Introduction
Notice of Intent
Expedited Review
Application for a Site Certificate
Filing the Application
Draft Proposed Order
Public Hearing
Proposed Order
Contested Case Proceeding
Final Order
Appeal
Most large energy facilities in Oregon are under the jurisdiction of the Oregon Energy Facility Siting Council (Council). The Oregon Legislature determines what types of energy facilities require Council review. An energy facility developer must apply to the Council for a site certificate and must supply information about the proposed facility and the proposed site.
The energy facility siting statutes, beginning at ORS 469.300, include provisions that make the Oregon siting process different from the permitting process in other states and different from the permitting practices of many other state and local agencies in Oregon. These provisions include:
- The use of specific standards for determining compliance
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A "one-stop" process in which the Council determines compliance with specific standards of the Council and other state and local permitting agencies
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Public comment periods at the front end of the process, followed by a more formal contested case proceeding
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Appeal directly to the Supreme Court for judicial review
If a proposed energy facility meets the standards, the Council must issue the site certificate. If the facility does not meet one or more of the standards, the Council cannot issue the site certificate unless the applicant can show that the overall public benefits of the facility outweigh the damage to the resources protected by the standards the facility does not meet.
In making the siting decision, the Council considers not only its own standards but also the applicable rules and ordinances of state and local agencies. The Council’s decision is binding on all state and local agencies whose permits are addressed in the Council’s review. These agencies must issue necessary permits and licenses, subject only to the conditions adopted by the Council. The Council’s decision does not apply to federally-delegated permits.
The standard siting process has two major phases, which are described in more detail below. In the first phase, the applicant submits a Notice of Intent to the Department of Energy (Department). The Notice of Intent describes the proposed facility in general terms, allows the Department to gather public comment and enables state and local agencies to identify laws, regulations and ordinances that apply to the proposed facility. The second phase begins when the applicant submits a Preliminary Application to the Department and ends when the Council decides whether or not to issue a site certificate.
During its review, the Department consults with other state and local agencies to ensure that the Council considers all governmental concerns. The Department encourages applicants to work directly with the agencies to promote better understanding of their proposed projects. Applicants need not wait until they submit an application to begin working with state and local authorities.
When the Preliminary Application is submitted, the applicant must choose whether to seek land use approval from the local jurisdiction or to have the Council make the land use determination. Either way, the participation of the local city or county land use planning department is essential. If the applicant chooses to seek land use approval at the local level, then the applicant must follow the local procedures and comply with all local land use ordinances. The Council will issue a site certificate for the project only if the local jurisdiction has approved the proposed land use. If the applicant chooses instead to have the Council make the land use determination, the Council must make findings on compliance with the local land use ordinances. Local officials are asked to identify the "applicable substantive criteria" from local land use ordinances and comprehensive plan that the Council should apply to the proposed facility.
The Notice of Intent (NOI) provides information about the proposed energy facility and its potential impacts. The NOI enables the Department and other government agencies to identify issues and determine staffing needs for the review process. It provides the first opportunity for public participation in the process. The Department usually holds at least one public informational meeting in the vicinity of the site of the proposed facility. Public and agency comments on the notice of intent alert the applicant to issues that the applicant will need to address.
After receiving an NOI, the Department issues a public notice. The Department mails the notice to nearby landowners identified by the applicant and to the Council´s mailing list. In addition, the Department publishes a notice in a newspaper available in the vicinity of the proposed facility.
Applicants should begin informal discussions with the Department before submitting an NOI. Early discussions allow time for planning and identification of issues. Applicants should also begin discussions with local land use agencies and with agencies such as the Oregon Department of Environmental Quality (DEQ) whose federally-delegated permits are outside Council jurisdiction.
Some permits that the facility may need require baseline data that are not available from existing studies. The applicant must gather baseline data over a sufficient period to take into account seasonal and other fluctuations. For instance, a DEQ air quality permit will typically require twelve months of baseline air quality data. Similarly, water quality in surface or ground waters that undergo seasonal changes would require seasonal data. Studies for threatened and endangered species and wildlife habitat typically must be done at specific times of year. It is likely that the applicant will need to begin collecting baseline data before submitting the NOI.
OAR 345-020-0011 describes the required content of an NOI. The NOI must describe the proposed energy facility, the site and the possible impacts of development in enough detail for the Department and other agencies to identify the applicable statutes, rules and local ordinances. The NOI must include a list of permits that the applicant believes are applicable. The applicant should consult with state and local agencies to identify these requirements. The NOI must include a list of potentially affected property owners, as described in OAR 345-020-0011(1)(f).
The NOI must include proposed routes for linear facilities, such as gas pipelines or electric transmission lines. If a proposed transmission line or gas pipeline will cross land zoned for exclusive farm use, then the applicant may need to provide an alternatives analysis under ORS 215.213 or 215.283 to show that the facility is necessary for public service. In exclusive farm use zones, the criteria in ORS 215.275 determine whether a utility facility established under ORS 215.213 (1)(d) or 215.283 (1)(d) is necessary for public service.
After reviewing the Notice of Intent, the Department issues a Project Order. The Project Order identifies applicable statutes, rules and local ordinances. It describes any special information needed for the application. The Project Order defines the analysis areas over which the applicant must assess the facility’s potential impacts. The Department will determine these areas based on the type of facility and its location. The analysis areas vary for different types of impacts.
Small Capacity Facilities
For power plants with an average electric generating capacity of less than 100 megawatts, the applicant can request expedited review. The Council grants expedited review by rule if the Department determines that the facility meets the eligibility requirements described in OAR 345-015-0300.
Average electric generating capacity is defined as the facility’s nominal capacity, adjusted by a factor defined in statute. For different types of electric generating facilities, the factors are as follows:
- for gas-fired facilities, the factor is 1.0 (average and nominal capacity are the same)
- for wind or solar facilities, the factor is 3.0 (a wind or solar facility with nominal capacity of less than 300 megawatts qualifies for expedited review)
- for geothermal facilities, the factor is 1.11 (a geothermal facility with nominal capacity of less than 111 megawatts qualifies for expedited review)
In addition to the capacity criteria above, the facility must not include a gas pipeline or electric transmission line that, by itself, would be under Council jurisdiction.
If expedited review is allowed, the applicant is not required to submit a Notice of Intent. In an expedited review, the applicant submits an Preliminary Application for a site certificate based on the requirements described in OAR 345-021-0010. The Department issues a Project Order after reviewing the Preliminary Application. Except for skipping the Notice of Intent phase, an expedited review for a small capacity facility is identical to a standard review of a site certificate application.
Gas-fired generating plants (regardless of capacity) may qualify expedited review if they meet certain special criteria found at ORS 469.373. These criteria include:
- Location in an industrial zone near existing industrial facilities.
- No more than three miles of new transmission line or gas pipeline outside existing right of way
- No new water right or water right transfer
- No new NPDES permit unless it will be obtained by a municipal facility
- Compliance with the Council’s carbon dioxide standard via the monetary path.
To request expedited review, applicants must provide written evidence to the Department that the proposed project meets the ORS 469.373 criteria. If the Department finds that the criteria are met, it will allow expedited review on a preliminary and non-binding basis.
The special criteria expedited review process is described in OAR 345-015-0310 and -0320. Briefly, it differs from the standard review process in the following ways:
- The applicant does not submit a Notice of Intent.
- The Department issues a project order after the applicant submits a Preliminary Application for a site certificate.
- The Department must notify the applicant whether the application is complete within 30 days of receiving it. If the application is not complete, the Department will not file it until the applicant has submitted all the information necessary to determine if the project meets the standards.
- The Department holds a public informational meeting after the application is complete.
- The Department issues a Draft Proposed Order within 90 days after the date that the application is complete and filed.
- After the Council reviews the Draft Proposed Order, the Department issues a Proposed Order.
- The Council holds a public hearing after the Department issues the Proposed Order.
- The applicant can request an additional 14 days to supplement the evidentiary record if new issues are raised at the public hearing.
- The applicant can request a contested case, but there is no contested case unless the applicant requests one.
- The Council makes the land use determination as described in ORS 469.504(1)(b).
- The Council must make a site certificate decision within 6 months after the application is complete.
- If the Council decides that the project did not qualify for expedited review, then review of the application continues under the standard process, starting at the completeness phase (see Filing the Application below).
The applicant cannot submit the application until the Department has issued a Project Order (except in the case of an expedited review), but applicants can shorten the preparation phase by planning as much of the application as possible in advance. The content of the Notice of Intent is designed to match the content of the application (although the application is more detailed). A well-prepared Notice of Intent can serve as a starting framework for the application. It may also be useful to contact other state agencies and ask for informal involvement during this phase. Some agencies, for example, may need to conduct field inspections, which could be initiated during the application preparation phase.
An application for a site certificate includes a detailed description of the proposed site, the proposed facility and the anticipated impacts. The applicant must show how the proposed facility complies with the Council’s standards. The Project Order and the specific requirements of OAR 345-021-0010 define the content of the application.
In the Preliminary Application, the applicant must choose whether to seek land use approval from the local jurisdiction or to have the Council make the land use determination. Once the applicant has made the choice, the applicant may not later amend the application to make a different choice. If the Council makes the land use determination, the Council will apply the applicable substantive criteria in effect on the date the application is submitted. The local government is asked to identify the applicable land use criteria.
The purpose of the application is to give the Council the information needed to determine compliance with energy facility siting standards. Although OAR 345-021-0010 calls for specific detailed information, applicants should include any additional information that is important to a demonstration of compliance with the standards.
For pipelines and transmission lines, the applicant selects the final proposed corridor in the Preliminary Application, although the applicant has the option of requesting a site certificate that includes more than one corridor. The Preliminary Application must document a detailed corridor selection assessment using criteria set forth in OAR 345-021-0010(1)(b)(D), including consideration of any comments from the public, interested agencies and local governments.
The Department reviews the Preliminary Application to determine if it is complete. The Department determines whether the application contains enough information to support findings by the Council that the facility meets the applicable standards. If necessary to find the application complete, the Department requests additional information from the applicant. During this "completeness" phase, there often are changes or additions to the application, either in response to the Department´s questions or as the result of changes in the applicant’s plans.
When the Department determines the application is complete, the Department asks the applicant to submit an Application Supplement, which compiles all of the additional information the applicant has submitted after the Preliminary Application was submitted. The Department "files" the application after the Supplement is received. The Department issues a public notice when the application is filed.
The Department conducts a thorough review of the complete application. The Department consults with other state and local government agencies and requests their comments and proposed site certificate conditions. The review concludes when the Department issues a Draft Proposed Order, as provided under ORS 469.370. The Draft Proposed Order includes proposed findings of fact, recommended conclusions on compliance with Council standards and recommended site certificate conditions for construction, operation and retirement of the facility.
The Department issues a public notice of the Draft Proposed Order. The public notice includes notice of a public hearing. The hearing is essential to Oregon´s energy facility siting process, ensuring that the process of siting energy facilities in the state is a public process. Anyone having a concern in opposition to the proposed facility must raise the issue on the record of the hearing:
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To raise an issue on the record of the public hearing, a person must raise the issue in person at the public hearing or in a written comment submitted after the date of the notice and received by the Department before the deadline given in the notice.
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Failure to raise an issue in person or in writing on 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.
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To raise an issue with sufficient specificity, a person must present facts that support the person’s position on the issue.
After the public hearing, the Council reviews the Draft Proposed Order in a public meeting. The Council does not take public comment on the application at this meeting. Based on the comments of the Council, public comment on the record of the public hearing described above and consultation with other governmental agencies, the Department then issues a Proposed Order. At the same time, the Department sends a notice of contested case to persons who appeared in person or in writing at the public hearing.
A contested case proceeding is mandatory under ORS 469.370(5). The Council appoints an independent hearing officer to conduct the proceeding. Aside from the applicant and the Department of Energy, anyone else wanting to participate in the contested case proceeding must request party status from the hearing officer.
Persons who have an interest in the outcome of the Council’s contested case proceeding or who represent a public interest in such result may request to participate as parties or limited parties. Only those persons who have commented in person or in writing on the record of the public hearing may request party status. To raise an issue in a contested case proceeding, the issue must be within the jurisdiction of the Council. The person must have raised the issue in person or in writing on the record of the public hearing. To have raised an issue with sufficient specificity, the person must have presented facts at the public hearing that support the person’s position on the issue.
At the conclusion of the contested case proceeding, the hearing officer issues a Proposed Contested Case Order. The parties in the contested case proceeding may file exceptions to the proposed order.
Following the contested case proceeding, the Council decides whether or not to issue a site certificate. The Council grants a site certificate if at least four members of the Council agree. The Council issues its decision in a Final Order.
Following the Council’s Final Order, any party to the contested case has 30 days to apply for a rehearing. A party may petition for judicial review within 60 days after the date of service of the Council´s Final Order (or within 30 days after the date a petition for rehearing is denied). The filing of a petition for judicial review does not automatically stay the Council´s Final Order.
The Oregon Supreme Court has exclusive jurisdiction for judicial review of the Council´s decision. The Supreme Court is required, under ORS 469.403, to render a decision within six months following the filing of the petition for review.
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