Oregon Bulletin
Rule
Caption: Procedures for consumer-owned
utility power purchases to comply with the greenhouse gas emissions standard.
Adm.
Order No.: DOE 9-2011
Filed with Sec. of
State: 11-22-2011
Certified to be
Effective: 11-22-11
Notice Publication
Date: 8-1-2011
Rules Adopted: 330-180-0010, 330-180-0020, 330-180-0030, 330-180-0040,
330-180-0050, 330-180-0060, 330-180-0070
Subject: The purpose of the ODOE rules is to provide procedures
for consumer-owned utilities to implement Oregon’s greenhouse gas emissions
standard of ORS 757.528 AND 757.533 for power purchases. The proposed rules
provide guidance for:
An output-based
methodology for calculating greenhouse gases;
how electricity
with no identified generation source will be addressed; and
A process for
determining how facilities would be designated as a “low-carbon resource” in
the future and be eligible for meeting the greenhouse gas standards.
Rules Coordinator: Kathy Stuttaford—(503) 373-2127
330-180-0010
Purpose and Scope
These rules provide procedures to assist the governing
boards of consumer-owned utilities to comply with the greenhouse gas emissions
performance standard for electricity established in ORS 757.522 to 757.536.
Stat. Auth.: ORS 757.522 -
757.538, 469.040
Stats. Implemented: ORS 757.522 -
757.538
Hist.: DOE 9-2011, f. & cert.
ef. 11-22-11
330-180-0020
Definitions
(1) “Cogeneration facility” means a facility where the
sequential generation of electric energy and the production of steam or other
forms of useful energy (such as heat) from the same primary energy source or
fuel are used for industrial, commercial, heating, or cooling purposes.
(2) “Department” means the Oregon Department of Energy
pursuant to ORS 469.020(5).
(3) “Director” means the director of the department
pursuant to ORS 469.020(6).
(4) “Low-Carbon Emissions Resource” means a generating
facility that is capable of meeting the greenhouse gas emissions standard
through the use of technologies, fuels, or feedstocks that work together to
result in an emissions rate at or below the emissions standard, or by
sequestering a sufficient portion of greenhouse gas emissions such the net
greenhouse gas emissions at the generating facility are maintained at or below
the standard.
(5) “Useful thermal energy” is the net thermal energy
made available by a cogeneration facility for processes or applications other
than for the generation of electricity, taking into account any portion of the
total thermal energy produced that is used as part of the cogeneration process
or that is discharged as waste.
Stat. Auth.: ORS 757.522 -
757.538, 469.040
Stats. Implemented: ORS 757.522 -
757.538
Hist.: DOE 9-2011, f. & cert.
ef. 11-22-11
330-180-0030
Greenhouse Gas Emissions Standard
(1) The greenhouse gas emissions standard is 1,100
pounds (0.5 metric tons) of greenhouse gases per megawatt-hour (MWh) of
electricity for a generating facility as specified by ORS 757.528(1).
(2) The greenhouse gas emissions standard includes only
carbon dioxide (CO2) emissions.
(3) A governing board of a consumer-owned utility
entering into a long-term financial commitment as defined at ORS 757.522(10)(a)
demonstrates compliance with these rules by making a written determination that
baseload electricity acquired under the long-term financial commitment entered
into by the utility’s governing board is produced by a generating facility that
complies with the greenhouse gas emissions standard established in this rule.
Stat. Auth.: ORS 757.522 -
757.538, 469.040
Stats. Implemented: ORS 757.522 -
757.538
Hist.: DOE 9-2011, f. & cert.
ef. 11-22-11
330-180-0040
Low-Carbon Emissions Resource Plan
(1) The governing board of a consumer-owned utility, or
entity acting on behalf of one or more governing boards, may submit a plan for
a generating facility to become a low-carbon emissions resource to the
department. The department will make a determination as to whether the plan
includes sufficient technical documentation to demonstrate that the generating
facility is capable of becoming a low-carbon emissions resource within seven
years of commencing operations at the generating facility. The plan must contain
sufficient technical documentation to demonstrate:
(a) The net greenhouse gas emissions from the
generating facility taking into account any greenhouse gas emissions that are
captured, sequestered, or otherwise prevented from being released into the
atmosphere – will be at or below the greenhouse gas emissions standard
established in this rule;
(b) Additional capacity or capability exists to lower
net greenhouse gas emissions over time to meet potential reductions in the
greenhouse gas emissions standard;
(c) To the extent that maintenance of the low-carbon
emissions resource requires one or more feedstocks, that sufficient supply of
the feedstock(s) will be available for use by the generating facility;
(d) How other conditions identified by the governing
board(s) to meet and maintain the low-carbon emissions resource status over
time can and will be met by the generating facility.
(2) The department determination that the plan includes
sufficient technical documentation to demonstrate that the generating facility
is capable of becoming a low-carbon emissions resource within seven years of
commencing operations must be obtained prior to entering into a long-term
commitment with that generating facility.
(3) The department will begin a review within 90 days
of receipt of a plan and provide a determination to the governing board(s) as
to whether the plan includes sufficient technical documentation to demonstrate
that the generating facility is capable of becoming a low-carbon emissions
resource within seven years of commencing operations. A plan may be
re-submitted to the department for reconsideration if additional technical
documentation is available.
(4) If the Oregon Public Utility Commission makes a
determination pursuant to ORS 757.531(2)(c) that a plan for a generating
facility to become a low-carbon emissions resource is sufficient then the
governing board of a consumer-owned utility may consider that determination to
provide a sufficient demonstration for purposes of ORS 757.533(2)(c) to
consider the same generating facility, utilizing the same plan and under the
same time frame, as a low-carbon emissions resource in lieu of a review of that
plan by the department.
(5) The department may waive the need or alter the
timeline to submit a plan to become a low-carbon emissions resource for good
cause shown.
Stat. Auth.: ORS 757.522 -
757.538, 469.040
Stats. Implemented: ORS 757.522 -
757.538
Hist.: DOE 9-2011, f. & cert.
ef. 11-22-11
330-180-0050
Unspecified Emissions
(1) Long-term financial commitments consisting of
contracts for electricity where the greenhouse gas emissions cannot readily be
determined with any specificity are those in which:
(a) The
contract does not allow for the identification of one or more generating
facilities from which the contracted energy is derived; or,
(b) The
contract does not provide sufficient detail about the resource mix from which
the contracted energy is derived to determine the greenhouse gas emissions
associated with the contracted energy.
(2) Emissions to be attributed to such contracts for
purposes of determining compliance with the emissions standard in this rule are
to be derived as follows:
(a) By
utilizing data from greenhouse gas emissions reports or otherwise submitted to
the Oregon Department of Environmental Quality or the US Environmental
Protection Agency characterizing the emissions profile of the baseload
electricity if that electricity is anticipated to be representative of the
contracted energy in the long-term financial commitment; or,
(b) By utilizing the greenhouse gas emissions reporting
protocols and emissions factors required by the Oregon Department of
Environmental Quality or the US Environmental Protection Agency to estimate the
expected emissions profile of the baseload electricity in the long-term
financial commitment; or,
(c) If
unable to use the greenhouse gas reporting data, procedures, or protocols
utilized by the Oregon Department of Environmental Quality or the US
Environmental Protection Agency to assign emissions to the baseload electricity
by multiplying the amount of energy for which emissions cannot be determined
with specificity by an emissions factor of 1,100 pounds of greenhouse gases per
megawatt hour to determine the greenhouse gas emissions.
Stat. Auth.: ORS 757.522 - 757.538,
469.040
Stats. Implemented: ORS 757.522 -
757.538
Hist.: DOE 9-2011, f. & cert.
ef. 11-22-11
330-180-0060
Methodology for Calculating
Greenhouse Gas Emissions
(1) A generating facility’s annual average electricity
production in megawatt-hours (MWh) is the sum of the electricity available for
all of the following:
(a) Use onsite;
(b) Use at a host site in a commercial or industrial
process;
(c) Sale; or
(d) Transmission from the generating facility.
(2) The greenhouse gases for cogeneration facilities
must include the total usable energy output of the process and includes all
greenhouse gases emitted by the facility in the production of both electrical
and thermal energy.
(a) A cogeneration facility’s annual average
electricity production is the sum of the MWh of electricity produced and the
useful thermal energy output expressed in MWh.
(b) The useful thermal energy output must be converted
into a MWh equivalent using the standard engineering conversion factor of 3.413
MMBtu per MWh (or 3,413 Btu per kWh).
(3) In
determining whether a generating facility complies with the emissions standard,
the total emissions associated with producing energy at the generating facility
must be included in determining the rate of emissions of greenhouse gases. The
total emissions associated with producing electricity at the generating
facility do not include emissions associated with transportation, fuel
extraction or other life-cycle emissions associated with obtaining the fuel for
the facility.
Stat. Auth.: ORS 757.522 -
757.538, 469.040
Stats. Implemented: ORS 757.522 -
757.538
Hist.: DOE 9-2011, f. & cert.
ef. 11-22-11
330-180-0070
Exemptions
The requirement for a governing body to report
exemptions to the department as required by ORS 757.528(7) must be in writing
and may be submitted electronically or by regular mail.
Stat. Auth.: ORS 757.522 -
757.538, 469.040
Stats. Implemented: ORS 757.522 -
757.538
Hist.: DOE 9-2011, f. & cert.
ef. 11-22-11
Rule
Caption: Amendments to Business Energy Tax
Credit rules to implement Oregon Laws 2011, Chapter 730 (HB 3672).
Adm.
Order No.: DOE 10-2011
Filed with Sec. of
State: 11-30-2011
Certified to be
Effective: 11-30-11
Notice Publication
Date: 10-1-2011
Rules Adopted: 330-090-0160
Rules Amended: 330-090-0133
Subject: These permanent rule amendments implement changes made
by Oregon Laws 2011, Chapter 730 (house Bill 3672) to the Business Energy Tax
Credit program. These amendments implement statutory changes to the sunset of
the program, and provide a process for participants to demonstrate “beginning
construction before April 15, 2011” for the purpose of extending the time
allowed to receive final certification of their facility.
Rules Coordinator: Kathy Stuttaford—(503) 373-2127
330-090-0133
How ODOE Processes a Final
Application
(1) Processing the Final Certification: To qualify for
a Final Certification, the facility must be completed as described in the
Application for Preliminary Certification and the Preliminary Certificate. Any
changes to the Preliminary Certificate and/or Application for Preliminary
Certification must complete the amendment process outlined in these rules prior
to the project completion date. Failure to obtain approval through the
amendment process may result in denial of the Final Certification Application.
(a) Applications shall be considered received for the
purposes of ORS 469.220 on the date marked received by the department, unless
the application is incomplete. If the application for final certification is
not complete, the date marked received by the department on the complete
application containing all of the required information shall be considered the
received date.
(A) When a facility owner chooses to transfer the tax
credit under ORS 469.206, the Department may hold the application for final
certification until pass-through partner(s) information is received by the
Department. Except for a facility using or producing renewable energy resources
with a certified cost that exceeds $10 million, any application in which the
facility owner has indicated a choice to transfer the tax credit under ORS
469.206 is not a “completed application” until the Department receives both the
completed final certification application form from the facility owner and the
completed pass-through partner agreement form for the tax credit, or portion of
the tax credit, being transferred to that pass-through partner. The receipt of
the completed application by the Department begins the certification period, as
provided in ORS 469.220.
(B) As provided in Oregon Laws, 2011, Chapter 693,
Section(2)(c), a facility using or producing renewable energy resources with a
certified cost that exceeds $10 million and that receives final certification
under ORS 469.215 after January 1, 2010, a final certification application
shall be considered complete without the identification of a transferee for
purposes of ORS 469.206 or 469.208.
(C) If more than one pass-through partner is being
transferred the credit, facility owners may have up to 18 months from the date
the first pass-through partner agreement form is received by the Department to
begin each certification period of the tax credit. For pass-through partner(s)
agreement forms received by the Department after the 18-month period, the
certification period begins 18 months from the date the first pass-through
partner agreement form was received by the Department.
(D) For purposes of administering the sunset of the
program, the Department may issue a Final Certificate to a facility owner who
previously indicated a choice to transfer a tax credit to a pass-through
partner under ORS 469.206, if the Department has not received a completed
application that includes the signed pass-through partner agreement form at
least sixty days prior to the sunset date for the BETC program provided under
ORS 315.357. The Final Certificate will be issued to a facility owner if the only
piece causing the application for final certification to be incomplete is the
pass-through partner(s) agreement form.
(b) Within
30 days after a final certification application is received, the Director will
determine whether the application is complete. An application is incomplete if
it does not include information needed to demonstrate substantive compliance
with the provisions of ORS 469.185 to 469.225 and any applicable rules or
standards and preliminary certification conditions adopted by the Director. If
it is not complete, the applicant will be provided a written explanation
describing deficiencies. If it is complete, the Director will process the
application. Within 60 days after a completed final certification application
is received the director will either approve or deny the final certification.
(c) If the Director approves the application, the
Director will issue final certification, which will state the amount of
certified costs and the amount of the tax credit approved. The final certification
may contain additional criteria and conditions that must be met in order to
retain tax credit benefits or the tax credit certificate may be subject to
revocation. If the facility fails to meet any of the criteria, conditions and
requirements established in the final certification, the facility owner must
notify the Department within 30 days.
(d) For efficient truck technology facilities the
department may, upon the request of the applicant, issue no more than two final
certificates for each preliminary certification, up to the amount of the
preliminary certification.
(2) Basis for Denying Tax Credit Benefits
(a) If the Director does not approve the application,
the Director will provide written notice of the action, including a statement
of the findings and reasons for the denial by regular and certified mail.
(b) A final certification application that is denied
can be submitted again. A final certification application can be amended or
withdrawn by the applicant. If an application is submitted again or amended,
the time within which final certification review occurs starts over.
(c) If the Director does not issue a final
certification within 60 days after an application is filed, the application is
denied pursuant to ORS 469.215(4).
(d) The Director may deny a final certificate if:
(A) The applicant does not provide information about
the facility in a reasonable time after the Director requests it;
(B) The facility is significantly different than the
proposed facility for which the preliminary certification was issued;
(C) The applicant misrepresents or fails to construct
or operate the facility;
(D) The applicant fails to demonstrate that the
facility described in the application is separate and distinct from previous or
current applications reviewed by the Department;
(E) The facility does not meet all of the conditions
and requirements contained in the preliminary certificate; or
(F) The applicant is unable to demonstrate that the
facility complies with all applicable provisions of ORS Chapter 469 and the
rules adopted thereunder.
(3) Basis for Revoking Tax Credit Benefits
(a) The Director may revoke certificates as provided in
ORS 469.225 and ORS 315.354 (5). For the purposes of this section, “fraud or
misrepresentation” means any misrepresentation made by an applicant for a
preliminary or final certification, including but not limited to,
misrepresentations as to the applicant’s financial viability, facility
construction and operation, or any other information provided as part of an
application for a preliminary or final certification.
(b) After the Director issues a final certificate, an
applicant must notify the director in writing of any of the following
conditions:
(A) The facility has been moved;
(B) Title to the facility has been conveyed;
(C) The facility is subject to or part of a bankruptcy
proceeding;
(D) The facility is not operating; or
(E) The term of a leased facility has ended.
(c) Pursuant to ORS 469.225, upon receiving information
that a BETC certification was obtained by fraud or misrepresentation, or that
the facility has not been constructed or operated in compliance with the
requirements in the certificate, the Director shall revoke the certificate for
the facility.
(d) A revocation of the final certification or portion
of a certification due to fraud or misrepresentation results in the loss of all
prior and future tax credits in connection with that facility. If all or a part
of the tax credit certificate has been transferred to a Pass-through partner
under ORS 469.206, the certificate is not considered revoked as to the
Pass-through partner, but the facility owner is liable for the amount of tax
credits claimed or that could be claimed.
(e) The revocation of a certificate due to failure to
construct or operate the facility in compliance with the certificate results in
the loss of any tax credits not yet claimed by the facility owner. If all or a
part of the tax credit certificate has been transferred to a Pass-through
partner under ORS 469.206, the certificate is not considered revoked as to the
Pass-through partner, but the facility owner is liable for the amount of tax
credits claimed or that could be claimed.
(4) Sale or Disposition of the Facility after Final
Certification:
(a) Pursuant to ORS 315.354(5), upon receiving notice
that the facility has been sold or otherwise transferred, the Director will
revoke the final certificate, as of the date of the disposition of the
facility, unless the BETC for the facility has already been transferred under
ORS 468.206.
(b) The new owner or new or renewed lessee of a
facility may apply for a final certificate. The request must comply with OAR
330-090-0130(10) and include information to allow the Director to determine the
amount of tax credit not claimed by the former owner or former lessee. If the
facility continues to comply with the requirements set out in these rules and
any applicable conditions imposed by the Director, the Director will issue a
new final certification consistent with the provisions of ORS 315.354(5).
(5) Request for Reconsideration: No later than 60 days
after the Director issues an order on a preliminary certification, amendment to
a preliminary certification, final certification, or canceling or revoking a
final certificate under these rules, the applicant or certificate holder may
request reconsideration in writing.
(6) Inspections: After an application is filed under
ORS 469.205 or ORS 469.215 or a tax credit is claimed under these rules, the
Department may inspect the facility. The Department will schedule the
inspection during normal working hours, following reasonable notice to the
facility operator.
Stat. Auth.: ORS 469.040 &
469.165
Stats. Implemented: ORS 469.185 -
469.225
Hist.: DOE 2-2009(Temp), f. &
cert. ef. 11-3-09 thru 5-1-10; DOE 3-2010, f. & cert. ef. 4-30-10; DOE
4-2010(Temp), f. 5-21-10, cert. ef. 5-27-10 thru 11-2-10; Administrative
correction 11-23-10; DOE 14-2010, f. & cert. ef. 11-23-10; DOE
3-2011(Temp), f. 4-15-11, cert. ef. 4-18-11 thru 10-14-11; DOE 6-2011, f. &
cert. ef. 9-29-11; DOE 7-2011, f. & cert. ef. 10-25-11; DOE 10-2011, f.
& cert. ef. 11-30-11
330-090-0160
Sunset of the Business Energy Tax
Credit Program
(1) Oregon Laws 2011, chapter 730, amends the sunset of
the Business Energy Tax Credit Program and implements dates by which final
certification must be issued for an applicant to be allowed a credit under ORS
315.354. Applicants must meet the deadlines that apply to their project:
(a) Applicants with a preliminary certification for a
facility that uses or produces renewable energy resources that are unable to
demonstrate evidence of beginning construction before April 15, 2011 must file
a complete application for final certification before the expiration of the
preliminary certification and receive final certification before January 1,
2013. The Director does not guarantee that a complete final certification
application received on or after November 1, 2012 will be processed prior to
January 1, 2013. Applicants that have not already extended their preliminary
certification may file for an extension under OAR 330-090-0130.
(b) Applicants with a preliminary certification for a
facility that uses or produces renewable energy resources that are able to
demonstrate evidence of beginning construction before April 15, 2011 must file
a complete application for final certification before the expiration of the
preliminary certification. Applicants that have not already extended their
preliminary certification may file for an extension under OAR 330-090-0130.
(c) Applicants with a preliminary certification for a
facility other than a facility that uses or produces renewable energy resources
that are unable to demonstrate evidence of beginning construction before April
15, 2011 must receive final certification before January 1, 2013. The Director
does not guarantee that a complete final certification application received on
or after November 1, 2012 will be processed before January 1, 2013.
(d) Applicants with a preliminary certification for a
facility other than a facility that uses or produces renewable energy resources
that are able to demonstrate evidence of beginning construction before April
15, 2011 must file a complete application for final certification on or before
July 1, 2014.
(2) Applicants with a preliminary certification may
apply to the department to demonstrate that construction of the facility began
before April 15, 2011.
(a) An application must include at least these items:
(A) A brief update on the progress of the facility.
(B) A construction schedule showing the anticipated
completion date.
(C) A statement that the facility will be completed as
approved in the preliminary certification.
(D) Evidence of beginning construction, including but
not limited to:
(i) A copy of an approved building, grading or other
permit issued for the facility, dated prior to April 15, 2011.
(ii) Evidence of site-specific construction activity,
for the period on or after the later of preliminary certification or building
permit approval and before April 15, 2011.
(iii) Evidence of facility-specific construction
activity, for the period on or after preliminary certification and before April
15, 2011.
(b) Evidence of site-specific construction activity may
include, but is not limited to:
(A) Paid invoices for completed construction activity.
(B) Timesheets for construction activities linked to
the facility site.
(C) Paid rental documentation for construction
equipment.
(D) A written report from the project engineer or
installer signed under penalties of perjury describing the work that had
commenced before April 15, 2011.
(c) Evidence of facility-specific construction activity
may include, but is not limited to:
(A) Paid invoices for facility-specific assembly or
manufacturing activity.
(B) Timesheets for assembly or manufacturing activities
linked to the facility.
(C) A written report from the project engineer or
manufacturer signed under penalties of perjury describing the work that had
commenced before April 15, 2011.
(d)
Applications must be received by the department before July 1, 2012.
(e) The Department will review the provided information
and respond to the application within 60 days. As part of its determination,
the department may request additional information from the applicant and may
perform inspections.
(A) The department will issue a written acceptance
letter to applicants who are able to demonstrate evidence of beginning
construction. The acceptance letter will state the date by which the applicant
must receive final certification to be allowed a credit under ORS 315.354.
(B) The department will issue a letter to applicants
who have not provided sufficient evidence of beginning of construction
providing reasons for the denial.
Stat. Auth.: ORS 469.040 &
469.165, 469.185-469.225, OL 2011, Ch. 730(HB 3672
Stats. Implemented: OL 2011, Ch.
730(HB 3672
Hist.: DOE 10-2011, f. & cert.
ef. 11-30-11
Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.
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