Attention Ohio energy developers: Ohio Power Siting Board issues proposed rule revisions

On June 16, 2022, the Ohio Power Siting Board (“Board” or “OPSB”) issued a comprehensive set of proposed revisions to the rules governing the procedures before the OPSB and its siting criteria.[1] The Order culminates a multi-year process that began with a series of workshops at the onset of the COVID-19 pandemic.[2] A copy of the OPSB’s Order, with all of the proposed rule revisions, can be accessed here or via the case docket (21-902-GE-BRO). Initial comments regarding the proposed rules must be filed by July 22, with reply comments due by August 12.

For those unfamiliar with the OPSB, it is a state agency in Ohio responsible for siting certain energy generation and transmission infrastructure facilities that fall within the definition of a “major utility facility,” including utility-scale wind and solar projects. The following types of projects were treated as a “major utility facility” and subject to the multi-phase approval process of the OPSB:

• Energy generation facilities: Wind projects are designed for, or capable of, operation at an aggregate capacity of five or more megawatts (MW), and for all other energy generation projects that are designed for, or capable of, operation of 50 MW or more.

• Intrastate electric transmission lines: Facilities and associated facilities with a design capacity of 125 kilovolts or more.

• Intrastate gas pipelines: Facilities greater than 500 feet in length, with an outside diameter greater than nine inches, and are designed for transporting gas at a maximum allowable pressure in excess of 125 pounds per square inch.

In other words, the impact of the OPSB’s proposed rules is far-reaching and impacts everyone from utility-scale solar developers to independent power producers to traditional public utilities.

At the OPSB meeting announcing the proposed rule revisions, Chairperson Jennifer French identified the following objectives for the new rules: 1) improving the OPSB review process and public participation in that process; 2) improving upon the technical information filed with an application; and 3) enhancing the construction monitoring and compliance process after obtaining an OPSB certificate.

Many of the substantive changes proposed by the Board are found in Ohio Administrative Code Chapter (“O.A.C.”) 4906-4. As a result of a merger of two current rules chapters, Chapter 4906-4 now applies to certificate applications for electric generation facilities, electric transmission lines, and intrastate gas pipelines. Many of the changes reflect the significant amount of solar development that has occurred in Ohio since the last OPSB rulemaking. As a result, a number of conditions found in certificates issued to solar projects in the recent past have been codified through these rules. In fact, an entire subsection of rules, O.A.C. 4906-4-09(G), applies only to solar applications.[3] These rules address: high wind velocity issues, stormwater management, fencing, setbacks and landscaping plans.

An outline and summary of the major rule revisions within each chapter is included immediately below.[4] Please do not hesitate to contact our team if you have any questions.

O.A.C. 4906-1: General Provisions

The proposed rule revisions in this chapter are primarily limited to a handful of definitions in Section 4906-1-01.

• Associated Facility for Electric Transmission Line (4906-01-01(F)(2)(b)): This rule revises the types of substations that qualify as an “associated” facility under the Board’s jurisdiction.

• Definition of “Capacity” ((4906-01-01(I)): The revised rules add a definition of “capacity,” which means the maximum electric output a generator can produce, and in the case of an electric storage resource can store for later output back to the grid, under specific conditions, and that is reflected as installed capacity in any system impact study conducted by PJM.

• Definition of “Generation” (4906-1-01(AA)): The revised rules add a definition of “generation,” which means the process of producing electrical energy by transforming other forms of energy.

• Definition of “Project Area” (4906-1-01(JJ)): The revised rules modify and broaden the definition of “project area” to mean all land that contains components of the facility, as well as any real property for which land rights are necessary to be secured in order to construct and operate the facility.

• Definition of “Route” (4906-1-01(MM)): The revised rules add a definition of “route,” which means, in the case of a proposed electric transmission line or gas pipeline, a proposed centerline and a proposed distance from each side of the centerline, with such total distance not to exceed the proposed right-of-way width. Route width may vary along the proposed electric transmission line or gas pipeline, as specified in the application.

O.A.C. 4906-2: Procedure in Cases before the OPSB

This chapter contains the procedural standards for proceedings before the Board. There are no significant modifications proposed for these rules.

O.A.C. 4906-3: Certificate Applications Generally

This chapter sets forth the procedural requirements for the filing of a standard certificate application to the OPSB. The primary changes proposed by the OPSB in this chapter are summarized below.

• Additional Public Information Meeting (4906-3-03): Applicants will be required to hold two public information meetings, instead of one, within 90 days prior to filing an application with the OPSB. The first of these informational meetings should notify the public and solicit input on the scope of the project. The second of these informational meetings should present the project to the public in a manner consistent with what will be included in the application.
  • The revised rule also includes additional notice requirements, as well as the procedure for the applicant to incorporate county revisions to the project boundaries under Ohio Senate Bill 52.
  • At the public information meeting, applicants must include mapping software with aerial imagery that contains layers representing facility components along with sensitive receptors and address search capabilities.

• Fully Developed Site Information (4906-3-05): This rule revision removes language that currently limits the requirement that all standard certificate applications shall include fully developed information on two sites/routes to electric transmission lines and gas pipelines. The proposed revision makes suggests that generation facilities must develop alternate sites, which would be a significant change from current practice.

• Appeal of Completeness Determination (4906-3-06(A)): If an application is deemed “incomplete” after the preliminary completeness review, the revised rules clarify that the applicant may seek a redetermination by an administrative law judge.

• Staff Report to Address “Public Interest” (4906-3-06(C)(2)): This rule is revised to expressly require the OPSB Staff Report to include recommended findings with regard to R.C. 4906.10(A)(6), which requires that a project must be determined to be in the “public interest” in order to be granted a certificate.

• Additional Notice of “Deemed Complete” Application (4906-3-07): Requires service of the full “deemed complete” application to the boards of county commissioners and township trustees where the project is located.

• Hearing Requirements for Amendments to Certificates (4906-3-11(B)): The situations in which an application for an amendment to a certificate requires a hearing have been modified, in part, from the existing standard of whether the changes would result in any “significant adverse” environmental impact to a new standard of whether the amendment would result in any “material increase in any” environmental impact.

• Revisions to Application Fees (4906-3-12): The revised rules propose a new requirement that an applicant pay a $10,000 fee at the time of opening a new case. The full application fee – based on construction costs for transmission lines and capacity for generation facilities – is still due upon the application being deemed “complete.”
  • Board expenses to be applied to the application fee will now expressly include expenses associated with pre-application meetings.
  • If an associated transmission substation is included in the application for an electric power transmission line, the application fee for the substation is calculated separately and added to the filing fee for the electric power transmission line.
  • The rules also propose a new schedule for filing fees for amendment applications, based on the estimated construction cost of the amended portion on the facility.

• Review of Proposed Modifications to Certificated Facilities (4906-3-13(D)): The revised rules propose a process whereby an applicant may file proposed changes to a certified facility for a determination as to whether the modifications will require a formal amendment application. The process includes notice requirements and the opportunity for OPSB Staff or other stakeholders to file objections to the proposal.

• Preconstruction Requirements (4906-3-14): The revisions specify that preconstruction engineering drawings must be filed to the public docket, and require additional mapping files that must be provided to Staff prior to the preconstruction conference.
  • At least seven (7) days prior to a preconstruction conference, the applicant must file a table listing each preconstruction condition deliverable, the corresponding condition number, status of compliance and date on which the compliance was filed.

• Change in Corporate Structure (4906-3-15): This rule requires that, within 30 days of any change to corporate structure that was presented in the application and approved as part of a certificate issued by the Board, the holder of a certificate must file notification of the change.

• Transfer of Certificate (4906-3-16): Applications requesting a transfer of a certificate to another person, are deemed approved and effective 30 days after the filing, unless otherwise ordered by the OPSB or an administrative law judge.

O.A.C. 4906-4: Certificate Application for Electric Power Transmission Lines, and Gas Pipelines (formerly the chapter for “Electric Generation Facilities”)

Within this chapter, O.A.C. Section 4906-4-09, which previously only applied to wind projects, was expanded to apply to “renewable energy generation facilities.” This section also contains rules specific to solar facilities and wind facilities, O.A.C 4906-4-09(G) and (H), respectively.

• Interactive Map on Website (4906-4-03(B)): Electric generation facility applications will be required to post an interactive map on the project’s website containing a two-mile radius from the project area and showing certain project characteristics, at least fourteen days before the first public informational meeting.

• Additional “Need” Statements for Transmission Lines (4906-4-3(C)-(E)): The revised rules add requirements around the information an applicant must provide to demonstrate the “need” for the facility and how the project will meet this need.

• Project Selection Information (4906-4-04(A)): Applicants must show all siting constraints in the project map and describe all public involvement that was undertaken in the site/route selection process.

• Decommissioning and Complaint Resolution Requirements (4906-4-06): For solar facilities, the rules incorporate the decommissioning standards put into place by Ohio Senate Bill 52. The rules incorporate complaint resolution plan requirements for electric generation facilities, including an ongoing quarterly reporting requirement for the facility’s first five (5) years of operations.

• Additional Details on Environmental Regulatory Compliance (4906-4-07(E)): The revisions modify and add to the rules concerning compliance with aviation-related regulations, as well as requesting additional discussion within the application on stormwater controls and erosion minimization efforts, the disposition of contaminated soil, and dusty or muddy soil conditions.

• Application Information on Water Impacts (4906-4-08(A)(4)): The revisions require that “potential” impacts to public and private water supplies due to construction and operation of the proposed facility be identified. The rules add a minimum one-mile radius around the project area for mapping aquifers, water wells and drinking water source protection areas.

• Geological Features (4906-4-08(A)(5)): The revisions include additional information concerning the mapping of the project area’s geologic features, such as abandoned underground mines. Additional information includes describing the suitability of the soils for foundation construction and areas with slopes that exceed twelve percent (12%) and/or highly erodible soils and providing the results and initial analysis of preliminary test borings.

• Ecological Information (4906-4-08(B)): The proposed revisions include additional requirements for ecological information to be shown on maps, including the addition of areas of proposed vegetative clearing and sensitive habitat or young rearing areas of species identified as potentially impacted by the project through coordination with the Ohio Department of Natural Resources and the United States Fish and Wildlife Service in the project area, if present.
  • The proposed rules include additional ecological information requirements in the application, in a description of the probable impact of the construction of the proposed facility on the vegetation and surface waters and additional description of potential impacts to sensitive species.
  • The proposed rules also codify the common permit requirements for the applicant to take steps to prevent the establishment and/or further propagation of noxious weeds.

• Cultural Resources (4906-4-08(D)): Applications must include a description of any studies used to determine the location of cultural resources within the area of potential effects, as well as correspondence with the state historic preservation office. Additional requirements about avoidance and mitigation of impacts to cultural resources are also included.

• Drain Tile Avoidance and Repair (4906-4-08(E)): Applicants shall describe and map knowable field drainage systems, demonstrate how impacts to those systems will be avoided or mitigated and describe how damaged drainage systems will promptly be repaired to original conditions. The applicant must also provide a description of data sources and methods used to obtain information for field drainage system mapping.
  • The revised rules also include requirements to benchmark existing drain tiles in consultation with property owners, the county soil and water conservation district and the county.

• Compliance with Building Code (Applicable only to “Renewable Energy Facilities”) (4906-4-09)(A)(1)): This rule revision requires that the construction of structures that are not directly associated with the generation of electricity, such as administrative offices and warehouses, shall be in compliance with applicable Ohio Board of Building standards which are not otherwise preempted.

• Geotechnical Information (Applicable only to “Renewable Energy Facilities”) (4906-4-09(A)(2)): Under these rule revisions, the applicant shall provide a preliminary geotechnical exploration and evaluation to confirm that there are no issues to preclude development of the facility, including, but not limited to: borings, test pits and/or subsurface samples at the substation(s), overhead collection line pole locations and representative samples of the project area.

• Vegetation Management and Monitoring (Applicable only to “Renewable Energy Facilities”) (4906-4-09(A)(3)): The applicant shall provide annual proof of weed control for the first four (4) years of operation of the facility, with the goal of weed eradication significantly completed by year three (3) of operation.
  • Applicants must also minimize, to the extent practicable, clearing that would lead to fragmentations of isolated woodlots and connecting corridors.

• Onsite Environmental Specialist (Applicable only to “Renewable Energy Facilities”) (4906-4-09(D)(5)): This rule requires that applicants shall have a Staff-approved environmental specialist on site during construction activities that may affect sensitive areas.

• Noise Standards (Applicable only to “Renewable Energy Facilities”) (4906-4-09(E: The existing noise standard is revised to require that the project’s noise contributions do not result in noise levels at any non-participating sensitive receptor within one mile of the project boundary that exceed 40 dBA or the project area ambient daytime and nighttime average sound level (L50) by five A-weighted decibels.

• High Wind Velocities (Applicable only to solar facility applications) (4906-4-09(G)(1)): Applicants must provide an analysis of high wind velocities for the area, including the probability of occurrences and likely consequences of various wind velocities, and describe plans to mitigate any likely adverse consequences.

• Stormwater Management (Applicable only to solar facility applications) (4906-4-09(G)(2)): This rule requires that the solar facility is constructed in a manner that incorporates post construction stormwater management under OHC00005 (Part III.G.2.e, pp. 19-27) in accordance with the Ohio Environmental Protection Agency’s guidance on post-construction storm water controls for solar panel arrays.

• Fencing (Applicable only to solar facility applications) (4906-4-09(G)(3)): Solar panel perimeter fence type is to be both small-wildlife permeable and aesthetically fitting for a rural location. Such fencing requirement does not apply to substation fencing governed by the National Electric Safety Code or other similar safety code standards applicable to substations.

• Setbacks (Applicable only to solar facility applications) (4906-4-09(G)(4)): This is new and critical to the siting of solar projects in Ohio. The rule requires developers to incorporate a minimum setback from the project’s solar modules of (i) at least 150 feet from non-participating parcel boundaries, (ii) at least 300 feet from non-participating residences existing as of the application filing date, and (iii) at least 150 feet from the edge of pavement of any state, county or township road within or adjacent to the project area.

• Landscape Plans (Applicable only to solar facility applications) (4906-4-09(G)(5)): The application is to include a landscape plan in consultation with a landscape architect licensed by the Ohio Landscape Architects Board that addresses the aesthetic impacts of the facility on adjacent residential non-participating properties, the traveling public, nearby communities and recreationalists through measures such as shrub plantings or enhanced pollinator plantings, and be in harmony with the existing vegetation and viewshed in the area. Such vegetative screening is to be maintained for the life of the facility.

• Impacts to Communications (Applicable only to wind facility applications) (4906-4-09(H)(4)): The revised rules require a microwave path study to be included in the application. The rules include a number of requirements for this study, including use of an independent and registered surveyor and design standards to avoid microwave path interference.

O.A.C. 4906-5: Certificate Applications for Electric Transmission Lines and Gas Pipelines

This chapter was rescinded and the content of the rules merged into OAC Chapter 4906-4.

O.A.C. 4906-6: Accelerated Certificate Applications

This chapter contains rules applicable to the accelerated application processes available to certain projects. In all, the proposed changes to this chapter are very minor.

• Requests for Expedited Treatment (4906-6-04): This rule establishes a pre-application process, including the opening of a case docket and filing of a pre-application notification letter with certain project information at least five (5) business days prior to filing the accelerated application.

O.A.C. 4906-7: Procedure / Compliance Monitoring and Reporting

This chapter contains rules for compliance monitoring of projects certified by the OPSB. In this rulemaking, the OPSB proposes new rules implementing an annual reporting requirement, process for the reporting of violations and self-reporting of incidents, and compliance site review. Some highlights are below

• Annual Reporting Requirement (4906-7-04): For the first three (3) years after an electric generation facility certified by the OPSB begins commercial operation, the certificate holder will docket, in its certificate case, an annual report that addresses significant monitoring and mitigation activities, compliance with all certificate conditions, any facility modifications, status of surety information and an incident summary.

• Reporting Violations (4906-7-05): This rule requires that a certificate holder, within 30 days of discovery, file a written report of any certificate violation. Under the rule, the OPSB Staff will investigate any such violations.

• Self-Reporting of Incidents (4906-7-06): This rule establishes reporting obligations within 30 days of the discovery of an “incident.” Under the rule, an “incident” includes 1) injury to any person; 2) damage to property other than the property of the facility operator; and 3) damage to the facility operator’s property that is estimated to exceed $50,000.00, excluding the cost of electricity lost, which is the sum of the estimated cost of material, labor and equipment to repair and/or replace the operator’s damaged property. The rule outlines the information that must be contained in the report. Under the rule, OPSB Staff will investigate reported incidents. Importantly, a facility involved in a reportable incident under this rule cannot restart or resume construction until such action is approved by the Board's executive director or the executive director’s designee.

• Compliance Site Review (4906-7-07): Certificate holders must allow board representatives to inspect the operations of a certified facility at any time. Inspections may include, but are not limited to, all materials, activities, related or supporting facilities, premises, and records pertaining to construction, operation and maintenance of the facility.

The written comment period is the next phase in the rule review process. Stakeholders and the public may file formal written comments regarding the proposed rules. At the conclusion of the comment period, and after all of the comments have been considered, the Board will issue an order approving final rules and directing the rules to be filed with the Joint Committee on Agency Rule Review. A copy of the amended rules issued on June 16, 2022, are found on the OPSB website here. The case docket for 21-902-GE-BRO is found here. Additional information on the rule-making process is available on the OPSB website here.