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Regulatory and Permitting Information Desktop Toolkit

Oregon State Plant Commissioning Process (7-OR-b)

Before a large energy facility is built in Oregon, the developer must apply for a site certificate from the Energy Facility Siting Council. The types of energy facilities subject to Council jurisdiction are defined by statute in ORS 469.300. Some types of energy facilities that would otherwise need a site certificate are exempt from Council jurisdiction under Oregon statutes.

The following types of energy facilities must have a site certificate from the Council before construction:

  • Electric power plants with a nominal electric generating capacity of 25 megawatts or more from thermal power or combustion turbines.
  • Electric power plants with an average electric generating capacity of 35 megawatts or more if the power is produced from geothermal, solar or wind energy at a single energy facility or within a single energy generation area.
  • Transmission lines of 230 kilovolts or more that are more than 10 miles in length and that are to be constructed in more than one city or county in the state.
  • Surface facilities associated with underground natural gas storage facilities with capacity greater than 50 million cubic feet per day.
  • Liquid fuel pipelines that are 6 inches or larger in diameter and 5 miles or more in length.
  • Liquefied natural gas storage facilities with capacity of 70,000 gallons or more.
  • Intrastate natural gas pipelines that are 16 inches or more in diameter and 5 miles or more in length.
  • Synthetic fuel plants that produce gas, liquid or solid fuel capable of being burned to produce the equivalent of 2 billion Btu of heat per day (except plants that use biomass as the raw material).
  • Plants that convert biomass to gas, liquid or solid fuel products if any one of such products is capable of being burned to produce the equivalent of 6 billion Btu of heat per day.
  • Small generating plants within an energy generation area, as described in OAR 345-001-0200, if the accumulated effects of development are similar to a single plant with an average electric generating capacity of 35 MW or more.
  • Radioactive waste disposal sites and nuclear installations.

Definitions

Nominal electric generating capacity means the maximum net electric power output of an energy facility based on the average temperature, barometric pressure and relative humidity at the site during the times of the year when the facility is intended to operate.

Average electric generating capacity means the peak generating capacity of the facility divided by one of the following factors: For wind or solar energy facilities, 3.00 For geothermal energy facilities, 1.11 For all other energy facilities, 1.00

See Oregon Energy Facility website.

Standard and Expedited Processing

The process is documented on the Oregon Department of Energy (ODOE) website and the ODOE created flowchart.

It is important to note that Oregon has an expedited process for small-capacity facilities. ODOE has a flowchart for the expedited review as well. 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.

The standard siting process has two major phases, which are described in more detail below. In the first phase, the developer submits a Notice of Intent to the Department of Energy. 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 developer 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. Developers need not wait until they submit an application to begin working with state and local authorities.

When the Preliminary Application is submitted, the developer 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 developer chooses to seek land use approval at the local level, then the developer 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 developer 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.

On average, it takes about 27 months to permit a project under the standard siting process.

The expedited siting process need not complete the notice of intent phase of the review. On average, the siting process under the expedited system is completed in about 12 months.

See ODOE website.

Statutory timelines are summarized on the facility siting website.


State Plant Commissioning Process Process

7-OR-b.1 - Notice of Intent to Site an Energy Facility

The notice of intent phase starts when an developer submits a notice of intent (NOI). The NOI phase ends when the applicant submits an application for a site certificate.

During the notice of intent phase:

  • The public and state, federal and local agencies receive information about the proposed project and the Council´s review process
  • The public and agencies have an opportunity to ask questions, get more information and raise concerns
  • The Department holds a public informational meeting in the vicinity of the project site
  • The developer gets a sense of the public and agency concerns and what the difficult issues will be
  • The developer and the Department determine what statutes, state rules and local government requirements apply to the project
  • The Department identifies key issues and information that the application must address
  • The Department prepares a project order

Since 2005, the NOI phase in the standard review process has ranged from less than three months to about seven months. There is no NOI phase for an expedited review.

See siting website.

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 developer believes are applicable. The developer 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 developer 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.

7-OR-b.2 - Public notice & information meeting

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: 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. 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.

To raise an issue with sufficient specificity, a person must present facts that support the person’s position on the issue.

See siting website.

7-OR-b.3 - Issue Project Order

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 developer 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.

See siting website.

7-OR-b.4 - Preliminary Application

The applicant cannot submit the application until the Department has issued a Project Order (except in the case of an expedited review), but developers 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 developer 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 developer must choose whether to seek land use approval from the local jurisdiction or to have the Council make the land use determination. Once the developer has made the choice, the developer 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, developers 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.

Filing the Application

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 developer. 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 developer's plans.

When the Department determines the application is complete, the Department asks the developer to submit an Application Supplement, which compiles all of the additional information the developer 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.

See facility siting website.

7-OR-b.5 - Is the application complete

The completeness phase begins when the developer submits an application for a site certificate. It ends when the Department finds the application complete. The Council rules in Division 21 describe the information the developer must include in a complete application. Generally, an application is complete when the Department finds that it contains information that would support findings by the Council on each of the Council's energy facility siting standards. Upon finding the application complete, the Department files the application.

During the completeness phase: The Department consults with affected state agencies and local governments and asks for their comments on the application The Department usually requests additional information from the developer on specific aspects of the project that require more detailed analysis The Department may conduct public informational meetings on the application

The time needed for completeness review depends very much on how carefully the applicant has prepared the application before submitting it and on how much additional information is necessary. Since 2005, the completeness review time has ranged from three to twelve months under the standard review process. In expedited reviews, the completeness phase has ranged from seven to nine months.

See siting website.

7-OR-b.6 - Application Supplement

When the Department determines the application is complete, the Department asks the developer to submit an Application Supplement, which compiles all of the additional information the developer 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.

See siting website.

7-OR-b.7 - Draft Proposed Order & notice of public hearing

The draft proposed order phase begins when the application is complete and ends when the Department issues a draft proposed order. The draft proposed order describes the proposed facility and summarizes the Department´s recommendations to the Council. The draft proposed order includes proposed findings on each of the Council´s standards. If the Department recommends that the Council approve a site certificate, the draft proposed order includes proposed conditions for the construction and operation of the energy facility.

Since 2005, the time needed to complete the draft proposed order phase has ranged from less than two months to about five months in the standard process. In expedited reviews, the draft proposed order phase has averaged about two months.

See siting website.

7-OR-b.8 - Public hearing

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: 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. 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. To raise an issue with sufficient specificity, a person must present facts that support the person’s position on the issue.

See siting website.

7-OR-b.9 - Review Draft Proposed Order

After issuing the draft proposed order, the Department conducts a public hearing. After the public hearing, the Council reviews the draft proposed order and the comments from the public hearing. The Council meeting is open to the public, but the Council does not take additional public comment on the application at the meeting. Based on the Council discussion and direction to Department staff, the Department prepares and issues a proposed order and a notice of a contested case proceeding.

The proposed order phase begins when the Department issues the draft proposed order and ends when the Department issued the proposed order. Since 2005, the time needed to complete this phase in both the standard review process and the expedited review process has averaged about two months.

See siting website.

7-OR-b.10 - Is this a contested case

The decision phase begins when the Department issues the proposed order and ends when the Council issues its final order.

Upon issuance of the proposed order, the Department issues a notice of a contested case proceeding. An independent hearing officer is in charge of the contested case proceeding, subject to the Council's rules and the rules of Oregon´s Administrative Procedures Act. In general, the contested case proceeding includes the following: A process to identify the parties in the proceeding and to determine the overall schedule and procedures The hearing officer's determination of the issues that the proceeding will address based on issues raised at the public hearing A process and period for discovery Presentation by the parties of testimony and rebuttal (this is customarily done in written form) Cross-examination (this is customarily done orally) Filing of the parties' opening briefs and reply briefs The hearing officer's deliberation and issuance of a proposed contested case order The parties' submission of exceptions to the proposed contested case order and responses to exceptions

After the conclusion of the contested case proceeding, the Council meets to review the hearing officer's proposed order and, if there are intervenors, the parties' exceptions and responses. The Council meeting is open to the public, but only parties to the contested case may comment at the meeting. Comments are limited to the issues in the contested case and to the facts presented during the contested case. The Council deliberates on the hearing officer's proposed contested case order and Department's proposed order (with regard to non-contested matters) and makes a decision whether to approve a site certificate. The Council then issues a final order.

If there are no parties who object to the proposed order, the contested case proceeding can be brief. In most cases, however, there have been significant issues to be addressed in the contested case proceeding.

Since 2005, the time needed for the decision phase for both standard and expedited review has been less than a month and a half. There have been no significant contested case issues.

The Council's decision is subject to reconsideration and judicial review. A party to the contested case may request reconsideration within 30 days after the Council's decision. A petition for judicial review must be filed within 60 days after the decision. The Oregon Supreme Court has exclusive jurisdiction for judicial review.

See siting website.

7-OR-b.11 - Site Certification

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.

Appeal

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.

See siting website.

7-OR-b.12 - Proposed Order & notice of contested case

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.

See siting website.

7-OR-b.13 - Proposed Contested Case Order

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.

See siting website.




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