75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3833
A-Engrossed
Senate Bill 977
Ordered by the Senate June 23
Including Senate Amendments dated June 23
Sponsored by Senator WALKER, Representative READ
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Requires applicants seeking to construct certain energy
facilities to enter into written agreement with state in which
applicant agrees to compensate state for costs associated with
state agency review and evaluation of certain permits,
authorizations and certifications before applicant may be granted
permit, authorization or certification. { + Creates
exceptions. + }
Specifies costs for which state may seek compensation.
Requires state agency to provide applicant with detailed account
of certain costs upon request of applicant.
{ - Creates Energy Facility Fund. Continuously appropriates
moneys in fund to Oregon Department of Administrative
Services. - }
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to costs incurred by state agencies in connection with
energy facilities; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) For purposes of sections 1 to 3 of this
2009 Act:
(a) 'Electric utility' has the meaning given that term in ORS
757.600.
(b) 'Energy facility' means:
(A) An electric power generating plant, including but not
limited to:
(i) A thermal power plant; or
(ii) A combustion turbine power plant.
(B) A nuclear installation.
(C) High voltage transmission lines.
(D) A solar collecting facility.
(E) A pipeline that is used for the transportation of crude
petroleum or a derivative thereof, natural gas, a geothermal
energy form in a liquid state or another fossil energy resource.
(F) A synthetic fuel plant that converts a natural resource
including, but not limited to, coal or oil to a gas, liquid or
solid product intended to be used as a fuel.
(G) A plant that converts biomass to a gas, liquid or solid
product, or combination of such products, intended to be used as
a fuel.
(H) A storage facility for liquefied natural gas.
(I) A surface facility related to an underground gas storage
reservoir.
(J) A hydroelectric or hydrokinetic facility.
(K) A wind turbine.
(L) A geothermal power plant.
(M) A methane hydrate plant.
(N) Any other energy facility specified in a rule adopted by
the Director of the State Department of Energy.
(c) 'Public utility' has the meaning given that term in ORS
757.005.
(d) 'State agency' means an agency as defined in ORS 183.310
(1).
(2) Except as provided in subsection (10) of this section,
before an applicant seeking to construct an energy facility may
be granted a state-issued permit, authorization or certification
necessary for the facility's siting and construction, the
applicant must enter into a written agreement under this section
with the state agency responsible for reviewing and evaluating
the permit, authorization or certification. The agreement must be
entered into not more than 60 days after receipt by the state
agency of the application for the permit, authorization or
certification. Under the agreement, the applicant must agree to
compensate the state agency for costs associated with the review
and evaluation of the state agency permit, authorization or
certification needed to site or construct the facility, and also
to compensate other state agencies for costs associated with
their review or evaluation when the review or evaluation is
requested by the applicant, is requested by a state agency
responsible for issuing a permit, authorization or certification
or is otherwise required by law.
(3) A state agency may seek compensation under this section for
the state agency's reasonable costs for reviewing and evaluating
an application for a permit, authorization or certification to
site or construct an energy facility. The compensable costs are
limited to the state agency's actual personnel costs and other
expenses that are related to the agency's review and evaluation
of the application. State agency overhead and other indirect
costs must be specifically described in the agreement required by
subsection (2) of this section to be included as part of
compensable costs. Any costs incurred by a state agency,
including the costs of legal representation, related to defense
against administrative appeals or other legal challenges over the
approval or denial of an application for a permit, authorization
or certification, or other final agency action, are not
compensable costs under this section.
(4) If a state agency other than the agency that entered into
the agreement is requested by the applicant or the state agency
issuing a permit, authorization or certification to review and
evaluate an application for the permit, authorization or
certification, or if the review and evaluation is otherwise
required by law, the other state agency may submit the costs
incurred by that state agency to the state agency that has
entered into a written agreement with the applicant pursuant to
subsection (2) of this section for inclusion of the costs by the
state agency that has entered into the written agreement in any
charge or fee assessed to the applicant.
(5) Any amount the applicant agrees to pay pursuant to a
written agreement entered into under this section must be reduced
by any application fees, or other payment that by law is applied
against the costs of reviewing and evaluating the application for
a permit, authorization or certification.
(6)(a) A state agency shall, within 30 days of receipt of an
application for a permit, authorization or certification for an
energy facility subject to this section, provide the applicant
with a detailed estimate of the state agency's compensable costs
for reviewing and evaluating the application, together with a
description of the process and estimated schedule for completing
the review and evaluation of the application. A state agency may
not incur costs in excess of 110 percent of the estimated costs
for reviewing and evaluating an application for a permit,
authorization or certification without notifying the applicant in
advance and providing the applicant with a detailed estimate of
the additional costs needed to complete the agency's review and
evaluation of the application. A state agency may require the
applicant to pay 10 percent of its estimated costs in advance of
the date the agency incurs the costs. The state shall refund to
the applicant any payments in excess of the compensable costs
actually incurred by the state.
(b) In addition to the estimate specified in paragraph (a) of
this subsection, a state agency shall, within 30 days of receipt
of an application for a permit, authorization or certification
for an energy facility subject to this section, to the extent
feasible, provide the applicant with an estimate of other state
agency costs specified in subsection (4) of this section.
(7) Upon request, a state agency shall provide an applicant
with a detailed accounting for all compensable costs charged by
the agency under this section. If a dispute arises regarding the
compensability of costs charged to the applicant, and if the
dispute is not resolved by the directors of the affected state
agencies within 60 days of the applicant's notice to the state
that the applicant disputes the costs charged, the applicant may
seek judicial review of the amount of the costs charged as
provided in ORS 183.484, except that ORS 182.090 and 183.497 do
not apply to a proceeding under this section. If the applicant
establishes that any of the charges are not compensable under
subsection (3) of this section, the amount found to be
uncompensable must be refunded to the applicant. The applicant
does not waive the right to judicial review by paying the portion
of the costs in dispute.
(8) The provisions of this section do not apply to an applicant
seeking to site or construct an energy facility:
(a) When the applicant is subject to the provisions of ORS
469.421 or 543A.405 or any other provision of law that requires
the applicant to pay the full costs of the review and evaluation
of any applications for permits, authorizations or certifications
necessary for the siting or construction of the energy facility.
(b) When a state agency is prohibited from charging the
applicant for the review or evaluation of the application for the
permit, authorization or certification.
(c) When the permit, authorization or certification sought by
the applicant is for the continued operation, repair or
maintenance of an existing energy facility.
(d) That is a high voltage transmission line of less than 10
miles in length with a capacity of 230,000 volts or less that is
owned and operated by an electric utility.
(e) That is a pipeline that is less than 16 inches in diameter,
used for the transportation of natural gas and is owned and
operated by a public utility that provides natural gas to
customers.
(9) The Director of the State Department of Energy by rule may
exempt an energy facility from the requirements of this section
if the director determines that the costs incurred in reviewing
or evaluating any applications for state agency permits,
authorizations or certifications needed to site or construct the
energy facility are de minimis.
(10) A written agreement under this section is not required
when a state agency is requesting construction of the energy
facility for the benefit of the state agency.
(11) The provisions of this section do not apply to a permit
issued or a fee charged under the state building code, as that
term is defined in ORS 455.010.
(12) Any costs associated with the review and evaluation of a
state-issued permit, authorization or certification paid by an
applicant to a state agency under the provisions of this section
are not eligible for an income tax credit under ORS 315.354 or
316.116. + }
SECTION 2. { + The Director of the State Department of Energy
may adopt rules as necessary to implement section 1 of this 2009
Act. + }
SECTION 3. { + (1) Section 1 of this 2009 Act and rules
adopted under section 2 of this 2009 Act apply to all permits,
authorizations and certifications issued or given on or after the
effective date of this 2009 Act, whether applied for before, on
or after the effective date of this 2009 Act.
(2) If an application for a permit, authorization or
certification for an energy facility subject to section 1 of this
2009 Act is pending on the effective date of this 2009 Act, the
state shall within 30 days provide the applicant with a detailed
estimate of the state's compensable costs for reviewing and
evaluating all applications for that applicant pending on the
effective date of this 2009 Act, together with a description of
the process and estimated schedule for completing the review and
evaluation of the applications.
(3) Any costs incurred before the effective date of this 2009
Act may not be included as part of compensable costs under
section 1 (3) of this 2009 Act. + }
SECTION 4. { + This 2009 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2009 Act takes effect on its
passage. + }
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