Chapter 122:23-1 General Provisions

122:23-1-01 Definitions and rules of interpretation.

(A) As used in rules 122:23-1-01 to 122:23-1-10 of the Administrative Code:

(1) "Applicant" means a person who applies to the director for certification of an energy project as a qualified energy project. As used in this chapter of the Administrative Code, "applicant" also includes a person who receives a certification of an energy project as a qualified energy project and any subsequent owner or lessee pursuant to a sale and leaseback transaction of the qualified energy project.

(2) "Application for certification" means an application for certification of an energy project as a qualified energy project as provided in section 5727.75 of the Revised Code.

(3) "Authorized representative" means an officer or other individual who has the actual authority to sign for, and make representations on behalf of, the applicant.

(4) "Business day" means any day other than Saturday, Sunday or a holiday recognized by the state of Ohio on which the offices of the development services agency are not open for business.

(5) "Commissioner" means the commissioner of the Ohio department of taxation.

(6) "Director" means the director of the Ohio development services agency.

(7) "Energy facility" has the meaning given to that term in division (P) of section 5727.01 of the Revised Code.

"Energy facility" includes a substation to which the generating equipment is connected if the person who owns the interconnected wind turbines, solar panels, or other tangible property used to generate electricity also owns such substation.

(8) "In service" means, with respect to any energy project, capable of producing electricity.

(9) "Ohio-domiciled" means a person's permanent residence is in the state of Ohio.

(B) In the case of a county that has adopted a charter under Article X, Ohio Constitution, references to "board of county commissioners" and "resolution" will be interpreted in accordance with section 1.62 of the Revised Code.

Replaces: 122:23-1-01, 122:23-1-02

Effective: 10/30/2017
Five Year Review (FYR) Dates: 10/30/2022
Promulgated Under: 119.03
Statutory Authority: 5727.75(H)
Rule Amplifies: 5727.75
Prior Effective Dates: 1/10/2011

122:23-1-02 Application and certification.

(A) An application for certification shall be in the form and contain the substance required by the director. To be considered, the application for certification must be complete, accompanied by all required supporting documentation and submitted by an authorized representative of the applicant. An application for certification must be submitted to the director no later than the close of business on the last day for application as provided in division (E) of section 5727.75 of the Revised Code. If an application for certification is incomplete, the director shall notify the applicant and identify in reasonable detail the information or supporting documentation necessary to complete the application. The applicant shall have thirty days after notice from the director to cure any deficiencies in the application. If such deficiencies are not cured within the thirty day cure period, the application for certification will be considered denied. The applicant may submit a new application for certification if the statutory deadline for submitting an application for certification has not passed.

(B) An application for certification must identify the location where any tangible personal property or real property that is part of the energy project will be located including: each county in which any real or tangible personal property will be located, the taxing units in which any real or tangible personal property will be located, and the permanent parcel numbers for parcels within each county on which any part of the energy project will be located. An application for certification must also provide a mailing address for the board of county commissioners of each county and for the taxing authority of each taxing unit listed in the application.

(C) To satisfy the requirement for certification provided in division (E)(3) of section 5727.75 of the Revised Code, each applicant for certification of an energy project as a qualified energy project must submit a certification by an authorized representative of the applicant that no portion of the energy facility was used to supply electricity before December 31, 2009. "Supply electricity" has the same meaning as "supplying of electricity" set forth in division (A) of section 5727.02 of the Revised Code.

(D) A board of county commissioners to which an application for certification is forwarded for review as provided in division (E)(1)(b) of section 5727.75 of the Revised Code may request an extension of time from the director to consider a resolution approving or rejecting the application. Any such request shall be made in writing to the director. The board shall be entitled to receive, and the director shall grant, one extension of thirty days. The board may request a further extension of time to consider a resolution approving or rejecting the application, but any further extension may be granted or denied in the director's discretion.

(E) If, within thirty days after the director forwards an application for certification to boards of county commissioners for the affected counties (or within any extension of that time granted by the director upon request of a county or otherwise), no board of county commissioners for a county in which any part of the energy project is located provides a resolution approving the application for certification or approving an alternative energy zone in which a part of the energy project is located, the director shall deny the application for certification. The director shall notify the applicant in writing of such denial and provide a copy of the denial notice to the commissioner and the board of county commissioners for each county in which any part of the energy project is located. If the statutory deadline for submitting an application for certification has not passed, the applicant may resubmit its application for certification.

(F) The director shall review each application for certification and determine if the application and supporting documentation satisfies the requirements of division (E)(2) of section 5727.75 of the Revised Code for certification of the energy project as a qualified energy project. The director shall notify the applicant in writing of such determination. For any energy project determined to be a qualified energy project, the director shall issue a certificate in the form determined by the director, in consultation with the commissioner. The certificate shall identify the applicant, each county in which any part of the qualified energy project is located, and the proposed nameplate capacity of the qualified energy project. The director shall provide to the commissioner, the board of county commissioners, auditor and treasurer of each county in which any part of the qualified energy project is located, and to the applicable taxing units in which any real or tangible personal property is located, a copy of the qualified energy project certificate issued by the director to the applicant.

Replaces: 122:23-1-03, 122:23-1-04

Effective: 10/30/2017
Five Year Review (FYR) Dates: 10/30/2022
Promulgated Under: 119.03
Statutory Authority: 5727.75(H)
Rule Amplifies: 5727.75
Prior Effective Dates: 1/10/2011

122:23-1-03 Construction reporting.

(A) The applicant shall file with the director a construction progress report in the form and containing the substance required by the director from time to time. A construction progress report must be received by the director not later than the close of business on March first each year following any calendar year during which any construction or installation of the energy project occurred and was not completed by December thirty-first. A construction progress report will report on any construction activity on the energy project during the calendar year ending on December thirty-first prior to the reporting deadline. In each construction progress report, the applicant will provide information about the status of construction of the energy project during the reporting period, including among other things a general description of the construction work undertaken and work remaining at the end of the reporting period to complete the energy project. The work remaining as of December thirty-first of the reporting period shall be expressed as a percentage of the total project.

(B) The applicant shall file with the director a construction completion report within ninety days after the energy project is placed in service. The construction completion report shall be in the form and contain the substance required by the director from time to time. The applicant shall identify the date on which construction is completed and the energy project is placed in service.

(C) The construction completion report must include an appendix listing each item of tangible personal property of a qualified energy project to be exempt from taxation, the cost of each such item of tangible personal property, and the county in which the item of tangible personal property is located. For purposes of this provision, "cost" means the cost reflected on the applicant's books and records, including all expenses incurred to put the property in place and in use. The applicant shall also include in the appendix a final complete list of permanent parcel numbers for the parcels of real property on which any part of the qualified energy project is located and sufficient detail about the location of tangible personal property constituting the energy facility and the buildings, structures, improvements, or fixtures exclusively used to house, support, or stabilize the tangible personal property constituting the energy facility or that are otherwise necessary for the operation of that property so that the county auditor can determine the boundaries of the real property that may be entitled to exemption from taxation consistent with the definition of energy facility in division (P) of section 5727.01 of the Revised Code.

(D) Along with the construction completion report, the applicant shall submit the following documentation:

(1) To evidence the date on which construction or installation of the energy facility begins, (a)(i) documentation from the power siting board (which may include a copy of a case docket) showing the date on which an application for a certificate under section 4906.20 of the Revised Code was filed for the project with the power siting board or, (ii) if such a certificate is not required by law, documentation showing the date on which an application for approval, consent, permit, or certificate for construction or operation of the project is first filed with any applicable authority, and (b), if the applicant has entered into a construction or installation contract on or before the application date, a copy of the contract for construction or installation of the energy facility (excluding any exhibits, appendices and attachments to the contract). Construction or installation of an energy facility begins on the earlier of the date of the application for a power siting board certificate or a construction permit, whichever applies, or the date of the construction or installation contract.

(2) To evidence applicant's compliance with all applicable regulations, a certification by an authorized representative of the applicant that all licenses, permits, and other approvals required for the construction and operation of the energy project have been obtained or will be obtained as and when required, a list of all licenses, permits, and other approvals required for the construction and operation of the energy project, and copies of each such license, permit, or other approval that has been obtained by the applicant as of the reporting date.

(3) A list of fire and emergency responders for each jurisdiction in which any part of the energy project is located and a certificate from such fire and emergency responders to the director confirming that the applicant has consulted with the fire and emergency responders in developing a training plan for response to emergency situations related to the energy project. If the applicant develops a joint training plan with multiple fire and emergency responders, one or more fire or emergency responders may be designated by the training plan to provide the certificate required by this paragraph.

(4) A certification of an authorized representative of the applicant that it has complied with the provisions of division (F)(8) of section 5727.75 of the Revised Code regarding offers 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 of the Revised Code. This requirement will not apply to any application for certification filed after the expiration of all requests for proposal issued by electric distribution utilities and electric service companies on or before December 31, 2010 to purchase power or renewable energy credits.

(5) For a qualified energy project with a nameplate capacity greater than two megawatts, evidence that the applicant has established a relationship with a member of the university system or person offering an apprenticeship program that complies with the provisions of division (F)(7) of section 5727.75 of the Revised Code to support workforce training. Such a relationship may be evidenced by an agreement with the institution or apprenticeship program or other written description of the relationship acknowledged by the institution or apprenticeship program.

(6) For a qualified energy project with a nameplate capacity greater than five megawatts, a certificate of the county engineer for each county in which any part of the energy project is located to the effect that the applicant has complied with, or has entered into an agreement with the county to comply with, the provisions of division (F)(4) of section 5727.75 of the Revised Code regarding the repair, rebuilding, and reinforcement of roads, bridges, and culverts. If the applicant has an agreement with the county engineer, the county engineer must also certify to the director that the applicant is not then in default of any of its obligations under such agreement. The applicant must also provide a copy of each agreement it has with any county engineer related to the energy project and a copy of any bond provided to a county engineer or required by the power siting board related to the repair, rebuilding, and reinforcement of roads, bridges, and culverts affected by the energy project.

(7) For a qualified energy project with a nameplate capacity greater than five megawatts, a certificate of fire and emergency responders for each jurisdiction in which any part of the energy project is located to the effect that the applicant has equipped, or has developed in consultation with such fire and emergency responders a plan for equipping, such fire and emergency responders with proper equipment as reasonably required to enable them to respond to emergency situations related to the energy project. If the applicant develops a plan for equipping multiple fire and emergency responders with shared equipment, one or more fire or emergency responders may be designated by the equipment plan to provide the certificate required by this paragraph.

Replaces: 122:23-1-03, 122:23-1-05

Effective: 10/30/2017
Five Year Review (FYR) Dates: 10/30/2022
Promulgated Under: 119.03
Statutory Authority: 5727.75(H)
Rule Amplifies: 5727.75
Prior Effective Dates: 1/10/2011

122:23-1-04 Employment report.

(A) The construction progress report must include an employment report including the number of days during the reporting period that construction was in progress, the total number of hours worked by employees employed in the construction or installation of the energy project during the reporting period, and the total number of hours worked by Ohio-domiciled employees employed in the construction or installation of the energy project during the reporting period.

(B) The construction completion report must include a list of individuals employed in the construction or installation of the energy project during the construction period, their residence addresses, and the number of hours worked by each employee employed in the construction or installation of the energy project. Each employee for which hours of employment are reported should be designated either as an Ohio-domiciled employee or an employee domiciled outside Ohio. The applicant shall also provide a signed certificate in the form prescribed by the director from each employee with an Ohio address that he or she is Ohio-domiciled.

(C) The applicant shall retain, and cause any contractor involved in the project to retain, in its records for a period of at least three years after the energy project is placed in service the employee certificates of Ohio domicile together with evidence of each such employee's Ohio domicile. Evidence of Ohio domicile may include a copy of an unexpired driver's license issued by the state of Ohio to the employee showing an Ohio residence address, an Ohio voter registration card for the employee dated during the construction period, a utility bill dated during the construction period addressed to the employee at his or her Ohio residence address, or such other documentation as the director determines reasonably demonstrates that the employee's permanent residence is in the state of Ohio. Upon request of the director, the applicant shall provide evidence of Ohio domicile for each employee designated as Ohio-domiciled.

Replaces: 122:23-1-05

Effective: 10/30/2017
Five Year Review (FYR) Dates: 10/30/2022
Promulgated Under: 119.03
Statutory Authority: 5727.75(H)
Rule Amplifies: 5727.75
Prior Effective Dates: 1/10/2011

122:23-1-05 Certificate of verification.

(A) Following review and acceptance of the applicant's submitted construction completion report, the director shall issue a certificate of verification confirming compliance with the requirements of section 5727.75 of the Revised Code. The certificate shall identify the date the qualified energy project is placed into service, provide the Ohio-domiciled employee ratio, and describe the tangible personal property and real property to be exempt from taxation in sufficient detail that the commissioner and county auditor can determine the personal property subject to exemption and the boundaries of the real property including buildings, structures, and fixtures that are entitled to exemption from taxation. The director shall provide a copy of the certificate of verification to the applicant, the commissioner, the board of county commissioners, auditor and treasurer of each county in which any part of the qualified energy project is located, and to the applicable taxing units in which any real or tangible personal property is located.

(B) The tangible personal property tax exemption granted to a qualified energy project is effective as of the tax year immediately following the calendar year in which the property is placed into service, as identified on the certificate of verification. In accordance with division (G) of section 5727.75 of the Revised Code, the requirement to make a payment in lieu of taxes begins with the tax year in which the exemption is effective.

(C) Upon receipt of the certificate of verification from the director, the county auditor of each county for which an exemption was approved shall place the real property described in the certification on the exempt list and remit or refund taxes for such tax years as are necessary to give effect to the qualified energy property certificate.

Replaces: 122:23-1-04

Effective: 10/30/2017
Five Year Review (FYR) Dates: 10/30/2022
Promulgated Under: 119.03
Statutory Authority: 5727.75(H)
Rule Amplifies: 5727.75
Prior Effective Dates: 1/10/2011

122:23-1-06 Continuing compliance with requirements for exemption; service payments.

(A) The applicant shall file annual nameplate capacity reports which shall be in the form and contain the substance required by the director from time to time. An annual nameplate capacity report must be signed by an authorized representative of the applicant and received by the director not later than the close of business on March first each year during which an exemption under section 5727.75 of the Revised Code is in effect for the energy project. The reporting period for each annual nameplate capacity report shall be the calendar year ending December thirty-first prior to the March first reporting deadline.

(B) To satisfy the requirements provided in section 5727.75 of the Revised Code for the qualified energy project exemption to continue, each applicant that receives such an exemption must certify to the director with its annual nameplate capacity report, and provide supporting documentation if requested, the following:

(1) All licenses, permits, and other approvals required for the operation of the energy project have been obtained (or renewed) or will be obtained (or renewed) as and when required.

(2) Applicant has made annual service payments as required by division (G) of section 5727.75 of the Revised Code and, if applicable, any additional payments required by resolution of a board of county commissioners as provided in division (E)(1)(b) of section 5727.75 of the Revised Code.

(3) Applicant is not in default of any obligation under any agreement which the applicant has entered into with a county engineer regarding the repair, rebuilding, and reinforcement of roads, bridges, and culverts that continues in effect beyond the completion of construction of the energy project.

(4) If the applicant has developed a training plan for fire and emergency responders that continues beyond the completion of construction of the energy project, applicant is not in default of any such training plan.

(5) If the applicant has developed a plan for equipping fire and emergency responder that is not fulfilled prior to, or that otherwise continues beyond, the completion of construction of the energy project, applicant is not in default of any such plan.

(6) If applicable, applicant is not in default of any obligation under any agreement with a member of the university system of Ohio or apprenticeship program to support workforce training as required by division (F)(7) of section 5727.75 of the Revised Code.

(C) Upon receipt of the nameplate capacity report, the director shall determine the annual service payment amount in lieu of tax to be made by the owner, or lessee pursuant to a sale and leaseback transaction, of a qualified energy project according to the provisions of division (G) of section 5727.75 of the Revised Code. The director shall send a copy of such determination to the applicant, the commissioner, and the auditor and treasurer of each county in which any part of the qualified energy project is located.

(D) The director shall consult with the commissioner and publish on the development services agency website a form of receipt to be used by county treasurers to certify receipt or non-receipt of annual service payments.

(E) If ownership of the qualified energy project changes during the reporting period, the applicant shall identify the transferee of the energy project and provide the date on which ownership changed, the nature of the transaction in which property comprising the energy project was transferred, a description of the property transferred, and a letter signed by the transferee agreeing to comply with the provisions of section 5727.75 of the Revised Code. The director shall review the information submitted and provide notice of the transfer to the applicant, the transferee, the commissioner and the board of county commissioners, auditor and treasurer of each county in which any part of the qualified energy project is located.

(F) If the applicant decommissioned any part of the energy project during the reporting period covered by an annual nameplate capacity report, the applicant shall include with the nameplate capacity report an appendix listing each item of tangible personal property of the qualified energy project decommissioned during the reporting period and for each such item of tangible personal property the original cost and year it was placed in service. If the decommissioning of any item of equipment is temporary, the applicant shall report the duration of the decommissioning. For purposes of this provision, "cost" means the cost reflected on the applicant's books and records, including all expenses incurred to put the property in place and in use. The applicant shall also include in the appendix a list of permanent parcel numbers for real property on which the decommissioned property was located and indicate for each permanent parcel number whether any tangible property that is part of the qualified energy project remains on such real property. The applicant shall certify to the director that any decommissioning was undertaken in a manner that complied with all applicable regulations.

(G) At any time during normal business hours and upon not less than five business days' written notice, the director may conduct site visits at the qualified energy project location. Applicant shall make available, or cause any contractor involved in the qualified energy project to make available, at the request of the director, its agents or other appropriate state agencies or officials, all books and records regarding the qualified energy project.

Replaces: 122:23-1-06, 122:23-1-07

Effective: 10/30/2017
Five Year Review (FYR) Dates: 10/30/2022
Promulgated Under: 119.03
Statutory Authority: 5727.75(H)
Rule Amplifies: 5727.75
Prior Effective Dates: 1/10/2011

122:23-1-07 Signature; failure to report; trade secrets.

(A) The application for certification and each report submitted by an applicant pursuant to rules 122:23-1-01 to 122:23-1-10 of the Administrative Code shall include a certification signed by an authorized representative of the applicant that the information contained in the application or report is true, correct, and complete.

(B) If the applicant fails to submit to the director any report as and when the report is due, or if the applicant submits a report that omits any required information, the applicant will not be in compliance with the requirements of section 5727.75 of the Revised Code. The director will notify the applicant in writing of any failure to file a report as required. If the applicant does not file the report or the omitted information within thirty days after the date of the director's notice, the director may initiate the process to revoke the certification of the applicant's qualified energy project as provided in rule 122:23-1-08 of the Administrative Code. If information omitted from a report is a certificate to be provided by a third party, including a public official or public authority, and the certificate is omitted because the third party has not responded to a timely request for such information for a reason other than the applicant's noncompliance with requirements related to the certificate, the director will not consider the report to be delinquent if the applicant includes in the report a copy of the request made to the third party for the certificate, pursues the request for the certificate diligently, and provides a copy of the certificate to the director promptly after it is received.

(C) Information that qualifies as a trade secret under Ohio law may be exempt from release as a public record. State law generally requires that documents containing both trade secret information and non-confidential information be disclosed with trade secret information redacted. To assist the director in identifying trade secret information submitted to the director as part of an application for certification or otherwise in connection with the certification of a qualified energy project, the applicant should mark trade secret information by placing an asterisk before and after each line containing trade secret information and underlining the information considered to be a trade secret.

Replaces: 122:23-1-08

Effective: 10/30/2017
Five Year Review (FYR) Dates: 10/30/2022
Promulgated Under: 119.03
Statutory Authority: 5727.75(H)
Rule Amplifies: 5727.75
Prior Effective Dates: 1/10/2011

122:23-1-08 Revocation of certification by the director.

(A) The director may revoke a certification of a qualified energy project if the director determines that the applicant, or a subsequent owner or lessee pursuant to a sale and leaseback transaction of the qualified energy project, fails to comply with any requirement of section 5727.75 of the Revised Code. Failure by the applicant to comply with any regulation applicable to the qualified energy project or its certification will be a failure to comply with a requirement of section 5727.75 of the Revised Code. The director may become aware of circumstances suggesting noncompliance as a result of the director's review of applicant reporting, complaints from third parties or otherwise. The director may investigate any circumstance suggesting noncompliance, which shall include written notice to the applicant and an opportunity for the applicant to respond. The director's notice shall describe in reasonable detail (taking into account information available to the director) the nature of the alleged noncompliance. The applicant shall have thirty days to respond to the director's notice.

(B) In the event the applicant admits or the director otherwise determines that the applicant is not in compliance with any requirement of section 5727.75 of the Revised Code, the director shall notify the applicant of the director's intention to revoke the certification of the applicant's qualified energy project. The director shall deliver any notice of intention to revoke in writing to the applicant at the address provided for the applicant in its filing most recently made with the director and provide a copy of the notice to the tax commissioner. The director will describe the basis for revocation in reasonable detail in the notice of intention to revoke. The applicant shall have an opportunity to cure or otherwise resolve the noncompliance in the manner and in accordance with any applicable cure period. If no specific cure period otherwise applies, the director shall allow the applicant sixty days to resolve the noncompliance.

(C) Following the end of any applicable cure period and upon review of any documentation provided by the applicant, the director shall notify the applicant in writing of the director's final determination and provide a copy of the final determination to the commissioner, to the auditor and treasurer of each county in which any part of the qualified energy project is located, and to the taxing authority of each taxing unit within an affected county. Promptly after receipt of such notice, the county auditor shall restore the real property to the tax list as of the year immediately following the tax year in which the revocation is issued.

Replaces: 122:23-1-09

Effective: 10/30/2017
Five Year Review (FYR) Dates: 10/30/2022
Promulgated Under: 119.03
Statutory Authority: 5727.75(H)
Rule Amplifies: 5727.75
Prior Effective Dates: 1/10/2011

122:23-1-09 Delegation of functions.

Except as provided in this rule, each and any of the powers and duties of the director under this chapter may be performed by the assistant director of development or such other officers and employees of the department of development as may be designated in writing by the director or such assistant director. Any such designation under this chapter shall continue to be effective unless and until it is terminated or superseded in writing, notwithstanding any succession in the office of director or assistant director. Any reference in this chapter to the director includes the assistant director or such other designated officers or employees.

Replaces: 122:23-1-10

Effective: 10/30/2017
Five Year Review (FYR) Dates: 10/30/2022
Promulgated Under: 119.03
Statutory Authority: 5727.75(H)
Rule Amplifies: 5727.75
Prior Effective Dates: 1/10/2011

122:23-1-10 Severability.

If any clause, provision or application of any rule in this chapter of the Administrative Code is determined to be invalid or unenforceable, such determination shall not affect the remainder of such rule, other application of the rule, or application of other rules of this chapter, which shall be applied as if the invalid or unenforceable portion, application or references to the invalid or unenforceable portion did not exist.

Replaces: 122:23-1-11

Effective: 10/30/2017
Five Year Review (FYR) Dates: 10/30/2022
Promulgated Under: 119.03
Statutory Authority: 5727.75(H)
Rule Amplifies: 5727.75
Prior Effective Dates: 1/10/2011

122:23-1-11 [Rescinded].

Effective: 10/30/2017
Five Year Review (FYR) Dates: 8/15/2017
Promulgated Under: 119.03
Statutory Authority: 5727.75(H)
Rule Amplifies: 5727.75
Prior Effective Dates: 1/10/2011