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Oregon Bulletin

September 1, 2012

Department of Energy, Chapter 330

Rule Caption: Permanent rules to administer the alternative fuel vehicle infrastructure tax credit within the Energy Incentives Program.

Adm. Order No.: DOE 9-2012

Filed with Sec. of State: 7-31-2012

Certified to be Effective: 8-1-12

Notice Publication Date: 6-1-2012

Rules Adopted: 330-220-0000, 330-220-0010, 330-220-0020, 330-220-0030, 330-220-0040, 330-220-0050, 330-220-0070, 330-220-0080, 330-220-0090, 330-220-0100, 330-220-0150

Rules Repealed: 330-220-0000(T), 330-220-0010(T), 330-220-0020(T), 330-220-0030(T), 330-220-0040(T), 330-220-0050(T), 330-220-0070(T), 330-220-0080(T), 330-220-0090(T), 330-220-0100(T), 330-220-0150(T)

Subject: These rules provide the operating framework for the alternative fuel vehicle infrastructure tax credit within Energy incentives Program created by HB 3672 (2011) and amended by HB 4079 (2012). The rules include the application process, allocation of tax credit within funding limits and issuance of tax credits.

 The department engaged an advisory committee to provide comments and feedback on the proposed rules. The committee met on April 17, 2012 and May 10, 2012. A public hearing was held on June 26, 2012.

Rules Coordinator: Kathy Stuttaford—(503) 373-2127

330-220-0000

Applicability of Rules in OAR 330, division 220

These rules implement the incentives program for alternative fuel vehicle infrastructure projects established in ORS 315.336 and ORS 469B.320 to 469B.347. The rules also provide procedures for submission, agency review and selection of alternative fuel vehicle infrastructure projects for preliminary and final certification of tax credits.

Stat. Auth.: ORS 315.336 & 469B.320 - 469B.347
Stats. Implemented: ORS 315.336 & 469B.320 - 469B.347
Hist.: DOE 2-2012(Temp), f. & cert. ef. 2-7-12 thru 8-3-12; DOE 9-2012, f. 7-31-12, cert. ef. 8-1-12

330-220-0010

Definitions

For the purposes of this division, the following definitions apply:

(1) “Acquisition” means installation or construction of an alternative fuel vehicle infrastructure project.

(2) “Alternative Fuel” means a motor vehicle fuel, other than petroleum gasoline or diesel, certified by the U.S. Environmental Protection Agency for roadway use that results in equivalent or lower exhaust emissions or higher energy efficiency when used. Alternative fuels include electricity, biofuels, hydrogen, hythane, methane, methanol, natural gas, compressed natural gas, liquefied natural gas, liquefied petroleum gas (propane), renewable diesel, butanol and other fuels the director allows. Blends of these alternative fuels with conventional fuels will only be considered an alternative fuel under these rules when the concentration of the alternative fuel is 20 percent of the entire volume of the blended fuel or greater. Hydrated fuels must have water content of 10 percent of the entire volume of the blended fuel or greater to be considered eligible as an alternative fuel under these rules.

(3) “Alternative fuel vehicle infrastructure project” has the meaning given in ORS 469B.320.

(4) “Applicant” means a person who has applied for or who has received a preliminary certificate for a transportation energy incentives program tax credit.

(5) “Certified cost” means the cost certified in the final certification.

(6) “Cost” means the capital expenditures to acquire, erect, design, build, convert, or install an alternative fuel vehicle infrastructure project.

(7) “Department” means the Oregon Department of Energy.

(8) “Director” means the director of the department.

(9) “Opportunity period” means the timeframe specified in an Opportunity Announcement for the department to accept applications for alternative fuel vehicle infrastructure projects.

(10) “Qualifying project cost” means the amount of the alternative fuel vehicle infrastructure project’s cost that may be eligible for tax credits.

(11) “Total project cost” means all costs directly associated with an alternative fuel vehicle infrastructure project, including ineligible costs.

Stat. Auth.: ORS 315.336 & 469B.320 - 469B.347
Stats. Implemented: ORS 315.336 & 469B.320 - 469B.347
Hist.: DOE 2-2012(Temp), f. & cert. ef. 2-7-12 thru 8-3-12; DOE 9-2012, f. 7-31-12, cert. ef. 8-1-12

330-220-0020

Opportunity Announcement

(1) The department will announce the availability of tax credits for alternative fuel vehicle infrastructure projects by issuing an Opportunity Announcement.

(2) The department will continually monitor the allocation of tax credits to ensure that the total amount of potential tax credits does not exceed the tax credit cap specified in ORS 469B.344.

(3) If the cumulative total of all tax credits awarded under the Opportunity Announcement is less than the total amount of tax credits available, the department may reallocate the balance to a future Opportunity Announcement.

(4) The Opportunity Announcement will include the following information:

(a) Objectives for the opportunity period;

(b) The amount of tax credits available;

(c) Application requirements, as defined in OAR 330-220-0050;

(d) Dates of the application opportunity period;

(e) Instructions and directions to the required application forms and materials;

(f) Minimum technical standards;

(g) The process the department will use to allocate tax credits; and

(h) Other information the department considers necessary.

Stat. Auth.: ORS 315.336 & 469B.320 - 469B.347
Stats. Implemented: ORS 315.336 & 469B.320 - 469B.347
Hist.: DOE 2-2012(Temp), f. & cert. ef. 2-7-12 thru 8-3-12; DOE 9-2012, f. 7-31-12, cert. ef. 8-1-12

330-220-0030

Preliminary Certification Application

(1) Any person may apply for a preliminary certification by submitting a complete preliminary certification application. The application must meet requirements provided by applicable statutes, these rules and the current Opportunity Announcement.

(a) The application must be in the form specified in the Opportunity Announcement and these rules.

(b) An applicant must submit a complete application during the opportunity period. For the purposes of this rule, the department considers an application “submitted” when the department receives the application. The department will not process applications received outside of an opportunity period.

(2) The application must be accompanied by the application fee specified in these rules. The department will not process applications received without fee payment.

(3) The application must include the following information, unless the department specifies otherwise in the Opportunity Announcement.

(a) The name of the applicant.

(A) If the applicant is a partnership, joint venture or association, the application must include the names of each person participating in the partnership, joint venture or association. The department may use this information to ensure compliance with ORS 469B.329.

(B) If the applicant is a corporation or limited liability company, the application must include the name of the corporation or LLC and its parent corporations, members and any close affiliates or subsidiaries. The department may use this information to ensure compliance with ORS 469B.329.

(C) If the applicant is a public or governmental entity, the application must include written authorization from the entity’s governing body allowing submission of the application.

(b) The name, address, email address and telephone number of the responsible party for the applicant.

(c) The applicant’s federal tax identification number or social security number, which may be shared with the Oregon Department of Revenue to facilitate the administration of state tax law.

(d) A statement verifying that the applicant will be the owner, contract purchaser or lessee of the alternative fuel vehicle infrastructure project at the time of acquisition of the project.

(e) A description of the personnel and teams that will be working on project development, implementation and operation.

(f) If the applicant has received final certification of tax credits or payment of grants issued by the department within the last 5 years, the application must contain a statement affirming the operational status of the projects awarded such grants or tax credits.

(g) The location of the alternative fuel vehicle infrastructure project.

(h) A statement explaining the amount by which use of the alternative fuel vehicle infrastructure project will displace petroleum fuel.

(i) A detailed description of the alternative fuel vehicle infrastructure project including:

(A) Information that demonstrates how the project will be technically feasible and how the project will operate for at least five years as represented in the application. This may require documentation in addition to the application form.

(B) A description of proposed fueling systems, the estimated number of alternative fuel vehicles that will use the proposed station, the type of alternative fuel that will be dispensed and the expected annual amount that will be dispensed.

(C) The expected operational life of the alternative fuel vehicle infrastructure project.

(j) A statement of compliance with applicable state and local regulations and that the applicant will obtain required licenses and permits.

(k) The number and type of new jobs that will be created by the alternative fuel vehicle infrastructure project and the number of existing jobs that will be sustained throughout construction, installation and operation of the project. Job estimates should be submitted in hours. These hours must directly relate to the alternative fuel vehicle infrastructure project.

(l) The anticipated total project cost of the alternative fuel vehicle infrastructure project.

(m) The amount of anticipated or received incentives directly related to the alternative fuel vehicle infrastructure project.

(n) A project schedule and project management plan.

(o) A description of the applicant’s financing plan for the alternative fuel vehicle infrastructure project including:

(A) Construction financing;

(B) Startup costs; and

(C) Pro forma financial statement showing the anticipated operating revenues and expenses of the alternative fuel vehicle infrastructure project during the first three years of operation.

(p) The dollar amount of tax credit requested by the applicant.

(q) If the applicant has already started acquisition of the alternative fuel vehicle infrastructure project, a written description of the special circumstances that rendered filing of an application prior to the start of acquisition unreasonable.

(r) Other information the department considers necessary.

Stat. Auth.: ORS 315.336 & 469B.320 - 469B.347
Stats. Implemented: ORS 315.336 & 469B.320 - 469B.347
Hist.: DOE 2-2012(Temp), f. & cert. ef. 2-7-12 thru 8-3-12; DOE 9-2012, f. 7-31-12, cert. ef. 8-1-12

330-220-0040

Application Fees

The department adopts the following schedule of fees as provided by ORS 469B.326. All fee payments are non-refundable, despite the results of the department’s review.

(1) Applicants must submit a fee of $200 with their preliminary certification application.

(2) Applicants selected for technical review will be required to pay an additional technical review fee prior to that review. The fee amount is equal to the qualifying project cost multiplied by 0.55 percent.

(3) Applicants requesting amendments to preliminary certifications must submit a fee of $300 with their amendment request.

(4) Applicants for final certification must submit with their application a final review fee. This fee amount is equal to the qualifying project cost multiplied by 0.5 percent. All applicants seeking final certification for a project are required to apply for final review and pay the final review fee.

(5) If the department is unable to complete a scheduled inspection due to actions by the applicant, the department will require the applicant to pay a re-inspection fee of $400 before rescheduling the inspection.

(6) Applicants that choose to transfer their tax credit to a pass-through partner, pursuant to OAR 330-230-0110 to 330-230-0140, must pay a pass-through fee. The fee is due after a pass-through partner has been identified and before the department will issue a tax credit certificate.

(a) If the department assists the applicant in obtaining a pass-through partner, or partners, the fee for that assistance is 1.25 percent of the tax credit amount, up to $25,000, plus $100 per tax credit certificate issued.

(b) If the department does not assist the applicant in obtaining a pass-through partner, the fee is $100 per tax credit certificate issued.

(7) Applicants issued a tax credit certificate that choose to have their tax credit certificate re-issued to a transferee must pay a transfer fee of $200 plus $100 per tax credit certificate issued.

(8) If an applicant fails to pay fees timely as required by this rule, the department may reject the pending application and discontinue the review.

Stat. Auth.: ORS 315.336 & 469B.320 - 469B.347
Stats. Implemented: ORS 315.336 & 469B.320 - 469B.347
Hist.: DOE 2-2012(Temp), f. & cert. ef. 2-7-12 thru 8-3-12; DOE 9-2012, f. 7-31-12, cert. ef. 8-1-12

330-220-0050

Completeness Review

(1) The department will determine that sufficient potential tax credits are available prior to beginning review of an application. The department may return applications, or offer a lower tax credit amount, if there are not sufficient potential tax credits available to award the amount of tax credit requested.

(2) The department will review all preliminary certification applications to determine whether:

(a) All sections of the application are complete.

(b) The applicant has submitted the required fee.

(c) The project meets the definition of an alternative fuel vehicle infrastructure project.

(d) The applicant is applying prior to the acquisition of the project.

(A) If the applicant applies after acquisition of the project has started, the department will deny the application unless a written explanation of the special circumstances is received and approved by the director.

(B) Failing to submit a timely application or not being selected for a grant or tax credit under this or prior department programs does not constitute special circumstances.

(e) The alternative fuel vehicle infrastructure project is located in Oregon.

(3) If the department finds that the application is complete, the application will move into the technical review process and the department will notify the applicant in writing.

(4) The department will deny all incomplete applications and notify applicants in writing of the reason for denial of the application.

(5) The department considers the completeness review as a test; the decision to deny an incomplete application is not an action subject to review under ORS 183.

(6) If an applicant has not started acquisition of the alternative fuel vehicle infrastructure project, an applicant may apply again for the same project in the same or a future Opportunity Announcement by submitting a new application and fee. The department will not apply fees submitted with a previous application to future applications.

Stat. Auth.: ORS 315.336 & 469B.320 - 469B.347
Stats. Implemented: ORS 315.336 & 469B.320 - 469B.347
Hist.: DOE 2-2012(Temp), f. & cert. ef. 2-7-12 thru 8-3-12; DOE 9-2012, f. 7-31-12, cert. ef. 8-1-12

330-220-0070

Technical Review

Once the applicant has paid the technical review fee, the department will conduct a technical review of alternative fuel vehicle infrastructure projects advanced from the completeness review. If the applicant does not submit the required payment to the department within 21 calendar days of notification for technical review, the department may deny the application.

(1) Once the applicant has paid the technical review fee, the department will conduct a technical review of alternative fuel vehicle infrastructure projects advanced from the completeness review. If the applicant does not submit the required payment to the department within 21 calendar days of notification for technical review, the department may deny the application.

(2) The department will review the information provided in the application against industry standards to determine whether the project is financially and technically feasible and should operate in accordance with the representations made by the applicant.

(3) To be eligible, the alternative fuel vehicle infrastructure project must meet the following requirements:

(a) The project must meet the requirements of the statutes, these rules and the Opportunity Announcement.

(b) The applicant must be the owner, contract purchaser or project lessee at the time of the project’s acquisition.

(c) The applicant must be a trade, business or rental property owner with a business site in Oregon or be an Oregon non-profit organization, tribe or public entity that partners with an Oregon business or resident. The applicant may not restrict membership, sales or service on the basis of race, color, creed, religion, national origin, sexual preference or gender.

(d) A project located at a residential property must be rental property. A rental property must meet laws related to rental accommodations and contain a dwelling unit or rooming unit with permanent living facilities. Living facilities include facilities for sleeping, eating, cooking and sanitation, for one or more persons, other than the property owner, which is subject to a rental agreement that provides for meaningful compensation to the owner.

(e) If the project is a Level 1, 120 volt AC or similar, charging station for electric vehicles, the charger must provide an average of at least 12 hours of connection time per use. Applicants must provide anticipated connection and charging patterns as part of the project description section of the application.

(4) The department will review the alternative fuel vehicle infrastructure project cost for eligibility. The application must document total project cost by providing a list of itemized costs.

(a) Qualifying project costs include:

(A) The cost of components of the alternative fuel vehicle infrastructure project, including all materials and supplies needed for the erection, construction, installation or acquisition of the proposed alternative fuel vehicle infrastructure project;

(B) The costs to extend or increase the capacity of utility connections are only eligible if located within the property lines of the project location. Qualifying costs for utility connections for electric vehicle charging stations are also limited by location to:

(i) $5,000 for a Level 1, 120 volt AC or similar, electric vehicle charging station.

(ii) $15,000 for a Level 2, 240 volt AC or similar, electric vehicle charging station.

(iii) $30,000 for a DC Fast Charger, or similar, electric vehicle charging station.

(C) Fees to design or engineer the alternative fuel vehicle infrastructure project;

(D) The cost of title searches, escrow fees, permit and license fees, excluding fees required by this rule, and shipping;

(E) Cost of work performed by the applicant’s employees or independent contractors if the following conditions are met:

(i) Employees or contractors must be certified, accredited, licensed or otherwise qualified to do the work;

(ii) The work must be associated with the erection, construction, installation or acquisition of the alternative fuel vehicle infrastructure project;

(iii) Project management and other similar costs may only account for up to 15 percent of the qualifying project costs; and

(iv) Costs for employees’ or contractors’ work on the alternative fuel vehicle infrastructure project must be detailed and documented as to specific tasks, hours worked and compensation costs.

(F) Costs for legal counsel that are directly related to the development of an alternative fuel vehicle infrastructure project;

(G) Costs of training associated with the alternative fuel vehicle infrastructure project that is approved by the department; and

(H) Other costs the department determines should be included.

(b) Qualifying project cost does not include:

(A) Interest and warranty charges;

(B) Litigation or other operational-related legal fees and court costs;

(C) Intellectual property search, application and filing payments;

(D) Donated, in-kind or volunteer labor and materials;

(E) Administrative costs to apply for grants, loans, tax credits or other similar funding for an alternative fuel vehicle infrastructure project including, but not limited to the tax credit review charge, costs associated with the creation and development of the certified public accountant attestation letter and costs associated with securing a pass-through partner for the project;

(F) Routine operational, routine maintenance and repair costs associated with the alternative fuel vehicle infrastructure project;

(G) The purchase of alternative fuel vehicles or the conversion of vehicles to use alternative fuels;

(H) Expenses that are deemed not to have a benefit to the alternative fuel vehicle infrastructure project, including but not limited to, fines, penalties, entertainment, food, alcohol, gifts and lobbying; and

(I) Other costs the department determines should be excluded.

(c) The department may do inspections to verify qualified project costs.

(d) An applicant may incur qualifying project costs prior to the submission of an application, but may not begin acquisition.

(5) If an application does not include all information needed to complete the technical review, the department may notify the applicant in writing, requesting additional information. If the department does not receive the requested information within 30 calendar days of the date of the notice, the department may deny the application.

(6) The department will notify the applicant in writing if the department denies the application during the technical review.

Stat. Auth.: ORS 315.336 & 469B.320 - 469B.347
Stats. Implemented: ORS 315.336 & 469B.320 - 469B.347
Hist.: DOE 2-2012(Temp), f. & cert. ef. 2-7-12 thru 8-3-12; DOE 9-2012, f. 7-31-12, cert. ef. 8-1-12

330-220-0080

Preliminary Certification

(1) The department may issue a preliminary certificate if it determines that the alternative fuel vehicle infrastructure project is technically feasible and capable of operating in accordance with the representations made by the applicant.

(2) The department may issue a tax credit that is less than the amount requested in the alternative fuel vehicle infrastructure project application, pursuant to statute and applicable rules.

(3) The sum of any incentives, grants, credits, other public funds and the alternative fuel vehicle infrastructure incentive may not exceed total project costs.

(4) The preliminary certificate will state the qualifying project cost, the potential amount of allowable tax credit and any conditions for claiming the credit.

(5) The applicant must report on the project’s status beginning one year from the issuing date of the preliminary certificate, unless the department has already received the project’s application for final certification. The applicant must continue to submit project progress reports to the department every six months after the initial report until the department receives the project’s application for final certificate. Failure to submit reports may result in revocation of the preliminary certification or denial of the final certification.

(6) A preliminary certification remains valid for a period of three calendar years after the date the department issues the preliminary certification or until the sunset of the program, whichever comes first.

Stat. Auth.: ORS 315.336 & 469B.320 - 469B.347
Stats. Implemented: ORS 315.336 & 469B.320 - 469B.347
Hist.: DOE 2-2012(Temp), f. & cert. ef. 2-7-12 thru 8-3-12; DOE 9-2012, f. 7-31-12, cert. ef. 8-1-12

330-220-0090

Amendments to Preliminary Certifications

(1) The applicant must notify the department of any changes to the project proposal as described in the application for preliminary certification.

(2) An applicant must declare all changes to the alternative fuel vehicle infrastructure project by the time the department receives the final certification application. Undeclared changes found in the application for final certification or through later inspection may result in denial of final tax credit certification.

(3) Applicants must submit an amendment request to the director to amend an alternative fuel vehicle infrastructure preliminary certification.

(4) Applicants must submit amendments on the form specified in the Opportunity Announcement.

(5) The applicant must demonstrate that the alternative fuel vehicle infrastructure project, with the proposed change, would continue to be technically feasible, would operate as represented and would remain in operation for at least five years. The applicant has the responsibility to provide an amendment request with complete technical documentation that will support a case for the proposed amendment. The department may deny amendments submitted without such justification.

(6) An amendment may result in a reduction in tax credit, but may not increase the tax credit amount certified in the preliminary certificate.

(7) If an amendment request does not include all information needed to complete the review, the department may provide the applicant a written request for additional information. If the applicant does not provide the requested information to the department within 30 calendar days of the date of the notice, the department may deny the request.

(8) Requests for amendments must include payment of the appropriate fee. The department may accept non-substantive changes, such as change of contact information, without payment of the fee.

(9) The department will decide whether to approve the request.

(a) If approved, the department will draft an amended preliminary certification, which may contain new or amended conditions and requirements.

(b) If denied, the department will notify the applicant in writing. The notice will include the reasons for the denial of the amendment request.

Stat. Auth.: ORS 315.336 & 469B.320 - 469B.347
Stats. Implemented: ORS 315.336 & 469B.320 - 469B.347
Hist.: DOE 2-2012(Temp), f. & cert. ef. 2-7-12 thru 8-3-12; DOE 9-2012, f. 7-31-12, cert. ef. 8-1-12

330-220-0100

Final Certification

(1) An alternative fuel vehicle infrastructure project must be completed and operational prior to applying for a final certification. An applicant must submit amendments to preliminary certifications before or with the final certification application.

(2) The department will not review applications for final certification received after the expiration of the preliminary certification or without the final review fee.

(3) The applicant must submit the application on the current department-issued form and all sections must be completed.

(4) The department will review the application, and may conduct an inspection, to verify:

(a) That the alternative fuel vehicle infrastructure project is complete and operating.

(b) Compliance with statute, rules and the preliminary certification.

(c) Compliance with state and local regulations, including required licenses and permits.

(d) The lease or rental agreement if the infrastructure is leased or rented.

(e) That applicable fuel taxes and property taxes for the project location are current.

(f) That the alternative fuel vehicle infrastructure will be maintained and operated for at least five years.

(g) The total project costs for acquisition of the project were paid in full.

(A) A certified public accountant must attest to the total project cost, or if the total project cost is less than $50,000, the applicant must submit copies of receipts for the project.

(i) The certified public accountant cannot be the project owner, nor permanently employed by the project owner or pass-through partner.

(ii) Receipts for proof of payment may include canceled checks, credit card statements, binding contracts and agreements.

(B) The application must demonstrate that contract and loan agreements directly related to the project are not in default.

(C) The application must include information regarding all incentives, regardless of source, applied for or received in connection with the project.

(h) Other information the director considers necessary.

(5) If an application for final certification does not include all information needed to complete the final certification review, the department may ask the applicant, in writing, to submit additional information. If the department does not receive the requested information within 30 calendar days of the date of the notice requesting additional information, the department may deny the application for final certification.

(6) The department will notify the applicant, in writing, if the department denies the application during final review. An applicant may submit a written request for reconsideration within 60 days after the department issues a decision on a final certification.

(7) The department will issue a final certification upon verification that the alternative fuel vehicle infrastructure project is complete and that the project complies with statute, rules, the preliminary certification and any other applicable requirements.

(a) The department may issue a credit up to 35 percent of the certified project cost. The department may certify a lesser tax credit amount than approved in the preliminary certificate, but may not certify a greater amount.

(b) The sum of any incentives, grants, credits or other public funds and the tax credit may not exceed total project costs.

(8) The department will send a written notification to applicants of its decision whether to issue a final certification within 60 days from the department receives a complete application for final certification. If more than 60 days pass from the date the department receives a complete application and the applicant has not received a written decision from the department, then the application is rejected and no further action will be taken. Any time required to provide additional information as provided in OAR 330-220-0100(5) is not included in this 60 day period.

Stat. Auth.: ORS 315.336 & 469B.320 - 469B.347
Stats. Implemented: ORS 315.336 & 469B.320 - 469B.347
Hist.: DOE 2-2012(Temp), f. & cert. ef. 2-7-12 thru 8-3-12; DOE 9-2012, f. 7-31-12, cert. ef. 8-1-12

330-220-0150

Compliance and Pass-through

All participants in this program are subject to OAR 330-230-0000 through OAR 330-230-0150.

Stat. Auth.: ORS 315.336 & 469B.320 - 469B.347
Stats. Implemented: ORS 315.336 & 469B.320 - 469B.347
Hist.: DOE 2-2012(Temp), f. & cert. ef. 2-7-12 thru 8-3-12; DOE 9-2012, f. 7-31-12, cert. ef. 8-1-12


 

Rule Caption: Permanent rules to administer the renewable energy development grant within the Energy Incentives Program.

Adm. Order No.: DOE 10-2012

Filed with Sec. of State: 8-15-2012

Certified to be Effective: 8-15-12

Notice Publication Date: 6-1-2012

Rules Adopted: 330-200-0000, 330-200-0010, 330-200-0020, 330-200-0030, 330-200-0040, 330-200-0050, 330-200-0060, 330-200-0070, 330-200-0080, 330-200-0090, 330-200-0150

Rules Repealed: 330-200-0000(T), 330-200-0010(T), 330-200-0020(T), 330-200-0030(T), 330-200-0040(T), 330-200-0050(T), 330-200-0060(T), 330-200-0070(T), 330-200-0080(T), 330-200-0090(T), 330-200-0150(T)

Subject: These rules provide the operating framework for the renewable energy development grant within the Energy Incentives Program. The rules include the application process, prioritization of applications within funding limits and performance agreement conditions. In February 2012, the Department of Energy adopted temporary rules for the renewable energy development program created by HB 3672 (2011) and amended by HB 4079 (2012), this rulemaking repeals the temporary rules and implements permanent rules. Since filing the temporary rules, the department has issued a funding opportunity announcement, engaged an advisory committee to provide comments and feedback on the rules and held a public hearing.

Rules Coordinator: Kathy Stuttaford—(503) 373-2127

330-200-0000

Applicability of Rules in OAR 330, Division 200

(1) These rules implement the grant program for renewable energy development established by House Bill 3672 (2011) and amended by House Bill 4079 (2012). The rules provide procedures for submission, agency review and selection of systems for potential grant award, the development of performance agreements and the disbursement of grant funds.

(2) These rules apply to all applicants for renewable energy development grants, as governed by ORS 469B.250 to 469B.265.

Stat. Auth.: ORS 469B.250 - 469B.265
Stats. Implemented: ORS 469B.250 - 469B.265
Hist.: DOE 3-2012(Temp), f. & cert. ef. 2-22-12 thru 8-17-12; DOE 10-2012, f. & cert. ef. 8-15-12

330-200-0010

Definitions

For the purposes of this division, the following definitions apply:

(1) “Applicant” means a person who has applied for a renewable energy development grant.

(2) “Business site” means a site operated for business purposes that is owned by the applicant or the applicant has a formal agreement with the property owner to use the site.

(3) “Cost” has the meaning given in ORS 469B.250, the actual cost of the acquisition, construction and installation of the renewable energy production system paid by the applicant for the system, before considering utility incentives.

(4) “Department” means the Oregon Department of Energy.

(5) “Director” means the director of the department.

(6) “Energy” means electrical energy.

(7) “Grantee” means a person that has received an award of a renewable energy development grant.

(8) “Installation or construction” means the process of physical assembly of a system or supporting infrastructure at its operating location.

(9) “Opportunity period” means the timeframe specified in an Opportunity Announcement for the department to accept applications for renewable energy development grants.

(10) “Person” has the meaning given in ORS 469.020.

(11) “Renewable Energy Development Grant” means a grant awarded as described in these rules.

(12) “Renewable Energy Production System” has the meaning given in ORS 469B.250, a system that uses biomass, solar, geothermal, hydroelectric, wind, landfill gas, biogas or wave, tidal or ocean thermal energy technology to produce energy.

Stat. Auth.: ORS 469B.250 - 469B.265
Stats. Implemented: ORS 469B.250 - 469B.265
Hist.: DOE 3-2012(Temp), f. & cert. ef. 2-22-12 thru 8-17-12; DOE 10-2012, f. & cert. ef. 8-15-12

330-200-0020

Opportunity Announcement

(1) The department will announce the availability of renewable energy development grants by issuing an Opportunity Announcement.

(2) The department will continually monitor the allocation of grants to ensure that the total amount of grants awarded does not exceed the amounts available in the Renewable Energy Development subaccount within the Clean Energy Deployment Fund.

(3) If the cumulative total of all grants awarded under the Opportunity Announcement is less than the total amount of funding available, the department may reallocate the balance to future Opportunity Announcements.

(4) The Opportunity Announcement will include the following information:

(a) Objectives for the opportunity period;

(b) The amount of grant funds available;

(c) Application requirements as defined in OAR 330-200-0050;

(d) Dates of the application opportunity period;

(e) Instructions and directions to the required application forms and materials;

(f) Minimum technical standards based on relevant industry standards for renewable energy production systems;

(g) The criteria to be applied in prioritizing applications for grant awards, as described in OAR 330-200-0060;

(h) Guidance on submitting an acceptable resource assessment; and

(i) Other information the department considers necessary.

Stat. Auth.: ORS 469B.250 - 469B.265
Stats. Implemented: ORS 469B.250 - 469B.265
Hist.: DOE 3-2012(Temp), f. & cert. ef. 2-22-12 thru 8-17-12; DOE 10-2012, f. & cert. ef. 8-15-12

330-200-0030

Grant Application

(1) Any person may apply for a grant by submitting a complete grant application. The application must meet requirements provided by applicable statutes, these rules and the current Opportunity Announcement.

(a) The application must be in the form specified in the Opportunity Announcement and these rules.

(b) An applicant must submit a complete application during the opportunity period. For the purposes of this rule, the department considers an application “submitted” when the department receives the application. The department will not process applications received outside of an opportunity period.

(2) The application must be accompanied by the application fee specified in these rules. The department will not process applications received without fee payment.

(3) The department will not accept amendments to applications during the opportunity period. An applicant may withdraw an application and submit a replacement application during the opportunity period. The department will not process fees for applications withdrawn before the end of the opportunity period.

(4) The application must include the following information, unless the department specifies otherwise in the Opportunity Announcement.

(a) The name of the applicant.

(A) If the applicant is a partnership, joint venture or association, the application must include the names of each person participating in the partnership, joint venture or association. The department may use this information to ensure compliance with ORS 469B.256(3).

(B) If the applicant is a corporation or limited liability company, the application must include the name of the corporation or LLC and its parent corporations, members and any close affiliates or subsidiaries. The department may use this information to ensure compliance with ORS 469B.256(3).

(C) If the applicant is a public or government entity, the application must include written authorization from the entity’s governing body allowing submission of the application.

(b) The name, address, email address and telephone number of the responsible party for the applicant.

(c) A statement verifying that the applicant will be the owner, contract purchaser or lessee of the renewable energy production system at the time of installation or construction of the system.

(d) If the applicant has received final certification of tax credits or payment of grants issued by the department within the last five years, the application must contain a statement about the operational status of the systems awarded such grants or tax credits.

(e) A detailed description of the renewable energy production system that includes the following:

(A) The nameplate capacity of the system;

(B) The projected amount of net energy the system will generate, in kWh per year;

(C) The proposed location of the system and an assessment of the suitability of the site;

(D) The expected operational life of the system;

(E) Technical specifications including manufacturer’s information for the selected technology and all major system equipment; and

(F) A description of the operation of the system, including information that demonstrates the system will operate for at least five years.

(f) A resource assessment demonstrating adequate resource supply for the proposed system operations. The resource assessment must describe the type of resource available, explain how the applicant evaluated the resource and describe how the system will access the resource.

(g) A statement of compliance with applicable state and local regulations and that the applicant will notify the appropriate agencies and obtain required licenses and permits.

(h) The number and type of new jobs that will be created by the system and the number of existing jobs sustained throughout the construction, installation and operation of the system. Job estimates should be submitted in hours. These hours must directly relate to the system.

(i) The anticipated system cost.

(j) The amount of anticipated or received incentives directly related to the system.

(k) A description of the applicant’s installation or construction financing plan.

(l) Pro-forma financial statements for the proposed system, including the balance sheet at system commissioning and balance sheet, cash flow statement and income statement for three years. The application must include a clear and explicit statement of the assumptions used in preparing the pro-forma.

(m) A project management plan that contains the following required elements:

(A) A detailed project schedule with major milestones during development, construction and operation, including the target operational date of the system.

(B) A description of how the following will be managed:

(i) Installation and construction.

(ii) Verification of system construction and start-up. If the applicant has developed a commissioning plan, the application must describe the plan.

(iii) Operations and maintenance requirements.

(n) The amount of grant requested by the applicant.

(o) If the applicant has already started installation or construction of the system, a written description of the special circumstances that rendered the filing of an application prior to the start of installation or construction unreasonable.

(p) Other information the department considers necessary.

Stat. Auth.: ORS 469B.250 - 469B.265
Stats. Implemented: ORS 469B.250 - 469B.265
Hist.: DOE 3-2012(Temp), f. & cert. ef. 2-22-12 thru 8-17-12; DOE 10-2012, f. & cert. ef. 8-15-12

330-200-0040

Fees

The department adopts the following schedule of fees as provided by ORS 469B.259 for applicants. All fee payments are non-refundable, despite the results of the department’s review.

(1) Applicants must submit a fee of $200 with their initial application.

(2) Applicants selected for technical review will be required to pay an additional technical review fee prior to that review. The fee amount is equal to the qualifying system cost multiplied by 1.05 percent.

(3) Applicants requesting amendments must submit a fee of $300 with their amendment request.

(4) If the department is unable to complete a scheduled inspection due to actions by the applicant, the department will require the applicant to pay a re-inspection fee of $400 before rescheduling the inspection.

(5) If an applicant fails to pay fees timely as required by this rule, the department may reject the pending application and discontinue the review.

Stat. Auth.: ORS 469B.250 - 469B.265
Stats. Implemented: ORS 469B.250 - 469B.265
Hist.: DOE 3-2012(Temp), f. & cert. ef. 2-22-12 thru 8-17-12; DOE 10-2012, f. & cert. ef. 8-15-12

330-200-0050

Completeness Review

(1) Following the opportunity period, the department will review all applications to determine whether:

(a) All sections of the application are complete as outlined in the Opportunity Announcement.

(b) The applicant has submitted the required fee.

(c) The system meets the definition of a renewable energy production system.

(d) The applicant intends to begin construction within 12 months of award.

(e) The applicant is applying prior to the installation or construction of the system.

(A) If the applicant applies after installation or construction of the system has started, the department will deny the application unless a written explanation of the special circumstances is received and approved by the director.

(B) Failing to submit a timely application or the fact that the project was not selected for a grant or tax credit under this or prior department programs does not constitute special circumstances.

(f) The system is located in Oregon.

(2) If the department finds that the application is complete, the application will move into the competitive review process and the department will notify the applicant in writing.

(3) The department will deny all incomplete applications and notify applicants in writing of the reason for denial of the application.

(4) The department considers the completeness review a test; the decision to deny an incomplete application is not an action subject to review under ORS 183.

Stat. Auth.: ORS 469B.250 - 469B.265
Stats. Implemented: ORS 469B.250 - 469B.265
Hist.: DOE 3-2012(Temp), f. & cert. ef. 2-22-12 thru 8-17-12; DOE 10-2012, f. & cert. ef. 8-15-12

330-200-0060

Competitive Review

(1) The department will conduct a competitive review of all applications that pass completeness review.

(2) Through competitive review, the department’s internal review team will prioritize applications for grants according to the criteria described in the rules. Depending on the Opportunity Announcement objectives, the department may give greater or lesser weight to each of the criteria listed in rules.

(3) In the Opportunity Announcement the department will list the evaluation criteria for the competitive review. The criteria the department may consider includes:

(a) The internal rate of return of the system, calculated using the formula provided by the department.

(b) The number of new jobs created by the system and the number of existing jobs sustained throughout the construction, installation and operation of the system.

(c) The strength of the financial plan of the system.

(d) The amount of net energy generated.

(e) The use of the energy generated.

(f) Integration into broader energy and environmental goals.

(g) The geographic diversity of the renewable energy production systems compared with the other systems for which grants have been requested in the current opportunity announcement.

(h) The technology or resource diversity of the renewable energy production systems compared with the other systems for which grants have been requested in the current opportunity announcement.

(i) If the applicant has previously received any Renewable Energy Development Grants or Business Energy Tax Credits, the operational status of the system for which such grants or tax credits was awarded.

(j) The feasibility of the system.

(4) The department’s internal review team will recommend to the director which systems to advance to technical review based on the competitive review results. The director will review and then amend or approve the recommendations.

(5) The department will notify applicants of the competitive review outcome. The department may place systems not advanced to the technical review phase on a supplemental list, pending the technical reviews of the selected systems. The department will retain the supplemental list until performance agreements are signed for the selected systems. The supplemental list will include only those projects submitted in response to the particular Opportunity Announcement.

(6) If an applicant has not started installation or construction of the system, an applicant may apply again for the same system in a future opportunity period by submitting a new application and fee. The department will not credit fees or applications submitted in response to a previous Opportunity Announcement to future Opportunity Announcements.

Stat. Auth.: ORS 469B.250 - 469B.265
Stats. Implemented: ORS 469B.250 - 469B.265
Hist.: DOE 3-2012(Temp), f. & cert. ef. 2-22-12 thru 8-17-12; DOE 10-2012, f. & cert. ef. 8-15-12

330-200-0070

Technical Review

(1) Once the applicant has paid the technical review fee, the department will conduct a technical review of systems advanced from the competitive review process. If the applicant does not submit the required payment to the department within 21 calendar days of notification of the advancement to technical review, the department may deny the application.

(2) The department will review the information provided in the application against industry standards to determine whether the system is technically feasible and should operate in accordance with the representations made by the applicant.

(3) To be eligible, the renewable energy production system must meet the following requirements:

(a) The system must meet the requirements of the statutes, these rules and the Opportunity Announcement.

(b) The applicant must be the owner, contract purchaser or system lessee at the time of the system’s installation or construction.

(c) The applicant must be a trade, business or rental property owner with a business site in Oregon or be an Oregon non-profit organization, tribe or public entity. The applicant may not restrict membership, sales or service on the basis of race, color, creed, religion, national origin, sexual preference or gender.

(d) A system located at a residential property must be rental property. A rental property must comply with laws related to rental accommodation and contain a dwelling unit or rooming unit with permanent living facilities. Living facilities include facilities for sleeping, eating, cooking and sanitation, for one or more persons, other than the property owner, which is subject to a rental agreement that provides for meaningful compensation to the owner.

(e) A system located on a site that includes a residence, that is not a rental dwelling, must be separately metered from the residence.

(f) Within the project schedule and detailed project description provided in the grant application, the applicant must demonstrate the ability to begin construction within 12 months from the date the department awards the grant.

(g) The applicant may not receive funding for the system from the Feed-In Tariff program under ORS 757.365.

(4) The department will review renewable energy production system costs for eligibility. The application must document cost by providing a list of itemized costs.

(a) Eligible system costs include:

(A) The cost of components of the proposed system.

(B) Materials and supplies required for the construction and installation of the proposed system.

(C) The cost of title searches, escrow fees, permits and license fees and shipping.

(D) Design or engineering expenses related to system components.

(E) Cost of work performed by employees or independent contractors of the applicant, based on the following conditions:

(i) Employees or contractors must be certified, accredited, licensed or otherwise qualified to complete the work;

(ii) The work must be associated with the acquisition, installation or construction of the proposed system;

(iii) Project management and similar costs may only account for up to15 percent of eligible system costs; and

(iv) Costs for employees’ or contractors’ work on the renewable energy system must be detailed and documented as to specific tasks, hours worked and compensation costs. This cost may include employee benefits and employment taxes.

(F) Environmental studies, including source testing.

(G) Other costs the department determines should be included.

(b) Eligible system costs do not include:

(A) Costs paid by a person other than the applicant.

(B) Interest and warranty charges.

(C) Litigation or other legal fees and court costs.

(D) Patent searches, application and filing payments.

(E) Costs to maintain, operate or repair the system.

(F) Administrative costs to apply for grants, loans, tax credits or other funding for a system including, but not limited to, the renewable energy development grant fees.

(G) Training or education expenses.

(H) Costs that are incurred to bring a host building up to building code standards or otherwise repair the building in order to install the system, including design or engineering expenses.

(I) Costs for a system or portion thereof, that has previously received a tax credit under ORS 469 or 469B.

(J) Donated, in-kind or volunteer labor and materials.

(K) Costs for a system, or portion thereof, if the project or system previously received a Business Energy Tax Credit or a Renewable Energy Development Grant.

(L) Other costs the department determines should be excluded.

(c) If a system is built under a lease or contract purchase, the applicant must provide system cost information. System cost may be demonstrated by providing a declaration of representative market value for the system that includes the anticipated cost of supply and installation. Such a declaration must include a list of primary system components and their costs.

(d) An applicant may incur qualifying costs prior to the submission of an application, but may not begin installation or construction.

(5) The department will determine whether the system is a single renewable energy production system or is part of a larger system in combination with other applications.

(a) The department considers a single renewable production system as one or more electrical energy production devices that are applied for in response to the same Opportunity Announcement, use the same renewable resource, are located at the same site and are owned or controlled by the same person.

(b) For the purposes of this subsection, “same person” includes affiliated or subsidiary corporations, other subsidiary business organizations or other affiliated entities owned or controlled by the same parent corporation but excludes equity-only financing partners.

(c) The department may reduce the potential grant award or deny the application if the department finds that the proposed system is part of another renewable energy production system that has applied for or received a renewable energy production grant.

(d) The department will not divide renewable energy production systems applied for in the same application.

(6) If an application does not include all information needed to complete the technical review, the department may notify the applicant in writing, requesting additional information. If the department does not receive the requested information within 30 calendar days of the date of the notice, the department may deny the application.

(7) During the review the department may inspect the proposed location of a system. The department will schedule inspections during normal working hours, following reasonable notice to the applicant.

(8) The department will notify the applicant in writing if the department denies the application during the technical review.

(9) If the technical review determines that information reviewed during the competitive review process was inaccurate, the department may deny the application.

Stat. Auth.: ORS 469B.250 - 469B.265
Stats. Implemented: ORS 469B.250 - 469B.265
Hist.: DOE 3-2012(Temp), f. & cert. ef. 2-22-12 thru 8-17-12; DOE 10-2012, f. & cert. ef. 8-15-12

330-200-0080

Performance Agreement

(1) The department may offer a performance agreement to the applicant if it determines that the renewable energy production system is technically feasible and capable of operating in accordance with the representations made by the applicant. The offer will include a copy of the performance agreement and a deadline for acceptance.

(2) The performance agreement will be based on information provided by the applicant.

(3) The grant provided for in the performance agreement may not exceed 35 percent of the cost of the project and may not exceed $250,000 per system.

(4) The department will reduce the amount of grant awarded to an applicant if, when combined with other government incentives or grants available to the applicant, the total amount of incentives and grants exceeds 75 percent of the total system cost. The department will not include loans or loan guarantees in this calculation.

(5) The department may offer a grant that is less than the amount requested in the application, pursuant to statute and applicable rules.

(6) Applicants will have 30 calendar days from the date of the notice to accept the performance agreement. An applicant’s failure to accept the offer of a performance agreement by the deadline may cause rejection of the renewable energy development grant application.

(7) In place of applicants who do not enter into a performance agreement within 30 calendar days of the department’s offer, the department may select alternative applicants from the supplemental list, in order of their ranking. Selected applicants will have to complete a technical review.

(8) The performance agreement must include the following terms and may include additional terms.

(a) The maximum amount of the renewable energy development grant and the entity to which funds will be disbursed.

(b) A listing of the documentation that the grantee must provide to the department prior to the disbursement of grant funds including, but not limited to:

(A) An account of system costs.

(B) Proof that the owner or owners of the system location are current on their property taxes for that location, if appropriate.

(c) The amount by which the department may reduce the grant amount in response to changes in actual system cost.

(d) The maximum duration of the performance agreement.

(e) The requirement that the grantee install or construct the renewable energy production system substantially as described in the renewable energy development grant application.

(f) The requirement that installation or construction of the system begin within 12 months after the date that the performance agreement is signed by all parties. If construction does not begin within 12 months, the performance agreement and grant are void. The performance agreement must include details of the work that must be completed within 12 months to meet this standard.

(g) The requirement that the grantee be the owner, contract purchaser or lessee of the system at the time of installation or construction of the system.

(h) The requirement that the system be located in Oregon.

(i) The requirement that the grantee make periodic reports to the department on the status of the system during system development and during installation or construction of the system.

(j) The requirement that the applicant obtain all applicable licenses, permits or other authorizations that are required within the jurisdiction of the system and must comply with applicable federal, state and local laws and regulations.

(k) The requirement that the grantee allow the department to inspect the system or its proposed location at any time during construction to verify compliance with the performance agreement. The department will schedule inspections during normal working hours, following reasonable notice to the applicant.

(l) The terms under which the performance agreement may be transferred, upon notification and agreement of the department.

(m) Reporting requirements during the first five-years of system operation, including information on jobs, quantity of energy produced annually and other information outlined in the performance agreement. .

(n) A provision allowing the performance agreement to be terminated for reasons stated in the agreement and subject to terms described in the agreement.

(o) A provision that if the director determines that the applicant has violated the provisions of the performance agreement or ORS 469B.250 to 469B.265, the applicant will be liable to the department for up to 100 percent of grant moneys disbursed to the applicant.

(9) The department may require a legal sufficiency review of a performance agreement by the Oregon Department of Justice prior to completion.

(10) The renewable energy development grant will be awarded upon signature of the performance agreement by all parties. The grant funds will be disbursed upon verification that the applicant has complied with the applicable terms of the performance agreement including completion and commissioning, if required, of the system.

Stat. Auth.: ORS 469B.250 - 469B.265
Stats. Implemented: ORS 469B.250 - 469B.265
Hist.: DOE 3-2012(Temp), f. & cert. ef. 2-22-12 thru 8-17-12; DOE 10-2012, f. & cert. ef. 8-15-12

330-200-0090

Amendments

(1) The grantee must submit a written amendment request to the director to amend a performance agreement or change any aspect of the renewable energy production system.

(2) The grantee must describe the proposed change to the performance agreement or renewable energy production system and the reasons for the change.

(3) The grantee must demonstrate that the system, with the proposed change, will continue to meet the requirements of statute, rule and the Opportunity Announcement; be technically feasible, will operate as represented and will remain in operation for at least five years. The grantee has the responsibility to provide an amendment request with complete technical documentation supporting the proposed amendment. The department may deny amendments submitted without such justification.

(4) If an amendment request does not include all information needed to complete the review, the department may provide the grantee a written request for additional information. If the grantee does not provide the requested information to the department within 30 calendar days, the department may deny the request.

(5) Requests for amendments must include payment of the appropriate fee. The department may accept non-substantive changes, such as change of contact information, without payment of the fee.

(6) The department will evaluate amendments to determine if the change would have affected the outcome of competitive review, which may result in pro-rating the award amount, based on energy generated or project cost, or denial of the amendment request.

(7) Amendment requests will not be approved if the amendment would result in an increased award amount.

(8) The department will decide whether to approve the request.

(a) If approved, the department will draft an amended performance agreement, which may contain new or amended conditions and requirements. The amended performance agreement will become effective upon signature by all parties.

(b) If denied, the department will notify the grantee in writing. The notice will include the reasons for the denial of the amendment request. The amendment fee will not be applied to future amendments.

(c) The grantee may accept the denial of the amendment request and comply with the terms of the performance agreement or the grantee may terminate the performance agreement according to its terms and return any grant funds previously disbursed.

Stat. Auth.: ORS 469B.250 - 469B.265
Stats. Implemented: ORS 469B.250 - 469B.265
Hist.: DOE 3-2012(Temp), f. & cert. ef. 2-22-12 thru 8-17-12; DOE 10-2012, f. & cert. ef. 8-15-12

330-200-0150

Compliance

All participants in this program are subject to OAR 330-230-0000 through 330-230-0060.

Stat. Auth.: ORS 469B.250 - 469B.265
Stats. Implemented: ORS 469B.250 - 469B.265
Hist.: DOE 3-2012(Temp), f. & cert. ef. 2-22-12 thru 8-17-12; DOE 10-2012, f. & cert. ef. 8-15-12

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.

2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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