On June 28, 2021, the Ohio General Assembly passed Senate Bill (S.B.) 52, which places new requirements on renewable energy development in Ohio and changes to the Ohio Power Siting Board (OPSB) process. The bill is specific to wind and solar development, and does not place new restrictions on other types of energy development. S.B. 52 currently awaits Governor DeWine’s signature and takes effect 90 days after he signs the bill into law.

Key definitions: S.B. 52 utilizes existing definitions found in the Ohio Revised Code and creates new defined terms that are critical to understanding the bill’s impact.

• Utility facility is defined as any or all of the following:
  • “Economically significant wind farm” – which are, with certain exceptions, wind turbines and associated facilities with a single interconnection to the electrical grid and designed for, or capable of, operation at an aggregate of five or more megawatts but less than 50 megawatts.
  • “Large solar facility” – which is an electric generating plant that consists of solar panels and associated facilities with a single interconnection to the electric grid that is a “major utility facility” designed for or capable of operation of 50 megawatts or more.
  • “Large wind farm” – which is an electric generating plant that consists of wind turbines and associated facilities with a single interconnection to the electrical grid that is also a major utility facility.
• Material amendment is defined as the following:
  • For a utility facility:
    • Changes the facility’s generation type from one type of utility facility to another.
    • Increases the facility’s nameplate capacity.
    • Changes the boundaries of the facility, unless the new boundaries are completely within the previous boundaries or the facility components outside the previous boundary are underground.
  • For a large wind farm or economically significant wind farm:
    • Increases the number of wind turbines.
    • Increases the height of the wind turbine.

Creation of county restricted areas: S.B. 52 allows county boards of commissioners to designate all or part of an unincorporated area of the county as a “restricted area” in which utility facility wind and solar projects cannot be permitted by the OPSB. Further, “material amendments” to existing facilities in these restricted areas are prohibited.

County-level public meeting prior to OPSB certificate or amendment application:

• At least 90 days, but not more than 300 days, prior to applying to the OPSB for a certificate or a material amendment to a certificate, a project must hold a public meeting in each county where the facility is to be located. Following the project’s statutorily-required public meeting, the county board of commissioners has 90 days to adopt a resolution prohibiting or reducing the proposed project in size.
• The resolution is binding on the OPSB, meaning a certificate cannot be granted in violation of the resolution.
• If 90 days pass and the commissioners take no action, the applicant can file with the OPSB.  

Local officials as ad hoc OPSB voting members: S.B. 52 creates two new voting ad hoc members of the OPSB: the chairperson of the township board of trustees and the president of the county board of commissioners, or their designees.

Applicability to pending projects: S.B. 52, as amended, includes grandfathering provisions to address certain projects currently under development. Different provisions will apply for wind or solar.

• Local officials as ad hoc OPSB voting members¹: for all utility facility applications or material amendments, a utility facility that has been filed with, but not determined to be complete and accepted by the OPSB as of the bill’s effective date, the OPSB shall include local representatives as ad hoc members of the OPSB.
• County commission public meeting (wind only²): any wind project for which an application has not been deemed complete within 30 days after the effective date of S.B. 52, the project is subject to review by the county board of commissioners and a possible prohibition or limiting resolution, as discussed above.
• County commission public meeting (solar only) ³: any application for a construction certificate or material amendment to an existing large solar facility if:
  • The facility is in the PJM interconnection and regional transmission organization, L.L.C., new services queue at the time the application is found to be complete by the OPSB chairperson.
  • As of the effective date of the bill, has received a completed system impact study from PJM and paid the filing fee for the facility to PJM.
• If a large solar facility meets the above requirements and has multiple positions in the PJM new services queue under the same legal entity as the applicant, all queue positions in effect on the bill’s effective date are exempt.
• A large solar facility that submits a new queue position for an increase in interconnection rights to participate in PJM’s capacity market after the bill’s effective date is also exempt, so long as the change does not increase the facility’s nameplate capacity.

Decommissioning plan and bond required: S.B. 52 requires a decommissioning plan prepared by a registered professional engineer be submitted to the OPSB 60 days before construction. The plan must include a list of responsible parties, a schedule for decommissioning not to extend beyond 12 months after the utility facility ceases operations, and an estimate of the full costs of decommissioning, without the inclusion of salvage value. A performance bond equal to the estimate of decommissioning must be posted and updated every five years. According to Section 4 of S.B. 52, it appears the decommissioning requirements apply to projects in a similar fashion as the applicability of the county commission public meeting (see above); however we will closely monitor how the OPSB implements this section through administrative rulemaking going forward and/or its discretionary authority to craft conditions to certificates.

S.B. 52 represents a monumental change to the siting of wind and solar in Ohio. With new requirements, timing components, and processes, it will be vital for developers to understand the critical components and details of the law.

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