Three PUCO dockets to watch in early 2016

Three dockets at the Public Utilities Commission of Ohio (PUCO) involving net metering, the potential regulation of distributed generation systems as public utilities, and wind project regulations may come to head in early 2016.  

Net Metering rulemaking

Every five years, state agencies must conduct a rule review and determine whether to continue, amend or rescind current regulations. As part of this requirement, the PUCO reviewed the net metering rule in Ohio Administrative Code (OAC) 4901:1-10-28. On January 15, 2014, the commission issued an order that adopted amended and no change rules in OAC 4901:1-10-28 and ordered that the rules be filed with the Joint Committee on Agency Rule Review (JCARR), the Secretary of State and the Legislative Service Commission. However, post issuance, the commission decided to withdraw the net metering rules in OAC 4901:1-10-28 from JCARR for further reconsideration.

Subsequently, the PUCO staff held a workshop to receive additional stakeholder input on net metering. As a result, the commission reissued a proposed net metering rule for comment and reply comment. Initial comments to the draft rule are due December 18, 2015, with reply comments due January 8, 2015. Additionally, the commission intends to hold a public forum or en banc hearing to receive additional input from stakeholders in early 2016.  (The commission order and proposed net metering rules are available here.) 

In addition to the PUCO’s rulemaking, the issue of net metering is also before the Ohio Supreme Court and, potentially, the Ohio General Assembly.  (For more information, read “Net Metering in the Spotlight.”) 

Potential regulation of distributed generation systems as public utilities

In mid-2015, we authored an article analyzing whether a complaint before the PUCO involving an individual and a submetering company could open the door to a broader investigation into whether or not submetering companies should be regulated as public utilities. On November 18, 2015, the commission did just that. In a 4-1 decision, the commission issued an entry in Whitt v. Nationwide Energy Partners (Case No. 15-697-EL-CSS) that denied multiple motions to intervene in the case by outside parties, but, recognizing the underlying legal questions regarding submetering, stated that the commission will open an investigation to determine whether the scope of its jurisdiction extends to submetering arrangements (Case No. 15-1594-AU-COI).

As the PUCO reviews the method used to define a public utility and scope of the agency’s authority, the investigation could have a ripple effect beyond submetering practices. As noted in the case, the plaintiff argued that submetering companies should be treated as public utilities, and regulated as such by the PUCO, because of the service they are providing, and how they are providing it. Once the commission decides how they will validate or invalidate that claim, they may look beyond submetering regulation to other distributed generation facilities that aren’t currently regulated as public utilities.

Regulation of economically significant wind projects

On September 15, 2015, House Bill 483 became effective, thereby amending Ohio’s turbine setback requirements for economically significant wind project. (See Ohio Revised Code 4906.20 and 4906.201.)  As a result, the Ohio Power Siting Board (OPSB) amended its rules to reflect the setback provision. On November 12, 2015, following comments and reply comments from a variety of parties, the OPSB ordered a stakeholder process to investigate  a variety of questions raised, The issues to be discussed in the stakeholder process will include wildlife regulation, ice throw, noise levels, visual impacts, pipeline setback distances and waiver of the setback requirements by adjacent landowners.