122:23-1-09 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's investigation of any circumstances suggesting noncompliance 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 and the noncompliance can be cured or otherwise resolved with the applicable regulatory authority, the applicant shall have an opportunity to cure or otherwise resolve the noncompliance in the manner and timeframe provided by the applicable regulatory authority. If no specific cure period otherwise applies, the director shall allow the applicant sixty days to resolve the noncompliance with the applicable regulatory authority. Except for the allowance of time described in the preceding sentence, this rule is not intended and will not be interpreted to provide the applicant any allowance or mechanism for cure or resolution not provided by the applicable regulatory authority.

(C) If the applicant fails to cure or otherwise resolve during any applicable cure period any failure of the applicant to comply with any requirement of section 5727.75 of the Revised Code, the director may notify the applicant of the director's intention to revoke the certification of the applicant's qualified energy project if the director determines that the noncompliance is material. The director may rely on the advice of the applicable regulatory authority in determining if noncompliance is material. In addition, any violation of health or safety regulations not cured or otherwise resolved as provided in paragraph (B) of this rule and any noncompliance by an applicant that has engaged in a pattern of noncompliance or that has repeatedly failed to comply with the same statutory or regulatory requirement shall be considered material. 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.

(D) The applicant shall have thirty days (or such longer period as provided by the director) to respond in writing to the notice of intention to revoke the certification. In addition to, but not in lieu of, a written response, the applicant may request a hearing on the proposed revocation. The request for hearing must be included with the applicant's written response.

(E) If a hearing is not requested, the director shall make a final determination regarding the revocation based on the written record. If a hearing is requested, the director shall make a final determination regarding the revocation based on the written record and any additional information provided at the hearing. The hearing shall be conducted in a manner that complies with section 119.09 of the Revised Code.

(F) 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 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.

(G) No action or decision by the director with respect to alleged or actual noncompliance with the requirements of section 5727.75 of the Revised Code shall affect the obligations or liability of the applicant to any regulatory authority, including any other state agency or local government, or any other person.

Effective: 01/10/2011
R.C. 119.032 review dates: 01/09/2016
Promulgated Under: 119.03
Statutory Authority: 5727.75(H)
Rule Amplifies: 5727.75