IN THE SUPREME COURT OF OHIO Wind LLC for a Certificate to...

IN THE SUPREME COURT OF OHIO In the Matter of the Application of Buckeye ) Wind LLC for a Certificate to Construct a ) Case No. 15-1715 Wind-Powered Electric Generation Facility ) in Champaign County ) On Appeal from the Ohio Power Siting ) Board, Case Nos. 08-666-EL-BGN and In the Matter of the Application of Buckeye ) 13-360-EL-BGA Wind, LLC to Amend its Certificate Issued ) in Case No. 08-666-EL-BGN ) Appellee: Ohio Power Siting Board

________________________________________________________________________

MERIT BRIEF OF APPELLANTS UNION NEIGHBORS UNITED, ROBERT McCONNELL, DIANE McCONNELL, AND JULIA F. JOHNSON

________________________________________________________________________ Jack A. Van Kley (0016961) Werner L. Margard (0024858) (Counsel of Record) (Counsel of Record) Van Kley & Walker, LLC Assistant Attorney General 132 Northwoods Blvd., Suite C-1 Office of the Attorney General Columbus, OH 43235 General Public Utilities Section Telephone: (614) 431-8900 180 East Broad Street, 9th Floor Facsimile: (614) 431-8905 Columbus, OH 43215 [email protected] Telephone: (614) 466-4397 Attorney for Appellants UNU, Robert & Facsimile: (614) 644-8764 Diane McConnell, and Julia Johnson [email protected] Attorney for Appellee Ohio Power Christopher A. Walker (0040696) Siting Board Van Kley & Walker, LLC 137 North Main Street, Suite 316 Michael J. Settineri (0073369) Dayton, OH 45402-1772 (Counsel of Record) Telephone: (937) 226-9000 William A. Sieck (0071813) Facsimile: (937) 226-9002 Vorys, Sater, Seymour and Pease LLP [email protected] 52 East Gay Street Attorney for Appellants UNU, Robert & P.O. Box 1008 Diane McConnell, and Julia Johnson Columbus, Ohio 43216-1008 Telephone: (614) 464-5414 Daniel A. Brown (0041132) Facsimile: (614) 719-4904 (Counsel of Record) [email protected] Brown Law Office, LLC [email protected] 204 South Ludlow Street, Suite 300 Attorneys for Buckeye Wind, LLC Dayton, OH 45402 Telephone: (937) 224-1216 Facsimile: (937) 224-1217 [email protected] Attorney for Urbana Country Club

Supreme Court of Ohio Clerk of Court - Filed December 31, 2015 - Case No. 2015-1715

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................................iii STATEMENT OF FACTS ....................................................................................................1 ARGUMENT ........................................................................................................................5

Standards Applicable To Judicial Review of Board Orders ............................................5 Standards for Certification of Major Utility Facilities .....................................................5 Principles Applicable To Certificate Extensions .............................................................6

A. A Meaningful Investigation Of A Certificate Extension Determines Whether The Assumptions Underlying The Initial Certificate Are Still Valid and Accurate .....................................................................7

B. A Meaningful Investigation Of A Certificate Extension Evaluates The Extension’s Impact On Property Owners Adjoining The Major Utility Facility ....................................................................................9

Propositions of Law .........................................................................................................11

Proposition of Law No. 1: The Ohio Power Siting Board’s Amendment Of A Certificate For A Major Utility Facility Requires An Application Pursuant To R.C. 4906.06(E) and Ohio Adm.Code 4906-5-10(B) ..............................................11

A. Because Condition 52 Is A Part Of Buckeye Wind’s Certificate,

The Amendment Of Condition 52 Is An Amendment To The Certificate ...........................................................................................11

B. Buckeye Wind Was Required To Submit An Application For A

Certificate Amendment, But Refused To Do So ...............................12

Proposition of Law No. 2: The Ohio Power Siting Board’s Amendment Of A Certificate For A Major Utility Facility Requires A Staff Investigation Of Public Impacts And A Staff Report Recommending Findings About The Amendment’s Environmental Impact, Public Interest, Convenience, Necessity, And Other Effects Pursuant To R.C. 4906.10(A) ........................................................................17

CONCLUSION ......................................................................................................................19 CERTIFICATE OF SERVICE ..............................................................................................21

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APPENDIX ................................................................................................................. APPX

Notice of Appeal (Oct. 23, 2015) (ICN 196) ..................................................... 1-29 Entry (Aug. 25, 2015) (ICN 189) ............................................................................8 Entry on Rehearing (Sept. 30, 2015) (ICN 195) ....................................................16

R.C. 4903.13 ..........................................................................................................30 R.C. 4906.01 ..........................................................................................................31 R.C. 4906.04 ..........................................................................................................33 R.C. 4906.06 ..........................................................................................................34 R.C. 4906.07 ..........................................................................................................36 R.C. 4906.10 ..........................................................................................................37 R.C. 4906.12 ..........................................................................................................39 Ohio Adm.Code 4901-1-011 ..................................................................................40 Ohio Adm.Code 4901-1-01, Appendix A ..............................................................43 Ohio Adm.Code 4901-1-01, Appendix B ..............................................................45 Ohio Adm.Code 4906-1-05 ...................................................................................47 Ohio Adm.Code 4906-5-03 ...................................................................................48 Ohio Adm.Code 4906-5-05 ...................................................................................50 Ohio Adm.Code 4906-5-10 ...................................................................................52 Application for Rehearing of Union Neighbors United, Robert and Diane McConnell, and Julia F. Johnson (Sept. 24, 2015) (ICN 191) ....................54 Certificate of Service for the Appendix .................................................................70

1 The Appendix sets forth the cited rules in the form they existed at the time the Certificate extension was granted.

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TABLE OF AUTHORITIES

CASES Ohio: Dunbar v. State, 136 Ohio St. 3d 181, 2013-Ohio-2163, 992 N.E.2d 1111 ......................13 In re Application of Buckeye Wind, L.L.C., 2012-Ohio-878, 131 Ohio St. 3d 449, 966 N.E.2d 869 ....................................................................................................................1 In re Application of Middletown Coke Co., 127 Ohio St.3d 348, 351, 2010-Ohio-5725, 939 N.E.2d 1210 ......................................................................................5 State ex rel. Miller Plumbing Co. v. Indus. Comm'n, 149 Ohio St. 493, 79 N.E.2d 553 (1948).........................................................................................................14 State ex rel. R. Bauer & Sons Roofing & Siding, Inc. v. Indus. Comm., 84 Ohio St. 3d 62, 66, 701 N.E.2d 995 (1998) ..................................................................13 Wachendorf v. Shaver, 149 Ohio St. 231, 78 N.E.2d 370 (1948) ......................................13 Administrative: In re Buckeye Wind, Ohio Power Siting Bd. No. 08-666-EL-BGN, 2010 WL 1258698 (Mar. 22, 2010) .....................................................................................1 In re Champaign Wind LLC, Ohio Power Siting Bd. No. 12-0160-EL-BGN, 2013 WL 2446463 (May 28, 2013) .................................................................................1, 8 In re Lima Energy Company, Case No. 00-513-EL-BGN, 2012 WL 3252845 (July 30, 2012) .......................................................................................................6, 7, 9, 10 In re Norton Energy Storage, LLC, Case No. 99-1626-EL-BGN, 2013 WL 5570311 (Sept. 30, 2013).......................................................................6, 7, 9, 10 STATUTES R.C. 4903.13 ........................................................................................................................5 R.C. 4906.04 ........................................................................................................................5 R.C. 4906.06 .............................................................................................. 11, 13-16, 19, 20 R.C. 4906.07 ...................................................................................................... 5, 15, 17-20

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R.C. 4906.10 ......................................................................................................5, 17, 18, 20 R.C. 4906.12 ........................................................................................................................5 ADMINISTRATIVE RULES Ohio Adm.Code 4901-1-01, Appendices A and B ................................................13, 14, 16 Ohio Adm.Code 4906-1-05 .........................................................................................15, 16 Ohio Adm.Code 4906-5-03 .................................................................12, 13, 14, 16, 18, 19 Ohio Adm.Code 4906-5-05 ......................................................................................... 17-20 Ohio Adm.Code 4906-5-10 ................................................................................... 11, 13-20

STATEMENT OF FACTS

On March 22, 2010, the Ohio Power Siting Board (“OPSB” or “Board”) issued a

Certificate of Environmental Compatibility and Public Need (the “Certificate”) to Buckeye

Wind, LLC, a subsidiary of EverPower Wind Holdings, Inc. (“EverPower”). In re Buckeye

Wind, Ohio Power Siting Bd. No. 08-666-EL-BGN, 2010 WL 1258698 (Mar. 22, 2010). (Entry

on Rehearing, ICN 195 at 1, ¶ 2 (Appx. 17)) The Certificate authorized the construction and

operation of a 54-turbine wind project in Champaign County, Ohio. (Certificate, ICN 146 at 2,

90 (Supp. 6))1

During that OPSB proceeding, Intervenors Union Neighbors United, Robert and Diane

McConnell, and Julia Johnson (collectively, “UNU”) had raised concerns about the adverse

impacts threatened by the project. These concerns included the turbines’ stifling of new land

uses on neighbors’ land, the deterioration of nearby property values, the casting of strobing

shadow flicker through neighbors’ windows, the killing of endangered Indiana bats and other

bats needed to control insects on farms and yards, the propulsion of broken blades and ice onto

public roads and adjoining properties, and loud, annoying noise from turbine operation.

(Certificate, ICN 146 at 19-20, 36-44, 55-59 (Supp. 23-24, 40-48, 59-63))

After OPSB issued the Certificate, UNU appealed the Certificate to this Court. The

Court issued a 4 to 3 decision affirming OPSB’s decision on March 6, 2012. In re Application of

Buckeye Wind, L.L.C., 2012-Ohio-878, 131 Ohio St. 3d 449, 966 N.E.2d 869.

On May 15, 2012, Champaign Wind, LLC (“Champaign Wind”) submitted an application

with OPSB for a certificate to build 56 more turbines in the same area as the Buckeye Wind

project. In re Champaign Wind, LLC, Ohio Power Siting Bd. No. 12-160-EL-BGN, 2013 WL

1 The Certificate is contained in the record for Supreme Court Case No. 10-1554 as ICN 146. The Supplement also contains a copy of the Certificate.

2

2446463 at *2 (May 28, 2013). (Opinion, Order, and Certificate, ICN 187 at 2 (included in

record for Sup. Ct. Case No. 13-1874)) Like Buckeye Wind, Champaign Wind is an EverPower

subsidiary. The Board issued the Champaign Wind certificate on May 28, 2013. (Entry of Aug.

25, 2014, ICN 189 at 2, ¶ 3 (Appx. 9)) UNU’s appeal of that certificate is pending before this

Court.

On March 19, 2013, Buckeye Wind submitted an application to OPSB requesting

amendments of the Certificate to change the designs and locations of its project’s construction

staging areas, access roads, substation, and electric collection lines in order to consolidate them

with the Champaign Wind project. (Order on Certificate Amendment, ICN 176, Exh. F at 2, 4-5

(Supp. 154, 156-157)) The Board Staff investigated the proposed amendments and issued a Staff

report evaluating the amendments’ merits and impacts. (Id. at 5-8 (Supp. 156-160)) OPSB held

a hearing on the amendments on January 6, 2014 and approved them on February 18, 2014. (Id.

at 4, 13 (Supp. 156, 165)) Champaign County and three townships appealed the Certificate

amendments to this Court on July 16, 2014. (Notice of Appeal, ICN 74 (contained in record for

Sup. Ct. Case No. 14-1210)) Although UNU participated in the OPSB proceeding for the

amendments, UNU did not appeal the amendments.

Just five months later, Buckeye Wind submitted a paper to OPSB on July 14, 2014 styled

as a “Motion for Extension of Certificate,” asking OPSB to extend the Certificate’s deadline for

starting construction on the Buckeye Wind project. (ICN 172) This deadline was contained in

Condition 52 of the Certificate, which stated at that time:

The certificate shall become invalid if Buckeye has not commenced a continuous course of construction of the proposed facility within five years of the date of journalization of the certificate.

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(Certificate, ICN 146 at 92 (Supp. 96)) Thus, by its original terms, the Certificate would have

expired if Buckeye Wind failed to commence a continuous course of construction within five

years, i.e., by March 22, 2015. Buckeye Wind’s motion asked the Board to extend this deadline

to May 28, 2018, more than eight years after the Certificate’s issuance. (Motion for Extension,

ICN 172 (Supp. 106))

As the grounds for its motion, Buckeye Wind stated that ongoing appeals of the Buckeye

Wind and Champaign Wind certificates and a UNU appeal of a federal permit authorizing the

wind projects to kill Indiana bats had hampered its ability to start construction. (Id.) The motion

also admitted that Buckeye Wind had delayed construction so that it could first obtain the

Certificate amendments to consolidate the Buckeye Wind and Champaign Wind construction

staging areas, access roads, substation, and electric collection lines. (Id. at 5-6 (Supp. 110-111))

Buckeye Wind’s motion provided no evidence that litigation actually caused the

construction delay. In fact, the motion provided no evidence at all, but consisted solely of

arguments from the company’s legal counsel. Notably, contemporaneous motions for extensions

of other wind companies’ certificates by the same law firm attributed the construction delays

largely to a lack of market demand for wind power. (UNU Application for Rehearing, ICN 191

at 6, citing motions pending in two other OPSB cases (Supp. 61)) The timing of Buckeye

Wind’s motion suggested that EverPower’s business decisions, not ongoing litigation, caused the

project to sit dormant for five years while EverPower developed and obtained Board approval for

its Champaign Wind project and then procured amendments to merge the two wind projects into

one facility. Not coincidentally, the new construction deadline of May 28, 2018 sought for the

Buckeye Wind project is also the construction deadline for the Champaign Wind project.

(Buckeye Wind Motion for Extension, ICN 172, at 6 (Supp. 111))

4

On July 29, 2014, UNU filed a memorandum opposing Buckeye Wind’s motion for the

modification of Condition 52. (ICN 176) UNU pointed out that Buckeye Wind filed a motion

instead of the required application for a certificate amendment in order to circumvent the

requirements in OPSB’s governing statute and rules for a Staff investigation and a Staff report on

the amendment’s merits and public impacts. (Id. at 2-6)

UNU noted that Buckeye Wind had no good excuse for using a motion to bypass OPSB’s

application, investigation, and reporting procedures. (Id. at 6-7) UNU pointed out that the

company could have obtained a timely decision on the extension by adding the extension request

to the March 2013 application for the consolidation amendments during the 11 months in which

the Board was investigating, reporting on, and adjudicating these amendments. (Id.) UNU

observed that incorporating the extension request into the application for the consolidation

amendments would have enabled the Board’s Staff to investigate and report on the extension

request and the consolidation amendments at the same time. (Id.)

UNU noted that the litigation and the EverPower consolidation plans blamed for the

construction delay existed before and during the Board’s proceeding on the consolidation

amendments. (Id.) Thus, Buckeye Wind knew before February 2014 that it would be requesting

more time to start construction, but it chose not to include the extension request in its application

for the consolidation amendments. Nevertheless, OPSB declined to require Buckeye Wind to

submit an application for the Certificate extension and issued an order extending the Certificate’s

construction deadline without the benefit of an application, investigation, or report. (Entry of

Aug. 25, 2014, ICN 189 (Appx. 8-15))

On September 24, 2014, UNU filed an Application for Rehearing with OPSB. (ICN 191

(Appx. 54)) OPSB denied UNU’s Application for Rehearing in an Entry on Rehearing issued on

5

August 27, 2015. (ICN 195 (Appx. 16)) UNU then filed this appeal on October 23, 2015. (ICN

196 (Appx. 1))

ARGUMENT

Standards Applicable To Judicial Review Of Board Orders

Pursuant to R.C. 4906.12, the Court must apply the same standard of review to power

siting decisions that it applies to orders of the Public Utilities Commission. In re Application of

Middletown Coke Co., 127 Ohio St.3d 348, 351, 2010-Ohio-5725, 939 N.E.2d 1210, ¶ 14. R.C.

4903.13, which applies to OPSB via R.C. 4906.12, provides that this Court will reverse, vacate,

or modify an OPSB order that is unlawful or unreasonable. Id. The Court has complete and

independent power of review as to all questions of law in appeals from the Board. Id. The

issues presented by this brief are questions of law.

Standards for Certification Of Major Utility Facilities

No person may construct a major utility facility without first obtaining a certificate for

the facility. R.C. 4906.04. For that reason, Buckeye Wind applied for the Certificate to obtain

approval to construct and operate its wind project.

The Board may not grant a certificate unless it determines the following, inter alia:

(a) The nature of the probable environmental impact;

(b) That the facility represents the minimum adverse environmental impact,

considering the state of available technology and the nature and economics of the

various alternatives, and other pertinent considerations; and

(c) That the facility will serve the public interest, convenience and necessity.

R.C. 4906.10(A)(2), (3), (6). The same standards apply to amendments of certificates. R.C.

4906.07(C).

6

Principles Applicable To Certificate Extensions

OPSB’s decisions explain that it is “the long-standing policy of the Board” to include in

each certificate a condition requiring the applicant to begin a continuous course of construction

within a specified time period. In re Lima Energy Company, Ohio Power Siting Bd. No. 00-513-

EL-BGN at 7, ¶ 8, 2012 WL 3252845 (July 30, 2012); In re Norton Energy Storage, LLC, Ohio

Power Siting Bd. No. 99-1626-EL-BGN at 2, ¶ 9, 2013 WL 5570311 at *1 (Sept. 30, 2013). 2

(UNU Mem. Contra Motion for Extension, ICN 176, Exhs. B and C (Supp. 124, 128)) The

Board’s decisions explain that the purpose of this provision is (1) to ensure that the information

upon which the Board initially relied in granting the certificate is still valid and accurate and (2)

to prevent an applicant from indefinitely encumbering property development rights without

actually developing a project, so as to encourage the efficient use of the land. (Id., Exh. B, Lima

Energy, at 7, ¶ 8 (Supp. 124); id., Exh. C, Norton Energy, at 2, ¶ 9 (Supp. 128)) Consequently,

this condition is an important component of the certificate.

Where past applicants have requested extensions of their certificates, the Board’s past

practice reveals the importance of investigating these requests. In Lima Energy, the Staff

requested and considered a broad range of information relating to the current status of that

facility, including information regarding the status of the electric grid interconnection for the

project, initial site preparation activities that had been completed, and the status of the

applicant’s permits. (Id., Exh. B, Lima Energy at 3-5 (Supp. 120-122)) A meaningful inquiry is

also necessary in this case.

2 Although these OPSB decisions express the Board’s sound policy for limiting the duration of certificates, the applicants in these OSPB proceedings unlawfully applied for certificate amendments by motion instead of application.

7

By the time OPSB issued its Entry on Rehearing on Buckeye Wind’s Certificate

amendment, the Certificate was more than five years old. During those five years, much has

changed in terms of knowledge and understanding of the actual and potential impacts of the

project. The following points illustrate some of the important issues that the Board should have

investigated before deciding whether to extend the minimum length of the Certificate from five

to eight years.

A. A Meaningful Investigation Of A Certificate Extension Determines Whether The Assumptions Underlying The Initial Certificate Are Still Valid and Accurate.

As stated in Lima Energy and Norton Energy, “it is important to ensure that the

information upon which the Board initially relied in granting the certificate is still valid and

accurate.” (UNU Mem. Contra Motion for Extension, ICN 176, Exh. B at 7, ¶ 8 (Supp. 124);

id., Exh. C. at 2, ¶ 9 (Supp. 128)) For example, OPSB directed Lima Energy to update the Board

on a number of topics, such as the company’s plans for connecting to the electric grid, the status

of its efforts to obtain governmental permits for the project, and an update on its fire prevention

plans and techniques. (Id., Exh. B at 3-6, ¶ 7 (Supp. 120-123)) Similarly, the Board should have

investigated Buckeye Wind’s extension request to ensure the assumptions underlying the

Certificate are valid and accurate. For example:

(a) Significant advances have occurred in the understanding of wind turbine noise since

OPSB issued the Buckeye Wind certificate in 2010. In late 2012, four acoustic experts

commissioned by the Wisconsin Public Service Commission, including Buckeye Wind’s expert,

released a report evaluating claims by residents within the Shirley Wind project in Wisconsin

about the low frequency noise, infrasound, and adverse health impacts generated by those wind

turbines. (Exh. A to Memorandum Contra Motion for Waivers, ICN 184) These experts

8

concluded that there is now enough evidence to classify low-frequency noise and infrasound

from wind turbines as “a serious issue, possibly affecting the future of the wind industry.” (Id. at

7) Because the current findings on wind turbine noise indicate that the impacts are greater than

were contemplated when the Board issued the Buckeye Wind Certificate in 2010, the

Certificate’s extension would result in a substantial environmental impact.

(2) In light of evidence on ice throw hazards submitted in the Champaign Wind

certificate proceeding, OPSB established a setback between turbines and heavily traveled public

roads in that project to prevent turbines from propelling ice onto passing vehicles. See In re

Champaign Wind LLC, supra, Opinion, Order and Certificate at 36-37, 2013 WL 2446463 at

*37-*38 (ICN 187, contained in record for Sup. Ct. Case No. 13-1874). While UNU does not

concede that the road setbacks for the Champaign Wind facility are sufficiently protective, the

Buckeye Wind Certificate has no road setbacks at all.

(3) The Board’s prior assumptions about noise and ice throw illustrate, but are not

exhaustive, of the 2010 assumptions that the Board should have re-examined for the Certificate

amendment. For example, it also would have been appropriate to inquire into the turbine models

being considered for the project, since turbine manufacturers have continued to develop new

turbine models during the last five years. Consistent with the Staff’s inquiry in Lima Energy, the

Board should have evaluated the continued validity and accuracy of these and other assumptions

to make sure that the facility’s design and operating procedures are still considered to be

protective of the public.

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B. A Meaningful Investigation Of A Certificate Extension Evaluates The Extension’s Impact On Property Owners Adjoining The Major Utility Facility.

The Board’s decisions in Lima Energy and Norton advised that certificate deadlines for

starting construction are designed to avoid the wasteful encumbrance of land in perpetuity.

(UNU Mem. Contra Motion for Extension, ICN 176, Exh. B, Lima Energy Entry at 7, ¶ 8 (Supp.

124); id., Exh. C, Norton Energy Entry at 2, ¶ 9 (Supp. 128)) For the last five years, Buckeye

Wind’s Certificate has encumbered not only the land of its leaseholders, but also their

nonparticipating neighbors. In the proceeding below, UNU described the damage to the Parello

family as an example of this ongoing harm. The testimony of Mary Jo Parello made at the public

hearing of October 25, 2012 on the Champaign Wind application described the economic

dilemma of the families who cannot sell their homes or use their equity in their homes for

funding such needs as medical care, retirement, college, and elder care, because prospective

home buyers or financial institutions will not invest in homes that may be impacted by nearby

wind turbines. (Id., Exh. D at 79-85 (Supp. 135-141))

In the first Buckeye Wind proceeding, Ms. Parello had testified that her community’s

property values would be ruined by the BW I turbines. (Id., Exh. E at 22) (Supp. 146)) This

testimony has proven prophetic, since her testimony in the Champaign Wind proceeding

revealed that her family had been trying to sell their property for 13 months prior to that

testimony. (Id., Exh. D at 81-83 (Supp. 137-139)) At the time UNU filed its memorandum

opposing Buckeye Wind’s motion for extension, the Parellos had not been able to find a buyer

after marketing it for two years and seven months. (UNU Mem. Contra Motion for Extension,

ICN 176 at 5-6) Many hundreds of families in eastern Champaign County, including UNU’s

members, will be unable to sell or beneficially develop their properties as long as the wind

10

project is pending. Yet OPSB has decided to allow this intolerable situation to continue for

another three years, without making any effort to evaluate the extension’s impact on the

community.

Buckeye Wind’s Certificate has imposed uncertainty on landowners in and near the

project footprint regarding the marketability of their properties. This concern is squarely

relevant to the Board’s interest in limiting the length of certificates to “encourage the efficient

use of land.” (UNU Mem. Contra Motion for Extension, ICN 176, Exh. B, Lima Energy Entry at

7, ¶ 8 (Supp. 124); id., Exh. C, Norton Energy Entry at 2, ¶ 9 (Supp. 128)) Extending the

minimum duration of the Certificate from five to eight years commensurately increases these

impacts on property owners, thereby materially increasing the damage to the public from the

facility. An investigation of these impacts is required before the Board may approve such a

change.

The Board’s Entry on Rehearing attempted to differentiate between the Buckeye Wind

and Lima Energy projects by opining that the Lima Energy project was more complex, used a

different process to produce electricity, and had an older certificate. (Id. at 11, ¶ 23 (Appx. 26))

However, while these differences may have justified a smaller scale investigation of Buckeye

Wind’s extension, they do not excuse OPSB from conducting no investigation whatsoever. Nor

do they excuse OPSB’s violation of the mandates in OPSB’s governing law and its own rules

that require such an investigation. As explained below, OPSB’s mandates do not authorize the

Board to rubberstamp certificate amendments without at least some investigation, regardless of

project size or the degree of public impact.

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PROPOSITIONS OF LAW

Proposition of Law No. 1: The Ohio Power Siting Board’s Amendment Of A Certificate For A Major Utility Facility Requires An Application Pursuant To R.C. 4906.06(E) and Ohio Adm.Code 4906-5-10(B).

Ohio law and OPSB’s rules require the applicant for a certificate amendment to submit an

application for the amendment. The application triggers the Board’s duties to conduct an

investigation and issue a report evaluating the impacts of the amendment. OPSB changed the

language of Buckeye Wind’s Certificate to allow the company to start construction three years

later than originally authorized. Nevertheless, OPSB evaded its responsibility to require

Buckeye Wind to submit an application for this certificate modification, by insisting that this

change did not amend the Certificate. Consequently, OPSB and Buckeye Wind seek to avoid an

examination of the extension’s impacts by illogically arguing that they can change a requirement

in a certificate without amending the certificate.

A. Because Condition 52 Is A Part Of Buckeye Wind’s Certificate, The Amendment Of Condition 52 Is An Amendment To The Certificate.

The Order section of the Opinion, Order, and Certificate issued to Buckeye Wind states:

“ORDERED, That the certificate contain the conditions as set forth in the Conclusion and

Conditions Section of this opinion, order, and certificate.” (Certificate, ICN 146 at 100 (Supp.

104)) As stated in that preface, the conditions in the Conclusion and Conditions Section of the

Certificate are included in the Certificate. These conditions include Condition 52. Thus,

Condition 52 cannot be amended without amending the Certificate.

Condition 52 provides a deadline for starting construction of the wind project. Condition

52 of Buckeye Wind’s Certificate originally stated:

The certificate shall become invalid if Buckeye has not commenced a continuous course of construction of the proposed facility within five years of the date of journalization of the certificate.

12

(Supp. 96) Thus, by its original terms, the Certificate would expire if Buckeye Wind failed to

commence a continuous course of construction within five years, i.e., by March 22, 2015.

On July 14, 2014, Buckeye Wind submitted a paper styled “Motion for Extension of

Certificate” asking OPSB to extend this deadline to May 28, 2018, more than eight years after

the Certificate’s issuance. (ICN 172) The Board approved this extension. (Entry of Aug. 25,

2014, ICN 189 (Appx. 8-15)) Consequently, OPSB has amended Condition 52.

OPSB opined that amending Condition 52 of the Certificate does not amend the

Certificate, because Condition 52 does not govern the construction, operation, or maintenance of

the project. (Entry on Rehearing, ICN 195 at 6, ¶ 15 (Appx. 21)) However, Condition 52 is part

of the Certificate. Any change to the requirement of Condition 52 is a change to the Certificate.

Moreover, Condition 52 does govern the project’s construction, because it dictates how soon the

construction must start. The start date is an important construction condition, because a long

delay in starting construction can make the project’s design obsolete and render a certificate’s

conditions ineffectual. Accordingly, because OPSB amended the Certificate, the Board was

required to follow the statutory and regulatory mandates applicable to certificate amendments.

As explained below, OPSB and Buckeye Wind consciously defied those requirements.

B. Buckeye Wind Was Required To Submit An Application For A Certificate Amendment, But Refused To Do So.

R.C. 4906.06(A) requires an applicant for a major utility certificate to file an

“application, in such form as the board prescribes.” OPSB has prescribed the form for an

application in Ohio Adm.Code 4906-5-03.3

3 OPSB recently revised and reorganized its rules. The rule requirements discussed in this brief still exist, but are found in rules with different numbers. The Appendix provides copies of the cited rules in the form they existed at the time the Certificate extension was granted.

13

Similarly, R.C. 4906.06(E) provides that an applicant for an amendment to such a

certificate also must file an “application”:

An application for an amendment of a certificate shall be in such form and contain such information as the board prescribes.

The Board has implemented this statutory mandate in Ohio Adm.Code 4906-5-10(B), which

provides:

Applications for amendments to certificates shall be submitted in the same manner as if they were applications for a certificate, unless such amendment falls under a letter of notification or construction notice pursuant to the appendices to rule 4906-1-01 of the Administrative Code.

Accordingly, this rule requires every applicant for a certificate amendment to submit an

application containing the information required by Ohio Adm.Code 4906-5-03, except that

certain amendment applications may be submitted in the form of letters of notification or

construction notices as set forth in Appendices A and B of Ohio Adm.Code 4906-1-01. Notably,

applications by letters of notification and construction notices are allowed only for changes in

transmission lines, and do not pertain to a request to extend the deadline for starting construction

of wind turbines. See Appendices A and B of Ohio Adm.Code 4906-1-01 (Appx. 43-46) If

OPSB had intended to exempt construction extensions for wind turbines from the application

format of Ohio Adm.Code 4906-5-03, the Board would have included this exception in Ohio

Adm.Code 4906-5-10(B) along with its other exemptions.

A longstanding canon of statutory interpretation prohibits the creation of exceptions to

the general terms of a statute that are not provided by the statute itself. Dunbar v. State, 136

Ohio St. 3d 181, 2013-Ohio-2163, 992 N.E.2d 1111, ¶ 18; Wachendorf v. Shaver, 149 Ohio St.

231, 237, 78 N.E.2d 370 (1948). Administrative rules are subject to the same canons of

construction as statutes. State ex rel. R. Bauer & Sons Roofing & Siding, Inc. v. Indus. Comm.,

14

84 Ohio St. 3d 62, 66, 701 N.E.2d 995, ¶ 2 (1998); State ex rel. Miller Plumbing Co. v. Indus.

Comm'n, 149 Ohio St. 493, 496-97, 79 N.E.2d 553 (1948). R.C. 4906.06(E) requires an

application for every certificate amendment, without exception, and requires every application to

follow the format prescribed by OPSB. Ohio Adm.Code 4906-5-10(B) requires every

application for a certificate amendment to follow the format established by Ohio Adm.Code

4906-5-03, except for certain transmission lines listed in Appendices A and B of Ohio

Adm.Code 4906-1-01. Consequently, OPSB’s governing statute and rules do not authorize the

Board to exempt Buckeye Wind from submitting an application under Ohio Adm.Code 4906-5-

03 for the amendment of Condition 52.

Nevertheless, the Board’s Entry extending the Certificate contends that, “in keeping with

the statutory requirements and the Board’s past precedent, a request for an extension of the term

of a certificate is properly filed as a motion for extension” instead of an application. (Entry of

Aug. 25, 2014, ICN 189 at 7, ¶ 15 (Appx. 14)) However, no statutory requirements authorize

such a practice, and the Board does not identify any in its Entry.

OPSB’s Entry on Rehearing did not dispute UNU’s point that applications are required for

certificate amendments. And the Entry on Rehearing admits that Buckeye Wind’s motion for

extension “is not an amendment application.” (Entry on Rehearing, ICN 195 at 7, ¶ 18 (Appx.

22)) Nevertheless, OPSB sought to avoid the application requirement by arguing that modifying

Condition 52 of the Certificate did not amend the Certificate. (Id. at 5-7, ¶¶ 15, 18 (Appx. 20,

22))

The Entry on Rehearing did not identify any statute exempting amendments to certificates’

construction deadlines from the statutory requirements for applications. In an attempt to make

such an argument, OPSB asserted that “requests for extension of that directive do not constitute

15

an amendment that would require a hearing pursuant to R.C. 4906.07, as a hearing is only

required when there is a change in the certificated facility that results in an environmental impact

or change in the location of the facility, which are changes associated with amendment

applications.” (Emphasis added.) (Id. at 5, ¶ 15 (Supp. 20)) However, OPSB was referring to

R.C. 4906.07(B), which provides:

On an application for an amendment of a certificate, the board shall hold a hearing in the same manner as a hearing is held on an application for a certificate if the proposed change in the facility would result in any material increase in any environmental impact of the facility or a substantial change in the location of all or a portion of such facility other than as provided in the alternates set forth in the application.

(Emphasis added.) Although R.C. 4906.07(B) provides that a hearing is required only if an

amendment results in environmental harm or a shift in location, R.C. 4906.07(B) does not

identify the circumstances in which an application must be submitted. Those requirements are

dictated by R.C. 4906.06(E) and Ohio Adm.Code 4906-5-10(B), which, in contrast to R.C.

4906.07(B), contain no exceptions for any certificate amendments.

The Entry on Rehearing also contends that Ohio Adm.Code Section 4906-1-05

authorized Buckeye Wind to apply for an extension by motion. (Entry on Rehearing, ICN 195 at

5, ¶ 15 (Appx. 20)) Notably, OPSB does not represent that Buckeye Wind’s motion for

extension was an application for a certificate amendment that was “in such form and contain[ed]

such information as the board prescribes” pursuant to R.C. 4906.06(E). In fact, OPSB disclaims

such a position, referring to the motion as “a procedural motion for an extension” that was not

“an amendment application.” (Id.) The motive for OPSB’s position is transparent: since all

applications are subject to investigation and report, the Board seeks to avoid the Staff

investigation and report that would be triggered by treating the motion as an application.

16

Instead of requiring an application, OPSB opined that it could extend the Certificate in

response to a motion filed pursuant to Ohio Adm.Code Section 4906-1-05. This rule provided:

For good cause shown, the board or the administrative law judge may extend or waive any time limit prescribed or allowed by Chapters 4906-1 to 4906-17 of the Administrative Code, except where precluded by statute. Any request for the extension or waiver of a time limit shall be made by motion.

The Board used this rule to extend the construction deadline. However, unless the Board treats a

motion for extension as an “application” for a certificate amendment, such a motion does not

satisfy the mandate in R.C. 4906.06(E) that requests for certificate amendments must be made by

“application.” Moreover, pretending that the motion was an application would not comply with

the edict in Ohio Adm.Code 4906-5-10(B) that “[a]pplications for amendments to certificates

shall be submitted in the same manner as if they were applications for a certificate.” Buckeye

Wind’s motion was not in the same form as an application for a certificate under Ohio

Adm.Code 4906-5-03.

The application requirements of R.C. 4906.06(E) and Ohio Adm.Code 4906-5-10(B)

apply to the amendments of any or all of a certificate’s provisions. Except for changes to

transmission lines covered by Appendices A and B of Ohio Adm.Code 4906-1-01, all

amendment applications must follow the format of Ohio Adm.Code 4906-5-03. Condition 52 is

a component of the Certificate, and the applicable legal authorities contain no exemption from

the application requirement for Condition 52. The OPSB’s governing statute and its own rules

do not allow the Board to bypass the amendment procedures designed to protect the public, and

the Court should not allow the Board to ignore these requirements at its whim.

17

Proposition of Law No. 2: The Ohio Power Siting Board’s Amendment Of A Certificate For A Major Utility Facility Requires A Staff Investigation Of Public Impacts And A Staff Report Recommending Findings About The Amendment’s Environmental Impact, Public Interest, Convenience, Necessity, And Other Effects Pursuant To R.C. 4906.10(A).

The filing of an application for a certificate or certificate amendment triggers important

procedures designed to promote public participation and the examination of potential harms to

the public. R.C. 4906.07(C) requires the Board’s Staff to investigate the potential impacts of all

applications:

The chairperson of the power siting board shall cause each application filed with the board to be investigated and shall, not less than fifteen days prior to the date any application is set for hearing submit a written report to the board and to the applicant. A copy of such report shall be made available to any person upon request. Such report shall set forth the nature of the investigation, and shall contain recommended findings with regard to division (A) of section 4906.10 of the Revised Code and shall become part of the record and served upon all parties to the proceeding.

Thus, R.C. 4906.07(C) directs the OPSB to investigate and prepare a Staff report on each

application. R.C. 4906.07(C) requires the Staff report to contain recommended findings on

whether an application meets the protective criteria of R.C. 4906.10(A). R.C. 4906.10(A) allows

the Board to approve an application only, inter alia, if it provides for the “minimum adverse

environmental impact” and “will serve the public interest, convenience, and necessity.”

Similarly, Ohio Adm.Code 4906-5-10(B)(1) provides:

The board staff shall review applications for amendments to certificates pursuant to rule 4906-5-05 of the Administrative Code and make appropriate recommendations to the board and the administrative law judge.

This rule requires the Board’s Staff to review applications for certificate amendments pursuant to

Ohio Adm.Code 4906-5-05(D), which in turn requires the Board’s Staff to conduct the

investigation and prepare the Staff report for all applications as required by R.C. 4906.07(C).

18

Thus, Ohio Adm.Code 4906-5-10(B)(1) expressly subjects certificate amendments to the same

investigatory and reporting requirements as the certificates themselves.

These authorities do not specify the Staff activities that must be conducted to perform the

investigation. Nor do they dictate the report’s length or degree of detail. Consequently, the Staff

investigation and report can be as simple or as complex as necessary to deal with the nature and

public impacts of the requested amendment. But regardless of the amendment’s nature and

impacts, an investigation must be conducted and a report must be prepared to ensure that the

Board actually evaluates an amendment’s consequences.

The Board’s process for amending Buckeye Wind’s Certificate circumvented these

important safeguards. Buckeye Wind refused to submit an application for the Certificate

amendment in an attempt to avoid an investigation and report, and OPSB declined to enforce this

requirement. Instead, the company’s attorneys filed a ten page motion asking the Board to

modify Condition 52 of the Certificate.

Unlike a properly prepared application, Buckeye Wind’s motion did not contain the

information required by Ohio Adm.Code 4906-5-03. The motion was bereft of discussion about

the extension’s potential impact on the public.

The Board granted the motion without directing its Staff to conduct an investigation and

prepare a report to evaluate the effects of the extension on the public as required by R.C.

4906.07(C), R.C. 4906.10(A), Ohio Adm.Code 4906-5-05(D), and Ohio Adm.Code 4906-5-

10(B)(1). Thus, the Board evaded the mandate in R.C. 4906.07(C) to make “recommended

findings with regard to division (A) of section 4906.10 of the Revised Code,” which include

determinations of “minimum adverse environmental impact,” “public interest, convenience, and

necessity,” and other criteria for public protection. The Board’s circumvention of these

19

requirements also violated its own rules, since Ohio Adm.Code 4906-5-10(B)(1) and 4906-5-

05(D) repeat the mandate in R.C. 4906.07(C).

Even if Buckeye Wind’s motion served as an “application” required by R.C. 4906.06(E)

and Ohio Adm.Code 4906-5-10(B), OPSB was still required to conduct an investigation and

prepare a report. R.C. 4906.07(C), Ohio Adm.Code 4906-5-05(D), and Ohio Adm.Code 4906-5-

10(B)(1) require investigations and reports for all amendment applications, regardless of form.

Consequently, OPSB could not evade its duties to conduct an investigation or prepare a report of

its findings even if Buckeye Wind’s motion was considered to be an application for a certificate

amendment.

OPSB has refused to perform its legal obligations for investigating and reporting on the

impacts of postponing the deadline in Condition 52 of the Certificate. Without fulfilling these

obligations, the Board does not know what harmful impacts this extension will impose on UNU

and other members of the public. The Court should not allow OPSB to willfully circumvent its

legal duties to protect the public.

CONCLUSION

The Certificate issued to Buckeye Wind explicitly states that all of the Certificate’s

conditions are included in the Certificate. Consequently, OPSB’s amendment of Condition 52

amended the Certificate.

R.C. 4906.06(E) and Ohio Adm.Code 4906-5-10(B) required Buckeye Wind to submit an

application pursuant to Ohio Adm.Code 4906-5-03 for the amendment of the Certificate, but

OPSB and Buckeye Wind refused to comply with this requirement. Instead, Buckeye Wind

submitted a motion, which OPSB and the company admit was not an application.

20

Even if Buckeye Wind’s motion for extension had been an application that was “in such

form and contain[ed] such information as the board prescribes” pursuant to R.C. 4906.06(E),

OPSB was still required to conduct a Staff investigation and prepare a Staff report to determine

whether the project currently complies with the criteria of R.C. 4906.10(A) designed to protect

the public. OPSB’s refusal to perform these duties violated R.C. 4906.07(C), R.C. 4906.10(A),

Ohio Adm.Code 4906-5-05(D), and Ohio Adm.Code 4906-5-10(B)(1).

Therefore, the Board acted unlawfully by amending the construction deadline in

Certificate Condition 52 without first complying with the legal requirements for application,

Staff investigation, and Staff report. UNU requests that the Court remand OPSB’s Entry of

August 25, 2014 (ICN 189) and the Entry on Rehearing (ICN 195) to OPSB with directions to

comply with these legal requirements.

Respectfully submitted,

s/ Jack A. Van Kley Jack A. Van Kley (0016961) Counsel of Record Van Kley & Walker, LLC 132 Northwoods Blvd., Suite C-1 Columbus, OH 43235 Telephone: (614) 431-8900 Facsimile: (614) 431-8905 Email: [email protected] Christopher A. Walker (0040696) Van Kley & Walker, LLC 137 North Main Street, Suite 316 Dayton, OH 45402-1772 Telephone: (937) 226-9000 Facsimile: (937) 226-9002 Email: [email protected] Counsel for Appellants

21

CERTIFICATE OF SERVICE

I hereby certify that, on December 31, 2015, a copy of the foregoing Merit Brief was

served upon the following persons by e-mail:

Michael J. Settineri Werner Margard Vorys, Sater, Seymour and Pease LLP Assistant Attorney General 52 East Gay Street Ohio Attorney General’s Office P.O. Box 1008 General Public Utilities Section Columbus, Ohio 43215 180 East Broad Street, 9th Floor [email protected] Columbus, Ohio 43215 Counsel for Appellee Buckeye Wind, LLC [email protected] Counsel for Appellee Ohio Power Siting Board Daniel A. Brown Brown Law Office, LLC 204 South Ludlow Street, Suite 300 Dayton, OH 45402 [email protected] Counsel for Urbana Country Club

s/ Jack A. Van Kley Jack A. Van Kley Counsel for Appellants

APPENDIX TO MERIT BRIEF

TABLE OF CONTENTS FOR THE APPENDIX

Notice of Appeal (Oct. 23, 2015) (ICN 196) ..................................................... 1-29 Entry (Aug. 25, 2015) (ICN 189) ............................................................................8 Entry on Rehearing (Sept. 30, 2015) (ICN 195) ....................................................16

R.C. 4903.13 ..........................................................................................................30 R.C. 4906.01 ..........................................................................................................31 R.C. 4906.04 ..........................................................................................................33 R.C. 4906.06 ..........................................................................................................34 R.C. 4906.07 ..........................................................................................................36 R.C. 4906.10 ..........................................................................................................37 R.C. 4906.12 ..........................................................................................................39 Ohio Adm.Code 4901-1-011 ..................................................................................40 Ohio Adm.Code 4901-1-01, Appendix A ..............................................................43 Ohio Adm.Code 4901-1-01, Appendix B ..............................................................45 Ohio Adm.Code 4906-1-05 ...................................................................................47 Ohio Adm.Code 4906-5-03 ...................................................................................48 Ohio Adm.Code 4906-5-05 ...................................................................................50 Ohio Adm.Code 4906-5-10 ...................................................................................52 Application for Rehearing of Union Neighbors United, Robert and Diane McConnell, and Julia F. Johnson (Sept. 24, 2015) (ICN 191) ....................54 Certificate of Service for the Appendix .................................................................70

1 The Appendix sets forth the cited rules in the form they existed at the time the Certificate extension was granted.

APPX. 001

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APPX. 029

12/30/2015 Lawriter ORC 4903.13 Reversal of final order notice of appeal.

http://codes.ohio.gov/orc/4903.13v1 1/1

4903.13 Reversal of final order notice of appeal.

A final order made by the public utilities commission shall be reversed, vacated, or modified by thesupreme court on appeal, if, upon consideration of the record, such court is of the opinion that such orderwas unlawful or unreasonable. The proceeding to obtain such reversal, vacation, or modification shall beby notice of appeal, filed with the public utilities commission by any party to the proceeding before it,against the commission, setting forth the order appealed from and the errors complained of. The notice ofappeal shall be served, unless waived, upon the chairman of the commission, or, in the event of hisabsence, upon any public utilities commissioner, or by leaving a copy at the office of the commission atColumbus. The court may permit any interested party to intervene by crossappeal.

Effective Date: 10011953

APPX. 030

12/30/2015 Lawriter ORC 4906.01 Power siting definitions.


4906.01 Power siting definitions.

As used in Chapter 4906. of the Revised Code:

(A) "Person" means an individual, corporation, business trust, association, estate, trust, or partnership orany officer, board, commission, department, division, or bureau of the state or a political subdivision of thestate, or any other entity.

(B)

(1) "Major utility facility" means:

(a) Electric generating plant and associated facilities designed for, or capable of, operation at a capacity offifty megawatts or more;

(b) An electric transmission line and associated facilities of a design capacity of one hundred twentyfivekilovolts or more;

(c) A gas pipeline that is greater than five hundred feet in length, and its associated facilities, is more thannine inches in outside diameter and is designed for transporting gas at a maximum allowable operatingpressure in excess of one hundred twentyfive pounds per square inch.

(2) "Major utility facility" does not include any of the following:

(a) Gas transmission lines over which an agency of the United States has exclusive jurisdiction ;

(b) Any solid waste facilities as defined in section 6123.01 of the Revised Code ;

(c) Electric distributing lines and associated facilities as defined by the power siting board;

(d) Any manufacturing facility that creates byproducts that may be used in the generation of electricity asdefined by the power siting board;

(e) Gathering lines, gas gathering pipelines, and processing plant gas stub pipelines as those terms aredefined in section 4905.90 of the Revised Code and associated facilities;

(f) Any gas processing plant as defined in section 4905.90 of the Revised Code;

(g) Natural gas liquids finished product pipelines;

(h) Pipelines from a gas processing plant as defined in section 4905.90 of the Revised Code to a naturalgas liquids fractionation plant, including a raw natural gas liquids pipeline, or to an interstate or intrastategas pipeline;

(i) Any natural gas liquids fractionation plant;

(j) A production operation as defined in section 1509.01 of the Revised Code, including all pipelinesupstream of any gathering lines;

(k) Any compressor stations used by the following:

(i) A gathering line, a gas gathering pipeline, a processing plant gas stub pipeline, or a gas processingplant as those terms are defined in section 4905.90 of the Revised Code;

APPX. 031

http://codes.ohio.gov/orc/6123.01






12/30/2015 Lawriter ORC 4906.01 Power siting definitions.


(ii) A natural gas liquids finished product pipeline, a natural gas liquids fractionation plant, or any pipelineupstream of a natural gas liquids fractionation plant; or

(iii) A production operation as defined in section 1509.01 of the Revised Code.

(C) "Commence to construct" means any clearing of land, excavation, or other action that would adverselyaffect the natural environment of the site or route of a major utility facility, but does not include surveyingchanges needed for temporary use of sites or routes for nonutility purposes, or uses in securing geologicaldata, including necessary borings to ascertain foundation conditions.

(D) "Certificate" means a certificate of environmental compatibility and public need issued by the powersiting board under section 4906.10 of the Revised Code or a construction certificate issued by the boardunder rules adopted under division (E) or (F) of section 4906.03 of the Revised Code.

(E) "Gas" means natural gas, flammable gas, or gas that is toxic or corrosive.

(F) "Natural gas liquids finished product pipeline" means a pipeline that carries finished product natural gasliquids to the inlet of an interstate or intrastate finished product natural gas liquid transmission pipeline,rail loading facility, or other petrochemical or refinery facility.

(G) "Natural gas liquids fractionation plant" means a facility that takes a feed of raw natural gas liquids andproduces finished product natural gas liquids.

(H) "Raw natural gas" means hydrocarbons that are produced in a gaseous state from gas wells and thatgenerally include methane, ethane, propane, butanes, pentanes, hexanes, heptanes, octanes, nonanes,and decanes, plus other naturally occurring impurities like water, carbon dioxide, hydrogen sulfide,nitrogen, oxygen, and helium.

(I) "Raw natural gas liquids" means naturally occurring hydrocarbons contained in raw natural gas that areextracted in a gas processing plant and liquefied and generally include mixtures of ethane, propane,butanes, and natural gasoline.

(J) "Finished product natural gas liquids" means an individual finished product produced by a natural gasliquids fractionation plant as a liquid that meets the specifications for commercial products as defined bythe gas processors association. Those products include ethane, propane, isobutane, normal butane, andnatural gasoline.

Amended by 129th General AssemblyFile No.125, SB 315, §101.01, eff. 9/10/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.


APPX. 032




12/30/2015 Lawriter ORC 4906.04 Certificate required for construction of major utility facility.


4906.04 Certificate required for construction of major utility facility.

No person shall commence to construct a major utility facility in this state without first having obtained acertificate for the facility. The replacement of an existing facility with a like facility, as determined by thepower siting board, shall not constitute construction of a major utility facility. Such replacement of a likefacility is not exempt from any other requirements of state or local laws or regulations. Any facility, withrespect to which such a certificate is required, shall thereafter be constructed, operated, and maintainedin conformity with such certificate and any terms, conditions, and modifications contained therein. Acertificate may only be issued pursuant to Chapter 4906. of the Revised Code. A certificate may betransferred, subject to the approval of the board, to a person who agrees to comply with the terms,conditions, and modifications contained therein.


APPX. 033

12/30/2015 Lawriter ORC 4906.06 Certificate application.


4906.06 Certificate application.

(A) An applicant for a certificate shall file with the office of the chairperson of the power siting board anapplication, in such form as the board prescribes, containing the following information:

(1) A description of the location and of the major utility facility;

(2) A summary of any studies that have been made by or for the applicant of the environmental impact ofthe facility;

(3) A statement explaining the need for the facility;

(4) A statement of the reasons why the proposed location is best suited for the facility;

(5) A statement of how the facility fits into the applicant's forecast contained in the report submitted undersection 4935.04 of the Revised Code;

(6) Such other information as the applicant may consider relevant or as the board by rule or order mayrequire. Copies of the studies referred to in division (A)(2) of this section shall be filed with the office of thechairperson, if ordered, and shall be available for public inspection.

The application shall be filed not more than five years prior to the planned date of commencement ofconstruction. The fiveyear period may be waived by the board for good cause shown.

(B) Each application shall be accompanied by proof of service of a copy of such application on the chiefexecutive officer of each municipal corporation and county, and the head of each public agency chargedwith the duty of protecting the environment or of planning land use, in the area in which any portion ofsuch facility is to be located.

(C) Each applicant within fifteen days after the date of the filing of the application shall give public notice topersons residing in the municipal corporations and counties entitled to receive notice under division (B) ofthis section, by the publication of a summary of the application in newspapers of general circulation in sucharea. Proof of such publication shall be filed with the office of the chairperson.

(D) Inadvertent failure of service on, or notice to, any of the persons identified in divisions (B) and (C) ofthis section may be cured pursuant to orders of the board designed to afford them adequate notice toenable them to participate effectively in the proceeding. In addition, the board, after filing, may require theapplicant to serve notice of the application or copies thereof or both upon such other persons, and fileproof thereof, as the board considers appropriate.

(E) An application for an amendment of a certificate shall be in such form and contain such information asthe board prescribes. Notice of such an application shall be given as required in divisions (B) and (C) ofthis section.

(F) Each application for certificate or an amendment shall be accompanied by the application feeprescribed by board rule. All application fees, supplemental application fees, and other fees collected bythe board shall be deposited in the state treasury to the credit of the power siting board fund, which ishereby created. The chairperson shall administer and authorize expenditures from the fund for any of thepurposes of this chapter. If the chairperson determines that moneys credited to the fund from anapplicant's fee are not sufficient to pay the board's expenses associated with its review of the application,the chairperson shall request the approval of the controlling board to assess a supplemental application

APPX. 034


12/30/2015 Lawriter ORC 4906.06 Certificate application.


fee upon an applicant to pay anticipated additional expenses associated with the board's review of theapplication or an amendment to an application. If the chairperson finds that an application fee exceeds theamount needed to pay the board's expenses for review of the application, the chairperson shall cause arefund of the excess amount to be issued to the applicant from the fund.



APPX. 035

12/30/2015 Lawriter ORC 4906.07 Public hearing on application.


4906.07 Public hearing on application.

(A) Upon the receipt of an application complying with section 4906.06 of the Revised Code, the powersiting board shall promptly fix a date for a public hearing thereon, not less than sixty nor more than ninetydays after such receipt, and shall conclude the proceeding as expeditiously as practicable.

(B) On an application for an amendment of a certificate, the board shall hold a hearing in the samemanner as a hearing is held on an application for a certificate if the proposed change in the facility wouldresult in any material increase in any environmental impact of the facility or a substantial change in thelocation of all or a portion of such facility other than as provided in the alternates set forth in theapplication.

(C) The chairperson of the power siting board shall cause each application filed with the board to beinvestigated and shall, not less than fifteen days prior to the date any application is set for hearing submita written report to the board and to the applicant. A copy of such report shall be made available to anyperson upon request. Such report shall set forth the nature of the investigation, and shall containrecommended findings with regard to division (A) of section 4906.10 of the Revised Code and shallbecome part of the record and served upon all parties to the proceeding.



APPX. 036



12/30/2015 Lawriter ORC 4906.10 Basis for decision granting or denying certificate.


4906.10 Basis for decision granting or denying certificate.

(A) The power siting board shall render a decision upon the record either granting or denying theapplication as filed, or granting it upon such terms, conditions, or modifications of the construction,operation, or maintenance of the major utility facility as the board considers appropriate. The certificateshall be conditioned upon the facility being in compliance with standards and rules adopted under sections1501.33, 1501.34, and 4561.32 and Chapters 3704., 3734., and 6111. of the Revised Code. An applicantmay withdraw an application if the board grants a certificate on terms, conditions, or modifications otherthan those proposed by the applicant in the application. The period of initial operation under a certificateshall expire two years after the date on which electric power is first generated by the facility. During theperiod of initial operation, the facility shall be subject to the enforcement and monitoring powers of thedirector of environmental protection under Chapters 3704., 3734., and 6111. of the Revised Code and tothe emergency provisions under those chapters. If a major utility facility constructed in accordance withthe terms and conditions of its certificate is unable to operate in compliance with all applicablerequirements of state laws, rules, and standards pertaining to air pollution, the facility may apply to thedirector of environmental protection for a conditional operating permit under division (G) of section3704.03 of the Revised Code and the rules adopted thereunder. The operation of a major utility facility incompliance with a conditional operating permit is not in violation of its certificate. After the expiration ofthe period of initial operation of a major utility facility, the facility shall be under the jurisdiction of theenvironmental protection agency and shall comply with all laws, rules, and standards pertaining to airpollution, water pollution, and solid and hazardous waste disposal.

The board shall not grant a certificate for the construction, operation, and maintenance of a major utilityfacility, either as proposed or as modified by the board, unless it finds and determines all of the following:

(1) The basis of the need for the facility if the facility is an electric transmission line or gas pipeline;

(2) The nature of the probable environmental impact;

(3) That the facility represents the minimum adverse environmental impact, considering the state ofavailable technology and the nature and economics of the various alternatives, and other pertinentconsiderations;

(4) In the case of an electric transmission line or generating facility, that the facility is consistent withregional plans for expansion of the electric power grid of the electric systems serving this state andinterconnected utility systems and that the facility will serve the interests of electric system economy andreliability;

(5) That the facility will comply with Chapters 3704., 3734., and 6111. of the Revised Code and all rulesand standards adopted under those chapters and under sections 1501.33, 1501.34, and 4561.32 of theRevised Code. In determining whether the facility will comply with all rules and standards adopted undersection 4561.32 of the Revised Code, the board shall consult with the office of aviation of the division ofmultimodal planning and programs of the department of transportation under section 4561.341 of theRevised Code.

(6) That the facility will serve the public interest, convenience, and necessity;

(7) In addition to the provisions contained in divisions (A)(1) to (6) of this section and rules adopted underthose divisions, what its impact will be on the viability as agricultural land of any land in an existingagricultural district established under Chapter 929. of the Revised Code that is located within the site and

APPX. 037










12/30/2015 Lawriter ORC 4906.10 Basis for decision granting or denying certificate.


alternative site of the proposed major utility facility. Rules adopted to evaluate impact under division (A)(7) of this section shall not require the compilation, creation, submission, or production of any information,document, or other data pertaining to land not located within the site and alternative site.

(8) That the facility incorporates maximum feasible water conservation practices as determined by theboard, considering available technology and the nature and economics of the various alternatives.

(B) If the board determines that the location of all or a part of the proposed facility should be modified, itmay condition its certificate upon that modification, provided that the municipal corporations and counties,and persons residing therein, affected by the modification shall have been given reasonable noticethereof.

(C) A copy of the decision and any opinion issued therewith shall be served upon each party.



APPX. 038

12/30/2015 Lawriter ORC 4906.12 Procedures of public utilities commission to be followed.


4906.12 Procedures of public utilities commission to be followed.

Sections 4903.02 to 4903.16 and 4903.20 to 4903.23 of the Revised Code shall apply to any proceedingor order of the power siting board under Chapter 4906. of the Revised Code, in the same manner as if theboard were the public utilities commission under such sections.


APPX. 039





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Adopted Regulation

Proposed Regulation

As used in Chapters 49061 to 490617 of the Administrative Code:

General applicable to both gas and electric

(A) “Accepted, complete application” means an application which the chairman orindividual designated by the chairman declares in writing to be accepted and incompliance with the content requirements of section 4906.06 of the Revised Code,pursuant to section 4906.07 of the Revised Code and paragraph (C) of rule 4906505 ofthe Administrative Code.

(B) “Administrative law judge” means the attorney examiner of the public utilitiescommission or other representative of the board assigned to a case by the chairman.

(C) “Agricultural district” means any agricultural district established pursuant to Chapter929. of the Revised Code.

(D) “Applicant” means any person filing an application for approval of a major utilityfacility under Chapter 4906. of the Revised Code.

(E) “Application” means an application filed with the board under the requirements ofChapters 490611 to 490617 of the Administrative Code.

(F) “Board” means the Ohio power siting board, as established by division (A) of section4906.02 of the Revised Code.

(G) “Certificate” means a certificate of environmental compatibility and public need,issued by the board.

(H) “Chairman” means the chairman of the board as established by division (A) of section4906.02 of the Revised Code.

(I) “Commence to construct” has the meaning set forth in division (C) of section 4906.01of the Revised Code.

(J) “Construction notice” means a document filed with the board under the requirementsof rule 49061102 of the Administrative Code.

(K) “Letter of notification” means a document filed with the board under the requirementsof rule 49061101 of the Administrative Code.

(L) “Major utility facility” means:

(1) An electric power generating plant and associated facilities designed for, orcapable of operating at a net capacity of fifty megawatts or more. (Net capacity inthis context means the estimated net demonstrated capability of the generating plantand associated facilities. Generally, the generated output at the switchyard busbarafter reductions for generated power used and needed for plant operation isequivalent to the net demonstrated capability).

(2) An electric power transmission line and associated facilities.

(3) A gas or natural gas transmission line and associated facilities.

Baldwin's Ohio Administrative Code Annotated4906 Power Siting Board (Refs & Annos)Chapter 49061. General Provisions (Refs & Annos)

OAC 4906101

4906101 Definitions

Currentness

4906101 DefinitionsOH ADC 4906101 Ohio Administrative Code (Approx. 7 pages)

APPX. 040

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A major utility facility does not include electric power, gas, or natural gas distributinglines and gas or natural gas gathering lines and associated facilities, nor gas ornatural gas transmission lines over which an agency of the United States hasexclusive jurisdiction.

(M) “Person” means an individual, corporation, business trust, association, estate, trust,or partnership, or any officer, board, commission, department, division, or bureau of thestate or a political subdivision of the state, or any other entity.

(N) “Replacement of an existing facility with a like facility” means replacing an existingmajor utility facility with a major utility facility of equivalent rating and operatingcharacteristics.

(O) “Substantial addition,” in the case of an electric power or gas or natural gastransmission line facility already in operation and not operating under a certificate, is anyaddition or modification of that facility which is listed in the “Application RequirementMatrix” contained in appendix A and appendix B to this rule. Construction necessary torestore service of a transmission line damaged by reason of natural disaster or humancaused accident does not constitute a substantial addition and therefore does not requirethe filing of a certificate application, letter of notification, or construction notice.

Gas applicable to gas only

(P) “Associated facility” or “associated facilities,” where used in Chapters 49061 to 490615 of the Administrative Code in conjunction with a gas or natural gas transmission line,includes rightsofway, land, structures, mains, valves, meters, compressors, regulators,tanks and other transmission items, and equipment used for the transmission of gas ornatural gas from and to a gas or natural gas transmission line.

(Q) “Gas or natural gas transmission line” is defined as a gas or natural gas transmissionline which is more than nine inches in outside diameter and is designed for, or capableof, transporting gas or natural gas at pressures in excess of one hundred twentyfivepounds per square inch. A gas or natural gas transmission line does not include land,structures, or equipment used to maintain a site or facility for the storage of gas ornatural gas, but may include a gas or natural gas transmission line used for purposes oftransporting gas or natural gas to or from such a site or facility.

Electric applicable to electric only

(R) “Associated facility” or “associated facilities”, where used in Chapters 49061 to 490617 of the Administrative Code in conjunction with an electric power transmission linemeans any line, and associated facility of a design capacity of one hundred twentyfivekilovolts or more.

(1) Where poles or towers support both transmission and distribution conductors, thepoles, towers, anchors, guys and rightsofway shall be classified as transmissionwhile the conductors, crossarms, braces, grounds, tiewires, insulators, etc., shall beclassified as transmission or distribution according to the purposes for which they areused.

(2) Transmission voltage switching stations and stations which change electricityfrom one transmission voltage to another transmission voltage shall be classified astransmission stations. Those stations which change electricity from transmissionvoltage to distribution voltage shall be classified as distribution stations.

(3) Rightsofway, land, structures, breakers, switches, transformers, and othertransmission items and equipment used for the transmission of electricity at voltagesof one hundred and twentyfive kilovolts or greater shall be classified as transmissionrelated.

(S) “Electric power transmission line” is defined as an electric power line which has adesign capacity of one hundred twentyfive kilovolts or more.

(T) “Substantial addition,” in the case of an electric power generating plant, is anymodification of a utility facility not operating under a certificate, which modification in itselfconstitutes a major utility facility or wind farm. In general, the following examples apply tothis definition:

(1) Addition of an electric power generating unit of fifty megawatts or greater to anexisting plant.

APPX. 041



(2) Addition of a fifty megawatts or greater electric power generating unit which isdesigned to operate in conjunction with an existing unit to establish a combinedcycleunit.

(3) Addition of an electric power generating unit to an existing plant which is not amajor utility facility, with the result that the combined capacity of the new facility isfifty megawatts or greater.

(4) Addition of a windpowered electric generation turbine to an existing wind energyfacility, with the result that the combined capacity of the new facility is five megawattsor greater.

(U) “Wind farm” means an economically significant windpowered electric generationfacility, including wind turbines and associated facilities, with a single interconnection tothe electrical grid that is designed for, or capable of, operation at an aggregate capacityof five megawatts or more but less than fifty megawatts. Wind farm does not include anysuch windpowered electric generation facility in operation as of June 24, 2008.

CreditsHISTORY: 200809 OMR pam. #10 (A), eff. 5709; 200809 OMR pam. #7 (A), eff. 12509; 200304 OMR 1726 (A), eff. 121503; 199899 OMR 365 (A), eff. 82898; 198889OMR 1171 (RE), eff. 61089; prior PSC101

RC 119.032 rule review date(s): 113013; 111008; 93008; 93003; 82803; 93098

Rules and appendices are current through November 20, 2015

4906101, OH ADC 4906101

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

Westlaw. © 2015 Thomson Reuters Privacy Statement Accessibility Supplier Terms Contact Us 1800REFATTY (18007332889) Improve Westlaw

APPX. 042


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APPENDIX A

APPLICATION REQUIREMENT MATRIX FOR ELECTRIC POWER TRANSMISSION LINES

Description of the Proposed Electric Power Transmission Line and Associated Facilities

Certificate Application

(BTX, BTA, or BSB)

Required

Letter of Notification Application

(BLN) Required

Construction Notice Application

(BNR) Required

4906-15-01 through 4906-15-07

4906-11-01 4906-11-02

(1) Rerouting or extension or new construction of single or multiple circuit electric power transmission line(s) as follows:

(a) Line(s) three hundred kilovolts (kV) and above, and not greater than 0.1 mile in length.

X

(b) Line(s) three hundred kV and above, and greater than 0.1 mile but not greater than one mile in length.

X

(c) Line(s) three hundred kV and above, and greater than one mile in length.

X

(d) Line(s) one hundred twenty-five kV and above, but less than three hundred kV, and not greater than 0.2 miles in length.

X

(e) Line(s) one hundred twenty-five kV and above, but less than three hundred kV, and greater than 0.2 miles in length but not greater than two miles in length.

X

(f) Line(s) one hundred twenty-five kV and above, but less than three hundred kV, and greater than two miles in length.

X

(2) Adding additional circuits on existing structures designed for multiple circuit use.

(a) No new permanent access roads or structure replacement, and no widened right-of-way required.

X

(b) New permanent access roads or structure replacement or widened right-of-way required.

X

(3) Replacing conductors on existing structures with larger or bundled conductors.

X

ACTION: Final DATE: 04/27/2009 12:05 PMENACTEDAppendix

4906-1-01

APPENDIX p(46397) pa(73458) d(213850) ra(186451) print date: 04/27/2009 9:03 PM

APPX. 043

(4) Replacing electric power transmission line

structure(s) with a different type of structure(s) or adding structure(s) within an existing electric power transmission line and:

(a) Two miles or less of new right-of-way required.

X

(b) More than two miles of new right-of-way required.

X

(5) Rebuilding existing electric power transmission line(s) for operation at a higher voltage, for a distance of:

(a) Two miles or less. X (b) More than two miles. X

(6) Upgrading existing line(s) less than one hundred twenty-five kV to a voltage of one hundred twenty-five kV or greater, for a distance of:

(a) Two miles or less. X (b) More than two miles. X

(7) Constructing a new electric power trans-mission substation (except pole-mounted switching stations).

X

(8) Constructing additions to existing electric power transmission substations where:

(a) There is a twenty percent or less expansion of the fenced area.

X

(b) There is a greater than twenty percent expansion of the fenced area.

X

(9) Replacement or relocation of an electric power transmission line and associated facilities where the project is required by publicly funded entities and is located on or adjacent to right-of-way or land owned by the public entity requiring the project.

X

* The three-letter acronyms in the column header refer to the three-letter purpose codes that are assigned to these types of applications when filed with and given a case number by the Ohio Power Siting Board.

APPX. 044

APPENDIX B APPLICATION REQUIREMENT MATRIX

FOR GAS TRANSMISSION LINES

Description of the Proposed Gas Transmission Line and Associated Facilities (Designed for, or Capable of, Transporting Gas or Natural Gas at Pressures in Excess of One Hundred Twenty-Five Pounds per Square Inch)

Certificate Application

(BTX or BTA) Required

Letter of Notification Application

(BLN) Required

Construction Notice Application

(BNR) Required

4906-15-01 through 4906-15-07

4906-11-01 4906-11-02

(1) Rerouting or extension or new gas transmission line and associated facilities:

(a) Not greater than one mile in length. X (b) Greater than one mile in length but not

greater than five miles in length, and 9 through 13 inches in outside diameter.

X

(c) Greater than five miles in length, and 9 through 13 inches in outside diameter.

X

(d) Greater than one mile in length and greater than 13 inches in outside diameter.

X

(2) Adding a compressor station to an existing gas transmission line.

X

(3) Replacing an existing gas transmission line with a like facility where such replacement re-quires an increase in the width of existing right-of-way, and where the expanded right-of-way is:

(a) Less than one mile in length. X (b) Greater than or equal to one mile in

length but not greater than five miles in length.

X

(c) Greater than five miles in length. X (4) Gas transmission lines greater than one mile

which meet all the following criteria: X

(a) The facility proposed for construction must be located wholly within an existing or planned gas or natural gas distribution area.

(b) The company must wholly own or solely operate the facility after completion of construction.

(c) The primary purpose of the facility proposed for construction will be direct distribution of gas to consumers. The term "direct distribution of gas to con-sumers" means that at least sixty percent of the total volume of gas passing through the line on an annual basis must be gas which:

(i) Is titled to the distribution company and/or an end user.

ACTION: Final DATE: 04/27/2009 12:05 PMENACTEDAppendix

4906-1-01

APPENDIX p(46397) pa(73458) d(213852) ra(186451) print date: 04/27/2009 9:03 PM

APPX. 045

(ii) Is priced for retail sale, or the trans-portation of which is subject to the terms of an end user contract, mu-nicipal ordinance rate, or tariff, under the laws of the state of Ohio.

(iii) Will move directly from taps on the line to burner-tip facilities owned and operated by consumers or end users.

(5) Replacement or relocation of gas transmission line facilities where the project is required by publicly funded entities and is located on or adjacent to new right-of-way owned by the public entity requiring the project.

X

* The three-letter acronyms in the column header refer to the three-letter purpose codes that are assigned to these types of applications when filed with and given a case number by the Ohio Power Siting Board.

APPX. 046

12/30/2015 4906105 Extensions or waiver of time limits Westlaw

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Adopted Regulation

Proposed Regulation

For good cause shown, the board or the administrative law judge may extend or waiveany time limit prescribed or allowed by Chapters 49061 to 490617 of the AdministrativeCode, except where precluded by statute. Any request for the extension or waiver of atime limit shall be made by motion.

CreditsHISTORY: 200809 OMR pam. #10 (A), eff. 5709; 200809 OMR pam. #7 (A), eff. 12509; 200304 OMR 646 (RRD); 199798 OMR 3406 (RRD); 198889 OMR 1173 (RE), eff.61089; prior PSC105

RC 119.032 rule review date(s): 113013; 111008; 93008; 93003


4906105, OH ADC 4906105



Baldwin's Ohio Administrative Code Annotated4906 Power Siting Board (Refs & Annos)Chapter 49061. General Provisions (Refs & Annos)

OAC 4906105

4906105 Extensions or waiver of time limits

Currentness

4906105 Extensions or waiver of time limitsOH ADC 4906105 Ohio Administrative Code (Approx. 3 pages)

APPX. 047

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Adopted Regulation

Proposed Regulation

(A) In addition to the requirements of Chapter 49061 of the Administrative Code, thefollowing conditions apply to certificate applications:

(1) Each page of the certificate application shall be numbered.

(2) Copies of the certificate application shall be submitted in hardcover, looseleafbinders labeled with the following information.

(a) Name of applicant.

(b) Name of the proposed facility or wind farm.

(c) Year of submittal of the certificate application.

(3) Each certificate application shall be accompanied by a cover letter containing thefollowing information:

(a) Name and address of the applicant.

(b) Name and location of the proposed facility or wind farm.

(c) Name and address of the applicant's authorized representative.

(d) An explanation of any information that was presented by the applicant in thepreapplication notification letter that has been revised by the applicant since theissuance of the letter.

(e) Notarized statement that the information contained in the certificateapplication is complete and correct to the best knowledge, information and beliefof the applicant.

(B) The information contained within the certificate application shall conform to therequirements of Chapter 490613, 490615, or 490617 of the Administrative Code,whichever is applicable, except that a certificate application for a major utility facility whichis related to a coal research and development project as defined in section 1555.01 ofthe Revised Code, or to a coal development project as defined in section 1551.30 of theRevised Code, submitted to the Ohio coal development office for review under division(B)(8) of section 1551.33 of the Revised Code, shall be the full final proposal as acceptedby the Ohio coal development office.

(C) The scale of all maps required by Chapters 490613, 490615, and 490617 of theAdministrative Code may be reduced in a scale not to exceed a factor of four times therequired scale provided that the applicant supplies:

(1) For staff review, five fullscale copies of all maps required by Chapters 490613,490615, and 490617 of the Administrative Code to the board at the time ofsubmitting the certificate application.

(2) A fullscale copy of all maps required by Chapters 490613, 490615, and 490617 of the Administrative Code to:

(a) All persons referenced in rule 4906506 of the Administrative Code.

Baldwin's Ohio Administrative Code Annotated4906 Power Siting Board (Refs & Annos)Chapter 49065. Certificate Applications for Major Utility Facilities (Refs & Annos)

OAC 4906503

4906503 Form and content of certificate applications

Currentness

4906503 Form and content of certificate applicationsOH ADC 4906503 Ohio Administrative Code (Approx. 5 pages)

APPX. 048

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(b) All persons who shall thereafter become parties to the proceedings.

(3) All copies of the application that contain reducedsize maps shall also containinformation on how to request fullsize maps (e.g., name, address, telephonenumber, email address).

(D) For purposes of Chapters 490613, 490615, and 490617 of the AdministrativeCode, the costs and benefits of the direct and indirect effects of siting decisions shall beexpressed in monetary and quantitative terms whenever doing so is practicable. Allresponses shall be supported by:

(1) An indication of the source of data.

(2) The assumptions made.

(3) The methods of reaching the conclusions.

(4) The justification for selection of alternatives.

CreditsHISTORY: 200809 OMR pam. #10 (A), eff. 5709; 200809 OMR pam. #7 (A), eff. 12509; 200304 OMR 1730 (RE), eff. 121503; 199899 OMR 368 (RE), eff. 82898;198889 OMR 1176 (RE), eff. 61089; prior PSC503

RC 119.032 rule review date(s): 113013; 111008; 93008; 82803; 93098


4906503, OH ADC 4906503



APPX. 049






12/30/2015 4906505 Completeness of certificate applications and staff investigations and reports Westlaw

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Adopted Regulation

Proposed Regulation

(A) Upon receipt of a certificate application for a wind farm or major utility facility which isnot related to a coal research and development project as defined in section 1551.01 ofthe Revised Code, or to a coal development project as defined in section 1551.30 of theRevised Code, submitted to the Ohio coal development office for review under division(B)(8) of section 1551.33 of the Revised Code, the chairman shall examine the certificateapplication to determine compliance with Chapters 49061 to 490617 of theAdministrative Code. Within sixty days following receipt, the chairman shall either:

(1) Accept the certificate application as complete and complying with the contentrequirements of section 4906.06 of the Revised Code and Chapters 49061 to 490617 of the Administrative Code.

(2) Reject said certificate application as incomplete, setting forth specific grounds onwhich the rejection is based.

The chairman shall mail a copy of the completeness decision to the applicant.

(B) Upon receipt of a certificate application for a major utility facility which is related to acoal research and development project as defined in section 1551.01 of the RevisedCode, or to a coal development project as defined in section 1551.30 of the RevisedCode, submitted to the Ohio coal development office for review under division (B)(8) ofsection 1551.33 of the Revised Code, the chairman shall promptly accept the certificateapplication as complete and shall notify the applicant to file the accepted, completeapplication in accordance with the provisions of rules 4906506 and 4906507 of theAdministrative Code.

(C) Upon accepting a certificate application as complete, the chairman shall promptlynotify the applicant to serve and file a certificate of service for the accepted, completeapplication in accordance with rules 4906506 and 4906507 of the AdministrativeCode.

(D) The chairman shall direct the staff to conduct an investigation of each accepted,complete application and to submit a written report as provided by division (C) of section4906.07 of the Revised Code not less than fifteen days prior to the beginning of publichearings.

(1) The staff report for a wind farm or major utility facility which is not related to acoal research and development project as defined in section 1551.01 of the RevisedCode, or to a coal development project as defined in section 1551.30 of the RevisedCode, submitted to the Ohio coal development office for review under division (B)(8)of section 1551.33 of the Revised Code, shall set forth the nature of theinvestigation, and shall contain recommended findings with regard to division (A) ofsection 4906.10 of the Revised Code and all applicable rules contained in Chapters49061 to 490617 of the Administrative Code.

(2) The staff report for a major utility facility which is related to a coal research anddevelopment project as defined in section 1551.01 of the Revised Code, or to a coaldevelopment project as defined in section 1551.30 of the Revised Code, submitted


OAC 4906505

4906505 Completeness of certificate applications and staffinvestigations and reports

Currentness

4906505 Completeness of certificate applications and staff investigations and reportsOH ADC 4906505 Ohio Administrative Code (Approx. 5 pages)

APPX. 050

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to the Ohio coal development office for review under division (B)(8) of section1551.33 of the Revised Code, shall set forth the nature of the investigation and shallcontain recommended findings with regard to divisions (A)(2), (A)(3), (A)(5), and (A)(7) of section 4906.10 of the Revised Code.

(3) The staff report shall become part of the record.

(4) Copies of the staff report shall be served upon the board members, theadministrative law judge assigned to the case, the applicant, and all persons whohave or shall thereafter become parties to the proceedings. Copies shall be madeavailable to any person upon request.

(5) The chairman shall cause either a copy of such staff report or a notice of theavailability of such staff report to be placed in the main public library of each politicalsubdivision as referenced in division (B) of section 4906.06 of the Revised Code. If anotice is provided, that notice shall state that an electronic or paper copy of the staffreport is available from the board staff (with instructions as to how to obtain anelectronic or paper copy) and available for inspection at the board's main office. Thestaff will also maintain on the board's web site information as to how to request anelectronic or paper copy of the staff report. Upon request for a paper copy of thestaff report, the staff shall supply the report without cost.

CreditsHISTORY: 200809 OMR pam. #10 (A), eff. 5709; 200809 OMR pam. #5 (RRD); 200304 OMR 1731 (RE), eff. 121503; 199899 OMR 368 (RE), eff. 82898; 198889 OMR1176 (RE), eff. 61089; prior PSC505

RC 119.032 rule review date(s): 93013; 111008; 93008; 82803; 93098


4906505, OH ADC 4906505



APPX. 051


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12/30/2015 4906510 Amendments of accepted, complete certificate applications and of certificates Westlaw

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Adopted Regulation

Proposed Regulation

(A) The applicant shall submit to the board any applications for amendment to a pendingaccepted, complete application in accordance with rule 4906503 of the AdministrativeCode.

(1) Each application for amendment shall specifically identify the portion of thepending accepted, complete application which has been amended.

(2) The applicant shall serve a copy of the application for amendment upon allpersons previously entitled to receive a copy of the application, and shall supply theboard with proof of such service, pursuant to rules 4906506 and 4906507 of theAdministrative Code.

(3) The applicant shall place a copy of such application for amendment or notice ofits availability in all libraries consistent with of rule 4906506 of the AdministrativeCode, and shall supply the board with proof of such action.

(4) Upon review, the board or the administrative law judge may require suchadditional action as is determined necessary to inform the general public of theproposed amendment, including, but not limited to:

(a) Ordering the applicant to issue public notice pursuant to rule 4906508 ofthe Administrative Code.

(b) Postponing public hearings on the pending, accepted, complete applicationand/or application for amendment up to ninety days after receipt of saidapplication for amendment.

(5) The board staff shall review the application for amendment pursuant toparagraph (D) of rule 4906505 of the Administrative Code.

(6) Unless otherwise ordered by the board or administrative law judge, modificationsto a proposed route that are introduced into the record by the applicant duringreview of the accepted, complete application and during the hearing process shallnot be considered amendments if such modifications are within the two thousandfoot study corridor and do not impact additional landowners by requiring easementsfor construction, operation, or maintenance or create further impacts within theplanned rightofway of the proposed facility.

Unless otherwise ordered by the board or administrative law judge, modifications tothe footprint of an electric power generating facility that are introduced into therecord by the applicant during review of the accepted, complete application andduring the hearing process shall not be considered amendments if suchmodifications do not create further impacts for each property owner or within theplanned site, or within the rightofway of the proposed facility.

(B) Applications for amendments to certificates shall be submitted in the same manner asif they were applications for a certificate, unless such amendment falls under a letter ofnotification or construction notice pursuant to the appendices to rule 4906101 of theAdministrative Code.


OAC 4906510

4906510 Amendments of accepted, complete certificate applicationsand of certificates

Currentness

4906510 Amendments of accepted, complete certificate applications and of certificatesOH ADC 4906510 Ohio Administrative Code (Approx. 5 pages)

APPX. 052

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(1) The board staff shall review applications for amendments to certificates pursuantto rule 4906505 of the Administrative Code and make appropriaterecommendations to the board and the administrative law judge.

(a) If the board, its executive director, or the administrative law judge determinesthat the proposed change in the certified facility would result in any significantadverse environmental impact of the certified facility or a substantial change inthe location of all or a portion of such certified facility other than as provided inthe alternates set forth in the application, then a hearing shall be held in thesame manner as a hearing is held on a certificate application.

(b) If the board, its executive director, or the administrative law judge determinesthat a hearing is not required, as defined in paragraph (B)(1)(a) of this rule, theapplicant shall be directed to take such steps as are necessary to notify allparties of that determination.

(2) The applicant shall:

(a) Serve a copy of the application for amendment to a certificate upon:

(i) The persons entitled to service pursuant to rule 4906506 of theAdministrative Code.

(ii) All parties to the original certificate application proceedings.

(b) File with the board proof of service and, if required, proof of notice pursuantto rules 4906506 to 4906508 of the Administrative Code.

(C) Unless otherwise ordered by the board, its executive director, or administrative lawjudge, the filing, notifications, informational requirements and processing timelines for aletter of notification or construction notice application for an amendment to a certificateissued for a transmission facility shall be determined by referring to the appropriateappendix to rule 4906101 of the Administrative Code. Such application shall use theletter of notification or construction notice docketing code. In such application, theapplicant shall reference the case docket in which the certificate was granted.

CreditsHISTORY: 200809 OMR pam. #12 (A), eff. 61909; 200809 OMR pam. #7 (A), eff. 12509; 200304 OMR 1733 (A), eff. 121503; 199899 OMR 370 (RE), eff. 82898;199495 OMR 107 (RE), eff. 8694; 198889 OMR 1178 (E), eff. 61089; 197879OMR 4620 (R), eff. 5779; prior PSC510

RC 119.032 rule review date(s): 113013; 111008; 93008; 93003; 82803; 93098


4906510, OH ADC 4906510



APPX. 053






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APPX. 054

APPX. 055

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APPX. 057

APPX. 058

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APPX. 060

APPX. 061

APPX. 062

APPX. 063

APPX. 064

APPX. 065

APPX. 066

APPX. 067

APPX. 068

APPX. 069

APPX. 070

CERTIFICATE OF SERVICE

I hereby certify that, on December 31, 2015, a copy of the foregoing Appendix was

served upon the following persons by e-mail:

Michael J. Settineri Werner Margard Vorys, Sater, Seymour and Pease LLP Assistant Attorney General 52 East Gay Street Ohio Attorney General’s Office P.O. Box 1008 General Public Utilities Section Columbus, Ohio 43215 180 East Broad Street, 9th Floor [email protected] Columbus, Ohio 43215 Counsel for Appellee Buckeye Wind, LLC [email protected] Counsel for Appellee Ohio Power Siting Board Daniel A. Brown Brown Law Office, LLC 204 South Ludlow Street, Suite 300 Dayton, OH 45402 [email protected] Counsel for Urbana Country Club

s/ Jack A. Van Kley Jack A. Van Kley Counsel for Appellants

IN THE SUPREME COURT OF OHIO Wind LLC for a Certificate to...

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