71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
SA to SB 843
LC 3206/SB 843-4
SENATE AMENDMENTS TO
SENATE BILL 843
By COMMITTEE ON RULES AND REDISTRICTING
March 14
On page 1 of the printed bill, line 2, after 'provisions; '
delete the rest of the line and insert 'amending ORS 469.300,
469.320, 469.370, 469.501, 469.503, 469.504, 469.594, 757.600 and
757.612; and declaring an emergency.'.
After line 2, insert:
' Whereas Oregon's demand for electricity has grown due to
population growth and energy intensive industries, yet the state
has built few power generation facilities over the past decade;
and
' Whereas Oregon has developed a framework for encouraging
energy development and increasing supply; and
' Whereas this year's historically low rainfall has, combined
with high demand for electricity, strained western power
supplies, exacerbated by the instant purchase system developed by
the State of California; and
' Whereas the strained supply of electricity has had the effect
of dramatically increasing electricity prices; and
' Whereas the Legislative Assembly believes residential
customers should have a safeguard from what is currently an
uncertain and unreliable electricity market, and has delayed any
effects on residential customers until at least 2003 and only
after further extensive review by the Public Utility Commission
and the Legislative Assembly; and
' Whereas the Legislative Assembly believes that the State of
Oregon must take steps now to encourage building adequate
electricity supply for the future; and
' Whereas the Legislative Assembly believes that our future
energy supply must be broad and varied, and include conservation
opportunities, renewable energy sources and traditional energy
facilities that should be built in the shortest time frame
possible while protecting the environment; and
' Whereas the Legislative Assembly recognizes the state's rural
electric cooperatives, people's utility districts and municipal
utilities, supports local control for these utilities and has
exempted them from Oregon's electricity restructuring program;
now, therefore,'.
Delete lines 4 through 31 and delete pages 2 and 3 and insert:
' { + SECTION 1. + } { + Section 1a of this 2001 Act is
added to and made a part of ORS 757.600 to 757.687. + }
' { + SECTION 1a. + } { + (1) In adopting market valuation
methodologies under ORS 757.659 (4), the Public Utility
Commission may provide for use of arbitration to resolve disputes
relating to valuation of electric company investments.
' (2) The commission shall adopt rules for the following
purposes:
' (a) Establishing the process for selecting an arbitrator
under this section.
' (b) Establishing the type, scope and subject matter of
arbitrations under this section, and the procedure for conducting
those arbitrations.
' (c) Establishing standards for the decision of an arbitrator
under this section.
' (d) Governing who may be a party to an arbitration under this
section.
' (3)(a) An arbitrator selected under rules adopted pursuant to
subsection (2) of this section must be experienced in valuing
generating resources and may not have any material conflict of
interest in the result of the arbitration.
' (b) Any party to the arbitration may challenge the selection
of an arbitrator by direct petition to the commission. The
commission's review of the selection shall be limited to
allegations of bias and lack of qualifications. The commission
shall hold a hearing within 10 days after the filing of a
petition, and the commission shall issue a final decision within
10 days after the hearing. The commission may require selection
of a different arbitrator.
' (4) The arbitrator shall control the time, manner and place
of the arbitration, subject to any limitations established by
commission rule.
' (5) An arbitrator acts on behalf of the commission in
performing duties and powers under this section and under rules
adopted by the commission pursuant to this section. Nothing in
this section shall be construed to grant any rights or privileges
to an arbitrator that are otherwise afforded to persons employed
by the state.
' (6) The commission shall enforce an arbitration decision made
pursuant to this section, unless any party to the arbitration
files written exceptions with the commission for any of the
following causes:
' (a) The decision was procured by corruption, fraud or undue
means;
' (b) There was evident partiality or corruption on the part of
the arbitrator;
' (c) The arbitrator exceeded his or her powers, or so
imperfectly executed them that the rights of the party were
substantially prejudiced;
' (d) There was an evident material miscalculation of figures
or an evident material mistake in the description of any thing or
property referred to in the decision; or
' (e) The decision was based on an erroneous interpretation of
a statute, rule or other law.
' (7) If, after a hearing on the exceptions filed as provided
in subsection (6) of this section, it appears to the commission
that the decision should be vacated or modified, the commission
may by order refer the decision back to the arbitrator with
proper instructions for correction or rehearing.
' (8)(a) Notwithstanding ORS 756.580, any appeal of a
commission decision under subsection (3)(b) of this section shall
be to the Court of Appeals under ORS 183.482. The court shall
review the commission's decision in the manner provided by ORS
183.482 (8).
' (b) Notwithstanding ORS 756.580, any appeal of a commission
order incorporating an arbitration decision shall be to the Court
of Appeals under ORS 183.482. Notwithstanding ORS 183.482 (8),
review of a commission order incorporating an arbitration
decision is limited to the grounds set forth under subsection (6)
of this section.
' (c) A commission order or decision may not be appealed under
the provisions of this subsection until after the commission
issues a final order adopting the arbitration decision. + }
' { + SECTION 2. + } 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) 'Average electric generating capacity' means the
peak generating capacity of the facility divided by one of the
following factors:
' (a) For wind or solar energy facilities, 3.00;
' (b) For geothermal energy facilities, 1.11; or
' (c) For all other energy facilities, 1.00. + }
' { - (5) - } { + (6) + } '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) - } { + (7) + } '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) - } { + (8) + } 'Council' means the Energy
Facility Siting Council established under ORS 469.450.
' { - (8) - } { + (9) + } '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) - } { + (10)(a) + } 'Energy facility' means any
of the following:
' (A) An electric power generating plant with a nominal
electric generating capacity of 25 megawatts or more, including
but not limited to:
' (i) Thermal power; { + or + }
' { - (ii) Geothermal, solar or wind power produced from a
single energy generation area; or - }
' { - (iii) - } { + (ii) + } 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.
' { + (J) An electric power generating plant with an average
electric generating capacity of 35 megawatts or more if the power
is produced from geothermal, solar or wind energy at a single
energy facility or within a single energy generation area. + }
' (b) 'Energy facility' does not include a hydroelectric
facility.
' { - (10) - } { + (11) + } '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 - } { + 35 + } megawatts { + average electric
generating capacity + } 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) - } { + (12) + } '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) - } { + (13) + } 'Facility' means an energy
facility together with any related or supporting facilities.
' { - (13) - } { + (14) + } 'Geothermal reservoir' means an
aquifer or aquifers containing a common geothermal fluid.
' { - (14) - } { + (15) + } 'Local government' means a city
or county.
' { - (15) - } { + (16) + } '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) - } { + (17) + } '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) - } { + (18) + } '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) - } { + (19) + } 'Nuclear power plant' means an
electrical or any other facility using nuclear energy with a
nominal electric generating capacity of 25 megawatts or more, for
generation and distribution of electricity, and associated
transmission lines.
' { - (19) - } { + (20) + } 'Office of Energy' means the
Office of Energy created under ORS 469.030.
' { - (20) - } { + (21) + } '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) - } { + (22) + } 'Project order' means the order,
including any amendments, issued by the Office of Energy under
ORS 469.330.
' { - (22)(a) - } { + (23)(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) - } { + (24) + } '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) - } { + (25) + } 'Site' means any proposed
location of an energy facility and related or supporting
facilities.
' { - (25) - } { + (26) + } '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) - } { + (27) + } 'Thermal power plant' means an
electrical facility using any source of thermal energy with a
nominal electric generating capacity of 25 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) - } { + (28) + } 'Transportation' means the
transport within the borders of the State of Oregon of
radioactive material destined for or derived from any location.
' { - (28) - } { + (29) + } '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) - } { + (30) + } '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) - } { + (31) + } '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 3. + } ORS 469.320 is amended to read:
' 469.320. (1) Except as provided in subsections (2) and (5) of
this section, no facility shall be constructed or expanded unless
a site certificate has been issued for the site thereof in the
manner provided in ORS 469.300 to 469.563, 469.590 to 469.619,
469.930 and 469.992. No facility shall be constructed or operated
except in conformity with the requirements of ORS 469.300 to
469.563, 469.590 to 469.619, 469.930 and 469.992.
' (2) No site certificate shall be required for:
' (a) An energy facility for which no site certificate has been
issued that, on August 2, 1993, had operable electric generating
equipment for a modification that uses the same fuel type and
increases electric generating capacity, if:
' (A) The site is not enlarged; and
' (B) The ability of the energy facility to use fuel for
electricity production under peak steady state operating
conditions is not more than 200 million Btu per hour greater than
it was on August 2, 1993, or the energy facility expansion is
called for in the short-term plan of action of an energy resource
plan that has been acknowledged by the Public Utility Commission
of Oregon.
' (b) Construction or expansion of any interstate natural gas
pipeline or associated underground natural gas storage facility
authorized by and subject to the continuing regulation of the
Federal Energy Regulatory Commission or successor agency.
' (c) An energy facility, except coal and nuclear power plants,
if the energy facility:
' (A) Sequentially produces electrical energy and useful
thermal energy from the same fuel source; and
' (B) Under normal operating conditions, has a useful thermal
energy output of no less than 33 percent of the total energy
output or the fuel chargeable to power heat rate value is not
greater than 6,000 Btu per kilowatt hour.
' (d) Temporary storage, at the site of a nuclear-fueled
thermal power plant for which a site certificate has been issued
by the State of Oregon, of radioactive waste from the plant.
' (e) An energy facility as defined in ORS 469.300
{ - (9)(a)(G) - } { + (10)(a)(G) + }, if the plant also
produces a secondary fuel used on site for the production of heat
or electricity, if the output of the primary fuel is less than
six billion Btu of heat a day.
' (f) An energy facility as defined in ORS 469.300
{ - (9)(a)(G) - } { + (10)(a)(G) + }, if the facility:
' (A) Uses biomass exclusively from grain, whey or potatoes as
the source of material for conversion to a liquid fuel;
' (B) Has received local land use approval under the applicable
acknowledged comprehensive plan and land use regulations of the
affected local government and the facility complies with any
statewide planning goals or rules of the Land Conservation and
Development Commission that are directly applicable to the
facility;
' (C) Requires no new electric transmission lines or gas or
petroleum product pipelines that would require a site certificate
under subsection (1) of this section; and
' (D) Produces synthetic fuel, at least 90 percent of which is
used in an industrial or refueling facility located within one
mile of the facility or is transported from the facility by rail
or barge.
' { + (g) A temporary energy generating facility, if the
facility complies with all applicable carbon dioxide emissions
standards adopted by the Energy Facility Siting Council or
enacted by statute and the applicant agrees to provide funds to a
qualified organization in an amount determined by the council to
be sufficient to produce any required reductions in carbon
dioxide as specified in ORS 469.501. To support the council's
finding that the facility complies with all applicable carbon
dioxide emissions standards, the applicant shall provide proof
acceptable to the council that shows the contracted nominal
electric generating capacity of the facility and the contracted
heat rate in higher heating value. The applicant shall pay the
funds to the qualified organization before commencing
construction on the temporary facility. The amount of the carbon
dioxide offset funds for a temporary facility shall be subject to
adjustment as provided in subsection (7)(c) of this section.
' (h) A standby generation facility, if the facility complies
with all of the following:
' (A) The facility has received local land use approval under
the applicable acknowledged comprehensive plan and land use
regulations of the affected local government and the facility
complies with all statewide planning goals and applicable rules
of the Land Conservation and Development Commission;
' (B) The standby generators have been approved by the
Department of Environmental Quality as having complied with all
applicable air and water quality requirements. For an applicant
that proposes to provide the physical facilities for the
installation of standby generators, the requirement of this
subparagraph may be met by agreeing to require such a term in the
lease contract for the facility; and
' (C) The standby generators are electrically incapable of
being interconnected to the transmission grid. For an applicant
that proposes to provide the physical facilities for the
installation of standby generators, the requirement of this
subparagraph may be met by agreeing to require such a term in the
lease contract for the facility. + }
' (3) The Energy Facility Siting Council may review, and if
necessary, revise the fuel chargeable to power heat rate value
set forth in subsection (2)(c)(B) of this section. In making its
determination, the council shall ensure that the fuel chargeable
to power heat rate value for facilities set forth in subsection
(2)(c)(B) of this section remains significantly lower than the
fuel chargeable to power heat rate value for the best available,
commercially viable thermal power plant technology at the time of
the revision.
' (4) Any person who proposes to construct or enlarge an energy
facility and who claims an exemption under subsection (2)(a),
(c) { + , + } { - or - } (f) { + or (h) + } of this section
from the requirement to obtain a site certificate shall request
the Energy Facility Siting Council to determine whether the
proposed facility qualifies for the claimed exemption. The
council shall make its determination within 60 days after the
request for exemption is filed. An appeal from the council's
determination on a request for exemption shall be made under ORS
469.403, except that the scope of review by the Supreme Court
shall be the same as a review by a circuit court under ORS
183.484. The record on review by the Supreme Court shall be the
record established in the council proceeding on the exemption.
' (5) Notwithstanding subsection (1) of this section, a
separate site certificate shall not be required for:
' (a) Transmission lines, storage facilities, pipelines or
similar related or supporting facilities, if such related or
supporting facilities are addressed in and are subject to a site
certificate for another energy facility;
' (b) Expansion within the site or within the energy generation
area of a facility for which a site certificate has been issued,
if the existing site certificate has been amended to authorize
expansion; or
' (c) Expansion, either within the site or outside the site, of
an existing council certified surface facility related to an
underground gas storage reservoir, if the existing site
certificate is amended to authorize expansion.
' (6) If the substantial loss of the steam host causes a
facility exempt under subsection (2)(c) of this section to
substantially fail to meet the exemption requirements under
subsection (2)(c) of this section, the electric generating
facility shall cease to operate one year after the substantial
loss of the steam host unless an application for a site
certificate has been filed in accordance with the provisions of
ORS 469.300 to 469.563.
' { + (7)(a) Any person who proposes to construct or enlarge
a temporary energy generating facility and who claims an
exemption under subsection (2)(g) of this section from the
requirement to obtain a site certificate shall request the Energy
Facility Siting Council to determine whether the proposed
facility qualifies for the claimed exemption. The council shall
make its determination within 30 days of receiving all of the
information necessary to support the determination. Such
exemption shall provide that the applicant may not begin
construction of the temporary energy generating facility until
the facility has received the required local land use approval
under the applicable acknowledged comprehensive plan and land use
regulations of the affected local government and the facility
complies with all statewide planning goals and applicable rules
of the Land Conservation and Development Commission. The
exemption shall also require that the temporary energy generating
facility cease operation no later than 24 months after the date
of first commercial operation or January 2, 2006, whichever is
earlier. An appeal from the council's determination on a request
for exemption shall be made under ORS 469.403, except that the
order may not be stayed and the scope of review by the Supreme
Court shall be the same as a review by a circuit court under ORS
183.484.
' (b) The council may not grant an exemption for a temporary
energy generating facility pursuant to subsection (2)(g) of this
section after July 1, 2003.
' (c) Within 30 days of ceasing operation of a temporary energy
generating facility, the applicant shall report the total actual
fuel used during commercial operation of the temporary energy
generating facility. Based on the total actual fuel used during
commercial operation, the council shall determine whether
additional offset funds, as defined in ORS 469.503, and
contracting and selection funds are owed to the qualified
organization. If the council determines that additional offset
funds are owed to the qualified organization, the applicant shall
pay such amounts within 60 days of the council's order
determining the amount of additional funds. + }
' { - (7) - } { + (8) + } As used in this section:
' { + (a) 'Standby generation facility' means an electric
power generating facility, including standby generators and the
physical structures necessary to install and connect standby
generators, that provides temporary electric power in the event
of a power outage and that is electrically incapable of being
interconnected with the transmission grid.
' (b) 'Temporary energy generating facility' means an electric
power generating facility, including a thermal power plant and a
combustion turbine power plant, but not including a hydropower
plant, with a nominal electric generating capacity of no more
than 100 megawatts that is operated for no more than 24 months
from the date of initial commercial operation. + }
' { - (a) - } { + (c) + } 'Total energy output' means the
sum of useful thermal energy output and useful electrical energy
output.
' { - (b) - } { + (d) + } 'Useful thermal energy' means the
verifiable thermal energy used in any viable industrial or
commercial process, heating or cooling application.
' { + SECTION 4. + } ORS 469.320, as amended by section 3 of
this 2001 Act, is amended to read:
' 469.320. (1) Except as provided in subsections (2) and (5) of
this section, no facility shall be constructed or expanded unless
a site certificate has been issued for the site thereof in the
manner provided in ORS 469.300 to 469.563, 469.590 to 469.619,
469.930 and 469.992. No facility shall be constructed or operated
except in conformity with the requirements of ORS 469.300 to
469.563, 469.590 to 469.619, 469.930 and 469.992.
' (2) No site certificate shall be required for:
' (a) An energy facility for which no site certificate has been
issued that, on August 2, 1993, had operable electric generating
equipment for a modification that uses the same fuel type and
increases electric generating capacity, if:
' (A) The site is not enlarged; and
' (B) The ability of the energy facility to use fuel for
electricity production under peak steady state operating
conditions is not more than 200 million Btu per hour greater than
it was on August 2, 1993, or the energy facility expansion is
called for in the short-term plan of action of an energy resource
plan that has been acknowledged by the Public Utility Commission
of Oregon.
' (b) Construction or expansion of any interstate natural gas
pipeline or associated underground natural gas storage facility
authorized by and subject to the continuing regulation of the
Federal Energy Regulatory Commission or successor agency.
' (c) An energy facility, except coal and nuclear power plants,
if the energy facility:
' (A) Sequentially produces electrical energy and useful
thermal energy from the same fuel source; and
' (B) Under normal operating conditions, has a useful thermal
energy output of no less than 33 percent of the total energy
output or the fuel chargeable to power heat rate value is not
greater than 6,000 Btu per kilowatt hour.
' (d) Temporary storage, at the site of a nuclear-fueled
thermal power plant for which a site certificate has been issued
by the State of Oregon, of radioactive waste from the plant.
' (e) An energy facility as defined in ORS 469.300 (10)(a)(G),
if the plant also produces a secondary fuel used on site for the
production of heat or electricity, if the output of the primary
fuel is less than six billion Btu of heat a day.
' (f) An energy facility as defined in ORS 469.300 (10)(a)(G),
if the facility:
' (A) Uses biomass exclusively from grain, whey or potatoes as
the source of material for conversion to a liquid fuel;
' (B) Has received local land use approval under the applicable
acknowledged comprehensive plan and land use regulations of the
affected local government and the facility complies with any
statewide planning goals or rules of the Land Conservation and
Development Commission that are directly applicable to the
facility;
' (C) Requires no new electric transmission lines or gas or
petroleum product pipelines that would require a site certificate
under subsection (1) of this section; and
' (D) Produces synthetic fuel, at least 90 percent of which is
used in an industrial or refueling facility located within one
mile of the facility or is transported from the facility by rail
or barge.
' { - (g) A temporary energy generating facility, if the
facility complies with all applicable carbon dioxide emissions
standards adopted by the Energy Facility Siting Council or
enacted by statute and the applicant agrees to provide funds to a
qualified organization in an amount determined by the council to
be sufficient to produce any required reductions in carbon
dioxide as specified in ORS 469.501. To support the council's
finding that the facility complies with all applicable carbon
dioxide emissions standards, the applicant shall provide proof
acceptable to the council that shows the contracted nominal
electric generating capacity of the facility and the contracted
heat rate in higher heating value. The applicant shall pay the
funds to the qualified organization before commencing
construction on the temporary facility. The amount of the carbon
dioxide offset funds for a temporary facility shall be subject to
adjustment as provided in subsection (7)(c) of this section. - }
' { - (h) - } { + (g) + } A standby generation facility, if
the facility complies with all of the following:
' (A) The facility has received local land use approval under
the applicable acknowledged comprehensive plan and land use
regulations of the affected local government and the facility
complies with all statewide planning goals and applicable rules
of the Land Conservation and Development Commission;
' (B) The standby generators have been approved by the
Department of Environmental Quality as having complied with all
applicable air and water quality requirements. For an applicant
that proposes to provide the physical facilities for the
installation of standby generators, the requirement of this
subparagraph may be met by agreeing to require such a term in the
lease contract for the facility; and
' (C) The standby generators are electrically incapable of
being interconnected to the transmission grid. For an applicant
that proposes to provide the physical facilities for the
installation of standby generators, the requirement of this
subparagraph may be met by agreeing to require such a term in the
lease contract for the facility.
' (3) The Energy Facility Siting Council may review, and if
necessary, revise the fuel chargeable to power heat rate value
set forth in subsection (2)(c)(B) of this section. In making its
determination, the council shall ensure that the fuel chargeable
to power heat rate value for facilities set forth in subsection
(2)(c)(B) of this section remains significantly lower than the
fuel chargeable to power heat rate value for the best available,
commercially viable thermal power plant technology at the time of
the revision.
' (4) Any person who proposes to construct or enlarge an energy
facility and who claims an exemption under subsection (2)(a),
(c), (f) or { - (h) - } { + (g) + } of this section from the
requirement to obtain a site certificate shall request the Energy
Facility Siting Council to determine whether the proposed
facility qualifies for the claimed exemption. The council shall
make its determination within 60 days after the request for
exemption is filed. An appeal from the council's determination on
a request for exemption shall be made under ORS 469.403, except
that the scope of review by the Supreme Court shall be the same
as a review by a circuit court under ORS 183.484. The record on
review by the Supreme Court shall be the record established in
the council proceeding on the exemption.
' (5) Notwithstanding subsection (1) of this section, a
separate site certificate shall not be required for:
' (a) Transmission lines, storage facilities, pipelines or
similar related or supporting facilities, if such related or
supporting facilities are addressed in and are subject to a site
certificate for another energy facility;
' (b) Expansion within the site or within the energy generation
area of a facility for which a site certificate has been issued,
if the existing site certificate has been amended to authorize
expansion; or
' (c) Expansion, either within the site or outside the site, of
an existing council certified surface facility related to an
underground gas storage reservoir, if the existing site
certificate is amended to authorize expansion.
' (6) If the substantial loss of the steam host causes a
facility exempt under subsection (2)(c) of this section to
substantially fail to meet the exemption requirements under
subsection (2)(c) of this section, the electric generating
facility shall cease to operate one year after the substantial
loss of the steam host unless an application for a site
certificate has been filed in accordance with the provisions of
ORS 469.300 to 469.563.
' { - (7)(a) Any person who proposes to construct or enlarge a
temporary energy generating facility and who claims an exemption
under subsection (2)(g) of this section from the requirement to
obtain a site certificate shall request the Energy Facility
Siting Council to determine whether the proposed facility
qualifies for the claimed exemption. The council shall make its
determination within 30 days of receiving all of the information
necessary to support the determination. Such exemption shall
provide that the applicant may not begin construction of the
temporary energy generating facility until the facility has
received the required local land use approval under the
applicable acknowledged comprehensive plan and land use
regulations of the affected local government and the facility
complies with all statewide planning goals and applicable rules
of the Land Conservation and Development Commission. The
exemption shall also require that the temporary energy generating
facility cease operation no later than 24 months after the date
of first commercial operation or January 2, 2006, whichever is
earlier. An appeal from the council's determination on a request
for exemption shall be made under ORS 469.403, except that the
order may not be stayed and the scope of review by the Supreme
Court shall be the same as a review by a circuit court under ORS
183.484. - }
' { - (b) The council may not grant an exemption for a
temporary energy generating facility pursuant to subsection
(2)(g) of this section after July 1, 2003. - }
' { - (c) Within 30 days of ceasing operation of a temporary
energy generating facility, the applicant shall report the total
actual fuel used during commercial operation of the temporary
energy generating facility. Based on the total actual fuel used
during commercial operation, the council shall determine whether
additional offset funds, as defined in ORS 469.503, and
contracting and selection funds are owed to the qualified
organization. If the council determines that additional offset
funds are owed to the qualified organization, the applicant shall
pay such amounts within 60 days of the council's order
determining the amount of additional funds. - }
' { - (8) - } { + (7) + } As used in this section:
' (a) 'Standby generation facility' means an electric power
generating facility, including standby generators and the
physical structures necessary to install and connect standby
generators, that provides temporary electric power in the event
of a power outage and that is electrically incapable of being
interconnected with the transmission grid.
' { - (b) 'Temporary energy generating facility' means an
electric power generating facility, including a thermal power
plant and a combustion turbine power plant, but not including a
hydropower plant, with a nominal electric generating capacity of
no more than 100 megawatts that is operated for no more than 24
months from the date of initial commercial operation. - }
' { - (c) - } { + (b) + } 'Total energy output' means the
sum of useful thermal energy output and useful electrical energy
output.
' { - (d) - } { + (c) + } 'Useful thermal energy' means the
verifiable thermal energy used in any viable industrial or
commercial process, heating or cooling application.
' { + SECTION 5. + } { + The amendments to ORS 469.320 by
section 4 of this 2001 Act become operative January 2, 2006. + }
' { + SECTION 6. + } 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 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 - } { + an average electric + }
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 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 7. + } ORS 469.501 is amended to read:
' 469.501. (1) The Energy Facility Siting Council shall adopt
standards for the siting, construction, operation and retirement
of facilities. The standards may address but need not be limited
to the following subjects:
' (a) The organizational, managerial and technical expertise of
the applicant to construct and operate the proposed facility.
' (b) Seismic hazards.
' (c) Areas designated for protection by the state or federal
government, including but not limited to monuments, wilderness
areas, wildlife refuges, scenic waterways and similar areas.
' (d) The financial ability and qualifications of the
applicant.
' (e) Effects of the facility, taking into account mitigation,
on fish and wildlife, including threatened and endangered fish,
wildlife or plant species.
' (f) Impacts of the facility on historic, cultural or
archaeological resources listed on, or determined by the State
Historic Preservation Officer to be eligible for listing on, the
National Register of Historic Places or the Oregon State Register
of Historic Properties.
' (g) Protection of public health and safety, including
necessary safety devices and procedures.
' (h) The accumulation, storage, disposal and transportation of
nuclear waste.
' (i) Impacts of the facility on recreation, scenic and
aesthetic values.
' (j) Reduction of solid waste and wastewater generation to the
extent reasonably practicable.
' (k) Ability of the communities in the affected area to
provide sewers and sewage treatment, water, storm water drainage,
solid waste management, housing, traffic safety, police and fire
protection, health care and schools.
' (L) The need for proposed nongenerating facilities as defined
in ORS 469.503, consistent with the state energy policy set forth
in ORS 469.010 and 469.310. The council may consider least-cost
plans when adopting a need standard or in determining whether an
applicable need standard has been met. The council shall not
adopt a standard requiring a showing of need or
cost-effectiveness for generating facilities as defined in ORS
469.503.
' (m) Compliance with the statewide planning goals adopted by
the Land Conservation and Development Commission as specified by
ORS 469.503.
' (n) Soil protection.
' (o) For energy facilities that emit carbon dioxide, the
impacts of those emissions on climate change. For fossil-fueled
power plants, as defined in ORS 469.503, the council shall apply
a standard as provided for by ORS 469.503 (2).
' (2) The council may adopt exemptions from any need standard
adopted under subsection (1)(L) of this section if the exemption
is consistent with the state's energy policy set forth in ORS
469.010 and 469.310.
' (3) The council may issue a site certificate for a facility
that does not meet one or more of the standards adopted under
subsection (1) of this section if the council determines that the
overall public benefits of the facility outweigh the damage to
the resources protected by the standards the facility does not
meet.
' { + (4) Notwithstanding subsection (1) of this section, the
council may not impose any standard developed under subsection
(1)(b), (f), (j) or (k) of this section to approve or deny an
application for an energy facility producing power from wind,
solar or geothermal energy. However, the council may, to the
extent it determines appropriate, apply any standards adopted
under subsection (1)(b), (f), (j) or (k) of this section to
impose conditions on any site certificate issued for any energy
facility. + }
' { + SECTION 8. + } ORS 757.600 is amended to read:
' 757.600. As used in ORS 757.600 to 757.687, unless the
context requires otherwise:
' (1) 'Aggregate' means combining retail electricity consumers
into a buying group for the purchase of electricity and related
services.
' (2) 'Ancillary services' means services necessary or
incidental to the transmission and delivery of electricity from
generating facilities to retail electricity consumers, including
but not limited to scheduling, load shaping, reactive power,
voltage control and energy balancing services.
' (3) 'Commission' means the Public Utility Commission.
' (4) 'Consumer-owned utility' means a municipal electric
utility, a people's utility district or an electric cooperative.
' (5) 'Default supplier' means an electricity service supplier
or electric company that has a legal obligation to provide
electricity services to a consumer, as determined by the
commission.
' (6) 'Direct access' means the ability of a retail electricity
consumer to purchase electricity and certain ancillary services,
as determined by the commission for an electric company or the
governing body of a consumer-owned utility, directly from an
entity other than the distribution utility.
' (7) 'Direct service industrial consumer' means an end user of
electricity that obtains electricity directly from the
transmission grid and not through a distribution utility.
' (8) 'Distribution' means the delivery of electricity to
retail electricity consumers through a distribution system
consisting of local area power poles, transformers, conductors,
meters, substations and other equipment.
' (9) 'Distribution utility' means an electric utility that
owns and operates a distribution system connecting the
transmission grid to the retail electricity consumer.
' (10) 'Economic utility investment' means all electric company
investments { - made prior to the date the electric company
offers direct access under ORS 757.600 to 757.667 - } , including
plants and equipment and contractual or other legal obligations,
properly dedicated to generation or conservation, that were
prudent at the time the obligations were assumed but the full
benefits of which are no longer available to consumers as a
direct result of ORS 757.600 to 757.667, absent transition
credits. ' Economic utility investment' does not include costs
or expenses disallowed by the commission in a prudence review or
other proceeding, to the extent of such disallowance, and does
not include fines or penalties authorized and imposed under state
or federal law.
' (11) 'Electric company' means an entity engaged in the
business of distributing electricity to retail electricity
consumers in this state, but does not include a consumer-owned
utility.
' (12) 'Electric cooperative' means an electric cooperative
corporation organized under ORS chapter 62 or under the laws of
another state if the service territory of the electric
cooperative includes a portion of this state.
' (13) 'Electric utility' means an electric company or
consumer-owned utility that is engaged in the business of
distributing electricity to retail electricity consumers in this
state.
' (14) 'Electricity' means electric energy, measured in
kilowatt-hours, or electric capacity, measured in kilowatts, or
both.
' (15) 'Electricity services' means electricity distribution,
transmission, generation or generation-related services.
' (16) 'Electricity service supplier' means a person or entity
that offers to sell electricity services available pursuant to
direct access to more than one retail electricity consumer. '
Electricity service supplier' does not include an electric
utility selling electricity to retail electricity consumers in
its own service territory.
' (17) 'Governing body' means the board of directors or the
commissioners of an electric cooperative or people's utility
district, or the council or board of a city with respect to a
municipal electric utility.
' (18) 'Load' means the amount of electricity delivered to or
required by a retail electricity consumer at a specific point of
delivery.
' (19) 'Low-income weatherization' means repairs,
weatherization and installation of energy efficient appliances
and fixtures for low-income residences for the purpose of
enhancing energy efficiency.
' (20) 'Municipal electric utility' means an electric
distribution utility owned and operated by or on behalf of a
city.
' (21) 'New renewable energy resource' means a renewable energy
resource project, or a new addition to an existing renewable
energy resource project, or the electricity produced by the
project, that is not in operation on July 23, 1999. 'New
renewable energy resource' does not include any portion of a
renewable energy resource project under contract to the
Bonneville Power Administration on or before July 23, 1999.
' (22) 'Office of Energy' means the Office of Energy created
under ORS 469.030.
' (23) 'One average megawatt' means 8,760,000 kilowatt-hours of
electricity per year.
' (24) 'People's utility district' has the meaning given that
term in ORS 261.010.
' (25) 'Portfolio access' means the ability of a retail
electricity consumer to choose from a set of product and pricing
options for electricity determined by the governing board of a
consumer-owned utility and may include product and pricing
options offered by the utility or by an electricity service
supplier.
' (26) 'Power generation company' means a company engaged in
the production and sale of electricity to wholesale customers,
including but not limited to independent power producers,
affiliated generation companies, municipal and state authorities,
provided the company is not regulated by the commission.
' (27) 'Qualifying expenditures' means those expenditures for
energy conservation measures that have a simple payback period of
not less than one year and not more than 10 years, and
expenditures for the above-market costs of new renewable energy
resources, provided that the Office of Energy by rule may
establish a limit on the maximum above-market cost for renewable
energy that is allowed as a credit.
' (28) 'Renewable energy resources' means:
' (a) Electricity generation facilities fueled by wind, waste,
solar or geothermal power or by low-emission nontoxic biomass
based on solid organic fuels from wood, forest and field
residues.
' (b) Dedicated energy crops available on a renewable basis.
' (c) Landfill gas and digester gas.
' (d) Hydroelectric facilities located outside protected areas
as defined by federal law in effect on July 23, 1999.
' (29) 'Residential electricity consumer' means an electricity
consumer who resides at a dwelling primarily used for residential
purposes. 'Residential electricity consumer' does not include
retail electricity consumers in a dwelling typically used for
residency periods of less than 30 days, including hotels, motels,
camps, lodges and clubs. As used in this subsection, ' dwelling'
includes but is not limited to single family dwellings,
separately metered apartments, adult foster homes, manufactured
dwellings, recreational vehicles and floating homes.
' (30) 'Retail electricity consumer' means the end user of
electricity for specific purposes such as heating, lighting or
operating equipment, and includes all end users of electricity
served through the distribution system of an electric utility on
or after July 23, 1999, whether or not each end user purchases
the electricity from the electric utility.
' (31) 'Site' means a single contiguous area of land containing
buildings or other structures that are separated by not more than
1,000 feet, or buildings and related structures that are
interconnected by facilities owned by a single retail electricity
consumer and that are served through a single electric meter.
' (32) 'Transition charge' means a charge or fee that recovers
all or a portion of an uneconomic utility investment.
' (33) 'Transition credit' means a credit that returns to
consumers all or a portion of the benefits from an economic
utility investment.
' (34) 'Transmission facility' means the plant and equipment
used to transmit electricity in interstate commerce.
' (35) 'Undue market power' means the unfair or improper
exercise of influence to increase or decrease the availability or
price of a service or product in a manner inconsistent with
competitive markets.
' (36) 'Uneconomic utility investment' means all { + electric
company + } investments { - made by an electric company prior
to the date the electric company offers direct access under ORS
757.600 to 757.667 - } , including plants and equipment and
contractual or other legal obligations, properly dedicated to
generation, conservation and workforce commitments, that were
prudent at the time the obligations were assumed but the full
costs of which are no longer recoverable as a direct result of
ORS 757.600 to 757.667, absent transition charges. 'Uneconomic
utility investment' does not include costs or expenses disallowed
by the commission in a prudence review or other proceeding, to
the extent of such disallowance, and does not include fines or
penalties as authorized by state or federal law.
' { + SECTION 9. + } ORS 757.612 is amended to read:
' 757.612. (1) There is established an annual public purpose
expenditure standard for electric companies to fund new
cost-effective local energy conservation, new market
transformation efforts, the above-market costs of new renewable
energy resources, and new low-income weatherization. The public
purpose expenditure standard shall be funded by the public
purpose charge described in subsection (2) of this section.
' (2)(a) Beginning on the date an electric company offers
direct access to its retail electricity consumers, except
residential electricity consumers, the electric company shall
collect a public purpose charge from all of the retail
electricity consumers located within its service area for a
period of 10 years. Except as provided in paragraph (b) of this
subsection, the public purpose charge shall be equal to three
percent of the total revenues collected by the electric company
or electricity service supplier from its retail electricity
consumers for electricity services, distribution, ancillary
services, metering and billing, transition charges and other
types of costs included in electric rates on July 23, 1999.
' (b) For an aluminum plant that averages more than 100 average
megawatts of electricity use per year, beginning on October 1,
2001, the electric company whose territory abuts the greatest
percentage of the site of the aluminum plant shall collect from
the aluminum company a public purpose charge equal to one percent
of the total revenue from the sale of electricity services to the
aluminum plant from any source.
' (3)(a) The Public Utility Commission shall establish rules
implementing the provisions of this section relating to electric
companies.
' (b) Subject to paragraph (e) of this subsection, funds
collected by an electric company through public purpose charges
shall be allocated as follows:
' (A) Sixty-three percent for new cost-effective conservation
and new market transformation.
' (B) Nineteen percent for the above-market costs of new
renewable energy resources.
' (C) Thirteen percent for new low-income weatherization.
' (D) Five percent shall be transferred to the Housing and
Community Services Department Revolving Account created under ORS
456.574 and used for the purpose of providing grants as described
in ORS 458.625 (2). Moneys deposited in the account under this
subparagraph are continuously appropriated to the Housing and
Community Services Department for the purposes of ORS 458.625
(2). Interest on moneys deposited in the account under this
subparagraph shall accrue to the account.
' (c) The costs of administering subsections (1) to (6) of this
section for an electric company shall be paid out of the funds
collected through public purpose charges. The commission may
require that an electric company direct funds collected through
public purpose charges to the state agencies responsible for
implementing subsections (1) to (6) of this section in order to
pay the costs of administering such responsibilities.
' (d) The commission shall direct the manner in which public
purpose charges are collected and spent by an electric company
and may require an electric company to expend funds through
competitive bids or other means designed to encourage
competition, except that funds dedicated for low-income
weatherization shall be directed to the Housing and Community
Services Department as provided in subsection (7) of this
section. The commission may also direct that funds collected by
an electric company through public purpose charges be paid to a
nongovernmental entity for investment in public purposes
described in subsection (1) of this section. Notwithstanding any
other provision of this subsection, at least 80 percent of the
funds allocated for conservation shall be spent within the
service area of the electric company that collected the funds.
' (e)(A) The first 10 percent of the funds collected annually
by an electric company under subsection (2) of this section shall
be distributed to education service districts, as described in
ORS 334.010, that are located in the service territory of the
electric company. The funds shall be distributed to individual
education service districts according to the weighted average
daily membership (ADMw) { + of the component school
districts + } of the education service district for the prior
fiscal year as calculated under ORS 327.013. The commission shall
establish by rule a methodology for distributing a proportionate
share of funds under this paragraph to education service
districts that are only partially located in the service
territory of the electric company.
' (B) An education service district that receives funds under
this paragraph shall use the funds first to pay for energy audits
for school districts located within the education service
district. An education service district shall not expend
additional funds received under this paragraph on a school
district facility until an energy audit has been completed for
that school district. To the extent practicable, an education
service district shall coordinate with the Office of Energy and
incorporate federal funding in complying with this paragraph.
Following completion of an energy audit for an individual school
district, the education service district may expend funds
received under this paragraph to implement the energy audit. Once
an energy audit has been conducted and completely implemented for
each school district within the education service district, the
education service district may expend funds received under this
paragraph for any of the following purposes:
' (i) Conducting energy audits. A school district shall conduct
an energy audit prior to expending funds on any other purpose
authorized under this paragraph unless the school district has
performed an energy audit within the three years immediately
prior to receiving the funds.
' (ii) Weatherization and upgrading the energy efficiency of
school district facilities.
' (iii) Energy conservation education programs.
' (iv) Purchasing electricity from environmentally focused
sources and investing in renewable energy resources.
' (f) The commission may establish a different public purpose
charge than the public purpose charge otherwise described in
subsection (2) of this section for an individual retail
electricity consumer or any class of retail electricity consumers
located within the service area of an electric company, provided
that a retail electricity consumer with a load greater than one
average megawatt shall not be required to pay a public purpose
charge in excess of three percent of its total cost of
electricity services.
' (g) The commission shall remove from the rates of each
electric company any costs for public purposes described in
subsection (1) of this section that are included in rates. A rate
adjustment under this paragraph shall be effective on the date
that the electric company begins collecting public purpose
charges.
' (4) An electric company that satisfies its obligations under
this section shall have no further obligation to invest in
conservation, new market transformation, new renewable energy
resources or new low-income weatherization { + or to provide a
commercial energy conservation services program + } and is not
subject to ORS 469.631 to 469.645 { + , 469.860 to 469.900 + }
and 758.505 to 758.555.
' (5)(a) A retail electricity consumer that uses more than one
average megawatt of electricity at any site in the prior year
shall receive a credit against public purpose charges billed by
an electric company for that site. The amount of the credit shall
be equal to the total amount of qualifying expenditures for new
energy conservation, not to exceed 68 percent of the annual
public purpose charges, and the above-market costs of purchases
of new renewable energy resources incurred by the retail
electricity consumer, not to exceed 19 percent of the annual
public purpose charges, less administration costs incurred under
this subsection. The credit shall not exceed, on an annual
basis, the lesser of:
' (A) The amount of the retail electricity consumer's
qualifying expenditures; or
' (B) The portion of the public purpose charge billed to the
retail electricity consumer that is dedicated to new energy
conservation, new market transformation or the above-market costs
of new renewable energy resources.
' (b) To obtain a credit under this subsection, a retail
electricity consumer shall file with the Office of Energy a
description of the proposed conservation project or new renewable
energy resource and a declaration that the retail electricity
consumer plans to incur the qualifying expenditure. The Office of
Energy shall issue a notice of precertification within 30 days of
receipt of the filing, if such filing is consistent with this
subsection. The credit may be taken after a retail electricity
consumer provides a letter from a certified public accountant to
the Office of Energy verifying that the precertified qualifying
expenditure has been made.
' (c) Credits earned by a retail electricity consumer as a
result of qualifying expenditures that are not used in one year
may be carried forward for use in subsequent years.
' (d)(A) A retail electricity consumer that uses more than one
average megawatt of electricity at any site in the prior year may
request that the Office of Energy hire an independent auditor to
assess the potential for conservation investments at the site.
If the independent auditor determines there is no available
conservation measure at the site that would have a simple payback
of one to 10 years, the retail electricity consumer shall be
relieved of 54 percent of its payment obligation for public
purpose charges related to the site. If the independent auditor
determines that there are potential conservation measures
available at the site, the retail electricity consumer shall be
entitled to a credit against public purpose charges related to
the site equal to 54 percent of the public purpose charges less
the estimated cost of available conservation measures.
' (B) A retail electricity consumer shall be entitled each year
to the credit described in this subsection unless a subsequent
independent audit determines that new conservation investment
opportunities are available. The Office of Energy may require
that a new independent audit be performed on the site to
determine whether new conservation measures are available,
provided that the independent audits shall occur no more than
once every two years.
' (C) The retail electricity consumer shall pay the cost of the
independent audits described in this subsection.
' (6) Electric utilities and retail electricity consumers shall
receive a fair and reasonable credit for the public purpose
expenditures of their energy suppliers. The Office of Energy
shall adopt rules to determine eligible expenditures and the
methodology by which such credits are accounted for and used. The
rules also shall adopt methods to account for eligible public
purpose expenditures made through consortia or collaborative
projects.
' (7)(a) In addition to the public purpose charge provided
under subsection (2) of this section, beginning on the date
direct access is offered under section 2 (1), chapter 865, Oregon
Laws 1999, an electric company shall collect funds for low-income
electric bill payment assistance in an amount determined under
paragraph (b) of this subsection.
' (b) The total amount collected for low-income electric bill
payment assistance under this section shall be $10 million. The
commission shall determine each electric company's proportionate
share of the total amount. The commission shall determine the
amount to be collected from a retail electricity consumer, except
that a retail electricity consumer shall not be required to pay
more than $500 per month per site for low-income electric bill
payment assistance.
' (c) Funds collected by the low-income electric bill payment
assistance charge shall be paid into the Housing and Community
Services Department Revolving Account created under ORS 456.574.
Moneys deposited in the account under this paragraph are
continuously appropriated to the Housing and Community Services
Department for the purpose of funding low-income electric bill
payment assistance. Interest earned on moneys deposited in the
account under this paragraph shall accrue to the account. The
department's cost of administering this subsection shall be paid
out of funds collected by the low-income electric bill payment
assistance charge. Moneys deposited in the account under this
paragraph shall be expended solely for low-income electric bill
payment assistance. Funds collected from an electric company
shall be expended in the service area of the electric company
from which the funds are collected.
' (d) The Housing and Community Services Department, in
consultation with the federal Advisory Committee on Energy, shall
determine the manner in which funds collected under this
subsection will be allocated by the department to energy
assistance program providers for the purpose of providing
low-income bill payment and crisis assistance, including programs
that effectively reduce service disconnections and related costs
to retail electricity consumers and electric utilities. Priority
assistance shall be directed to low-income electricity consumers
who are in danger of having their electricity service
disconnected.
' (e) Notwithstanding ORS 293.140, interest on moneys deposited
in the Housing and Community Services Department Revolving
Account under this subsection shall accrue to the account and may
be used to provide heating bill payment and crisis assistance to
electricity consumers whose primary source of heat is not
electricity.
' (f) Notwithstanding ORS 757.310, the commission may allow an
electric company to provide reduced rates or other payment or
crisis assistance or low-income program assistance to a
low-income household eligible for assistance under the federal
Low Income Home Energy Assistance Act of 1981, as amended and in
effect on July 23, 1999.
' (8) In addition to all other charges provided in this
section, for the period from January 1, 2000, to the date direct
access is offered under section 2 (1), chapter 865, Oregon Laws
1999, an electric company shall collect from its retail
electricity consumers an electric bill payment assistance charge.
A retail electricity consumer shall not be required to pay more
than $500 per month per site for low-income electric bill payment
assistance under this subsection. The statewide total amount
collected under this subsection shall equal $5 million per year,
prorated for any fraction of a year. The commission shall
determine each electric company's proportionate share of the
statewide total amount. Moneys collected under this subsection
shall be deposited in the Housing and Community Services
Department Revolving Account created under ORS 456.574 and
expended for low-income electric bill payment assistance in the
manner provided in subsection (7)(d) of this section.
' (9) For purposes of this section, 'retail electricity
consumers' includes any direct service industrial consumer that
purchases electricity without purchasing distribution services
from the electric utility.
' { + SECTION 10. + } ORS 469.503 is amended to read:
' 469.503. In order to issue a site certificate, the Energy
Facility Siting Council shall determine that the preponderance of
the evidence on the record supports the following conclusions:
' (1) The facility complies with the standards adopted by the
council pursuant to ORS 469.501 or the overall public benefits of
the facility outweigh the damage to the resources protected by
the standards the facility does not meet.
' (2) If the energy facility is a fossil-fueled power plant,
the energy facility complies with any applicable carbon dioxide
emissions standard adopted by the council or enacted by statute.
Base load gas plants shall comply with the standard set forth in
subsection (2)(a) of this section. Other fossil-fueled power
plants shall comply with any applicable standard adopted by the
council by rule pursuant to subsection (2)(b) of this section.
Subsections (2)(c) and (d) of this section prescribe the means by
which an applicant may comply with the applicable standard.
' (a) The net carbon dioxide emissions rate of the proposed
base load gas plant shall not exceed 0.70 pounds of carbon
dioxide emissions per kilowatt hour of net electric power output,
with carbon dioxide emissions and net electric power output
measured on a new and clean basis. Notwithstanding the foregoing,
the council may by rule modify the carbon dioxide emissions
standard for base load gas plants if the council finds that the
most efficient stand-alone combined cycle, combustion turbine,
natural gas-fired energy facility that is commercially
demonstrated and operating in the United States has a net heat
rate of less than 7,200 Btu per kilowatt hour higher heating
value adjusted to ISO conditions. In modifying the carbon dioxide
emission standard, the council shall determine the rate of carbon
dioxide emissions per kilowatt hour of net electric output of
such energy facility, adjusted to ISO conditions, and reset the
carbon dioxide emissions standard at 17 percent below this rate.
' (b) The council shall adopt carbon dioxide emissions
standards for other types of fossil-fueled power plants. Such
carbon dioxide emissions standards shall be promulgated by rule.
In adopting or amending such carbon dioxide emissions standards,
the council shall consider and balance at least the following
principles, the findings on which shall be contained in the
rule-making record:
' (A) Promote facility fuel efficiency;
' (B) Promote efficiency in the resource mix;
' (C) Reduce net carbon dioxide emissions;
' (D) Promote cogeneration that reduces net carbon dioxide
emissions;
' (E) Promote innovative technologies and creative approaches
to mitigating, reducing or avoiding carbon dioxide emissions;
' (F) Minimize transaction costs;
' (G) Include an alternative process that separates decisions
on the form and implementation of offsets from the final decision
on granting a site certificate;
' (H) Allow either the applicant or third parties to implement
offsets;
' (I) Be attainable and economically achievable for various
types of power plants;
' (J) Promote public participation in the selection and review
of offsets;
' (K) Promote prompt implementation of offset projects;
' (L) Provide for monitoring and evaluation of the performance
of offsets; and
' (M) Promote reliability of the regional electric system.
' (c) The council shall determine whether the applicable carbon
dioxide emissions standard is met by first determining the gross
carbon dioxide emissions that are reasonably likely to result
from the operation of the proposed energy facility. Such
determination shall be based on the proposed design of the energy
facility. The council shall adopt site certificate conditions to
ensure that the predicted carbon dioxide emissions are not
exceeded on a new and clean basis. For any remaining emissions
reduction necessary to meet the applicable standard, the
applicant may elect to use any of subparagraphs (A) to (D) of
this paragraph, or any combination thereof. The council shall
determine the amount of carbon dioxide emissions reduction that
is reasonably likely to result from the applicant's offsets and
whether the resulting net carbon dioxide emissions meet the
applicable carbon dioxide emissions standard. If the council or a
court on judicial review concludes that the applicant has not
demonstrated compliance with the applicable carbon dioxide
emissions standard under subparagraphs (A), (B) or (D) of this
paragraph, or any combination thereof, and the applicant has
agreed to meet the requirements of subparagraph (C) of this
paragraph for any deficiency, the council or a court shall find
compliance based on such agreement.
' (A) The facility will sequentially produce electrical and
thermal energy from the same fuel source, and the thermal energy
will be used to displace another source of carbon dioxide
emissions that would have otherwise continued to occur, in which
case the council shall adopt site certificate conditions ensuring
that the carbon dioxide emissions reduction will be achieved.
' (B) The applicant or a third party will implement particular
offsets, in which case the council may adopt site certificate
conditions ensuring that the proposed offsets are implemented but
shall not require that predicted levels of avoidance,
displacement or sequestration of carbon dioxide emissions be
achieved. The council shall determine the quantity of carbon
dioxide emissions reduction that is reasonably likely to result
from each of the proposed offsets based on the criteria in
sub-subparagraphs (i) to (iii) of this subparagraph. In making
this determination, the council shall not allow credit for
offsets that have already been allocated or awarded credit for
carbon dioxide emissions reduction in another regulatory setting.
In addition, the fact that an applicant or other parties involved
with an offset may derive benefits from the offset other than the
reduction of carbon dioxide emissions is not, by itself, a basis
for withholding credit for an offset.
' (i) The degree of certainty that the predicted quantity of
carbon dioxide emissions reduction will be achieved by the
offset;
' (ii) The ability of the council to determine the actual
quantity of carbon dioxide emissions reduction resulting from the
offset, taking into consideration any proposed measurement,
monitoring and evaluation of mitigation measure performance; and
' (iii) The extent to which the reduction of carbon dioxide
emissions would occur in the absence of the offsets.
' (C) The applicant or a third party agrees to provide funds in
an amount deemed sufficient to produce the reduction in carbon
dioxide emissions necessary to meet the applicable carbon dioxide
emissions standard, in which case the funds shall be used as
specified in paragraph (d) of this subsection. Unless modified by
the council as provided below, the payment of 57 cents shall be
deemed to result in a reduction of one ton of carbon dioxide
emissions. The council shall determine the offset funds using the
monetary offset rate and the level of emissions reduction
required to meet the applicable standard. If a site certificate
is approved based on this subparagraph, the council may not
adjust the amount of such offset funds based on the actual
performance of offsets. After three years from June 26, 1997,
the council may by rule increase or decrease the monetary offset
rate of 57 cents per ton of carbon dioxide emissions. Any change
to the monetary offset rate shall be based on empirical evidence
of the cost of carbon dioxide offsets and the council's finding
that the standard will be economically achievable with the
modified rate for natural gas-fired power plants. Following the
initial three-year period, the council may increase or decrease
the monetary offset rate no more than 50 percent in any two-year
period.
' (D) Any other means that the council adopts by rule for
demonstrating compliance with any applicable carbon dioxide
emissions standard.
' (d) If the applicant elects to meet the applicable carbon
dioxide emissions standard in whole or in part under paragraph
(c)(C) of this subsection the applicant shall identify the
qualified organization. The applicant may identify an
organization that has applied for, but has not received, an
exemption from federal income taxation, but the council may not
find that the organization is a qualified organization unless the
organization is exempt from federal taxation under section
501(c)(3) of the Internal Revenue Code as amended and in effect
on December 31, 1996. The site certificate holder shall provide a
bond or comparable security in a form reasonably acceptable to
the council to ensure the payment of the offset funds and the
amount required under subparagraph (A)(ii) of this paragraph.
Such security shall be provided by the date specified in the site
certificate, which shall be no later than the commencement of
construction of the facility. The site certificate shall require
that the offset funds be disbursed as specified in subparagraph
(A) of this paragraph, unless the council finds that no qualified
organization exists, in which case the site certificate shall
require that the offset funds be disbursed as specified in
subparagraph (B) of this paragraph.
' (A) The site certificate holder shall disburse the offset
funds and any other funds required by sub-subparagraph (ii) of
this subparagraph to the qualified organization as follows:
' (i) When the site certificate holder receives written notice
from the qualified organization certifying that the qualified
organization is contractually obligated to pay any funds to
implement offsets using the offset funds, the site certificate
holder shall make the requested amount available to the qualified
organization unless the total of the amount requested and any
amounts previously requested exceeds the offset funds, in which
case only the remaining amount of the offset funds shall be made
available. The qualified organization shall use at least 80
percent of the offset funds for contracts to implement offsets.
The qualified organization may use up to 20 percent of the offset
funds for monitoring, evaluation, administration and enforcement
of contracts to implement offsets.
' (ii) At the request of the qualified organization and in
addition to the offset funds, the site certificate holder shall
pay the qualified organization an amount equal to 10 percent of
the first $500,000 of the offset funds and 4.286 percent of any
offset funds in excess of $500,000. This amount shall not be less
than $50,000 unless a lesser amount is specified in the site
certificate. This amount compensates the qualified organization
for its costs of selecting offsets and contracting for the
implementation of offsets.
' (iii) Notwithstanding any provision to the contrary, a site
certificate holder subject to this subparagraph shall have no
obligation with regard to offsets, the offset funds or the funds
required by sub-subparagraph (ii) of this subparagraph other than
to make available to the qualified organization the total amount
required under paragraph (c) of this subsection and
sub-subparagraph (ii) of this subparagraph, nor shall any
nonperformance, negligence or misconduct on the part of the
qualified organization be a basis for revocation of the site
certificate or any other enforcement action by the council with
respect to the site certificate holder.
' (B) If the council finds there is no qualified organization,
the site certificate holder shall select one or more offsets to
be implemented pursuant to criteria established by the council.
The site certificate holder shall give written notice of its
selections to the council and to any person requesting notice.
On petition by the Office of Energy, or by any person adversely
affected or aggrieved by the site certificate holder's selection
of offsets, or on the council's own motion, the council may
review such selection. The petition must be received by the
council within 30 days of the date the notice of selection is
placed in the United States mail, with first-class postage
prepaid. The council shall approve the site certificate holder's
selection unless it finds that the selection is not consistent
with criteria established by the council. The site certificate
holder shall contract to implement the selected offsets within 18
months after commencing construction of the facility unless good
cause is shown requiring additional time. The contracts shall
obligate the expenditure of at least 85 percent of the offset
funds for the implementation of offsets. No more than 15 percent
of the offset funds may be spent on monitoring, evaluation and
enforcement of the contract to implement the selected offsets.
The council's criteria for selection of offsets shall be based on
the criteria set forth in paragraphs (b)(C) and (c)(B) of this
subsection and may also consider the costs of particular types of
offsets in relation to the expected benefits of such offsets. The
council's criteria shall not require the site certificate holder
to select particular offsets, and shall allow the site
certificate holder a reasonable range of choices in selecting
offsets. In addition, notwithstanding any other provision of this
section, the site certificate holder's financial liability for
implementation, monitoring, evaluation and enforcement of offsets
pursuant to this subsection shall be limited to the amount of any
offset funds not already contractually obligated. Nonperformance,
negligence or misconduct by the entity or entities implementing,
monitoring or evaluating the selected offset shall not be a basis
for revocation of the site certificate or any other enforcement
action by the council with respect to the site certificate
holder.
' (C) Every qualified organization that has received funds
under this paragraph shall, at five-year intervals beginning on
the date of receipt of such funds, provide the council with the
information the council requests about the qualified
organization's performance. The council shall evaluate the
information requested and, based on such information, shall make
any recommendations to the Legislative Assembly that the council
deems appropriate.
' (e) As used in this subsection:
' (A) 'Adjusted to ISO conditions' means carbon dioxide
emissions and net electric power output as determined at 59
degrees Fahrenheit, 14.7 pounds per square inch atmospheric
pressure and 60 percent humidity.
' (B) 'Base load gas plant' means a generating facility that is
fueled by natural gas, except for periods during which an
alternative fuel may be used and when such alternative fuel use
shall not exceed 10 percent of expected fuel use in Btu, higher
heating value, on an average annual basis, and where the
applicant requests and the council adopts no condition in the
site certificate for the generating facility that would limit
hours of operation other than restrictions on the use of
alternative fuel. The council shall assume a 100-percent
capacity factor for such plants and a 30-year life for the plants
for purposes of determining gross carbon dioxide emissions.
' (C) 'Fossil-fueled power plant' means a generating facility
that produces electric power from natural gas, petroleum, coal or
any form of solid, liquid or gaseous fuel derived from such
material.
' (D) 'Generating facility' means those energy facilities that
are defined in ORS 469.300 { - (9)(a)(A), (B) and (D) - } { +
(10)(a)(A), (B) and (D) + }.
' (E) 'Gross carbon dioxide emissions' means the predicted
carbon dioxide emissions of the proposed energy facility measured
on a new and clean basis.
' (F) 'Net carbon dioxide emissions' means gross carbon dioxide
emissions of the proposed energy facility, less carbon dioxide
emissions avoided, displaced or sequestered by any combination of
cogeneration or offsets.
' (G) 'New and clean basis' means the average carbon dioxide
emissions rate per hour and net electric power output of the
energy facility, without degradation, as determined by a 100-hour
test at full power completed during the first 12 months of
commercial operation of the energy facility, with the results
adjusted for the average annual site condition for temperature,
barometric pressure and relative humidity and use of alternative
fuels, and using a rate of 117 pounds of carbon dioxide per
million Btu of natural gas fuel and a rate of 161 pounds of
carbon dioxide per million Btu of distillate fuel, if such fuel
use is proposed by the applicant. The council may by rule adjust
the rate of pounds of carbon dioxide per million Btu for natural
gas or distillate fuel. The council may by rule set carbon
dioxide emissions rates for other fuels.
' (H) 'Nongenerating facility' means those energy facilities
that are defined in ORS 469.300 { - (9)(a)(C) and (E) to
(I) - } { + (10)(a)(C) and (E) to (I) + }.
' (I) 'Offset' means an action that will be implemented by the
applicant, a third party or through the qualified organization to
avoid, sequester or displace emissions of carbon dioxide.
' (J) 'Offset funds' means the amount of funds determined by
the council to satisfy the applicable carbon dioxide emissions
standard pursuant to paragraph (c)(C) of this subsection.
' (K) 'Qualified organization' means an entity that:
' (i) Is exempt from federal taxation under section 501(c)(3)
of the Internal Revenue Code as amended and in effect on December
31, 1996;
' (ii) Either is incorporated in the State of Oregon or is a
foreign corporation authorized to do business in the State of
Oregon;
' (iii) Has in effect articles of incorporation that require
that offset funds received pursuant to this section are used for
offsets that will result in the direct reduction, elimination,
sequestration or avoidance of carbon dioxide emissions, that
require that decisions on the use of such funds are made by a
body composed of seven voting members of which three are
appointed by the council, three are Oregon residents appointed by
the Bullitt Foundation or an alternative environmental nonprofit
organization named by the body, and one is appointed by the
applicants for site certificates that are subject to paragraph
(d) of this subsection and the holders of such site certificates,
and that require nonvoting membership on the decision-making body
for holders of site certificates that have provided funds not yet
disbursed under paragraph (d)(A) of this subsection;
' (iv) Has made available on an annual basis, beginning after
the first year of operation, a signed opinion of an independent
certified public accountant stating that the qualified
organization's use of funds pursuant to this statute conforms
with generally accepted accounting procedures except that the
qualified organization shall have one year to conform with
generally accepted accounting principles in the event of a
nonconforming audit;
' (v) Has to the extent applicable, except for good cause,
entered into contracts obligating at least 60 percent of the
offset funds to implement offsets within two years after the
commencement of construction of the facility; and
' (vi) Has to the extent applicable, except for good cause,
complied with paragraph (d)(A)(i) of this subsection.
' (3) Except as provided in ORS 469.504 for land use compliance
and except for those statutes and rules for which the decision on
compliance has been delegated by the federal government to a
state agency other than the council, the facility complies with
all other Oregon statutes and administrative rules identified in
the project order, as amended, as applicable to the issuance of a
site certificate for the proposed facility. If compliance with
applicable Oregon statutes and administrative rules, other than
those involving federally delegated programs, would result in
conflicting conditions in the site certificate, the council may
resolve the conflict consistent with the public interest. A
resolution may not result in the waiver of any applicable state
statute.
' (4) The facility complies with the statewide planning goals
adopted by the Land Conservation and Development Commission.
' { + SECTION 11. + } ORS 469.504 is amended to read:
' 469.504. (1) A proposed facility shall be found in compliance
with the statewide planning goals under ORS 469.503 (4) if:
' (a) The facility has received local land use approval under
the acknowledged comprehensive plan and land use regulations of
the affected local government; or
' (b) The council determines that:
' (A) The facility complies with applicable substantive
criteria from the affected local government's acknowledged
comprehensive plan and land use regulations that are required by
the statewide planning goals and in effect on the date the
application is submitted, and with any Land Conservation and
Development Commission administrative rules and goals and any
land use statutes directly applicable to the facility under ORS
197.646 (3);
' (B) For an energy facility or a related or supporting
facility that must be evaluated against the applicable
substantive criteria pursuant to subsection (5) of this section,
that the proposed facility does not comply with one or more of
the applicable substantive criteria but does otherwise comply
with the applicable statewide planning goals, or that an
exception to any applicable statewide planning goal is justified
under subsection (2) of this section; or
' (C) For a facility that the council elects to evaluate
against the statewide planning goals pursuant to subsection (5)
of this section, that the proposed facility complies with the
applicable statewide planning goals or that an exception to any
applicable statewide planning goal is justified under subsection
(2) of this section.
' (2) The council may find goal compliance for a facility that
does not otherwise comply with one or more statewide planning
goals by taking an exception to the applicable goal.
Notwithstanding the requirements of ORS 197.732, the statewide
planning goal pertaining to the exception process or any rules of
the Land Conservation and Development Commission pertaining to an
exception process goal, the council may take an exception to a
goal if the council finds:
' (a) The land subject to the exception is physically developed
to the extent that the land is no longer available for uses
allowed by the applicable goal;
' (b) The land subject to the exception is irrevocably
committed as described by the rules of the Land Conservation and
Development Commission to uses not allowed by the applicable goal
because existing adjacent uses and other relevant factors make
uses allowed by the applicable goal impracticable; or
' (c) The following standards are met:
' (A) Reasons justify why the state policy embodied in the
applicable goal should not apply;
' (B) The significant environmental, economic, social and
energy consequences anticipated as a result of the proposed
facility have been identified and adverse impacts will be
mitigated in accordance with rules of the council applicable to
the siting of the proposed facility; and
' (C) The proposed facility is compatible with other adjacent
uses or will be made compatible through measures designed to
reduce adverse impacts.
' (3) If compliance with applicable substantive local criteria
and applicable statutes and state administrative rules would
result in conflicting conditions in the site certificate or
amended site certificate, the council shall resolve the conflict
consistent with the public interest. A resolution may not result
in a waiver of any applicable state statute.
' (4) An applicant for a site certificate shall elect whether
to demonstrate compliance with the statewide planning goals under
subsection (1)(a) or (b) of this section. The applicant shall
make the election on or before the date specified by the council
by rule.
' (5) Upon request by the Office of Energy, the special
advisory group established under ORS 469.480 shall recommend to
the council, within the time stated in the request, the
applicable substantive criteria under subsection (1)(b)(A) of
this section. If the special advisory group does not recommend
applicable substantive criteria within the time established in
the Office of Energy's request, the council may either determine
and apply the applicable substantive criteria under subsection
(1)(b) of this section or determine compliance with the statewide
planning goals under subsection (1)(b)(B) or (C) of this section.
If the special advisory group recommends applicable substantive
criteria for an energy facility described in ORS 469.300
{ - (9)(a) - } or a related or supporting facility that does
not pass through more than one local government jurisdiction or
more than three zones in any one jurisdiction, the council shall
apply the criteria recommended by the special advisory group. If
the special advisory group recommends applicable substantive
criteria for an energy facility described in ORS 469.300
{ - (9)(a)(C) to (E) - } { + (10)(a)(C) to (E) + } or a
related or supporting facility that passes through more than one
jurisdiction or more than three zones in any one jurisdiction,
the council shall review the recommended criteria and determine
whether to evaluate the proposed facility against the applicable
substantive criteria recommended by the special advisory group,
against the statewide planning goals or against a combination of
the applicable substantive criteria and statewide planning goals.
In making its determination, the council shall consult with the
special advisory group and shall consider:
' (a) The number of jurisdictions and zones in question;
' (b) The degree to which the applicable substantive criteria
reflect local government consideration of energy facilities in
the planning process; and
' (c) The level of consistency of the applicable substantive
criteria from the various zones and jurisdictions.
' (6) The council is not subject to ORS 197.180 and a state
agency may not require an applicant for a site certificate to
comply with any rules or programs adopted under ORS 197.180.
' (7) On or before its next periodic review, each affected
local government shall amend its comprehensive plan and land use
regulations as necessary to reflect the decision of the council
pertaining to a site certificate or amended site certificate.
' (8) Notwithstanding ORS 34.020 or 197.825 or any other
provision of law, the affected local government's land use
approval of a proposed facility under subsection (1)(a) of this
section and the special advisory group's recommendation of
applicable substantive criteria under subsection (5) of this
section shall be subject to judicial review only as provided in
ORS 469.403. If the applicant elects to comply with subsection
(1)(a) of this section, the provisions of this subsection shall
apply only to proposed projects for which the land use approval
of the local government occurs after the date a notice of intent
or an application for expedited processing is submitted to the
Office of Energy.
' (9) The Office of Energy, in cooperation with other state
agencies, shall provide, to the extent possible, technical
assistance and information about the siting process to local
governments that request such assistance or that anticipate
having a facility proposed in their jurisdiction.
' { + SECTION 12. + } ORS 469.594 is amended to read:
' 469.594. (1) Notwithstanding { + the definition of a 'waste
disposal facility' under + } ORS 469.300 { - (30) - } , no
high-level radioactive waste should be stored at the site of a
nuclear-fueled thermal power plant after the expiration of the
operating license issued to the nuclear power plant by the United
States Nuclear Regulatory Commission.
' (2) Notwithstanding subsection (1) of this section, a person
operating a nuclear power plant under a license issued by the
United States Nuclear Regulatory Commission shall remain
responsible for proper temporary storage of high-level
radioactive materials at the site of the nuclear power plant
after termination of a license and until such materials are
removed from the site for permanent storage.
' (3) The Office of Energy and the operators of nuclear-fueled
thermal plants shall pursue agreements with the United States
Office of Energy and the United States Nuclear Regulatory
Commission to fulfill the provisions of this section.
' { + SECTION 13. + } { + Notwithstanding ORS 469.300 (10)
or any Energy Facility Siting Council rule, a wind, solar or
geothermal energy facility or a small generating plant in
commercial operation as of December 31, 2001, may not be
considered by the council when evaluating cumulative effects
within an energy generation area or when determining whether a
proposed wind, solar or geothermal energy facility is part of a
larger energy facility that requires a site certificate. + }
' { + SECTION 14. + } { + Section 13 of this 2001 Act is
repealed January 2, 2002. + }
' { + SECTION 15. + } { + This 2001 Act being necessary for
the immediate preservation of the public peace, health and
safety, an emergency is declared to exist, and this 2001 Act
takes effect on its passage. + } ' .
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