This website publishes administrative rules on their effective dates, as designated by the adopting state agencies, colleges, and
universities.
| Rule |
Rule 122:23-1-01 | Definitions and rules of interpretation.
Effective:
October 30, 2017
(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.
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Rule 122:23-1-02 | Application and certification.
Effective:
October 30, 2017
(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.
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Rule 122:23-1-03 | Construction reporting.
Effective:
October 30, 2017
(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.
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Rule 122:23-1-04 | Employment report.
Effective:
October 30, 2017
(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.
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Rule 122:23-1-05 | Certificate of verification.
Effective:
October 30, 2017
(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.
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Rule 122:23-1-06 | Continuing compliance with requirements for exemption; service payments.
Effective:
October 30, 2017
(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.
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Rule 122:23-1-07 | Signature; failure to report; trade secrets.
Effective:
October 30, 2017
(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.
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Rule 122:23-1-08 | Revocation of certification by the director.
Effective:
October 30, 2017
(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.
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Rule 122:23-1-09 | Delegation of functions.
Effective:
October 30, 2017
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.
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Rule 122:23-1-10 | Severability.
Effective:
October 30, 2017
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.
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