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Sub. S. B. No. 58 As Pending in the Senate Public Utilities CommitteeAs Pending in the Senate Public Utilities Committee
130th General Assembly | Regular Session | 2013-2014 |
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A BILL
To amend sections 717.25, 1710.061, 3706.25, 4905.31,
4928.01, 4928.143, 4928.20, 4928.61, 4928.65,
5501.311, and 5727.75; to amend section 4928.64
and to recodify it by subdividing it into sections
4928.641, 4928.642, 4928.643, 4928.644, 4928.645,
4928.646, 4928.647, 4928.648, and 4928.649; to
amend section 4928.66 and to recodify it by
subdividing it into sections 4928.661, 4928.662,
4928.665, 4928.666, 4928.667, 4928.668, 4928.6625,
4928.6626, 4928.6627, 4928.6650, 4928.6651,
4928.6655, 4928.6656, 4928.6657, and 4928.6658; to
enact new section 4928.66 and sections 4928.6410,
4928.6610, 4928.6611, 4928.6612, 4928.6613,
4928.6615, 4928.6616, 4928.6617, 4928.6618,
4928.6619, 4928.6620, 4928.6621, 4928.6622,
4928.6623, 4928.6630, 4928.6631, 4928.6632,
4928.6633, 4928.6634, 4928.6635, 4928.6636,
4928.6640, 4928.6641, 4928.6642, 4928.6645,
4928.6646, 4928.6647, 4928.6659, and 4928.6660 of
the Revised Code to modify the alternative energy
resource, energy efficiency, and peak demand
reduction law.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 717.25, 1710.061, 3706.25, 4905.31,
4928.01, 4928.143, 4928.20, 4928.61, 4928.65, 5501.311, and
5727.75 be amended; section 4928.64 be amended and recodified by
subdividing it into sections 4928.641, 4928.642, 4928.643,
4928.644, 4928.645, 4928.646, 4928.647, 4928.648, and 4928.649;
section 4928.66 be amended and recodified by subdividing it into
sections 4928.661, 4928.662, 4928.665, 4928.666, 4928.667,
4928.668, 4928.6625, 4928.6626, 4928.6627, 4928.6650, 4928.6651,
4928.6655, 4928.6656, 4928.6657, and 4928.6658; that new section
4928.66 and sections 4928.6410, 4928.6610, 4928.6611, 4928.6612,
4928.6613, 4928.6615, 4928.6616, 4928.6617, 4928.6618, 4928.6619,
4928.6620, 4928.6621, 4928.6622, 4928.6623, 4928.6630, 4928.6631,
4928.6632, 4928.6633, 4928.6634, 4928.6635, 4928.6636, 4928.6640,
4928.6641, 4928.6642, 4928.6645, 4928.6646, 4928.6647, 4928.6659,
and 4928.6660 of the Revised Code be enacted to read as follows:
Sec. 717.25. (A) As used in this section:
(1) "Customer-generated energy project" means a wind,
biomass, or gasification facility for the generation of
electricity that meets either of the following requirements:
(a) The facility is designed to have a generating capacity of
two hundred fifty kilowatts of electricity or less.
(i) Designed to have a generating capacity of more than two
hundred fifty kilowatts of electricity;
(ii) Operated in parallel with electric transmission and
distribution facilities serving the real property at the site of
the customer-generated energy project;
(iii) Intended primarily to offset part or all of the
facility owner's requirements for electricity at the site of the
customer-generated energy project and is located on the facility
owner's real property; and
(iv) Not producing energy for direct sale by the facility
owner to the public.
(2) "Electric distribution utility" and "mercantile customer"
have the same meanings as in section 4928.01 of the Revised Code.
(3) "Reduction in demand" has the same meaning as in section
1710.01 of the Revised Code.
(B) The legislative authority of a municipal corporation may
establish a low-cost alternative energy revolving loan program to
assist owners of real property within the municipal corporation
with installing and implementing either of the following on their
real property:
(1) Alternative energy technologies limited to solar
photovoltaic projects, solar thermal energy projects, geothermal
energy projects, and customer-generated energy projects;
(2) Energy efficiency technologies, products, and activities
that reduce or support the reduction of energy consumption, allow
for the reduction in demand, or support the production of clean,
renewable energy.
(C) If the legislative authority decides to establish such a
program, the legislative authority shall adopt an ordinance that
provides for the following:
(1) Creation in the municipal treasury of an alternative
energy revolving loan fund;
(2) A source of money, such as gifts, bond issues, real
property assessments, or federal subsidies, to seed the
alternative energy revolving loan fund;
(3) Facilities for making loans from the alternative energy
revolving loan fund, including an explanation of how owners of
real property within the municipal corporation may qualify for
loans from the fund, a description of the alternative energy and
energy efficiency technologies and related equipment for which a
loan can be made from the fund, authorization of a municipal
agency to process applications for loans and otherwise to
administer the low-cost alternative energy revolving loan program,
a procedure whereby loans can be applied for, criteria for
reviewing and accepting or denying applications for loans,
criteria for determining the appropriate amount of a loan, the
interest rate to be charged, the repayment schedule, and other
terms and conditions of a loan, and procedures for collecting
loans that are not repaid according to the repayment schedule;
(4) A specification that repayments of loans from the
alternative energy revolving loan fund may be made in installments
and, at the option of the real property owner repaying the loan,
the installments may be paid and collected as if they were special
assessments paid and collected in the manner specified in Chapter
727. of the Revised Code and as specified in the ordinance;
(5) A specification that repayments of loans from the
alternative energy revolving loan fund are to be credited to the
fund, that the money in the fund is to be invested pending its
being lent out, and that investment earnings on the money in the
fund are to be credited to the fund; and
(6) Other matters necessary and proper for efficient
operation of the low-cost alternative energy revolving loan
program as a means of encouraging use of alternative energy and
energy efficiency technologies.
The interest rate charged on a loan from the alternative
energy revolving loan fund shall be below prevailing market rates.
The legislative authority may specify the interest rate in the
ordinance or may, after establishing a standard in the ordinance
whereby the interest rate can be specified, delegate authority to
specify the interest rate to the administrator of loans from the
alternative energy revolving loan fund.
The alternative energy revolving loan fund shall be seeded
with sufficient money to enable loans to be made until the fund
accumulates sufficient reserves through investment and repayment
of loans for revolving operation.
(D) Except as provided in division (E) of this section, an
electric distribution utility may count toward its compliance with
the energy efficiency and peak demand reduction requirements of
section sections 4928.66 to 4928.6660 of the Revised Code any
energy efficiency savings or any reduction in demand that is
produced by projects utilizing alternative energy technologies or
energy efficiency technologies, products, and activities that are
located in its certified territory and for which a loan has been
made under this section.
(E) A mercantile customer that realizes energy efficiency
savings or reduction in demand produced by alternative energy
technologies or energy efficiency technologies, products, or
activities that it owns and for which a loan has been made under
this section may elect to commit the savings or reduction to the
electric distribution utility in exchange for an exemption from an
energy efficiency cost recovery mechanism permitted under section
sections 4928.66 to 4928.6660 of the Revised Code, approved by the
public utilities commission.
(F) The legislative authority shall submit a quarterly report
to the electric distribution utility that includes, but is not
limited to, both of the following:
(1) The number and a description of each new and ongoing
project utilizing alternative energy technologies or energy
efficiency technologies, products, or activities located in the
utility's certified territory that produces energy efficiency
savings or reduction in demand and for which a loan has been made
under this section;
(2) Any additional information that the electric distribution
utility needs in order to obtain credit under section sections
4928.66 to 4928.6660 of the Revised Code for energy efficiency
savings or reduction in demand from such projects.
Sec. 1710.061. (A) Except as provided in division (B) of
this section, an electric distribution utility may count toward
its compliance with the energy efficiency and peak demand
reduction requirements of section sections 4928.66 to 4928.6660 of
the Revised Code any efficiency savings or reduction in demand
produced by a special energy improvement project located in its
certified territory.
(B) A mercantile customer that realizes energy efficiency
savings or reduction in demand produced by a special energy
improvement project that it owns may elect to commit the savings
or reduction to the electric distribution utility in exchange for
an exemption from an energy efficiency cost recovery mechanism
permitted under section sections 4928.66 to 4928.6660 of the
Revised Code, approved by the public utilities commission.
(C) The board of directors of a special improvement district
shall submit a quarterly report to the electric distribution
utility that includes, but is not limited to, both of the
following:
(1) The total number and a description of each new and
ongoing special energy improvement project located within the
special improvement district that produces energy efficiency
savings or reduction in demand;
(2) Any additional information that the electric distribution
utility needs in order to obtain credit under section sections
4928.66 to 4928.6660 of the Revised Code for energy efficiency
savings or reduction in demand from such projects.
Sec. 3706.25. As used in sections 3706.25 to 3706.30 of the
Revised Code:
(A) "Advanced energy project" means any technologies,
products, activities, or management practices or strategies that
facilitate the generation or use of electricity or any type of
energy and that reduce or support the reduction of energy
consumption or support the production of clean, renewable energy
for industrial, distribution, commercial, institutional,
governmental, research, not-for-profit, or residential energy
users including, but not limited to, advanced energy resources and
renewable energy resources. "Advanced energy project" includes any
project described in division (A), (B), or (C) of section 4928.621
of the Revised Code.
(B) "Advanced energy resource" means any of the following:
(1) Any method or any modification or replacement of any
property, process, device, structure, or equipment that increases
the generation output of an electric generating facility to the
extent such efficiency is achieved without additional carbon
dioxide emissions by that facility;
(2) Any distributed generation system consisting of customer
cogeneration technology, primarily to meet the energy needs of the
customer's facilities;
(3) Advanced nuclear energy technology consisting of
generation III technology as defined by the nuclear regulatory
commission; other, later technology; or significant improvements
to existing facilities;
(4) Any fuel cell used in the generation of electricity,
including, but not limited to, a proton exchange membrane fuel
cell, phosphoric acid fuel cell, molten carbonate fuel cell, or
solid oxide fuel cell;
(5) Advanced solid waste or construction and demolition
debris conversion technology, including, but not limited to,
advanced stoker technology, and advanced fluidized bed
gasification technology, that results in measurable greenhouse gas
emissions reductions as calculated pursuant to the United States
environmental protection agency's waste reduction model (WARM).
(C) "Air contaminant source" has the same meaning as in
section 3704.01 of the Revised Code.
(D) "Cogeneration technology" means technology that produces
electricity and useful thermal output simultaneously.
(E) "Renewable energy resource" means solar photovoltaic or
solar thermal energy, regardless of whether electricity is
produced, wind energy, power produced by a hydroelectric facility,
geothermal energy, regardless of whether electricity is produced,
fuel derived from solid wastes, as defined in section 3734.01 of
the Revised Code, through fractionation, biological decomposition,
or other process that does not principally involve combustion,
biomass energy, energy produced by cogeneration technology that is
placed into service on or before December 31, 2015, and for which
more than ninety per cent of the total annual energy input is from
combustion of a waste or byproduct gas from an air contaminant
source in this state, which source has been in operation since on
or before January 1, 1985, provided that the cogeneration
technology is a part of a facility located in a county having a
population of more than three hundred sixty-five thousand but less
than three hundred seventy thousand according to the most recent
federal decennial census, biologically derived methane gas, or
energy derived from nontreated by-products of the pulping process
or wood manufacturing process, including bark, wood chips,
sawdust, and lignin in spent pulping liquors. "Renewable energy
resource" includes, but is not limited to, any energy derived from
a fuel cell used in the generation of electricity, including, but
not limited to, a proton exchange membrane fuel cell, phosphoric
acid fuel cell, molten carbonate fuel cell, or solid oxide fuel
cell; wind turbine located in the state's territorial waters of
Lake Erie; methane gas emitted from an abandoned coal mine;
storage facility that will promote the better utilization of a
renewable energy resource that primarily generates off peak; or
distributed generation system used by a customer to generate
electricity from any such energy. As used in this division,
"hydroelectric facility" means a hydroelectric generating facility
that is located at a dam on a river, or on any water discharged to
a river or lake, that is within or bordering this state or, within
or bordering an adjoining state, or within the Canadian provinces
of Ontario or Quebec, and meets all of the following standards:
(1) The facility provides for river flows that are not
detrimental for fish, wildlife, and water quality, including
seasonal flow fluctuations as defined by the applicable licensing
agency for the facility.
(2) The facility demonstrates that it complies with the water
quality standards of this state, which compliance may consist of
certification under Section 401 of the "Clean Water Act of 1977,"
91 Stat. 1598, 1599, 33 U.S.C. 1341, and demonstrates that it has
not contributed to a finding by this state that the river has
impaired water quality under Section 303(d) of the "Clean Water
Act of 1977," 114 Stat. 870, 33 U.S.C. 1313.
(3) The facility complies with mandatory prescriptions
regarding fish passage as required by the federal energy
regulatory commission license issued for the project, regarding
fish protection for riverine, anadromous, and catadromous fish.
(4) The facility complies with the recommendations of the
Ohio environmental protection agency and with the terms of its
federal energy regulatory commission license regarding watershed
protection, mitigation, or enhancement, to the extent of each
agency's respective jurisdiction over the facility.
(5) The facility complies with provisions of the "Endangered
Species Act of 1973," 87 Stat. 884, 16 U.S.C. 1531 to 1544, as
amended.
(6) The facility does not harm cultural resources of the
area. This can be shown through compliance with the terms of its
federal energy regulatory commission license or, if the facility
is not regulated by that commission, through development of a plan
approved by the Ohio historic preservation office, to the extent
it has jurisdiction over the facility.
(7) The facility complies with the terms of its federal
energy regulatory commission license or exemption that are related
to recreational access, accommodation, and facilities or, if the
facility is not regulated by that commission, the facility
complies with similar requirements as are recommended by resource
agencies, to the extent they have jurisdiction over the facility;
and the facility provides access to water to the public without
fee or charge.
(8) The facility is not recommended for removal by any
federal agency or agency of any state, to the extent the
particular agency has jurisdiction over the facility.
Sec. 4905.31. Chapters 4901., 4903., 4905., 4907., 4909.,
4921., 4923., 4927., 4928., and 4929. of the Revised Code do not
prohibit a public utility from filing a schedule or establishing
or entering into any reasonable arrangement with another public
utility or with one or more of its customers, consumers, or
employees, and do not prohibit a mercantile customer of an
electric distribution utility as those terms are defined in
section 4928.01 of the Revised Code or a group of those customers
from establishing a reasonable arrangement with that utility or
another public utility electric light company, providing for any
of the following:
(A) The division or distribution of its surplus profits;
(B) A sliding scale of charges, including variations in rates
based upon stipulated variations in cost as provided in the
schedule or arrangement.
(C) A minimum charge for service to be rendered unless such
minimum charge is made or prohibited by the terms of the
franchise, grant, or ordinance under which such public utility is
operated;
(D) A classification of service based upon the quantity used,
the time when used, the purpose for which used, the duration of
use, and any other reasonable consideration;
(E) Any other financial device that may be practicable or
advantageous to the parties interested. In the case of a schedule
or arrangement concerning a public utility electric light company,
such other financial device may include a device to recover costs
incurred in conjunction with any economic development and job
retention program of the utility within its certified territory,
including recovery of revenue foregone as a result of any such
program; any development and implementation of peak demand
reduction and energy efficiency programs under section sections
4928.66 to 4928.6660 of the Revised Code; any acquisition and
deployment of advanced metering, including the costs of any meters
prematurely retired as a result of the advanced metering
implementation; and compliance with any government mandate.
No such schedule or arrangement is lawful unless it is filed
with and approved by the commission pursuant to an application
that is submitted by the public utility or the mercantile customer
or group of mercantile customers of an electric distribution
utility and is posted on the commission's docketing information
system and is accessible through the internet.
Every such public utility is required to conform its
schedules of rates, tolls, and charges to such arrangement,
sliding scale, classification, or other device, and where variable
rates are provided for in any such schedule or arrangement, the
cost data or factors upon which such rates are based and fixed
shall be filed with the commission in such form and at such times
as the commission directs.
Every such schedule or reasonable arrangement shall be under
the supervision and regulation of the commission, and is subject
to change, alteration, or modification by the commission.
Sec. 4928.01. (A) As used in this chapter:
(1) "Ancillary service" means any function necessary to the
provision of electric transmission or distribution service to a
retail customer and includes, but is not limited to, scheduling,
system control, and dispatch services; reactive supply from
generation resources and voltage control service; reactive supply
from transmission resources service; regulation service; frequency
response service; energy imbalance service; operating
reserve-spinning reserve service; operating reserve-supplemental
reserve service; load following; back-up supply service;
real-power loss replacement service; dynamic scheduling; system
black start capability; and network stability service.
(2) "Billing and collection agent" means a fully independent
agent, not affiliated with or otherwise controlled by an electric
utility, electric services company, electric cooperative, or
governmental aggregator subject to certification under section
4928.08 of the Revised Code, to the extent that the agent is under
contract with such utility, company, cooperative, or aggregator
solely to provide billing and collection for retail electric
service on behalf of the utility company, cooperative, or
aggregator.
(3) "Certified territory" means the certified territory
established for an electric supplier under sections 4933.81 to
4933.90 of the Revised Code.
(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 any type of
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 one of the following:
(i) The generation output of an electric generating facility
to the extent such efficiency is achieved without additional
carbon dioxide emissions by that facility;
(ii) The rated capacity of a transmission or distribution
line;
(b) Any distributed generation system consisting of customer
cogeneration technology;
(c) Clean coal technology that includes a carbon-based
product that is chemically altered before combustion to
demonstrate a reduction, as expressed as ash, in emissions of
nitrous oxide, mercury, arsenic, chlorine, sulfur dioxide, or
sulfur trioxide in accordance with the American society of testing
and materials standard D1757A or a reduction of metal oxide
emissions in accordance with standard D5142 of that society, or
clean coal technology that includes the design capability to
control or prevent the emission of carbon dioxide, which design
capability the commission shall adopt by rule and shall be based
on economically feasible best available technology or, in the
absence of a determined best available technology, shall be of the
highest level of economically feasible design capability for which
there exists generally accepted scientific opinion;
(d) Advanced nuclear energy technology consisting of
generation III technology as defined by the nuclear regulatory
commission; other, later technology; or significant improvements
to existing facilities;
(e) Any fuel cell used in the generation of electricity,
including, but not limited to, a proton exchange membrane fuel
cell, phosphoric acid fuel cell, molten carbonate fuel cell, or
solid oxide fuel cell;
(f) Advanced solid waste or construction and demolition
debris conversion technology, including, but not limited to,
advanced stoker technology, and advanced fluidized bed
gasification technology, that results in measurable greenhouse gas
emissions reductions as calculated pursuant to the United States
environmental protection agency's waste reduction model (WARM);
(g) Demand-side management and any energy efficiency
improvement;
(h) Any new, retrofitted, refueled, or repowered generating
facility located in Ohio, including a simple or combined-cycle
natural gas generating facility or a generating facility that uses
biomass, coal, modular nuclear, or any other fuel as its input;
(i) Any uprated capacity of an existing electric generating
facility if the uprated capacity results from the deployment of
advanced technology.;
"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 (j) Any
mercantile customer or supplier method or any modification or
replacement of any property, process, device, structure, or
equipment that reduces the energy intensity of any water supply
function or water treatment function.
(35) "Air contaminant source" has the same meaning as in
section 3704.01 of the Revised Code.
(36) "Cogeneration technology" means technology that produces
electricity and useful thermal output simultaneously.
(37)(a) "Renewable energy resource" means any of the
following:
(i) Solar photovoltaic or solar thermal energy, regardless of
whether electricity is produced;
(iii) Power produced by a hydroelectric facility;
(iv) Geothermal energy, regardless of whether electricity is
produced;
(v) 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;
(vii) Energy produced by cogeneration technology that is
placed into service on or before December 31, 2015, and for which
more than ninety per cent of the total annual energy input is from
combustion of a waste or byproduct gas from an air contaminant
source in this state, which source has been in operation since on
or before January 1, 1985, provided that the cogeneration
technology is a part of a facility located in a county having a
population of more than three hundred sixty-five thousand but less
than three hundred seventy thousand according to the most recent
federal decennial census;
(viii) Biologically derived methane gas;
(ix) 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 energy derived from a 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 placed into
service or retrofitted on or after the effective date of the
amendment of this section by S.B. 315 of the 129th general
assembly, September 10, 2012, except that a waste energy recovery
system described in division (A)(38)(b) of this section may be
included only if it was placed into service between January 1,
2002, and December 31, 2004; storage facility that will promote
the better utilization of a renewable energy resource; 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 was, on or after January 1, 2012,
included in an energy efficiency program of an electric
distribution utility pursuant to requirements under section
sections 4928.66 to 4928.6660 of the Revised Code.
(b) As used in division (A)(37) of this section,
"hydroelectric facility" means a hydroelectric generating facility
that is located at a dam on a river, or on any water discharged to
a river or lake, that is within or bordering this state or, within
or bordering an adjoining state, or within the Canadian provinces
of Ontario or Quebec, and meets all of the following standards:
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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.
(v) The facility complies with provisions of the "Endangered
Species Act of 1973," 87 Stat. 884, 16 U.S.C. 1531 to 1544, as
amended.
(vi) 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.
(vii) 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.
(viii) 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.
(38) "Waste energy recovery system" means either of the
following:
(a) A facility that generates electricity through the
conversion of energy from either of the following:
(i) 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;
(ii) 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.
(b) A facility at a state institution of higher education as
defined in section 3345.011 of the Revised Code that recovers
waste heat from electricity-producing engines or combustion
turbines and that simultaneously uses the recovered heat to
produce steam, provided that the facility was placed into service
between January 1, 2002, and December 31, 2004.
(39) "Smart grid" means capital improvements to an electric
distribution utility's distribution infrastructure that improve
reliability, efficiency, resiliency, or reduce energy demand or
use, including, but not limited to, advanced metering and
automation of system functions.
(40) "Combined heat and power system" means the coproduction
of electricity and useful thermal energy from the same fuel source
designed to achieve thermal-efficiency levels of at least sixty
per cent, with at least twenty per cent of the system's total
useful energy in the form of thermal energy.
(41) "Water supply function" means the functions associated
with the following:
(a) Raw water collection, purification, treatment, and
storage;
(b) Establishing or maintaining pressure to balance water
supply and demand;
(c) Water delivery and transfer.
(42) "Water treatment function" means any of the preliminary,
secondary, tertiary, and advanced activities, whether physical,
biological, or chemical, associated with the removal of
contaminants from, or conditioning of, wastewater prior to its
return to the environment or recycled use;
(43) "Energy intensity" means the amount of energy used to
produce a certain level of output or activity, measured by the
quantity of energy needed to perform a particular activity,
expressed as energy per unit of output, energy per unit of gross
total floor space, or an activity measure of service.
(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. 4928.143. (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 4928.649, and section 4928.69 of the Revised Code:
(1) An electric security plan shall include provisions
relating to the supply and pricing of electric generation service.
In addition, if the proposed electric security plan has a term
longer than three years, it may include provisions in the plan to
permit the commission to test the plan pursuant to division (E) of
this section and any transitional conditions that should be
adopted by the commission if the commission terminates the plan as
authorized under that division.
(2) The plan may provide for or include, without limitation,
any of the following:
(a) Automatic recovery of any of the following costs of the
electric distribution utility, provided the cost is prudently
incurred: the cost of fuel used to generate the electricity
supplied under the offer; the cost of purchased power supplied
under the offer, including the cost of energy and capacity, and
including purchased power acquired from an affiliate; the cost of
emission allowances; and the cost of federally mandated carbon or
energy taxes;
(b) A reasonable allowance for construction work in progress
for any of the electric distribution utility's cost of
constructing an electric generating facility or for an
environmental expenditure for any electric generating facility of
the electric distribution utility, provided the cost is incurred
or the expenditure occurs on or after January 1, 2009. Any such
allowance shall be subject to the construction work in progress
allowance limitations of division (A) of section 4909.15 of the
Revised Code, except that the commission may authorize such an
allowance upon the incurrence of the cost or occurrence of the
expenditure. No such allowance for generating facility
construction shall be authorized, however, unless the commission
first determines in the proceeding that there is need for the
facility based on resource planning projections submitted by the
electric distribution utility. Further, no such allowance shall be
authorized unless the facility's construction was sourced through
a competitive bid process, regarding which process the commission
may adopt rules. An allowance approved under division (B)(2)(b) of
this section shall be established as a nonbypassable surcharge for
the life of the facility.
(c) The establishment of a nonbypassable surcharge for the
life of an electric generating facility that is owned or operated
by the electric distribution utility, was sourced through a
competitive bid process subject to any such rules as the
commission adopts under division (B)(2)(b) of this section, and is
newly used and useful on or after January 1, 2009, which surcharge
shall cover all costs of the utility specified in the application,
excluding costs recovered through a surcharge under division
(B)(2)(b) of this section. However, no surcharge shall be
authorized unless the commission first determines in the
proceeding that there is need for the facility based on resource
planning projections submitted by the electric distribution
utility. Additionally, if a surcharge is authorized for a facility
pursuant to plan approval under division (C) of this section and
as a condition of the continuation of the surcharge, the electric
distribution utility shall dedicate to Ohio consumers the capacity
and energy and the rate associated with the cost of that facility.
Before the commission authorizes any surcharge pursuant to this
division, it may consider, as applicable, the effects of any
decommissioning, deratings, and retirements.
(d) Terms, conditions, or charges relating to limitations on
customer shopping for retail electric generation service,
bypassability, standby, back-up, or supplemental power service,
default service, carrying costs, amortization periods, and
accounting or deferrals, including future recovery of such
deferrals, as would have the effect of stabilizing or providing
certainty regarding retail electric service;
(e) Automatic increases or decreases in any component of the
standard service offer price;
(f) 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 4928.641, or division (A) of section sections
4928.66 to 4928.6660 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. 4928.20. (A) The legislative authority of a municipal
corporation may adopt an ordinance, or the board of township
trustees of a township or the board of county commissioners of a
county may adopt a resolution, under which, on or after the
starting date of competitive retail electric service, it may
aggregate in accordance with this section the retail electrical
loads located, respectively, within the municipal corporation,
township, or unincorporated area of the county and, for that
purpose, may enter into service agreements to facilitate for those
loads the sale and purchase of electricity. The legislative
authority or board also may exercise such authority jointly with
any other such legislative authority or board. For customers that
are not mercantile customers, an ordinance or resolution under
this division shall specify whether the aggregation will occur
only with the prior, affirmative consent of each person owning,
occupying, controlling, or using an electric load center proposed
to be aggregated or will occur automatically for all such persons
pursuant to the opt-out requirements of division (D) of this
section. The aggregation of mercantile customers shall occur only
with the prior, affirmative consent of each such person owning,
occupying, controlling, or using an electric load center proposed
to be aggregated. Nothing in this division, however, authorizes
the aggregation of the retail electric loads of an electric load
center, as defined in section 4933.81 of the Revised Code, that is
located in the certified territory of a nonprofit electric
supplier under sections 4933.81 to 4933.90 of the Revised Code or
an electric load center served by transmission or distribution
facilities of a municipal electric utility.
(B) If an ordinance or resolution adopted under division (A)
of this section specifies that aggregation of customers that are
not mercantile customers will occur automatically as described in
that division, the ordinance or resolution shall direct the board
of elections to submit the question of the authority to aggregate
to the electors of the respective municipal corporation, township,
or unincorporated area of a county at a special election on the
day of the next primary or general election in the municipal
corporation, township, or county. The legislative authority or
board shall certify a copy of the ordinance or resolution to the
board of elections not less than ninety days before the day of the
special election. No ordinance or resolution adopted under
division (A) of this section that provides for an election under
this division shall take effect unless approved by a majority of
the electors voting upon the ordinance or resolution at the
election held pursuant to this division.
(C) Upon the applicable requisite authority under divisions
(A) and (B) of this section, the legislative authority or board
shall develop a plan of operation and governance for the
aggregation program so authorized. Before adopting a plan under
this division, the legislative authority or board shall hold at
least two public hearings on the plan. Before the first hearing,
the legislative authority or board shall publish notice of the
hearings once a week for two consecutive weeks in a newspaper of
general circulation in the jurisdiction or as provided in section
7.16 of the Revised Code. The notice shall summarize the plan and
state the date, time, and location of each hearing.
(D) No legislative authority or board, pursuant to an
ordinance or resolution under divisions (A) and (B) of this
section that provides for automatic aggregation of customers that
are not mercantile customers as described in division (A) of this
section, shall aggregate the electrical load of any electric load
center located within its jurisdiction unless it in advance
clearly discloses to the person owning, occupying, controlling, or
using the load center that the person will be enrolled
automatically in the aggregation program and will remain so
enrolled unless the person affirmatively elects by a stated
procedure not to be so enrolled. The disclosure shall state
prominently the rates, charges, and other terms and conditions of
enrollment. The stated procedure shall allow any person enrolled
in the aggregation program the opportunity to opt out of the
program every three years, without paying a switching fee. Any
such person that opts out before the commencement of the
aggregation program pursuant to the stated procedure shall default
to the standard service offer provided under section 4928.14 or
division (D) of section 4928.35 of the Revised Code until the
person chooses an alternative supplier.
(E)(1) With respect to a governmental aggregation for a
municipal corporation that is authorized pursuant to divisions (A)
to (D) of this section, resolutions may be proposed by initiative
or referendum petitions in accordance with sections 731.28 to
731.41 of the Revised Code.
(2) With respect to a governmental aggregation for a township
or the unincorporated area of a county, which aggregation is
authorized pursuant to divisions (A) to (D) of this section,
resolutions may be proposed by initiative or referendum petitions
in accordance with sections 731.28 to 731.40 of the Revised Code,
except that:
(a) The petitions shall be filed, respectively, with the
township fiscal officer or the board of county commissioners, who
shall perform those duties imposed under those sections upon the
city auditor or village clerk.
(b) The petitions shall contain the signatures of not less
than ten per cent of the total number of electors in,
respectively, the township or the unincorporated area of the
county who voted for the office of governor at the preceding
general election for that office in that area.
(F) A governmental aggregator under division (A) of this
section is not a public utility engaging in the wholesale purchase
and resale of electricity, and provision of the aggregated service
is not a wholesale utility transaction. A governmental aggregator
shall be subject to supervision and regulation by the public
utilities commission only to the extent of any competitive retail
electric service it provides and commission authority under this
chapter.
(G) This section does not apply in the case of a municipal
corporation that supplies such aggregated service to electric load
centers to which its municipal electric utility also supplies a
noncompetitive retail electric service through transmission or
distribution facilities the utility singly or jointly owns or
operates.
(H) A governmental aggregator shall not include in its
aggregation the accounts of any of the following:
(1) A customer that has opted out of the aggregation;
(2) A customer in contract with a certified electric services
company;
(3) A customer that has a special contract with an electric
distribution utility;
(4) A customer that is not located within the governmental
aggregator's governmental boundaries;
(5) Subject to division (C) of section 4928.21 of the Revised
Code, a customer who appears on the "do not aggregate" list
maintained under that section.
(I) Customers that are part of a governmental aggregation
under this section shall be responsible only for such portion of a
surcharge under section 4928.144 of the Revised Code that is
proportionate to the benefits, as determined by the commission,
that electric load centers within the jurisdiction of the
governmental aggregation as a group receive. The proportionate
surcharge so established shall apply to each customer of the
governmental aggregation while the customer is part of that
aggregation. If a customer ceases being such a customer, the
otherwise applicable surcharge shall apply. Nothing in this
section shall result in less than full recovery by an electric
distribution utility of any surcharge authorized under section
4928.144 of the Revised Code. Nothing in this section shall result
in less than the full and timely imposition, charging, collection,
and adjustment by an electric distribution utility, its assignee,
or any collection agent, of the phase-in-recovery charges
authorized pursuant to a final financing order issued pursuant to
sections 4928.23 to 4928.2318 of the Revised Code.
(J) On behalf of the customers that are part of a
governmental aggregation under this section and by filing written
notice with the public utilities commission, the legislative
authority that formed or is forming that governmental aggregation
may elect not to receive standby service within the meaning of
division (B)(2)(d) of section 4928.143 of the Revised Code from an
electric distribution utility in whose certified territory the
governmental aggregation is located and that operates under an
approved electric security plan under that section. Upon the
filing of that notice, the electric distribution utility shall not
charge any such customer to whom competitive retail electric
generation service is provided by another supplier under the
governmental aggregation for the standby service. Any such
consumer that returns to the utility for competitive retail
electric service shall pay the market price of power incurred by
the utility to serve that consumer plus any amount attributable to
the utility's cost of compliance with the alternative energy
resource provisions of section sections 4928.64 to 4928.6410 of
the Revised Code to serve the consumer. Such market price shall
include, but not be limited to, capacity and energy charges; all
charges associated with the provision of that power supply through
the regional transmission organization, including, but not limited
to, transmission, ancillary services, congestion, and settlement
and administrative charges; and all other costs incurred by the
utility that are associated with the procurement, provision, and
administration of that power supply, as such costs may be approved
by the commission. The period of time during which the market
price and alternative energy resource amount shall be so assessed
on the consumer shall be from the time the consumer so returns to
the electric distribution utility until the expiration of the
electric security plan. However, if that period of time is
expected to be more than two years, the commission may reduce the
time period to a period of not less than two years.
(K) The commission shall adopt rules to encourage and promote
large-scale governmental aggregation in this state. For that
purpose, the commission shall conduct an immediate review of any
rules it has adopted for the purpose of this section that are in
effect on the effective date of the amendment of this section by
S.B. 221 of the 127th general assembly, July 31, 2008. Further,
within the context of an electric security plan under section
4928.143 of the Revised Code, the commission shall consider the
effect on large-scale governmental aggregation of any
nonbypassable generation charges, however collected, that would be
established under that plan, except any nonbypassable generation
charges that relate to any cost incurred by the electric
distribution utility, the deferral of which has been authorized by
the commission prior to the effective date of the amendment of
this section by S.B. 221 of the 127th general assembly, July 31,
2008.
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 4928.643 of the
Revised Code;
(5) Revenue from forfeitures under division (C) of section
4928.66 4928.6656 of the Revised Code;
(6) Funds transferred pursuant to division (B) of Section
512.10 of S.B. 315 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. 4928.64. (A)(1) As used in sections 4928.64 to 4928.6410
and 4928.65 of the Revised Code, "alternative energy resource"
means an the following:
(1) An advanced energy resource or renewable energy resource,
as defined in section 4928.01 of the Revised Code that has a
placed-in-service date of January 1, 1998, or after; a
(2) A renewable energy resource created on or after January
1, 1998, by the modification or retrofit of any facility placed in
service prior to January 1, 1998; or a
(3) A mercantile customer-sited advanced energy resource or
renewable energy resource, whether new or existing, that the
mercantile customer contractually commits to an electric
distribution utility or an electric services company for purposes
of compliance with section 4928.641 of the Revised Code or
contractually commits to an electric distribution utility for
integration into the
electric distribution utility's
demand-response, energy efficiency, or peak demand reduction
programs as provided under
division (A)(2)(c) of section 4928.66
4928.6650 of the Revised Code, including, but not limited to, any
of the following:
(a) A resource, behavior, or practice that has does any of
the following:
(i) Has the effect of improving the relationship between real
and reactive power;
(ii) Reduces line losses;
(iii) Reduces transformation losses.
(b) A resource, behavior, or practice that makes efficient
use of waste heat or other thermal capabilities owned or
controlled by a mercantile customer;
(c) Storage, behavior, practice, or technology that allows a
mercantile customer more flexibility to modify its demand or load
and usage characteristics;
(d) Electric generation equipment owned or controlled by a
mercantile customer that uses an advanced energy resource or
renewable energy resource;
(e) Any plan, policy, behavior, or practice that reduces the
total energy intensity of a facility, pipeline, building, plant,
or equipment regardless of the type of energy intensity reduction,
provided that such plan, policy, behavior, or practice does not
result in a substitution of an alternative form of energy use for
the use of purchased electricity;
(f) Any plan, policy, behavior, or practice that reduces the
energy intensity of any water supply function or water treatment
function;
(g) Any advanced energy resource or renewable energy resource
of the mercantile customer that can be utilized effectively as
part of any advanced energy resource plan of an electric
distribution utility and would otherwise qualify as an alternative
energy resource if it were utilized directly by an electric
distribution utility.
(2)(h) Any energy intensity reduction that is achieved, in
whole or in part, as a result of the funding provided from the
universal service fund established under section 4928.51 of the
Revised Code.
(B) For the purpose of this section sections 4928.641 to
4928.6410 of the Revised Code and as it considers appropriate, the
public utilities commission may classify any new technology as
such an advanced energy resource or a renewable energy resource.
Sec. 4928.641. (B)(A) By 2025 and thereafter, an electric
distribution utility shall provide from alternative energy
resources, including, at its discretion, alternative energy
resources obtained pursuant to an electricity supply contract, a
portion of the electricity supply required for its standard
service offer under section 4928.141 of the Revised Code, and an
electric services company shall provide a portion of its
electricity supply for retail consumers in this state from
alternative energy resources, including, at its discretion,
alternative energy resources obtained pursuant to an electricity
supply contract. That portion shall equal twenty-five per cent of
the total number of kilowatt hours of electricity sold by the
subject utility or company to any and all retail electric
consumers whose electric load centers are served by that utility
and are located within the utility's certified territory or, in
the case of an electric services company, are served by the
company and are located within this state. However, nothing in
this section precludes a utility or company from providing a
greater percentage. The baseline for a utility's or company's
compliance with the alternative energy resource requirements of
this section shall be the average of such total kilowatt hours it
sold in the preceding three calendar years, except that the public
utilities commission may reduce a utility's or company's baseline
to adjust for new economic growth in the utility's certified
territory or, in the case of an electric services company, in the
company's service area in this state.
Of (B) Subject to the cost cap provisions of section 4928.644
of the Revised Code, of the alternative energy resources
implemented by the subject utility or company by 2025 and
thereafter:
(1) Half may be generated met from advanced energy resources
and shall be counted towards compliance with this section in every
year it is provided in order to meet compliance, beginning in
2009;
(2) At least half shall be generated from renewable energy
resources, including one-half per cent from solar energy
resources, in accordance with the following benchmarks:
By end of year |
Renewable energy resources |
Solar energy resources |
|
|
2009 |
0.25% |
0.004% |
|
|
2010 |
0.50% |
0.010% |
|
|
2011 |
1% |
0.030% |
|
|
2012 |
1.5% |
0.060% |
|
|
2013 |
2% |
0.090% |
|
|
2014 |
2.5% |
0.12% |
|
|
2015 |
3.5% |
0.15% |
|
|
2016 |
4.5% |
0.18% |
|
|
2017 |
5.5% |
0.22% |
|
|
2018 |
6.5% |
0.26% |
|
|
2019 |
7.5% |
0.3% |
|
|
2020 |
8.5% |
0.34% |
|
|
2021 |
9.5% |
0.38% |
|
|
2022 |
10.5% |
0.42% |
|
|
2023 |
11.5% |
0.46% |
|
|
2024 and each calendar year thereafter |
12.5% |
0.5% |
|
|
(3) At least one-half of the renewable energy resources
implemented by the utility or company shall be met through
facilities located in this state; the remainder shall be met with
resources that can be shown to be deliverable into this state from
renewable energy resources that are one of the following:
(a) Located in this state;
(b) Eligible, or become eligible, to be provided as capacity,
energy, or ancillary services through or within the wholesale
electric market operated by the PJM interconnection regional
transmission organization or its successor, the midcontinent
independent system operator or its successor, or any regional
transmission entity performing the functions identified in section
4928.12 of the Revised Code and applicable to this state.
Sec. 4928.642. (C)(1) The public utilities commission
annually shall review an electric distribution utility's or
electric services company's compliance with the most recent
applicable benchmark under division (B)(2) of this section
4928.641 of the Revised Code and, in the course of that review,
shall identify any undercompliance or noncompliance of the utility
or company that it determines is weather-related, related to
equipment or resource shortages for advanced energy or renewable
energy resources as applicable, or is otherwise outside the
utility's or company's control.
Sec. 4928.643. (2) Subject to the cost cap provisions of
division (C)(3) of this section 4928.644 of the Revised Code, if
the public utilities commission determines, after notice and
opportunity for hearing, and based upon its findings in that
review regarding avoidable undercompliance or noncompliance, but
subject to division (C)(4) of this section 4928.645 of the Revised
Code, that the utility or company has failed to comply with any
such benchmark, the commission shall may impose a renewable energy
compliance payment on the utility or company.
(a)(A) The compliance payment pertaining to the solar energy
resource benchmarks under division (B)(2) of this section 4928.641
of the Revised Code shall be an amount per megawatt hour of
undercompliance or noncompliance in the period under review,
starting at four hundred fifty dollars for 2009, four hundred
dollars for 2010 and 2011, and similarly reduced every two years
thereafter through 2024 by fifty dollars, to a minimum of fifty
dollars.
(b)(B) The compliance payment pertaining to the renewable
energy resource benchmarks under division (B)(2) of this section
4928.641 of the Revised Code shall equal the number of additional
renewable energy credits that the electric distribution utility or
electric services company would have needed to comply with the
applicable benchmark in the period under review times an amount
that shall begin at forty-five dollars and shall be adjusted
annually by the commission to reflect any change in the consumer
price index as defined in section 101.27 of the Revised Code, but
shall not be less than forty-five dollars.
(c)(C) The compliance payment shall not be passed through by
the electric distribution utility or electric services company to
consumers. The compliance payment shall be remitted to the
commission, for deposit to the credit of the advanced energy fund
created under section 4928.61 of the Revised Code. Payment of the
compliance payment shall be subject to such collection and
enforcement procedures as apply to the collection of a forfeiture
under sections 4905.55 to 4905.60 and 4905.64 of the Revised Code.
Sec. 4928.644. (3)(A) An electric distribution utility or an
electric services company need not comply with a benchmark under
division (B)(1) or (2) of this section to the extent that its
reasonably expected cost of that compliance exceeds its reasonably
expected cost of otherwise producing or acquiring the requisite
electricity by three per cent or more. The cost of compliance
shall be calculated as though any exemption from taxes and
assessments had not been granted under section 5727.75 of the
Revised Code shall not continue to comply, or be subject to any
obligation to continue to comply, in any year, with a benchmark
under division (B)(1) or (2) of section 4928.641 of the Revised
Code, if continued compliance for that year would exceed the cost
cap calculated under division (B) of this section.
(B) The cost cap for each utility and company shall equal the
product of three per cent multiplied by the sales supply amount.
The sales supply amount is the product of the sales baseline
multiplied by the generation supply dollar amount. For purposes of
division (B) of this section:
(1) "Sales baseline" means the sales baseline in megawatt
hours for the applicable compliance year, which consists of an
average of the utility's or company's annual retail sales of
electricity sold in the state from the three preceding years; and
(2) "Generation supply dollar amount" means the reasonably
expected dollar amount per megawatt hour for the generation supply
available to consumers pursuant to section 4928.141 of the Revised
Code during the applicable compliance year, which consists of a
weighted average of the cost of the standard service offer supply
for the delivery during that compliance year, net of distribution
losses. With respect to an electric services company, generation
supply dollar amount means the average weighted cost of generation
supply of the relevant electric distribution utility.
(C) In making the calculation under division (B) of this
section, any exemption from taxes and assessments granted under
section 5727.75 of the Revised Code shall be treated as if it had
not been granted.
(D) Notwithstanding the cost cap established in this section,
ongoing costs associated with contracts executed by the electric
distribution utility to procure renewable energy resources that
are being recovered from customers through a bypassable charge as
of the effective date of S.B. 58 of the 130th general assembly
shall continue to be recovered for the term of the contract.
Sec. 4928.645. (4)(a)(A) An electric distribution utility or
electric services company may request the public utilities
commission to make a force majeure determination pursuant to this
division section regarding all or part of the utility's or
company's compliance with any minimum benchmark under division
(B)(2) of this section 4928.641 of the Revised Code during the
period of review occurring pursuant to division (C)(2) of this
section 4928.643 of the Revised Code. The commission may require
the electric distribution utility or electric services company to
make solicitations for renewable energy resource credits as part
of its default service before the utility's or company's request
of force majeure under this division can be made.
(b)(B) Within ninety days after the filing of a request by an
electric distribution utility or electric services company under
division (C)(4)(a)(A) of this section, the commission shall
determine if renewable energy resources are reasonably available
in the marketplace in sufficient quantities for the utility or
company to comply with the subject minimum benchmark during the
review period. In making this determination, the commission shall
consider whether the electric distribution utility or electric
services company has made a good faith effort to acquire
sufficient renewable energy or, as applicable, solar energy
resources to so comply, including, but not limited to, by banking
or seeking renewable energy resource credits or by seeking the
resources through long-term contracts. Additionally, the
commission shall consider the availability of renewable energy or
solar energy resources in this state and other jurisdictions in
the PJM interconnection regional transmission organization or its
successor and the midwest midcontinent independent system operator
or its successor.
(c)(C) If, pursuant to division (C)(4)(b)(B) of this section,
the commission determines that renewable energy or solar energy
resources are not reasonably available to permit the electric
distribution utility or electric services company to comply,
during the period of review, with the subject minimum benchmark
prescribed under division (B)(2) of this section 4928.641 of the
Revised Code, the commission shall modify that compliance
obligation of the utility or company as it determines appropriate
to accommodate the finding. Commission modification shall not
automatically reduce the obligation for the electric distribution
utility's or electric services company's compliance in subsequent
years. If it modifies the electric distribution utility or
electric services company obligation under division (C)(4)(c) of
this section, the commission may require the utility or company,
if sufficient renewable energy resource credits exist in the
marketplace, to acquire additional renewable energy resource
credits in subsequent years equivalent to the utility's or
company's modified obligation under division (C)(4)(c) of this
section.
Sec. 4928.646. (5) The public utilities commission shall
establish a process to provide for at least an annual review of
the alternative energy resource market in this state and in the
service territories of the regional transmission organizations
that manage transmission systems located in this state. The
commission shall use the results of this study to identify any
needed changes to the amount of the renewable energy compliance
payment specified under divisions (C)(2)(a)(A) and (b)(B) of this
section 4928.643 of the Revised Code. Specifically, the commission
may increase the amount to ensure that payment of compliance
payments is not used to achieve compliance with this section
4928.641 of the Revised Code in lieu of actually acquiring or
realizing energy derived from renewable energy resources. However,
if the commission finds that the amount of the compliance payment
should be otherwise changed, the commission shall present this
finding to the general assembly for legislative enactment.
Sec. 4928.647. (D)(1)(A) The public utilities commission
annually shall submit to the general assembly in accordance with
section 101.68 of the Revised Code a report describing all of the
following:
(a)(1) The compliance of electric distribution utilities and
electric services companies with division (B) of this section
4928.641 of the Revised Code;
(b)(2) The average annual cost of renewable energy credits
purchased by utilities and companies for the year covered in the
report;
(c)(3) Any strategy for utility and company compliance or for
encouraging the use of alternative energy resources in supplying
this state's electricity needs in a manner that considers
available technology, costs, job creation, and economic impacts.
(B) The commission shall begin providing the information
described in division (D)(1)(b)(A)(2) of this section in each
report submitted after the effective date of the amendment of this
section by S.B. 315 of the 129th general assembly September 10,
2012. The commission shall allow and consider public comments on
the report prior to its submission to the general assembly.
Nothing in the report shall be binding on any person, including
any utility or company for the purpose of its compliance with any
benchmark under division (B) of this section 4928.641 of the
Revised Code, or the enforcement of that provision under division
(C) of this section sections 4928.642 to 4928.646 of the Revised
Code.
Sec. 4928.648. (2) The governor, in consultation with the
commission chairperson of the public utilities commission, shall
appoint an alternative energy advisory committee. The committee
shall examine available technology for and related timetables,
goals, and costs of the alternative energy resource requirements
under division (B) of this section 4928.641 of the Revised Code
and shall submit to the commission a semiannual report of its
recommendations.
Sec. 4928.649. (E) All costs incurred by an electric
distribution utility in complying with the requirements of this
section 4928.641 of the Revised Code shall be bypassable by any
consumer that has exercised choice of supplier under section
4928.03 of the Revised Code.
Sec. 4928.6410. The following shall be counted for purposes
of measuring compliance with the requirements of section 4928.641
of the Revised Code regardless of whether the resource or its
attributes may also be counted towards compliance with the
requirements of sections 4928.66 to 4928.6660 of the Revised Code:
(A) Energy efficiency savings and demand reductions described
in division (E) of section 717.25 of the Revised Code and
divisions (A) and (B) of section 1710.061 of the Revised Code;
(B) Any advanced energy resource.
Sec. 4928.65. An electric distribution utility or electric
services company may use renewable energy credits any time in the
five calendar years following the date of their purchase or
acquisition from any entity, including, but not limited to, a
mercantile customer or an owner or operator of a hydroelectric
generating facility that is located at a dam on a river, or on any
water discharged to a river or lake, that is within or bordering
this state or, within or bordering an adjoining state, or within
the Canadian provinces of Ontario or Quebec, for the purpose of
complying with the renewable energy and solar energy resource
requirements of division (B)(2) of section
4928.64 4928.641 of
the Revised Code. The public utilities commission shall adopt
rules specifying that one unit of credit shall equal one megawatt
hour of electricity derived from renewable energy resources,
except that, for a generating facility of seventy-five megawatts
or greater that is situated within this state and has committed by
December 31, 2009, to modify or retrofit its generating unit or
units to enable the facility to generate principally from biomass
energy by June 30, 2013, each megawatt hour of electricity
generated principally from that biomass energy shall equal, in
units of credit, the product obtained by multiplying the actual
percentage of biomass feedstock heat input used to generate such
megawatt hour by the quotient obtained by dividing the then
existing unit dollar amount used to determine a renewable energy
compliance payment as provided under division
(C)(2)(b)(B) of
section 4928.64 4928.643 of the Revised Code by the then existing
market value of one renewable energy credit, but such megawatt
hour shall not equal less than one unit of credit. The rules also
shall provide for this state a system of registering renewable
energy credits by specifying which of any generally available
registries shall be used for that purpose and not by creating a
registry. That selected system of registering renewable energy
credits shall allow a hydroelectric generating facility to be
eligible for obtaining renewable energy credits and shall allow
customer-sited projects or actions the broadest opportunities to
be eligible for obtaining renewable energy credits.
Sec. 4928.66. As used in sections 4928.66 to 4928.6660 of
the Revised Code:
(A) "Energy efficiency program" may include the following:
(1) A policy, behavior, practice, or program designed and
implemented to comply with energy efficiency requirements;
(2) A combined heat and power system placed into service or
retrofitted on or after the effective date of the amendment of
this section by S.B. 315 of the 129th general assembly, September
10, 2012;
(3) A waste energy recovery system placed into service or
retrofitted on or after September 10, 2012, except that a waste
energy recovery system described in division (A)(38)(b) of section
4928.01 of the Revised Code may be included only if it was placed
into service between January 1, 2002, and December 31, 2004;
(4) Increased use of post-consumer recycled glass by a
mercantile customer.
(B) "Energy efficiency requirements" means the savings
requirements under section 4928.661 of the Revised Code.
(C) "Lost revenue mechanism" means a mechanism to recover
either or both of the following based on kilowatt hours eliminated
as a result of compliance with energy efficiency or peak demand
reduction requirements:
(1) All lost, forgone, or eliminated distribution revenue;
(2) All lost, forgone, or eliminated distribution and
transmission revenue.
(D) "Peak demand reduction program" means a policy, practice,
behavior, or program designed to comply with peak demand reduction
requirements.
(E) "Peak demand reduction requirements" means benchmark
requirements under section 4928.662 of the Revised Code.
(F) "Regional transmission organization" means the PJM
interconnection regional transmission organization, L.L.C. or any
entity performing the functions identified in section 4928.12 of
the Revised Code within this state.
(G) "Revenue decoupling mechanism" means a rate design or
other cost recovery mechanism that provides recovery of the cost
of distribution service irrespective of distribution service
sales.
(H) "Utility cost test" means a test to determine the net
benefits of an energy efficiency or peak demand reduction program
based on the costs and benefits of the program to the electric
distribution utility, including incentive costs and excluding any
net costs incurred by the customer participating in the program.
The following apply for the purposes of a utility cost test:
(1) "Benefits" means the following resulting from the
program:
(a) Avoided supply costs of energy and demand;
(b) The reduction in transmission, distribution, generation,
or capacity costs for the periods when load is reduced.
(2) "Costs" means the electric distribution utility's costs
of implementing the policy, behavior, practice, or program,
including the incentives paid to customers, and the increased
supply costs for the periods when load is not reduced through the
operation of the policy, behavior, practice, or program.
(3) "Net benefits" means the net present value of the
difference between the benefits and costs as part of a utility
cost test.
Sec. 4928.66 4928.661. (A)(1)(a) Beginning in 2009, an
electric distribution utility shall implement energy efficiency
programs that achieve energy efficiency savings that reduce the
quantity of energy required to maintain or improve end-use or
utility system functionality. Such energy savings shall be
equivalent to at least three-tenths of one per cent of the total,
annual average, and normalized kilowatt-hour sales of the electric
distribution utility during the preceding three calendar years to
customers in this state. For a waste energy recovery or combined
heat and power 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 one and one-quarter
per cent in 2019, one and one-half per cent in 2020, one and
three-quarters per cent in 2021, two per cent each year thereafter
in 2022, two and one-quarter per cent in 2023, two and one-half
per cent in 2024, and two and three-quarters per cent in 2025,
achieving a cumulative, annual energy savings in excess of
twenty-two per cent by the end of 2025. For purposes of a waste
energy recovery or combined heat and power system, an electric
distribution utility shall not apply more than the total annual
percentage of the electric distribution utility's
industrial-customer load, relative to the electric distribution
utility's total load, to the annual energy savings requirement.
Sec. 4928.662. (b)(A) 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 Peak demand
reduction shall be measured relative to the measure of the peak
demand that is used by the applicable regional transmission
organization to establish a supplier's resource adequacy or
capacity obligation.
(B) 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.
Sec. 4928.665. (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 the energy efficiency requirements 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 the peak demand reduction requirements shall be the
average peak demand on the utility in the preceding three calendar
years, except that the public utilities commission may shall
reduce
either baseline the baselines to adjust for new economic
growth in the utility's certified territory and a downturn in the
economy. The commission shall exclude the following from the
baseline:
(A) The load and usage of customers for which reasonable
arrangements have been approved under section 4905.31 of the
Revised Code;
(B) The load and usage of customers that have opted out of
participation in energy efficiency and peak demand reduction
programs under section 4928.6630 of the Revised Code.
Sec. 4928.666. If a mercantile customer makes such existing
or new demand-response, energy efficiency, including waste energy
recovery and combined heat and power, or peak demand reduction
capability available to an electric distribution utility pursuant
to division (A)(2)(c) of this section 4928.6650 of the Revised
Code, the electric utility's baseline under division (A)(2)(a) of
this section 4928.665 of the Revised Code shall be adjusted to
exclude the effects of all such demand-response, energy
efficiency, including waste energy recovery and combined heat and
power, or peak demand reduction programs that may have existed
during the period used to establish the baseline.
Sec. 4928.667. 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.
Sec. 4928.668. (b) The public utilities commission may amend
the benchmarks set forth in division (A)(1)(a) or (b) of this
section energy efficiency and peak demand reduction requirements
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.
Sec. 4928.6610. Each electric distribution utility shall
have a compliance plan to meet the energy efficiency and peak
demand reduction requirements. Following the expiration of any
compliance plan filed with or approved by the public utilities
commission prior to the effective date of this section, each
subsequent compliance plan shall encompass at least a three-year
period.
Sec. 4928.6611. Each compliance plan approved by the public
utilities commission shall include:
(A) Recovery from customers of all program costs incurred to
implement the measures adopted for compliance with the mandates;
(B) At the choice of the electric distribution utility, for
each rate class of customer, compensation through either a lost
revenue mechanism or a revenue decoupling mechanism; and
(C) A shared savings incentive mechanism that permits the
utility to retain one-third of the after-tax net benefits
associated with the approved programs as measured by a utility
cost test, provided that such incentive mechanism shall apply to
all compliance activities, including activities described in
sections 4928.6627 and 4928.6640 of the Revised Code, but
excluding the following:
(1) Any programs adopted by the commission and described in
division (E)(1) of section 4928.58 of the Revised Code that are
not cost-effective;
(2) Compliance that exceeds energy efficiency and peak demand
requirements.
For purposes of calculating a shared savings incentive only,
the commission may modify the utility cost test to include
societal benefits that are validated by independent measurement
and verification protocols that meet the evidentiary standard as
specified by the United States supreme court in Daubert v. Merrell
Dow Pharmaceuticals, Inc., (1993)509 U.S. 579.
Sec. 4928.6612. In advance of the period during which the
electric distribution utility will be required to comply with the
energy efficiency and peak demand requirements, the public
utilities commission shall approve a compliance plan for each
electric distribution utility.
Sec. 4928.6613. (A) If, on the effective date of S.B. 58 of
the 130th general assembly, an electric distribution utility has a
compliance plan based on the energy efficiency savings and peak
demand reduction requirements under former section 4928.66 of the
Revised Code as it existed prior to the effective date of S.B. 58
of the 130th general assembly that was approved by the public
utilities commission or was filed with but not yet approved by the
commission, the electric distribution utility may, at its sole
discretion, continue or implement such compliance plan, including
any existing approved cost recovery and incentive mechanisms,
until such costs and incentives are fully recovered. All
provisions of sections 4928.66 to 4928.6660 of the Revised Code as
amended or enacted in S.B. 58 of the 130th general assembly shall
apply if the electric distribution utility continues or implements
such compliance plan.
(B) At its sole discretion, an electric distribution utility
may elect not to be subject to a cost cap under sections 4928.6615
to 4928.6623 of the Revised Code as part of a compliance plan
described in division (A) of this section.
(C) An electric distribution utility that continues or
implements a compliance plan under division (A) of this section
shall notify the public utilities commission if it elects not to
be subject to a cost cap under sections 4928.6615 to 4928.6623 of
the Revised Code while the plan is in effect.
Sec. 4928.6615. Not later than ninety days after the
effective date of S.B. 58 of the 130th general assembly, each
electric distribution utility shall have a one-time irrevocable
option, exercised solely at the discretion of that electric
distribution utility, to select one of the cost caps under section
4928.6616 of the Revised Code, which cost cap shall apply to the
electric distribution utility's compliance plans approved after
the effective date of S.B. 58 of the 130th general assembly.
Sec. 4928.6616. In order to minimize future rate impacts
associated with the energy efficiency and peak demand requirements
and as a consumer safeguard, beginning with calendar year 2014, an
electric distribution utility shall, pursuant to section 4928.6615
of the Revised Code, select one of the following cost cap methods
for compliance plans approved after the effective date of S.B. 58
of the 130th general assembly:
(A) The electric distribution utility's costs for compliance
with the energy efficiency and peak demand reduction requirements
in any year shall not exceed the cost per kilowatt hour of energy
efficiency savings and cost per kilowatt of peak demand reduction
that was incurred in calendar year 2013;
(B) The total annualized rate impact of program costs and
shared savings incentives associated with an electric distribution
utility's compliance in any year with the energy efficiency and
peak demand reduction requirements shall not exceed the program
costs approved for that electric distribution utility for the
calendar year 2013.
Sec. 4928.6617. Once the applicable cost cap under section
4928.6616 of the Revised Code is met, an electric distribution
utility, by operation of law, is relieved of the following:
(A) Making further expenditures to meet the energy efficiency
or peak demand reduction requirements for the remainder of the
calendar year;
(B) Achieving the energy efficiency and peak demand reduction
requirements for the calendar year.
Once either cost cap under section 4928.6616 of the Revised
Code is met, the electric distribution utility is deemed to have
met the energy efficiency and peak demand reduction requirements
for that calendar year.
Sec. 4928.6618. An electric distribution utility shall
notify the public utilities commission when, if ever, the cost cap
is met under section 4928.6616 of the Revised Code.
Sec. 4928.6619. Under either cost cap option described in
section 4928.6616 of the Revised Code, the public utilities
commission shall honor contractual obligations of an electric
distribution utility that existed prior to the effective date of
this section and shall ensure full recovery of costs relating to
actions taken under previously approved compliance plans.
Sec. 4928.6620. Nothing in sections 4928.6615 to 4928.6623 of
the Revised Code shall prevent the timely recovery of compliance
costs and incentives incurred by an electric distribution utility
prior to the effective date of S.B. 58 of the 130th general
assembly and costs or compensation under a lost revenue mechanism
or revenue decoupling mechanism or other approved incentive
mechanism as provided for in sections 4928.6611 or 4928.6651 of
the Revised Code.
Sec. 4928.6621. The effects of lost revenue recovery or
revenue decoupling shall not be included in the cost cap under
sections 4928.6615 to 4928.6623 of the Revised Code.
Sec. 4928.6622. (A) If the cost cap described in section
4928.6616 of the Revised Code is met, expenditure of program costs
shall be curtailed as soon as practicable but full recovery of
shared savings incentives earned on or before the date the cost
cap is met shall not be curtailed or otherwise limited.
(B) An electric distribution utility shall be permitted to
recover all compliance costs, incentives, and related items
resulting from any temporary overcompliance resulting from
sections 4928.665 to 4928.6640 of the Revised Code.
Sec. 4928.6623. Any excess compliance with the energy
efficiency and peak demand reduction requirements achieved at the
time the cost cap is met may be banked for future use.
Sec. 4928.6625. (c) Compliance with divisions (A)(1)(a) and
(b) of this section the energy efficiency and peak demand
reduction requirements shall be measured by including the effects
of all demand-response programs capabilities for mercantile
customers of the subject electric distribution utility, all waste
energy recovery systems and all combined heat and power systems,
and all such mercantile customer-sited energy efficiency,
including waste energy recovery and combined heat and power, and
peak demand reduction programs, adjusted upward by the appropriate
loss factors.
Sec. 4928.6626. Division (A)(2)(c) of this section Energy
efficiency and peak demand reduction requirements 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 and combined heat and
power, or peak demand reduction capabilities to the electric
distribution utility through a contractual commitment as part of a
reasonable arrangement submitted to the public utilities
commission pursuant to section 4905.31 of the Revised Code.
Sec. 4928.6627. (d) Programs (A) Energy efficiency and peak
demand reduction programs implemented by a utility may include
demand-response programs, smart grid investment programs, provided
that such programs are demonstrated to be cost-beneficial cost
effective, and customer-sited programs, including waste energy
recovery and combined heat and power systems, and transmission.
(B) The following shall also be counted toward meeting the
energy efficiency and peak demand reduction requirements
regardless of the intent or origin of the improvement:
(1) Transmission and distribution infrastructure improvements
that reduce line losses;
(2) Energy savings and peak demand reduction that is
achieved, in whole or in part, as a result of funding provided
from the universal service fund established by section 4928.51 of
the Revised Code.
Sec. 4928.6630. Any retail customer of an electric
distribution utility that receives service above the primary
voltage level as determined by the utility's tariff
classification, may opt out of both the opportunity and ability to
obtain direct benefits from the utility's compliance plan. Such
opt out shall extend to all of the customer's accounts,
irrespective of the size or service voltage level, which are
associated with the activities performed by the customer and which
are located on or adjacent to the customer's premises that are
served above the primary voltage level.
Sec. 4928.6631. Any retail customer electing to opt out
under sections 4928.6630 to 4928.6636 of the Revised Code shall do
so by providing a written notice of intent to opt out to the
electric distribution utility from which it receives service and
submitting a complete copy of the opt-out notice to the secretary
of the public utilities commission.
(A) The notice provided to the utility shall include the
following:
(1) A statement indicating that the customer has elected to
opt out;
(2) The effective date of the election to opt out;
(3) The customer's account numbers for each account related
to the customer's premises that receives service above the primary
voltage level as determined by the utility's tariff
classification;
(4) The physical location of the customer's load center.
(B) The opt-out notice shall include a written election to
opt out and a verified statement that affirms the following:
(1) That the customer has adopted an ongoing energy
management system that allows for identification and, in the
customer's sole discretion, implementation of options to
reasonably and cost effectively reduce the energy intensity of the
organization;
(2) That the customer's energy management system incorporates
independent measurement and verification or includes measurement
and verification protocols that meet or exceed measurement and
verification protocols that are generally accepted within the
customer's business sector.
Sec. 4928.6632. Upon a retail customer's election to opt out
under sections 4928.6630 to 4928.6636 of the Revised Code, no
account properly identified in the customer's verified notice
shall be subject to the cost recovery mechanisms established under
sections 4928.66 to 4928.6660 of the Revised Code or eligible to
participate in, or directly benefit from, programs arising from
electric distribution utility compliance plans approved by the
commission.
Sec. 4928.6633. (A) A retail customer subsequently may opt
in under section 4928.6634 of the Revised Code after a previous
election to opt out under sections 4928.6630 and 4928.6631 of the
Revised Code if both of the following apply:
(1) The customer has previously opted out for a period of at
least three consecutive calendar years.
(2) The customer gives twelve months' advance notice of its
intent to opt in to the public utilities commission and the
electric distribution utility from which it receives service.
(B) A retail customer that opts in under this section shall
maintain its opt-in status for three consecutive calendar years
before being eligible subsequently to exercise its right to opt
out after giving the utility twelve months' advance notice.
(C) A retail customer is not eligible to participate in a
mercantile customer agreement under section 4928.6650 of the
Revised Code during any period when it has an opt-out status.
Sec. 4928.6634. Any retail customer electing to opt in under
section 4928.6633 of the Revised Code shall do so by providing a
written notice of intent to opt in to the electric distribution
utility from which it receives service and submitting a complete
copy of the opt-in notice to the secretary of the public utilities
commission. The notice shall include the following:
(A) A statement indicating that the customer has elected to
opt in;
(B) The effective date of the election to opt in;
(C) The customer's account numbers for each account related
to the customer's premises that receives service above the primary
voltage level as determined by the utility's tariff
classification;
(D) The physical location of the customer's load center.
Sec. 4928.6635. If the energy management system of a retail
customer that elects to opt out under sections 4928.6630 to
4938.6633 of the Revised Code does not incorporate independent
measurement and verification protocols, the public utilities
commission may request information from the customer for the
limited purpose of determining if the customer's protocols are
reasonable compared to the protocols generally accepted within the
customer's business sector. If the commission determines that the
customer's protocols do not meet the protocols generally accepted
within the customer's business sector, the commission may provide
the customer with measurement and verification protocols that meet
the generally accepted protocols, and the customer shall either
adopt the protocols provided or adopt alternate protocols that
meet the protocols generally accepted within the customer's
business sector. However, in no event shall the commission have
any authority to supervise or regulate the customer's energy
management system or the customer's process for measurement and
verification.
Sec. 4928.6636. Sections 4928.6630 to 4928.6635 of the
Revised Code shall apply to any accounts subject to the
self-assessing purchaser option under section 5727.81 of the
Revised Code.
Sec. 4928.6640. For the purpose of measuring and determining
compliance with the energy efficiency and peak demand reduction
requirements, the public utilities commission shall count and
recognize compliance as follows:
(A) Energy savings and peak demand reduction achieved through
actions taken by customers or through utility programs that comply
with federal standards for either or both energy efficiency and
peak demand reduction requirements, including resources associated
with such savings or reduction that are recognized as capacity
resources by a regional transmission organization shall count
toward compliance with the energy efficiency and peak demand
reduction requirements.
(B) Energy savings and peak demand reduction shall be
measured on the higher of an as found or deemed basis, achieved
since 2006 and going forward. For new construction, the energy
savings and peak demand reduction shall be counted based on 2008
federal standards, provided that when new construction replaces an
existing facility, the difference in savings and reduction between
the new and replaced facility shall be counted toward meeting the
energy efficiency and peak demand reduction requirements.
(C) The commission shall count both the energy savings and
peak demand reduction on an annualized basis.
(D) The commission shall count both the energy savings and
peak demand reduction on a gross savings basis.
(E) The commission shall recognize and count energy savings
or peak demand reductions, on a British thermal unit equivalent
basis, that occur as a consequence of a compliance plan approved
by the commission, except that a British thermal unit savings
related to a reduction in gas usage or associated with switching
equipment or processes from electric usage to gas usage shall not
qualify.
(F) The commission shall recognize and count energy savings
and peak demand reductions that occur as a consequence of consumer
reductions in water usage or reductions and improvements in
wastewater treatment.
(G) The commission shall recognize and count energy savings
and peak demand reduction associated with heat rate and other
efficiency or energy intensity improvements achieved since 2006
from electric generating plants that have existed as of January 1,
2013, and are located either within an electric distribution
utility's certified territory, or owned and operated by an
affiliate of the electric distribution utility as long as the
generating plant was previously owned, in whole or in part, by an
electric distribution utility located in this state. Such energy
savings and peak demand reductions shall count as both energy
savings and peak demand reductions under this section and advanced
energy under sections 4928.64 to 4928.6410 of the Revised Code.
Payments or incentives paid to any such generating plant by an
electric distribution utility are solely within the discretion of
the utility, but shall not be recoverable as a cost of compliance
with the requirements of this section.
(H) The commission shall recognize and count all energy
savings and peak demand reduction that is physically located
within the certified territory of the electric distribution
utility and is bid into regional transmission organization
capacity auctions as energy efficiency resources and demand
response resources toward the peak demand reduction requirements.
(I) For purposes of measuring compliance, the commission
shall permit the energy efficiency and peak demand reduction
requirements to be met on an aggregated basis for electric
distribution utilities in the same holding company system.
(J) Energy savings and peak demand reduction amounts approved
by the commission shall continue to be counted toward achieving
the energy efficiency and peak demand reduction requirements as
long as the requirements remain in effect. Any energy savings
achieved in excess of the requirements may, at the discretion of
the electric distribution utility, be banked and applied toward
achieving the energy efficiency requirements in future years.
Sec. 4928.6641. An electric distribution utility annually
shall notify the public utilities commission regarding which
measurements described in section 4928.6640 of the Revised Code
will be included to determine compliance with the energy
efficiency and peak demand reduction requirements.
Sec. 4928.6642. All energy efficiency savings and peak demand
reductions, including energy efficiency savings and demand
reductions described in division (E) of section 717.25 of the
Revised Code and divisions (A) and (B) of section 1710.061 of the
Revised Code, shall be counted toward compliance with the energy
efficiency and peak demand reduction requirements, consistent with
section 4928.6640 of the Revised Code, regardless of whether the
savings or reductions may also be counted towards compliance with
sections 4928.64 to 4928.6410 of the Revised Code.
Sec. 4928.6645. The public utilities commission shall not
require that an electric distribution utility achieve energy
savings or peak demand reduction in excess of the energy
efficiency and peak demand reduction requirements.
Sec. 4928.6646. The public utilities commission shall
liberally construe sections 4928.66 to 4928.6660 of the Revised
Code in favor of counting energy savings and peak demand reduction
achieved by customers or through utility programs in order to
achieve the energy efficiency and peak demand reduction
requirements, as further specified in section 4928.6640 of the
Revised Code.
Sec. 4928.6647. The public utilities commission shall not
impose a penalty, require any shortfall to be carried forward to a
future compliance year, or compel the use of banked energy savings
as a result of noncompliance or undercompliance resulting from the
application of the cost cap under sections 4928.6615 to 4928.6623
of the Revised Code.
Sec. 4928.6650. Any mechanism designed to recover the cost
of energy efficiency, including waste energy recovery and combined
heat and power, and peak demand reduction programs under divisions
(A)(1)(a) and (b) of this section may the energy efficiency and
peak demand reduction requirements shall exempt any 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 and combined heat and power, or peak demand reduction
programs, if the provided that:
(A) The exemption in each year shall be proportionate to the
annual compliance benchmark for such year compared to the
customer's annualized demand or energy usage for the applicable
baseline period; and
(B) The public utilities commission determines that that
exemption reasonably encourages such customers to commit those
capabilities to those programs.
Sec. 4928.6651. (D) The public utilities 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 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.
Sec. 4928.6655. (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 the energy efficiency
and peak demand reduction requirements. A copy of the report shall
be provided to the consumers' counsel.
Sec. 4928.6656. (C) If Except as provided in section
4928.6647 of the Revised Code, if the public utilities commission
determines, after notice and opportunity for hearing and based
upon its report under
division (B) of this section 4928.6655 of
the Revised Code, 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
may 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.
Sec. 4928.6657. (E) The public utilities 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. 4928.6658. (e) No programs or improvements described in
division (A)(2)(d) of this section implemented or undertaken to
meet the energy efficiency and peak demand reduction requirements
shall conflict with any statewide building code adopted by the
board of building standards.
Sec. 4928.6659. The public utilities commission may require
an electric distribution utility to offer energy efficiency
resources and demand response resources into regional transmission
organization capacity auctions if:
(A) The energy efficiency resources have been installed and
the electric distribution utility can demonstrate resource
ownership, provided that savings must be adjusted for regional
transmission organization measurement and verification standards,
have an approved measurement and verification plan approved by the
regional transmission organization, and are of sufficient scale;
and
(B) The demand response resources are owned by the electric
distribution utility and will be available in the applicable
delivery year.
The commission shall not, however, require an electric
distribution utility to offer projected energy efficiency
resources or demand response resources into regional transmission
organization capacity auctions. The commission shall not have any
authority to supervise or regulate ownership or use rights of
customer-sited capabilities which are not voluntarily committed to
an electric distribution utility.
Sec. 4928.6660. The energy efficiency and peak demand
reduction requirements and any associated compliance requirements
shall not apply after the date that any federal benchmarks
requiring energy savings or peak demand reduction become effective
regardless of whether the federal benchmarks specify that they
have a preemptive effect on the energy efficiency and peak demand
reduction requirements.
Sec. 5501.311. (A) Notwithstanding sections 123.01 and
127.16 of the Revised Code the director of transportation may
lease or lease-purchase all or any part of a transportation
facility to or from one or more persons, one or more governmental
agencies, a transportation improvement district, or any
combination thereof, and may grant leases, easements, or licenses
for lands under the control of the department of transportation.
The director may adopt rules necessary to give effect to this
section.
(B) Plans and specifications for the construction of a
transportation facility under a lease or lease-purchase agreement
are subject to approval of the director and must meet or exceed
all applicable standards of the department.
(C) Any lease or lease-purchase agreement under which the
department is the lessee shall be for a period not exceeding the
then current two-year period for which appropriations have been
made by the general assembly to the department, and such agreement
may contain such other terms as the department and the other
parties thereto agree, notwithstanding any other provision of law,
including provisions that rental payments in amounts sufficient to
pay bond service charges payable during the current two-year lease
term shall be an absolute and unconditional obligation of the
department independent of all other duties under the agreement
without set-off or deduction or any other similar rights or
defenses. Any such agreement may provide for renewal of the
agreement at the end of each term for another term, not exceeding
two years, provided that no renewal shall be effective until the
effective date of an appropriation enacted by the general assembly
from which the department may lawfully pay rentals under such
agreement. Any such agreement may include, without limitation, any
agreement by the department with respect to any costs of
transportation facilities to be included prior to acquisition and
construction of such transportation facilities. Any such agreement
shall not constitute a debt or pledge of the faith and credit of
the state, or of any political subdivision of the state, and the
lessor shall have no right to have taxes or excises levied by the
general assembly, or the taxing authority of any political
subdivision of the state, for the payment of rentals thereunder.
Any such agreement shall contain a statement to that effect.
(D) A municipal corporation, township, or county may use
service payments in lieu of taxes credited to special funds or
accounts pursuant to sections 5709.43, 5709.75, and 5709.80 of the
Revised Code to provide its contribution to the cost of a
transportation facility, provided such facility was among the
purposes for which such service payments were authorized. The
contribution may be in the form of a lump sum or periodic
payments.
(E) Pursuant to the "Telecommunications Act of 1996," 110
Stat. 152, 47 U.S.C. 332 note, the director may grant a lease,
easement, or license in a transportation facility to a
telecommunications service provider for construction, placement,
or operation of a telecommunications facility. An interest granted
under this division is subject to all of the following conditions:
(1) The transportation facility is owned in fee simple or
easement by this state at the time the lease, easement, or license
is granted to the telecommunications provider.
(2) The lease, easement, or license shall be granted on a
competitive basis in accordance with policies and procedures to be
determined by the director. The policies and procedures may
include provisions for master leases for multiple sites.
(3) The telecommunications facility shall be designed to
accommodate the state's multi-agency radio communication system,
the intelligent transportation system, and the department's
communication system as the director may determine is necessary
for highway or other departmental purposes.
(4) The telecommunications facility shall be designed to
accommodate such additional telecommunications equipment as may
feasibly be co-located thereon as determined in the discretion of
the director.
(5) The telecommunications service providers awarded the
lease, easement, or license, agree to permit other
telecommunications service providers to co-locate on the
telecommunications facility, and agree to the terms and conditions
of the co-location as determined in the discretion of the
director.
(6) The director shall require indemnity agreements in favor
of the department as a condition of any lease, easement, or
license granted under this division. Each indemnity agreement
shall secure this state and its agents from liability for damages
arising out of safety hazards, zoning, and any other matter of
public interest the director considers necessary.
(7) The telecommunications service provider fully complies
with any permit issued under section 5515.01 of the Revised Code
pertaining to land that is the subject of the lease, easement, or
license.
(8) All plans and specifications shall meet with the
director's approval.
(9) Any other conditions the director determines necessary.
(F) In accordance with section 5501.031 of the Revised Code,
to further efforts to promote energy conservation and energy
efficiency, the director may grant a lease, easement, or license
in a transportation facility to a utility service provider that
has received its certificate from the Ohio power siting board or
appropriate local entity for construction, placement, or operation
of an alternative energy generating facility service provider as
defined in section sections 4928.64 to 4928.6410 of the Revised
Code. An interest granted under this division is subject to all of
the following conditions:
(1) The transportation facility is owned in fee simple or in
easement by this state at the time the lease, easement, or license
is granted to the utility service provider.
(2) The lease, easement, or license shall be granted on a
competitive basis in accordance with policies and procedures to be
determined by the director. The policies and procedures may
include provisions for master leases for multiple sites.
(3) The alternative energy generating facility shall be
designed to provide energy for the department's transportation
facilities with the potential for selling excess power on the
power grid, as the director may determine is necessary for highway
or other departmental purposes.
(4) The director shall require indemnity agreements in favor
of the department as a condition of any lease, easement, or
license granted under this division. Each indemnity agreement
shall secure this state from liability for damages arising out of
safety hazards, zoning, and any other matter of public interest
the director considers necessary.
(5) The alternative energy service provider fully complies
with any permit issued by the Ohio power siting board under
Chapter 4906. of the Revised Code and complies with section
5515.01 of the Revised Code pertaining to land that is the subject
of the lease, easement, or license.
(6) All plans and specifications shall meet with the
director's approval.
(7) Any other conditions the director determines necessary.
(G) Money the department receives under this section shall be
deposited into the state treasury to the credit of the highway
operating fund.
(H) A lease, easement, or license granted under division (E)
or (F) of this section, and any telecommunications facility or
alternative energy generating facility relating to such interest
in a transportation facility, is hereby deemed to further the
essential highway purpose of building and maintaining a safe,
energy-efficient, and accessible transportation system.
Sec. 5727.75. (A) For purposes of this section:
(1) "Qualified energy project" means an energy project
certified by the director of development services pursuant to this
section.
(2) "Energy project" means a project to provide electric
power through the construction, installation, and use of an energy
facility.
(3) "Alternative energy zone" means a county declared as such
by the board of county commissioners under division (E)(1)(b) or
(c) of this section.
(4) "Full-time equivalent employee" means the total number of
employee-hours for which compensation was paid to individuals
employed at a qualified energy project for services performed at
the project during the calendar year divided by two thousand
eighty hours.
(5) "Solar energy project" means an energy project composed
of an energy facility using solar panels to generate electricity.
(B)(1) Tangible personal property of a qualified energy
project using renewable energy resources is exempt from taxation
for tax years 2011 through 2016 if all of the following conditions
are satisfied:
(a) On or before December 31, 2015, the owner or a lessee
pursuant to a sale and leaseback transaction of the project
submits an application to the power siting board for a certificate
under section 4906.20 of the Revised Code, or if that section does
not apply, submits an application for any approval, consent,
permit, or certificate or satisfies any condition required by a
public agency or political subdivision of this state for the
construction or initial operation of an energy project.
(b) Construction or installation of the energy facility
begins on or after January 1, 2009, and before January 1, 2016.
For the purposes of this division, construction begins on the
earlier of the date of application for a certificate or other
approval or permit described in division (B)(1)(a) of this
section, or the date the contract for the construction or
installation of the energy facility is entered into.
(c) For a qualified energy project with a nameplate capacity
of five megawatts or greater, a board of county commissioners of a
county in which property of the project is located has adopted a
resolution under division (E)(1)(b) or (c) of this section to
approve the application submitted under division (E) of this
section to exempt the property located in that county from
taxation. A board's adoption of a resolution rejecting an
application or its failure to adopt a resolution approving the
application does not affect the tax-exempt status of the qualified
energy project's property that is located in another county.
(2) If tangible personal property of a qualified energy
project using renewable energy resources was exempt from taxation
under this section beginning in any of tax years 2011, 2012, 2013,
2014, 2015, or 2016, and the certification under division (E)(2)
of this section has not been revoked, the tangible personal
property of the qualified energy project is exempt from taxation
for tax year 2017 and all ensuing tax years if the property was
placed into service before January 1, 2017, as certified in the
construction progress report required under division (F)(2) of
this section. Tangible personal property that has not been placed
into service before that date is taxable property subject to
taxation. An energy project for which certification has been
revoked is ineligible for further exemption under this section.
Revocation does not affect the tax-exempt status of the project's
tangible personal property for the tax year in which revocation
occurs or any prior tax year.
(C) Tangible personal property of a qualified energy project
using clean coal technology, advanced nuclear technology, or
cogeneration technology is exempt from taxation for the first tax
year that the property would be listed for taxation and all
subsequent years if all of the following circumstances are met:
(1) The property was placed into service before January 1,
2021. Tangible personal property that has not been placed into
service before that date is taxable property subject to taxation.
(2) For such a qualified energy project with a nameplate
capacity of five megawatts or greater, a board of county
commissioners of a county in which property of the qualified
energy project is located has adopted a resolution under division
(E)(1)(b) or (c) of this section to approve the application
submitted under division (E) of this section to exempt the
property located in that county from taxation. A board's adoption
of a resolution rejecting the application or its failure to adopt
a resolution approving the application does not affect the
tax-exempt status of the qualified energy project's property that
is located in another county.
(3) The certification for the qualified energy project issued
under division (E)(2) of this section has not been revoked. An
energy project for which certification has been revoked is
ineligible for exemption under this section. Revocation does not
affect the tax-exempt status of the project's tangible personal
property for the tax year in which revocation occurs or any prior
tax year.
(D) Except as otherwise provided in this section, real
property of a qualified energy project is exempt from taxation for
any tax year for which the tangible personal property of the
qualified energy project is exempted under this section.
(E)(1)(a) A person may apply to the director of development
services for certification of an energy project as a qualified
energy project on or before the following dates:
(i) December 31, 2015, for an energy project using renewable
energy resources;
(ii) December 31, 2017, for an energy project using clean
coal technology, advanced nuclear technology, or cogeneration
technology.
(b) The director shall forward a copy of each application for
certification of an energy project with a nameplate capacity of
five megawatts or greater to the board of county commissioners of
each county in which the project is located and to each taxing
unit with territory located in each of the affected counties. Any
board that receives from the director a copy of an application
submitted under this division shall adopt a resolution approving
or rejecting the application unless it has adopted a resolution
under division (E)(1)(c) of this section. A resolution adopted
under division (E)(1)(b) or (c) of this section may require an
annual service payment to be made in addition to the service
payment required under division (G) of this section. The sum of
the service payment required in the resolution and the service
payment required under division (G) of this section shall not
exceed nine thousand dollars per megawatt of nameplate capacity
located in the county. The resolution shall specify the time and
manner in which the payments required by the resolution shall be
paid to the county treasurer. The county treasurer shall deposit
the payment to the credit of the county's general fund to be used
for any purpose for which money credited to that fund may be used.
The board shall send copies of the resolution by certified
mail to the owner of the facility and the director within thirty
days after receipt of the application, or a longer period of time
if authorized by the director.
(c) A board of county commissioners may adopt a resolution
declaring the county to be an alternative energy zone and
declaring all applications submitted to the director of
development services under this division after the adoption of the
resolution, and prior to its repeal, to be approved by the board.
All tangible personal property and real property of an energy
project with a nameplate capacity of five megawatts or greater is
taxable if it is located in a county in which the board of county
commissioners adopted a resolution rejecting the application
submitted under this division or failed to adopt a resolution
approving the application under division (E)(1)(b) or (c) of this
section.
(2) The director shall certify an energy project if all of
the following circumstances exist:
(a) The application was timely submitted.
(b) For an energy project with a nameplate capacity of five
megawatts or greater, a board of county commissioners of at least
one county in which the project is located has adopted a
resolution approving the application under division (E)(1)(b) or
(c) of this section.
(c) No portion of the project's facility was used to supply
electricity before December 31, 2009.
(3) The director shall deny a certification application if
the director determines the person has failed to comply with any
requirement under this section. The director may revoke a
certification if the director determines the person, or subsequent
owner or lessee pursuant to a sale and leaseback transaction of
the qualified energy project, has failed to comply with any
requirement under this section. Upon certification or revocation,
the director shall notify the person, owner, or lessee, the tax
commissioner, and the county auditor of a county in which the
project is located of the certification or revocation. Notice
shall be provided in a manner convenient to the director.
(F) The owner or a lessee pursuant to a sale and leaseback
transaction of a qualified energy project shall do each of the
following:
(1) Comply with all applicable regulations;
(2) File with the director of development services a
certified construction progress report before the first day of
March of each year during the energy facility's construction or
installation indicating the percentage of the project completed,
and the project's nameplate capacity, as of the preceding
thirty-first day of December. Unless otherwise instructed by the
director of development services, the owner or lessee of an energy
project shall file a report with the director on or before the
first day of March each year after completion of the energy
facility's construction or installation indicating the project's
nameplate capacity as of the preceding thirty-first day of
December. Not later than sixty days after June 17, 2010, the owner
or lessee of an energy project, the construction of which was
completed before June 17, 2010, shall file a certificate
indicating the project's nameplate capacity.
(3) File with the director of development services, in a
manner prescribed by the director, a report of the total number of
full-time equivalent employees, and the total number of full-time
equivalent employees domiciled in Ohio, who are employed in the
construction or installation of the energy facility;
(4) For energy projects with a nameplate capacity of five
megawatts or greater, repair all roads, bridges, and culverts
affected by construction as reasonably required to restore them to
their preconstruction condition, as determined by the county
engineer in consultation with the local jurisdiction responsible
for the roads, bridges, and culverts. In the event that the county
engineer deems any road, bridge, or culvert to be inadequate to
support the construction or decommissioning of the energy
facility, the road, bridge, or culvert shall be rebuilt or
reinforced to the specifications established by the county
engineer prior to the construction or decommissioning of the
facility. The owner or lessee of the facility shall post a bond in
an amount established by the county engineer and to be held by the
board of county commissioners to ensure funding for repairs of
roads, bridges, and culverts affected during the construction. The
bond shall be released by the board not later than one year after
the date the repairs are completed. The energy facility owner or
lessee pursuant to a sale and leaseback transaction shall post a
bond, as may be required by the Ohio power siting board in the
certificate authorizing commencement of construction issued
pursuant to section 4906.10 of the Revised Code, to ensure funding
for repairs to roads, bridges, and culverts resulting from
decommissioning of the facility. The energy facility owner or
lessee and the county engineer may enter into an agreement
regarding specific transportation plans, reinforcements,
modifications, use and repair of roads, financial security to be
provided, and any other relevant issue.
(5) Provide or facilitate training for fire and emergency
responders for response to emergency situations related to the
energy project and, for energy projects with a nameplate capacity
of five megawatts or greater, at the person's expense, equip the
fire and emergency responders with proper equipment as reasonably
required to enable them to respond to such emergency situations;
(6) Maintain a ratio of Ohio-domiciled full-time equivalent
employees employed in the construction or installation of the
energy project to total full-time equivalent employees employed in
the construction or installation of the energy project of not less
than eighty per cent in the case of a solar energy project, and
not less than fifty per cent in the case of any other energy
project. In the case of an energy project for which certification
from the power siting board is required under section 4906.20 of
the Revised Code, the number of full-time equivalent employees
employed in the construction or installation of the energy project
equals the number actually employed or the number projected to be
employed in the certificate application, if such projection is
required under regulations adopted pursuant to section 4906.03 of
the Revised Code, whichever is greater. For all other energy
projects, the number of full-time equivalent employees employed in
the construction or installation of the energy project equals the
number actually employed or the number projected to be employed by
the director of development services, whichever is greater. To
estimate the number of employees to be employed in the
construction or installation of an energy project, the director
shall use a generally accepted job-estimating model in use for
renewable energy projects, including but not limited to the job
and economic development impact model. The director may adjust an
estimate produced by a model to account for variables not
accounted for by the model.
(7) For energy projects with a nameplate capacity in excess
of two megawatts, establish a relationship with a member of the
university system of Ohio as defined in section 3345.011 of the
Revised Code or with a person offering an apprenticeship program
registered with the employment and training administration within
the United States department of labor or with the apprenticeship
council created by section 4139.02 of the Revised Code, to educate
and train individuals for careers in the wind or solar energy
industry. The relationship may include endowments, cooperative
programs, internships, apprenticeships, research and development
projects, and curriculum development.
(8) Offer to sell power or renewable energy credits from the
energy project to electric distribution utilities or electric
service companies subject to renewable energy resource
requirements under section 4928.64 4928.641 of the Revised Code
that have issued requests for proposal for such power or renewable
energy credits. If no electric distribution utility or electric
service company issues a request for proposal on or before
December 31, 2010, or accepts an offer for power or renewable
energy credits within forty-five days after the offer is
submitted, power or renewable energy credits from the energy
project may be sold to other persons. Division (F)(8) of this
section does not apply if:
(a) The owner or lessee is a rural electric company or a
municipal power agency as defined in section 3734.058 of the
Revised Code.
(b) The owner or lessee is a person that, before completion
of the energy project, contracted for the sale of power or
renewable energy credits with a rural electric company or a
municipal power agency.
(c) The owner or lessee contracts for the sale of power or
renewable energy credits from the energy project before June 17,
2010.
(9) Make annual service payments as required by division (G)
of this section and as may be required in a resolution adopted by
a board of county commissioners under division (E) of this
section.
(G) The owner or a lessee pursuant to a sale and leaseback
transaction of a qualified energy project shall make annual
service payments in lieu of taxes to the county treasurer on or
before the final dates for payments of taxes on public utility
personal property on the real and public utility personal property
tax list for each tax year for which property of the energy
project is exempt from taxation under this section. The county
treasurer shall allocate the payment on the basis of the project's
physical location. Upon receipt of a payment, or if timely payment
has not been received, the county treasurer shall certify such
receipt or non-receipt to the director of development services and
tax commissioner in a form determined by the director and
commissioner, respectively. Each payment shall be in the following
amount:
(1) In the case of a solar energy project, seven thousand
dollars per megawatt of nameplate capacity located in the county
as of December 31, 2010, for tax year 2011, as of December 31,
2011, for tax year 2012, as of December 31, 2012, for tax year
2013, as of December 31, 2013, for tax year 2014, as of December
31, 2014, for tax year 2015, as of December 31, 2015, for tax year
2016, and as of December 31, 2016, for tax year 2017 and each tax
year thereafter;
(2) In the case of any other energy project using renewable
energy resources, the following:
(a) If the project maintains during the construction or
installation of the energy facility a ratio of Ohio-domiciled
full-time equivalent employees to total full-time equivalent
employees of not less than seventy-five per cent, six thousand
dollars per megawatt of nameplate capacity located in the county
as of the thirty-first day of December of the preceding tax year;
(b) If the project maintains during the construction or
installation of the energy facility a ratio of Ohio-domiciled
full-time equivalent employees to total full-time equivalent
employees of less than seventy-five per cent but not less than
sixty per cent, seven thousand dollars per megawatt of nameplate
capacity located in the county as of the thirty-first day of
December of the preceding tax year;
(c) If the project maintains during the construction or
installation of the energy facility a ratio of Ohio-domiciled
full-time equivalent employees to total full-time equivalent
employees of less than sixty per cent but not less than fifty per
cent, eight thousand dollars per megawatt of nameplate capacity
located in the county as of the thirty-first day of December of
the preceding tax year.
(3) In the case of an energy project using clean coal
technology, advanced nuclear technology, or cogeneration
technology, the following:
(a) If the project maintains during the construction or
installation of the energy facility a ratio of Ohio-domiciled
full-time equivalent employees to total full-time equivalent
employees of not less than seventy-five per cent, six thousand
dollars per megawatt of nameplate capacity located in the county
as of the thirty-first day of December of the preceding tax year;
(b) If the project maintains during the construction or
installation of the energy facility a ratio of Ohio-domiciled
full-time equivalent employees to total full-time equivalent
employees of less than seventy-five per cent but not less than
sixty per cent, seven thousand dollars per megawatt of nameplate
capacity located in the county as of the thirty-first day of
December of the preceding tax year;
(c) If the project maintains during the construction or
installation of the energy facility a ratio of Ohio-domiciled
full-time equivalent employees to total full-time equivalent
employees of less than sixty per cent but not less than fifty per
cent, eight thousand dollars per megawatt of nameplate capacity
located in the county as of the thirty-first day of December of
the preceding tax year.
(H) The director of development services in consultation with
the tax commissioner shall adopt rules pursuant to Chapter 119. of
the Revised Code to implement and enforce this section.
Section 2. That existing sections 717.25, 1710.061, 3706.25,
4905.31, 4928.01, 4928.143, 4928.20, 4928.61, 4928.64, 4928.65,
4928.66, 5501.311, and 5727.75 of the Revised Code are hereby
repealed.
Section 3. The act recodifies section 4928.64 of the Revised
Code by subdividing it into the sections identified in the
following table. The left-hand column identifies the sections that
result from the recodification, and the right-hand column
indicates the source of the resulting section in section 4928.64
of the Revised Code before its recodification. Except insofar as
amendments are indicated in the resulting sections, the resulting
sections are a continuation of, and are to be substituted in a
continuing way for, the law as it existed in section 4928.64 of
the Revised Code before its recodification.
Sections resulting from the recodification |
|
Source in former R.C. 4928.64 |
|
|
4928.641 |
|
4928.64(B) |
|
|
4928.642 |
|
4928.64(C)(1) |
|
|
4928.643 |
|
4928.64(C)(2) |
|
|
4928.644 |
|
4928.64(C)(3) |
|
|
4928.645 |
|
4928.64(C)(4) |
|
|
4928.646 |
|
4928.64(C)(5) |
|
|
4928.647 |
|
4928.64(D)(1) |
|
|
4928.648 |
|
4928.64(D)(2) |
|
|
4928.649 |
|
4928.64(E) |
|
| Section 4928.64 of the Revised Code, as amended by this act,
contains only division (A) of that section as it existed prior to
the effective date of the amendments to that section, as well as
the amendments made to that section.
Section 4. The act recodifies section 4928.66 of the Revised
Code by subdividing it into the sections identified in the
following table. The left-hand column identifies the sections that
result from the recodification, and the right-hand column
indicates the source of the resulting section in section 4928.66
of the Revised Code before its recodification. Except insofar as
amendments are indicated in the resulting sections, the resulting
sections are a continuation of, and are to be substituted in a
continuing way for, the law as it existed in section 4928.64 of
the Revised Code before its recodification.
Sections resulting from the recodification |
|
Source in former R.C. 4928.66 |
|
|
4928.661 |
|
4928.66(A)(1)(a), 1st, 3rd, 4th, and 5th sentences. |
|
|
4928.662 |
|
4928.66(A)(1)(b) |
|
|
4928.665 |
|
4928.66(A)(2)(a) |
|
|
4928.666 |
|
4928.66(A)(2)(c), 3rd sentence. |
|
|
4928.667 |
|
4928.66(A)(2)(c), 4th sentence. |
|
|
4928.668 |
|
4928.66(A)(2)(b) |
|
|
4928.6625 |
|
4928.66(A)(2)(c), 1st sentence. |
|
|
4928.6626 |
|
4928.66(A)(2)(d), 2nd sentence. |
|
|
4928.6627 |
|
4928.66(A)(2)(d), 1st sentence. |
|
|
4928.6650 |
|
4928.66(A)(2)(c), 2nd sentence. |
|
|
4928.6651 |
|
4928.66(D) |
|
|
4928.6655 |
|
4928.66(B) |
|
|
4928.6656 |
|
4928.66(C) |
|
|
4928.6657 |
|
4928.66(E) |
|
|
4928.6658 |
|
4928.66(A)(2)(e) |
|
|
The source of new section 4928.66 of the Revised Code is
division (A)(1)(a)(second sentence) of former section 4928.66 of
the Revised Code.
Section 5. To the extent that the Public Utilities Commission
may have adopted, prior to the effective date of S.B. 58 of the
130th General Assembly, methods to measure alternative energy,
energy efficiency, and peak demand reduction compliance that are
different or inconsistent with the requirements of former sections
4928.64 and 4928.66 of the Revised Code as they existed prior to
the effective date of S.B. 58 of the 130th General Assembly, such
difference or inconsistency shall, for purposes of addressing all
cases or controversies, be resolved by the Commission and the
Supreme Court in favor of the measurement method that maximizes
the amount of compliance during the period in question.
|