72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
Enrolled
Senate Bill 478
Sponsored by COMMITTEE ON WATER AND LAND USE
CHAPTER ................
AN ACT
Relating to energy; creating new provisions; and amending ORS
176.820, 261.151, 262.025, 267.030, 267.517, 279.729, 458.505,
469.020, 469.030, 469.040, 469.070, 469.080, 469.085, 469.120,
469.155, 469.170, 469.180, 469.200, 469.205, 469.210, 469.215,
469.225, 469.300, 469.310, 469.320, 469.421, 469.503, 469.504,
469.540, 469.550, 469.566, 469.569, 469.571, 469.579, 469.605,
469.606, 469.609, 469.611, 469.613, 469.631, 469.649, 469.673,
469.677, 469.681, 469.683, 469.752, 469.840, 469.880, 469.885,
469.890, 469.895, 469.992, 470.050, 470.070, 470.080, 470.090,
470.100, 470.110, 470.130, 470.135, 470.140, 470.150, 470.160,
470.170, 470.190, 470.210, 470.230, 470.250, 470.260, 470.270,
470.300, 470.310, 757.600 and 757.676.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 469.030 is amended to read:
469.030. (1) There is created the { - Office - } { + State
Department + } of Energy.
(2) The { - Office - } { + State Department + } of Energy
shall:
(a) Be the central repository within the state government for
the collection of data on energy resources;
(b) Endeavor to utilize all public and private sources to
inform and educate the public about energy problems and ways in
which the public can conserve energy resources;
(c) Engage in research, but whenever possible, contract with
appropriate public or private agencies and dispense funds for
research projects and other services related to energy resources,
except that the { - Office - } { + State Department + } of
Energy shall endeavor to avoid duplication of research whether
completed or in progress;
(d) Qualify for, accept and disburse or utilize any private or
federal moneys or services available for the administration of
ORS 176.820, 192.501 to 192.505, 192.690, 469.010 to 469.225,
469.300 to 469.563, 469.990, 757.710 and 757.720;
(e) Administer federal and state energy allocation and
conservation programs and energy research and development
programs and apply for and receive available funds therefor;
(f) Be a clearinghouse for energy research to which all
agencies shall send information on all energy related research;
(g) Prepare contingent energy programs to include all forms of
energy not otherwise provided pursuant to ORS 757.710 and
757.720;
Enrolled Senate Bill 478 (SB 478-INTRO) Page 1
(h) Maintain an inventory of energy research projects in Oregon
and the results thereof;
(i) Collect, compile and analyze energy statistics, data and
information;
(j) Contract with public and private agencies for energy
activities consistent with ORS 469.010 and this section; and
(k) Upon request of the governing body of any affected
jurisdiction, coordinate a public review of a proposed
transmission line according to the provisions of ORS 469.442.
SECTION 2. { + (1) The amendments to ORS 469.030 by section 1
of this 2003 Act are intended to change the name of the Office of
Energy to the State Department of Energy.
(2) For the purpose of harmonizing and clarifying statute
sections published in Oregon Revised Statutes, the Legislative
Counsel may substitute for words designating the 'Office of
Energy' or 'office,' wherever they occur in Oregon Revised
Statutes, other words designating the 'State Department of
Energy' or 'department.' + }
SECTION 3. ORS 469.040 is amended to read:
469.040. (1) The { - Office - } { + State Department + } of
Energy shall be under the supervision of the { - administrator
of the Office - } { + Director of the State Department + } of
Energy { + , + } who shall:
(a) Supervise the day-to-day functions of the { - Office - }
{ + State Department + } of Energy;
(b) Supervise and facilitate the work and research on energy
facility siting applications at the direction of the Energy
Facility Siting Council;
(c) Hire, assign, reassign and coordinate personnel of the
{ - Office - } { + State Department + } of Energy, prescribe
their duties and fix their compensation, subject to the State
Personnel Relations Law; and
(d) Adopt rules and issue orders to carry out the duties of the
{ - administrator - } { + director + } and the
{ - Office - } { + State Department + } of Energy in
accordance with ORS 183.310 to 183.550 and the policy stated in
ORS 469.010.
(2) The { - administrator - } { + director + } may delegate
to any officer or employee the exercise and discharge in the
{ - administrator's - } { + director's + } name of any power,
duty or function of whatever character vested in the
{ - administrator - } { + director + } by law. The official
act of any person acting in the { - administrator's - }
{ + director's + }name and by the { - administrator's - }
{ + director's + } authority shall be considered an official act
of the { - administrator - } { + director + }.
(3) The { - administrator - } { + director + } shall be
appointed by the Governor.
SECTION 4. { + (1) The amendments to ORS 469.040 by section 3
of this 2003 Act are intended to change the name of the
administrator of the Office of Energy to the Director of the
State Department of Energy.
(2) For the purpose of harmonizing and clarifying statute
sections published in Oregon Revised Statutes, the Legislative
Counsel may substitute for words designating the 'administrator
of the Office of Energy' or 'administrator,' wherever they occur
in Oregon Revised Statutes, other words designating the '
Director of the State Department of Energy' or 'director.' + }
SECTION 5. ORS 469.571 is amended to read:
Enrolled Senate Bill 478 (SB 478-INTRO) Page 2
469.571. There is created an Oregon Hanford { - Waste - }
{ + Cleanup + } Board that shall consist of the following
members:
(1) The { - administrator of the Office - } { + Director of
the State Department + } of Energy or designee;
(2) The Water Resources Director or designee;
(3) A representative of the Governor;
(4) One member representing the Confederated Tribes of the
Umatilla Indian Reservation;
(5) Ten members of the public, appointed by the Governor, one
of whom shall be a representative of a local emergency response
organization in eastern Oregon and one of whom shall serve as
chairperson; and
(6) Three members of the Senate, appointed by the President of
the Senate, and three members of the House of Representatives,
appointed by the Speaker of the House of Representatives who
shall serve as advisory members without vote.
SECTION 6. { + (1) The amendments to ORS 469.571 by section 5
of this 2003 Act are intended to change the name of the Oregon
Hanford Waste Board to the Oregon Hanford Cleanup Board.
(2) For the purpose of harmonizing and clarifying statute
sections published in Oregon Revised Statutes, the Legislative
Counsel may substitute for words designating the 'Oregon Hanford
Waste Board,' wherever they occur in Oregon Revised Statutes,
other words designating the 'Oregon Hanford Cleanup Board.' + }
SECTION 7. ORS 469.120 is amended to read:
469.120. (1) The { - Office - } { + State Department + } of
Energy Account is established.
(2) All funds received by the { - Office - } { + State
Department + } of Energy pursuant to law shall be paid into the
State Treasury and credited to the { - Office - } { + State
Department + } of Energy Account. All moneys in the account are
continuously appropriated to the
{ - Office - } { + State Department + } of Energy for payment
of expenses of the
{ - Office - } { + State Department + } of Energy, the Oregon
Department of Administrative Services and the Energy Facility
Siting Council.
(3) The { - administrator of the Office - } { + Director of
the State Department + } of Energy shall keep a record of all
moneys deposited in the { - Office - } { + State
Department + } of Energy Account. The record shall indicate by
special cumulative accounts the source from which moneys are
derived and the individual activity against which each withdrawal
is charged.
SECTION 8. { + (1) The amendments to ORS 469.120 by section 7
of this 2003 Act are intended to change the name of the Office of
Energy Account to the State Department of Energy Account.
(2) For the purpose of harmonizing and clarifying statute
sections published in Oregon Revised Statutes, the Legislative
Counsel may substitute for words designating the 'Office of
Energy Account,' wherever they occur in Oregon Revised Statutes,
other words designating the 'State Department of Energy
Account.' + }
SECTION 9. ORS 176.820 is amended to read:
176.820. There is continuously appropriated from the Motor
Vehicle Division Account to the { - Office - } { + State
Department + } of Energy, for deposit in the { - Office - }
{ + State Department + } of Energy Account, sufficient moneys
for the payment of expenses incurred under chapter 606, Oregon
Enrolled Senate Bill 478 (SB 478-INTRO) Page 3
Laws 1975 { + , + } { - ; - } subject to limitations on payment
of expenses as approved under legislative authority.
SECTION 10. ORS 261.151 is amended to read:
261.151. Upon certification of a petition for formation or
adoption of a resolution by the county governing body for
district formation, the county clerk shall submit a copy of the
resolution or petition, without signatures attached, to the
{ - administrator of the Office - } { + Director of the State
Department + } of Energy. Not less than 30 days after receipt of
the petition or resolution copy, the
{ - administrator - } { + director + } shall hold a hearing
within the proposed district for the purpose of receiving public
testimony on the proposed district formation. Notice of the
hearing, stating the time and place of the hearing, together with
the electors' petition, when applicable, without the signatures
attached, shall be published at least two times prior to the date
of the meeting. The first publication shall not be more than 25
days nor less than 15 days preceding the hearing and the last
publication shall not be more than 14 days nor less than eight
days preceding the hearing. Within 60 days after receipt of the
petition or resolution copy, the { - administrator - }
{ + director, + } with the advice and assistance of the Public
Utility Commission of Oregon { + , + } shall prepare and publish
a concise report showing the availability and cost of power
resources, potential tax consequences and any other information
considered by the { - administrator - } { + director + } to
be relevant to the proposed formation of the district. A copy of
the report shall be mailed, upon publication, by the
{ - administrator - } { + director + } to the county governing
body.
SECTION 11. ORS 262.025 is amended to read:
262.025. A joint operating agency shall be formed and come into
existence by order of the { - administrator of the Office - }
{ + Director of the State Department + } of Energy in accordance
with the following procedures:
(1) The legislative body of each city and people's utility
district desiring to form and be a member of a joint operating
agency shall adopt an ordinance declaring their intention and
authorizing formation and membership. The ordinance shall be
effective only if submitted to the electors of the city or
people's utility district voting on the ordinance at any general
election or at a special election called for that purpose. The
ordinance shall include:
(a) A statement of the purpose or purposes for which the joint
operating agency is to be formed.
(b) A finding by the legislative body that the formation of a
joint operating agency is necessary or desirable in order to plan
for and provide an adequate supply of electric energy to meet the
needs of the customers of publicly owned utilities in Oregon.
(c) A statement of the projected energy loads and resources
relied upon by the legislative body to support such finding.
(d) A general description of the means by which the joint
operating agency proposes to accomplish its purposes, including a
description of any specific utility properties then identified as
a proposed activity of the joint operating agency.
(e) A statement of the financial contribution, if any, to be
made by the city or district to the joint operating agency at the
time of organization as a condition of membership.
(2) Upon such approval of such an ordinance or ordinances, each
such city and district shall file with the
Enrolled Senate Bill 478 (SB 478-INTRO) Page 4
{ - administrator - } { + director + }an application to form
and be a member of a joint operating agency. The application
shall:
(a) State the proposed name of the operating agency, the
proposed address of its principal business office, and the
purpose or purposes for which it is to be formed;
(b) Contain a certified copy of the ordinance of each applicant
city and district as approved by the electors; and
(c) State generally how the joint operating agency proposes to
accomplish its purposes.
(3) The { - administrator - } { + director + } shall cause
notice of an application to be published forthwith in the
bulletin referred to in ORS 183.360. Such notice shall:
(a) Summarize fairly the contents of the application;
(b) Fix a date not less than 20 nor more than 30 days after the
date of publication prior to which interested parties may submit
in writing any data, views, or arguments with respect to the
application; and
(c) Fix a date not less than 30 nor more than 60 days after the
date of publication for the entry of an order approving or
disapproving an application.
(4) In considering the application, the { - administrator - }
{ + director + } shall give full and fair consideration to all
data, views { - , - } and arguments submitted on behalf of the
applicants or any other interested person.
(5) On or before the date fixed in subsection (3)(c) of this
section, the { - administrator - } { + director + } shall
enter an order establishing the joint operating agency in
accordance with the application if the { - administrator - }
{ + director + } finds (a) that the statements set forth in the
application are substantially correct; (b) that formation of the
proposed joint operating agency is necessary or desirable to plan
for or provide an adequate supply of electric energy to meet the
needs of the customers of publicly owned utilities in Oregon; and
(c) that adequate provision has been or can be made for financing
the activities of the joint operating agency. The joint operating
agency shall be established as of the date of such order.
(6) If the { - administrator - } { + director + } finds
that the application is not in the required form or that
additional data is required to support the application, the
{ - administrator - } { + director + } shall enter an order so
finding. Such an order shall not preclude the applicants from
filing a revised application based upon the same approved
ordinances.
(7) If the { - administrator - } { + director + } does not
enter an order as authorized under subsection (5) or (6) of this
section within 60 days after the date of publication, the
application shall be considered approved, and the joint operating
agency shall be established as of such 60th day.
(8) A joint operating agency, organized as provided by this
section shall have all of the powers and responsibilities
contained in ORS 262.005 to 262.105.
(9) Any party who has joined in filing an application in
accordance with this section, or who has filed timely objections
to such application, and who feels aggrieved by any finding or
order of the { - administrator - } { + director + } shall
have the right of judicial review pursuant to ORS 183.480.
SECTION 12. ORS 267.030 is amended to read:
Enrolled Senate Bill 478 (SB 478-INTRO) Page 5
267.030. (1) To the maximum extent possible, motor vehicles
subject to the control of a district shall use alternative fuel
for operation.
(2) { - After July 1, 1993, - } To the extent that it is
economically and technologically possible, all motor vehicles
purchased or leased by the board of the district shall be capable
of using alternative fuel. However, this subsection does not
apply if the vehicle will be primarily used in an area that does
not have and cannot reasonably be expected to establish an
alternative fuel refueling station or if the district is unable
to secure financing sufficient to cover additional costs
resulting from the requirement of this subsection.
(3) Prior to July 1 of each year, the board of the district
shall submit an annual report to the Department of Environmental
Quality and the { - Office - } { + State Department + } of
Energy. The report shall contain at a minimum:
(a) The number of purchases and leases of vehicles capable of
using alternative fuel;
(b) The number of conversions of vehicles from the use of
gasoline or diesel fuel to the use of alternative fuel;
(c) The quantity of each type of alternative fuel used; and
(d) Any other information required by the Department of
Environmental Quality and the { - Office - } { + State
Department + } of Energy to carry out their functions under
subsection (4) of this section.
(4) { - Prior to July 1, 1998, the Department of
Environmental Quality and the Office of Energy shall determine
whether the use of alternative fuel required by this section has
been effective in reducing total annual motor vehicle emissions
in the district. - } If the Department { + of Environmental
Quality + } and { - Office - } { + State Department + } of
Energy determine that the use of alternative fuel required by
this section has been effective in reducing total annual motor
vehicle emissions in the district, the motor vehicles subject to
the control of the board of the district shall be capable of
using alternative fuel, to the maximum extent possible { - ,
prior to September 1, 2000 - } .
(5) The board of the district shall comply with all safety
standards established by the United States Department of
Transportation in the conversion, operation and maintenance of
vehicles using alternative fuel.
(6) As used in this section, 'alternative fuel' means any fuel
determined by the Department of Environmental Quality to be less
polluting than conventional gasoline, including but not
necessarily limited to reformulated gasoline, low sulphur diesel
fuel, natural gas, liquified petroleum gas, methanol, ethanol,
any fuel mixture containing at least 85 percent methanol or
ethanol and electricity.
SECTION 13. ORS 267.517 is amended to read:
267.517. (1) To the maximum extent possible, motor vehicles
subject to the control of a transportation district established
under ORS 267.510 to 267.650 having a city within the district
with a population exceeding 30,000 shall use alternative fuel for
operation.
(2) { - After July 1, 1993, - } To the extent that it is
economically and technologically possible, all motor vehicles
purchased or leased by the board of the district shall be capable
of using alternative fuel. However, this subsection does not
apply if the vehicle will be primarily used in an area that does
not have and cannot reasonably be expected to establish an
Enrolled Senate Bill 478 (SB 478-INTRO) Page 6
alternative fuel refueling station or if the district is unable
to secure financing sufficient to cover additional costs
resulting from the requirement of this subsection.
(3) Prior to July 1 of each year, the board of the district
shall submit an annual report to the Department of Environmental
Quality and the { - Office - } { + State Department + } of
Energy. The report shall contain at a minimum:
(a) The number of purchases and leases of vehicles capable of
using alternative fuel;
(b) The number of conversions of vehicles from the use of
gasoline or diesel fuel to the use of alternative fuel;
(c) The quantity of each type of alternative fuel used; and
(d) Any other information required by the Department of
Environmental Quality and the { - Office - } { + State
Department + } of Energy to carry out their functions under
subsection (4) of this section.
(4) { - Prior to July 1, 1998, the Department of
Environmental Quality and the Office of Energy shall determine
whether the use of alternative fuel required by this section has
been effective in reducing total annual motor vehicle emissions
in the district. - } If the Department { + of Environmental
Quality + } and { - Office - } { + State Department + } of
Energy determine that the use of alternative fuel required by
this section has been effective in reducing total annual motor
vehicle emissions in the district, the motor vehicles subject to
the control of the board of the district shall be capable of
using alternative fuel, to the maximum extent possible { - ,
prior to September 1, 2000 - } .
(5) The board of the district shall comply with all safety
standards established by the United States Department of
Transportation in the conversion, operation and maintenance of
vehicles using alternative fuel.
(6) As used in this section, 'alternative fuel' means any fuel
determined by the Department of Environmental Quality to be less
polluting than conventional gasoline, including but not
necessarily limited to reformulated gasoline, low sulphur diesel
fuel, natural gas, liquified petroleum gas, methanol, ethanol,
any fuel mixture containing at least 85 percent methanol or
ethanol and electricity.
SECTION 14. ORS 279.729 is amended to read:
279.729. (1) The Oregon Department of Administrative Services
may:
(a) Establish and enforce standards for all supplies, materials
and equipment in common use by state agencies.
(b) Make or cause to be made any test, examination or analysis
necessary therefor.
(c) Require the assistance of any and all officers and agencies
therefor.
(d) Prepare or cause to be prepared proper and uniform
specifications.
(e) Classify the requirements of the various agencies of the
state government for the purpose of the use and application of
such standard specifications.
(f) In consultation with the { - Office - } { + State
Department + } of Energy, establish criteria relating to the
selection of energy efficient equipment.
(2) The { + Oregon + } Department { + of Administrative
Services + } shall prescribe standards and specifications for
paper used by state agencies that shall require the highest
percentage possible of the total of the paper purchased by the
Enrolled Senate Bill 478 (SB 478-INTRO) Page 7
department in any fiscal year be recycled paper or paper in the
same grade most nearly meeting the definition of recycled paper.
The department shall make available, through its purchasing
procedure, in all grades where it can be obtained, recycled paper
or that paper in the same grade most nearly meeting the
definition of recycled paper.
(3) As used in this section, 'recycled paper' has the meaning
given that term by ORS 279.545.
SECTION 15. ORS 458.505 is amended to read:
458.505. (1) The community action agency network, established
initially under the federal Economic Opportunity Act of 1964,
shall be the delivery system for federal antipoverty programs in
Oregon, including the Community Services Block Grant, Low Income
Energy Assistance Program, { - Office - } { + State
Department + } of Energy Weatherization Program and such others
as may become available.
(2) Funds for such programs shall be distributed to the
community action agencies by the Housing and Community Services
Department with the advice of the Community Action Directors of
Oregon.
(3) In areas not served by a community action agency, funds
other than federal community services funds may be distributed to
and administered by organizations that are found by the Housing
and Community Services Department to serve the antipoverty
purpose of the community action agency network.
(4) In addition to complying with all applicable requirements
of federal law, a community action agency shall:
(a) Be an office, division or agency of the designating
political subdivision or a not for profit organization in
compliance with ORS chapter 65.
(b) Have a community action board of at least nine but no more
than 33 members, constituted so that:
(A) One-third of the members of the board are elected public
officials currently serving or their designees. If the number of
elected officials reasonably available and willing to serve is
less than one-third of the membership, membership of appointed
public officials may be counted as meeting the one-third
requirement;
(B) At least one-third of the members are persons chosen
through democratic selection procedures adequate to assure that
they are representatives of the poor in the area served; and
(C) The remainder of the members are officials or members of
business, industry, labor, religious, welfare, education or other
major groups and interests in the community.
(c) If the agency is a private not for profit organization, be
governed by the Community Action Board. The board shall have all
duties, responsibilities and powers normally associated with such
boards, including, but not limited to:
(A) Selection, appointment and dismissal of the executive
director of the agency;
(B) Approval of all contracts, grant applications and budgets
and operational policies of the agency;
(C) Evaluation of programs; and
(D) Securing an annual audit of the agency.
(d) If the organization is an office, division or agency of a
political subdivision, be administered by the board which shall
provide for the operation of the agency and be directly
responsible to the governing board of the political subdivision.
The administering board at a minimum, shall:
(A) Review and approve program policy;
Enrolled Senate Bill 478 (SB 478-INTRO) Page 8
(B) Be involved in and consulted on the hiring and firing of
the agency director;
(C) Monitor and evaluate program effectiveness;
(D) Ensure the effectiveness of community involvement in the
planning process; and
(E) Assume all duties delegated to it by the governing board.
(e) Have a clearly defined, specified service area. Community
action service areas shall not overlap.
(f) Have an accounting system which meets generally accepted
accounting principles and be so certified by an independent
certified accountant.
(g) Provide assurances against the use of government funds for
political activity by the community action agency.
(h) Provide assurances that no person shall, on the grounds of
race, color, national origin or sex, be excluded from
participation in, be denied the benefits of or be subjected to
discrimination under any program or activity funded in whole or
in part with funds made available through the community action
program.
(i) Provide assurances the community action agency shall comply
with any prohibition against discrimination on the basis of age
under the Age Discrimination Act of 1975 or with respect to an
otherwise qualified individual with disabilities as provided in
section 504 of the Rehabilitation Act of 1973.
(5) For the purposes of this section, the Oregon Human
Development Corporation is eligible to receive federal community
service funds and low-income energy assistance funds.
(6) The State Community Services shall:
(a) Administer federal and state antipoverty programs.
(b) Apply for all available antipoverty funds on behalf of
eligible entities as defined in this section.
(c) In conjunction with the Community Action Directors of
Oregon, develop a collaborative role in advocating for, and
addressing the needs of, all low income Oregonians.
(d) Biennially produce and make available to the public a
status report on efforts by it and state agencies to reduce the
incidence of poverty in Oregon. This report shall contain figures
regarding the numbers and types of persons living in poverty in
Oregon.
(e) On a regular basis provide information to the Community
Action Directors of Oregon on the activities and expenditures of
State Community Services.
(f) As resources are available, provide resources for technical
assistance, training and program assistance to eligible entities.
(g) As resources are available, provide resources for the
training and technical assistance needs of the Community Action
Directors of Oregon.
(h) Conduct a planning process to meet the needs of low income
people in Oregon. That process shall fully integrate the Oregon
Human Development Corporation into the antipoverty delivery
system. The planning process shall include development of a plan
for minimum level of services and funding for low income migrant
and seasonal farmworkers from the antipoverty programs
administered by the agency.
(i) Limit its administrative budget in an effort to maximize
the availability of antipoverty federal and state funds for
expenditures by local eligible entities.
SECTION 16. ORS 469.020 is amended to read:
Enrolled Senate Bill 478 (SB 478-INTRO) Page 9
469.020. As used in ORS 176.820, 469.010 to 469.225, 469.860
(3), 469.880 to 469.895, 469.900 (3), 469.990, 469.992, 757.710
and 757.720, unless the context requires otherwise:
{ - (1) 'Administrator' means the administrator of the Office
of Energy created under ORS 469.030. - }
{ - (2) - } { + (1) + } 'Agency' includes a department or
other agency of state government, city, county, municipal
corporation, political subdivision, port, people's utility
district, joint operating agency and electric cooperative.
{ - (3) - } { + (2) + } 'Coal supplier' means any person
engaged in the wholesale distribution in this state of coal
intended for use in this state for an energy facility.
{ - (4) - } { + (3) + } 'Cost-effective' means that an
energy resource, facility or conservation measure during its life
cycle results in delivered power costs to the ultimate consumer
no greater than the comparable incremental cost of the least cost
alternative new energy resource, facility or conservation
measure. Cost comparison under this definition shall include but
not be limited to:
(a) Cost escalations and future availability of fuels;
(b) Waste disposal and decommissioning costs;
(c) Transmission and distribution costs;
(d) Geographic, climatic and other differences in the state;
and
(e) Environmental impact.
{ - (5) - } { + (4) + } 'Council' means the Energy Facility
Siting Council established under ORS 469.450.
{ + (5) 'Department' means the State Department of Energy
created under ORS 469.030.
(6) 'Director' means the Director of the State Department of
Energy appointed under ORS 469.040. + }
{ - (6) - } { + (7) + } 'Energy facility' has the meaning
given in ORS 469.300.
{ - (7) - } { + (8) + } '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
megawatts or more. An energy generation area for facilities using
a geothermal resource and covered by a unit agreement, as
provided in ORS 522.405 to 522.545 or by federal law, shall be
defined in that unit agreement. If no such unit agreement exists,
an energy generation area for facilities using a geothermal
resource shall be the area that is within two miles, measured
from the electrical generating equipment of the facility, of an
existing or proposed geothermal electric power generating plant,
not including the site of any other such plant not owned or
controlled by the same person.
{ - (8) - } { + (9) + } 'Geothermal reservoir' means an
aquifer or aquifers containing a common geothermal fluid.
{ - (9) - } { + (10) + } 'Nominal electric generating
capacity' has the meaning given in ORS 469.300.
{ - (10) 'Office of Energy' means the Office of Energy
created under ORS 469.030. - }
(11) '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.
(12) 'Petroleum supplier' means a petroleum refiner in this
state, or any person engaged in the wholesale distribution of
Enrolled Senate Bill 478 (SB 478-INTRO) Page 10
crude petroleum or derivative thereof or of propane in this
state.
(13) '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 structure, 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.
(14) 'Site' means a proposed location of an energy facility,
and its related or supporting facilities.
(15) 'Thermal power plant' has the meaning given that term by
ORS 469.300.
(16) 'Utility' includes:
(a) An individual, 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.
SECTION 17. ORS 469.070 is amended to read:
469.070. (1) At least biennially the { - Office - }
{ + State Department + } of Energy shall issue a forecast on the
energy situation as it affects Oregon. The forecast shall
include, but not be limited to, an estimate of:
(a) Energy demand and the resources available to meet that
demand; and
(b) Impacts of conservation and new technology, increased
efficiency of present energy facilities, additions to present
facilities, and construction of new facilities, on the
availability of energy to Oregon.
(2) The forecast shall include summary forecasts for:
(a) Each of the first five years immediately following issuance
of the forecast; and
(b) The 10th and 20th year following the issuance of the
forecast.
(3) The forecast shall identify all major components of demand
and any anticipated increase in demand, including but not limited
to population, commercial, agricultural and industrial growth.
(4) The { - Office - } { + State Department + } of Energy,
by July 1 of each even-numbered year, shall issue a statement
setting forth the methodology and assumptions it intends to
employ in preparing the forthcoming forecast, any changes in the
preceding forecast, and an outline of the contents of the
biennial plan to be published by the { - Office of Energy - }
{ + department + } on the following January 1, and not later
than the 45th day thereafter, commence public hearings thereon.
(5) All state agencies, energy suppliers, owners of energy
facilities, and other persons whom the { - administrator of the
Office - } { + Director of the State Department + } of Energy
believes have an interest in the subject or who have applied to
the
{ - administrator - } { + director + } therefor, shall be
supplied a copy of the statement issued by the { - Office of
Enrolled Senate Bill 478 (SB 478-INTRO) Page 11
Energy - } { + department + } on July 1 of each even-numbered
year. The { - administrator - } { + director + } may charge a
reasonable fee for a copy of this statement not to exceed the
cost thereof.
(6) After the public hearings required by subsection (4) of
this section, but not later than January 1 following the issuance
of its statement, the { - Office of Energy - }
{ + department + } shall issue the forecast required by
subsection (1) of this section.
(7) The forecast shall be included within the plan provided for
in ORS 469.060 (1).
SECTION 18. ORS 469.080 is amended to read:
469.080. (1) The { - administrator of the Office - }
{ + Director of the State Department + } of Energy may obtain
all necessary information from producers, suppliers and consumers
of energy resources within Oregon, and from political
subdivisions in this state, as necessary to carry out ORS
176.820, 192.501 to 192.505, 192.690, 469.010 to 469.225, 469.300
to 469.563, 469.990, 469.992, 757.710 and 757.720. Such
information may include, but not be limited to:
(a) Sales volume;
(b) Forecasts of energy resource requirements;
(c) Inventory of energy resources; and
(d) Local distribution patterns of information under paragraphs
(a) to (c) of this subsection.
(2) In obtaining information under subsection (1) of this
section, the { - administrator - } { + director, + } with the
written consent of the Governor { + , + } may subpoena witnesses,
material and relevant books, papers, accounts, records and
memoranda, administer oaths, and may cause the depositions of
persons residing within or without Oregon to be taken in the
manner prescribed for depositions in civil actions in circuit
courts, to obtain information relevant to energy resources.
(3) In obtaining information under this section { + , + } the
{ - administrator - } { + director + }:
(a) Shall avoid eliciting information already furnished by a
person or political subdivision in this state to a federal, state
or local regulatory authority that is available to the
{ - administrator - } { + director + } for such study; and
(b) Shall cause reporting procedures, including forms, to
conform to existing requirements of federal, state and local
regulatory authorities.
(4) Any person who is served with a subpoena to give testimony
orally or in writing or to produce books, papers, correspondence,
memoranda, agreements or the documents or records as provided in
ORS 176.820, 192.501 to 192.505, 192.690, 469.010 to 469.225,
469.300 to 469.563, 469.990, 469.992, 757.710 and 757.720, may
apply to any circuit court in Oregon for protection against abuse
or hardship in the manner provided in ORCP 36 C.
SECTION 19. ORS 469.085 is amended to read:
469.085. (1) Except as otherwise provided in this section,
civil penalties under ORS 469.992 shall be imposed as provided in
ORS 183.090.
(2) Notwithstanding ORS 183.090 (2), the notice to the person
against whom a civil penalty is to be imposed shall reflect a
complete statement of the consideration given to the factors
listed in subsection (7) of this section. The notice may be
served by either the { - administrator of the Office - }
{ + Director of the State Department + } of Energy or the Energy
Facility Siting Council.
Enrolled Senate Bill 478 (SB 478-INTRO) Page 12
(3) Notwithstanding ORS 183.090, if a hearing is not requested
or if the person requesting a hearing fails to appear, a final
order shall be entered upon a prima facie case made on the record
of the agency.
(4) The provisions of this section are in addition to and not
in lieu of any other penalty or sanction provided by law. An
action taken by the { - administrator - } { + director + } or
the council under this section may be joined by the
{ - administrator - } { + director + } or the council with any
other action against the same person under this chapter.
(5) Any civil penalty recovered under this section shall be
paid into the General Fund.
(6) The { - administrator - } { + director + } or the
council shall adopt by rule a schedule of the amount of civil
penalty that may be imposed for a particular violation.
(7) In imposing a penalty under ORS 469.992, the
{ - administrator - } { + director + } or the council shall
consider:
(a) The past history of the person incurring a penalty in
taking all feasible steps or procedures necessary or appropriate
to correct or prevent any violation;
(b) Any prior violations of ORS chapter 469 or rules, orders or
permits relating to the alleged violation;
(c) The impact of the violation on public health and safety or
public interests in fishery, navigation and recreation;
(d) Any other factors determined by the { - administrator - }
{ + director + } or the council to be relevant; and
(e) The alleged violator's cooperativeness and effort to
correct the violation.
(8) The penalty imposed under ORS 469.992 may be remitted or
mitigated upon such terms and conditions as the
{ - administrator - } { + director + } or council determines to
be proper. Upon the request of the person incurring the penalty,
the { - administrator - } { + director + } or council shall
consider evidence of the economic and financial condition of the
person in determining whether a penalty shall be remitted or
mitigated.
SECTION 20. ORS 469.155 is amended to read:
469.155. (1) As used in this section:
(a) 'Dwelling' means real or personal property inhabited as the
principal residence of an owner or renter. 'Dwelling ' includes a
manufactured dwelling as defined in ORS 446.003, a floating home
as defined in ORS 830.700 and multiple unit residential housing.
'Dwelling' does not include a recreational vehicle as defined in
ORS 446.003.
(b) 'Energy conservation standards' means standards for the
efficient use of energy for space and water heating in a
dwelling.
(2) The { - administrator of the Office - } { + Director of
the State Department + } of Energy shall establish advisory
energy conservation standards for existing dwellings. The
standards shall be adopted by rule in accordance with ORS 183.310
to 183.410. The standards:
(a) Shall take cost-effectiveness into account; and
(b) Shall be compatible with and further the state's incentive
programs for residential energy conservation.
(3) The { - administrator - } { + director + } shall
publicize the energy conservation standards and encourage home
owners to voluntarily comply with the standards.
SECTION 21. ORS 469.170 is amended to read:
Enrolled Senate Bill 478 (SB 478-INTRO) Page 13
469.170. (1) Any person may claim a tax credit under ORS
316.116 (or ORS 317.115, if the person is a corporation) if the
person:
(a) Meets the requirements of ORS 316.116 (or ORS 317.115, if
applicable);
(b) Meets the requirements of ORS 469.160 to 469.180; and
(c) Pays, subject to subsection (9) of this section, all or a
portion of the costs of an alternative energy device.
(2) A credit under ORS 317.115 may be claimed only if the
alternative energy device is a fueling station necessary to
operate an alternative fuel vehicle.
(3) In order to be eligible for a tax credit under ORS 316.116
or 317.115, a person claiming a tax credit for construction or
installation of an alternative energy device (including a fueling
station) shall have the system certified by the { - Office - }
{ + State Department + } of Energy or constructed or installed
by a contractor certified by the { - Office of Energy - }
{ + department + } under subsection (5) of this section. This
subsection does not apply to an alternative fuel vehicle or to
related equipment. Certification of an alternative fuel vehicle
or related equipment shall be accomplished under rules that shall
be adopted by the { - administrator of the Office - }
{ + Director of the State Department + } of Energy.
(4) Verification of the purchase, construction or installation
of an alternative energy device shall be made in writing on a
form provided by the Department of Revenue and, if applicable,
shall contain:
(a) The location of the alternative energy device;
(b) A description of the type of device;
(c) If the device was constructed or installed by a contractor,
evidence that the contractor has any license, bond, insurance and
permit required to sell and construct or install the alternative
energy device;
(d) If the device was constructed or installed by a contractor,
a statement signed by the contractor that the applicant has
received:
(A) A statement of the reasonably expected energy savings of
the device;
(B) A copy of consumer information published by the
{ - Office - } { + State Department + } of Energy;
(C) An operating manual for the alternative energy device; and
(D) A copy of the contractor's certification certificate or
alternative energy device system certificate as appropriate;
(e) If the device was not constructed or installed by a
contractor, evidence that:
(A) The { - Office - } { + State Department + } of Energy
has issued an alternative energy device system certificate for
the device; and
(B) The taxpayer has obtained all building permits required for
construction or installation of the device;
(f) A statement, signed by both the taxpayer claiming the
credit and the contractor if the device was constructed or
installed by a contractor, that the construction or installation
meets all the requirements of ORS 469.160 to 469.180 or, if the
device is a fueling station and the taxpayer is the contractor, a
statement signed by the contractor that the construction or
installation meets all of the requirements of ORS 469.160 to
469.180;
(g) The date the alternative energy device was purchased;
Enrolled Senate Bill 478 (SB 478-INTRO) Page 14
(h) The date the alternative energy device was placed in
service; and
(i) Any other information that the { - administrator of the
Office - } { + Director of the State Department + } of Energy
or the Department of Revenue determines is necessary.
(5)(a) When the { - Office - } { + State Department + } of
Energy finds that an alternative energy device can meet the
standards adopted under ORS 469.165, the { - administrator of
the Office - } { + Director of the State Department + } of
Energy may issue a contractor system certification to the person
selling and constructing or installing the alternative energy
device.
(b) Any person who sells or installs more than 12 alternative
energy devices in one year shall apply for a contractor system
certification. An application for a contractor system
certification shall be made in writing on a form provided by the
{ - Office - } { + State Department + } of Energy and shall
contain:
(A) A statement that the contractor has any license, bonding,
insurance and permit that is required for the sale and
construction or installation of the alternative energy device;
(B) A specific description of the alternative energy device,
including, but not limited to, the material, equipment and
mechanism used in the device, operating procedure, sizing and
siting method and construction or installation procedure;
(C) The addresses of three installations of the system that are
available for inspection by the { - Office - } { + State
Department + } of Energy;
(D) The range of installed costs to purchasers of the device;
(E) Any important construction, installation or operating
instructions; and
(F) Any other information that the { - Office - } { + State
Department + } of Energy determines is necessary.
(c) A new application for contractor system approval shall be
filed when there is a change in the information supplied under
paragraph (b) of this subsection.
(d) The { - Office - } { + State Department + } of Energy
may issue contractor system certificates to each contractor who
on October 3, 1989, has a valid dealer system certification,
which shall authorize the sale and installation of the same
domestic water heating alternative energy devices authorized by
the dealer certification.
(e) If the { - Office - } { + State Department + } of
Energy finds that an alternative energy device can meet the
standards adopted under ORS 469.165, the { - administrator - }
{ + Director of the State Department of Energy + }may issue an
alternative energy device system certificate to the taxpayer
constructing or installing or having an alternative energy device
constructed or installed.
(f) An application for an alternative energy device system
certificate shall be made in writing on a form provided by the
{ - Office - } { + State Department + } of Energy and shall
contain:
(A) A specific description of the alternative energy device,
including, but not limited to, the material, equipment and
mechanism used in the device, operating procedure, sizing, siting
method and construction or installation procedure;
(B) The constructed or installed cost of the device; and
(C) A statement that the taxpayer has all permits required for
construction or installation of the device.
Enrolled Senate Bill 478 (SB 478-INTRO) Page 15
(6) To claim the tax credit, the verification form described in
subsection (4) of this section shall be submitted with the
taxpayer's tax return for the year the alternative energy device
is placed in service or the immediately succeeding tax year. A
copy of the contractor's certification certificate, alternative
energy device system certificate or alternative fuel vehicle or
related equipment certificate also shall be submitted.
(7) The verification form and contractor's certificate,
alternative energy device system certificate or alternative fuel
vehicle or related equipment certificate described under this
section shall be effective for purposes of tax relief allowed
under ORS 316.116 or 317.115.
(8) The verification form and contractor's certificate
described under this section may be transferred to the first
purchaser of a dwelling or, in the case of construction or
installation of a fueling station in an existing dwelling, the
current owner, who intends to use or is using the dwelling as a
principal or secondary residence.
(9) Any person that pays the present value of the tax credit
for an alternative energy device provided under ORS 316.116 or
317.115 and 469.160 to 469.180 to the person who constructs or
installs the alternative energy device shall be entitled to claim
the credit in the manner and subject to rules adopted by the
Department of Revenue to carry out the purposes of this
subsection. The { - Office - } { + State Department + } of
Energy may establish by rule uniform discount rates to be used in
calculating the present value of a tax credit under this
subsection.
SECTION 22. ORS 469.180 is amended to read:
469.180. (1) Upon the Department of Revenue's own motion, or
upon request of the { - Office - } { + State Department + }
of Energy, the Department of Revenue may initiate proceedings for
the forfeiture of a tax credit allowed under ORS 316.116 or
317.115 if:
(a) The verification was fraudulent because of a
misrepresentation by the taxpayer or investor owned utility;
(b) The verification was fraudulent because of a
misrepresentation by the contractor;
(c) In the case of an alternative energy device other than an
alternative fuel vehicle or related equipment, the alternative
energy device has not been constructed, installed or operated in
substantial compliance with the requirements of ORS 469.160 to
469.180; or
(d) The taxpayer or investor owned utility failed to consent to
an inspection of the constructed or installed alternative energy
device by the { - Office - } { + State Department + } of
Energy after a reasonable, written request for such an inspection
by the { - Office - } { + State Department + } of Energy. This
paragraph does not apply to an alternative fuel vehicle or to
related equipment.
(2) Pursuant to the procedures for a contested case under ORS
183.310 to 183.550, the { - administrator of the Office - }
{ + Director of the State Department + } of Energy may order the
revocation of a contractor certificate issued under ORS 469.170
if the
{ - administrator - } { + director + } finds that:
(a) The contractor certificate was obtained by fraud or
misrepresentation by the contractor certificate holder;
Enrolled Senate Bill 478 (SB 478-INTRO) Page 16
(b) The contractor's performance for the alternative energy
device for which the contractor is issued a certificate under ORS
469.170 does not meet industry standards; or
(c) The contractor has misrepresented to the customer either
the tax credit program or the nature or quality of the
alternative energy device.
(3) If the tax credit allowed under ORS 316.116 or 317.115 for
the purchase, construction or installation of an alternative
energy device is ordered forfeited due to an action of the
taxpayer or investor owned utility under subsection (1)(a), (c)
or (d) of this section, all prior tax relief provided to the
taxpayer or investor owned utility shall be forfeited and the
Department of Revenue shall proceed to collect those taxes not
paid by the taxpayer or utility as a result of the tax credit
relief under ORS 316.116 or 317.115.
(4) If the tax credit for the construction or installation of
an alternative energy device is ordered forfeited due to an
action of the contractor under subsection (1)(b) of this section,
the Department of Revenue shall proceed to collect, from the
contractor, an amount equivalent to those taxes not paid by the
taxpayer or investor owned utility as a result of the tax credit
relief under ORS 316.116 or 317.115. So long as the forfeiture is
due to an action of the contractor and not to an action of the
taxpayer or utility, the assessment of such taxes shall be levied
on the contractor and not on the taxpayer or
utility. Notwithstanding ORS 314.835, the Department of Revenue
may disclose information from income tax returns or reports to
the extent such disclosure is necessary to collect amounts from
contractors under this subsection.
(5) In order to obtain information necessary to verify
eligibility and amount of the tax credit, the { - Office - }
{ + State Department + } of Energy or its representative may
inspect an alternative energy device that has been purchased,
constructed or installed. The inspection shall be made only with
the consent of the owner of the dwelling. Failure to consent to
the inspection is grounds for the forfeiture of any tax credit
relief under ORS 316.116 or 317.115. The Department of Revenue
shall proceed to collect any taxes due according to subsection
(4) of this section. For electrical generating alternative
energy devices, the { - Office - } { + State Department + } of
Energy may obtain energy consumption records for the dwelling the
device serves, for a 12-month period, in order to verify
eligibility and amount of the tax credit.
SECTION 23. ORS 469.200 is amended to read:
469.200. The total cost of a facility that receives a
preliminary certification from the { - administrator of the
Office - } { + Director of the State Department + } of Energy
for tax credits in any calendar year shall not exceed $10
million. The { - administrator - } { + director + } shall
determine the dollar amount certified for any facility and the
priority between applications for certification based upon the
criteria contained in ORS 469.185 to 469.225 and applicable rules
and standards adopted under ORS 469.185 to 469.225. The
{ - administrator - } { + director + } may consider the status
of a facility as a research, development or demonstration
facility of new renewable resource generating and conservation
technologies or a qualified transit pass contract in the
determination.
SECTION 24. ORS 469.205 is amended to read:
Enrolled Senate Bill 478 (SB 478-INTRO) Page 17
469.205. (1) Prior to erection, construction, installation or
acquisition of a proposed facility { + , + } any person may apply
to the
{ - Office - } { + State Department + } of Energy for
preliminary certification under ORS 469.210 if:
(a) The erection, construction, installation or acquisition of
the facility is to be commenced on or after October 3, 1979;
(b) The facility complies with the standards or rules adopted
by the { - administrator of the Office - } { + Director of
the State Department + } of Energy; and
(c) The applicant meets one of the following criteria:
(A) The applicant is a person to whom a tax credit has been
transferred; or
(B) The applicant will be the owner or contract purchaser of
the facility at the time of erection, construction, installation
or acquisition of the proposed facility, and:
(i) The applicant is the owner, contract purchaser or lessee of
a trade or business that plans to utilize the facility in
connection with Oregon property; or
(ii) The applicant is the owner, contract purchaser or lessee
of a trade or business that plans to lease the facility to a
person who will utilize the facility in connection with Oregon
property.
(2) An application for preliminary certification shall be made
in writing on a form prepared by the { - Office of Energy - }
{ + department + } and shall contain:
(a) A statement that the applicant or the lessee of the
applicant's facility:
(A) Intends to convert from a purchased energy source to a
renewable energy resource;
(B) Plans to acquire, construct or install a facility that will
use a renewable energy resource or solid waste instead of
electricity, petroleum or natural gas;
(C) Plans to use a renewable energy resource in the generation
of electricity for sale or to replace an existing or proposed use
of an existing source of electricity;
(D) Plans to acquire, construct or install a facility that
substantially reduces the consumption of purchased energy;
(E) Plans to acquire, construct or install equipment for
recycling as defined in ORS 469.185 (8);
(F) Plans to acquire an alternative fuel vehicle or to convert
an existing vehicle to an alternative fuel vehicle;
(G) Plans to acquire, construct or install a facility necessary
to operate alternative fuel vehicles;
(H) Plans to acquire transit passes for use by individuals
specified by the applicant;
(I) Plans to acquire, construct or install a transportation
facility;
(J) Plans to acquire a sustainable building practices facility;
or
(K) Plans to acquire a car sharing facility and operate a car
sharing program.
(b) A detailed description of the proposed facility and its
operation and information showing that the facility will operate
as represented in the application.
(c) Information on the amount by which consumption of
electricity, petroleum or natural gas by the applicant or the
lessee of the applicant's facility will be reduced, and on the
amount of energy that will be produced for sale, as the result of
using the facility or, if applicable, information about the
Enrolled Senate Bill 478 (SB 478-INTRO) Page 18
expected level of sustainable building practices facility
performance.
(d) The projected cost of the facility.
(e) If applicable, a copy of the proposed qualified transit
pass contract, transportation services contract or contract for
lease of parking spaces for a car sharing facility.
(f) Any other information the { - administrator of Office of
Energy - } { + director + } considers necessary to determine
whether the proposed facility is in accordance with the
provisions of ORS 469.185 to 469.225, and any applicable rules or
standards adopted by the { - administrator - } { +
director + }.
(3) An application for preliminary certification shall be
accompanied by a fee established under ORS 469.217. The
{ - administrator - } { + director + } may refund the fee if
the application for certification is rejected.
(4) The { - administrator - } { + director + } may allow an
applicant to file the preliminary application after the start of
erection, construction, installation or acquisition of the
facility if the
{ - administrator - } { + director + } finds:
(a) Filing the application before the start of erection,
construction, installation or acquisition is inappropriate
because special circumstances render filing earlier unreasonable;
and
(b) The facility would otherwise qualify for tax credit
certification pursuant to ORS 469.185 to 469.225.
(5) A preliminary certification of a sustainable building
practices facility shall be applied for and issued as prescribed
by the { - Office of Energy - } { + department + } by rule.
SECTION 25. ORS 469.210 is amended to read:
469.210. (1) The { - administrator of the Office - }
{ + Director of the State Department + } of Energy may require
the submission of plans, specifications and contract terms, and
after examination thereof, may request corrections and revisions
of the plans, specifications and terms.
(2) If the { - administrator - } { + director + }
determines that the proposed acquisition, erection, construction
or installation is technically feasible and should operate in
accordance with the representations made by the applicant, and is
in accordance with the provisions of ORS 469.185 to 469.225 and
any applicable rules or standards adopted by the
{ - administrator - } { + director + }, the
{ - administrator - } { + director + } shall issue a
preliminary certificate approving the acquisition, erection,
construction or installation of the facility. If the
{ - administrator - } { + director + } determines that the
acquisition, erection, construction or installation does not
comply with the provisions of ORS 469.185 to 469.225 and
applicable rules and standards, the { - administrator - }
{ + director + } shall issue an order denying certification.
SECTION 26. ORS 469.215 is amended to read:
469.215. (1) No final certification shall be issued by the
{ - administrator of the Office - } { + Director of the State
Department + } of Energy under this section unless the facility
was acquired, erected, constructed or installed under a
preliminary certificate of approval issued under ORS 469.210 and
in accordance with the applicable provisions of ORS 469.185 to
469.225 and any applicable rules or standards adopted by the
{ - administrator - } { + director + }.
Enrolled Senate Bill 478 (SB 478-INTRO) Page 19
(2) Any person may apply to the { - Office - } { + State
Department + } of Energy for final certification of a facility:
(a) If the { - office - } { + department + } issued
preliminary certification for the facility under ORS 469.210; and
(b)(A) After completion of erection, construction, installation
or acquisition of the proposed facility or, if the facility is a
qualified transit pass contract, after entering into the contract
with a transportation provider; or
(B) After transfer of the facility, as provided in ORS 315.354
(4).
(3) An application for final certification shall be made in
writing on a form prepared by the { - Office of Energy - }
{ + department + } and shall contain:
(a) A statement that the conditions of the preliminary
certification have been complied with;
(b) The actual cost of the facility certified to by a certified
public accountant who is not an employee of the applicant or, if
the actual cost of the facility is less than $50,000, copies of
receipts for purchase and installation of the facility;
(c) A statement that the facility is in operation or, if not in
operation, that the applicant has made every reasonable effort to
make the facility operable; and
(d) Any other information determined by the
{ - administrator - } { + director + } to be necessary prior
to issuance of a final certificate, including inspection of the
facility by the { - Office of Energy - } { + department + }.
(4) The { - administrator - } { + director + } shall act on
an application for certification before the 60th day after the
filing of the application under this section. The
{ - administrator - } { + director + }, after consultation
with the Public Utility Commission, may issue the certificate
together with such conditions as the
{ - administrator - } { + director + } determines are
appropriate to promote the purposes of this section and ORS
315.354, 469.185, 469.200, 469.205 and 469.878. The action of the
{ - administrator - } { + director + } shall include
certification of the actual cost of the facility. However, in no
event shall the { - administrator - } { + director + }
certify an amount for tax credit purposes which is more than 10
percent in excess of the amount approved in the preliminary
certificate issued for the facility.
(5) If the { - administrator - } { + director + } rejects
an application for final certification, or certifies a lesser
actual cost of the facility than was claimed in the application,
the { - administrator - } { + director + } shall send to the
applicant written notice of the action, together with a statement
of the findings and reasons therefor, by certified mail, before
the 60th day after the filing of the application. Failure of the
{ - administrator - } { + director + } to act constitutes
rejection of the application.
(6) Upon approval of an application for final certification of
a facility, the { - administrator - } { + director + } shall
certify the facility. Each certificate shall bear a separate
serial number for each device. Where one or more devices
constitute an operational unit, the { - administrator - }
{ + director + } may certify the operational unit under one
certificate.
SECTION 27. ORS 469.225 is amended to read:
469.225. (1) Under the procedures for a contested case under
ORS 183.310 to 183.550, the { - administrator of the Office - }
Enrolled Senate Bill 478 (SB 478-INTRO) Page 20
{ + Director of the State Department + } of Energy may order the
revocation of the certificate issued under ORS 469.215 if the
{ - administrator - } { + director + } finds that:
(a) The certification was obtained by fraud or
misrepresentation; or
(b) The holder of the certificate has failed substantially to
construct or to make every reasonable effort to operate the
facility in compliance with the plans, specifications and
procedures in such certificate.
(2) As soon as the order of revocation under this section
becomes final, the { - administrator - } { + director + }
shall notify the Department of Revenue of such order.
(3) If the certificate is ordered revoked pursuant to
subsection (1)(a) of this section, all prior tax credits provided
to the holder of the certificate by virtue of such certificate
shall be forfeited and upon notification under subsection (2) of
this section the Department of Revenue immediately shall proceed
to collect those taxes not paid by the certificate holder as a
result of the tax credits provided to the holder under ORS
315.354. The Department of Revenue shall have the benefit of all
laws of this state pertaining to the collection of income and
excise taxes. No assessment of such taxes shall be necessary and
no statute of limitation shall preclude the collection of such
taxes.
(4) If the certificate is ordered revoked pursuant to
subsection (1)(b) of this section, the certificate holder shall
be denied any further relief under ORS 315.354 in connection with
such facility from and after the date that the order of
revocation becomes final.
SECTION 28. 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) - } { + (1) + } '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) - } { + (2) + } '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) - } { + (3) + } '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) - } { + (4) + } '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.
{ - (6) - } { + (5) + } 'Combustion turbine power plant'
means a thermal power plant consisting of one or more fuel-fired
Enrolled Senate Bill 478 (SB 478-INTRO) Page 21
combustion turbines and any associated waste heat combined cycle
generators.
{ - (7) - } { + (6) + } 'Construction' means work performed
on a site, excluding surveying, exploration or other activities
to define or characterize the site, the cost of which exceeds
$250,000.
{ - (8) - } { + (7) + } 'Council' means the Energy Facility
Siting Council established under ORS 469.450.
{ + (8) 'Department' means the State Department of Energy
created under ORS 469.030.
(9) 'Director' means the Director of the State Department of
Energy appointed under ORS 469.040. + }
{ - (9) - } { + (10) + } '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.
{ - (10)(a) - } { + (11)(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) 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
Enrolled Senate Bill 478 (SB 478-INTRO) Page 22
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.
{ - (11) - } { + (12) + } '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 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.
{ - (12) - } { + (13) + } '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.
{ - (13) - } { + (14) + } 'Facility' means an energy
facility together with any related or supporting facilities.
{ - (14) - } { + (15) + } 'Geothermal reservoir' means an
aquifer or aquifers containing a common geothermal fluid.
{ - (15) - } { + (16) + } 'Local government' means a city
or county.
{ - (16) - } { + (17) + } 'Nominal electric generating
capacity' means the maximum net electric power output of an
Enrolled Senate Bill 478 (SB 478-INTRO) Page 23
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.
{ - (17) - } { + (18) + } '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.
{ - (18) - } { + (19) + } '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 - } { + that + } are part of a thermal
power plant.
{ - (19) - } { + (20) + } '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.
{ - (20) 'Office of Energy' means the Office of Energy
created under ORS 469.030. - }
(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.
(22) 'Project order' means the order, including any amendments,
issued by the { - Office - } { + State Department + } of
Energy under ORS 469.330.
(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.
(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.
Enrolled Senate Bill 478 (SB 478-INTRO) Page 24
(25) 'Site' means any proposed location of an energy facility
and related or supporting facilities.
(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.
(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.
(28) 'Transportation' means the transport within the borders of
the State of Oregon of radioactive material destined for or
derived from any location.
(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.
(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.
(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 29. ORS 469.310 is amended to read:
469.310. In the interests of the public health and the welfare
of the people of this state, it is the declared public policy of
this state that the siting, construction and operation of energy
facilities shall be accomplished in a manner consistent with
protection of the public health and safety and in compliance with
the energy policy and air, water, solid waste, land use and other
environmental protection policies of this state. It is,
therefore, the purpose of ORS 469.300 to 469.563, 469.590 to
469.619, 469.930 and 469.992 to exercise the jurisdiction of the
State of Oregon to the maximum extent permitted by the United
Enrolled Senate Bill 478 (SB 478-INTRO) Page 25
States Constitution and to establish in cooperation with the
federal government a comprehensive system for the siting,
monitoring and regulating of the location, construction and
operation of all energy facilities in this state. It is
furthermore the policy of this state, notwithstanding ORS 469.010
(2)(f) and { + the definition of cost-effective in + } 469.020
{ - (4) - } , that the need for new generating facilities, as
defined in ORS 469.503, is sufficiently addressed by reliance on
competition in the market rather than by consideration of
cost-effectiveness and shall not be a matter requiring
determination by the Energy Facility Siting Council in the siting
of a generating facility, as defined in ORS 469.503.
SECTION 30. ORS 469.421 is amended to read:
469.421. (1) Subject to the provisions of ORS 469.441, any
person submitting a notice of intent, a request for exemption
under ORS 469.320, a request for an expedited review under ORS
469.370, a request for an expedited review under ORS 469.373, a
request for the { - Office - } { + State Department + } of
Energy to approve a pipeline under ORS 469.405 (3), an
application for a site certificate or a request to amend a site
certificate shall pay all expenses incurred by the Energy
Facility Siting Council, the
{ - Office - } { + State Department + } of Energy and the
Oregon Department of Administrative Services related to the
review and decision of the council. These expenses may include
legal expenses, expenses incurred in processing and evaluating
the application, issuing a final order or site certificate,
commissioning an independent study by a contractor, state agency
or local government under ORS 469.360, and changes to the rules
of the council that are specifically required and related to the
particular site certificate.
(2) Every person submitting a notice of intent to file for a
site certificate, a request for exemption or a request for
expedited review shall submit the fee required under the fee
schedule established under ORS 469.441 to the { - Office - }
{ + State Department + } of Energy when the notice or request is
submitted to the council. To the extent possible, the full cost
of the evaluation shall be paid from the fee paid under this
subsection. However, if costs of the evaluation exceed the fee,
the person submitting the notice or request shall pay any excess
costs shown in an itemized statement prepared by the council. In
no event shall the council incur evaluation expenses in excess of
110 percent of the fee initially paid unless the council provides
prior notification to the applicant and a detailed projected
budget the council believes necessary to complete the project. If
costs are less than the fee paid, the excess shall be refunded to
the person submitting the notice or request.
(3) Before submitting a site certificate application, the
applicant shall request from the { - Office - } { + State
Department + } of Energy an estimate of the costs expected to be
incurred in processing the application. The { - Office of
Energy - } { + department + } shall inform the applicant of
that amount and require the applicant to make periodic payments
of such costs pursuant to a cost reimbursement agreement. The
cost reimbursement agreement shall provide for payment of 25
percent of the estimated costs when the applicant submits the
application. If costs of the evaluation exceed the estimate, the
applicant shall pay any excess costs shown in an itemized
statement prepared by the council. In no event shall the council
incur evaluation expenses in excess of 110 percent of the fee
Enrolled Senate Bill 478 (SB 478-INTRO) Page 26
initially estimated unless the council provided prior
notification to the applicant and a detailed projected budget the
council believes is necessary to complete the project. If costs
are less than the fee paid, the council shall refund the excess
to the applicant.
(4) Any person who is delinquent in the payment of fees under
subsections (1) to (3) of this section shall be subject to the
provisions of subsection (11) of this section.
(5) Subject to the provisions of ORS 469.441, each holder of a
certificate shall pay an annual fee, due every July 1 following
issuance of a site certificate. For each fiscal year, upon
approval of the { - Office - } { + State Department + } of
Energy's budget authorization by a regular session of the
Legislative Assembly or as revised by the Emergency Board, the
{ - administrator of the Office - } { + Director of the State
Department + } of Energy promptly shall enter an order
establishing an annual fee based on the amount of revenues that
the { - administrator - } { + director + } estimates is
needed to fund the cost of { - assuring - } { + ensuring + }
that the facility is being operated consistently with the terms
and conditions of the site certificate, any order issued by the
{ - Office of Energy - } { + department + } under ORS 469.405
(3) and any applicable health or safety standards. In determining
this cost, the { - administrator - } { + director + } shall
include both the actual direct cost to be incurred by the
council, the { - Office - } { + State Department + } of
Energy and the Oregon Department of Administrative Services to
{ - assure - } { + ensure + } that the facility is being
operated consistently with the terms and conditions of the site
certificate, any order issued by the
{ - Office - } { + State Department + } of Energy under ORS
469.405 (3) and any applicable health or safety standards, and
the general costs to be incurred by the council, the
{ - Office - } { + State Department + } of Energy and the
Oregon Department of Administrative Services to { - assure - }
{ + ensure + } that all certificated facilities are being
operated consistently with the terms and conditions of the site
certificates, any orders issued by the { - Office - }
{ + State Department + } of Energy under ORS 469.405 (3) and any
applicable health or safety standards that cannot be allocated to
an individual, licensed facility. Not more than 35 percent of the
annual fee charged each facility shall be for the recovery of
these general costs. The fees for direct costs shall reflect the
size and complexity of the facility and its certificate
conditions.
(6) Each holder of a site certificate executed after July 1 of
any fiscal year shall pay a fee for the remaining portion of the
year. The amount of the fee shall be set at the cost of
regulating the facility during the remaining portion of the year
determined in the same manner as the annual fee.
(7) When the actual costs of regulation incurred by the
council, the { - Office - } { + State Department + } of
Energy and the Oregon Department of Administrative Services for
the year, including that portion of the general regulation costs
that have been allocated to a particular facility, are less than
the annual fees for that facility, the unexpended balance shall
be refunded to the site certificate holder. When the actual
regulation costs incurred by the council, the { - Office - }
{ + State Department + } of Energy and the Oregon Department of
Administrative Services for the year, including that portion of
Enrolled Senate Bill 478 (SB 478-INTRO) Page 27
the general regulation costs that have been allocated to a
particular facility, are projected to exceed the annual fee for
that facility, the { - administrator - } { + Director of the
State Department of Energy + } may issue an order revising the
annual fee.
(8) In addition to any other fees required by law, each energy
resource supplier shall pay to the { - Office - } { + State
Department + } of Energy annually its share of an assessment to
fund the activities of the Energy Facility Siting Council, the
Oregon Department of Administrative Services and the
{ - Office - } { + State Department + } of Energy, determined
by the { - administrator - } { + Director of the State
Department of Energy + } in the following manner:
(a) Upon approval of the budget authorization of the Energy
Facility Siting Council, the Oregon Department of Administrative
Services and the { - Office - } { + State Department + } of
Energy by a regular session of the Legislative Assembly, the
{ - administrator - } { + Director of the State Department of
Energy + } shall promptly enter an order establishing the amount
of revenues required to be derived from an assessment pursuant to
this subsection in order to fund the activities of the Energy
Facility Siting Council, the Oregon Department of Administrative
Services and the { - Office - } { + State Department + } of
Energy, including those enumerated in ORS 469.030 and others
authorized by law, for the first fiscal year of the forthcoming
biennium. On or before June 1 of each even-numbered year, the
{ - administrator - } { + Director of the State Department of
Energy + }shall enter an order establishing the amount of
revenues required to be derived from an assessment pursuant to
this subsection in order to fund the activities of the Energy
Facility Siting Council, the Oregon Department of Administrative
Services and the { - Office - } { + State Department + } of
Energy, including those enumerated in ORS 469.030 and others
authorized by law, for the second fiscal year of the biennium
which order shall take into account any revisions to the biennial
budget of the Energy Facility Siting Council, the
{ - Office - } { + State Department + } of Energy and the
Oregon Department of Administrative Services made by the
Emergency Board or by a special session of the Legislative
Assembly subsequent to the most recently concluded regular
session of the Legislative Assembly.
(b) Each order issued by the { - administrator - }
{ + director + } pursuant to paragraph (a) of this subsection
shall allocate the aggregate assessment set forth therein to
energy resource suppliers in accordance with paragraph (c) of
this subsection.
(c) The amount assessed to an energy resource supplier shall be
based on the ratio which that supplier's annual gross operating
revenue derived within this state in the preceding calendar year
bears to the total gross operating revenue derived within this
state during that year by all energy resource suppliers. The
assessment against an energy resource supplier shall not exceed
five-tenths of one percent of the supplier's gross operating
revenue derived within this state in the preceding calendar year.
The { - administrator - } { + director + } shall exempt from
payment of an assessment any individual energy resource supplier
whose calculated share of the annual assessment is less than
$250.
(d) The { - administrator - } { + director + } shall send
each energy resource supplier subject to assessment pursuant to
Enrolled Senate Bill 478 (SB 478-INTRO) Page 28
this subsection a copy of each order issued, by registered or
certified mail. The amount assessed to the energy resource
supplier pursuant to the order shall be considered to the extent
otherwise permitted by law a government-imposed cost and
recoverable by the energy resource supplier as a cost included
within the price of the service or product supplied.
(e) The amounts assessed to individual energy resource
suppliers pursuant to paragraph (c) of this subsection shall be
paid to the { - Office - } { + State Department + } of Energy
as follows:
(A) Amounts assessed for the first fiscal year of a biennium
shall be paid not later than 90 days following the close of the
regular session of the Legislative Assembly; and
(B) Amounts assessed for the second fiscal year of a biennium
shall be paid not later than July 1 of each even-numbered year.
(f) An energy resource supplier shall provide the
{ - administrator - } { + director + }, on or before May 1 of
each year, a verified statement showing its gross operating
revenues derived within the state for the preceding calendar
year. The statement shall be in the form prescribed by the
{ - administrator - } { + director + } and is subject to audit
by the { - administrator - } { + director + }. The statement
shall include an entry showing the total operating revenue
derived by petroleum suppliers from fuels sold that are subject
to the requirements of section 3, Article IX of the Oregon
Constitution, ORS 319.020 with reference to aircraft fuel and
motor vehicle fuel, and ORS 319.530. The { - administrator - }
{ + director + } may grant an extension of not more than 15 days
for the requirements of this subsection if:
(A) The energy supplier makes a showing of hardship caused by
the deadline;
(B) The energy supplier provides reasonable assurance that the
energy supplier can comply with the revised deadline; and
(C) The extension of time does not prevent the Energy Facility
Siting Council, the Oregon Department of Administrative Services
or the { - Office - } { + State Department + } of Energy from
fulfilling their statutory responsibilities.
(g) As used in this section:
(A) 'Energy resource supplier' means an electric utility,
natural gas utility or petroleum supplier supplying electricity,
natural gas or petroleum products in Oregon.
(B) 'Gross operating revenue' means gross receipts from sales
or service made or provided within this state during the regular
course of the energy supplier's business, but does not include
either revenue derived from interutility sales within the state
or revenue received by a petroleum supplier from the sale of
fuels that are subject to the requirements of section 3, Article
IX of the Oregon Constitution, ORS 319.020 or 319.530.
(C) 'Petroleum supplier' has the meaning given that term in ORS
469.020.
(h) In determining the amount of revenues { - which - }
{ + that + } must be derived from any class of energy resource
suppliers by assessment pursuant to this subsection, the
{ - administrator - } { + director + } shall take into account
all other known or readily ascertainable sources of revenue to
the Energy Facility Siting Council, the Oregon Department of
Administrative Services and the
{ - Office - } { + State Department + } of Energy, including,
but not limited to, fees imposed under this section and federal
funds, and may take into account any funds previously assessed
Enrolled Senate Bill 478 (SB 478-INTRO) Page 29
pursuant to ORS 469.420 (1979 Replacement Part) or section 7,
chapter 792, Oregon Laws 1981.
(i) Orders issued by the { - administrator - }
{ + director + } pursuant to this section shall be subject to
judicial review under ORS 183.484. The taking of judicial review
shall not operate to stay the obligation of an energy resource
supplier to pay amounts assessed to it on or before the statutory
deadline.
(9)(a) In addition to any other fees required by law, each
operator of a nuclear fueled thermal power plant or nuclear
installation within this state shall pay to the { - Office - }
{ + State Department + } of Energy annually on July 1, an
assessment in an amount determined by the { - administrator - }
{ + director + } to be necessary to fund the activities of the
state and the counties associated with emergency preparedness for
a nuclear fueled thermal power plant or nuclear installation. The
assessment shall not exceed $461,250 per year. Moneys collected
as assessments under this subsection are continuously
appropriated to the { - Office - } { + State Department + }
of Energy for this purpose.
(b) The { - Office - } { + State Department + } of Energy
shall maintain and shall cause other state agencies and counties
to maintain time and billing records for the expenditure of any
fees collected from an operator of a nuclear fueled thermal power
plant under paragraph (a) of this subsection.
(10) Reactors operated by a college, university or graduate
center for research purposes and electric utilities not connected
to the Northwest Power Grid are exempt from the fee requirements
of subsections (5), (8) and (9) of this section.
(11)(a) All fees assessed by the { - administrator - }
{ + director + } against holders of site certificates for
facilities that have an installed capacity of 500 megawatts or
greater may be paid in several installments, the schedule for
which shall be negotiated between the { - administrator - }
{ + director + } and the site certificate holder.
(b) Energy resource suppliers or applicants or holders of a
site certificate who fail to pay a fee provided under subsections
(1) to (9) of this section or the fees required under ORS 469.360
after it is due and payable shall pay, in addition to that fee, a
penalty of two percent of the fee a month for the period that the
fee is past due. Any payment made according to the terms of a
schedule negotiated under paragraph (a) of this subsection shall
not be considered past due. The { - administrator - }
{ + director + } may bring an action to collect an unpaid fee or
penalty in the name of the State of Oregon in a court of
competent jurisdiction. The court may award reasonable attorney
fees to the { - administrator - } { + director + } if the
{ - administrator - } { + director + } prevails in an action
under this subsection. The court may award reasonable attorney
fees to a defendant who prevails in an action under this
subsection if the court determines that the
{ - administrator - } { + director + } had no objectively
reasonable basis for asserting the claim or no reasonable basis
for appealing an adverse decision of the trial court.
SECTION 31. ORS 469.540 is amended to read:
469.540. (1) In instances where the { - administrator of the
Office - } { + Director of the State Department + } of Energy
determines either from the monitoring or surveillance of the
{ - administrator - } { + director + } that there is danger of
violation of a safety standard adopted under ORS 469.501 from the
Enrolled Senate Bill 478 (SB 478-INTRO) Page 30
continued operation of a plant or installation, the
{ - administrator - } { + director + } may order temporary
reductions or curtailment of operations until such time as proper
safety precautions can be taken.
(2) An order of reduction or curtailment shall be entered only
after notice to the thermal power plant or installation and only
after a reasonable time, considering the extent of the danger,
has been allowed for repairs or other alterations that would
bring the plant or installation into conformity with applicable
safety standards.
(3) The { - administrator - } { + director + } may order
compliance or impose other safety conditions on the transport or
disposal of radioactive materials or wastes if the
{ - administrator - } { + director + } believes that ORS
469.300 to 469.619 and 469.930 or rules adopted pursuant thereto
are being violated or are in danger of being violated.
SECTION 32. ORS 469.550 is amended to read:
469.550. (1) Whenever in the judgment of the
{ - administrator of the Office - } { + Director of the State
Department + } of Energy from the results of monitoring or
surveillance of operation of any nuclear-fueled thermal power
plant or nuclear installation or based upon information from the
Energy Facility Siting Council there is cause to believe that
there is clear and immediate danger to the public health and
safety from continued operation of the plant or installation, the
{ - administrator - } { + director + } shall, in cooperation
with appropriate state and federal agencies, without hearing or
prior notice, order the operation of the plant halted by service
of the order on the plant superintendent or other person charged
with the operation thereof. Within 24 hours after such order, the
{ - administrator - } { + director + } must appear in the
appropriate circuit court to petition for the relief afforded
under ORS 469.563 and may commence proceedings for revocation of
the site certificate if grounds therefor exist.
(2) Whenever, in the judgment of the { - administrator - }
{ + director + } based upon monitoring or surveillance by the
{ - administrator - } { + director + }, or based upon
information from the council, there is cause to believe that
there is clear and immediate danger to the public health and
safety from the accumulation or storage of radioactive material
located at a nuclear-fueled thermal power plant or a nuclear
installation, the { - administrator - } { + director + }
shall in cooperation with appropriate state and federal agencies,
without hearing or prior notice, order such accumulation,
storage, disposal or transportation halted or immediately impose
safety precautions by service of the order on the officer
responsible for the accumulation, storage, disposal or
transportation. Within 24 hours after such an order, the
{ - administrator - } { + director + } must appear in the
appropriate circuit court to petition for the relief afforded
under ORS 469.563.
(3)(a) If the { - administrator - } { + director + }
believes there is a clear and immediate danger to public health
or safety, the
{ - administrator - } { + director + } shall halt the
transportation or disposal of radioactive material or waste.
(b) The { - administrator - } { + director + } shall serve
an order to halt the transportation or disposal of radioactive
material on the person responsible for the transport or disposal.
The order may be served without prior hearing or notice.
Enrolled Senate Bill 478 (SB 478-INTRO) Page 31
(c) Within 24 hours after the { - administrator - }
{ + director + } serves an order under paragraph (b) of this
subsection, the
{ - administrator - } { + director + } shall petition the
appropriate circuit court for relief under ORS 469.563.
(4) The Governor, in the absence of the { - administrator - }
{ + director + }, may issue orders and petition for judicial
relief as provided in this section.
SECTION 33. ORS 469.566 is amended to read:
469.566. (1) The Legislative Assembly finds and declares that
Oregon is not assured that the United States Department of Energy
will:
(a) Consider the unique features of Oregon and the needs of the
people of Oregon when assessing the Hanford Nuclear Reservation
as a potentially suitable location for the long-term disposal of
high-level radioactive waste; or
(b) { - Insure - } { + Ensure + } adequate opportunity for
public participation in the assessment process.
(2) Over the past 45 years, the United States has developed and
produced nuclear weapons at the Hanford Nuclear Reservation and
during this period large quantities of radioactive hazardous and
chemical wastes have accumulated at the Hanford Nuclear
Reservation, and the waste sites pose an immediate and serious
long-term threat to the environment and to public health and
safety.
(3) Therefore, the Legislative Assembly declares that it is in
the best interests of the State of Oregon to establish an Oregon
Hanford { - Waste - } { + Cleanup + } Board to serve as a
focus for the State of Oregon in the development of a state
policy to be presented to the federal government, to
{ - insure - } { + ensure + } a maximum of public
participation in the assessment and cleanup process.
SECTION 34. ORS 469.569 is amended to read:
469.569. As used in ORS 469.566 to 469.583:
(1) 'Board' means the Oregon Hanford { - Waste - }
{ + Cleanup + } Board.
(2) 'High-level radioactive waste' means fuel or fission
products from a commercial nuclear reactor after irradiation that
is packaged and prepared for disposal.
(3) 'United States Department of Energy' means the federal
Department of Energy established under 42 U.S.C.A. 7131 or any
successor agency assigned responsibility for the long-term
disposal of high-level radioactive waste.
SECTION 35. ORS 469.579 is amended to read:
469.579. The Oregon Hanford { - Waste - } { + Cleanup + }
Board may accept moneys from the United States Department of
Energy, other federal agencies, the State of Washington and from
gifts and grants received from any other person. Such moneys are
continuously appropriated to the board for the purpose of
carrying out the provisions of ORS 469.566 to 469.583. The board
shall establish by rule a method for disbursing such funds as
necessary to carry out the provisions of ORS 469.566 to 469.583,
including but not limited to awarding contracts for studies
pertaining to the long-term disposal of radioactive waste or
other issues related to the Hanford Nuclear Reservation. Any
disbursement of funds by the board or the lead agency shall be
consistent with the policy established by the board under ORS
469.573.
SECTION 36. ORS 469.605 is amended to read:
Enrolled Senate Bill 478 (SB 478-INTRO) Page 32
469.605. (1) No person shall ship or transport radioactive
material identified by the Energy Facility Siting Council by rule
as posing a significant hazard to public health and safety or the
environment if improperly transported into or within the State of
Oregon without first obtaining a permit from the { - Office - }
{ + State Department + } of Energy.
(2) Such permit shall be issued for a period not to exceed one
year and shall be valid for all shipments within that period of
time unless specifically limited by permit conditions.
(3) Application for a permit under this section shall be made
in a form and manner prescribed by the { - administrator of the
Office - } { + Director of the State Department + } of Energy
and may include:
(a) A description of the kind, quantity and radioactivity of
the material to be transported;
(b) A description of the route or routes proposed to be taken
and the transport schedule;
(c) A description of any mode of transportation; and
(d) Other information required by the { - administrator - }
{ + director + } to evaluate the application.
(4) The { - administrator - } { + director + } shall
collect a fee from all applicants for permits under this section
in an amount reasonably calculated to provide for the costs to
the { - Office of Energy - } { + department + } of performing
the duties of the { - Office of Energy - } { + department + }
under ORS 469.550 (3), 469.563, 469.603 to 469.619 and 469.992.
Fees collected under this subsection shall be deposited in the
{ - Office - } { + State Department + } of Energy Account
established under ORS 469.120.
(5) The { - administrator - } { + director + } shall issue
a permit only if the application demonstrates that the proposed
transportation will comply with all applicable rules adopted
under ORS 469.603 to 469.619 and if the proposed route complies
with federal law as provided in ORS 469.606.
(6) The { - administrator - } { + director + } may delegate
the authority to issue permits for the transportation of
radioactive material to the Department of Transportation. In
exercising such authority, the Department of Transportation shall
comply with the applicable provisions of ORS 469.603 to 469.619
and rules adopted by the
{ - administrator - } { + director + } or the Energy Facility
Siting Council under ORS 469.603 to 469.619. Permits issued by
the Department of Transportation under this subsection shall be
enforced according to the provisions of ORS 825.258. The
{ - administrator - } { + director + } also may delegate other
authority granted under ORS 469.605 to 469.619 to other state
agencies if the delegation will maintain or enhance the quality
of the transportation safety program.
SECTION 37. ORS 469.606 is amended to read:
469.606. (1) Upon receipt of an application required under ORS
469.605 for which radioactive material is proposed to be
transported by highway, the { - Office - } { + State
Department + } of Energy shall confer with the following persons
to determine whether the proposed route is safe, and complies
with applicable routing requirements of the United States
Department of Transportation and the United States Nuclear
Regulatory Commission:
(a) The Oregon Department of Transportation, or a designee of
the Oregon Department of Transportation;
Enrolled Senate Bill 478 (SB 478-INTRO) Page 33
(b) The Energy Facility Siting Council, or a designee of the
Energy Facility Siting Council; and
(c) The Oregon Transportation Commission, or a designee of the
Oregon Transportation Commission.
(2) If, after consultation with the persons set forth in
subsection (1) of this section, a determination is made that the
proposed route is not the best and safest route for transporting
the material, the { - administrator of the Office - }
{ + Director of the State Department + } of Energy shall deny
the application except as provided in subsection (3) of this
section.
(3) If the applicant is prohibited by a statute, rule or other
action of an adjacent state or a political subdivision in an
adjacent state from using the route that complies with federal
law, the { - administrator - } { + director + }:
(a) Shall petition the United States Department of
Transportation for an administrative determination of preemption
of the ban, pursuant to section 13 of the Hazardous Materials
Transportation Uniform Safety Act of 1990, P.L. 101-615.
(b) May issue a permit as provided under ORS 469.605 (5) with
conditions necessary to { - assure - } { + ensure + } safe
transport over a route available to the applicant, until the
United States Department of Transportation determines whether the
prohibition by the other state or political subdivision is
preempted.
SECTION 38. ORS 469.609 is amended to read:
469.609. Annually, the { - administrator of the Office - }
{ + Director of the State Department + } of Energy shall report
to interested state agencies and all local government agencies
trained under ORS 469.611 on shipment of radioactive material
made during the preceding year. The { - administrator's - }
{ + director's + } report shall include:
(1) The type and quantity of material transported;
(2) Any mode of transportation used;
(3) The route or routes taken; and
(4) Any other information at the discretion of the
{ - administrator - } { + director + }.
SECTION 39. ORS 469.611 is amended to read:
469.611. Notwithstanding ORS chapter 401:
(1) The { - administrator of the Office - } { + Director of
the State Department + } of Energy shall coordinate emergency
preparedness and response with appropriate agencies of government
at the local, state and national levels to { - assure - }
{ + ensure + } that the response to a radioactive material
transportation accident is swift and appropriate to minimize
damage to any person, property or wildlife. This program shall
include the preparation of localized plans setting forth agency
responsibilities for on-scene response.
(2) The { - administrator - } { + director + } shall:
(a) Apply for federal funds as available to train, equip and
maintain an appropriate response capability at the state and
local level; and
(b) Request all available training and planning materials.
(3) The Department of Human Services shall maintain a trained
and equipped radiation emergency response team available at all
times for dispatch to any radiological emergency. Before arrival
of the department at the scene of a radiological accident, the
{ - administrator - } { + Director of the State Department of
Energy + } may designate other technical advisors to work with
the local response agencies.
Enrolled Senate Bill 478 (SB 478-INTRO) Page 34
(4) The Department { + of Human Services + } shall assist the
{ - administrator - } { + Director of the State Department of
Energy + } to
{ - insure - } { + ensure + } that all emergency services
organizations along major transport routes for radioactive
materials are offered training and retraining in the proper
procedures for identifying and dealing with a radiological
accident pending the arrival of persons with technical expertise.
The Department { + of Human Services + } shall report annually
to the { - administrator - } { + Director of the State
Department of Energy + } on training of emergency response
personnel.
SECTION 40. ORS 469.613 is amended to read:
469.613. (1) Any person obtaining a permit under ORS 469.605
shall establish and maintain any records, make any reports and
provide any information as the Energy Facility Siting Council may
by rule or order require to assure compliance with the conditions
of the permit or other rules affecting the transportation of
radioactive materials and submit the reports and make the records
and information available at the request of the
{ - administrator of the Office - } { + Director of the State
Department + } of Energy. Any requirement imposed by the council
under this subsection shall be consistent with regulations of the
United States Department of Transportation and the United States
Nuclear Regulatory Commission.
(2) The { - administrator - } { + director + } may
authorize any employee or agent of the { - administrator - }
{ + director + } to enter upon, inspect and examine, at
reasonable times and in a reasonable manner for the purpose of
administration or enforcement of the provisions of ORS 469.550,
469.563, 469.603 to 469.619 and 469.992 or rules adopted
thereunder, the records and property of persons within this state
who have applied for permits under ORS 469.605.
(3) The { - administrator - } { + director + } shall
provide for:
(a) The inspection of each highway route controlled shipment
prior to or upon entry of the shipment into this state or at the
point of origin for the transportation of highway route
controlled shipments within the state; and
(b) Inspection of a representative sample of shipments
containing material required to bear a radioactive placard as
specified by federal regulations.
SECTION 41. ORS 469.631 is amended to read:
469.631. As used in ORS 469.631 to 469.645:
{ - (1) 'Administrator' means the administrator of the Office
of Energy. - }
{ - (2) - } { + (1) + } 'Cash payment' means a payment made
by the investor-owned utility to the dwelling owner or to the
contractor on behalf of the dwelling owner for energy
conservation measures.
{ - (3) - } { + (2) + } 'Commercial lending institution'
means any bank, mortgage banking company, trust company, savings
bank, savings and loan association, credit union, national
banking association, federal savings and loan association or
federal credit union maintaining an office in this state.
{ - (4) - } { + (3) + } 'Commission' means the Public
Utility Commission of Oregon.
{ - (5) - } { + (4) + } 'Cost-effective' means that an
energy conservation measure that provides or saves a specific
amount of energy during its life cycle results in the lowest
Enrolled Senate Bill 478 (SB 478-INTRO) Page 35
present value of delivered energy costs of any available
alternative. However, the present value of the delivered energy
costs of an energy conservation measure shall not be treated as
greater than that of a nonconservation energy resource or
facility unless that cost is greater than 110 percent of the
present value of the delivered energy cost of the nonconservation
energy resource or facility.
{ - (6) - } { + (5) + } 'Dwelling' means real or personal
property within the state inhabited as the principal residence of
a dwelling owner or a tenant. 'Dwelling' includes a manufactured
dwelling as defined in ORS 446.003, a floating home as defined in
ORS 830.700 and a single unit in multiple-unit residential
housing. ' Dwelling' does not include a recreational vehicle as
defined in ORS 446.003.
{ - (7) - } { + (6) + } 'Dwelling owner' means the person:
(a) Who has legal title to a dwelling, including the mortgagor
under a duly recorded mortgage of real property, the trustor
under a duly recorded deed of trust or a purchaser under a duly
recorded contract for the purchase of real property; and
(b) Whose dwelling receives space heating from the
investor-owned utility.
{ - (8) - } { + (7) + } 'Energy audit' means:
(a) The measurement and analysis of the heat loss and energy
utilization efficiency of a dwelling;
(b) An analysis of the energy savings and dollar savings
potential that would result from providing energy conservation
measures for the dwelling;
(c) An estimate of the cost of the energy conservation measures
that includes:
(A) Labor for the installation of items designed to improve the
space heating and energy utilization efficiency of the dwelling;
and
(B) The items installed; and
(d) A preliminary assessment, including feasibility and a range
of costs, of the potential and opportunity for installation of:
(A) Passive solar space heating and solar domestic water
heating in the dwelling; and
(B) Solar swimming pool heating, if applicable.
{ - (9) - } { + (8) + } 'Energy conservation measures'
means measures that include the installation of items and the
items installed to improve the space heating and energy
utilization efficiency of a dwelling. These items include, but
are not limited to, caulking, weatherstripping and other
infiltration preventative materials, ceiling and wall insulation,
crawl space insulation, vapor barrier materials, timed
thermostats, insulation of heating ducts, hot water pipes and
water heaters in unheated spaces, storm doors and windows, double
glazed windows and dehumidifiers. 'Energy conservation measures'
does not include the dwelling owner's own labor.
{ - (10) - } { + (9) + } 'Investor-owned utility' means an
electric or gas utility regulated by the commission as a public
utility under ORS chapter 757.
{ - (11) - } { + (10) + } 'Residential customer' means a
dwelling owner or tenant who, either directly or indirectly, pays
a share of the cost for service billed by an investor-owned
utility for electric or natural gas service received at the
dwelling.
{ - (12) - } { + (11) + } 'Space heating' means the heating
of living space within a dwelling.
Enrolled Senate Bill 478 (SB 478-INTRO) Page 36
{ - (13) - } { + (12) + } 'Tenant' means a tenant as
defined in ORS 90.100 or any other tenant.
SECTION 42. ORS 469.649 is amended to read:
469.649. As used in ORS 469.649 to 469.659:
{ - (1) 'Administrator' means the administrator of the Office
of Energy. - }
{ - (2) - } { + (1) + } 'Cash payment' means a payment made
by the publicly owned utility to the dwelling owner or to the
contractor on behalf of the dwelling owner for energy
conservation measures.
{ - (3) - } { + (2) + } 'Commercial lending institution'
means any bank, mortgage banking company, trust company, savings
bank, savings and loan association, credit union, national
banking association, federal savings and loan association or
federal credit union maintaining an office in this state.
{ - (4) - } { + (3) + } 'Cost-effective' means that an
energy conservation measure that provides or saves a specific
amount of energy during its life cycle results in the lowest
present value of delivered energy costs of any available
alternative. However, the present value of the delivered energy
costs of an energy conservation measure shall not be treated as
greater than that of a nonconservation energy resource or
facility unless that cost is greater than 110 percent of the
present value of the delivered energy cost of the nonconservation
energy resource or facility.
{ - (5) - } { + (4) + } 'Dwelling' means real or personal
property within the state inhabited as the principal residence of
a dwelling owner or a tenant. 'Dwelling' includes a manufactured
dwelling as defined in ORS 446.003, a floating home as defined in
ORS 830.700 and a single unit in multiple-unit residential
housing. ' Dwelling' does not include a recreational vehicle as
defined in ORS 446.003.
{ - (6) - } { + (5) + } 'Dwelling owner' means the person:
(a) Who has legal title to a dwelling, including the mortgagor
under a duly recorded mortgage of real property, the trustor
under a duly recorded deed of trust or a purchaser under a duly
recorded contract for the purchase of real property; and
(b) Whose dwelling receives space heating from the publicly
owned utility.
{ - (7) - } { + (6) + } 'Energy audit' means:
(a) The measurement and analysis of the heat loss and energy
utilization efficiency of a dwelling;
(b) An analysis of the energy savings and dollar savings
potential that would result from providing energy conservation
measures for the dwelling;
(c) An estimate of the cost of the energy conservation measures
that includes:
(A) Labor for the installation of items designed to improve the
space heating and energy utilization efficiency of the dwelling;
and
(B) The items installed; and
(d) A preliminary assessment, including feasibility and a range
of costs, of the potential and opportunity for installation of:
(A) Passive solar space heating and solar domestic water
heating in the dwelling; and
(B) Solar swimming pool heating, if applicable.
{ - (8) - } { + (7) + } 'Energy conservation measures'
means measures that include the installation of items and the
items installed to improve the space heating and energy
utilization efficiency of a dwelling. These items include, but
Enrolled Senate Bill 478 (SB 478-INTRO) Page 37
are not limited to, caulking, weatherstripping and other
infiltration preventative materials, ceiling and wall insulation,
crawl space insulation, vapor barrier materials, timed
thermostats, insulation of heating ducts, hot water pipes and
water heaters in unheated spaces, storm doors and windows, double
glazed windows and dehumidifiers. 'Energy conservation measures'
does not include the dwelling owner's own labor.
{ - (9) - } { + (8) + } 'Publicly owned utility' means a
utility that:
(a) Is owned or operated in whole or in part, by a
municipality, cooperative association or people's utility
district; and
(b) Distributes electricity.
{ - (10) - } { + (9) + } 'Residential customer' means a
dwelling owner or tenant who is billed by a publicly owned
utility for electric service received at the dwelling.
{ - (11) - } { + (10) + } 'Space heating' means the heating
of living space within a dwelling.
{ - (12) - } { + (11) + } 'Tenant' means a tenant as
defined in ORS 90.100 or any other tenant.
SECTION 43. ORS 469.673 is amended to read:
469.673. As used in ORS 469.673 to 469.683:
{ - (1) 'Administrator' means the administrator of the Office
of Energy. - }
{ - (2) - } { + (1) + } 'Cash payment' means a payment made
by the
{ - Office - } { + State Department + } of Energy to the
dwelling owner or to the contractor on behalf of the dwelling
owner for energy conservation measures.
{ - (3) - } { + (2) + } 'Commercial lending institution'
means any bank, mortgage banking company, trust company, savings
bank, savings and loan association, credit union, national
banking association, federal savings and loan association or
federal credit union maintaining an office in this state.
{ - (4) - } { + (3) + } 'Cost-effective' means that an
energy conservation measure that provides or saves a specific
amount of energy during its life cycle results in the lowest
present value of delivered energy costs of any available
alternative. However, the present value of the delivered energy
costs of an energy conservation measure shall not be treated as
greater than that of a nonconservation energy resource or
facility unless that cost is greater than 110 percent of the
present value of the delivered energy cost of the nonconservation
energy resource or facility.
{ + (4) 'Director' means the Director of the State Department
of Energy appointed under ORS 469.040. + }
(5) 'Dwelling' means real or personal property within the state
inhabited as the principal residence of a dwelling owner or a
tenant. 'Dwelling' includes a manufactured dwelling as defined in
ORS 446.003, a floating home as defined in ORS 830.700 and a
single unit in multiple-unit residential housing. 'Dwelling '
does not include a recreational vehicle as defined in ORS
446.003.
(6) 'Dwelling owner' means the person:
(a) Who has legal title to a dwelling, including the mortgagor
under a duly recorded mortgage of real property, the trustor
under a duly recorded deed of trust or a purchaser under a duly
recorded contract for the purchase of real property; and
(b) Whose dwelling receives space heating from a fuel oil
dealer.
Enrolled Senate Bill 478 (SB 478-INTRO) Page 38
(7) 'Energy audit' means:
(a) The measurement and analysis of the heat loss and energy
utilization efficiency of a dwelling;
(b) An analysis of the energy savings and dollar savings
potential that would result from providing energy conservation
measures for the dwelling;
(c) An estimate of the cost of the energy conservation measures
that includes:
(A) Labor for the installation of items designed to improve the
space heating and energy utilization efficiency of the dwelling;
and
(B) The items installed; and
(d) A preliminary assessment, including feasibility and a range
of costs, of the potential and opportunity for installation of:
(A) Passive solar space heating and solar domestic water
heating in the dwelling; and
(B) Solar swimming pool heating, if applicable.
(8) 'Energy conservation measures' means measures that include
the installation of items and the items installed that are
primarily designed to improve the space heating and energy
utilization efficiency of a dwelling. These items include, but
are not limited to, caulking, weatherstripping and other
infiltration preventative materials, ceiling and wall insulation,
crawl space insulation, vapor barrier materials, timed
thermostats, insulation of heating ducts, hot water pipes and
water heaters in unheated spaces, storm doors and windows, double
glazed windows, and dehumidifiers. 'Energy conservation measures'
does not include the dwelling owner's own labor.
(9) 'Fuel oil dealer' means a person, association, corporation
or other form of organization that supplies fuel oil at retail
for the space heating of dwellings.
{ - (10) 'Office of Energy' means the Office of Energy
created under ORS 469.030. - }
{ - (11) - } { + (10) + } 'Residential customer' means a
dwelling owner or tenant who is billed by a fuel oil dealer for
fuel oil service received at the dwelling.
{ - (12) - } { + (11) + } 'Space heating' means the heating
of living space within a dwelling.
{ - (13) - } { + (12) + } 'Tenant' means a tenant as
defined in ORS 90.100 or any other tenant.
SECTION 44. ORS 469.677 is amended to read:
469.677. (1) The { - administrator of the Office - }
{ + Director of the State Department + } of Energy shall
contract and a fuel oil dealer may rely upon the
{ - administrator - } { + director + } to contract for the
information, assistance and technical advice required to be
provided by a fuel oil dealer under ORS 469.675.
(2) The { - administrator - } { + director + } shall adopt
standards for energy audits required under ORS 469.675 by rule in
accordance with the rulemaking provisions of ORS 183.310 to
183.550.
SECTION 45. ORS 469.681 is amended to read:
469.681. (1) Each petroleum supplier shall pay to the
{ - Office - } { + State Department + } of Energy annually
its share of an assessment to fund:
(a) Information, assistance and technical advice required of
fuel oil dealers under ORS 469.675 for which the
{ - administrator of the Office - } { + Director of the State
Department + } of Energy contracts under ORS 469.677; and
Enrolled Senate Bill 478 (SB 478-INTRO) Page 39
(b) Cash payments to a dwelling owner or contractor for energy
conservation measures.
(2) The amount of the assessment required by subsection (1) of
this section shall be determined by the { - administrator - }
{ + director + } in a manner consistent with the method
prescribed in ORS 469.421. The aggregate amount of the assessment
shall not exceed $400,000. In making this assessment, the
{ - administrator - } { + director + } shall exclude all
gallons of distillate fuel oil sold by petroleum suppliers that
are subject to the requirements of section 3, Article IX of the
Oregon Constitution, { + or + } ORS 319.020 or 319.530.
(3) If any petroleum supplier fails to pay any amount assessed
to it under this section within 30 days after the payment is due,
the Attorney General, on behalf of the { - Office - }
{ + State Department + } of Energy, may institute a proceeding
in the circuit court to collect the amount due.
(4) Interest on delinquent assessments shall be added to and
paid at the rate of one and one-half percent of the payment due
per month or fraction of a month from the date the payment was
due to the date of payment.
(5) The assessment required by subsection (1) of this section
is in addition to any assessment required by ORS 469.421 (8), and
any other fee or assessment required by law.
(6) As used in this section, 'petroleum supplier' means a
petroleum refiner in this state or any person engaged in the
wholesale distribution of distillate fuel oil in the State of
Oregon.
SECTION 46. ORS 469.683 is amended to read:
469.683. (1) There is established, separate and distinct from
the General Fund, the Oil-Heated Dwellings Energy Audit Account.
Moneys deposited in the account under subsections (2) to (5) of
this section shall be used to pay the cost of the information,
assistance and technical advice required of fuel oil dealers
under ORS 469.675 for which the { - administrator of the
Office - } { + Director of the State Department + } of Energy
contracts under ORS 469.677.
(2) The { - Office - } { + State Department + } of Energy
shall pay into the State Treasury all assessment moneys received
by the { - Office of Energy - } { + department + } under ORS
469.681 during the preceding calendar month. The State Treasurer
shall deposit the moneys to the credit of the Oil-Heated
Dwellings Energy Audit Account.
(3) The moneys in the Oil-Heated Dwellings Energy Audit Account
are continuously appropriated to the { - Office - } { + State
Department + } of Energy for the purpose of:
(a) Paying the cost of information, assistance and technical
advice required of fuel oil dealers under ORS 469.675 for which
the { - administrator - } { + director + } contracts under
ORS 469.677; and
(b) Providing cash payments to a dwelling owner or contractor
for energy conservation measures.
(4) Notwithstanding ORS 293.140, any interest attributable to
moneys in the Oil-Heated Dwellings Energy Audit Account shall
accrue to that account.
(5) The { - Office - } { + State Department + } of Energy
shall keep a record of all moneys deposited in the Oil-Heated
Dwellings Energy Audit Account.
SECTION 47. ORS 469.752 is amended to read:
469.752. As used in ORS 469.752 to 469.756, unless the context
requires otherwise:
Enrolled Senate Bill 478 (SB 478-INTRO) Page 40
{ - (1) 'Office of Energy' means the Office of Energy created
under ORS 469.030. - }
{ - (2) - } { + (1) + } 'Project' means a state agency's
improvement of the efficiency of energy use through conservation,
development of cogeneration facilities or use of renewable
resources. 'Project ' does not include a plan of a state agency
to improve the efficiency of energy use in a state rented
facility if the payback period for the project exceeds the term
of the current state lease for that facility.
{ - (3) - } { + (2) + } 'Savings' means any reduction in
energy costs or net income derived from the sale of energy
generated through a project.
{ - (4) - } { + (3) + } 'State agency' has the meaning
given that term in ORS 278.005.
SECTION 48. ORS 469.840 is amended to read:
469.840. (1) There is established a Northwest Regional Power
and Conservation Account. Moneys received pursuant to Public Law
96-501 shall be placed in the account.
(2) The account created by subsection (1) of this section is
continuously appropriated for disbursement to state agencies,
including but not limited to the Public Utility Commission, the
{ - Office - } { + State Department + } of Energy, the State
Department of Fish and Wildlife and the Water Resources
Department to carry out the purposes of Public Law 96-501,
subject to legislative approval or limitation by law or Emergency
Board action.
SECTION 49. ORS 469.880 is amended to read:
469.880. Each publicly owned utility serving Oregon shall,
either independently or as part of an association, provide an
energy audit program for its commercial customers. The
{ - administrator - } { + Director of the State Department of
Energy + } shall adopt rules governing the commercial energy
audit program established under this section and may provide for
coordination among electric utilities and gas utilities that
serve the same commercial building.
SECTION 50. ORS 469.885 is amended to read:
469.885. (1) Within 180 days after the adoption of rules by the
{ - administrator of the Office - } { + Director of the State
Department + } of Energy under ORS 469.880, each publicly owned
utility shall present for the { - administrator's - }
{ + director's + } approval a commercial energy audit program
{ - which - } { + that + } shall, to the
{ - administrator's - } { + director's + } satisfaction:
(a) Make information about energy conservation available to any
commercial building customer of the publicly owned utility, upon
request;
(b) Regularly notify all customers in commercial buildings of
the availability of the services described in this section;
(c) Provide to any commercial building customer of the publicly
owned utility, upon request, an on-site energy audit of the
customer's commercial building, including, but not limited to, an
estimate of the cost of the energy conservation measures; and
(d) Set a reasonable time schedule for effective implementation
of the elements set forth in this section.
(2) The commercial energy audit program submitted under
subsection (1) of this section shall specify whether the publicly
owned utility proposes to charge the customer a fee for the
energy audit and, if so, the fee amount.
SECTION 51. ORS 469.890 is amended to read:
469.890. (1) Within 365 days after November 1, 1981, the
Enrolled Senate Bill 478 (SB 478-INTRO) Page 41
{ - administrator of the Office - } { + Director of the State
Department + } of Energy shall adopt rules governing energy
conservation programs prescribed by ORS 469.895 { - , - }
{ + and + } 469.900 (3) and this section and may provide for
coordination among electric utilities and gas utilities that
serve the same commercial building. Within 180 days of the
adoption of rules by the { - administrator - } { +
director + }, each covered publicly owned utility shall present
for the
{ - administrator's - } { + director's + } approval a
commercial energy conservation services program { - which - }
{ + that + } shall, to the
{ - administrator's - } { + director's + } satisfaction:
(a) Make information about energy conservation available to all
commercial building customers of the covered publicly owned
utility, upon request;
(b) Regularly notify all customers in commercial buildings of
the availability of the services described in this section; and
(c) Provide to any commercial building customer of the covered
publicly owned utility, upon request, an on-site energy audit of
the customer's commercial building, including, but not limited
to, an estimate of the cost of energy conservation measures.
(2) The programs submitted and approved under this section
shall include a reasonable time schedule for effective
implementation of the elements set forth in subsection (1) of
this section in the service areas of the covered publicly owned
utility.
(3) The commercial energy conservation services program
submitted under subsections (1) and (2) of this section shall
specify whether the covered publicly owned utility proposes to
charge the customer a fee for the energy audit and, if so, the
fee amount.
SECTION 52. ORS 469.895 is amended to read:
469.895. (1) ORS 469.890 { - , - } { + and + } 469.900 (3)
and this section apply in any calendar year to a publicly owned
utility only if during the second preceding calendar year sales
of electric energy by the publicly owned utility for purposes
other than resale exceeded 750 million kilowatt-hours. For the
purpose of ORS 469.890 { - , - } { + and + } 469.900 (3) and
this section, a publicly owned utility with sales for nonresale
purposes in excess of 750 million kilowatt-hours during the
second preceding calendar year shall be known as a 'covered
publicly owned utility. '
(2) ORS 469.890 { - , - } { + and + } 469.900 (3) and this
section shall not apply to a covered publicly owned utility if
the { - administrator of the Office - } { + Director of the
State Department + } of Energy determines that its existing
commercial energy conservation services program meets or exceeds
the requirements of those sections.
(3) Before the beginning of each calendar year, the
{ - administrator - } { + director + } shall publish a list
identifying each covered publicly owned utility to which ORS
469.890 { - , - } { + and + } 469.900 (3) and this section
shall apply during that calendar year.
(4) Any covered publicly owned utility is exempt from the
requirements of ORS 469.880 and 469.885.
SECTION 53. ORS 469.992 is amended to read:
469.992. (1) The { - administrator of the Office - }
{ + Director of the State Department + } of Energy or the Energy
Facility Siting Council may impose civil penalties for violation
Enrolled Senate Bill 478 (SB 478-INTRO) Page 42
of ORS 469.300 to 469.619 and 469.930, for violations of rules
adopted under ORS 469.300 to 469.619 and 469.930, for violation
of any site certificate or amended site certificate issued under
ORS 469.300 to 469.601 or for violation of { - an Office - }
{ + a State Department + } of Energy order issued pursuant to
ORS 469.405 (3). A civil penalty in an amount of not more than
$25,000 per day for each day of violation may be assessed.
(2) Subject to ORS 153.022, violation of an order entered
pursuant to ORS 469.550 is punishable upon conviction by a fine
of $50,000. Each day of violation constitutes a separate offense.
(3) A civil penalty in an amount not less than $100 per day nor
more than $1,000 per day may be assessed by the
{ - administrator - } { + director + } or the Energy Facility
Siting Council for a willful failure to comply with a subpoena
served by the
{ - administrator - } { + director + } pursuant to ORS
469.080 (2).
(4) A civil penalty in an amount of not more than $25,000 per
day for each day in violation of any provision of ORS 469.603 to
469.619 may be assessed by the circuit court upon complaint of
any person injured by the violation.
SECTION 54. ORS 469.992, as amended by section 17, chapter 653,
Oregon Laws 1991, section 14, chapter 385, Oregon Laws 1999, and
section 310, chapter 1051, Oregon Laws 1999, is amended to read:
469.992. (1) The { - administrator of the Office - }
{ + Director of the State Department + } of Energy or the Energy
Facility Siting Council may impose civil penalties for violation
of ORS 469.300 to 469.619 and 469.930, for violations of rules
adopted under ORS 469.300 to 469.619 and 469.930, for violation
of any site certificate or amended site certificate issued under
ORS 469.300 to 469.601 or for violation of { - an Office - }
{ + a State Department + } of Energy order issued pursuant to
ORS 469.405 (3). A civil penalty in an amount of not more than
$25,000 per day for each day of violation may be assessed.
(2) Subject to ORS 153.022, violation of an order entered
pursuant to ORS 469.550 is punishable upon conviction by a fine
of $50,000. Each day of violation constitutes a separate offense.
(3) A civil penalty in an amount not less than $100 per day nor
more than $1,000 per day may be assessed by the
{ - administrator - } { + director + } or the Energy Facility
Siting Council for a willful failure to comply with a subpoena
served by the
{ - administrator - } { + director + } pursuant to ORS
469.080 (2).
(4) A civil penalty in an amount of not more than $25,000 per
day for each day in violation of any provision of ORS 469.603 to
469.619 or section 14, chapter 653, Oregon Laws 1991, may be
assessed by the circuit court upon complaint of any person
injured by the violation.
SECTION 55. ORS 470.050 is amended to read:
470.050. As used in this chapter, unless the context requires
otherwise:
{ - (1) 'Administrator' means the administrator of the Office
of Energy created under ORS 469.030. - }
{ - (2)(a) - } { + (1)(a) + } 'Alternative fuel project'
means a fleet of vehicles that are modified or acquired directly
from a factory and that:
(A) Use an alternative fuel including electricity, ethanol,
gasohol with at least 10 percent denatured alcohol content,
hydrogen, hythane, methane, methanol, natural gas, propane or any
Enrolled Senate Bill 478 (SB 478-INTRO) Page 43
other fuel approved by the { - administrator - } { + Director
of the State Department of Energy + }; and
(B) Produce lower or equivalent exhaust emissions or are more
energy efficient than vehicles fueled by gasoline.
(b) 'Alternative fuel project' may include a facility,
including a fueling station, necessary to operate an alternative
fuel vehicle fleet.
{ - (3) - } { + (2) + } 'Applicant' means an applicant for
a small scale local energy project loan.
{ - (4) - } { + (3) + } 'Committee' means the Small Scale
Local Energy Project Advisory Committee created under ORS
470.070.
{ - (5) - } { + (4) + } 'Cooperative' means a cooperative
corporation organized under ORS chapter 62.
{ + (5) 'Director' means the Director of the State Department
of Energy appointed under ORS 469.040. + }
(6) 'Eligible federal agency' means a federal agency or public
corporation created by the federal government that proposes to
use a loan for a small scale energy project. 'Eligible federal
agency' does not include a federal agency or public corporation
created by the federal government that proposes to use a loan for
a small scale energy project to generate electricity for sale.
(7) 'Eligible state agency' means a state officer, board,
commission, department, institution, branch or agency of the
state whose costs are paid wholly or in part from funds held in
the State Treasury.
(8) 'Loan' includes the purchase or other acquisition of
evidence of indebtedness and money used for the purchase or other
acquisition of evidence of indebtedness.
(9) 'Loan contract' means the evidence of indebtedness and all
instruments used in the purchase or acquisition of the evidence
of indebtedness. For eligible federal or state agencies or
municipal corporations that are tax exempt entities, a loan
contract may include a lease purchase agreement with respect to
personal property.
(10) 'Loan fund' means the Small Scale Local Energy Project
Loan Fund created by Article XI-J of the Oregon Constitution.
(11) 'Municipal corporation' has the meaning given in ORS
297.405 and also includes any Indian tribe or authorized Indian
tribal organization or any combination of two or more of these
tribes or organizations acting jointly in connection with a small
scale local energy project.
{ - (12) 'Office of Energy' means the Office of Energy
created under ORS 469.030. - }
{ - (13) - } { + (12) + } 'Oregon business' means a sole
proprietorship, partnership, company, cooperative, corporation or
other form of business entity that is organized or authorized to
do business under Oregon law for profit.
{ - (14) - } { + (13) + } 'Recycling project' means a
facility or equipment that converts solid waste, as defined in
ORS 459.005, into a new and usable product.
{ - (15) - } { + (14) + } 'Small business' means:
(a) An Oregon business that is:
(A) A retail or service business employing 50 or fewer persons
at the time the loan is made; or
(B) An industrial or manufacturing business employing 200 or
fewer persons at the time the loan is made; or
(b) An Oregon subsidiary of a sole proprietorship, partnership,
company, cooperative, corporation or other form of business
entity for which the total number of employees for both the
Enrolled Senate Bill 478 (SB 478-INTRO) Page 44
subsidiary and the parent sole proprietorship, partnership,
company, cooperative, corporation or other form of business
entity at the time the loan is made is:
(A) Fifty or fewer persons if the subsidiary is a retail or
service business; and
(B) Two hundred or fewer if the subsidiary is an industrial or
manufacturing business.
{ - (16) - } { + (15) + } 'Sinking fund' means the Small
Scale Local Energy Project Administration and Bond Sinking Fund
created in ORS 470.300.
{ - (17)(a) - } { + (16)(a) + } 'Small scale local energy
project' means:
(A) Any system, mechanism or series of mechanisms located in
Oregon that uses renewable resources including, but not limited
to, solar, wind, geothermal, biomass, waste heat or water
resources to produce energy including heat, electricity and
substitute fuels to meet a local community or regional energy
need in this state;
(B) Any system, mechanism or series of mechanisms located in
Oregon that conserves energy, including energy used in
transportation;
(C) A recycling project;
(D) An alternative fuel project;
(E) An improvement that increases the production or efficiency
of, or extends the operating life of, a system or project
otherwise described in this subsection, including but not limited
to restarting a dormant project. No improvement that is a
hydroelectric project shall exceed five megawatts of electric
generating capacity; or
(F) Any project that falls within the items described in
subparagraphs (A) to (E) of this paragraph that is added to, or
becomes part of, an existing project that falls within the items
described in subparagraphs (A) to (E) of this paragraph, whether
or not the existing project was originally financed under this
chapter, together with any refinancing necessary to remove prior
liens or encumbrances against the existing project.
(b) A small scale local energy project may conserve energy or
produce energy by generation or by processing or collection of a
renewable resource.
SECTION 56. ORS 470.070 is amended to read:
470.070. (1) The { - administrator of the Office - }
{ + Director of the State Department + } of Energy shall appoint
a Small Scale Local Energy Project Advisory Committee to review
applications made under ORS 470.060 and rules adopted under ORS
470.080, and make recommendations thereon to the
{ - administrator - } { + director + }.
(2) Seven members shall be appointed to the Small Scale Local
Energy Project Advisory Committee. Each member shall be appointed
to serve a two-year term, commencing on the date of appointment,
and until a successor is appointed and qualified. The members
shall represent the interest of the citizens of this state and
shall be knowledgeable in the areas of small scale energy
technology, natural resource development, environmental
protection, finance, agriculture, local government operations and
utility operations. At least three members shall reside outside
the Willamette Valley.
(3) The committee shall elect its own presiding officer, adopt
rules for its procedure and meet on call of the presiding officer
or a majority of the members. A majority of the members shall
constitute a quorum to do business. The { - administrator - }
Enrolled Senate Bill 478 (SB 478-INTRO) Page 45
{ + director + } shall provide administrative facilities and
services for the committee.
(4) Members of the Small Scale Local Energy Project Advisory
Committee shall be entitled to expenses as provided by ORS
292.495.
SECTION 57. ORS 470.080 is amended to read:
470.080. (1) After consultation with the Small Scale Local
Energy Project Advisory Committee, the { - administrator of the
Office - } { + Director of the State Department + } of Energy
shall establish by rule standards and criteria for small scale
local energy projects to be funded under the provisions of ORS
470.060 to 470.080 and 470.090. The standards and criteria shall
operate to encourage diversity in projects funded, give
preference to the maximum extent practical to projects proposed
by individuals and small businesses, { - assure - }
{ + ensure + } acceptability of environmental impacts and shall
require consideration of the potential contribution of a project
if developed at other suitable locations to meeting the energy
needs of this state. The standards and criteria shall give the
least preference to projects proposed by an eligible federal
agency.
(2) All applications submitted under ORS 470.060 shall be
reviewed by the { - Office - } { + State Department + } of
Energy. The { - Office of Energy - } { + department + } may
request that the applicant submit additional information or
revise the application. The { - Office of Energy - }
{ + department + } shall:
(a) Determine whether the application meets the standards and
criteria adopted under subsection (1) of this section; and
(b) Recommend approval or denial of the loan application, and
if approval is recommended in what amount the loan should be
made.
(3) After concluding its review, unless the application meets
the criteria established by the committee under subsection (4) of
this section, the { - Office of Energy - } { + department + }
shall refer the application and its findings and recommendation
to the committee for its review. The { - Office of Energy - }
{ + department + } shall notify the applicant of the date, time
and place of any oral presentation to the committee on the
application. The committee shall review the application and the
{ - Office of Energy's - } { + department's + } findings and
recommendations and advise the { - administrator - }
{ + director + } whether the proposed small scale local energy
project meets the criteria established by the
{ - administrator - } { + director + } under subsection (1) of
this section, whether the project should be financed with moneys
from the loan fund and in what amount the loan should be made if
approved.
(4) The committee may provide for direct referral of an
application by the { - Office of Energy - }
{ + department + } to the
{ - administrator - } { + director + } if the application
meets criteria established by the committee.
SECTION 58. ORS 470.090 is amended to read:
470.090. (1) After consideration of the recommendation of the
Small Scale Local Energy Project Advisory Committee or the
{ - Office - } { + State Department + } of Energy as provided
by ORS 470.080, the { - administrator of the Office - }
{ + Director of the State Department + } of Energy may approve
or reject the financing of a small scale local energy project
Enrolled Senate Bill 478 (SB 478-INTRO) Page 46
described in an application filed as provided in ORS 470.060,
using moneys in the Small Scale Local Energy Project Loan Fund.
Approval of a loan by the { - administrator - }
{ + director + } shall include a certification of the amount of
the loan.
(2) The { - administrator's - } { + director's + } approval
of a loan for a small scale local energy project shall be based
on a finding that:
(a) The proposed small scale local energy project meets
established standards and criteria under ORS 470.080;
(b) The proposed project is consistent with the preservation
and enhancement of environmental quality;
(c) The proposed project is feasible and a reasonable risk from
practical and economic standpoints;
(d) The plan for development of the project is satisfactory;
(e) The applicant is qualified, { - credit-worthy - }
{ + creditworthy + } and responsible and is willing and able to
enter into a contract with the { - administrator - }
{ + director + } for development and repayment as provided in
ORS 470.150;
(f) There is a need for the proposed small scale local energy
project and the applicant's financial resources are adequate to
provide the working capital to maintain the project after
completion;
(g) Moneys in the loan fund are or will be available for the
development of the proposed small scale local energy project;
(h) A dwelling constructed before January 1, 1979, that will be
served by a proposed space heating project is weatherized
according to the standards established under ORS 469.155;
(i) Except for a proposed space heating project for a dwelling
under paragraph (h) of this subsection, the loan does not finance
any project or any component of a project for which the projected
economic value of the energy savings of the project or the
component during the first year the project or component is
implemented is equal to or greater than the cost of the project
or component; and
(j) The loan will not preclude individuals and small businesses
from access to loan funds.
(3) The { - administrator - } { + director + } shall notify
the applicant and the presiding officer of the committee of the
{ - administrator's - } { + director's + } action and of the
reasons for that action. The { - administrator - }
{ + director + } shall inform the applicant of the review
procedure established in ORS 470.100.
SECTION 59. ORS 470.100 is amended to read:
470.100. (1) If the { - administrator of the Office - }
{ + Director of the State Department + } of Energy rejects a
loan application or approves a loan amount different than that
requested by the applicant, the applicant may request that the
Small Scale Local Energy Project Advisory Committee review the
{ - administrator's - } { + director's + } action.
(2) The committee may review the { - administrator's - }
{ + director's + } action on its own motion or at the request of
the applicant. A majority of the members of the committee may
authorize the presiding officer of the committee to appeal the
{ - administrator's - } { + director's + } action to the
Governor.
(3) An appeal of the { - administrator's - }
{ + director's + } action may be initiated by the presiding
Enrolled Senate Bill 478 (SB 478-INTRO) Page 47
officer of the committee no later than 45 days after the date the
applicant receives notice of the
{ - administrator's - } { + director's + } action under ORS
470.090.
(4) The decision of the Governor is final. If the Governor
fails to act within 30 days after receiving the appeal, the
appeal shall be considered to be denied.
(5) Notwithstanding ORS 183.310 to 183.550, a decision of the
{ - administrator - } { + director + } or the Governor on an
application for loan funds under ORS 470.090 or this section is
not subject to judicial review.
SECTION 60. ORS 470.110 is amended to read:
470.110. The { - administrator of the Office - }
{ + Director of the State Department + } of Energy may accept
gifts of money or other property from any source, given for the
purposes of ORS 470.050 to 470.120, 470.140 (1) and 470.150 to
470.210. Money so received shall be paid into the loan fund.
Money or other property so received shall be used for the
purposes for which received.
SECTION 61. ORS 470.130 is amended to read:
470.130. All moneys in the loan fund created by Article XI-J of
the Oregon Constitution { - hereby - } are appropriated
continuously to the { - administrator of the Office - }
{ + State Department + }of Energy and shall be used for the
purposes provided in this chapter.
SECTION 62. ORS 470.135 is amended to read:
470.135. The duties of the Director of the Oregon Department of
Administrative Services to establish, maintain and keep accounts
of, and make disbursements or transfers out of, the funds and
accounts established or identified in the two bond indentures, as
supplemented, dated June 1, 1981, and September 1, 1985, that
relate to the Small Scale Local Energy Project Loan Program
established by Article XI-J of the Oregon Constitution and this
chapter are transferred to the { - Office - } { + State
Department + } of Energy. Notwithstanding the transfer of these
fiscal functions to the { - Office - } { + State
Department + } of Energy, in accordance with ORS 291.015 (2), the
{ - Office - } { + State Department + } of Energy's
performance of these fiscal functions shall remain subject to the
control of the Oregon Department of Administrative Services.
SECTION 63. ORS 470.140 is amended to read:
470.140. (1) In accordance with the applicable provisions of
ORS 183.310 to 183.550, the { - administrator of the Office - }
{ + Director of the State Department + } of Energy may adopt
rules considered necessary to carry out the purposes of this
chapter.
(2) The { - administrator - } { + director + } shall submit
to the Legislative Assembly and the Governor a biennial report of
the transactions of the loan fund and the sinking fund in such
detail as will accurately indicate the condition of the funds.
SECTION 64. ORS 470.150 is amended to read:
470.150. Except as provided in ORS 470.155, if the
{ - administrator of the Office - } { + Director of the State
Department + } of Energy approves the financing of a small scale
local energy project, the { - administrator - } { +
director + }, on behalf of the state, and the applicant may enter
into a loan contract, secured by a first lien or by other good
and sufficient collateral in the manner provided in ORS 470.155
to 470.210. For purposes of this section, the interest of the
{ - Office - } { + State Department + } of Energy under a
Enrolled Senate Bill 478 (SB 478-INTRO) Page 48
lease purchase contract entered into with an eligible federal or
state agency or a municipal corporation may constitute good and
sufficient collateral. The contract:
(1) May provide that the { - administrator - } { +
director + }, on behalf of the state, must approve the
arrangements made by the applicant for the development, operation
and maintenance of the small scale local energy project, using
moneys in the loan fund for the project development.
(2) Shall provide a plan for repayment by the applicant to the
sinking fund of moneys borrowed from the loan fund used for the
development of the small scale local energy project and interest
on those moneys used at a rate of interest the
{ - administrator - } { + director + } determines is
necessary to provide adequate funds to recover the administrative
expenses incurred under this chapter. The { - administrator - }
{ + director + } shall set the interest rate at an incremental
rate above the interest rate on the underlying bonds. The
incremental rate for projects proposed by an eligible federal
agency shall be greater than the incremental rate charged to any
other governmental borrower. The repayment plan, among other
matters:
(a) Shall provide for commencement of repayment by the
applicant of moneys used for project development and interest
thereon not later than two years after the date of the loan
contract or at any other time as the { - administrator - }
{ + director + } may provide. In addition to any other
prepayment option provided in a borrower's loan agreement, the
{ - Office of Energy - } { + department + } shall provide a
borrower the opportunity to prepay the borrower's loan, without
any additional premium, by defeasing such loan to the call date
of the bond or bonds funding the applicable loan, or any
refunding bonds linked to the loan, but such defeasance shall
occur only if the { - administrator - } { + director + }
finds that after the defeasance, the sinking fund will have
sufficient funds to make payments required under ORS 470.300 (1).
(b) May provide for reasonable extension of the time for making
any repayment in emergency or hardship circumstances, if approved
by the { - administrator - } { + director + }.
(c) Shall provide for evidence of debt assurance of and
security for repayment by the applicant considered necessary or
proper by the { - administrator - } { + director + }.
(d) Shall set forth the period of loan which shall not exceed
the usable life of the completed project, or 30 years from the
date of the loan contract, whichever is less.
(e) May set forth a procedure for formal declaration of default
of payment by the { - administrator - } { + director + },
including formal notification of all relevant federal, state and
local agencies; and further, a procedure for notification of all
relevant federal, state and local agencies that declaration of
default has been rescinded when appropriate.
(3) May include provisions satisfactory to the
{ - administrator - } { + director + } for field inspection,
the { - administrator - } { + director + } to be the final
judge of completion of the project.
(4) May provide that the liability of the state under the
contract is contingent upon the availability of moneys in the
loan fund for use in the planning and development of the project.
(5) May include further provisions the { - administrator - }
{ + director + } considers necessary to { - insure - }
Enrolled Senate Bill 478 (SB 478-INTRO) Page 49
{ + ensure + } expenditure of the funds for the purposes set
forth in the approved application.
(6) May provide that the { - administrator - }
{ + director + } may institute an appropriate action or suit to
prevent use of the project financed by the loan fund by any
person who is delinquent in the repayment of any moneys due the
sinking fund.
SECTION 65. ORS 470.160 is amended to read:
470.160. If the { - administrator of the Office - }
{ + Director of the State Department + } of Energy approves a
loan for a small scale local energy project, the State Treasurer
shall pay moneys for such project from the loan fund in
accordance with the terms of the loan contract, as prescribed by
the { - administrator - } { + director + }.
SECTION 66. ORS 470.170 is amended to read:
470.170. (1) When a loan is made under this chapter to an
applicant other than a municipal corporation, the loan shall be
secured pursuant to a mortgage, trust deed, security agreement,
pledge, assignment or similar instrument, by a security interest
or lien on real or personal property in the full amount of the
loan or as the { - administrator of the Office - }
{ + Director of the State Department + } of Energy shall require
for adequate security, including but not limited to long-term
leasehold interests or equitable interests in real property or
personal property. In lieu of, or in addition to, any of the
collateral otherwise described in this subsection, the applicant
may secure the loan by providing credit enhancement, including
but not limited to a letter of credit or payment bond, or a
guaranty acceptable to the
{ - administrator - } { + director + }.
(2) When a loan is made to a municipal corporation for the
development of a small scale local energy project under this
chapter, the loan shall be secured as the { - administrator - }
{ + director + } shall require for adequate security. The
security may be in the form of a lien, mortgage, interest under a
lease-purchase contract or other form of security acceptable to
the { - administrator - } { + director + } and the municipal
corporation.
(3) When a loan made under this chapter is secured by a lien on
the real property of the applicant, the { - administrator - }
{ + director + } shall perfect the lien by recording as provided
by law.
(4) Upon payment of all amounts loaned to an applicant pursuant
to this chapter, the { - administrator - } { + director + }
shall file a satisfaction or release notice that indicates
repayment of the loan.
(5) The { - administrator - } { + director + } may cause to
be instituted appropriate proceedings to foreclose liens for
delinquent loan payments, and shall pay the proceeds of any such
foreclosure, less the { - administrator's - }
{ + director's + } expenses incurred in foreclosing, into the
sinking fund. In a foreclosure proceeding the
{ - administrator - } { + director + } may bid on property
offered for sale in the proceedings and may acquire title to the
property on behalf of the state.
(6) The { - administrator - } { + director + } may take any
action, make any disbursement, hold any funds or institute any
action or proceeding necessary to protect the state's interest.
(7) The { - administrator - } { + director + } may settle,
compromise or release, for reasons other than uncollectibility as
Enrolled Senate Bill 478 (SB 478-INTRO) Page 50
provided in ORS 293.240, all or part of any loan obligation so
long as the
{ - administrator's - } { + director's + } action is
consistent with the purposes of this chapter and does not impair
the ability to pay the administrative expenses of the
{ - Office - } { + State Department + } of Energy or the
obligations of any bonds then outstanding.
SECTION 67. ORS 470.190 is amended to read:
470.190. If an applicant fails to comply with a contract
entered into with the { - administrator of the Office - }
{ + Director of the State Department + } of Energy for
development and repayment as provided in ORS 470.150, the
{ - administrator - } { + director + }, in addition to
remedies provided in ORS 470.170 and 470.180, may seek other
appropriate legal remedies to secure the loan and may contract as
provided in ORS 470.150 with any other person for continuance of
development and for repayment of moneys from the loan fund used
therefor and interest thereon.
SECTION 68. ORS 470.210 is amended to read:
470.210. (1) Notwithstanding any other provision of law, a
municipal corporation may enter into a loan contract for
financing a small scale local energy project.
(2) In order to finance a small scale local energy project, the
{ - administrator of the Office - } { + Director of the State
Department + } of Energy, on behalf of the state, may purchase or
otherwise acquire a municipal corporation's general obligation or
revenue evidence of indebtedness including but not limited to a
bond, note, certificate of participation, warrant or lease
purchase agreement issued by the municipal corporation to finance
the small scale local energy project.
(3) A project may be financed under subsection (1) of this
section only if the { - administrator - } { + director + }
finds:
(a) The municipal corporation complies with the requirements of
this chapter regarding a small scale local energy project loan;
and
(b) The instrument evidencing the indebtedness complies with
the requirements of ORS 470.150.
(4) Notwithstanding subsection (2) of this section, a loan
obtained from the { - Office - } { + State Department + } of
Energy by a county to finance a small scale local energy project
shall be secured solely by the small scale local energy project
and revenues derived from the project and shall not constitute a
general obligation of the county. A county may repay any portion
of a loan incurred under this chapter from any funds available to
it.
SECTION 69. ORS 470.230 is amended to read:
470.230. Except as provided in ORS 470.270, all moneys obtained
from the sale of bonds under ORS 470.220 to 470.290 shall be
credited by the State Treasurer to the loan fund. Those moneys
shall be used only for the purposes stated in Article XI-J of the
Oregon Constitution and ORS 470.050 to 470.120, 470.140 (1) and
470.150 to 470.210. Those moneys may be used to make payments of
interest of bonds issued pursuant to the provisions of ORS
470.220 to 470.290 if there are insufficient funds in the sinking
fund to make the payments referred to in ORS 470.300 (1). Moneys
loaned to municipal corporations but withheld by the
{ - Office - } { + State Department + } of Energy for security
or to pay for future project costs may remain in the loan fund.
Pending the use of the moneys in the loan fund for the proper
Enrolled Senate Bill 478 (SB 478-INTRO) Page 51
purposes, the moneys may be invested in the manner provided by
law.
SECTION 70. ORS 470.250 is amended to read:
470.250. Each issue of bonds under ORS 470.220 to 470.290 shall
be payable in principal installments and upon a maturity date or
dates to be determined by the { - administrator of the
Office - } { + Director of the State Department + } of Energy,
with the approval of the State Treasurer, provided that the first
principal installment shall fall due not later than four years
after the date of the bonds and that the earliest maturity date
of any of the bonds of an issue shall be not less than one year
and the final maturity date not more than 30 years from the date
of the bonds. The { - administrator - } { + director + },
with the approval of the State Treasurer, may issue the bonds, as
provided in ORS 286.031, with reservation of the right to redeem
the bonds for retirement or refunding purposes prior to the final
date or dates of maturity thereof. The bonds may be issued in
registered form. The bonds and any appurtenant coupons shall be
negotiable in form and shall embody an absolute and unconditional
promise of the State of Oregon to pay the principal of and the
interest upon the bonds, when due, in any coin or currency which,
at the time of payment, is legal tender for the payment of public
and private debts within the United States of America. The bonds
shall be executed with the facsimile signatures of two of the
three officers designated in ORS 286.061, and with the manual
signature of the other of such officers, as agreed upon among
them. The bonds may bear coupons evidencing the interest to
become due thereon for each installment thereof. The first coupon
of each issue of bonds may be for a period of more or less than
six months but of not more than one year, if, in the judgment of
the State Treasurer, the issuance of the bonds with such coupons
is advisable. The coupons shall be executed with the facsimile
signature, with the title of the office thereunder, of each of
the officers designated in ORS 286.061. Bonds issued under ORS
470.220 to 470.290, and the interest coupons annexed thereto,
bearing the signatures of officers in office on the date of
execution of the bonds shall be valid and legally binding
obligations, notwithstanding that before delivery of the bonds to
the purchasers thereof any or all of the officers have ceased to
be such.
SECTION 71. ORS 470.260 is amended to read:
470.260. The { - administrator of the Office - }
{ + Director of the State Department + } of Energy, with the
approval of the State Treasurer, shall provide such method as the
{ - administrator - } { + director + } considers appropriate
for the advertisement by newspaper of each issue of bonds under
ORS 470.220 to 470.290, before the issue is sold and shall
require such deposit with each bid therefor as the
{ - administrator - } { + director + } considers adequate to
{ - insure - } { + ensure + } the fulfillment thereof. Prior
to advertisement of any of the bonds for sale, the State
Treasurer may publish in one or more financial newspapers in the
City and State of New York a statement showing the current
financial condition of the State of Oregon. The advertisement of
the proposed sale of the bonds shall be published once not less
than 10 days before the sale date and shall contain a provision
to the effect that the { - administrator - } { + director + }
has the discretion to reject any or all bids received in
pursuance of such advertisement. In the event of rejection, the
Enrolled Senate Bill 478 (SB 478-INTRO) Page 52
{ - administrator - } { + director + } may readvertise for
bids for the bonds in the form and manner set forth in this
section, as many times as, in the judgment of the
{ - administrator - } { + director + }, may be necessary to
effect a satisfactory sale. The bonds, including refunding bonds,
may be sold to any bidder or to the state at a price of not less
than 98 percent of par value and the full amount of the accrued
interest thereon.
SECTION 72. ORS 470.270 is amended to read:
470.270. (1) After consultation with the State Treasurer, the
{ - administrator of the Office - } { + Director of the State
Department + } of Energy may issue refunding bonds for the
purpose of refunding outstanding bonds issued under ORS 470.220
to 470.290. The refunding bonds may be sold in the same manner as
other bonds are sold under ORS 470.220 to 470.290. All moneys
obtained from the sale of refunding bonds shall be credited by
the State Treasurer to the sinking fund. The issuance of the
refunding bonds, the maturity date, and other details thereof,
the rights of the holders thereof, and the duties of the
Governor, Secretary of State and State Treasurer with respect
thereto, shall be governed by the other provisions of ORS 470.220
to 470.290, insofar as those provisions are applicable. The
refunding bonds may be issued to refund bonds previously issued
for refunding purposes. Pending the use of moneys obtained from
the sale of refunding bonds for proper purposes, such moneys may
be invested in the manner provided by law.
(2) Notwithstanding any provision of ORS 470.150, if the
{ - Office - } { + State Department + } of Energy issues
taxable refunding bonds at a lower interest rate to refund
outstanding general obligation bonds, and is unable to allow loan
recipients to receive a portion of the interest savings, the
{ - administrator - } { + director + } shall allow the loan
recipient to prepay the outstanding loan balance upon the request
of the recipient. The { - administrator - } { + director + }
shall respond to such a request within 30 days after receiving
the request by specifying the outstanding principal balance after
applying reserves held by the state for the borrower and the
prepayment premium as listed in the bond document, loan document
or bond purchase agreement.
(3) The { - Office of Energy - } { + department + } shall
pursue opportunities for refunding bonds to reduce interest sums
payable by the { - office - } { + department + }. When the
{ - office - } { + department + } refunds a bond with
tax-exempt bonds, the { - office - } { + department + } shall
share, on an equitable basis, the savings from any refunding with
the borrowers whose loans were made with the proceeds of the
refunded bonds in an amount consistent with a finding by the
{ - administrator - } { + director + } that the sinking fund
has, and will continue to have, sufficient funds to make payments
required under ORS 470.300 (1). The { - Office of Energy - }
{ + department + } shall not refund tax-exempt bonds with
taxable bonds, unless the { - office - } { + department + } is
able to share the savings associated with such a refunding with
the borrowers whose loans are linked to such bonds. At least 120
days before the date on which the { - Office of Energy - }
{ + department + } intends to issue refunding bonds, the
{ - administrator - } { + director + } shall notify each
borrower whose loan was made from the proceeds of the bonds being
refunded and shall offer the borrower the opportunity to prepay
the borrower's loan.
Enrolled Senate Bill 478 (SB 478-INTRO) Page 53
SECTION 73. ORS 470.300 is amended to read:
470.300. (1) There hereby is created the Small Scale Local
Energy Project Administration and Bond Sinking Fund, separate and
distinct from the General Fund, to provide for payment of:
(a) Administrative expenses of the { - Office - } { + State
Department + } of Energy and the { - administrator of the
Office - } { + Director of the State Department + } of Energy
in processing applications, investigating proposed loans and
servicing and collecting outstanding loans made under this
chapter, if the expense is not paid directly by the applicant.
(b) Administrative expenses of the State Treasurer in carrying
out the duties, functions and powers imposed upon the State
Treasurer by this chapter.
(c) Principal and interest of all bonds issued pursuant to the
provisions of ORS 470.220 to 470.290.
(d) Net investment earnings on any funds loaned to municipal
corporations but withheld as provided in ORS 470.230.
(2) The fund created by subsection (1) of this section shall
consist of:
(a) Application fees required by ORS 470.060, unless the
{ - Office of Energy - } { + department + } requires the
applicant to pay the fee directly for a cost incurred in
connection with the application.
(b) Repayment of moneys loaned to applicants from the loan
fund, including interest on such moneys.
(c) Such moneys as may be appropriated to the fund by the
Legislative Assembly.
(d) Moneys obtained from the sale of refunding bonds and any
accrued interest on such bonds.
(e) Moneys received from ad valorem taxes levied pursuant to
Article XI-J of the Oregon Constitution, and all moneys that the
Legislative Assembly may provide in lieu of such taxes.
(f) Interest earned on cash balances invested by the State
Treasurer.
(g) Moneys transferred from the Small Scale Local Energy
Project Loan Fund.
(3) The { - administrator - } { + director + }, with the
approval of the State Treasurer, may transfer moneys from the
sinking fund to the loan fund if:
(a) A cash flow projection shows that, for the term of the
bonds outstanding at the time the { - administrator - }
{ + director + } transfers the moneys, remaining moneys in the
sinking fund, together with expected loan contract payments and
fund earnings, will improve the financial basis of the program
and will continue to be adequate to pay bond principal, interest
and administration costs; and
(b) The transfer will not create the need for issuance of any
bonds.
(4) The { - administrator - } { + director + }, with the
approval of the State Treasurer, may establish separate and
distinct accounts within the sinking fund to accomplish the
purpose of this section.
SECTION 74. ORS 470.310 is amended to read:
470.310. (1) If there are insufficient funds in the sinking
fund to make the payments referred to in ORS 470.300 (1), the
{ - administrator of the Office - } { + Director of the State
Department + } of Energy may request the funds necessary for such
payments from the Legislative Assembly or the Emergency Board.
(2) When the { - administrator - } { + director + }
determines that moneys in sufficient amount are available in the
Enrolled Senate Bill 478 (SB 478-INTRO) Page 54
sinking fund, the State Treasurer shall reimburse the General
Fund without interest, in an amount equal to the amount allocated
by the Legislative Assembly or the Emergency Board pursuant to
subsection (1) of this section. The moneys used to reimburse the
General Fund under this subsection shall not be considered a
budget item on which a limitation is otherwise fixed by law, but
shall be in addition to any specific appropriations or amounts
authorized to be expended from continually appropriated moneys.
SECTION 75. 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, 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.
Enrolled Senate Bill 478 (SB 478-INTRO) Page 55
(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) - } { + (22) + } 'One average megawatt' means
8,760,000 kilowatt-hours of electricity per year.
{ - (24) - } { + (23) + } 'People's utility district' has
the meaning given that term in ORS 261.010.
{ - (25) - } { + (24) + } '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) - } { + (25) + } '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) - } { + (26) + } '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 - }
{ + State Department + } of Energy by rule may establish a limit
Enrolled Senate Bill 478 (SB 478-INTRO) Page 56
on the maximum above-market cost for renewable energy that is
allowed as a credit.
{ - (28) - } { + (27) + } '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) - } { + (28) + } '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) - } { + (29) + } '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) - } { + (30) + } '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) - } { + (31) + } 'Transition charge' means a
charge or fee that recovers all or a portion of an uneconomic
utility investment.
{ - (33) - } { + (32) + } 'Transition credit' means a
credit that returns to consumers all or a portion of the benefits
from an economic utility investment.
{ - (34) - } { + (33) + } 'Transmission facility' means the
plant and equipment used to transmit electricity in interstate
commerce.
{ - (35) - } { + (34) + } '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) - } { + (35) + } 'Uneconomic utility investment'
means all electric company investments, 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 76. ORS 469.320 is amended to read:
Enrolled Senate Bill 478 (SB 478-INTRO) Page 57
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) - } { + (11)(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) - } { + (11)(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
Enrolled Senate Bill 478 (SB 478-INTRO) Page 58
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), (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
Enrolled Senate Bill 478 (SB 478-INTRO) Page 59
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 review by the Supreme Court is
limited to the record made by the council.
(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.
(d) Notwithstanding the provisions of paragraph (a) of this
subsection that require a temporary energy generating facility
granted an exemption pursuant to subsection (2)(g) of this
section to cease operation within 24 months of first commercial
operation, if the owner of a temporary energy generating facility
submits an application for a site certificate prior to the last
day of the period constituting the exemption or January 1, 2005,
Enrolled Senate Bill 478 (SB 478-INTRO) Page 60
whichever date is earlier, the council shall extend the period
constituting the exemption and shall allow the temporary energy
generating facility to continue operation until the council
concludes its review of the site certificate application. The
council may specify a date by which the application must be
completed. If the application is not completed by the date
specified by the council, or is rejected by the council, the
energy facility shall cease operation on the specified date. An
energy facility operating pursuant to this paragraph shall cease
operation if the applicant for the site certificate suspends the
application.
(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.
(c) 'Total energy output' means the sum of useful thermal
energy output and useful electrical energy output.
(d) 'Useful thermal energy' means the verifiable thermal energy
used in any viable industrial or commercial process, heating or
cooling application.
(9) Notwithstanding the definition of 'energy facility' in ORS
469.300 { - (10)(a)(J) - } { + (11)(a)(J) + }, an electric
power generating plant with an average electric generating
capacity of less than 35 megawatts produced from wind energy at a
single energy facility or within a single energy generation area
may elect to obtain a site certificate in the manner provided in
ORS 469.300 to 469.563, 469.590 to 469.619, 469.930 and 469.992.
An election to obtain a site certificate under this subsection
shall be final upon submission of an application for a site
certificate.
SECTION 77. ORS 469.320, as amended by section 8, chapter 683,
Oregon Laws 2001, 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
Enrolled Senate Bill 478 (SB 478-INTRO) Page 61
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) - } { + (11)(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) - } { + (11)(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 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.
Enrolled Senate Bill 478 (SB 478-INTRO) Page 62
(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 (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) 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) 'Total energy output' means the sum of useful thermal
energy output and useful electrical energy output.
(c) 'Useful thermal energy' means the verifiable thermal energy
used in any viable industrial or commercial process, heating or
cooling application.
(8) Notwithstanding the definition of 'energy facility' in ORS
469.300 { - (10)(a)(J) - } { + (11)(a)(J) + }, an electric
power generating plant with an average electric generating
capacity of less than 35 megawatts produced from wind energy at a
single energy facility or within a single energy generation area
Enrolled Senate Bill 478 (SB 478-INTRO) Page 63
may elect to obtain a site certificate in the manner provided in
ORS 469.300 to 469.563, 469.590 to 469.619, 469.930 and 469.992.
An election to obtain a site certificate under this subsection
shall be final upon submission of an application for a site
certificate.
SECTION 78. 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;
Enrolled Senate Bill 478 (SB 478-INTRO) Page 64
(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.
Enrolled Senate Bill 478 (SB 478-INTRO) Page 65
(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
Enrolled Senate Bill 478 (SB 478-INTRO) Page 66
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 - } { + State Department + } 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
Enrolled Senate Bill 478 (SB 478-INTRO) Page 67
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 { - (10)(a)(A) - } { +
(11)(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 { - (10)(a)(C) - }
{ + (11)(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.
Enrolled Senate Bill 478 (SB 478-INTRO) Page 68
(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 79. 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
Enrolled Senate Bill 478 (SB 478-INTRO) Page 69
(b) The { + Energy Facility Siting + } 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
Enrolled Senate Bill 478 (SB 478-INTRO) Page 70
make the election on or before the date specified by the council
by rule.
(5) Upon request by the { - Office - } { + State
Department + } 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 - } { + department'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 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 - }
{ + as defined + } in ORS 469.300 { - (10)(a)(C) - }
{ + (11)(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 - } { + State Department + } of Energy.
(9) The { - Office - } { + State Department + } of Energy,
in cooperation with other state agencies, shall provide, to the
extent possible, technical assistance and information about the
Enrolled Senate Bill 478 (SB 478-INTRO) Page 71
siting process to local governments that request such assistance
or that anticipate having a facility proposed in their
jurisdiction.
SECTION 80. ORS 757.676 is amended to read:
757.676. The governing body of a consumer-owned utility is
authorized to determine whether and under what terms and
conditions it will offer its retail electricity consumers direct
access, portfolio access or other forms of access to electric
service suppliers. In making such determination, the governing
body of a consumer-owned utility shall consider such factors as
it deems appropriate. A consumer-owned utility shall have sole
authority to determine:
(1) The quality and nature of electric service, including but
not limited to different product and pricing options, which shall
be made available to its retail electricity consumers.
(2) The extent to which products and services will be unbundled
and the rates, tariffs, terms and conditions on which they may be
offered.
(3) Whether one or more pilot programs for direct access,
portfolio access or other forms of access to alternative
suppliers will be offered.
(4) Notwithstanding ORS 757.600 (10) and { - (36) - } { +
(35) + }, what constitutes an economic or uneconomic utility
investment, the value of such investments and, in the case of
uneconomic utility investments, the manner and means of
mitigating such investments.
(5) Whether and on what basis a transition charge will be
adopted, assessed and collected from a retail electricity
consumer located within the utility's service territory,
including but not limited to a nonbypassable distribution charge,
the amount and period of recovery for the charges, the allocation
of the charges among retail electricity consumers located within
the utility's service territory and the method of collecting such
charges including but not limited to whether to impose a
nonbypassable distribution charge.
(6) The manner of collecting stranded distribution charges,
systems benefit charges, franchise fees, taxes and payments made
in lieu of taxes from retail electricity consumers located within
the utility's service territory for electric power transactions
using transmission facilities, whether or not such transactions
use distribution facilities. The governing body may assign
charges on the basis of usage, demand or any combination or
method it finds appropriate. Charges need not be assigned to
specific facilities.
(7) The collection from retail electricity consumers located
within the utility's service territory through rates, fees or
charges, including the imposition of a nonbypassable distribution
charge, in amounts sufficient to recover 100 percent of stranded
costs imposed by, or incurred pursuant to the purchase of
cost-based electric power from, the Bonneville Power
Administration. Such stranded cost charges may include the
difference in cost associated with purchasing electric power from
the Bonneville Power Administration and the cost of purchasing a
like and similar amount of electric power at market prices.
(8) The establishment of technical capability requirements,
financial responsibility requirements and other protections for
retail electricity consumers located within the utility's service
territory and the consumer-owned utility in dealings with
electric service suppliers.
Enrolled Senate Bill 478 (SB 478-INTRO) Page 72
(9) Access to or use of the utility's transmission facilities
or distribution system by retail electricity consumers or
electric service suppliers.
(10) The utility's qualification standards for energy service
suppliers in addition to any certification standards established
by the Public Utility Commission, provided that the qualification
standards are uniformly applied to electricity service providers
in a nondiscriminatory manner.
----------
Passed by Senate March 11, 2003
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House May 9, 2003
...........................................................
Speaker of House
Enrolled Senate Bill 478 (SB 478-INTRO) Page 73
Received by Governor:
......M.,............., 2003
Approved:
......M.,............., 2003
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2003
...........................................................
Secretary of State
Enrolled Senate Bill 478 (SB 478-INTRO) Page 74