the commission shall permit the continued deferral and
phase-in of any amounts that occurred prior to that termination
and the recovery of those amounts as contemplated under that
electric security plan. In making its determination of
significantly excessive earnings under this division, the
commission shall not consider, directly or indirectly, the
revenue, expenses, or earnings of any affiliate or parent company.
Sec. 4928.61. (A) There is hereby established in the state
treasury the advanced energy fund, into which shall be deposited
all advanced energy revenues remitted to the director of
development under division (B) of this section, for the exclusive
purposes of funding the advanced energy program created under
section 4928.62 of the Revised Code and paying the program's
administrative costs. Interest on the fund shall be credited to
the fund.
(B) Advanced energy revenues shall include all of the
following:
(1) Revenues remitted to the director after collection by
each electric distribution utility in this state of a temporary
rider on retail electric distribution service rates as such rates
are determined by the public utilities commission pursuant to this
chapter. The rider shall be a uniform amount statewide, determined
by the director of development, after consultation with the public
benefits advisory board created by section 4928.58 of the Revised
Code. The amount shall be determined by dividing an aggregate
revenue target for a given year as determined by the director,
after consultation with the advisory board, by the number of
customers of electric distribution utilities in this state in the
prior year. Such aggregate revenue target shall not exceed more
than fifteen million dollars in any year through 2005 and shall
not exceed more than five million dollars in any year after 2005.
The rider shall be imposed beginning on the effective date of the
amendment of this section by Sub. H.B. 251 of the 126th general
assembly, January 4, 2007, and shall terminate at the end of ten
years following the starting date of competitive retail electric
service or until the advanced energy fund, including interest,
reaches one hundred million dollars, whichever is first.
(2) Revenues from payments, repayments, and collections under
the advanced energy program and from program income;
(3) Revenues remitted to the director after collection by a
municipal electric utility or electric cooperative in this state
upon the utility's or cooperative's decision to participate in the
advanced energy fund;
(4) Revenues from renewable energy compliance payments as
provided under division (C)(2) of section 4928.64 of the Revised
Code;
(5) Revenue from forfeitures under division (C) of section
4928.66 of the Revised Code;
(6) Funds transferred pursuant to division (B) of Section
512.10 of S.B. ... of the 129th general assembly;
(7) Interest earnings on the advanced energy fund.
(C)(1) Each electric distribution utility in this state shall
remit to the director on a quarterly basis the revenues described
in divisions (B)(1) and (2) of this section. Such remittances
shall occur within thirty days after the end of each calendar
quarter.
(2) Each participating electric cooperative and participating
municipal electric utility shall remit to the director on a
quarterly basis the revenues described in division (B)(3) of this
section. Such remittances shall occur within thirty days after the
end of each calendar quarter. For the purpose of division (B)(3)
of this section, the participation of an electric cooperative or
municipal electric utility in the energy efficiency revolving loan
program as it existed immediately prior to the effective date of
the amendment of this section by Sub. H.B. 251 of the 126th
general assembly, January 4, 2007, does not constitute a decision
to participate in the advanced energy fund under this section as
so amended.
(3) All remittances under divisions (C)(1) and (2) of this
section shall continue only until the end of ten years following
the starting date of competitive retail electric service or until
the advanced energy fund, including interest, reaches one hundred
million dollars, whichever is first.
(D) Any moneys collected in rates for non-low-income customer
energy efficiency programs, as of October 5, 1999, and not
contributed to the energy efficiency revolving loan fund
authorized under this section prior to the effective date of its
amendment by Sub. H.B. 251 of the 126th general assembly, January
4, 2007, shall be used to continue to fund cost-effective,
residential energy efficiency programs, be contributed into the
universal service fund as a supplement to that required under
section 4928.53 of the Revised Code, or be returned to ratepayers
in the form of a rate reduction at the option of the affected
electric distribution utility.
Sec. 4928.62. (A) There is hereby created the advanced
energy program, which shall be administered by the director of
development. Under the program, the director may authorize the use
of moneys in the advanced energy fund for financial, technical,
and related assistance for advanced energy projects in this state
or for economic development assistance, in furtherance of the
purposes set forth in section 4928.63 of the Revised Code. To
(1) To the extent feasible given approved applications for
assistance, the assistance shall be distributed among the
certified territories of electric distribution utilities and
participating electric cooperatives, and among the service areas
of participating municipal electric utilities, in amounts
proportionate to the remittances of each utility and cooperative
under divisions (B)(1) and (3) of section 4928.61 of the Revised
Code.
(2) The funds described in division (B)(6) of section 4928.61
of the Revised Code shall not be subject to the territorial
requirements of division (A)(1) of this section.
(3) The director shall not authorize financial assistance for
an advanced energy project under the program unless the director
first determines that the project will create new jobs or preserve
existing jobs in this state or use innovative technologies or
materials.
(B) In carrying out sections 4928.61 to 4928.63 of the
Revised Code, the director may do all of the following to further
the public interest in advanced energy projects and economic
development:
(1) Award grants, contracts, loans, loan participation
agreements, linked deposits, and energy production incentives;
(2) Acquire in the name of the director any property of any
kind or character in accordance with this section, by purchase,
purchase at foreclosure, or exchange, on such terms and in such
manner as the director considers proper;
(3) Make and enter into all contracts and agreements
necessary or incidental to the performance of the director's
duties and the exercise of the director's powers under sections
4928.61 to 4928.63 of the Revised Code;
(4) Employ or enter into contracts with financial
consultants, marketing consultants, consulting engineers,
architects, managers, construction experts, attorneys, technical
monitors, energy evaluators, or other employees or agents as the
director considers necessary, and fix their compensation;
(5) Adopt rules prescribing the application procedures for
financial assistance under the advanced energy program; the fees,
charges, interest rates, payment schedules, local match
requirements, and other terms and conditions of any grants,
contracts, loans, loan participation agreements, linked deposits,
and energy production incentives; criteria pertaining to the
eligibility of participating lending institutions; and any other
matters necessary for the implementation of the program;
(6) Do all things necessary and appropriate for the operation
of the program.
(C) The department of development may hold ownership to any
unclaimed energy efficiency and renewable energy emission
allowances provided for in Chapter 3745-14 of the Administrative
Code or otherwise, that result from advanced energy projects that
receive funding from the advanced energy fund, and it may use the
allowances to further the public interest in advanced energy
projects or for economic development.
(D) Financial statements, financial data, and trade secrets
submitted to or received by the director from an applicant or
recipient of financial assistance under sections 4928.61 to
4928.63 of the Revised Code, or any information taken from those
statements, data, or trade secrets for any purpose, are not public
records for the purpose of section 149.43 of the Revised Code.
(E) Nothing in the amendments of sections 4928.61, 4928.62,
and 4928.63 of the Revised Code by Sub. H.B. 251 of the 126th
general assembly shall affect any pending or effected assistance,
pending or effected purchases or exchanges of property made, or
pending or effected contracts or agreements entered into pursuant
to division (A) or (B) of this section as the section existed
prior to the effective date of those amendments, January 4, 2007,
or shall affect the exemption provided under division (C) of this
section as the section existed prior to that effective date.
(F) Any assistance a school district receives for an advanced
energy project, including a geothermal heating, ventilating, and
air conditioning system, shall be in addition to any assistance
provided under Chapter 3318. of the Revised Code and shall not be
included as part of the district or state portion of the basic
project cost under that chapter.
Sec. 4928.66. (A)(1)(a) Beginning in 2009, an electric
distribution utility shall implement energy efficiency programs,
which may include a waste energy recovery system placed into
service or retrofitted on or after January 1, 2006, that achieve
energy savings equivalent to at least three-tenths of one per cent
of the total, annual average, and normalized kilowatt-hour sales
hours distributed to retail customers of the electric distribution
utility during the preceding three calendar years to customers in
this state. For a waste energy recovery system, the savings shall
be as estimated by the public utilities commission. The savings
requirement, using such a three-year average, shall increase to an
additional five-tenths of one per cent in 2010, seven-tenths of
one per cent in 2011, eight-tenths of one per cent in 2012,
nine-tenths of one per cent in 2013, one per cent from 2014 to
2018, and two per cent each year thereafter, achieving a
cumulative, annual energy savings in excess of twenty-two per cent
by the end of 2025.
(b) Beginning in 2009, an electric distribution utility shall
implement peak demand reduction programs designed to achieve a one
per cent reduction in peak demand in 2009 and an additional
seventy-five hundredths of one per cent reduction each year
through 2018. In 2018, the standing committees in the house of
representatives and the senate primarily dealing with energy
issues shall make recommendations to the general assembly
regarding future peak demand reduction targets.
(2) For the purposes of divisions (A)(1)(a) and (b) of this
section:
(a) The baseline for energy savings under division (A)(1)(a)
of this section shall be the average of the total kilowatt hours
the electric distribution utility sold in the preceding three
calendar years, and the baseline for a peak demand reduction under
division (A)(1)(b) of this section shall be the average peak
demand on the utility in the preceding three calendar years,
except that the commission may reduce either baseline to adjust
for new economic growth in the utility's certified territory.
(b) The commission may amend the benchmarks set forth in
division (A)(1)(a) or (b) of this section if, after application by
the electric distribution utility, the commission determines that
the amendment is necessary because the utility cannot reasonably
achieve the benchmarks due to regulatory, economic, or
technological reasons beyond its reasonable control.
(c) Compliance with divisions (A)(1)(a) and (b) of this
section shall be measured by including the effects of all
demand-response programs for mercantile customers of the subject
electric distribution utility, all waste energy recovery systems,
and all such mercantile customer-sited energy efficiency,
including waste energy recovery, and peak demand reduction
programs, adjusted upward by the appropriate loss factors. Any
mechanism designed to recover the cost of energy efficiency,
including waste energy recovery, and peak demand reduction
programs under divisions (A)(1)(a) and (b) of this section may
exempt mercantile customers that commit their demand-response or
other customer-sited capabilities, whether existing or new, for
integration into the electric distribution utility's
demand-response, energy efficiency, including waste energy
recovery, or peak demand reduction programs, if the commission
determines that that exemption reasonably encourages such
customers to commit those capabilities to those programs. If a
mercantile customer makes such existing or new demand-response,
energy efficiency, including waste energy recovery, or peak demand
reduction capability available to an electric distribution utility
pursuant to division (A)(2)(c) of this section, the electric
utility's baseline under division (A)(2)(a) of this section shall
be adjusted to exclude the effects of all such demand-response,
energy efficiency, including waste energy recovery, or peak demand
reduction programs that may have existed during the period used to
establish the baseline. The baseline also shall be normalized for
changes in numbers of customers, sales, weather, peak demand, and
other appropriate factors so that the compliance measurement is
not unduly influenced by factors outside the control of the
electric distribution utility.
(d) Programs implemented by a utility may include
demand-response programs, smart grid investment programs, provided
that such programs are demonstrated to be cost-beneficial,
customer-sited programs, including waste energy recovery systems,
and transmission and distribution infrastructure improvements that
reduce line losses. Division (A)(2)(c) of this section shall be
applied to include facilitating efforts by a mercantile customer
or group of those customers to offer customer-sited
demand-response, energy efficiency, including waste energy
recovery, or peak demand reduction capabilities to the electric
distribution utility as part of a reasonable arrangement submitted
to the commission pursuant to section 4905.31 of the Revised Code.
(e) No programs or improvements described in division
(A)(2)(d) of this section shall conflict with any statewide
building code adopted by the board of building standards.
(B) In accordance with rules it shall adopt, the public
utilities commission shall produce and docket at the commission an
annual report containing the results of its verification of the
annual levels of energy efficiency and of peak demand reductions
achieved by each electric distribution utility pursuant to
division (A) of this section. A copy of the report shall be
provided to the consumers' counsel.
(C) If the commission determines, after notice and
opportunity for hearing and based upon its report under division
(B) of this section, that an electric distribution utility has
failed to comply with an energy efficiency or peak demand
reduction requirement of division (A) of this section, the
commission shall assess a forfeiture on the utility as provided
under sections 4905.55 to 4905.60 and 4905.64 of the Revised Code,
either in the amount, per day per undercompliance or
noncompliance, relative to the period of the report, equal to that
prescribed for noncompliances under section 4905.54 of the Revised
Code, or in an amount equal to the then existing market value of
one renewable energy credit per megawatt hour of undercompliance
or noncompliance. Revenue from any forfeiture assessed under this
division shall be deposited to the credit of the advanced energy
fund created under section 4928.61 of the Revised Code.
(D) The commission may establish rules regarding the content
of an application by an electric distribution utility for
commission approval of a revenue decoupling mechanism under this
division. Such an application shall not be considered an
application to increase rates and may be included as part of a
proposal to establish, continue, or expand energy efficiency or
conservation programs. The commission by order may approve an
application under this division if it determines both that the
revenue decoupling mechanism provides for the recovery of revenue
that otherwise may be foregone forgone by the utility as a result
of or in connection with the implementation by the electric
distribution utility of any energy efficiency or energy
conservation programs and reasonably aligns the interests of the
utility and of its customers in favor of those programs.
(E) The commission additionally shall adopt rules that
require an electric distribution utility to provide a customer
upon request with two years' consumption data in an accessible
form.
Sec. 4928.70. (A) The public utilities commission may
periodically review any green pricing program offered in this
state as part of retail electric service. At the conclusion of a
review, the commission may make recommendations to improve or
expand the program subject of the review.
(B) The commission shall adopt rules necessary to carry out
purposes of this section.
Sec. 4928.71. The public utilities commission shall study
whether increased energy efficiency, demand response, generation,
and transmission provide increased opportunities for customer
choice. The commission shall include in the study an evaluation of
emerging technologies. The commission shall commence the study not
later than eighteen months after the effective date of this
section. At the conclusion of the study, the commission shall
prepare a report of its findings and make the report available on
its web site.
Sec. 4928.72. The public utilities commission may, in
cooperation with the department of transportation, work with other
states to develop a multi-state study on the development of
compressed natural gas infrastructures for transportation.
Sec. 4935.04. (A) As used in this chapter:
(1) "Major utility facility" means:
(a) An electric transmission line and associated facilities
of a design capacity of one hundred twenty-five kilovolts or more;
(b) A gas or natural gas transmission line and associated
facilities designed for, or capable of, transporting gas or
natural gas at pressures in excess of one hundred twenty-five
pounds per square inch.
"Major utility facility" does not include electric, gas, or
natural gas distributing lines and gas or natural gas gathering
lines and associated facilities as defined by the public utilities
commission; facilities owned or operated by industrial firms,
persons, or institutions that produce or transmit gas or natural
gas, or electricity primarily for their own use or as a byproduct
of their operations; gas or natural gas transmission lines and
associated facilities over which an agency of the United States
has certificate jurisdiction; facilities owned or operated by a
person furnishing gas or natural gas directly to fifteen thousand
or fewer customers within this state.
(2) "Person" has the meaning set forth in section 4906.01 of
the Revised Code.
(B) Each person owning or operating a gas or natural gas
transmission line and associated facilities within this state over
which an agency of the United States has certificate jurisdiction
shall furnish to the commission a copy of the energy information
filed by the person with that agency of the United States.
(C) Each person owning or operating a major utility facility
within this state, or furnishing gas, natural gas, or electricity
directly to more than fifteen thousand customers within this state
shall furnish a report to the commission for its review. The
report shall be furnished annually, except that for a gas or
natural gas company the report shall be furnished every three
years. The report shall be termed the long-term forecast report
and shall contain:
(1) A year-by-year, ten-year forecast of annual energy
demand, peak load, reserves, and a general description of the
resource plan planning projections to meet demand;
(2) A range of projected loads during the period;
(3) A description of major utility facilities planned to be
added or taken out of service in the next ten years, including, to
the extent the information is available, prospective sites for
transmission line locations;
(4) For gas and natural gas, a projection of anticipated
supply, supply prices, and sources of supply over the forecast
period;
(5) A description of proposed changes in the transmission
system planned for the next five years;
(6) A month-by-month forecast of both energy demand and peak
load for electric utilities, and gas sendout for gas and natural
gas utilities, for the next two years. The report shall describe
the major utility facilities that, in the judgment of such person,
will be required to supply system demands during the forecast
period. The report from a gas or natural gas utility shall cover
the ten- and five-year periods next succeeding the date of the
report, and the report from an electric utility shall cover the
twenty-, ten-, and five-year periods next succeeding the date of
the report. Each report shall be made available to the public and
furnished upon request to municipal corporations and governmental
agencies charged with the duty of protecting the environment or of
planning land use. The report shall be in such form and shall
contain such information as may be prescribed by the commission.
Each person not owning or operating a major utility facility
within this state and serving fifteen thousand or fewer gas or
natural gas, or electric customers within this state shall furnish
such information as the commission requires.
(D) The commission shall:
(1) Review and comment on the reports filed under division
(C) of this section, and make the information contained in the
reports readily available to the public and other interested
government agencies;
(2) Compile and publish each year the general locations of
proposed and existing transmission line routes within its
jurisdiction as identified in the reports filed under division (C)
of this section, identifying the general location of such sites
and routes and the approximate year when construction is expected
to commence, and to make such information readily available to the
public, to each newspaper of daily or weekly circulation within
the area affected by the proposed site and route, and to
interested federal, state, and local agencies;
(3) Hold a public hearing upon the showing of good cause to
the commission by an interested party.
If a hearing is held, the commission shall fix a time for the
hearing, which shall be not later than ninety days after the
report is filed, and publish notice of the date, time of day, and
location of the hearing in a newspaper of general circulation in
each county in which the person furnishing the report has or
intends to locate a major utility facility and will provide
service during the period covered by the report. The notice shall
be published not less than fifteen nor more than thirty days
before the hearing and shall state the matters to be considered.
(4) Require such information from persons subject to its
jurisdiction as necessary to assist in the conduct of hearings and
any investigation or studies it may undertake;
(5) Conduct any studies or investigations that are necessary
or appropriate to carry out its responsibilities under this
section.
(E)(1) The scope of the hearing held under division (D)(3) of
this section shall be limited to issues relating to forecasting.
The power siting board, the office of consumers' counsel, and all
other persons having an interest in the proceedings shall be
afforded the opportunity to be heard and to be represented by
counsel. The commission may adjourn the hearing from time to time.
(2) The hearing shall include, but not be limited to, a
review of:
(a) The projected loads and energy requirements for each year
of the period;
(b) The estimated installed capacity and supplies to meet the
projected load requirements.
(F) Based upon the report furnished pursuant to division (C)
of this section and the hearing record, the commission, within
ninety days from the close of the record in the hearing, shall
determine if:
(1) All information relating to current activities,
facilities agreements, and published energy policies of the state
has been completely and accurately represented;
(2) The load requirements are based on substantially accurate
historical information and adequate methodology;
(3) The forecasting methods consider the relationships
between price and energy consumption;
(4) The report identifies and projects reductions in energy
demands due to energy conservation measures in the industrial,
commercial, residential, transportation, and energy production
sectors in the service area;
(5) Utility company forecasts of loads and resources are
reasonable in relation to population growth estimates made by
state and federal agencies, transportation, and economic
development plans and forecasts, and make recommendations where
possible for necessary and reasonable alternatives to meet
forecasted electric power demand;
(6) The report considers plans for expansion of the regional
power grid and the planned facilities of other utilities in the
state;
(7) All assumptions made in the forecast are reasonable and
adequately documented.
(G) The commission shall adopt rules under section 111.15 of
the Revised Code to establish criteria for evaluating the
long-term forecasts of needs for gas and electric transmission
service, to conduct hearings held under this section, to establish
reasonable fees to defray the direct cost of the hearings and the
review process, and such other rules as are necessary and
convenient to implement this section.
(H) The hearing record produced under this section and the
determinations of the commission shall be introduced into evidence
and shall be considered in determining the basis of need for power
siting board deliberations under division (A)(1) of section
4906.10 of the Revised Code. The hearing record produced under
this section shall be introduced into evidence and shall be
considered by the public utilities commission in its initiation of
programs, examinations, and findings under section 4905.70 of the
Revised Code, and shall be considered in the commission's
determinations with respect to the establishment of just and
reasonable rates under section 4909.15 of the Revised Code and
financing utility facilities and authorizing issuance of all
securities under sections 4905.40, 4905.401, 4905.41, and 4905.42
of the Revised Code. The forecast findings also shall serve as the
basis for all other energy planning and development activities of
the state government where electric and gas data are required.
(I)(1) No court other than the supreme court shall have power
to review, suspend, or delay any determination made by the
commission under this section, or enjoin, restrain, or interfere
with the commission in the performance of official duties. A writ
of mandamus shall not be issued against the commission by any
court other than the supreme court.
(2) A final determination made by the commission shall be
reversed, vacated, or modified by the supreme court on appeal, if,
upon consideration of the record, such court is of the opinion
that such determination was unreasonable or unlawful.
The proceeding to obtain such reversal, vacation, or
modification shall be by notice of appeal, filed with the
commission by any party to the proceeding before it, against the
commission, setting forth the determination appealed from and
errors complained of. The notice of appeal shall be served, unless
waived, upon the commission by leaving a copy at the office of the
chairperson of the commission at Columbus. The court may permit an
interested party to intervene by cross-appeal.
(3) No proceeding to reverse, vacate, or modify a
determination of the commission is commenced unless the notice of
appeal is filed within sixty days after the date of the
determination.
Sec. 6111.30. (A) Applications for a section 401 water
quality certification required under division (P) of section
6111.03 of the Revised Code shall be submitted on forms provided
by the director of environmental protection and shall include all
information required on those forms as well as all of the
following:
(1) A copy of a letter from the United States army corps of
engineers documenting its jurisdiction over the wetlands, streams,
or other waters of the state that are the subject of the section
401 water quality certification application;
(2) If the project involves impacts to a wetland, a wetland
characterization analysis consistent with the Ohio rapid
assessment method;
(3) If the project involves a stream for which a specific
aquatic life use designation has not been made, a use
attainability analysis;
(4) A specific and detailed mitigation proposal, including
the location and proposed legal mechanism for protecting the
property in perpetuity;
(7) Adequate documentation confirming that the applicant has
requested comments from the department of natural resources and
the United States fish and wildlife service regarding threatened
and endangered species, including the presence or absence of
critical habitat;
(8) Descriptions, schematics, and appropriate economic
information concerning the applicant's preferred alternative,
nondegradation alternatives, and minimum degradation alternatives
for the design and operation of the project;
(9) The applicant's investigation report of the waters of the
United States in support of a section 404 permit application
concerning the project;
(10) A copy of the United States army corps of engineers'
public notice regarding the section 404 permit application
concerning the project.
(B) Not later than fifteen business days after the receipt of
an application for a section 401 water quality certification, the
director shall review the application to determine if it is
complete and shall notify the applicant in writing as to whether
the application is complete. If the director fails to notify the
applicant within fifteen business days regarding the completeness
of the application, the application is considered complete. If the
director determines that the application is not complete, the
director shall include with the written notification an itemized
list of the information or materials that are necessary to
complete the application. If the applicant fails to provide the
information or materials within sixty days after the director's
receipt of the application, the director may return the incomplete
application to the applicant and take no further action on the
application. If the application is returned to the applicant
because it is incomplete, the director shall return the review fee
levied under division (A)(1), (2), or (3) of section 3745.114 of
the Revised Code to the applicant, but shall retain the
application fee levied under that section.
(C) Not later than twenty-one days after a determination that
an application is complete under division (B) of this section, the
applicant shall publish public notice of the director's receipt of
the complete application in a newspaper of general circulation in
the county in which the project that is the subject of the
application is located. The public notice shall be in a form
acceptable to the director. The applicant shall promptly provide
the director with proof of publication. The applicant may choose,
subject to review by and approval of the director, to include in
the public notice an advertisement for an antidegradation public
hearing on the application pursuant to section 6111.12 of the
Revised Code. There shall be a public comment period of thirty
days following the publication of the public notice.
(D) If the director determines that there is significant
public interest in a public hearing as evidenced by the public
comments received concerning the application and by other requests
for a public hearing on the application, the director or the
director's representative shall conduct a public hearing
concerning the application. Notice of the public hearing shall be
published by the applicant, subject to review and approval by the
director, at least thirty days prior to the date of the hearing in
a newspaper of general circulation in the county in which the
project that is the subject of the application is to take place.
If a public hearing is requested concerning an application, the
director shall accept comments concerning the application until
five business days after the public hearing. A public hearing
conducted under this division shall take place not later than one
hundred days after the application is determined to be complete.
(E) The director shall forward all public comments concerning
an application submitted under this section that are received
through the public involvement process required by rules adopted
under this chapter to the applicant not later than five business
days after receipt of the comments by the director.
(F) The applicant shall respond in writing to written
comments or to deficiencies identified by the director during the
course of reviewing the application not later than fifteen days
after receiving or being notified of them.
(G) The director shall issue or deny a section 401 water
quality certification not later than one hundred eighty days after
the complete application for the certification is received. The
director shall provide an applicant for a section 401 water
quality certification with an opportunity to review the
certification prior to its issuance.
(H) The director shall maintain an accessible database that
includes environmentally beneficial water restoration and
protection projects that may serve as potential mitigation
projects for projects in the state for which a section 401 water
quality certification is required. A project's inclusion in the
database does not constitute an approval of the project.
(I) As used in this section and sections section 6111.31 and
6111.32 of the Revised Code, "section 401 water quality
certification" means certification pursuant to section 401 of the
Federal Water Pollution Control Act and this chapter and rules
adopted under it that any discharge, as set forth in section 401,
will comply with sections 301, 302, 303, 306, and 307 of the
Federal Water Pollution Control Act.
Sec. 6111.32. (A) The director of environmental protection,
on behalf of the state, may apply for approval from the United
States environmental protection agency, in accordance with 33
U.S.C 1344(g)(1), for the state to assume responsibility for
administering the section 404 permitting program for the discharge
of dredged or fill material into navigable waters established
under the Federal Water Pollution Control Act.
(B) Upon approval by the United States environmental
protection agency of the state's application to assume
responsibility for administering the section 404 permitting
program, the director shall administer the program consistent with
and in the manner required by the Federal Water Pollution Control
Act.
(C) The director may adopt rules in accordance with Chapter
119. of the Revised Code that are necessary to obtain approval to
administer the section 404 permitting program and to administer
the program upon receiving approval to do so. The rules shall
govern or establish all of the following, without limitation:
(1) The issuance of permits. The rules adopted under division
(C)(1) of this section shall do all of the following:
(a) Require compliance with any applicable requirements of 33
U.S.C. 1317 and 33 U.S.C. 1344, including, but not limited to, the
guidelines established under 33 U.S.C. 1344(b)(1);
(b) Require a permit to be issued for a fixed term not to
exceed five years;
(c) Specify that a permit may be terminated or modified for
cause, including, but not limited to, all the following:
(i) A violation of any condition of the permit;
(ii) Obtaining a permit by misrepresentation or failure to
disclose fully all relevant facts related to the permit;
(iii) A change in any condition that requires either a
temporary or permanent reduction or elimination of the permitted
discharge.
(2) Requirements that ensure compliance with 33 U.S.C. 1318,
including requirements for the inspection of, monitoring of, and
right to enter property that is the subject of a section 404
permit and requirements governing the content and submission of
reports;
(3) The provision of notice regarding the receipt of an
application for a section 404 permit to the public, any other
state with waters that may be affected by the issuance of the
permit, and the administrator of the United States environmental
protection agency;
(4) The opportunity for a public hearing regarding an
application for a section 404 permit to be conducted before
issuance or denial of the permit;
(5) Requirements that authorize any other state with waters
that may be affected by the issuance of a section 404 permit by
the director to submit written recommendations to the director and
the administrator of the United States environmental protection
agency with respect to the permit application. The rules shall
require the director to notify a state that has submitted
recommendations if any or all of the recommendations are not
accepted by the director and the reasons that the recommendations
are not accepted. The rules shall require the notice to be in
writing and a copy of the notice to be provided to the
administrator.
(6) Requirements that the director ensure that a section 404
permit will not be issued if anchorage and navigation of any
navigable waters would be substantially impaired. The rules shall
require the director to do so based on the judgment of the
secretary of the United States army after consultation with the
secretary of the department of the federal government under which
the United States coast guard is operating at the time that the
application for the permit is submitted.
(7) Enforcement with regard to a violation of the terms of a
permit or a violation of the permit program administered under
this section. The rules adopted under division (C)(7) of this
section shall establish requirements governing abatements of
violations, civil and criminal penalties, and other means of
enforcement.
(8) Coordination with federal and state water-related
planning and review processes.
(D) This section is intended solely to authorize the
environmental protection agency to assume the role of the United
States army corps of engineers in the regulation of the navigable
waters of this state. Nothing in this section shall be construed
as a preemption, modification, or amendment of Title 33 of the
United States Code. This section shall not be enforced as an
expansion of the laws, regulations, rules, or regulatory authority
of the federal government. Any rule, policy, or permit adopted or
issued by the director under this section shall not conflict with
existing federal law and shall not exceed the limitations placed
by the United States congress on the United States army corps of
engineers.
Section 101.02. That existing sections 122.075, 123.011,
125.836, 133.06, 156.01, 156.02, 156.03, 156.04, 303.213, 1505.09,
1509.01, 1509.02, 1509.03, 1509.06, 1509.07, 1509.10, 1509.11,
1509.22, 1509.221, 1509.222, 1509.223, 1509.23, 1509.31, 1509.50,
1514.01, 1514.02, 1514.021, 1514.03, 1514.05, 3706.27, 4905.90,
4905.91, 4905.95, 4906.01, 4906.03, 4906.05, 4906.06, 4906.07,
4906.10, 4906.20, 4906.99, 4928.01, 4928.02, 4928.143, 4928.61,
4928.62, 4928.66, 4935.04, and 6111.30 of the Revised Code are
hereby repealed.
Section 512.10. As soon as possible after the effective date
of this section, the Director of Budget and Management shall do
both of the following:
(A) Transfer any unexpended and unencumbered amounts received
from the repayment of loans made from money in the Advanced Energy
Research and Development Taxable Fund (Fund 7004), except for such
amounts in the Facilities Establishment Fund (Fund 7037), to the
Alternative Fuel Transportation Fund (Fund 5CG0); and
(B) Transfer any unexpended and unencumbered amounts in the
Advanced Energy Research and Development Taxable Fund (Fund 7004)
and the Advanced Energy Research and Development Fund (Fund 7005)
to the Advanced Energy Fund (Fund 5M50).
Section 701.10. The Department of Administrative Services and
the Department of Transportation cooperatively shall analyze their
respective motor vehicle fleets to determine whether it is
beneficial to establish standards for vehicle replacement in order
to increase the overall efficiency of the state motor vehicle
fleet. Not later than September 1, 2012, the Department of
Administrative Services and the Department of Transportation shall
produce a joint report with their findings and shall deliver the
report to the Speaker of the House of Representatives, the
Minority Leader of the House of Representatives, the President of
the Senate, the Minority Leader of the Senate, and the Governor.
Section 715.10. The injection well disposal fees levied by
section 1509.22 of the Revised Code, as amended by this act, are a
continuation of the injection well disposal fees levied by section
1509.221 of the Revised Code as that section existed prior to its
amendment by this act except insofar as the fees are increased by
the amendment.
Section 737.10. (A) The Director of Environmental Protection,
in coordination with the Department of Natural Resources, the
United States Environmental Protection Agency, and other entities
as determined appropriate by the Director, shall coordinate the
evaluation of emerging wastewater treatment and recycling
technologies that may reduce reliance on underground injection
wells and may assist in the advancement of industry in this state,
including the exploration and production of oil and gas. As part
of the evaluation, the Director may initiate, participate in,
oversee, or consult on pilot projects regarding wastewater
treatment and recycling technologies.
(B) The Director of Environmental Protection, in coordination
with the Public Utilities Commission of Ohio, the United States
Environmental Protection Agency, and other entities as determined
appropriate by the Director, shall conduct a study that identifies
current and future environmental regulatory requirements and how
those requirements may impact current and future power generation
and transmission in this state.
Section 755.10. The Department of Transportation and the
Public Utilities Commission cooperatively shall analyze the cost
effectiveness of purchasing vehicles that operate on compressed
natural gas and the conversion of certain state motor vehicles to
operate on compressed natural gas. Not later than January 30,
2013, the Department and the Commission shall produce a joint
report with their findings and shall deliver the report to the
Speaker of the House of Representatives, the Minority Leader of
the House of Representatives, the President of the Senate, the
Minority Leader of the Senate, and the Governor.
Section 812.20. Section exempt from referendum: general
effective date. The amendment by this act of section 133.06 of the
Revised Code and Section 701.10 of this act are exempt from the
referendum under Ohio Constitution, Article II, Section 1d and
section 1.471 of the Revised Code and therefore take effect
immediately when this act becomes law.
Section 815.10. 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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