71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3481
House Bill 2982
Sponsored by Representative ZAUNER (at the request of Mr. Roger
Worrall)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Exempts energy facilities with up to 30 megawatts of nominal
electric generating capacity from energy facility siting
requirements.
A BILL FOR AN ACT
Relating to energy facility siting; creating new provisions; and
amending ORS 469.300 and 469.370.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 469.300 is amended to read:
469.300. As used in ORS 469.300 to 469.563, 469.590 to 469.619,
469.930 and 469.992, unless the context requires otherwise:
(1) 'Administrator' means the administrator of the Office of
Energy created under ORS 469.030.
(2) 'Applicant' means any person who makes application for a
site certificate in the manner provided in ORS 469.300 to
469.563, 469.590 to 469.619, 469.930 and 469.992.
(3) 'Application' means a request for approval of a particular
site or sites for the construction and operation of an energy
facility or the construction and operation of an additional
energy facility upon a site for which a certificate has already
been issued, filed in accordance with the procedures established
pursuant to ORS 469.300 to 469.563, 469.590 to 469.619, 469.930
and 469.992.
(4) 'Associated transmission lines' means new transmission
lines constructed to connect an energy facility to the first
point of junction of such transmission line or lines with either
a power distribution system or an interconnected primary
transmission system or both or to the Northwest Power Grid.
(5) 'Combustion turbine power plant' means a thermal power
plant consisting of one or more fuel-fired combustion turbines
and any associated waste heat combined cycle generators.
(6) 'Construction' means work performed on a site, excluding
surveying, exploration or other activities to define or
characterize the site, the cost of which exceeds $250,000.
(7) 'Council' means the Energy Facility Siting Council
established under ORS 469.450.
(8) 'Electric utility' means persons, regulated electrical
companies, people's utility districts, joint operating agencies,
electric cooperatives, municipalities or any combination thereof,
engaged in or authorized to engage in the business of generating,
supplying, transmitting or distributing electric energy. '
Electric utility' includes any person or public agency generating
electric energy from an energy facility for its own consumption.
(9)(a) 'Energy facility' means any of the following:
(A) An electric power generating plant with a nominal electric
generating capacity of { - 25 - } { + 30 + } megawatts or
more, including but not limited to:
(i) Thermal power;
(ii) Geothermal, solar or wind power produced from a single
energy generation area; or
(iii) Combustion turbine power plant.
(B) A nuclear installation as defined in this section.
(C) A high voltage transmission line of more than 10 miles in
length with a capacity of 230,000 volts or more to be constructed
in more than one city or county in this state, but excluding:
(i) Lines proposed for construction entirely within 500 feet of
an existing corridor occupied by high voltage transmission lines
with a capacity of 230,000 volts or more; and
(ii) Lines of 57,000 volts or more that are rebuilt and
upgraded to 230,000 volts along the same right of way.
(D) A solar collecting facility using more than 100 acres of
land.
(E) A pipeline that is:
(i) At least six inches in diameter, and five or more miles in
length, used for the transportation of crude petroleum or a
derivative thereof, liquified natural gas, a geothermal energy
form in a liquid state or other fossil energy resource, excluding
a pipeline conveying natural or synthetic gas;
(ii) At least 16 inches in diameter, and five or more miles in
length, used for the transportation of natural or synthetic gas,
but excluding:
(I) A pipeline proposed for construction of which less than
five miles of the pipeline is more than 50 feet from a public
road, as defined in ORS 368.001; or
(II) A parallel or upgraded pipeline up to 24 inches in
diameter that is constructed within the same right of way as an
existing 16-inch or larger pipeline that has a site certificate,
if all studies and necessary mitigation conducted for the
existing site certificate meet or are updated to meet current
site certificate standards; or
(iii) At least 16 inches in diameter and five or more miles in
length used to carry a geothermal energy form in a gaseous state
but excluding a pipeline used to distribute heat within a
geothermal heating district established under ORS chapter 523.
(F) A synthetic fuel plant which converts a natural resource
including, but not limited to, coal or oil to a gas, liquid or
solid product intended to be used as a fuel and capable of being
burned to produce the equivalent of two billion Btu of heat a
day.
(G) A plant which converts biomass to a gas, liquid or solid
product, or combination of such products, intended to be used as
a fuel and if any one of such products is capable of being burned
to produce the equivalent of six billion Btu of heat a day.
(H) A storage facility for liquified natural gas constructed
after September 29, 1991, that is designed to hold at least
70,000 gallons.
(I) A surface facility related to an underground gas storage
reservoir that, at design injection or withdrawal rates, will
receive or deliver more than 50 million cubic feet of natural or
synthetic gas per day, or require more than 4,000 horsepower of
natural gas compression to operate, but excluding:
(i) The underground storage reservoir;
(ii) The injection, withdrawal or monitoring wells and
individual wellhead equipment; and
(iii) An underground gas storage reservoir into which gas is
injected solely for testing or reservoir maintenance purposes or
to facilitate the secondary recovery of oil or other
hydrocarbons.
(b) 'Energy facility' does not include a hydroelectric
facility.
(10) 'Energy generation area' means an area within which the
effects of two or more small generating plants may accumulate so
the small generating plants have effects of a magnitude similar
to a single generating plant of { - 25 - } { + 30 + }
megawatts or more. An ' energy generation area' for facilities
using a geothermal resource and covered by a unit agreement, as
provided in ORS 522.405 to 522.545 or by federal law, shall be
defined in that unit agreement. If no such unit agreement exists,
an energy generation area for facilities using a geothermal
resource shall be the area that is within two miles, measured
from the electrical generating equipment of the facility, of an
existing or proposed geothermal electric power generating plant,
not including the site of any other such plant not owned or
controlled by the same person.
(11) 'Extraordinary nuclear occurrence' means any event causing
a discharge or dispersal of source material, special nuclear
material or by-product material as those terms are defined in ORS
453.605, from its intended place of confinement off-site, or
causing radiation levels off-site, that the United States Nuclear
Regulatory Commission or its successor determines to be
substantial and to have resulted in or to be likely to result in
substantial damages to persons or property off-site.
(12) 'Facility' means an energy facility together with any
related or supporting facilities.
(13) 'Geothermal reservoir' means an aquifer or aquifers
containing a common geothermal fluid.
(14) 'Local government' means a city or county.
(15) 'Nominal electric generating capacity' means the maximum
net electric power output of an energy facility based on the
average temperature, barometric pressure and relative humidity at
the site during the times of the year when the facility is
intended to operate.
(16) 'Nuclear incident' means any occurrence, including an
extraordinary nuclear occurrence, that results in bodily injury,
sickness, disease, death, loss of or damage to property or loss
of use of property due to the radioactive, toxic, explosive or
other hazardous properties of source material, special nuclear
material or by-product material as those terms are defined in ORS
453.605.
(17) 'Nuclear installation' means any power reactor; nuclear
fuel fabrication plant; nuclear fuel reprocessing plant; waste
disposal facility for radioactive waste; and any facility
handling that quantity of fissionable materials sufficient to
form a critical mass. 'Nuclear installation' does not include any
such facilities which are part of a thermal power plant.
(18) 'Nuclear power plant' means an electrical or any other
facility using nuclear energy with a nominal electric generating
capacity of { - 25 - } { + 30 + } megawatts or more, for
generation and distribution of electricity, and associated
transmission lines.
(19) 'Office of Energy' means the Office of Energy created
under ORS 469.030.
(20) 'Person' means an individual, partnership, joint venture,
private or public corporation, association, firm, public service
company, political subdivision, municipal corporation, government
agency, people's utility district, or any other entity, public or
private, however organized.
(21) 'Project order' means the order, including any amendments,
issued by the Office of Energy under ORS 469.330.
(22)(a) 'Radioactive waste' means all material which is
discarded, unwanted or has no present lawful economic use, and
contains mined or refined naturally occurring isotopes,
accelerator produced isotopes and by-product material, source
material or special nuclear material as those terms are defined
in ORS 453.605. The term does not include those radioactive
materials identified in OAR 345-50-020, 345-50-025 and
345-50-035, adopted by the council on December 12, 1978, and
revised periodically for the purpose of adding additional
isotopes which are not referred to in OAR 345-50 as presenting no
significant danger to the public health and safety.
(b) Notwithstanding paragraph (a) of this subsection, '
radioactive waste' does not include uranium mine overburden or
uranium mill tailings, mill wastes or mill by-product materials
as those terms are defined in Title 42, United States Code,
section 2014, on June 25, 1979.
(23) 'Related or supporting facilities' means any structure,
proposed by the applicant, to be constructed or substantially
modified in connection with the construction of an energy
facility, including associated transmission lines, reservoirs,
storage facilities, intake structures, road and rail access,
pipelines, barge basins, office or public buildings, and
commercial and industrial structures. 'Related or supporting
facilities' does not include geothermal or underground gas
storage reservoirs, production, injection or monitoring wells or
wellhead equipment or pumps.
(24) 'Site' means any proposed location of an energy facility
and related or supporting facilities.
(25) 'Site certificate' means the binding agreement between the
State of Oregon and the applicant, authorizing the applicant to
construct and operate a facility on an approved site,
incorporating all conditions imposed by the council on the
applicant.
(26) 'Thermal power plant' means an electrical facility using
any source of thermal energy with a nominal electric generating
capacity of { - 25 - } { + 30 + } megawatts or more, for
generation and distribution of electricity, and associated
transmission lines, including but not limited to a
nuclear-fueled, geothermal-fueled or fossil-fueled power plant,
but not including a portable power plant the principal use of
which is to supply power in emergencies. 'Thermal power plant'
includes a nuclear-fueled thermal power plant that has ceased to
operate.
(27) 'Transportation' means the transport within the borders of
the State of Oregon of radioactive material destined for or
derived from any location.
(28) 'Underground gas storage reservoir' means any subsurface
sand, strata, formation, aquifer, cavern or void, whether natural
or artificially created, suitable for the injection, storage and
withdrawal of natural gas or other gaseous substances.
'Underground gas storage reservoir' includes a pool as defined in
ORS 520.005.
(29) 'Utility' includes:
(a) A person, a regulated electrical company, a people's
utility district, a joint operating agency, an electric
cooperative, municipality or any combination thereof, engaged in
or authorized to engage in the business of generating,
transmitting or distributing electric energy;
(b) A person or public agency generating electric energy from
an energy facility for its own consumption; and
(c) A person engaged in this state in the transmission or
distribution of natural or synthetic gas.
(30) 'Waste disposal facility' means a geographical site in or
upon which radioactive waste is held or placed but does not
include a site at which radioactive waste used or generated
pursuant to a license granted under ORS 453.635 is stored
temporarily, a site of a thermal power plant used for the
temporary storage of radioactive waste from that plant for which
a site certificate has been issued pursuant to this chapter or a
site used for temporary storage of radioactive waste from a
reactor operated by a college, university or graduate center for
research purposes and not connected to the Northwest Power Grid.
As used in this subsection, 'temporary storage' includes storage
of radioactive waste on the site of a nuclear-fueled thermal
power plant for which a site certificate has been issued until a
permanent storage site is available by the federal government.
SECTION 2. ORS 469.370 is amended to read:
469.370. (1) Based on its review of the application and the
comments and recommendations on the application from state
agencies and local governments, the Office of Energy shall
prepare and issue a draft proposed order on the application.
(2) Following issuance of the draft proposed order, the Energy
Facility Siting Council shall hold one or more public hearings on
the application for a site certificate in the affected area and
elsewhere, as the council considers necessary. Notice of the
hearing shall be mailed at least 20 days before the hearing. The
notice shall, at a minimum:
(a) Comply with the requirements of ORS 197.763 (2), with
respect to the persons notified;
(b) Include a description of the facility and the facility's
general location;
(c) Include the name of an agency representative to contact and
the telephone number where additional information may be
obtained;
(d) State that copies of the application and draft proposed
order are available for inspection at no cost and will be
provided at a reasonable cost; and
(e) State that failure to raise an issue in person or in
writing prior to the close of the record of the public hearing
with sufficient specificity to afford the decision maker an
opportunity to respond to the issue precludes consideration of
the issue in a contested case.
(3) Any issue that may be the basis for a contested case shall
be raised not later than the close of the record at or following
the final public hearing prior to issuance of the Office of
Energy's proposed order. Such issues shall be raised with
sufficient specificity to afford the council, the Office of
Energy and the applicant an adequate opportunity to respond to
each issue. A statement of this requirement shall be made at the
commencement of any public hearing on the application.
(4) After reviewing the application, the draft proposed order
and any testimony given at the public hearing and after
consulting with other agencies, the Office of Energy shall issue
a proposed order recommending approval or rejection of the
application. The Office of Energy shall issue public notice of
the proposed order, that shall include notice of a contested case
hearing specifying a deadline for requests to participate as a
party or limited party and a date for the prehearing conference.
(5) Following receipt of the proposed order from the Office of
Energy, the council shall conduct a contested case hearing on the
application for a site certificate in accordance with the
applicable provisions of ORS 183.310 to 183.550 and any
procedures adopted by the council. The applicant shall be a party
to the contested case. The council may permit any other person to
become a party to the contested case in support of or in
opposition to the application only if the person appeared in
person or in writing at the public hearing on the site
certificate application. Issues that may be the basis for a
contested case shall be limited to those raised on the record of
the public hearing under subsection (3) of this section, unless:
(a) The Office of Energy failed to follow the requirements of
subsection (2) or (3) of this section; or
(b) The action recommended in the proposed order, including any
recommended conditions of the approval, differs materially from
that described in the draft proposed order, in which case only
new issues related to such differences may be raised.
(6) If no person requests party status to challenge the Office
of Energy's proposed order, the proposed order shall be forwarded
to the council and the contested case hearing shall be concluded.
(7) At the conclusion of the contested case, the council shall
issue a final order, either approving or rejecting the
application based upon the standards adopted under ORS 469.501
and any additional statutes, rules or local ordinances determined
to be applicable to the facility by the project order, as
amended. The council shall make its decision by the affirmative
vote of at least four members approving or rejecting any
application for a site certificate. The council may amend or
reject the proposed order, so long as the council provides public
notice of its hearing to adopt a final order, and provides an
opportunity for the applicant and any party to the contested case
to comment on material changes to the proposed order, including
material changes to conditions of approval resulting from the
council's review. The council's order shall be considered a final
order for purposes of appeal.
(8) Rejection or approval of an application, together with any
conditions that may be attached to the certificate, shall be
subject to judicial review as provided in ORS 469.403.
(9) The council shall either approve or reject an application
for a site certificate:
(a) Within 24 months after filing an application for a nuclear
installation, or for a thermal power plant, other than that
described in paragraph (b) of this subsection, with a name plate
rating of more than 200,000 kilowatts;
(b) Within nine months after filing of an application for a
site certificate for a combustion turbine power plant, a
geothermal-fueled power plant or an underground storage facility
for natural gas;
(c) Within six months after filing an application for a site
certificate for an energy facility, if the application is:
(A) To expand an existing industrial facility to include an
energy facility;
(B) To expand an existing energy facility to achieve a nominal
electric generating capacity of between { - 25 - } { + 30 + }
and 50 megawatts; or
(C) To add injection or withdrawal capacity to an existing
underground gas storage facility; or
(d) Within 12 months after filing an application for a site
certificate for any other energy facility.
(10) At the request of the applicant, the council shall allow
expedited processing of an application for a site certificate for
an energy facility with a generating capacity of less than 100
megawatts. No notice of intent shall be required. Following
approval of a request for expedited review, the Office of Energy
shall issue a project order, which may be amended at any time.
The council shall either approve or reject an application for a
site certificate within six months after filing the site
certificate application if there are no intervenors in the
contested case conducted under subsection (5) of this section. If
there are intervenors in the contested case, the council shall
either approve or reject an application within nine months after
filing the site certificate application. For purposes of this
subsection, the generating capacity of a thermal power plant is
the nameplate rating of the electrical generator proposed to be
installed in the plant. For a geothermal, wind or solar facility,
the generating capacity is the electrical generating capacity
available for delivery at the point the facility is connected to
the transmission system, as demonstrated through a power sales
contract or other objective means.
(11) Failure of the council to comply with the deadlines set
forth in subsection (9) or (10) of this section { - shall - }
{ + may + } not result in the automatic issuance or denial of a
site certificate.
(12) The council shall specify in the site certificate a date
by which construction of the facility must begin.
(13) For a facility that is subject to and has been or will be
reviewed by a federal agency under the National Environmental
Policy Act, 42 U.S.C. Section 4321, et seq., the council shall
conduct its site certificate review, to the maximum extent
feasible, in a manner that is consistent with and does not
duplicate the federal agency review. Such coordination shall
include, but need not be limited to:
(a) Elimination of duplicative application, study and reporting
requirements;
(b) Council use of information generated and documents prepared
for the federal agency review;
(c) Development with the federal agency and reliance on a joint
record to address applicable council standards;
(d) Whenever feasible, joint hearings and issuance of a site
certificate decision in a time frame consistent with the federal
agency review; and
(e) To the extent consistent with applicable state standards,
establishment of conditions in any site certificate that are
consistent with the conditions established by the federal agency.
SECTION 3. { + The amendments to ORS 469.300 and 469.370 by
sections 1 and 2 of this 2001 Act apply to energy facilities
seeking a site certificate on or after the effective date of this
2001 Act. + }
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