75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
HA to B-Eng. HB 2626
LC 1597/HB 2626-B17
HOUSE AMENDMENTS TO
B-ENGROSSED HOUSE BILL 2626
By JOINT COMMITTEE ON WAYS AND MEANS
June 24
On page 1 of the printed B-engrossed bill, line 2, after ' ORS'
insert '469.421,'.
In line 4, after the second semicolon insert 'limiting
expenditures;'.
On page 2, after line 7, insert:
' { + SECTION 2a. + } { + Notwithstanding any other
provision of this chapter, if the Director of the State
Department of Energy determines that the State Department of
Energy is unable to issue a sufficient number of energy
efficiency and sustainable technology loans to offset the
reasonable cost to the department of operating the loan program,
the director may delay or suspend the energy efficiency and
sustainable technology loan program in one or more sustainable
energy territories or may delay or suspend any feature of the
energy efficiency and sustainable technology loan program. + } '
.
On page 6, line 22, after 'regarding' insert 'electric charging
or'.
In line 25, delete ', electric charging'.
On page 12, line 31, after 'that' delete the rest of the line
and line 32 and insert 'lack sufficient relationship to the
structure to be subject to a fixture filing or real property
lien.'.
On page 13, line 35, delete 'department' and insert 'State
Department of Energy'.
On page 14, line 1, after the second 'fee' insert a period and
delete the rest of the line and line 2.
In line 8, after the period insert 'Upon request of the loan
applicant, the department may add all or part of a project
initiation fee to the principal of an issued loan.'.
On page 15, line 11, after '(3)' delete the rest of the line
and lines 12 and 13.
In line 14, delete 'fees and refunds.'.
On page 19, line 15, after the second 'regarding' insert '
electric charging or'.
In line 18, delete ', electric charging'.
In line 20, delete 'with the'.
In line 21, delete 'Bonneville Power Administration,' and
insert 'with'.
On page 20, line 9, after 'director' insert a period and delete
the rest of the line and line 10.
After line 44, insert:
' { + SECTION 46a. + } { + Notwithstanding any other
provision of sections 42 to 48, 51 and 52 of this 2009 Act, if
the Director of the State Department of Energy determines that
the State Department of Energy is unable to issue a sufficient
number of energy efficiency and sustainable technology loans to
offset the reasonable cost to the department of operating the
loan program, the director may delay or suspend the energy
efficiency and sustainable technology loan program in one or more
pilot program areas or may delay or suspend any feature of the
energy efficiency and sustainable technology loan program. + } '
.
On page 21, after line 16, insert:
' { + SECTION 47a. + } { + Notwithstanding ORS 469.441, in
addition to any assessment imposed under ORS 469.421 (8), the
State Department of Energy may impose a special assessment on
energy resource suppliers that are subject to the assessment
described in ORS 469.421 (8). The special assessment authorized
under this section may not exceed $300,000. The department shall
calculate the share of the special assessment to be paid by an
energy resource supplier based on the most recent gross operating
revenue ratio determined for that supplier under ORS 469.421
(8)(c) as of the special assessment date. The department may not
impose the special assessment authorized under this section more
than once and may not impose the special assessment after July 1,
2010. Moneys received by the department from the special
assessment must be deposited to the Energy Project Supplemental
Fund and used to pay costs incurred by the department or the
Director of the State Department of Energy in implementing or
administering loan programs for small scale local energy
projects. + } ' .
In line 21, delete 'and 46' and insert ', 46, 46a and 47a'.
On page 22, after line 7, insert:
' { + SECTION 53a. + } { + Notwithstanding any other law
limiting expenditures, the limitation on expenditures established
by section 1, chapter ___, Oregon Laws 2009 (Enrolled House Bill
5013), for the biennium beginning July 1, 2009, as the maximum
limit for payment of expenses from fees, moneys or other
revenues, including Miscellaneous Receipts, but excluding lottery
funds and federal funds, collected or received by the State
Department of Energy, is increased by $300,000 for the purpose of
carrying out the provisions of sections 7 to 9, 13, 27, 29 to 33
and 35 to 48 of this 2009 Act and carrying out department
activities relating to the amendments to ORS 470.050, 470.060 and
470.150 by sections 54, 55 and 64 of this 2009 Act. + } ' .
On page 28, line 45, after 'applicant' delete the rest of the
line.
On page 29, line 1, delete the boldfaced material and delete '
Sinking Fund'.
On page 30, line 21, delete 'Revenue'.
On page 33, after line 42, insert:
'
{ + LOCAL IMPROVEMENT DISTRICTS + }
' { + SECTION 74. + } { + Section 75 of this 2009 Act is
added to and made a part of ORS 223.387 to 223.399. + }
' { + SECTION 75. + } { + (1) As used in this section:
' (a) 'Energy improvements' means energy efficiency and
renewable energy improvements to qualifying real property
authorized by:
' (A) A local government implementing a program established
under subsection (2) of this section; or
' (B) The State Department of Energy for a loan issued under
subsection (9) of this section to a local government that
establishes a program in cooperation with a local government
described in subparagraph (A) of this paragraph.
' (b) 'Local government' means cities and counties.
' (c) 'Qualifying real property' means single-family or
multifamily residential dwellings or commercial or industrial
buildings that the local government has determined can be
benefited by energy improvements.
' (2) Subject to subsection (3) of this section, a local
government may establish a program to make loans to owners of
record of qualifying real property for the purpose of paying for
cost-effective energy improvements to the qualifying real
property financed with the net proceeds and interest earnings of
revenue bonds authorized by this section.
' (3) Before establishing a program under this section, the
local government shall provide notice to utilities that
distribute electric energy or natural gas within the areas in
which the local government will operate the program.
' (4) A local government that establishes a program under this
section may:
' (a) Require performance of an energy audit on the qualifying
real property before the local government approves a loan for
energy improvements to the property;
' (b) Impose requirements intended to ensure that the loan is
consistent with the purpose of the program; and
' (c) Impose requirements and conditions on loans that are
designed to ensure timely repayment of the loans.
' (5) If the owner of record of qualifying real property
requests a loan under this section, the local government
implementing the program may:
' (a) Enter into a loan agreement with the owner, and any other
person benefited by the loan, in a principal amount sufficient to
pay:
' (A) The costs of energy improvements the local government
determines will benefit the qualifying real property and the
borrowers;
' (B) The costs of the energy audit; and
' (C) The costs and reserves of the program.
' (b) Charge the borrower an interest rate on the principal
amount that is sufficient to pay the financing costs of the
program, including loan delinquencies.
' (c) Charge periodic fees to pay for program costs.
' (6) The local government implementing the program that lends
money for qualifying real property may:
' (a) Secure the loan with a lien on the benefited qualifying
real property in the manner and with the same priority as a lien
for assessments for local improvements authorized by ORS 223.393.
' (b) Assess the benefited qualifying real property for the
amounts due under a loan agreement.
' (c) Enforce a lien and collect an assessment authorized by
this section as provided in ORS 223.505 to 223.650.
' (d) Secure a loan in any other manner that the local
government determines is reasonable.
' (7) In lieu of enforcing liens and collecting assessments as
provided in subsection (6) of this section, a local government
may certify the assessment, in the manner provided in ORS
310.060, to the county assessor of each county in which benefited
qualifying real property is located. If the assessments are
certified as provided in this subsection, the county assessor
shall:
' (a) Enter the assessment upon the county assessment roll
against the property described in the certificate, in the manner
that other local government assessments are entered;
' (b) Collect, account for and enforce the assessments in the
manner that local government taxes are collected, accounted for
and enforced; and
' (c) Transfer, as provided by law, the assessments collected
to the local government that imposed the assessment.
' (8) A local government may issue revenue bonds pursuant to
ORS 287A.150 to finance program costs, including the costs of
making loans for energy improvements.
' (9) The State Department of Energy may lend money under the
provisions of ORS 470.060 to 470.080 and 470.090 to a local
government that establishes a program under this section in
cooperation with a local government implementing a program under
this section. + }
'
{ + ENERGY RESOURCE SUPPLIERS + }
' { + SECTION 76. + } 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 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 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 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 State Department of Energy an
estimate of the costs expected to be incurred in processing the
application. The 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
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 State Department of Energy's budget authorization
by a regular session of the Legislative Assembly or as revised by
the Emergency Board, the Director of the State Department of
Energy promptly shall enter an order establishing an annual fee
based on the amount of revenues that the director estimates is
needed to fund the cost of ensuring that the facility is being
operated consistently with the terms and conditions of the site
certificate, any order issued by the department under ORS 469.405
(3) and any applicable health or safety standards. In determining
this cost, the director shall include both the actual direct cost
to be incurred by the council, the State Department of Energy and
the Oregon Department of Administrative Services to ensure that
the facility is being operated consistently with the terms and
conditions of the site certificate, any order issued by the 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 State Department of Energy and the Oregon
Department of Administrative Services to ensure that all
certificated facilities are being operated consistently with the
terms and conditions of the site certificates, any orders issued
by the 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 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 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 projected to exceed the
annual fee for that facility, the 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 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 State Department of Energy,
determined by the 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 State Department of Energy by a regular session
of the Legislative Assembly, the 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 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 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 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 - } { + . The + }
order shall take into account any revisions to the biennial
budget of the Energy Facility Siting Council, the 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. { +
However, an assessment under this section may not be used to
derive revenue for funding State Department of Energy activities
related to the energy efficiency and sustainable technology loan
program described in ORS chapter 470. + }
' (b) Each order issued by the 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 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 director shall send each energy resource supplier
subject to assessment pursuant to 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 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 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 director and is subject to audit by the
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 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 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 { + ,
generating, transmitting or distributing + } 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 that must be
derived from any class of energy resource suppliers by assessment
pursuant to this subsection, the 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 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 pursuant to ORS 469.420 (1979 Replacement Part) or
section 7, chapter 792, Oregon Laws 1981.
' (i) Orders issued by the 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 State Department
of Energy annually on July 1, an assessment in an amount
determined by the 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 State Department of Energy for
this purpose.
' (b) The 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 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 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 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 director if the 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 director
had no objectively reasonable basis for asserting the claim or no
reasonable basis for appealing an adverse decision of the trial
court.'.
On page 34, line 1, delete '74' and insert '77'.
In line 7, delete '75' and insert '78'.
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