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The major changes include the removal of the "legacy project" status afforded certain projects in the initial version of the Rules and the introduction of a new regime for determining the priority of projects submitted in the initial period of the program, a period designated as the Program Launch. Other substantial changes include:
- further definition of the Transmission Availability Test, the Distribution Availability Test, and the Economic Connection Test and the manner in which those tests will be used to prioritize applicants;
- further definition of an aboriginal community, what constitutes aboriginal participation and how the aboriginal community price adder is applied;
- new, more stringent provisions, for change of control of an applicant or a project (s. 12.1);
- the clarification of the definition of Capacity Allocation Exempt Facilities.
The program launch
In the first draft of the Program Rules, priority was given to applicants with an existing capacity ("queue") position during an initial "Initialization Period." The OPA stated that it would respect the expectations of generators from their participation in the Distribution System Code capacity allocation process. Accordingly, those generators that had applied for, prior to February 23, 2009 (the announcement of the introduction of the Green Energy Act) and received a completed Connection Impact Assessment (CIA) prior to the commencement of the Program, would preserve their historical CIA completion time status, mandated by section 6.2.4.1 of the Distribution System Code. The queue, described in that section, gave connection priority to those projects for which transmission and distribution capacity was available and had been allocated.
The revised rules define a "launch application" as one that is submitted to the OPA prior to its deadline for projects wishing to be considered in the first Transmission Availability Test (see below). (That deadline will be set by the OPA, presumably by the date of the program launch or shortly thereafter). The applicants must also meet the mandatory requirements spelled out in sections 2 and 3 of the Rules. These provisions are unchanged from the initial draft, save for requiring that a FIT project applicant must not have signed a prior contract with OPA or other government agency, including a Standard Offer Contract — for example, the Renewable Energy Standard Offer Program (RESOP) — unless such prior contract was terminated prior to March 14, 2009 or more than 12 months before application to FIT. This will continue the ban against holders of RESOP contracts submitting their projects to FIT during the launch period. The OPA expects a large number of applications during the launch period. Applications received after the deadline will be assessed only after all applications that were made during the launch period have been assessed.
Each application made during the launch period will be given a Time Stamp. Each applicant must include the number of days it is prepared to accelerate the project's commercial operation date (COD) ahead of when it would otherwise have to be pursuant to the Draft FIT Contract. Time Stamps will be awarded on the basis of the number of days by which each applicant has committed to accelerate the project's commercial-in-operation-date, to a maximum of 365 days. Where two or more applicants propose the same COD acceleration and require the same connection resources, the earlier Time Stamp will be given to the one that scores highest on four listed criteria. Compliance with each criteria is worth one point. Each of the four points is equivalent to 90 days' acceleration, so an applicant that agreed to accelerate its COD by 365 days, and satisfied the four criteria, would receive the maximum number of points – 365 + 360 or 725. The four criteria are:
- whether the project is "Renewable Energy Approval (REA)-Exempt." A project receives one point if it is REA-Exempt. Renewable Energy Approval is the "single approval" which the Green Energy Act requires for renewable energy projects. The Green Energy Act also exempts renewable energy projects from review under the Planning Act. The contents of the REA, which are still being finalized, would consolidate approvals now given separately by the Ministry of the Environment under various statutes including the Environmental Assessment Act (EAA), the Environmental Protection Act (EPA), the Environmental Bill of Rights, and the Ontario Water Resources Act (OWRA). Under the current transition rules, renewable energy projects which hold a Certificate of Approval under the EPA, or is a PTTW under the OWRA, will not need an REA until those permits expire or are amended.
- when the applicant has ownership of, or has contracted for, under a contract that caps its costs, a piece of major project equipment, it receives one point. For wind and solar projects, it must be equipment manufactured in Ontario.
- whether the applicant's or its affiliate's management have had prior experience developing similar projects.
- whether the applicant has financial backing for the project. If one, or a group of investors, together provide 50% or more of the project's equity, the individual or the group must have a tangible net worth of $1 million at the end of each of the last two fiscal years.
If two applicants have the same number of acceleration days and the same total point score, the earlier Time Stamp is given to the one with the earliest Access Right Date (ARD); in other words, the one who first acquired ownership, leased, or otherwise gained legal control of the site. Finally, if everything else including the ARD is identical, the prior Time Stamp is allocated by draw.
All applications submitted during the launch period are subject to the Transmission Availability Test, and, if successful, the Distribution Availability Test, in order of their Time Stamps, so that, within the group of launch applicants, their order of receipt of a contract depends on the degree to which the application agreed to accelerate the commercial operations of its project, and its compliance with the four criteria.
The applicant must apply for a FIT contract prior to applying for a Connection Impact Assessment. If the applicant has already applied for a Connection Impact Assessment (CIA) or System Impact Assessment (SIA), and/or Customer Impact Assessment (Customer IA) prior to March 14, 2009, and if it has received a completed CIA, SIA, or Customer IA, before applying to FIT, it must rescind the study. It must therefore give up the capacity it acquired through the Distribution System Code process. If the applicant has also signed a Connection Cost Agreement, it must rescind the Agreement. Under the revised rules, capacity allocations for FIT projects are made only once FIT contracts are signed.
Whereas the initial FIT Program Rules considered receipt of a completed CIA a requirement for being considered during the initial period of the program (then called the "initiation period"), the revised CIA rules eliminate this requirement, and, in addition, require the applicant to withdraw from any previous CIAs or Connection Cost Agreements.
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