Oregon Administrative Rules
Chapter 330 - DEPARTMENT OF ENERGY
Division 90 - BUSINESS ENERGY TAX CREDITS (BETC)
Section 330-090-0130 - How the Oregon Department of Energy Processes a BETC Application
Universal Citation: OR Admin Rules 330-090-0130
Current through Register Vol. 63, No. 9, September 1, 2024
(1) General:
(a) The Director reviews a BETC application
in two stages. The first stage is called preliminary certification. The second
stage is called final certification. The final certification consists of the
determination of eligible costs for purposes of the tax credit and the issuance
of the BETC final certificate.
(b)
To begin the review process for each stage, or to change the facility during
the review process, an applicant must submit an application on the form
approved by the Department. Applications for facilities that use or produce
renewable energy resources, or are listed as renewable energy resources as
defined under ORS 469B.130, must be submitted
under the tiered priority system described in OAR 330-090-0350 and include any
additional requirements under this section.
(c) A facility owner planning to use a
Pass-through Partner will select the pass-through option on the Application for
Preliminary Certification.
(d) The
Director may impose conditions in approving a preliminary or final
certification that the facility must operate in accordance with the
representations made by the applicant, and is in accordance with the provisions
of ORS 469B.130 to
469B.169 and any applicable
rules or standards adopted by the Director.
(e) If the Department determines that the
applicant qualifies for a BETC, the Department may issue a preliminary
certification. The preliminary certification may contain specific criteria and
conditions for the facility to meet in order to obtain a final certification
based on the information provided in the application for the BETC and type of
facility that is described in the application. In addition, the Department may
require the applicant to enter a performance agreement or other similar
agreement as a condition of approval.
(2) Pre-Approval of Preliminary Certifications: The Director has pre-approved preliminary certifications for the following facilities that the Department has reviewed and determined to be otherwise qualified under these rules:
(a)
Alternate energy devices qualifying for a tax credit under the Residential
Energy Tax Credit Program, OAR 330-070-0010 through 330-070-0097, for which the
Department has determined qualified costs, energy savings, and eligible tax
credits. A facility owner may file for a preliminary certification to present
documentation supporting different determinations for review and
approval.
(b) Pre-qualified
hybrid-electric vehicles.
(3) Preliminary Certification Review Process: Except as provided in OAR 330-090-0130(1) and (2), a completed application for preliminary certification shall be received by the Department on or prior to the erection, construction, installation or acquisition of a facility.
(a) Within 60 days after an application for
preliminary certification is filed, the Director will decide if it is complete.
An application is incomplete if it does not include information needed to
demonstrate substantive compliance with the provisions of ORS
469B.130 to
469B.169 and any applicable
rules or standards adopted by the Director. The Director will provide the
applicant a written notice relating to the incomplete application and the
information needed to make the application complete. If no action is taken
within 30 days by the applicant, the application will expire.
(b) Within 120 days after a completed
application is submitted the Director will notify the applicant of the status
of the application, except as otherwise provided in subsection (5), if the
applicant has not been notified otherwise the application has been denied.
(A) If it complies, the Director will approve
the preliminary certification. The preliminary certification will state the
amount of the costs that are eligible (eligible costs) for a BETC up to the
maximum amount of certifiable costs under ORS
496.200. It may differ from the
amount requested for reasons explained in the preliminary certification and
based on these rules. Also, it will state any conditions that must be met
before development, final certification, or some other event can occur. The
Director will explain why each condition is needed to comply with these
rules.
(B) If it does not comply,
the Director will deny the application. No later than 60 days after the
Director issues an order denying the application, the applicant may request
reconsideration as provided in OAR 330-090-0133(4).
(C) An applicant can re-submit an application
that is denied if features of the facility change, the applicant provides data
the absence of which resulted in the denial, or other changes warrant. An
application for preliminary certification can be amended or withdrawn by the
applicant before the Director issues a preliminary certification. If an
application is amended, the time within which review occurs starts over. An
applicant may request reconsideration of an application denial under this
rule.
(4) Preliminary Certification After Start of a Facility:
(a) If a facility has been started an
applicant may file a written request with the Director for approval of a
preliminary certification after facility start. Such a request must contain
information in accord with OAR 330-090-0120 and OAR
330-090-0130(5)(b).
(b) The
Director may approve preliminary certification after facility start if:
(A) The request is in accord with OAR
330-090-0120;
(B) Special
circumstances make application for preliminary certification before facility
start up impracticable. Such circumstances include process delays beyond the
applicant's control, facility funding and energy supplies or markets;
and
(C) The Director receives the
waiver request within 90 days of facility start date. Under extraordinary
circumstances the Director may extend the waiver period provided the facility
serves the aims of the program.
(D)
Failing to submit an application for preliminary certification before signing
contracts for the facility does not constitute special circumstances supporting
a waiver.
(5) How Preliminary Certification Can be Revoked: The Director may alter, condition, suspend, deny or revoke a preliminary certification for a reason listed in this section
(a) A facility is not
completed and a complete final certification application received before 1,095
days (3 years) after the preliminary certification was issued or a further 730
days (2 years) if an extension has been approved.
(b) Permits, waivers, and licenses required
by OAR 330-090-0120 are not filed with the Department before facility
development starts.
(c) The
facility undergoes changes without the changes being approved under OAR
330-090-0130(7).
(d) Any other
reason allowed by ORS
469B.157(3).
(6) Amendments to Preliminary Certifications: To change a facility that has a preliminary certification and amend the preliminary certification, the applicant must file a written request with the Director prior to the project completion date.
(a) The request must describe the change to
the facility and reasons for the change. It may include changes in cost, tax
credit amount, facility design, and materials. The request may also include
changes in the amount of energy saved or produced, jobs created, project
financing, the applicant, the location, or other matters that demonstrate
substantial change in the project's scope. The request must be accompanied by
the appropriate fee.
(b) If a
request does not include information needed to demonstrate substantive
compliance with the provisions of ORS
469B.130 to
469B.169 and any applicable
rules or standards adopted by the Director, the department will provide the
applicant a written notice relating to the information needed to make the
request complete. If the applicant does not provide all of the requested
information to the Department within 30 days, the request will expire and no
changes will be made to the preliminary certification.
(c) Preliminary certifications issued for
facilities using or producing renewable energy resources, or facilities listed
as renewable energy resources as defined under ORS
469B.130, shall not be eligible
for consideration of amendments other than those listed below in (A) through
(C). An eligible amendment cannot change the tier within which the application
was reviewed.
(A) Equipment capacity within 10
percent of the approved specification;
(B) Amendments to the facility that do not
result in an increased potential tax credit amount, but increase output or
otherwise improve the facility; or
(C) Changes in ownership.
(d) Amendment requests received
after January 13, 2012, will not be approved if the amendment would result in
an increased tax credit.
(e) Within
60 days after the applicant files the change request, the Director will decide
if the facility as modified complies with these rules.
(A) If it complies, the Director may issue an
amended preliminary certification which may contain new or amended criteria,
conditions and requirements.
(B) If
it does not comply, the Director will issue an order that denies the change and
provide written reasons for the denial.
(f) The amendments to ORS
315.354,
315.356 and
469.220 [renumbered
469B.167] by Oregon Laws, 2011,
Chapter 693 do not provide a basis for applicants to obtain amendments to
certifications issued under ORS
469.210 [renumbered
469B.157] or
469.215 [renumbered
469B.161].
(7) If the facility does not proceed: The applicant must inform the Director in writing if it does not proceed with the facility or proceeds without the tax credit. In that case, the Director will cancel the preliminary certification.
(8) Pass-through Option Process and Application:
(a) In addition to the
application for preliminary certification, an applicant who plans to transfer
the tax credit certificate to a Pass-through Partner must complete and file the
Pass-though Option Application form supplied by the Department.
(b) If the Pass-through Partner is not yet
secured at the time of the Application for Preliminary Certification, the
facility owner will complete that section of the application by inserting
"Partner to be identified" and will submit an updated application when the
Pass-through Partner is secured.
(c) The Department will not transfer and
issue a final certificate to a pass-through partner until the facility owner
pays the pass-through fee and provides evidence to the Department that the
owner has received the pass-through payment in full.
(9) Extension of Preliminary Certification: Applicants who have not previously extended their certification and whose preliminary certification is anticipated to expire prior to completion of the facility may apply for an extension of an additional two years from the current expiry of the preliminary certification.
(a)
Applicants must submit a written request to the department, accompanied by the
appropriate fee, describing the progress made in developing the facility since
the department issued the preliminary certification and verifying that the
project will be developed in accordance with the initial approval, within two
years from the current end of the preliminary certification and prior to the
sunset date of the program. The request shall include the new proposed facility
completion date. Requests may be made no earlier than 6 months prior to the
expiration of the existing preliminary certification.
(b) If an applicant wishes to make changes
other than to the completion date, the applicant must submit a request for
amendment as described in ORS 330-090-0130(7).
(c) If a request or original application does
not include information needed to demonstrate substantive compliance with the
provisions of ORS 469.185469B.130 to 469.225469B.169 and any applicable rules
or standards adopted by the Director the department will provide the applicant
a written notice specifying the information needed to make the request
complete. If the applicant does not provide all of the requested information to
the Department within 30 days, the request will expire and no extension will be
made to the preliminary certification expiration date.
(d) The department will review the previously
approved application against current statute and rules. Within 60 days after
the department receives the extension request, the Director will decide if the
request complies with these rules.
(A) If it
complies, the Director may issue an amended preliminary certification which may
contain new or amended criteria, conditions and requirements.
(B) If it does not comply, the Director will
issue an order that denies the extension and provide written reasons for the
denial.
(10)
(a) Final Certification Review Process and
Application: An application for final certification must be filed after the
facility is completed as defined in these rules.
(b) An application for final certification
must include:
(A) Evidence to demonstrate
that:
(i) The facility complies with all
conditions and criteria of the preliminary certification and with the
provisions of ORS Chapter 469B and the rules adopted thereunder;
(ii) The facility remains in compliance with
local, state, and federal laws, including local land use laws and with any
conditions imposed by the local government as a condition of land use approval;
and
(iii) The facility will be
maintained and operated for at least five years after the facility is placed
into operation, or a lesser period if approved and specified on the preliminary
certification.
(B) An
account of the facility costs, including prorated costs.
(i) If facility costs are less than $50,000,
the account may be records of facility costs paid or incurred based on canceled
checks, invoices, receipts, a binding contract or agreement, or other
documentation as may be required under these rules unless required by the
Director to supply verification from a certified public accountant, who is not
otherwise permanently employed by the facility owner or pass-through partner.
If an applicant has an outstanding binding contract or loan agreement, the
account shall demonstrate that payments on contract or loan are not in default;
or
(ii) If the facility costs are
$50,000 or more, a certified public accountant, who is not otherwise
permanently employed by the facility owner or pass-through partner, must
complete a written review and summary of costs paid or incurred based on
canceled checks, invoices, or receipts, a binding contract or agreement, or
other documentation as may be required under these rules. If an applicant has
an outstanding binding contract or loan agreement, the certified public
accountant shall include sufficient information to demonstrate that accounts
directly related to the facility are not in default.
(iii) The application must include
information regarding any federal grants applied for or received in connection
with the facility including, without limitation, the grant(s) applied for, the
date of each application, the amount of the requested grant(s), when applicant
expects to receive notice of grant approval or denial and any other information
that may be required by the director. Final total costs will be reduced dollar
for dollar by any federal grant amount received by a taxpayer in connection
with the facility.
(C) For
a Sustainable Building Practices Facility, a copy of the facility U.S. Green
Building Council (USGBC) Rating Certificate, USGBC Final LEEDT Review, Energy
Performance Documentation, Narrative for Energy and Atmosphere Credit 1, Annual
Solar Income as described in the rules and method of calculation will be
accepted in lieu of facility cost receipts.
(D) Proof the facility is completed and
operating.
(E) If the facility is
leased or rented, a copy of the lease or rental agreement.
(F) For Alternative Fuel Vehicle facilities,
proof of conversion must include a copy of vehicle emission test performance
results from DEQ or a conversion shop.
(G) Documentation that the applicant and
facility owner or owners are current on their property taxes where the facility
is located if appropriate; and
(H)
Other data the Director finds are needed to assure a facility complies with
these rules and conditions imposed in the preliminary certificate
(I) The names of the person or persons who
are to be issued the final certificate. If the final certificate is to be
issued to a pass-through partner, the Department will not issue the certificate
until the appropriate criteria, conditions and requirements of the preliminary
and final certification and these rules are
satisfied.
Stat. Auth.: ORS 469.040 & 469.165
Stats. Implemented: ORS 469.185 - 469.225
Disclaimer: These regulations may not be the most recent version. Oregon may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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