Type: Law Bulletins
Date: 07/28/2023

Updates to Ohio Power Siting Board Rules for Solar Energy Generating Facilities Create New Standards for Renewable Energy Developers in Ohio

The Ohio Power Siting Board (OPSB), Ohio’s regulator of major renewable energy generating facilities, recently adopted new rules for solar energy generating facilities under the Ohio Administrative Code (Ohio Adm.Code). Under state law, agencies like OPSB are required to conduct a review of their rules every five years to determine whether amendments are necessary. OPSB initiated its five-year review in 2020 and, since then, has conducted a series of stakeholder meetings, public workshops, formal comment periods, and internal reviews to arrive at the new rules released on July 20, 2023. During the review process, written comments and reply comments were filed by more than 20 formal parties, including state public utilities, advocacy organizations, renewable energy developers, and other industry stakeholders, and an additional 400 informal public comments were submitted.

Under Ohio law and OPSB rules, solar projects designed for or capable of operation at a capacity of 50 megawatts (MW) or more are required to file with OPSB and seek approval of an application for a certificate of environmental compatibility and public need to construct and operate a major utility facility. The revised rules create additional requirements for certificate applications and the construction, operation, and maintenance of future solar energy facilities within the state. Developers with prior experience in solar facility siting, construction, and operation in Ohio should note a number of changes to the state certificate application and solar energy infrastructure siting process, including but not limited to:

  1. Pre-Application Public Information Meetings (PIMs). Ohio Adm.Code 4906-3-03(B) will now require a certificate applicant to hold two PIMs in the area where the solar generating facility is to be located prior to submitting a certificate application to OPSB. The first PIM is largely intended to inform the public of the scope of the project and garner local feedback, while the second PIM will focus on the specifics of the upcoming application. The second PIM must be held at least 90 days before filing an application with OPSB, and a certificate applicant must abide by various public notice requirements for each PIM, including newspaper publication requirements in the local affected area. Additionally, an applicant must reconduct a PIM if a county adopts a resolution limiting the boundaries of the proposed facility after the applicant has already held a PIM. Applicants should ensure that the reconducted PIM reflects the updated boundaries of the proposed project under the county’s resolution.
  2. Noise Standards. Ohio Adm.Code 4906-4-09(E) establishes new noise limits for solar generating facilities. At non-participating sensitive receptors within one mile of the project area, noise limits may not exceed the greater of 40 dBA or the ambient daytime and nighttime average sound level (L50) by more than five dBA.
  3. Solar Module Setbacks. Under Ohio Adm.Code 4906-4-09(G)(4), solar facilities must now incorporate minimum setbacks from solar modules of (a) at least 50 feet from nonparticipating parcel boundaries; (b) at least 300 feet from non-participating residences; and (c) at least 150 feet from the edge of pavement of any road within or adjacent to the project area. Notably, these setback requirements will now apply to all solar facilities under Ohio Adm.Code 4906-4-08(C)(3).
  4. Surface Water Pollution Controls. Ohio Adm.Code 4906-4-09(G)(2) requires applicants to implement various surface water pollution control measures to prevent potential discharges to surface waters. These requirements include the development of a stormwater pollution prevention plan, a spill prevention control and countermeasure plan, and a horizontal directional drilling inadvertent release of drilling fluid contingency plan.
  5. Other Application Content Recommendations. Ohio Adm.Code 4906-4-08 requires a certificate applicant to include in its application certain health and safety, ecological, agricultural, and other information. The rule has been updated to identify examples of relevant information that an applicant should provide as part of its application, such as preliminary grading plans (Ohio Adm.Code 4906-4-08(A)(5)), sensitive receptor considerations (Ohio Adm.Code 4906-4-08(A)(1)), and various drain tile considerations (Ohio Adm.Code 4906-4-08(E)(3)). Many applicants already provide this information as part of their applications, but the recommendation to do so is now codified in the new rules.
  6. New Compliance Requirements. OPSB expanded the compliance requirements for solar generating facilities in a new rule outlined in Ohio Adm.Code 4906-7-06. The rule includes various monitoring and reporting requirements intended to ensure that solar facilities are constructed and operated in accordance with their issued certificates, as well as all applicable laws and rules. These new requirements are similar to those already in place for wind generating facilities under Ohio Adm.Code 4906-4-10.

Notably, as part of its review, OPSB also chose not to update or amend certain rules. For instance, OPSB declined to adopt a definition of “public interest, convenience, and necessity” under Ohio Revised Code (R.C.) 4906.10(A)(6). While many comments received in the rulemaking docket indicated that this statutory factor has become increasingly contentious and, in turn, that a definition would assist all stakeholders in the public siting process, OPSB determined that its prior decisions and the statute itself adequately explain how each application’s unique facts apply to OPSB’s consideration of an application.

The final rules could become effective as early as the fall of 2023, subject to the administrative rehearing process and submission to the Ohio Legislature’s Joint Committee on Agency Rule Review (JCARR) for final review and approval. Upon JCARR’s acceptance, the new rules will be enrolled with the Secretary of State and apply to all future solar energy development in Ohio.

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