75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
House Bill 2626
Sponsored by Representatives READ, BAILEY, C EDWARDS, FREEMAN;
Representatives BARNHART, BARTON, BENTZ, CANNON, CLEM, DEMBROW,
ESQUIVEL, GALIZIO, GARRARD, GARRETT, GILLIAM, HOLVEY, HUNT,
SCHAUFLER, SHIELDS, J SMITH, WITT, Senators BATES, BONAMICI,
DEVLIN, DINGFELDER, MORRISETTE, MORSE, NELSON, WALKER
CHAPTER ................
AN ACT
Relating to energy use; creating new provisions; amending ORS
469.421, 470.050, 470.060, 470.070, 470.080, 470.090, 470.100,
470.110, 470.120, 470.130, 470.140, 470.150, 470.160, 470.170,
470.190, 470.230, 470.240, 470.270, 470.280, 470.300 and
470.310; appropriating money; limiting expenditures; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 to 41 of this 2009 Act are added to
and made a part of ORS chapter 470. + }
{ +
LOAN PROGRAM ADMINISTRATION + }
SECTION 2. { + (1) The Director of the State Department of
Energy shall administer the energy efficiency and sustainable
technology loan program for the purpose of providing financing,
promotion and technical support to encourage significant
investments in energy efficiency, renewable energy and energy
conservation.
(2) The goals of the loan program are to:
(a) Provide capital at the lowest possible cost for the purpose
of supporting energy efficiency and conservation and renewable
energy projects for residential and commercial structures;
(b) Expand, and to simplify taking advantage of, opportunities
for small scale local energy project financing;
(c) Leverage multiple sources of public and private capital
through a unified and strategic funding mechanism;
(d) Provide technical and financing information to the public
and to businesses;
(e) Foster energy savings;
(f) Stimulate job growth; and
(g) Help substantially reduce carbon emissions. + }
SECTION 2a. { + Notwithstanding any other provision of this
chapter, if the Director of the State Department of Energy
determines that the State Department of Energy is unable to issue
a sufficient number of energy efficiency and sustainable
technology loans to offset the reasonable cost to the department
of operating the loan program, the director may delay or suspend
Enrolled House Bill 2626 (HB 2626-C) Page 1
the energy efficiency and sustainable technology loan program in
one or more sustainable energy territories or may delay or
suspend any feature of the energy efficiency and sustainable
technology loan program. + }
SECTION 3. { + (1) Except as provided in subsection (3) of
this section, the State Department of Energy may enter into
contracts for the issuance of energy efficiency and sustainable
technology loans. Except as provided in section 40 of this 2009
Act, the department shall finance the loans using moneys from the
Small Scale Local Energy Project Loan Fund, the Energy Project
Supplemental Fund or the Energy Project Bond Loan Fund, or from a
combination of those funds.
(2) The sustainable energy project manager may enter into
agreements with trade associations and other public and private
entities for the promotion or marketing of the energy efficiency
and sustainable technology loan program.
(3) The department must obtain the consent of the utility
before operating an energy efficiency and sustainable technology
loan program within the service territory of:
(a) An investor-owned electric utility that serves fewer than
20,000 customers; or
(b) An investor-owned gas utility that is actively
administering an energy conservation program established:
(A) On or before January 1, 2009; and
(B) Without assistance from a nongovernmental entity that
receives public purpose charge moneys under ORS 757.612. + }
SECTION 4. { + The Public Utility Commission may adopt rules
for carrying out the duties, functions and powers of the
commission and the Public Purpose Fund Administrator under
sections 2 to 41 of this 2009 Act. + }
SECTION 5. { + The State Department of Energy may contract for
persons to perform the duties of the department under sections 2
to 41 of this 2009 Act including, but not limited to, the
development of standardized base efficiency packages and
standardized optional packages, energy efficiency and sustainable
technology loan evaluation, processing and collection. A loan
processed by a person contracting with the department, other than
a loan processed by a sustainable energy project manager, must
include the department as a party to the loan. + }
SECTION 6. { + (1) The State Department of Energy shall send a
quarterly report to the Small Scale Local Energy Project Advisory
Committee. The report shall include, but need not be limited to,
a summary of:
(a) The total amount of energy efficiency and sustainable
technology loans issued;
(b) The types of projects being funded by the loans; and
(c) The characteristics of loan recipients.
(2) The committee shall review the report to determine whether
the goals of the loan program are being implemented and whether
applicable rules and statutory standards are met. The committee
may send comments regarding the report to the Director of the
State Department of Energy. + }
{ +
PROJECT MANAGERS + }
SECTION 7. { + (1) Except as provided in subsection (5) of
this section, the Director of the State Department of Energy may
establish qualifications for sustainable energy project managers
and may exercise oversight to ensure project manager compliance
Enrolled House Bill 2626 (HB 2626-C) Page 2
with those qualifications. A project manager shall provide the
promotion, technical and financial support and verifications
necessary to administer the energy efficiency and sustainable
technology loan program in the territory served by the project
manager.
(2) The project manager shall serve a sustainable energy
territory established by the director. The project manager shall
provide loan program information and technical and financial
information to promote energy efficiency and use of renewable
energy at the neighborhood and community levels. The project
manager shall be responsible for small scale local energy project
verification and for monitoring program effectiveness for energy
efficiency and sustainable technology loans and small scale local
energy program loans. The project manager may administer the
energy efficiency and sustainable technology loan program within
the territory.
(3)(a) Except as provided in this subsection, the boundaries of
a sustainable energy territory must be consistent with the
service territory of a local electric utility.
(b) The boundaries of a sustainable energy territory may be
consistent with the service territory of a local gas utility if:
(A) The local electric utility is a consumer-owned electric
utility that elects not to be the project manager for the
sustainable energy territory; and
(B) The service territory of the local electric utility and the
service territory of the local gas utility overlap.
(c) Notwithstanding paragraphs (a) and (b) of this subsection,
if the project manager for the sustainable energy territory is
other than the Public Purpose Fund Administrator or a
consumer-owned utility, the director may adjust the boundaries of
the territory or create a larger or smaller territory if the
director believes that the territory boundaries as adjusted or
created by the director would better accomplish the goals of the
energy efficiency and sustainable technology loan program.
(4) A local government, nonprofit, for-profit, tribal or state
entity may be a project manager if the entity meets the
qualifications established by the director under this section and
is approved by the director to provide promotion, outreach and
customer support related to the energy efficiency and sustainable
technology loan program within a sustainable energy territory.
The Public Purpose Fund Administrator is an ex officio
sustainable energy project manager. The Public Purpose Fund
Administrator shall act as the project manager in any sustainable
energy territory that is not served by another project manager.
(5) The director shall establish a sustainable energy project
manager certification program. However, the Public Purpose Fund
Administrator or a consumer-owned utility is not required to
obtain a sustainable energy project manager certificate and the
Public Purpose Fund Administrator is not subject to any
qualifications established by the director for a project
manager. + }
SECTION 8. { + (1) The Director of the State Department of
Energy shall initiate the certification process for a sustainable
energy project manager by publishing a request for proposals.
(2) An applicant for certification as a project manager shall
submit information to the director that includes:
(a) Background information about the applicant including, but
not limited to, the qualifications, relevant experience,
financial status and staff of the applicant;
Enrolled House Bill 2626 (HB 2626-C) Page 3
(b) A proposed plan for implementing and administering the
goals and requirements of the energy efficiency and sustainable
technology loan program in the sustainable energy territory; and
(c) Any additional information required by the director by
rule.
(3) After reviewing all applications received, the director may
select a project manager. In selecting the project manager, the
director shall consider the following factors:
(a) The organizational experience of the applicant and the
capacity of the applicant to successfully implement the energy
efficiency and sustainable technology loan program goals and
requirements.
(b) The strength of the applicant's proposed plan for
implementing the goals and requirements of the energy efficiency
and sustainable technology loan program.
(c) The cost at which the applicant can conduct outreach,
promotion, loan applicant support and project verification
services necessary to implement the energy efficiency and
sustainable technology loan program.
(d) Any other factors the director adopts by rule or directive.
(4) An applicant may not be certified as a project manager if
the applicant has a fiduciary or other obligation that creates an
actual or apparent conflict of interest that may interfere with
achieving the goals of the energy efficiency and sustainable
technology loan program. + }
SECTION 9. { + (1) Upon selecting a proposed sustainable
energy project manager, the Director of the State Department of
Energy shall notify all unsuccessful applicants for the position
that another candidate is proposed for appointment. The director
shall negotiate with the proposed project manager regarding any
modifications to the service cost estimates or other features of
the applicant's proposed plan that are necessary to ensure that
the applicant will meet the goals and requirements of the energy
efficiency and sustainable technology loan program and State
Department of Energy rules.
(2) To the extent practicable, the director shall certify a
project manager not later than four months after publication of
the request for proposals and not later than two months after the
selection of the proposed project manager. However, the director
may at any time select a different applicant as the proposed
project manager or may reinitiate the certification process.
(3) Upon deciding to certify the proposed project manager, the
director shall give notice of the decision to all unsuccessful
candidates, the public and the Small Scale Local Energy Project
Advisory Committee. The director may approve the final
certification of the project manager if:
(a) A request to appeal under section 10 of this 2009 Act is
not filed within 15 days after the date the notice is sent; and
(b) The committee does not undertake a review of the proposed
certification within 15 days after the date the notice is
sent. + }
SECTION 10. { + (1) A person that believes a decision of the
Director of the State Department of Energy to certify a
sustainable energy project manager is inconsistent with
applicable rules or statutes may file a request to appeal with
the Small Scale Local Energy Project Advisory Committee. Unless
the request for appeal is filed by a nonprofit entity, the
request must be accompanied by a $2,000 appeal fee. The fee shall
be waived for a nonprofit entity. The committee may initiate a
review on its own motion.
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(2) A majority of the committee may authorize the presiding
officer of the committee to appeal the certification decision to
the Governor. The presiding officer may initiate an appeal to the
Governor no later than 30 days after receiving a request for
appeal or 15 days after the committee initiates a review on its
own motion.
(3) The decision of the Governor is final. If the Governor does
not act within 30 days after receiving the appeal from the
presiding officer of the committee, the appeal is denied. + }
SECTION 11. { + (1) Unless the sustainable energy project
manager is the Public Purpose Fund Administrator or a
consumer-owned utility, the certification of a project manager
shall be for a five-year term. The Director of the State
Department of Energy shall issue the project manager a
certification approval letter that states any conditions
applicable to the certification.
(2) The director may terminate the certification of a project
manager for:
(a) Failure to adequately implement an applicable plan for
implementing the energy efficiency and sustainable technology
loan program;
(b) Noncompliance with the regulatory or statutory requirements
of the energy efficiency and sustainable technology loan program;
(c) Failure to meet any project manager criteria established by
the director; or
(d) Failure to perform other certification conditions. + }
SECTION 12. { + (1) Except as provided in subsection (2) of
this section, if a sustainable energy territory is all or part of
the service territory for an investor-owned electric utility, the
Public Purpose Fund Administrator shall be the sustainable energy
project manager for the sustainable energy territory. The Public
Purpose Fund Administrator shall inform the Public Utility
Commission and the State Department of Energy of the activities
of the administrator by filing a yearly action plan and an
end-of-year report with the commission and the department.
(2) For a sustainable energy territory described in section 7
(3)(b) of this 2009 Act, if the local gas utility is an
investor-owned utility, the utility may act as the project
manager for the territory or may contract with the Public Purpose
Fund Administrator to act as project manager on behalf of the
utility.
(3) If a territory is served by a consumer-owned utility and is
outside the service territory of an investor-owned electric
utility, the consumer-owned utility shall be the project manager
if the utility agrees to promote energy efficiency and
sustainable technology loans as part of any energy efficiency or
renewable energy program offered by the utility. A consumer-owned
utility may conduct energy efficiency and renewable energy
programs within the territory of the utility regardless of
whether the territory is served by an energy efficiency and
sustainable technology loan program. A consumer-owned utility may
decline to participate in the energy efficiency and sustainable
technology loan program.
(4) If a customer is served by both an investor-owned gas
utility and a consumer-owned electric utility that have energy
efficiency and sustainable technology loan programs, the utility
that supplies the customer's primary source of heat for the
property shall supply loan program services for that customer.
(5) The existence of an energy efficiency and sustainable
technology loan program, or the appointment of a sustainable
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energy project manager, in a sustainable energy territory does
not prevent a consumer-owned utility from conducting any energy
efficiency or renewable energy program offered by the utility. If
the consumer-owned utility declines to become the project manager
for the territory, the utility may:
(a) Continue with existing utility services and policies; or
(b) Work with the Director of the State Department of Energy to
solicit and select a qualified entity to serve as the project
manager as described in sections 8 and 9 of this 2009 Act.
(6) Subject to approval by the director, a project manager may
contract with a qualified third party to assist the project
manager in providing project manager services within the
territory. If a sustainable energy territory is served by a
project manager, the appointment of additional project managers
shall be a subcontract approved by the existing project manager.
If the third party is acting as a financier, the third party is
not required to comply with laws regulating utilities based on
the actions of the third party as a financier. The project
manager may enter into agreements with trade associations and
other public and private entities for the promotion or marketing
of the energy efficiency and sustainable technology loan program.
(7) The Public Purpose Fund Administrator and sustainable
energy project managers shall cooperate with, and coordinate
their outreach and promotional efforts with, local utilities and
other stakeholders to promote energy efficiency and renewable
energy and to use the customer contacts, resources and capacity
of utilities to engage and inform utility customers about the
energy efficiency and sustainable technology loan program. The
Public Purpose Fund Administrator and project managers shall
coordinate with gas utilities regarding any changes to a gas
pipeline and with electric utilities regarding electric charging
or any changes to electrical connections that are external to a
structure. The Public Purpose Fund Administrator and project
managers shall coordinate with a gas utility regarding the
installation of appliances used for space heating, water heating
and compressed natural gas refueling. + }
{ +
CONTRACTORS + }
SECTION 13. { + (1) The State Department of Energy shall adopt
rules establishing certification standards for contractors
participating in the construction of small scale local energy
projects financed through the energy efficiency and sustainable
technology loan program. The department shall design the
standards to ensure that the project work performed by a
contractor holding the certification is of high quality and will
result in a high degree of customer satisfaction.
(2) The certification standards established by the department
must, at a minimum, require that the contractor:
(a) Prove that the contractor has sufficient skill to ensure
that the contractor can successfully install energy efficiency,
renewable energy or weatherization projects.
(b) Not be a contractor listed by the Commissioner of the
Bureau of Labor and Industries under ORS 279C.860 as ineligible
to receive a contract or subcontract for public works.
(c) Be an equal opportunity employer or small business or be a
minority or women business enterprise or disadvantaged business
enterprise as those terms are defined in ORS 200.005.
Enrolled House Bill 2626 (HB 2626-C) Page 6
(d) Demonstrate a history of compliance with the rules and
other requirements of the Construction Contractors Board and of
the Workers' Compensation Division and the Occupational Safety
and Health Division of the Department of Consumer and Business
Services.
(e) Employ at least 80 percent of employees used for energy
efficiency and sustainable technology loan program projects from
the local work force, if a sufficient supply of skilled workers
is available locally.
(f) Demonstrate a history of compliance with federal and state
wage and hour laws.
(g) Pay wages to employees used for energy efficiency and
sustainable technology loan program projects at a rate equal to
at least 180 percent of the state minimum wage.
(3) The State Department of Energy shall consult with the
Public Purpose Fund Administrator and utilities when developing
contractor certification standards.
(4) The Construction Contractors Board may issue a qualifying
contractor a certification authorizing the contractor to
participate in the construction of small scale local energy
projects financed through the energy efficiency and sustainable
technology loan program. A contractor seeking certification shall
apply to the board as provided under section 51 of this 2009 Act.
(5) The State Department of Energy shall identify certified
contractors that provide employees with health insurance benefits
as preferred service providers and may take other actions as
practicable to encourage certified contractors to provide
employees with health insurance benefits. + }
SECTION 14. { + (1) At the request of a loan applicant, a
contractor that is authorized to participate in the construction
of small scale local energy projects financed through the energy
efficiency and sustainable technology loan program may conduct an
energy savings projection or similar evaluation for a property
and conduct post-project verifications of energy savings in a
sustainable energy territory that does not have a sustainable
energy project manager.
(2) The State Department of Energy shall process a loan
application submitted by an applicant in a sustainable energy
territory that does not have a project manager in the same manner
as an application submitted through a project manager.
(3) The department may approve an energy efficiency and
sustainable technology loan for property located in a sustainable
energy territory that does not have a project manager if:
(a) On-bill financing is available to the loan applicant
through a local utility serving the benefited property; or
(b) The department and the loan applicant agree to an
alternative method for ensuring repayment of the loan. + }
{ +
FUNDS + }
SECTION 15. { + (1) The Energy Project Supplemental Fund is
established in the State Treasury, separate and distinct from the
General Fund. Interest earned by the Energy Project Supplemental
Fund shall be credited to the Energy Project Supplemental Fund.
(2) The Energy Project Supplemental Fund shall consist of any
moneys received for purposes of the energy efficiency and
sustainable technology loan program or for small scale local
energy program loans other than moneys deposited to:
(a) The Small Scale Local Energy Project Loan Fund.
Enrolled House Bill 2626 (HB 2626-C) Page 7
(b) The Small Scale Local Energy Project Administration and
Bond Sinking Fund.
(c) The Energy Project Bond Loan Fund.
(d) The Loan Offset Grant Fund, except that Loan Offset Grant
Fund moneys used to offset the energy efficiency and sustainable
technology loan or small scale local energy program loan
repayment obligation of a borrower shall be deposited to the
Energy Project Supplemental Fund.
(e) The Energy Revenue Bond Repayment Fund.
(3) Moneys in the Energy Project Supplemental Fund are
continuously appropriated to the State Department of Energy for
the following purposes:
(a) To provide funding, separately or in conjunction with
moneys from the Small Scale Local Energy Project Loan Fund and
the Energy Project Bond Loan Fund, for energy efficiency and
sustainable technology loans and small scale local energy program
loans;
(b) For transfer to the Energy Revenue Bond Repayment Fund, to
the extent that moneys available in the Energy Project Bond Loan
Fund are insufficient to provide the amount determined prudent by
the Director of the State Department of Energy under section 22
(2) of this 2009 Act; and
(c) To pay costs incurred by the State Department of Energy or
the director in implementing or administering loan programs for
small scale local energy projects.
(4) The State Treasurer may establish any subaccounts in the
Energy Project Supplemental Fund that the treasurer or the
director considers reasonable for the efficient administration of
the fund. + }
SECTION 16. { + (1) The Loan Offset Grant Fund is established
in the State Treasury, separate and distinct from the General
Fund. Interest earned by the Loan Offset Grant Fund shall be
credited to the Loan Offset Grant Fund. Moneys in the fund are
continuously appropriated to the State Department of Energy for
use as provided in this section.
(2) The fund shall consist of any moneys directed by law, gift,
grant or donation to the fund.
(3) The department shall use fund moneys:
(a) To promote energy efficiency, renewable energy and energy
conservation projects that would otherwise result in a marginally
higher overall cost to the applicant when energy costs and the
financing and repayment costs for the project are considered, by
using the fund moneys to help produce a monthly cost savings for
the applicant; or
(b) To transfer to an appropriate fund for carrying out any
purpose under this chapter specified as a condition of a gift,
grant or donation. + }
SECTION 17. { + (1) The Energy Project Bond Loan Fund is
established in the State Treasury, separate and distinct from the
General Fund. Interest earned by the Energy Project Bond Loan
Fund shall be credited to the fund.
(2) The fund shall consist of:
(a) Net proceeds from the issuance of revenue bonds under
section 22 of this 2009 Act that are deposited to the fund;
(b) Moneys from project initiation fees under section 31 of
this 2009 Act;
(c) Repayments of any moneys loaned from the fund and interest
earned on those moneys;
(d) Any moneys appropriated to the fund;
Enrolled House Bill 2626 (HB 2626-C) Page 8
(e) Moneys from the sale of refunding bonds under section 22 of
this 2009 Act and any accrued interest on those bonds; and
(f) Interest earned on cash balances invested under section 20
of this 2009 Act.
(3) Moneys in the fund are continuously appropriated to the
State Department of Energy for the following purposes:
(a) Subject to section 24 of this 2009 Act, to issue and
administer small scale local energy program loans and energy
efficiency and sustainable technology loans and to administer the
loan programs.
(b) For transfer to the Energy Revenue Bond Repayment Fund for
the payment of bond obligations, the costs of issuing bonds
described in subsection (2) of this section and the costs of
administering the revenue bond program and for the funding of
bond payment reserves. Transfers under this paragraph shall be
carried out as determined by the Director of the State Department
of Energy under section 22 (2) of this 2009 Act. + }
{ + (4) The State Treasurer may establish any subaccounts in
the Energy Project Bond Loan Fund that the treasurer or the
director considers reasonable for the efficient administration of
the fund. + }
SECTION 18. { + (1) The Energy Revenue Bond Repayment Fund is
established in the State Treasury, separate and distinct from the
General Fund. Interest earned by the Energy Revenue Bond
Repayment Fund shall be credited to the fund. Moneys in the fund
may be invested as provided in ORS 293.701 to 293.820. Moneys in
the fund are continuously appropriated to the State Department of
Energy for the payment of:
(a) Administrative expenses of the State Department of Energy
and the Director of the State Department of Energy for energy
efficiency and sustainable technology loans and small scale local
energy program loans made from the proceeds of energy project
revenue bonds, to the extent those expenses are not paid from the
Energy Project Bond Loan Fund, the Energy Project Supplemental
Fund or the Loan Offset Grant Fund;
(b) Administrative expenses incurred by the State Treasurer
under this chapter;
(c) Principal, interest and any redemption premiums of energy
project revenue bonds;
(d) Net investment earnings on moneys loaned to municipal
corporations from energy project revenue bonds under section 22
of this 2009 Act but withheld as provided in ORS 470.230; and
(e) Costs of issuing revenue bonds and obtaining credit
enhancement for those revenue bonds.
(2) The Energy Revenue Bond Repayment Fund shall consist of
moneys transferred to the fund from the Energy Project Bond Loan
Fund and Energy Project Supplemental Fund by the State Treasurer
as provided in section 22 (2) of this 2009 Act. + }
SECTION 19. { + The State Department of Energy may request
proposals for and select one or more financial managers for the
energy efficiency and sustainable technology loan program. The
function of a financial manager is:
(1) To assist in energy efficiency and sustainable technology
loan program development;
(2) To cooperate with federal and state agencies and public and
private entities for the purpose of securing federal funding,
public and private investments of capital and gifts, grants and
donations for the purpose of financing small scale local energy
projects; and
Enrolled House Bill 2626 (HB 2626-C) Page 9
(3) To provide a platform for the blending of private and
public capital from various sources including, but not limited
to, small scale local energy project financing, moneys from the
Energy Project Bond Loan Fund, the Loan Offset Grant Fund and the
Energy Project Supplemental Fund, private activity bonds and
grant moneys. + }
SECTION 20. { + Private utilities and other private entities
may invest capital with an energy efficiency and sustainable
technology loan program financial manager for use in carrying out
the loan program. The Public Utility Commission may establish a
reasonable rate of return that a financial manager may pay to a
utility investing capital under this section. In establishing the
rate of return, the commission shall consider the risk to the
utility in providing the investment capital. + }
SECTION 21. { + To achieve the energy efficiency and
sustainable technology loan program goals described in section 2
of this 2009 Act, the Director of the State Department of Energy
may enter into agreements to disburse supplemental capital funds
through the Small Scale Local Energy Project Loan Fund and the
Energy Project Supplemental Fund if:
(1) The director estimates that interest rates and total costs
to program applicants that would result from the use of the
supplemental capital funds are lower than would result from the
use of bond proceeds; and
(2) The supplemental capital funds are made subject to any
requirements adopted by the director by rule to ensure adequate
protection of project moneys. + }
{ +
BONDS + }
SECTION 22. { + (1) The State Treasurer, at the request of the
Director of the State Department of Energy, from time to time may
issue and sell revenue bonds in the name of and on behalf of the
State of Oregon in compliance with the applicable provisions of
ORS chapter 286A in the principal amount the director considers
necessary to carry out the purposes of sections 2 to 41 of this
2009 Act, or for paying or refunding any revenue bonds previously
issued on behalf of the State Department of Energy for those
purposes.
(2) All bonds shall be special revenue obligations of the State
of Oregon, and, unless paid from the proceeds of other bonds,
shall be payable as to principal, redemption premium, if any, and
interest, through the Energy Revenue Bond Repayment Fund solely
from the revenues, moneys and other assets of the Energy Project
Bond Loan Fund and the Energy Project Supplemental Fund that may
be pledged for that payment. The Director of the State Department
of Energy shall determine for each fiscal quarter the amount that
will fall due during that fiscal quarter for bonds issued under
this section, other amounts described in section 18 of this 2009
Act and any expected significant changes in bond obligations for
upcoming fiscal quarters and the amount necessary to adequately
fund reserves. The director shall request that the State
Treasurer make transfers from the Energy Project Bond Loan Fund
and Energy Project Supplemental Fund to the Energy Revenue Bond
Repayment Fund as the director believes prudent to ensure the
continuing payment of maturing obligations and the funding of
reserves.
(3) Prior to an issuance of revenue bonds under this section,
the director shall prepare and sign a written declaration setting
Enrolled House Bill 2626 (HB 2626-C) Page 10
forth the amount of the bonds to be issued and the terms and
conditions for issuance. If the State Treasurer approves the
declaration, the State Treasurer shall certify the approval on
the declaration. The approved declaration shall be known as an '
energy revenue bond declaration.' Each bond declaration shall be
deemed to be and shall constitute conclusive proof of the
authorization to issue the bonds described in the bond
declaration and may contain further pledges and covenants as
determined by the director or the State Treasurer. + }
SECTION 23. { + (1) Revenue bonds issued under section 22 of
this 2009 Act do not constitute a debt, liability or general
obligation of this state or any political subdivision of this
state or a pledge of the faith and credit of this state or any
political subdivision of this state, but shall be payable solely
from the revenues, moneys and other assets of the Energy Project
Bond Loan Fund and the Energy Project Supplemental Fund that are
pledged to the repayment in the energy revenue bond declaration.
(2) Each revenue bond issued under section 22 of this 2009 Act
shall contain on the face of the bond a statement that the
department is not obligated to pay the bond or the interest on
the bond except from the revenues or assets pledged for those
payments and that neither the faith and credit nor the taxing
power of this state or any political subdivision of this state is
pledged to the payment of the principal of or the interest on the
bond.
(3) A utility or sustainable energy project manager is not
liable for the payment of the principal of or the interest on any
bond issued under this section. + }
SECTION 24. { + The bonds issued by the State Treasurer under
section 22 of this 2009 Act and the energy revenue bond
declaration may:
(1) Pledge all or any part of the fees received by the State
Department of Energy under section 31 of this 2009 Act and all or
any part of the moneys received in payment of energy efficiency
and sustainable technology loans and small scale local energy
program loans that are funded with revenue from bonds issued
under section 22 of this 2009 Act, interest on those amounts and
other moneys credited to the Energy Project Bond Loan Fund.
(2) Pledge any moneys, loans or grants received from the
federal government, this state or any city, county or political
subdivision of this state for payment of revenue bonds issued
under section 22 of this 2009 Act.
(3) Vest in a trustee appointed by the Director of the State
Department of Energy and approved by the State Treasurer such
property, rights, powers and duties in trust as the director may
determine. + }
{ +
LOCAL GOVERNMENTS + }
SECTION 25. { + (1) Subject to the approval of the Director of
the State Department of Energy, a local government, public
utility or other legally organized entity may direct moneys to
the Energy Project Supplemental Fund or Loan Offset Grant Fund
for use within a limited geographic area of this state as a
source of capital for financing energy efficiency and sustainable
technology loans, small scale local energy program loans or loan
offset grants.
(2) Any moneys deposited under this section shall be separately
accounted for and shall be managed consistently with small scale
Enrolled House Bill 2626 (HB 2626-C) Page 11
local energy project goals and any agreement between the State
Department of Energy and the entity providing the moneys. The
moneys may be disbursed only for use as designated by, and in the
geographic area designated by, the entity providing the
moneys. + }
{ +
PROGRAM LOANS + }
SECTION 26. { + (1) The State Department of Energy may
disburse energy efficiency and sustainable technology loan and
small scale local energy program loan moneys by providing the
loan moneys through a sustainable energy project manager or
providing the loan moneys to or through an entity described in
ORS 470.060. Loan moneys may be disbursed through a project
manager only for the purpose of enabling the project manager to
issue energy efficiency and sustainable technology loans and
small scale local energy program loans to applicants in the
sustainable energy territory served by the project manager.
(2) The project manager may issue a loan from moneys disbursed
under this section only if adequate security exists to ensure
repayment of the loan. An energy efficiency and sustainable
technology loan from a project manager to an applicant located in
the sustainable energy territory served by the project manager
must have the features described in section 29 of this 2009 Act
and ORS 470.150 and is subject to the requirements and processes
imposed under sections 2 to 41 of this 2009 Act for energy
efficiency and sustainable technology loans issued by the
Director of the State Department of Energy. A project manager
that issues an energy efficiency and sustainable technology loan
to support a small scale local energy project may record a
fixture filing and lien on the property that benefits from the
project as provided in section 36 or 37 of this 2009 Act. + }
SECTION 27. { + (1) The State Department of Energy may not
complete an agreement for the issuance of an energy efficiency
and sustainable technology loan unless the sustainable energy
project manager, a contractor designated by the project manager
or a person approved by the department completes an energy
savings projection or similar evaluation for the property that
will benefit from the small scale local energy project. The
projection or other evaluation shall be in writing and shall, at
a minimum, identify the following:
(a) The recommended base efficiency package for the structure.
A base energy package may include improvements to existing supply
lines and equipment.
(b) Any optional package recommended for the structure.
(c) The estimated net monthly cost to the applicant when energy
savings, project repayment costs, tax or other incentives, loan
offset grants and other relevant economic factors are considered.
(d) The monthly cost to the applicant to repay the loan
principal and finance charges.
(e) If the base efficiency package or recommended optional
package includes the use of nontraditional technology, a
description of the nontraditional technology.
(2) A base efficiency package or optional package may not
provide for achieving energy efficiency upgrades through the use
of appliances or other equipment that lack sufficient
relationship to the structure to be subject to a fixture filing
or real property lien.
Enrolled House Bill 2626 (HB 2626-C) Page 12
(3) The projection or other evaluation shall state in a clear
and conspicuous manner:
(a) That the estimated net monthly cost to the applicant
contained in the projection or other evaluation does not
represent a guarantee of project performance or results; and
(b) That no liability attaches to the department, any state
agency or officer, the project managers or any utility if actual
energy savings are less than the estimated savings or if the
construction process or constructed project is unsatisfactory in
any way.
(4) If the base efficiency package or recommended optional
package includes the use of nontraditional technology, the
projection or other evaluation shall include a statement that the
technology is nontraditional, initialed by the prospective loan
applicant.
(5) An energy efficiency and sustainable technology loan may be
used only for a project constructed by a contractor certified
under section 51 of this 2009 Act.
(6) Prior to the disbursement of the loan moneys to the
contractor, a project manager or other person approved by the
department shall verify that the small scale local energy project
has been completed in a manner consistent with energy efficiency
and sustainable technology loan program requirements. If this
state or any agency of this state adopts or recognizes an energy
efficiency scoring system for buildings, the department may
require that the verification described in this subsection
include the determination of an energy efficiency score for the
property benefited by the project.
(7) The department shall periodically consult with contractors
certified under section 51 of this 2009 Act for the purpose of
updating average cost and projected savings figures used for
energy savings projections or other evaluations under this
section. The department shall encourage the use of methods for
conducting energy savings projections or other evaluations under
this section that are cost-effective and time-effective, take
advantage of economies of scale and produce results that are
accurate and are replicable for equivalent base energy
packages. + }
SECTION 28. { + (1) Except as provide in subsection (2) of
this section, the amount of an energy efficiency and sustainable
technology loan may not exceed $40,000.
(2) The loan amount limit described in subsection (1) of this
section shall increase annually on January 1 of each year,
beginning January 1, 2011. The loan amount limit shall increase
from the most recently established loan amount limit by a
percentage equal to the percentage increase in the Portland-Salem
Consumer Price Index for All Urban Consumers for All Items as
reported by the Bureau of Labor Statistics of the United States
Department of Labor. + }
SECTION 29. { + An application for an energy efficiency and
sustainable technology loan must contain:
(1) Information sufficient to identify real or personal
property located within this state against which a fixture filing
and lien may be filed under section 36 or 37 of this 2009 Act to
secure the loan and sufficient to allow verification that the
property owner is the applicant or has consented to the fixture
filing and lien;
(2) A clear and conspicuous disclosure:
(a) That a lien or other form of security for the energy
efficiency and sustainable technology loan need not be paid in
Enrolled House Bill 2626 (HB 2626-C) Page 13
full upon a sale of the property, but all amounts due under the
repayment plan as of the sale date must be paid before the sale
closes; and
(b) That some lenders may be unwilling to make a mortgage on a
property that is subject to a lien or other form of security for
the energy efficiency and sustainable technology loan;
(3) The loan applicant must sign a loan contract that recites
all terms and conditions required under this chapter for an
energy efficiency and sustainable technology loan; and
(4) The State Department of Energy must be satisfied that all
conditions required under ORS 470.090 to support the loan have
been satisfied. + }
SECTION 30. { + (1) If an applicant for a loan to construct a
residential small scale local energy project has household income
that may qualify the person for a weatherization program operated
by the Housing and Community Services Department, the sustainable
energy project manager shall refer the applicant to the
department. This subsection does not prohibit a project manager
from accepting an application from a person who has been denied,
or is receiving, assistance under a department weatherization
program.
(2) If an applicant for a loan to construct a residential small
scale local energy project has household income that is less than
250 percent of the federal poverty guidelines, upon request by
the applicant, the State Department of Energy may waive all or
part of an application fee for the loan and may waive all or part
of the project initiation fee. + }
{ +
FEES + }
SECTION 31. { + Except as provided in section 30 of this 2009
Act, an applicant for an energy efficiency and sustainable
technology loan approved by the State Department of Energy shall
pay the department a project initiation fee. Upon request of the
loan applicant, the department may add all or part of a project
initiation fee to the principal of an issued loan. The department
may establish the fee amount by rule, not to exceed four percent
of the approved loan amount. If the department does not establish
the fee amount, the fee shall be two percent of the approved loan
amount. + }
{ +
ON-BILL FINANCING + }
SECTION 32. { + (1) If an investor-owned utility serving a
sustainable energy territory has established an on-bill financing
system, an energy efficiency and sustainable technology loan
shall be repaid by on-bill financing unless the loan agreement
specifies that the State Department of Energy and the borrower
have agreed to an alternative method for ensuring repayment of
the loan.
(2) Unless the Public Utility Commission grants an
investor-owned utility a waiver under subsection (4) of this
section, the on-bill financing system of the utility must:
(a) Enable a customer to make a single payment to satisfy the
periodic utility charges and repayment on an energy efficiency
and sustainable technology loan;
Enrolled House Bill 2626 (HB 2626-C) Page 14
(b) Provide a clearly identifiable line item or separate
statement in the utility bill that shows the energy efficiency
and sustainable technology loan repayment amount; and
(c) Direct energy efficiency and sustainable technology loan
repayment amounts collected by the utility to the appropriate
sustainable energy project manager or to the department for
deposit to the credit of the Small Scale Local Energy Project
Administration and Bond Sinking Fund, Energy Project Bond Loan
Fund or Energy Project Supplemental Fund.
(3) The Public Utility Commission shall adopt rules for the use
of on-bill financing by investor-owned utilities. The rules may
include, but need not be limited to, rules regarding nonpayment,
insufficient payment, delinquency notices, repayment charge
transfers, processing fees, late fees and refunds. The commission
may not adopt any rule that imposes responsibility for the
repayment of an energy efficiency and sustainable technology loan
on the utility.
(4) The commission may waive the requirement that an
investor-owned utility provide on-bill financing for one or more
loans if the commission determines that providing the on-bill
financing is not practicable. If the commission grants a utility
a waiver under this subsection, the utility shall bill the
affected customers for loan repayment separately from any utility
customer meter billings. + }
SECTION 33. { + (1) If a consumer-owned utility serving a
sustainable energy territory has established an on-bill financing
system, an energy efficiency and sustainable technology loan
shall be repaid by on-bill financing unless the loan agreement
specifies that the State Department of Energy and the borrower
have agreed to an alternative method for ensuring repayment of
the loan.
(2) Unless the Director of the State Department of Energy
grants a consumer-owned utility a waiver under subsection (4) of
this section, the on-bill financing system of the utility must:
(a) Enable a customer to make a single payment to satisfy the
periodic utility charges and repayment on an energy efficiency
and sustainable technology loan;
(b) Provide a clearly identifiable line item or separate
statement in the utility bill that shows the energy efficiency
and sustainable technology loan repayment amount; and
(c) Direct energy efficiency and sustainable technology loan
repayment amounts collected by the utility to the appropriate
sustainable energy project manager or to the department for
deposit to the credit of the Small Scale Local Energy Project
Administration and Bond Sinking Fund, Energy Project Bond Loan
Fund or Energy Project Supplemental Fund.
(3) The director may not adopt any rule that imposes
responsibility for the repayment of an energy efficiency and
sustainable technology loan on the utility.
(4) The director may waive the requirement that a
consumer-owned utility provide on-bill financing for one or more
loans if the director determines, after consultation with the
Bonneville Power Administration, that providing the on-bill
financing is not practicable. If the director grants a waiver
under this subsection, the utility shall bill the affected
customers for loan repayment separately from any utility customer
account or customer meter billings. + }
SECTION 34. { + If a customer is served by both an electric
utility and a gas utility that both have an on-bill financing
system, a loan repaid through on-bill financing shall be repaid
Enrolled House Bill 2626 (HB 2626-C) Page 15
through the on-bill financing system of the utility that supplies
the customer's primary source of heat for the property. + }
SECTION 35. { + (1) If a utility incurs reasonable costs in
implementing an on-bill financing system that exceed any moneys
received by the utility to assist in the implementation, the
costs are legitimate costs for ratemaking purposes.
(2) A loan repayment charge for an energy efficiency and
sustainable technology loan may include, but need not be limited
to, the amount of the loan, interest on the loan and the cost
incurred by the State Department of Energy to implement, promote
and administer the energy efficiency and sustainable technology
loan program.
(3) The amount of an energy efficiency and sustainable
technology loan repayment and any moneys received by a utility to
assist in the implementation of an on-bill financing system are
not gross revenue for purposes of calculating franchise fees or
other regulatory assessments.
(4) If there is a change in ownership or other interest in
property benefited by an energy efficiency and sustainable
technology loan, and the loan relies on an on-bill financing
system for collection of the loan repayment charge, the utility
shall transfer the loan repayment charge to the utility customer
account of the person acquiring the ownership or other interest
in the property. + }
{ +
REPAYMENT AND LIENS + }
SECTION 36. { + (1) Subject to ORS 470.170, the State
Department of Energy may identify forms of acceptable security
for energy efficiency and sustainable technology loans that the
department determines will achieve the goals and requirements of
the energy efficiency and sustainable technology loan program and
that provide adequate security for repayment of the loans.
(2) For loans from the Small Scale Local Energy Project Loan
Fund, the department may record a fixture filing as defined in
ORS 79.0102 covering those building materials to be attached to
the real property pursuant to an energy efficiency and
sustainable technology loan that remain easily detachable from
the property and are not essential to a structure or the use of a
structure. The department shall record a lien on the real
property benefited by the loan for those indebtedness amounts
that are not secured by a fixture filing. The department may
record a filing or lien under this section only on a property for
which the property owner has agreed to the installation of a base
efficiency package or optional package benefiting the property.
(3) An energy efficiency and sustainable technology loan must
provide for repayment through an on-bill financing system unless
the department finds that an alternative method for repaying the
loan would provide suitable security for the loan and the
department and the borrower specify the alternative repayment
method in the loan agreement. + }
SECTION 37. { + (1) The State Department of Energy or a
sustainable energy project manager may act on behalf of the
Director of the State Department of Energy for the purpose of
recording a lien in favor of the director as required by ORS
470.170 (3) against property benefited by an energy efficiency
and sustainable technology loan.
(2) A lien described in this section attaches to the property
and is perfected upon recording in the county deed records.
Enrolled House Bill 2626 (HB 2626-C) Page 16
(3) In an action to foreclose a lien created under this
section, the court shall include in the lien amount all costs for
filing and recording the lien. The court shall award a prevailing
party in the foreclosure action reasonable attorney fees and
costs. + }
SECTION 38. { + A person that acquired an interest in a
property in good faith and for a valuable consideration before
the date a lien described in section 36 or 37 of this 2009 Act
attached to the property under ORS 470.170 may avoid foreclosure
of the lien by paying any delinquencies and collection costs
associated with the underlying loan repayment charge and assuming
normal payments in compliance with the energy efficiency and
sustainable technology loan agreement repayment provisions. + }
SECTION 39. { + A person entering into an agreement to sell,
rent, lease or otherwise confer a right in the person's real
property that is benefited by an energy efficiency and
sustainable technology loan for which a loan repayment charge or
other repayment obligation applies or for which a fixture filing,
lien or other form of security exists shall, prior to any party
signing the agreement, give notice of the loan repayment charge,
repayment obligation, filing, lien or other security affecting
the property to the other parties to the agreement. + }
{ +
LOAN OFFSET GRANTS + }
SECTION 40. { + (1) The State Department of Energy may use
loan offset grant moneys for any of the following if, in the
absence of the grant moneys, a utility customer would incur
higher overall monthly costs when energy costs and small scale
local energy project costs are considered:
(a) Offsetting the cost of an approved small scale local energy
project.
(b) Reducing the loan repayment burden of an energy efficiency
and sustainable technology loan borrower.
(c) Creating a financial incentive for energy efficiency,
renewable energy and energy conservation projects that may not
result in significant energy cost savings.
(d) Providing support, in coordination with the Oregon
Innovation Council or other sustainable energy technology
research bodies or companies, for small scale local energy
projects that use nontraditional technology.
(2) If a small scale local energy program loan applicant is a
person with an income limited as described in section 30 (2) of
this 2009 Act, the department may use loan offset grant moneys
for an optional package or to offset reasonable costs associated
with structural improvements that are not included in the base
efficiency package, but that are necessary to the proper
installation of the base efficiency package.
(3) The Director of the State Department of Energy may
investigate and test the feasibility of using mechanisms other
than the disbursing of Loan Offset Grant Fund moneys for
accomplishing the purposes described in subsection (1) of this
section. + }
{ +
APPRENTICESHIP AND JOB TRAINING + }
SECTION 41. { + (1) The State Department of Energy shall
collaborate with the State Workforce Investment Board and other
Enrolled House Bill 2626 (HB 2626-C) Page 17
interested parties to identify opportunities for apprenticeship
and for job training and development that would further the goals
of sections 2 to 41 of this 2009 Act and provide valuable skills
to Oregon workers.
(2) In adopting any rules for carrying out apprenticeship and
job training and development under the energy efficiency and
sustainable technology loan program, the department and the board
shall consult with representatives from:
(a) State workforce programs;
(b) Organized labor;
(c) The State Apprenticeship and Training Council;
(d) The Bureau of Labor and Industries; and
(e) Consumer advocacy organizations.
(3) In addition to consulting with entities described in
subsection (2) of this section, in adopting any rules for
carrying out apprenticeship and job training and development
under the energy efficiency and sustainable technology loan
program, the department and the board may seek input from
organizations representing construction contractors. + }
{ +
PILOT PROGRAMS + }
SECTION 42. { + (1) The Director of the State Department of
Energy shall initiate the energy efficiency and sustainable
technology loan program described in sections 2 to 41 of this
2009 Act in phases through a series of pilot programs, limiting
the geographic availability and other features of the program as
the director considers necessary to facilitate an orderly and
successful implementation of the program. The director shall
initiate the program as quickly as the director considers
practicable to achieve the benefits of the program while ensuring
high participant satisfaction and program integrity.
(2) The director shall endeavor to establish pilot programs
initially in sustainable energy territories that reflect a
variety of population densities. The director may give preference
to territories that request to participate in the pilot
program. + }
SECTION 43. { + (1) The Public Purpose Fund Administrator
shall initiate pilot programs in investor-owned utility service
territories to demonstrate the feasibility of innovative
approaches to financing and installing energy efficiency and
sustainable technology measures as described in sections 2 to 41
of this 2009 Act in residences and commercial buildings in urban
and rural communities. The pilot programs shall test:
(a) The effectiveness of direct contact, door-to-door, media
outlet and other community-focused outreach and solicitation
strategies designed to provide potential energy efficiency and
sustainable technology loan program participants with information
about energy efficiency and renewable energy opportunities under
the program and under similar local, state and federal incentive
programs;
(b) The costs and benefits of taking alternative approaches to
energy audits, including but not limited to, the identification
of measures that are cost-effective and time-effective, take
advantage of economies of scale and produce results that are
accurate and are replicable for equivalent base efficiency
packages;
(c) Ways to assist program participants in understanding and
accessing small scale local energy project funding and making
Enrolled House Bill 2626 (HB 2626-C) Page 18
informed decisions in selecting appropriate energy efficiency and
renewable energy projects;
(d) The effectiveness of various levels of loan offset grants
as an incentive to program participation;
(e) The effectiveness of on-billing financing as a means of
loan repayment and the effectiveness of fixture filings, liens or
other forms of security for loans;
(f) The feasibility and effectiveness of coordinated
installations of residential and commercial structure energy
packages overseen by a single project manager;
(g) The manner in which the program interacts or conflicts with
existing consumer-owned utility loan programs and other utility
and regional energy efficiency programs;
(h) The relative demand for loan program services among
residential and commercial properties and between low-income and
other households, and factors that influence that relative
demand;
(i) The administrative costs and participation rates associated
with various forms of loan security; and
(j) Other strategies and measures identified by the State
Department of Energy or the Public Utility Commission.
(2) The Public Purpose Fund Administrator shall report to the
commission no later than October 1, 2010. The administrator shall
provide a copy of the report to the State Department of Energy.
The report shall evaluate the effectiveness of the pilot
programs, and shall include an evaluation of the extent to which
various strategies and measures:
(a) Help to produce significantly higher rates of energy
savings or renewable energy production;
(b) Increase participation in energy efficiency and renewable
energy programs;
(c) Increase the number of energy efficiency and renewable
energy measures installed per building; and
(d) Reduce the administrative cost per building of providing
energy efficiency and renewable energy services.
(3) The commission shall review the report and:
(a) Order full implementation of the successful energy
efficiency and sustainable technology loan program measures and
strategies in investor-owned utility service territories; or
(b) Order the partial implementation of energy efficiency and
sustainable technology loan program measures and strategies and
make recommendations to the Legislative Assembly for appropriate
statutory modification of the program.
(4) When carrying out pilot programs under this section, the
Public Purpose Fund Administrator and sustainable energy project
managers shall cooperate and coordinate their efforts with the
efforts of local utilities and encourage utilities to promote
energy efficiency and renewable energy and to engage in outreach
and promotional efforts to inform customers of the utility about
the energy efficiency and sustainable technology loan program.
The Public Purpose Fund Administrator and project managers shall
coordinate with gas utilities regarding any changes to a gas
pipeline and with electric utilities regarding electric charging
or any changes to electrical connections that are external to a
structure. The Public Purpose Fund Administrator and project
managers shall coordinate with a gas utility regarding the
installation of appliances used for space heating, water heating
and compressed natural gas refueling. + }
SECTION 44. { + (1) The Director of the State Department of
Energy shall consult with consumer-owned utilities and other
Enrolled House Bill 2626 (HB 2626-C) Page 19
interested parties to develop a pilot program for energy
efficiency and sustainable technology as described in sections 2
to 41 of this 2009 Act for use in the consumer-owned utility
service territories. The director shall solicit one or more
consumer-owned utilities to act as sustainable energy project
managers for the pilot program. The director shall solicit
utilities to act as project managers for the developed pilot
program no later than 180 days after the effective date of this
2009 Act.
(2) The pilot program shall test:
(a) The effectiveness of direct contact, door-to-door, media
outlet and other community-focused outreach and solicitation
strategies designed to provide potential energy efficiency and
sustainable technology loan program participants with information
about energy efficiency and renewable energy opportunities under
the program and under similar local, state and federal incentive
programs;
(b) The costs and benefits of taking alternative approaches to
energy audits, including but not limited to identifying measures
that are cost-effective and time-effective, taking advantage of
economies of scale and producing results that are accurate and
are replicable for equivalent base efficiency packages;
(c) Ways to assist program participants in understanding and
accessing small scale local energy project funding and making
informed decisions in selecting appropriate energy efficiency and
renewable energy projects;
(d) The effectiveness of various levels of loan offset grants
as incentives to program participation;
(e) The effectiveness of on-billing financing as a means of
loan repayment and the effectiveness of fixture filings, liens or
other forms of security for loans;
(f) The feasibility and effectiveness of coordinated
installations of residential and commercial structure energy
packages overseen by a single project manager;
(g) The manner in which the program interacts or conflicts with
existing consumer-owned utility loan programs and other utility
and regional energy efficiency programs;
(h) The relative demand for loan program services among
residential and commercial properties and between low-income and
other households, and factors that influence that relative
demand;
(i) The administrative costs and participation rates associated
with various forms of loan security; and
(j) Other strategies and measures identified by the director.
(3) The sustainable energy project managers in the
consumer-owned utility service areas shall report to the director
no later than October 1, 2010. The report shall evaluate the
effectiveness of the pilot program and shall include an
evaluation of the extent to which various program strategies and
measures:
(a) Help to produce significantly higher rates of energy
savings or renewable energy production;
(b) Increase participation in energy efficiency and renewable
energy programs;
(c) Increase the number of energy efficiency and renewable
energy measures installed per building; and
(d) Reduce the administrative cost per building of providing
energy efficiency and renewable energy services.
(4) When carrying out pilot programs under this section, the
director and the sustainable energy project managers shall
Enrolled House Bill 2626 (HB 2626-C) Page 20
cooperate and coordinate their efforts with the efforts of local
utilities and encourage utilities to promote energy efficiency
and renewable energy and to engage in outreach and promotional
efforts to inform customers of the utility about the energy
efficiency and sustainable technology loan program. + }
SECTION 45. { + A contractor may construct small scale local
energy projects financed under a pilot program described in
sections 42 to 44 of this 2009 Act without being certified under
section 51 of this 2009 Act if:
(1) No certified contractor is available to construct the
project;
(2) The Public Purpose Fund Administrator or the sustainable
energy project manager has approved allowing the contractor to
implement projects financed under the energy efficiency and
sustainable technology loan program; and
(3) The contractor pays wages to employees used for energy
efficiency and sustainable technology loan program projects at a
rate equal to at least 180 percent of the state minimum wage or,
if the project is for a commercial structure or is subject to
prevailing wage laws, the prevailing wage for each trade or
occupation employed. As used in this subsection, 'commercial
structure' means a structure other than a residential structure
as defined in ORS 701.005. + }
SECTION 46. { + If there is a change in ownership or other
interest in property benefited by an energy efficiency and
sustainable technology loan, and the loan relies on an on-bill
financing system for collection of the loan repayment charge, the
utility shall transfer the loan repayment charge to the utility
customer account of the person acquiring the ownership or other
interest in the property. + }
SECTION 46a. { + Notwithstanding any other provision of
sections 42 to 48, 51 and 52 of this 2009 Act, if the Director of
the State Department of Energy determines that the State
Department of Energy is unable to issue a sufficient number of
energy efficiency and sustainable technology loans to offset the
reasonable cost to the department of operating the loan program,
the director may delay or suspend the energy efficiency and
sustainable technology loan program in one or more pilot program
areas or may delay or suspend any feature of the energy
efficiency and sustainable technology loan program. + }
{ +
MISCELLANEOUS PROVISIONS + }
SECTION 47. { + The cost of adopting rules under ORS 470.140
to carry out sections 2 to 41 of this 2009 Act:
(1) May be paid from the Loan Offset Grant Fund or Energy
Project Bond Loan Fund; or
(2) May be paid from the Small Scale Local Energy Project
Administration and Bond Sinking Fund created under ORS 470.300 if
the Director of the State Department of Energy and the State
Treasurer find that:
(a) A cash flow projection for the sinking fund shows that, for
the term of the sinking fund bonds outstanding at the time the
Director of the State Department of Energy transfers the moneys,
remaining moneys in the sinking fund, together with expected loan
contract payments and fund earnings, will improve the financial
basis of the program and will continue to be adequate to pay bond
principal, interest, redemption premiums, if any, and
administration costs; and
Enrolled House Bill 2626 (HB 2626-C) Page 21
(b) The transfer will not create the need for issuance of any
bonds. + }
SECTION 47a. { + Notwithstanding ORS 469.441, in addition to
any assessment imposed under ORS 469.421 (8), the State
Department of Energy may impose a special assessment on energy
resource suppliers that are subject to the assessment described
in ORS 469.421 (8). The special assessment authorized under this
section may not exceed $300,000. The department shall calculate
the share of the special assessment to be paid by an energy
resource supplier based on the most recent gross operating
revenue ratio determined for that supplier under ORS 469.421
(8)(c) as of the special assessment date. The department may not
impose the special assessment authorized under this section more
than once and may not impose the special assessment after July 1,
2010. Moneys received by the department from the special
assessment must be deposited to the Energy Project Supplemental
Fund and used to pay costs incurred by the department or the
Director of the State Department of Energy in implementing or
administering loan programs for small scale local energy
projects. + }
SECTION 48. { + The State Department of Energy shall adopt
rules establishing contractor certification standards required
under section 13 of this 2009 Act no later than December 1, 2010.
The Construction Contractors Board shall implement a
certification system for contractors under section 51 of this
2009 Act no later than January 1, 2011. + }
SECTION 49. { + Sections 42, 43, 44, 45, 46, 46a and 47a of
this 2009 Act are repealed January 2, 2016. + }
SECTION 50. { + Sections 51 and 52 of this 2009 Act are added
to and made a part of ORS chapter 701. + }
SECTION 51. { + (1) A licensed contractor that possesses an
appropriate endorsement may apply to the Construction Contractors
Board for certification to participate in the construction of
small scale local energy projects financed through the energy
efficiency and sustainable technology loan program. The board may
issue the certification to a contractor that meets the standards
established by the State Department of Energy under section 13 of
this 2009 Act. The board may charge a reasonable fee for
certifying a contractor.
(2) If the board receives information that the contractor has
failed to comply with the certification standards established by
the department or has violated a wage and hours standard
described in section 52 of this 2009 Act, the board shall hold a
hearing and may revoke the certification.
(3) The board shall give the department notice of the issuance
or revocation of a certification under this section. + }
SECTION 52. { + (1) If a project financed under the energy
efficiency and sustainable technology loan program is to be
constructed for a commercial structure, the State Department of
Energy shall require that the certified contractor pay the
employees used for the project at the prevailing wage rate
determined by the Commissioner of the Bureau of Labor and
Industries for each trade or occupation employed. If a project is
not to be constructed for a commercial structure, but the
department is uncertain whether prevailing wage requirements
apply to the project, the department shall consult with the
Bureau of Labor and Industries. As used in this subsection,
'commercial structure' means a structure that is not a
residential structure.
Enrolled House Bill 2626 (HB 2626-C) Page 22
(2) If the Construction Contractors Board receives a complaint
that a contractor certified under section 51 of this 2009 Act has
failed to comply with a wage and hours standard for work on a
project financed under the energy efficiency and sustainable
technology loan program, the board shall forward the complaint to
the Bureau of Labor and Industries. If the bureau determines that
the contractor has violated a wage and hours standard for work on
a project financed under the loan program, the bureau shall
notify the board of the determination. + }
SECTION 53. { + Section 14 of this 2009 Act becomes operative
January 1, 2011. + }
SECTION 53a. { + Notwithstanding any other law limiting
expenditures, the limitation on expenditures established by
section 1, chapter ___, Oregon Laws 2009 (Enrolled House Bill
5013), for the biennium beginning July 1, 2009, as the maximum
limit for payment of expenses from fees, moneys or other
revenues, including Miscellaneous Receipts, but excluding lottery
funds and federal funds, collected or received by the State
Department of Energy, is increased by $300,000 for the purpose of
carrying out the provisions of sections 7 to 9, 13, 27, 29 to 33
and 35 to 48 of this 2009 Act and carrying out department
activities relating to the amendments to ORS 470.050, 470.060 and
470.150 by sections 54, 55 and 64 of this 2009 Act. + }
{ +
AMENDMENTS TO OREGON REVISED STATUTES + }
SECTION 54. ORS 470.050 is amended to read:
470.050. As used in this chapter, unless the context requires
otherwise:
(1) 'Alternative fuel project' means:
(a) A fleet of vehicles that are modified or acquired directly
from a factory and that:
(A) Use an alternative fuel including electricity, ethanol,
gasohol with at least 10 percent denatured alcohol content,
hydrogen, hythane, methane, methanol, natural gas, propane or any
other fuel approved by the Director of the State Department of
Energy; and
(B) Produce lower or equivalent exhaust emissions or are more
energy efficient than vehicles fueled by gasoline; and
(b) A facility, including a fueling station, necessary to
operate an alternative fuel vehicle fleet.
(2) 'Applicant' means an applicant for a { + loan to construct
a + } small scale local energy project { - loan - } .
{ + (3) 'Base efficiency package' means the package of energy
efficiency upgrades or renewable energy projects for a property
that, when energy savings, project repayment costs, tax or other
incentives, loan offset grants and other relevant economic
factors are considered, is estimated to not increase the utility
bill of the customer over the loan repayment term. + }
{ - (3) - } { + (4) + } 'Committee' means the Small Scale
Local Energy Project Advisory Committee created under ORS
470.070.
{ - (4) - } { + (5) + } 'Cooperative' means a cooperative
corporation organized under ORS chapter 62.
{ - (5) - } { + (6) + } 'Director' means the Director of
the State Department of Energy appointed under ORS 469.040.
{ - (6) - } { + (7) + } 'Eligible federal agency' means a
federal agency or public corporation created by the federal
government that proposes to use a loan for a small scale
Enrolled House Bill 2626 (HB 2626-C) Page 23
{ + local + } energy project. ' Eligible federal agency' does
not include a federal agency or public corporation created by the
federal government that proposes to use a loan for a small scale
{ + local + } energy project to generate electricity for sale.
{ - (7) - } { + (8) + } 'Eligible state agency' means a
state officer, board, commission, department, institution, branch
or agency of the state whose costs are paid wholly or in part
from funds held in the State Treasury.
{ + (9) 'Energy efficiency and sustainable technology loan '
means a loan for a small scale local energy project that is
repayable by means of:
(a) A charge included with the participant's utility customer
account billing; or
(b) An alternative repayment method identified by the
department and the borrower and specified in the loan agreement.
(10) 'Energy Project Bond Loan Fund' means the fund established
under section 17 of this 2009 Act.
(11) 'Energy Project Supplemental Fund' means the fund
established under section 15 of this 2009 Act.
(12) 'Energy Revenue Bond Repayment Fund' means the fund
established under section 18 of this 2009 Act.
(13) 'Energy savings projection' means an examination of the
energy performance and site characteristics of a property that,
at a minimum, identifies:
(a) A base efficiency package; and
(b) Any additional optional measures that a customer is able to
repay and that the sustainable energy project manager believes to
be feasible for the site. + }
{ - (8) - } { + (14) + } 'Loan' includes the purchase or
other acquisition of evidence of indebtedness and money used for
the purchase or other acquisition of evidence of indebtedness.
{ - (9) - } { + (15) + } 'Loan contract' means the evidence
of indebtedness and all instruments used in the purchase or
acquisition of the evidence of indebtedness. For eligible federal
or state agencies or municipal corporations that are tax exempt
entities, a loan contract may include a lease purchase agreement
with respect to personal property.
{ - (10) 'Loan fund' means the Small Scale Local Energy
Project Loan Fund created by Article XI-J of the Oregon
Constitution. - }
{ + (16) 'Loan offset grant' means moneys from the Loan
Offset Grant Fund that are used to help offset the initial
project costs or loan payments for energy efficiency, renewable
energy and energy conservation projects.
(17) 'Loan Offset Grant Fund' means the fund established under
section 16 of this 2009 Act.
(18) 'Loan repayment charge' means an amount charged to a
utility customer account through on-bill financing as a mechanism
for the repayment of an energy efficiency and sustainable
technology loan. + }
{ - (11) - } { + (19) + } 'Municipal corporation' has the
meaning given in ORS 297.405 and also includes any Indian tribe
or authorized Indian tribal organization or any combination of
two or more of these tribes or organizations acting jointly in
connection with a small scale local energy project.
{ + (20) 'On-bill financing' means a mechanism for collecting
the repayment of an energy efficiency and sustainable technology
loan through a utility customer account billing system.
(21) 'Optional package' means measures for promoting energy
efficiency or the use of renewable energy:
Enrolled House Bill 2626 (HB 2626-C) Page 24
(a) That are in addition to the measures described in the
customer's base efficiency package;
(b) For which a customer has the ability to repay; and
(c) That the sustainable energy project manager believes to be
feasible for the site. + }
{ - (12) - } { + (22) + } 'Oregon business' means a sole
proprietorship, partnership, company, cooperative, corporation or
other form of business entity that is organized or authorized to
do business under Oregon law for profit.
{ + (23) 'Public Purpose Fund Administrator' means the entity
designated by the Public Utility Commission to administer moneys
collected by a company through the public purpose charge
described under ORS 757.612. + }
{ - (13) - } { + (24) + } 'Recycling project' means a
facility or equipment that converts waste into a new and usable
product.
{ - (14) - } { + (25) + } 'Small business' means:
(a) An Oregon business that is:
(A) A retail or service business employing 50 or fewer persons
at the time the loan is made; or
(B) An industrial or manufacturing business employing 200 or
fewer persons at the time the loan is made; or
(b) An Oregon subsidiary of a sole proprietorship, partnership,
company, cooperative, corporation or other form of business
entity for which the total number of employees for both the
subsidiary and the parent sole proprietorship, partnership,
company, cooperative, corporation or other form of business
entity at the time the loan is made is:
(A) Fifty or fewer persons if the subsidiary is a retail or
service business; and
(B) Two hundred or fewer if the subsidiary is an industrial or
manufacturing business.
{ - (15) 'Sinking fund' means the Small Scale Local Energy
Project Administration and Bond Sinking Fund created in ORS
470.300. - }
{ + (26) 'Small scale local energy program loan' means a loan
for a small scale local energy project other than an energy
efficiency and sustainable technology loan. + }
{ - (16) - } { + (27) + } 'Small scale local energy
project' means:
(a) A system, mechanism or series of mechanisms located
primarily in Oregon that directly or indirectly uses or enables
the use of, by the applicant or another person, renewable
resources including, but not limited to, solar, wind, geothermal,
biomass, waste heat or water resources to produce energy,
including heat, electricity and substitute fuels, to meet a local
community or regional energy need in this state;
(b) A system, mechanism or series of mechanisms located
primarily in Oregon or providing substantial benefits to Oregon
that directly or indirectly conserves energy or enables the
conservation of energy by the applicant or another person,
including energy used in transportation;
(c) A recycling project;
(d) An alternative fuel project;
(e) An improvement that increases the production or efficiency,
or extends the operating life, of a system, mechanism, series of
mechanisms or project otherwise described in this subsection,
including but not limited to restarting a dormant project;
(f) A system, mechanism or series of mechanisms installed in a
facility or portions of a facility that directly or indirectly
Enrolled House Bill 2626 (HB 2626-C) Page 25
reduces the amount of energy needed for the construction and
operation of the facility and that meets the sustainable building
practices standard established by the State Department of Energy
by rule; or
(g) A project described in paragraphs (a) to (f) of this
subsection, whether or not the existing project was originally
financed under this chapter, together with any refinancing
necessary to remove prior liens or encumbrances against the
existing project.
(h) A project described in paragraphs (a) to (g) of this
subsection that conserves energy or produces energy by generation
or by processing or collection of a renewable resource.
{ + (28) 'Small Scale Local Energy Project Administration and
Bond Sinking Fund' means the fund created under ORS 470.300.
(29) 'Small Scale Local Energy Project Loan Fund' means the
loan fund created by Article XI-J of the Oregon Constitution and
appropriated to the State Department of Energy under ORS 470.130.
(30) 'Sustainable energy project manager' means the
organization responsible for promoting the energy efficiency and
sustainable technology loan program and related incentives for
energy efficiency and renewable energy at the neighborhood and
community level.
(31) 'Sustainable energy territory' means the geographic
service area that a sustainable energy project manager is
responsible for serving. + }
SECTION 55. ORS 470.060 is amended to read:
470.060. { - (1) Any individual who is a resident of Oregon,
an Oregon business, a nonprofit or public cooperative, a
nonprofit corporation, an eligible federal agency, an eligible
state agency, a public corporation created by the state, an
intergovernmental entity created pursuant to an intergovernmental
agreement under ORS 190.003 to 190.130, or a municipal
corporation may file with the State Department of Energy an
application to obtain loan funds for a small scale local energy
project as provided in this chapter. - }
{ + (1) The following may file with the State Department of
Energy an application to obtain moneys for a small scale local
energy project as provided in this chapter:
(a) An individual who is an Oregon resident;
(b) An Oregon business;
(c) A nonprofit or public cooperative;
(d) A nonprofit corporation;
(e) An eligible federal agency;
(f) An eligible state agency;
(g) A public corporation created by this state;
(h) An intergovernmental entity created pursuant to an
intergovernmental agreement under ORS 190.003 to 190.130;
(i) A special district;
(j) A local improvement district; or
(k) A municipal corporation. + }
(2) Applications to obtain { - funds - } { + financing + }
for a small scale local energy project shall be made in writing
on a form prescribed by the State Department of Energy.
Applications submitted to the State Department of Energy shall:
(a) Describe the nature and purpose of the proposed small scale
local energy project.
(b) State whether any purposes other than energy production,
but consistent with energy production, will be served by the
proposed small scale local energy project, and the nature of the
other purposes, if any.
Enrolled House Bill 2626 (HB 2626-C) Page 26
(c) Include an evaluation of the potential of the small scale
local energy project to meet local community energy needs.
(d) Include an evaluation of the potential environmental
impacts of the small scale local energy project.
(e) State whether any moneys other than those in the loan fund
are proposed to be used for the development of the proposed small
scale local energy project, and whether any other moneys are
available or have been sought for the project.
(f) Describe the source of { - funds - } { + moneys + } for
repayment of the loan applied for.
(3) { + If the application is for a loan other than an energy
efficiency and sustainable technology loan to an individual, + }
a fee of one-tenth of one percent of the amount of the loan
applied for or $2,500, whichever is less, shall be submitted with
each application. In addition, the applicant may be required to
pay for costs incurred in connection with the application that
exceed the application fee and which the Director of the State
Department of Energy determines are incurred solely in connection
with processing the application. The applicant shall be advised
of any additional costs the applicant must pay before the costs
are incurred.
SECTION 56. ORS 470.070 is amended to read:
470.070. (1) The Director of the State Department of Energy
shall appoint a Small Scale Local Energy Project Advisory
Committee to review applications made under ORS 470.060 and rules
adopted under ORS 470.080, { + other than applications for
energy efficiency and sustainable technology loans, + } and make
recommendations { - thereon - } { + regarding those
applications + } to the director.
(2) { - Seven - } { + Nine + } members shall be appointed
to the Small Scale Local Energy Project Advisory Committee. Each
member shall be appointed to serve a two-year term, commencing on
the date of appointment, and until a successor is appointed and
qualified. The members shall represent the interest of the
citizens of this state and shall be knowledgeable in the areas of
small scale energy technology, natural resource development,
environmental protection, finance, agriculture, local government
operations and utility operations. At least three members shall
reside outside the Willamette Valley.
(3) The committee shall elect its own presiding officer, adopt
rules for its procedure and meet on call of the presiding officer
or a majority of the members. A majority of the members shall
constitute a quorum to do business. The director shall provide
administrative facilities and services for the committee.
(4) Members of the Small Scale Local Energy Project Advisory
Committee shall be entitled to expenses as provided by ORS
292.495.
SECTION 57. ORS 470.080 is amended to read:
470.080. (1) After consultation with the Small Scale Local
Energy Project Advisory Committee, the Director of the State
Department of Energy shall establish by rule standards and
criteria for small scale local energy projects to be funded under
{ - the provisions of ORS 470.060 to 470.080 and 470.090. - }
{ + this chapter + } { + other than projects funded through
energy efficiency and sustainable technology loans. + } The
standards and criteria shall operate to encourage diversity in
projects funded, give preference to the maximum extent practical
to projects proposed by individuals and small businesses, ensure
acceptability of environmental impacts and shall require
consideration of the potential contribution of a project if
Enrolled House Bill 2626 (HB 2626-C) Page 27
developed at other suitable locations to meeting the energy needs
of this state. The standards and criteria shall give the least
preference to projects proposed by an eligible federal agency.
(2) All applications submitted under ORS 470.060 shall be
reviewed by the State Department of Energy. The department may
request that the applicant submit additional information or
revise the application. The department shall:
(a) Determine whether the application meets the standards and
criteria adopted under subsection (1) of this section; and
(b) Recommend approval or denial of the loan application, and
if approval is recommended in what amount the loan should be
made.
(3) After concluding its review, unless the application meets
the criteria established by the committee under subsection (4) of
this section, the department shall refer the application and its
findings and recommendation to the committee for its review. The
department shall notify the applicant of the date, time and place
of any oral presentation to the committee on the application. The
committee shall review the application and the department's
findings and recommendations and advise the director whether the
proposed small scale local energy project meets the criteria
established by the director under subsection (1) of this section,
whether the project should be financed with moneys from the
{ + Small Scale Local Energy Project + } Loan Fund and in what
amount the loan should be made if approved.
(4) The committee may provide for direct referral of an
application by the department to the director if the application
meets criteria established by the committee.
SECTION 58. ORS 470.090 is amended to read:
470.090. (1) After consideration of the recommendation of the
Small Scale Local Energy Project Advisory Committee or the State
Department of Energy as provided by ORS 470.080, the Director of
the State Department of Energy may approve or reject the
financing of a small scale local energy project described in an
application filed as provided in ORS 470.060, using moneys in the
Small Scale Local Energy Project Loan Fund. Approval of a loan by
the director shall include a certification of the amount of the
loan.
(2) The director's approval of a loan for a small scale local
energy project shall be based on a finding that:
(a) The proposed small scale local energy project meets
established standards and criteria under ORS 470.080;
(b) The proposed project is consistent with the preservation
and enhancement of environmental quality;
(c) The proposed project is feasible and a reasonable risk from
practical and economic standpoints;
(d) The plan for development of the project is satisfactory;
(e) The applicant is qualified, creditworthy and responsible
and is willing and able to enter into a contract with the
director for development and repayment as provided in ORS
470.150 { + or section 29 of this 2009 Act + };
(f) There is a need for the proposed small scale local energy
project and the applicant's financial resources are adequate to
provide the working capital to maintain the project after
completion;
(g) Moneys in the loan fund are or will be available for the
development of the proposed small scale local energy project;
(h) A dwelling constructed before January 1, 1979, that will be
served by a proposed space heating project is weatherized
according to the standards established under ORS 469.155;
Enrolled House Bill 2626 (HB 2626-C) Page 28
(i) Except for a proposed space heating project for a dwelling
under paragraph (h) of this subsection, the loan does not finance
any project for which the projected economic value of the energy
savings of the project during the first year the project is
implemented is equal to or greater than the cost of the project;
and
(j) The loan will not preclude individuals and small businesses
from access to loan { - funds - } { + moneys + }.
(3) The director shall notify the applicant and the presiding
officer of the committee of the director's action and of the
reasons for that action. The director shall inform the applicant
of the review procedure established in ORS 470.100.
SECTION 59. ORS 470.100 is amended to read:
470.100. (1) If the Director of the State Department of Energy
rejects a loan application or approves a loan amount different
than that requested by the applicant, the applicant may request
that the Small Scale Local Energy Project Advisory Committee
review the director's action.
(2) The committee may review the director's action on its own
motion or at the request of the applicant. A majority of the
members of the committee may authorize the presiding officer of
the committee to appeal the director's action to the Governor.
(3) An appeal of the director's action may be initiated by the
presiding officer of the committee no later than 45 days after
the date the applicant receives notice of the director's action
under ORS 470.090.
(4) The decision of the Governor is final. If the Governor
fails to act within 30 days after receiving the appeal, the
appeal shall be considered to be denied.
(5) Notwithstanding ORS chapter 183, a decision of the director
or the Governor on an application for { - loan funds - } { +
financing + } under ORS 470.090 or this section is not subject to
judicial review.
SECTION 60. ORS 470.110 is amended to read:
470.110. The Director of the State Department of Energy may
accept gifts of money or other property from any source, given
for the purposes of ORS 470.050 to 470.120, 470.140 (1) and
470.150 to 470.210. Money so received shall be paid into the
{ + Small Scale Local Energy Project + } Loan Fund. Money or
other property so received shall be used for the purposes for
which received.
SECTION 61. ORS 470.120 is amended to read:
470.120. If the applicant receives from any source other than
the { - loan fund any funds - } { + Small Scale Local Energy
Project Loan Fund, the Energy Project Supplemental Fund or the
Energy Project Bond Loan Fund any moneys + } to assist in the
development of the project, the amount of the loan to the
applicant from the { - loan fund - } { + Small Scale Local
Energy Project Loan Fund, Energy Project Supplemental Fund or
Energy Project Bond Loan Fund + } shall be limited to that amount
necessary for the development of those portions of the project
not funded by other sources.
SECTION 62. ORS 470.130 is amended to read:
470.130. All moneys in the { + Small Scale Local Energy
Project + } Loan Fund created by Article XI-J of the Oregon
Constitution are appropriated continuously to the State
Department of Energy and shall be used for the purposes
{ - provided in - } { + authorized under + } this chapter.
SECTION 63. ORS 470.140 is amended to read:
Enrolled House Bill 2626 (HB 2626-C) Page 29
470.140. (1) In accordance with the applicable provisions of
ORS chapter 183, the Director of the State Department of Energy
may adopt rules considered necessary to carry out the purposes of
this chapter.
(2) The director shall submit to the Legislative Assembly and
the Governor a biennial report of the transactions of the
{ + Small Scale Local Energy Project + } Loan Fund and the
{ + Small Scale Local Energy Project Administration and Bond + }
Sinking Fund in such detail as will accurately indicate the
condition of the funds.
SECTION 64. ORS 470.150 is amended to read:
470.150. Except as provided in ORS 470.155 { + and
470.170 + }, if the Director of the State Department of Energy
approves the financing of a small scale local energy project, the
director, on behalf of the state, and the applicant may enter
into a loan contract, secured by a first lien or by other good
and sufficient collateral in the manner provided in ORS 470.155
to 470.210. For purposes of this section, the interest of the
State Department of Energy under a lease purchase contract
entered into with an eligible federal or state agency or a
municipal corporation may constitute good and sufficient
collateral. The contract:
(1) May provide that the director, on behalf of the state, must
approve the arrangements made by the applicant for the
development, operation and maintenance of the small scale local
energy project, using moneys in the { + Small Scale Local Energy
Project + } Loan Fund for the project development.
(2) Shall provide a plan for repayment by the applicant
{ - to the sinking fund - } of moneys borrowed from the loan
fund used for the development of the small scale local energy
project and interest on those moneys used at a rate of interest
the director determines is necessary to provide adequate funds to
recover the administrative expenses incurred { - under this
chapter - } { + in connection with the loan + }. The director
shall set the interest rate at an incremental rate above the
interest rate on the underlying bonds { + in an amount
sufficient to recover all program-related costs including, but
not limited to, implementation, financing, administration and
promotional costs for the program + }. The incremental rate for
projects proposed by an eligible federal agency shall be greater
than the incremental rate charged to any other governmental
borrower. The repayment plan, among other matters:
(a) Shall provide for commencement of repayment by the
applicant of moneys used for project development and interest
thereon not later than two years after the date of the loan
contract or at any other time as the director may provide. In
addition to any other prepayment option provided in a borrower's
loan agreement, the department shall provide a borrower the
opportunity to prepay the borrower's loan, without any additional
premium, by defeasing such loan to the call date of the bond or
bonds funding the applicable loan, or any refunding bonds linked
to the loan, but such defeasance shall occur only if the director
finds that after the defeasance, the sinking fund will have
sufficient funds to make payments required under ORS 470.300 (1).
(b) May provide for reasonable extension of the time for making
any repayment in emergency or hardship circumstances, if approved
by the director.
(c) Shall provide for evidence of debt assurance of and
security for repayment by the applicant considered necessary or
proper by the director.
Enrolled House Bill 2626 (HB 2626-C) Page 30
(d) Shall set forth the period of loan { + , + } which
{ - shall - } { + may + } not exceed the usable life of the
completed project, or 30 years from the date of the loan
contract, whichever is less.
(e) May set forth a procedure for formal declaration of default
of payment by the director, including formal notification of all
relevant federal, state and local agencies; and further, a
procedure for notification of all relevant federal, state and
local agencies that declaration of default has been rescinded
when appropriate.
(3) May include provisions satisfactory to the director for
field inspection, the director to be the final judge of
completion of the project.
(4) May provide that the liability of the state under the
contract is contingent upon the availability of moneys in the
loan fund for use in the planning and development of the project.
(5) May include further provisions the director considers
necessary to ensure expenditure of the funds for the purposes set
forth in the approved application.
(6) May provide that the director may institute an appropriate
action or suit to prevent use of the project financed by the loan
fund by any person who is delinquent in the repayment of any
moneys due the sinking fund.
{ + (7) If the project is being financed by an energy
efficiency and sustainable technology loan or small scale local
energy program loan, in addition to the requirements of
subsections (1) to (6) of this section, shall include:
(a) For an energy efficiency and sustainable technology loan
that relies on an on-bill financing system for the collection of
a loan repayment charge, an agreement by the applicant to notify
a person acquiring ownership of, or an interest in, the property
from the applicant that the loan repayment charge will be
transferred to the utility customer account of the person
acquiring the ownership or interest unless the loan is discharged
before or at the time the ownership or interest transfers;
(b) A plainly worded acknowledgment by the applicant that
failure to make payments as required under the loan agreement may
result in the foreclosure of a property lien or other debt
collection actions;
(c) A waiver stating that the applicant waives any
jurisdictional or other irregularities or defects in:
(A) The energy efficiency and sustainable technology loan
program;
(B) A small scale local energy project;
(C) The small scale local energy program loan provisions;
(D) This chapter; or
(E) Department rules that relate in any way to the loan
repayment charge, real property lien provisions or any form or
combination of loan security or to the requirement to satisfy the
loan obligation;
(d) If the applicant is not the owner of the property to be
burdened by the loan repayment charge, fixture filing or real
property lien, provision for participation by the property owner
as a party to the contract or a notarized authorization by the
owner for the fixture filing and lien; and
(e) A description of any other conditions required by the
department. + }
SECTION 65. ORS 470.160 is amended to read:
470.160. If the Director of the State Department of Energy
approves a loan for a small scale local energy project, the State
Enrolled House Bill 2626 (HB 2626-C) Page 31
Treasurer shall pay moneys for such project from the { + Small
Scale Local Energy Project + } Loan Fund { + or Energy Project
Bond Loan Fund + } in accordance with the terms of the loan
contract, as prescribed by the director.
SECTION 66. ORS 470.170 is amended to read:
470.170. (1) { + (a) Except as otherwise provided in this
subsection, + } when a loan is made under this chapter to an
applicant other than a municipal corporation, the loan shall be
secured pursuant to a mortgage, trust deed, security agreement,
pledge, assignment or similar instrument, by a security interest
or lien on real or personal property in the full amount of the
loan or as the Director of the State Department of Energy shall
require for adequate security, including but not limited to
long-term leasehold interests or equitable interests in real
property or personal property. In lieu of, or in addition to, any
of the collateral otherwise described in this
{ - subsection - } { + paragraph + }, the applicant may secure
the loan by providing credit enhancement, including but not
limited to a letter of credit or payment bond, or a guaranty
acceptable to the director.
{ + (b) To the extent consistent with any declaration, pledge
or agreement for bonds issued under ORS 470.220 to 470.290, an
energy efficiency and sustainable technology loan shall be
secured as provided in sections 36 or 37 of this 2009 Act. + }
(2) When a loan is made to a municipal corporation for the
development of a small scale local energy project under this
chapter, the loan shall be secured as the director shall require
for adequate security. The security may be in the form of a lien,
mortgage, interest under a lease-purchase contract or other form
of security acceptable to the director and the municipal
corporation.
(3) When a loan made under this chapter is secured by a lien on
the real property of the applicant, the director shall perfect
the lien by recording as provided by law.
(4) Upon payment of all amounts loaned to an applicant pursuant
to this chapter, the director shall file a satisfaction or
release notice that indicates repayment of the loan.
(5) The director may cause to be instituted appropriate
proceedings to foreclose liens for delinquent loan payments, and
shall pay the proceeds of any such foreclosure, less the
director's expenses incurred in foreclosing, into the { + Small
Scale Local Energy Project Administration and Bond + } Sinking
Fund { + if the loan was issued from the Small Scale Local
Energy Project Loan Fund, or into the Energy Project Bond Loan
Fund if the loan was from the Energy Project Bond Loan Fund + }.
In a foreclosure proceeding the director may bid on property
offered for sale in the proceedings and may acquire title to the
property on behalf of the state.
(6) The director may take any action, make any disbursement,
hold any funds or institute any action or proceeding necessary to
protect the state's interest.
(7) The director may settle, compromise or release, for reasons
other than uncollectibility as provided in ORS 293.240, all or
part of any loan obligation so long as the director's action is
consistent with the purposes of this chapter and does not impair
the ability to pay the administrative expenses of the State
Department of Energy or the obligations of any bonds then
outstanding.
SECTION 67. ORS 470.190 is amended to read:
Enrolled House Bill 2626 (HB 2626-C) Page 32
470.190. If an applicant fails to comply with a contract
entered into with the Director of the State Department of Energy
for development and repayment as provided in ORS 470.150 { + or
section 29 of this 2009 Act + }, the director, in addition to
remedies provided in ORS 470.170 and 470.180, may seek other
appropriate legal remedies to secure the loan and may contract as
provided in ORS 470.150 with any other person for continuance of
development and for repayment of moneys from the { + Small Scale
Local Energy Project + } Loan Fund { + or from the Energy
Project Bond Loan Fund + } used therefor and interest thereon.
SECTION 68. ORS 470.230 is amended to read:
470.230. Except as provided in ORS 470.270, all moneys obtained
from the sale of { + general obligation + } bonds under ORS
470.220 to 470.290 { + and Article XI-J of the Oregon
Constitution + } shall be credited by the State Treasurer to the
{ + Small Scale Local Energy Project + } Loan Fund. Those moneys
shall be used only for the purposes stated in Article XI-J of the
Oregon Constitution { + , + } { - and ORS 470.050 to 470.120,
470.140 (1) and 470.150 to 470.210, - } including payment of the
costs of issuing the bonds and of obtaining credit enhancement
for the bonds, and making payments of interest on bonds issued
pursuant to the provisions of ORS 470.220 to 470.290 if there are
insufficient funds in the { + Small Scale Local Energy Project
Administration and Bond + }Sinking Fund to make the payments
referred to in ORS 470.300 (1). Moneys loaned to municipal
corporations but withheld by the State Department of Energy for
security or to pay for future project costs may remain in the
loan fund. Pending the use of the moneys in the loan fund for the
proper purposes, the moneys may be invested in the manner
provided by law.
SECTION 69. ORS 470.240 is amended to read:
470.240. All { + general obligation + } bonds issued under ORS
470.220 to 470.290 { + and Article XI-J of the Oregon
Constitution + } shall contain a direct promise of the State of
Oregon to pay the principal amount of the bonds, plus any accrued
interest and any redemption premium. The principal of and the
interest and redemption premium, if any, upon the bonds, when
due, shall be paid at the fiscal agency of the State of Oregon.
The charges imposed by that agency for its services shall be
paid, upon approval by the State Treasurer, from the { + Small
Scale Local Energy Project Administration and Bond + } Sinking
Fund.
SECTION 70. ORS 470.270 is amended to read:
470.270. (1) After consultation with the State Treasurer, the
Director of the State Department of Energy may issue { + general
obligation + } refunding bonds for the purpose of refunding
outstanding bonds issued under ORS 470.220 to 470.290 { + and
Article XI-J of the Oregon Constitution + }. The refunding bonds
may be sold in the same manner as other bonds are sold under ORS
470.220 to 470.290. All moneys obtained from the sale of
refunding bonds shall be credited by the State Treasurer to the
{ + Small Scale Local Energy Project Administration and Bond
+ }Sinking Fund. { - The issuance of the refunding bonds, the
maturity date, and other details thereof, the rights of the
holders thereof, and the duties of the Governor, Secretary of
State and State Treasurer with respect thereto, shall be governed
by the provisions of ORS 470.220 to 470.290. - } The refunding
bonds may be issued to refund bonds previously issued for
refunding purposes. Pending the use of moneys obtained from the
Enrolled House Bill 2626 (HB 2626-C) Page 33
sale of refunding bonds for proper purposes, such moneys may be
invested in the manner provided by law.
(2) Notwithstanding any provision of ORS 470.150, if the State
Department of Energy issues taxable refunding bonds at a lower
interest rate to refund outstanding general obligation bonds, and
is unable to allow loan recipients to receive a portion of the
interest savings, the director shall allow the loan recipient to
prepay the outstanding loan balance upon the request of the
recipient. The director shall respond to such a request within 30
days after receiving the request by specifying the outstanding
principal balance after applying reserves held by the state for
the borrower and the prepayment premium as listed in the bond
document, loan document or bond purchase agreement.
(3) The department shall pursue opportunities for refunding
bonds to reduce interest sums payable by the department. When the
department refunds a bond with tax-exempt bonds, the department
shall share, on an equitable basis, the savings from any
refunding with the borrowers whose loans were made with the
proceeds of the refunded bonds in an amount consistent with a
finding by the director that the sinking fund has, and will
continue to have, sufficient funds to make payments required
under ORS 470.300 (1). The department may not refund tax-exempt
bonds with taxable bonds, unless the department is able to share
the savings associated with such a refunding with the borrowers
whose loans are linked to such bonds. At least 120 days before
the date on which the department intends to issue refunding
bonds, the director shall notify each borrower whose loan was
made from the proceeds of the bonds being refunded and shall
offer the borrower the opportunity to prepay the borrower's loan.
A borrower shall respond within 60 days of the date of the notice
described in this subsection if the borrower intends to prepay
the borrower's loan.
SECTION 71. ORS 470.280 is amended to read:
470.280. (1) The State Treasurer shall make payment of the
principal of and the interest and redemption premium, if any, on
any { + general obligation + } bond issued under ORS 470.220 to
470.290 from the { + Small Scale Local Energy Project
Administration and Bond + } Sinking Fund.
(2) The State Treasurer shall compute and determine in January
of each year, after the sale of bonds under ORS 470.220 to
470.290 { + and Article XI-J of the Oregon Constitution + }, the
amount of principal, interest and redemption premiums that will
fall due during the year on bonds then outstanding and unpaid and
shall maintain or hold in the sinking fund sufficient moneys to
pay such maturing obligations.
SECTION 72. ORS 470.300 is amended to read:
470.300. (1) There hereby is created the Small Scale Local
Energy Project Administration and Bond Sinking Fund, separate and
distinct from the General Fund, to provide for payment of:
(a) Administrative expenses of the State Department of Energy
and the Director of the State Department of Energy in processing
applications, investigating potential small scale local energy
projects and proposed loans and servicing and collecting
outstanding loans made { - under this chapter - } { + from
the Small Scale Local Energy Project Loan Fund + }, if the
expense is not paid directly by the applicant.
(b) Administrative expenses of the State Treasurer in carrying
out the duties, functions and powers imposed upon the State
Treasurer by this chapter.
Enrolled House Bill 2626 (HB 2626-C) Page 34
(c) Principal, interest and redemption premium, if any, of all
bonds issued pursuant to the provisions of ORS 470.220 to 470.290
{ + and Article XI-J of the Oregon Constitution + }.
(d) Net investment earnings on any funds loaned to municipal
corporations but withheld as provided in ORS 470.230.
(e) Costs of issuing the bonds and of obtaining credit
enhancement for the bonds.
(2) The fund created by subsection (1) of this section shall
consist of:
(a) Application fees required by ORS 470.060, unless the
department requires the applicant to pay the fee directly for a
cost incurred in connection with the application.
(b) Repayment of moneys loaned to applicants from the
{ + Small Scale Local Energy Project + } Loan Fund, including
interest on such moneys.
(c) Such moneys as may be appropriated to the fund by the
Legislative Assembly.
(d) Moneys obtained from the sale of refunding bonds { + under
ORS 470.220 to 470.290 + } and any accrued interest on such
bonds.
(e) Moneys received from ad valorem taxes levied pursuant to
Article XI-J of the Oregon Constitution, and all moneys that the
Legislative Assembly may provide in lieu of such taxes.
(f) Interest earned on cash balances invested by the State
Treasurer.
(g) Moneys transferred from the { - Small Scale Local Energy
Project - } loan fund.
{ + (h) Gifts, grants, donations or other moneys for
promoting small scale local energy program loan purposes and
goals. + }
(3) The director, with the approval of the State Treasurer, may
transfer moneys from the sinking fund to the loan fund if:
(a) A cash flow projection shows that, for the term of the
bonds outstanding at the time the director transfers the moneys,
remaining moneys in the sinking fund, together with expected loan
contract payments and fund earnings, will improve the financial
basis of the program and will continue to be adequate to pay bond
principal, interest, redemption premiums, if any, and
administration costs; and
(b) The transfer will not create the need for issuance of any
bonds.
(4) The director, with the approval of the State Treasurer, may
establish separate and distinct accounts within the sinking fund
to accomplish the purpose of this section.
SECTION 73. ORS 470.310 is amended to read:
470.310. (1) If there are insufficient funds in the { + Small
Scale Local Energy Project Administration and Bond + }Sinking
Fund to make the payments referred to in ORS 470.300 (1), the
Director of the State Department of Energy may request the funds
necessary for such payments from the Legislative Assembly or the
Emergency Board.
(2) When the director determines that moneys in sufficient
amount are available in the sinking fund, the State Treasurer
shall reimburse the General Fund without interest, in an amount
equal to the amount allocated by the Legislative Assembly or the
Emergency Board pursuant to subsection (1) of this section. The
moneys used to reimburse the General Fund under this subsection
shall not be considered a budget item on which a limitation is
otherwise fixed by law, but shall be in addition to any specific
Enrolled House Bill 2626 (HB 2626-C) Page 35
appropriations or amounts authorized to be expended from
continually appropriated moneys.
{ +
LOCAL IMPROVEMENT DISTRICTS + }
SECTION 74. { + Section 75 of this 2009 Act is added to and
made a part of ORS 223.387 to 223.399. + }
SECTION 75. { + (1) As used in this section:
(a) 'Energy improvements' means energy efficiency and renewable
energy improvements to qualifying real property authorized by:
(A) A local government implementing a program established under
subsection (2) of this section; or
(B) The State Department of Energy for a loan issued under
subsection (9) of this section to a local government that
establishes a program in cooperation with a local government
described in subparagraph (A) of this paragraph.
(b) 'Local government' means cities and counties.
(c) 'Qualifying real property' means single-family or
multifamily residential dwellings or commercial or industrial
buildings that the local government has determined can be
benefited by energy improvements.
(2) Subject to subsection (3) of this section, a local
government may establish a program to make loans to owners of
record of qualifying real property for the purpose of paying for
cost-effective energy improvements to the qualifying real
property financed with the net proceeds and interest earnings of
revenue bonds authorized by this section.
(3) Before establishing a program under this section, the local
government shall provide notice to utilities that distribute
electric energy or natural gas within the areas in which the
local government will operate the program.
(4) A local government that establishes a program under this
section may:
(a) Require performance of an energy audit on the qualifying
real property before the local government approves a loan for
energy improvements to the property;
(b) Impose requirements intended to ensure that the loan is
consistent with the purpose of the program; and
(c) Impose requirements and conditions on loans that are
designed to ensure timely repayment of the loans.
(5) If the owner of record of qualifying real property requests
a loan under this section, the local government implementing the
program may:
(a) Enter into a loan agreement with the owner, and any other
person benefited by the loan, in a principal amount sufficient to
pay:
(A) The costs of energy improvements the local government
determines will benefit the qualifying real property and the
borrowers;
(B) The costs of the energy audit; and
(C) The costs and reserves of the program.
(b) Charge the borrower an interest rate on the principal
amount that is sufficient to pay the financing costs of the
program, including loan delinquencies.
(c) Charge periodic fees to pay for program costs.
(6) The local government implementing the program that lends
money for qualifying real property may:
Enrolled House Bill 2626 (HB 2626-C) Page 36
(a) Secure the loan with a lien on the benefited qualifying
real property in the manner and with the same priority as a lien
for assessments for local improvements authorized by ORS 223.393.
(b) Assess the benefited qualifying real property for the
amounts due under a loan agreement.
(c) Enforce a lien and collect an assessment authorized by this
section as provided in ORS 223.505 to 223.650.
(d) Secure a loan in any other manner that the local government
determines is reasonable.
(7) In lieu of enforcing liens and collecting assessments as
provided in subsection (6) of this section, a local government
may certify the assessment, in the manner provided in ORS
310.060, to the county assessor of each county in which benefited
qualifying real property is located. If the assessments are
certified as provided in this subsection, the county assessor
shall:
(a) Enter the assessment upon the county assessment roll
against the property described in the certificate, in the manner
that other local government assessments are entered;
(b) Collect, account for and enforce the assessments in the
manner that local government taxes are collected, accounted for
and enforced; and
(c) Transfer, as provided by law, the assessments collected to
the local government that imposed the assessment.
(8) A local government may issue revenue bonds pursuant to ORS
287A.150 to finance program costs, including the costs of making
loans for energy improvements.
(9) The State Department of Energy may lend money under the
provisions of ORS 470.060 to 470.080 and 470.090 to a local
government that establishes a program under this section in
cooperation with a local government implementing a program under
this section. + }
{ +
ENERGY RESOURCE SUPPLIERS + }
SECTION 76. ORS 469.421 is amended to read:
469.421. (1) Subject to the provisions of ORS 469.441, any
person submitting a notice of intent, a request for exemption
under ORS 469.320, a request for an expedited review under ORS
469.370, a request for an expedited review under ORS 469.373, a
request for the State Department of Energy to approve a pipeline
under ORS 469.405 (3), an application for a site certificate or a
request to amend a site certificate shall pay all expenses
incurred by the Energy Facility Siting Council, the State
Department of Energy and the Oregon Department of Administrative
Services related to the review and decision of the council. These
expenses may include legal expenses, expenses incurred in
processing and evaluating the application, issuing a final order
or site certificate, commissioning an independent study by a
contractor, state agency or local government under ORS 469.360,
and changes to the rules of the council that are specifically
required and related to the particular site certificate.
(2) Every person submitting a notice of intent to file for a
site certificate, a request for exemption or a request for
expedited review shall submit the fee required under the fee
schedule established under ORS 469.441 to the State Department of
Energy when the notice or request is submitted to the council. To
the extent possible, the full cost of the evaluation shall be
paid from the fee paid under this subsection. However, if costs
Enrolled House Bill 2626 (HB 2626-C) Page 37
of the evaluation exceed the fee, the person submitting the
notice or request shall pay any excess costs shown in an itemized
statement prepared by the council. In no event shall the council
incur evaluation expenses in excess of 110 percent of the fee
initially paid unless the council provides prior notification to
the applicant and a detailed projected budget the council
believes necessary to complete the project. If costs are less
than the fee paid, the excess shall be refunded to the person
submitting the notice or request.
(3) Before submitting a site certificate application, the
applicant shall request from the State Department of Energy an
estimate of the costs expected to be incurred in processing the
application. The department shall inform the applicant of that
amount and require the applicant to make periodic payments of
such costs pursuant to a cost reimbursement agreement. The cost
reimbursement agreement shall provide for payment of 25 percent
of the estimated costs when the applicant submits the
application. If costs of the evaluation exceed the estimate, the
applicant shall pay any excess costs shown in an itemized
statement prepared by the council. In no event shall the council
incur evaluation expenses in excess of 110 percent of the fee
initially estimated unless the council provided prior
notification to the applicant and a detailed projected budget the
council believes is necessary to complete the project. If costs
are less than the fee paid, the council shall refund the excess
to the applicant.
(4) Any person who is delinquent in the payment of fees under
subsections (1) to (3) of this section shall be subject to the
provisions of subsection (11) of this section.
(5) Subject to the provisions of ORS 469.441, each holder of a
certificate shall pay an annual fee, due every July 1 following
issuance of a site certificate. For each fiscal year, upon
approval of the State Department of Energy's budget authorization
by a regular session of the Legislative Assembly or as revised by
the Emergency Board, the Director of the State Department of
Energy promptly shall enter an order establishing an annual fee
based on the amount of revenues that the director estimates is
needed to fund the cost of ensuring that the facility is being
operated consistently with the terms and conditions of the site
certificate, any order issued by the department under ORS 469.405
(3) and any applicable health or safety standards. In determining
this cost, the director shall include both the actual direct cost
to be incurred by the council, the State Department of Energy and
the Oregon Department of Administrative Services to ensure that
the facility is being operated consistently with the terms and
conditions of the site certificate, any order issued by the State
Department of Energy under ORS 469.405 (3) and any applicable
health or safety standards, and the general costs to be incurred
by the council, the State Department of Energy and the Oregon
Department of Administrative Services to ensure that all
certificated facilities are being operated consistently with the
terms and conditions of the site certificates, any orders issued
by the State Department of Energy under ORS 469.405 (3) and any
applicable health or safety standards that cannot be allocated to
an individual, licensed facility. Not more than 35 percent of the
annual fee charged each facility shall be for the recovery of
these general costs. The fees for direct costs shall reflect the
size and complexity of the facility and its certificate
conditions.
Enrolled House Bill 2626 (HB 2626-C) Page 38
(6) Each holder of a site certificate executed after July 1 of
any fiscal year shall pay a fee for the remaining portion of the
year. The amount of the fee shall be set at the cost of
regulating the facility during the remaining portion of the year
determined in the same manner as the annual fee.
(7) When the actual costs of regulation incurred by the
council, the State Department of Energy and the Oregon Department
of Administrative Services for the year, including that portion
of the general regulation costs that have been allocated to a
particular facility, are less than the annual fees for that
facility, the unexpended balance shall be refunded to the site
certificate holder. When the actual regulation costs incurred by
the council, the State Department of Energy and the Oregon
Department of Administrative Services for the year, including
that portion of the general regulation costs that have been
allocated to a particular facility, are projected to exceed the
annual fee for that facility, the Director of the State
Department of Energy may issue an order revising the annual fee.
(8) In addition to any other fees required by law, each energy
resource supplier shall pay to the State Department of Energy
annually its share of an assessment to fund the activities of the
Energy Facility Siting Council, the Oregon Department of
Administrative Services and the State Department of Energy,
determined by the Director of the State Department of Energy in
the following manner:
(a) Upon approval of the budget authorization of the Energy
Facility Siting Council, the Oregon Department of Administrative
Services and the State Department of Energy by a regular session
of the Legislative Assembly, the Director of the State Department
of Energy shall promptly enter an order establishing the amount
of revenues required to be derived from an assessment pursuant to
this subsection in order to fund the activities of the Energy
Facility Siting Council, the Oregon Department of Administrative
Services and the State Department of Energy, including those
enumerated in ORS 469.030 and others authorized by law, for the
first fiscal year of the forthcoming biennium. On or before June
1 of each even-numbered year, the Director of the State
Department of Energy shall enter an order establishing the amount
of revenues required to be derived from an assessment pursuant to
this subsection in order to fund the activities of the Energy
Facility Siting Council, the Oregon Department of Administrative
Services and the State Department of Energy, including those
enumerated in ORS 469.030 and others authorized by law, for the
second fiscal year of the biennium { - which - } { + . The + }
order shall take into account any revisions to the biennial
budget of the Energy Facility Siting Council, the State
Department of Energy and the Oregon Department of Administrative
Services made by the Emergency Board or by a special session of
the Legislative Assembly subsequent to the most recently
concluded regular session of the Legislative Assembly. { +
However, an assessment under this section may not be used to
derive revenue for funding State Department of Energy activities
related to the energy efficiency and sustainable technology loan
program described in ORS chapter 470. + }
(b) Each order issued by the director pursuant to paragraph (a)
of this subsection shall allocate the aggregate assessment set
forth therein to energy resource suppliers in accordance with
paragraph (c) of this subsection.
(c) The amount assessed to an energy resource supplier shall be
based on the ratio which that supplier's annual gross operating
Enrolled House Bill 2626 (HB 2626-C) Page 39
revenue derived within this state in the preceding calendar year
bears to the total gross operating revenue derived within this
state during that year by all energy resource suppliers. The
assessment against an energy resource supplier shall not exceed
five-tenths of one percent of the supplier's gross operating
revenue derived within this state in the preceding calendar year.
The director shall exempt from payment of an assessment any
individual energy resource supplier whose calculated share of the
annual assessment is less than $250.
(d) The director shall send each energy resource supplier
subject to assessment pursuant to this subsection a copy of each
order issued, by registered or certified mail. The amount
assessed to the energy resource supplier pursuant to the order
shall be considered to the extent otherwise permitted by law a
government-imposed cost and recoverable by the energy resource
supplier as a cost included within the price of the service or
product supplied.
(e) The amounts assessed to individual energy resource
suppliers pursuant to paragraph (c) of this subsection shall be
paid to the State Department of Energy as follows:
(A) Amounts assessed for the first fiscal year of a biennium
shall be paid not later than 90 days following the close of the
regular session of the Legislative Assembly; and
(B) Amounts assessed for the second fiscal year of a biennium
shall be paid not later than July 1 of each even-numbered year.
(f) An energy resource supplier shall provide the director, on
or before May 1 of each year, a verified statement showing its
gross operating revenues derived within the state for the
preceding calendar year. The statement shall be in the form
prescribed by the director and is subject to audit by the
director. The statement shall include an entry showing the total
operating revenue derived by petroleum suppliers from fuels sold
that are subject to the requirements of section 3, Article IX of
the Oregon Constitution, ORS 319.020 with reference to aircraft
fuel and motor vehicle fuel, and ORS 319.530. The director may
grant an extension of not more than 15 days for the requirements
of this subsection if:
(A) The energy supplier makes a showing of hardship caused by
the deadline;
(B) The energy supplier provides reasonable assurance that the
energy supplier can comply with the revised deadline; and
(C) The extension of time does not prevent the Energy Facility
Siting Council, the Oregon Department of Administrative Services
or the State Department of Energy from fulfilling their statutory
responsibilities.
(g) As used in this section:
(A) 'Energy resource supplier' means an electric utility,
natural gas utility or petroleum supplier supplying { + ,
generating, transmitting or distributing + } electricity, natural
gas or petroleum products in Oregon.
(B) 'Gross operating revenue' means gross receipts from sales
or service made or provided within this state during the regular
course of the energy supplier's business, but does not include
either revenue derived from interutility sales within the state
or revenue received by a petroleum supplier from the sale of
fuels that are subject to the requirements of section 3, Article
IX of the Oregon Constitution, ORS 319.020 or 319.530.
(C) 'Petroleum supplier' has the meaning given that term in ORS
469.020.
Enrolled House Bill 2626 (HB 2626-C) Page 40
(h) In determining the amount of revenues that must be derived
from any class of energy resource suppliers by assessment
pursuant to this subsection, the director shall take into account
all other known or readily ascertainable sources of revenue to
the Energy Facility Siting Council, the Oregon Department of
Administrative Services and the State Department of Energy,
including, but not limited to, fees imposed under this section
and federal funds, and may take into account any funds previously
assessed pursuant to ORS 469.420 (1979 Replacement Part) or
section 7, chapter 792, Oregon Laws 1981.
(i) Orders issued by the director pursuant to this section
shall be subject to judicial review under ORS 183.484. The taking
of judicial review shall not operate to stay the obligation of an
energy resource supplier to pay amounts assessed to it on or
before the statutory deadline.
(9)(a) In addition to any other fees required by law, each
operator of a nuclear fueled thermal power plant or nuclear
installation within this state shall pay to the State Department
of Energy annually on July 1, an assessment in an amount
determined by the director to be necessary to fund the activities
of the state and the counties associated with emergency
preparedness for a nuclear fueled thermal power plant or nuclear
installation. The assessment shall not exceed $461,250 per year.
Moneys collected as assessments under this subsection are
continuously appropriated to the State Department of Energy for
this purpose.
(b) The State Department of Energy shall maintain and shall
cause other state agencies and counties to maintain time and
billing records for the expenditure of any fees collected from an
operator of a nuclear fueled thermal power plant under paragraph
(a) of this subsection.
(10) Reactors operated by a college, university or graduate
center for research purposes and electric utilities not connected
to the Northwest Power Grid are exempt from the fee requirements
of subsections (5), (8) and (9) of this section.
(11)(a) All fees assessed by the director against holders of
site certificates for facilities that have an installed capacity
of 500 megawatts or greater may be paid in several installments,
the schedule for which shall be negotiated between the director
and the site certificate holder.
(b) Energy resource suppliers or applicants or holders of a
site certificate who fail to pay a fee provided under subsections
(1) to (9) of this section or the fees required under ORS 469.360
after it is due and payable shall pay, in addition to that fee, a
penalty of two percent of the fee a month for the period that the
fee is past due. Any payment made according to the terms of a
schedule negotiated under paragraph (a) of this subsection shall
not be considered past due. The director may bring an action to
collect an unpaid fee or penalty in the name of the State of
Oregon in a court of competent jurisdiction. The court may award
reasonable attorney fees to the director if the director prevails
in an action under this subsection. The court may award
reasonable attorney fees to a defendant who prevails in an action
under this subsection if the court determines that the director
had no objectively reasonable basis for asserting the claim or no
reasonable basis for appealing an adverse decision of the trial
court.
{ +
CAPTIONS + }
Enrolled House Bill 2626 (HB 2626-C) Page 41
SECTION 77. { + The unit captions used in this 2009 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2009 Act. + }
{ +
EMERGENCY + }
SECTION 78. { + This 2009 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2009 Act takes effect on
its passage. + }
----------
Passed by House June 25, 2009
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 27, 2009
...........................................................
President of Senate
Enrolled House Bill 2626 (HB 2626-C) Page 42
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled House Bill 2626 (HB 2626-C) Page 43