69th OREGON LEGISLATIVE ASSEMBLY--1997 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 2733
A-Engrossed
House Bill 3283
Ordered by the House April 24
Including House Amendments dated April 24
Sponsored by COMMITTEE ON ENVIRONMENT AND ENERGY
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.
Revises energy facility siting procedures.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to energy facility siting; creating new provisions;
amending ORS 469.310, 469.370, 469.501, 469.503 and 469.505;
and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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 469.570, 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
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 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 2. ORS 469.370 is amended to read:
469.370. (1) Based on its review of the application and the
comments and recommendations on the application from state
agencies and local governments, the Office of Energy shall
prepare and issue a draft proposed order on the application.
(2) Following issuance of the draft proposed order, the Energy
Facility Siting Council shall hold one or more public hearings on
the application for a site certificate in the affected area and
elsewhere, as the council considers necessary. Notice of the
hearing shall be mailed at least 20 days before the hearing. The
notice shall, at a minimum:
(a) Comply with the requirements of ORS 197.763 (2), with
respect to the persons notified;
(b) Include a description of the facility and the facility's
general location;
(c) Include the name of an agency representative to contact and
the telephone number where additional information may be
obtained;
(d) State that copies of the application and draft proposed
order are available for inspection at no cost and will be
provided at a reasonable cost; and
(e) State that failure to raise an issue in person or in
writing prior to the close of the record of the public hearing
with sufficient specificity to afford the decision maker an
opportunity to respond to the issue precludes consideration of
the issue in a contested case.
(3) Any issue that may be the basis for a contested case shall
be raised not later than the close of the record at or following
the final public hearing prior to issuance of the Office of
Energy's proposed order. Such issues shall be raised with
sufficient specificity to afford the council, the Office of
Energy and the applicant an adequate opportunity to respond to
each issue. A statement of this requirement shall be made at the
commencement of any public hearing on the application.
(4) After reviewing the application, the draft proposed order
and any testimony given at the public hearing and after
consulting with other agencies, the Office of Energy shall issue
a proposed order recommending approval or rejection of the
application. The Office of Energy shall issue public notice of
the proposed order, that shall include notice of a contested case
hearing specifying a deadline for requests to participate as a
party or limited party and a date for the prehearing conference.
(5) Following receipt of the proposed order from the Office of
Energy, the council shall conduct a contested case hearing on the
application for a site certificate in accordance with the
applicable provisions of ORS 183.310 to 183.550 and any
procedures adopted by the council. The applicant shall be a party
to the contested case. The council may permit any other person to
become a party to the contested case in support of or in
opposition to the application only if the person appeared in
person or in writing at the public hearing on the site
certificate application. Issues that may be the basis for a
contested case shall be limited to those raised on the record of
the public hearing under subsection (3) of this section, unless:
(a) The Office of Energy failed to follow the requirements of
subsection (2) or (3) of this section; or
(b) The action recommended in the proposed order, including any
recommended conditions of the approval, differs materially from
that described in the draft proposed order, in which case only
new issues related to such differences may be raised.
(6) If no person requests party status to challenge the Office
of Energy's proposed order, the proposed order shall be forwarded
to the council and the contested case hearing shall be concluded.
(7) At the conclusion of the contested case, the council shall
issue a final order, either approving or rejecting the
application based upon the standards adopted under ORS 469.501
and any additional statutes, rules or local ordinances determined
to be applicable to the facility by the project order, as
amended. The council shall make its decision by the affirmative
vote of at least four members approving or rejecting any
application for a site certificate. The council may amend or
reject the proposed order, so long as the council provides public
notice of its hearing to adopt a final order, and provides an
opportunity for the applicant and any party to the contested case
to comment on material changes to the proposed order, including
material changes to conditions of approval resulting from the
council's review. The council's order shall be considered a final
order for purposes of appeal.
(8) Rejection or approval of an application, together with any
conditions that may be attached to the certificate, shall be
subject to judicial review as provided in ORS 469.403.
(9) The council shall either approve or reject an application
for a site certificate:
(a) Within 24 months after filing an application for a nuclear
installation, or for a thermal power plant, other than that
described in paragraph (b) of this subsection, with a name plate
rating of more than 200,000 kilowatts;
(b) Within nine months after filing of an application for a
site certificate for a combustion turbine power plant, a
geothermal-fueled power plant or an underground storage facility
for natural gas;
(c) Within six months after filing an application for a site
certificate for an energy facility, if the application is:
(A) To expand an existing industrial facility to include an
energy facility;
(B) To expand an existing energy facility to achieve a nominal
electric generating capacity of between 25 and 50 megawatts; or
(C) To add injection or withdrawal capacity to an existing
underground gas storage facility; or
(d) Within 12 months after filing an application for a site
certificate for any other energy facility.
(10) At the request of the applicant, the council shall allow
expedited processing of an application for a site certificate for
an energy facility with a generating capacity of less than 100
megawatts. No notice of intent shall be required. Following
approval of a request for expedited review, the Office of Energy
shall issue a project order, which may be amended at any time.
The council shall either approve or reject an application for a
site certificate within six months after filing the site
certificate application if there are no intervenors in the
contested case conducted under subsection (5) of this section. If
there are intervenors in the contested case, the council shall
either approve or reject an application within nine months after
filing the site certificate application. For purposes of this
subsection, the generating capacity of a thermal power plant is
the nameplate rating of the electrical generator proposed to be
installed in the plant. For a geothermal, wind or solar facility,
the generating capacity is the electrical generating capacity
available for delivery at the point the facility is connected to
the transmission system, as demonstrated through a power sales
contract or other objective means.
(11) Failure of the council to comply with the deadlines set
forth in subsection (9) or (10) of this section shall not result
in the automatic issuance or denial of a site certificate.
(12) The council shall specify in the site certificate a date
by which construction of the facility must begin. { - Except
for the portion of output to be used by the applicant, before
construction begins, a site certificate for a thermal power plant
shall require a sales contract with an energy supplier or
combination of energy suppliers for at least 80 percent of the
output from the energy facility. - }
(13) For a facility that is subject to and has been or will be
reviewed by a federal agency under the National Environmental
Policy Act, 42 U.S.C. Section 4321, et seq., the council shall
conduct its site certificate review, to the maximum extent
feasible, in a manner that is consistent with and does not
duplicate the federal agency review. Such coordination shall
include, but need not be limited to:
(a) Elimination of duplicative application, study and reporting
requirements;
(b) Council use of information generated and documents prepared
for the federal agency review;
(c) Development with the federal agency and reliance on a joint
record to address applicable council standards;
(d) Whenever feasible, joint hearings and issuance of a site
certificate decision in a time frame consistent with the federal
agency review; and
(e) To the extent consistent with applicable state standards,
establishment of conditions in any site certificate that are
consistent with the conditions established by the federal agency.
SECTION 3. ORS 469.501 is amended to read:
469.501. (1) The Energy Facility Siting Council shall adopt
standards for the siting, construction, operation and retirement
of facilities. The standards may { - include - }
{ + address + } but need not be limited to the following { +
subjects + }:
(a) The organizational, managerial and technical expertise of
the applicant to construct and operate the proposed facility.
(b) Seismic hazards.
(c) Areas designated for protection by the state or Federal
Government, including but not limited to monuments, wilderness
areas, wildlife refuges, scenic waterways and similar areas.
(d) The financial ability and qualifications of the applicant.
(e) Effects of the facility, taking into account mitigation, on
fish and wildlife, including threatened and endangered fish,
wildlife or plant species.
(f) Impacts of the facility on historic, cultural or
archaeological resources listed on, or determined by the State
Historic Preservation Officer to be eligible for listing on, the
National Register of Historic Places or the Oregon State Register
of Historic Properties.
(g) Protection of public health and safety, including necessary
safety devices and procedures.
(h) The accumulation, storage, disposal and transportation of
nuclear waste.
(i) Impacts of the facility on recreation, scenic and aesthetic
values.
(j) Reduction of solid waste and wastewater generation to the
extent reasonably practicable.
(k) Ability of the communities in the affected area to provide
sewers and sewage treatment, water, storm water drainage, solid
waste management, housing, traffic safety, police and fire
protection, health care and schools.
(L) The need for { - the - } proposed { + nongenerating + }
{ - facility - } { + facilities as defined in ORS 469.503 + },
consistent with the state energy policy set forth in ORS 469.010
and 469.310. { + The council may consider least-cost plans when
adopting a need standard or in determining whether an applicable
need standard has been met. The council shall not adopt a
standard requiring a showing of need or cost-effectiveness for
generating facilities as defined in ORS 469.503. + } { - In
adopting the need standard, the council shall consider all of the
costs of the emission from energy facilities of gases that
contribute to global warming. The standard for need shall include
but need not be limited to the following: - }
{ - (A) The council shall accord a conclusive presumption of
need for a facility or a facility substantially similar to the
proposed facility the output of which is identified for
acquisition in the short-term plan of action of an energy
resource plan adopted, approved or acknowledged by a municipal
utility, people's utility district, electrical cooperative or
other governmental body that makes or implements energy policy,
if the plan: - }
{ - (i) Includes a range of forecasts of electricity demand
growth and firm electricity resources over the planning period
using a reasonable method of forecasting; - }
{ - (ii) Considers and evaluates a reasonable range of
practicable demand and supply resource alternatives on a
consistent and comparable basis; - }
{ - (iii) Includes the development and evaluation of
alternative resource plans to meet potential energy needs over
the planning time period; - }
{ - (iv) Analyzes the uncertainties associated with
alternative resource plans; - }
{ - (v) Aims to minimize total long run resource costs while
taking into account reliability, compatibility with the power
system, strategic flexibility and external environmental costs
and benefits; - }
{ - (vi) Includes a short-term plan of action; - }
{ - (vii) Is consistent with the energy policy of the state
as set forth in ORS 469.010; and - }
{ - (viii) Was adopted, approved or acknowledged after a
full, fair and open public participation and comment process. - }
{ - (B) A least cost plan acknowledged by the Public Utility
Commission of Oregon shall be deemed to comply with the
requirements set forth for a plan in subparagraph (A) of this
paragraph. - }
{ - (C) For an Oregon municipal utility, people's utility
district or electrical cooperative, the council shall find a
facility is needed if the council determines that the facility is
economically prudent and consistent with the state's energy
policy of minimizing long run total resource costs while taking
into account reliability, compatibility with the power system,
strategic flexibility and external environmental costs and
benefits to replace power purchases available to the utility with
the power output from the facility. - }
(m) Compliance with the statewide planning goals adopted by the
Land Conservation and Development Commission as specified by ORS
469.503.
(n) Soil protection.
{ + (o) For energy facilities that emit carbon dioxide, the
impacts of those emissions on climate change. For fossil-fueled
power plants, as defined in ORS 469.503, the council shall apply
a standard as provided for by ORS 469.503 (2). + }
(2) The council may adopt exemptions { - , except for coal or
nuclear power plants, - } from any need standard adopted under
subsection (1)(L) of this section if the exemption is consistent
with the state's energy policy set forth in ORS 469.010 and
469.310. { - In addition to any other exemption the council has
adopted by rule prior to July 5, 1995, up to 500 megawatts of
natural gas fired facilities shall be exempt from any need
standard if the applications for such facilities are deemed
complete on or before July 1, 1997. - }
(3) The council may issue a site certificate for a facility
that does not meet one or more of the standards adopted under
subsection (1) of this section if the council determines that the
overall public benefits of the facility outweigh the damage to
the resources protected by the standards the facility does not
meet.
SECTION 4. ORS 469.503 is amended to read:
469.503. { - (1) - } 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:
{ - (a) - } { + (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, no
sooner than two years after the effective date of this 1997 Act,
the council may by rule modify the carbon dioxide emissions
standard for base load gas plants if the council finds that the
most efficient stand-alone combined cycle, combustion turbine,
natural gas-fired energy facility that is commercially
demonstrated and operating in the United States has a net heat
rate of less than 7,200 Btu per kilowatt hour higher heating
value adjusted to ISO conditions. In modifying the carbon dioxide
emission standard, the council shall determine the rate of carbon
dioxide emissions per kilowatt hour of net electric output of
such energy facility, adjusted to ISO conditions, and reset the
carbon dioxide emissions standard at 17 percent below this rate.
(b) The council shall adopt carbon dioxide emissions standards
for other types of fossil-fueled power plants. Such carbon
dioxide emissions standards shall be promulgated by rule. In
adopting or amending such carbon dioxide emissions standards, the
council shall consider and balance at least the following
principles, the findings on which shall be contained in the
rule-making record:
(A) Promote facility fuel efficiency;
(B) Promote efficiency in the resource mix;
(C) Reduce net carbon dioxide emissions;
(D) Promote cogeneration that reduces net carbon dioxide
emissions;
(E) Promote innovative technologies and creative approaches to
mitigating, reducing or avoiding carbon dioxide emissions;
(F) Minimize transaction costs;
(G) Include an alternative process that separates decisions on
the form and implementation of offsets from the final decision on
granting a site certificate;
(H) Allow either the applicant or third parties to implement
offsets;
(I) Be attainable and economically achievable for various types
of power plants;
(J) Promote public participation in the selection and review of
offsets;
(K) Promote prompt implementation of offset projects;
(L) Provide for monitoring and evaluation of the performance of
offsets; and
(M) Promote reliability of the regional electric system.
(c) The council shall determine whether the applicable carbon
dioxide emissions standard is met by first determining the gross
carbon dioxide emissions that are reasonably likely to result
from the operation of the proposed energy facility. Such
determination shall be based on the proposed design of the energy
facility. The council shall adopt site certificate conditions to
ensure that the predicted carbon dioxide emissions are not
exceeded on a new and clean basis. For any remaining emissions
reduction necessary to meet the applicable standard, the
applicant may elect to use any of subparagraphs (A) to (D) of
this paragraph, or any combination thereof. The council shall
determine the amount of carbon dioxide emissions reduction that
is reasonably likely to result from the applicant's offsets and
whether the resulting net carbon dioxide emissions meet the
applicable carbon dioxide emissions standard. If the council or
a court on judicial review concludes that the applicant has not
demonstrated compliance with the applicable carbon dioxide
emissions standard under subparagraphs (A), (B) or (D) of this
paragraph, or any combination thereof, and the applicant has
agreed to meet the requirements of subparagraph (C) of this
paragraph for any deficiency, the council or a court shall find
compliance based on such agreement.
(A) The facility will sequentially produce electrical and
thermal energy from the same fuel source, and the thermal energy
will be used to displace another source of carbon dioxide
emissions that would have otherwise continued to occur, in which
case the council shall adopt site certificate conditions ensuring
that the carbon dioxide emissions reduction will be achieved.
(B) The applicant or a third party will implement particular
offsets, in which case the council may adopt site certificate
conditions ensuring that the proposed offsets are implemented but
shall not require that predicted levels of avoidance,
displacement or sequestration of carbon dioxide emissions be
achieved. The council shall determine the quantity of carbon
dioxide emissions reduction that is reasonably likely to result
from each of the proposed offsets based on the criteria in
sub-subparagraphs (i) to (iii) of this subparagraph. In making
this determination, the council shall not allow credit for
offsets that have already been allocated or awarded credit for
carbon dioxide emissions reduction in another regulatory setting.
In addition, the fact that an applicant or other parties involved
with an offset may derive benefits from the offset other than the
reduction of carbon dioxide emissions is not, by itself, a basis
for withholding credit for an offset.
(i) The degree of certainty that the predicted quantity of
carbon dioxide emissions reduction will be achieved by the
offset;
(ii) The ability of the council to determine the actual
quantity of carbon dioxide emissions reduction resulting from the
offset, taking into consideration any proposed measurement,
monitoring and evaluation of mitigation measure performance; and
(iii) The extent to which the reduction of carbon dioxide
emissions would occur in the absence of the offsets.
(C) The applicant or a third party agrees to provide funds in
an amount deemed sufficient to produce the reduction in carbon
dioxide emissions necessary to meet the applicable carbon dioxide
emissions standard, in which case the funds shall be used as
specified in paragraph (d) of this subsection. Unless modified by
the council as provided below, the payment of 57 cents shall be
deemed to result in a reduction of one ton of carbon dioxide
emissions. The council shall determine the offset funds using the
monetary offset rate and the level of emissions reduction
required to meet the applicable standard. If a site certificate
is approved based on this subparagraph, the council may not
adjust the amount of such offset funds based on the actual
performance of offsets. After three years from the effective
date of this 1997 Act, the council may by rule increase or
decrease the monetary offset rate of 57 cents per ton of carbon
dioxide emissions. Any change to the monetary offset rate shall
be based on empirical evidence of the cost of carbon dioxide
offsets and the council's finding that the standard will be
economically achievable with the modified rate for natural
gas-fired power plants. Following the initial three-year period,
the council may increase or decrease the monetary offset rate no
more than 50 percent in any two-year period.
(D) Any other means that the council adopts by rule for
demonstrating compliance with any applicable carbon dioxide
emissions standard.
(d) If the applicant elects to meet the applicable carbon
dioxide emissions standard in whole or in part under paragraph
(c)(C) of this subsection the applicant shall identify the
qualified organization. The applicant may identify an
organization that has applied for, but has not received, an
exemption from federal income taxation, but the council may not
find that the organization is a qualified organization unless the
organization is exempt from federal taxation under section
501(c)(3) of the Internal Revenue Code as amended and in effect
on December 31, 1996. The site certificate holder shall provide a
bond or comparable security in a form reasonably acceptable to
the council to ensure the payment of the offset funds and the
amount required under subparagraph (A)(ii) of this paragraph.
Such security shall be provided by the date specified in the site
certificate, which shall be no later than the commencement of
construction of the facility. The site certificate shall require
that the offset funds be disbursed as specified in subparagraph
(A) of this paragraph, unless the council finds that no qualified
organization exists, in which case the site certificate shall
require that the offset funds be disbursed as specified in
subparagraph (B) of this paragraph.
(A) The site certificate holder shall disburse the offset funds
and any other funds required by sub-subparagraph (ii) of this
subparagraph to the qualified organization as follows:
(i) When the site certificate holder receives written notice
from the qualified organization certifying that the qualified
organization is contractually obligated to pay any funds to
implement offsets using the offset funds, the site certificate
holder shall make the requested amount available to the qualified
organization unless the total of the amount requested and any
amounts previously requested exceeds the offset funds, in which
case only the remaining amount of the offset funds shall be made
available. The qualified organization shall use at least 80
percent of the offset funds for contracts to implement offsets.
The qualified organization may use up to 20 percent of the offset
funds for monitoring, evaluation, administration and enforcement
of contracts to implement offsets.
(ii) At the request of the qualified organization and in
addition to the offset funds, the site certificate holder shall
pay the qualified organization an amount equal to 10 percent of
the first $500,000 of the offset funds and 4.286 percent of any
offset funds in excess of $500,000. This amount shall not be less
than $50,000 unless a lesser amount is specified in the site
certificate. This amount compensates the qualified organization
for its costs of selecting offsets and contracting for the
implementation of offsets.
(iii) Notwithstanding any provision to the contrary, a site
certificate holder subject to this subparagraph shall have no
obligation with regard to offsets, the offset funds or the funds
required by sub-subparagraph (ii) of this subparagraph other than
to make available to the qualified organization the total amount
required under paragraph (c) of this subsection and
sub-subparagraph (ii) of this subparagraph, nor shall any
nonperformance, negligence or misconduct on the part of the
qualified organization be a basis for revocation of the site
certificate or any other enforcement action by the council with
respect to the site certificate holder.
(B) If the council finds there is no qualified organization,
the site certificate holder shall select one or more offsets to
be implemented pursuant to criteria established by the council.
The site certificate holder shall give written notice of its
selections to the council and to any person requesting notice. On
petition by the Office of Energy, or by any person adversely
affected or aggrieved by the site certificate holder's selection
of offsets, or on the council's own motion, the council may
review such selection. The petition must be received by the
council within 30 days of the date the notice of selection is
placed in the United States mail, with first-class postage
prepaid. The council shall approve the site certificate holder's
selection unless it finds that the selection is not consistent
with criteria established by the council. The site certificate
holder shall contract to implement the selected offsets within 18
months after commencing construction of the facility unless good
cause is shown requiring additional time. The contracts shall
obligate the expenditure of at least 85 percent of the offset
funds for the implementation of offsets. No more than 15 percent
of the offset funds may be spent on monitoring, evaluation and
enforcement of the contract to implement the selected offsets.
The council's criteria for selection of offsets shall be based on
the criteria set forth in paragraphs (b)(C) and (c)(B) of this
subsection and may also consider the costs of particular types of
offsets in relation to the expected benefits of such offsets. The
council's criteria shall not require the site certificate holder
to select particular offsets, and shall allow the site
certificate holder a reasonable range of choices in selecting
offsets. In addition, notwithstanding any other provision of this
section, the site certificate holder's financial liability for
implementation, monitoring, evaluation and enforcement of offsets
pursuant to this subsection shall be limited to the amount of any
offset funds not already contractually obligated. Nonperformance,
negligence or misconduct by the entity or entities implementing,
monitoring or evaluating the selected offset shall not be a basis
for revocation of the site certificate or any other enforcement
action by the council with respect to the site certificate
holder.
(C) Every qualified organization that has received funds under
this paragraph shall, at five-year intervals beginning on the
date of receipt of such funds, provide the council with the
information the council requests about the qualified
organization's performance. The council shall evaluate the
information requested and, based on such information, shall make
any recommendations to the Legislative Assembly that the council
deems appropriate.
(e) As used in this subsection:
(A) 'Adjusted to ISO conditions' means carbon dioxide emissions
and net electric power output as determined at 59 degrees
Fahrenheit, 14.7 pounds per square inch atmospheric pressure and
60 percent humidity.
(B) 'Base load gas plant' means a generating facility that is
fueled by natural gas, except for periods during which an
alternative fuel may be used and when such alternative fuel use
shall not exceed 10 percent of expected fuel use in Btu, higher
heating value, on an average annual basis, and where the
applicant requests and the council adopts no condition in the
site certificate for the generating facility that would limit
hours of operation other than restrictions on the use of
alternative fuel. The council shall assume a 100-percent
capacity factor for such plants and a 30-year life for the plants
for purposes of determining gross carbon dioxide emissions.
(C) 'Fossil-fueled power plant' means a generating facility
that produces electric power from natural gas, petroleum, coal or
any form of solid, liquid or gaseous fuel derived from such
material.
(D) 'Generating facility' means those energy facilities that
are defined in ORS 469.300 (9)(a)(A), (B) and (D).
(E) 'Gross carbon dioxide emissions' means the predicted carbon
dioxide emissions of the proposed energy facility measured on a
new and clean basis.
(F) 'Net carbon dioxide emissions' means gross carbon dioxide
emissions of the proposed energy facility, less carbon dioxide
emissions avoided, displaced or sequestered by any combination of
cogeneration or offsets.
(G) 'New and clean basis' means the average carbon dioxide
emissions rate per hour and net electric power output of the
energy facility, without degradation, as determined by a 100-hour
test at full power completed during the first 12 months of
commercial operation of the energy facility, with the results
adjusted for the average annual site condition for temperature,
barometric pressure and relative humidity and use of alternative
fuels, and using a rate of 117 pounds of carbon dioxide per
million Btu of natural gas fuel and a rate of 161 pounds of
carbon dioxide per million Btu of distillate fuel, if such fuel
use is proposed by the applicant. The council may by rule adjust
the rate of pounds of carbon dioxide per million Btu for natural
gas or distillate fuel. The council may by rule set carbon
dioxide emissions rates for other fuels.
(H) 'Nongenerating facility' means those energy facilities that
are defined in ORS 469.300 (9)(a)(C) and (E) to (H).
(I) 'Offset' means an action that will be implemented by the
applicant, a third party or through the qualified organization to
avoid, sequester or displace emissions of carbon dioxide.
(J) 'Offset funds' means the amount of funds determined by the
council to satisfy the applicable carbon dioxide emissions
standard pursuant to paragraph (c)(C) of this subsection.
(K) 'Qualified organization' means an entity that:
(i) Is exempt from federal taxation under section 501(c)(3) of
the Internal Revenue Code as amended and in effect on December
31, 1996;
(ii) Either is incorporated in the State of Oregon or is a
foreign corporation authorized to do business in the State of
Oregon;
(iii) Has in effect articles of incorporation that require that
offset funds received pursuant to this section are used for
offsets that will result in the direct reduction, elimination,
sequestration or avoidance of carbon dioxide emissions, that
require that decisions on the use of such funds are made by a
body composed of seven voting members of which three are
appointed by the council, three are Oregon residents appointed by
the Bullitt Foundation or an alternative environmental nonprofit
organization named by the body, and one is appointed by the
applicants for site certificates that are subject to paragraph
(d) of this subsection and the holders of such site certificates,
and that require nonvoting membership on the decision-making body
for holders of site certificates that have provided funds not yet
disbursed under paragraph (d)(A) of this subsection;
(iv) Has made available on an annual basis, beginning after the
first year of operation, a signed opinion of an independent
certified public accountant stating that the qualified
organization's use of funds pursuant to this statute conforms
with generally accepted accounting procedures except that the
qualified organization shall have one year to conform with
generally accepted accounting principles in the event of a
nonconforming audit;
(v) Has to the extent applicable, except for good cause,
entered into contracts obligating at least 60 percent of the
offset funds to implement offsets within two years after the
commencement of construction of the facility; and
(vi) Has to the extent applicable, except for good cause,
complied with paragraph (d)(A)(i) of this subsection. + }
{ - (b) - } { + (3) + } Except as provided in { - this
section - } { + section 5 of this 1997 Act + } 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.
{ - (c) - } { + (4) + } The facility complies with the
statewide planning goals adopted by the Land Conservation and
Development Commission.
{ - (2) A proposed facility shall be found in compliance with
the statewide planning goals under subsection (1)(c) of this
section if: - }
{ - (a) The facility has received local land use approval
under the acknowledged comprehensive plan and land use
regulations of the affected local government; or - }
{ - (b) The council determines: - }
{ - (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 - }
{ - (B) The facility complies 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); or - }
{ - (C) For an energy facility or a related or supporting
facility that must be evaluated against the applicable
substantive criteria pursuant to subsection (6) 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 (3) of this section; or - }
{ - (D) For a facility that the council elects to evaluate
against the statewide planning goals pursuant to subsection (6)
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
(3) of this section. - }
{ - (3) 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
the 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. - }
{ - (4) If compliance with applicable substantive local
criteria and applicable statutes and state administrative rules
would result in conflicting conditions in the 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. - }
{ - (5) An applicant for a site certificate shall elect
whether to demonstrate compliance with the statewide planning
goals under subsection (2)(a) or (b) of this section. The
applicant shall make the election on or before the date specified
by the council by rule. - }
{ - (6) Upon request by the Office of Energy, the special
advisory group established under ORS 469.480 shall recommend to
the council, within the time stated in the request, the
applicable substantive criteria under subsection (2)(b)(A) of
this section. If the special advisory group does not recommend
applicable substantive criteria within the time established in
the Office of Energy's request, the council may either determine
and apply the applicable substantive criteria under subsection
(2)(b) of this section or determine compliance with the statewide
planning goals under subsection (2)(b)(C) or (D) of this section.
If the special advisory group recommends applicable substantive
criteria for an energy facility described in ORS 469.300
(9)(a)(A) to (H) or a related or supporting facility that does
not pass through more than one local government jurisdiction or
more than three zones in any one jurisdiction, the council shall
apply the criteria recommended by the special advisory group. If
the special advisory group recommends applicable substantive
criteria for an energy facility described in ORS 469.300
(9)(a)(C) to (E) 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 consistence of the applicable
substantive criteria from the various zones and
jurisdictions. - }
{ - (7) 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. - }
{ - (8) 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 application. - }
{ - (9) 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 (2)(a) of this
section and the special advisory group's recommendation of
applicable substantive criteria under subsection (6) of this
section shall be subject to judicial review only as provided in
ORS 469.403. If the applicant elects to comply with subsection
(2)(a) of this section, the provisions of this subsection shall
apply only to proposed projects for which the land use approval
of the local government occurs after the date a notice of intent
or an application for expedited processing is submitted to the
Office of Energy. - }
{ - (10) The Office of Energy, in cooperation with other
state agencies, shall provide, to the extent possible, technical
assistance and information about the siting process to local
governments that request such assistance or that anticipate
having a facility proposed in their jurisdiction. - }
SECTION 5. { + (1) A proposed facility shall be found in
compliance with the statewide planning goals under ORS 469.503
(4) if:
(a) The facility has received local land use approval under the
acknowledged comprehensive plan and land use regulations of the
affected local government; or
(b) The council determines that:
(A) The facility complies with applicable substantive criteria
from the affected local government's acknowledged comprehensive
plan and land use regulations that are required by the statewide
planning goals and in effect on the date the application is
submitted, and with any Land Conservation and Development
Commission administrative rules and goals and any land use
statutes directly applicable to the facility under ORS 197.646
(3);
(B) For an energy facility or a related or supporting facility
that must be evaluated against the applicable substantive
criteria pursuant to subsection (5) of this section, that the
proposed facility does not comply with one or more of the
applicable substantive criteria but does otherwise comply with
the applicable statewide planning goals, or that an exception to
any applicable statewide planning goal is justified under
subsection (2) of this section; or
(C) For a facility that the council elects to evaluate against
the statewide planning goals pursuant to subsection (5) of this
section, that the proposed facility complies with the applicable
statewide planning goals or that an exception to any applicable
statewide planning goal is justified under subsection (2) of this
section.
(2) The council may find goal compliance for a facility that
does not otherwise comply with one or more statewide planning
goals by taking an exception to the applicable goal.
Notwithstanding the requirements of ORS 197.732, the statewide
planning goal pertaining to the exception process or any rules of
the Land Conservation and Development Commission pertaining to an
exception process goal, the council may take an exception to a
goal if the council finds:
(a) The land subject to the exception is physically developed
to the extent that the land is no longer available for uses
allowed by the applicable goal;
(b) The land subject to the exception is irrevocably committed
as described by the rules of the Land Conservation and
Development Commission to uses not allowed by the applicable goal
because existing adjacent uses and other relevant factors make
uses allowed by the applicable goal impracticable; or
(c) The following standards are met:
(A) Reasons justify why the state policy embodied in the
applicable goal should not apply;
(B) The significant environmental, economic, social and energy
consequences anticipated as a result of the proposed facility
have been identified and adverse impacts will be mitigated in
accordance with rules of the council applicable to the siting of
the proposed facility; and
(C) The proposed facility is compatible with other adjacent
uses or will be made compatible through measures designed to
reduce adverse impacts.
(3) If compliance with applicable substantive local criteria
and applicable statutes and state administrative rules would
result in conflicting conditions in the site certificate, the
council shall resolve the conflict consistent with the public
interest. A resolution may not result in a waiver of any
applicable state statute.
(4) An applicant for a site certificate shall elect whether to
demonstrate compliance with the statewide planning goals under
subsection (1)(a) or (b) of this section. The applicant shall
make the election on or before the date specified by the council
by rule.
(5) Upon request by the Office of Energy, the special advisory
group established under ORS 469.480 shall recommend to the
council, within the time stated in the request, the applicable
substantive criteria under subsection (1)(b)(A) of this section.
If the special advisory group does not recommend applicable
substantive criteria within the time established in the Office of
Energy's request, the council may either determine and apply the
applicable substantive criteria under subsection (1)(b) of this
section or determine compliance with the statewide planning goals
under subsection (1)(b)(B) or (C) of this section. If the special
advisory group recommends applicable substantive criteria for an
energy facility described in ORS 469.300 (9)(a) or a related or
supporting facility that does not pass through more than one
local government jurisdiction or more than three zones in any one
jurisdiction, the council shall apply the criteria recommended by
the special advisory group. If the special advisory group
recommends applicable substantive criteria for an energy facility
described in ORS 469.300 (9)(a)(C) to (E) 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 application.
(8) Notwithstanding ORS 34.020 or 197.825 or any other
provision of law, the affected local government's land use
approval of a proposed facility under subsection (1)(a) of this
section and the special advisory group's recommendation of
applicable substantive criteria under subsection (5) of this
section shall be subject to judicial review only as provided in
ORS 469.403. If the applicant elects to comply with subsection
(1)(a) of this section, the provisions of this subsection shall
apply only to proposed projects for which the land use approval
of the local government occurs after the date a notice of intent
or an application for expedited processing is submitted to the
Office of Energy.
(9) The Office of Energy, in cooperation with other state
agencies, shall provide, to the extent possible, technical
assistance and information about the siting process to local
governments that request such assistance or that anticipate
having a facility proposed in their jurisdiction. + }
SECTION 6. { + Sections 7 and 8 of this Act are added to and
made a part of ORS 469.300 to 469.570. + }
SECTION 7. { + Any site certificate holder that is required by
its site certificate or by law to demonstrate need for the
facility shall instead demonstrate compliance with the carbon
dioxide emissions standard applicable to the type of facility
subject to the site certificate before beginning construction.
Such a demonstration shall be made as an amendment to the site
certificate. Notwithstanding ORS 469.405 or any council rule, if
the site certificate holder proceeds pursuant to ORS 469.503
(2)(c)(A) or (C), or both, the Energy Facility Siting Council
shall not conduct a contested case hearing on such amendment and
the council's order shall not be subject to judicial review. Any
dispute about the site certificate holder's demonstration of
compliance with the applicable carbon dioxide emissions standard
shall be settled through binding arbitration. + }
SECTION 8. { + (1) A recipient may by amendment of its
application for a site certificate or by amendment of its site
certificate increase the capacity of the facility if the Energy
Facility Siting Council finds that:
(a) The facility will satisfy the conditions of the
500-megawatt exemption, unless modified by the council;
(b) The enlarged facility does not exceed 500 megawatts and
meets the applicable carbon dioxide standard provided for in ORS
469.503 (2) for any increase in capacity beyond the capacity of
the 500-megawatt exemption; and
(c) The enlarged facility meets all other applicable council
standards.
(2) A recipient is deemed to meet any applicable need standard
and carbon dioxide emissions standard for the nominal generating
capacity of the 500-megawatt exemption provided that the
recipient satisfies the conditions of the 500-megawatt exemption,
unless the council modifies the conditions.
(3) As used in this section:
(a) 'Recipient' means any base load gas plant, as defined in
ORS 469.503, determined by the council to have the lowest net
monetized air emissions among the applicants participating in a
contested case proceeding.
(b) '500-megawatt exemption' means the council order in which a
recipient was determined to have the lowest net monetized air
emissions. + }
SECTION 9. ORS 469.505 is amended to read:
469.505. (1) In making a determination regarding compliance
with statutes, rules and ordinances administered by another
agency or compliance with requirements of ORS 469.300 to 469.570
and 469.590 to 469.619 where another agency has special
expertise, consultation with the other agency shall occur during
the notice of intent and site certificate application process.
Any permit application for which the permitting decision has been
delegated by the Federal Government to a state agency other than
the Energy Facility Siting Council shall be reviewed, whenever
feasible, simultaneously with the council's review of the site
certificate application. Any hearings required on such permit
applications shall be consolidated, whenever feasible, with
hearings under ORS 469.300 to 469.570 and 469.590 to 469.619.
(2) Before resolving any conflicting conditions in site
certificates under ORS 469.503 { - (1)(b) and (4) - } { + (3)
and section 5 of this 1997 Act + }, the council shall notify and
consult with the agencies and local governments responsible for
administering the statutes, administrative rules or substantive
local criteria that result in the conflicting conditions
regarding potential conflict resolution.
SECTION 10. { + This Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this Act takes effect on its
passage. + }
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