72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3020
A-Engrossed
House Bill 3354
Ordered by the House April 29
Including House Amendments dated April 29
Sponsored by COMMITTEE ON JUDICIARY
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Directs Energy Facility Siting Council to inform applicant for
site certificate if council may be unable to approve or reject
application within statutory deadline. Directs Office of Energy
to contract for services to review application if requested and
paid for by applicant. { + Allows applicant to request
Department of Justice to hire additional staff to provide legal
services needed to meet time period for review. + }
A BILL FOR AN ACT
Relating to energy facility siting; creating new provisions; and
amending ORS 469.370.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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 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.
(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) If the council determines that the council may be
unable to approve or reject an application for a site certificate
within the time period for review established by subsection (9)
of this section, the council shall immediately notify the
applicant and provide an explanation of the reason for the delay.
At the request of the applicant, and at the expense of the
applicant, the Office of Energy:
(a) Shall enter into a contract with an independent contractor
to provide the services, other than legal services, necessary to
meet the time period for review. The Office of Energy shall
administer the contract in the same manner as contracts entered
into pursuant to ORS 469.360, except that the costs of the
contract shall be incurred by the applicant requesting the
services.
(b) May request that the Department of Justice hire additional
staff as necessary to provide legal services needed to meet the
time period for review. + }
{ - (12) - } { + (13) + } The council shall specify in the
site certificate a date by which construction of the facility
must begin.
{ - (13) - } { + (14) + } 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 2. { + The amendments to ORS 469.370 by section 1 of
this 2003 Act apply to applications for site certificates filed
on or after the effective date of this 2003 Act. + }
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