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General Provisions


Published: 2015

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The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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DEPARTMENT OF ENERGY, ENERGY FACILITY SITING COUNCIL

 

DIVISION 1
GENERAL PROVISIONS

345-001-0000
Notice of Permanent Rulemaking
(1) Before adopting, amending or repealing any rule, the Council shall give notice of the proposed adoption, amendment or repeal as required by ORS 183.335:
(a) In the Secretary of State's Bulletin referred to in ORS 183.360 at least 21 days before the effective date of the adoption, amendment or repeal of the rule,
(b) As required under ORS 183.335, by mailing a copy of the notice to the Council's mailing list of persons who have requested notice of rulemaking at least 28 days before the effective date of the rule and to certain legislators at least 49 days before the effective date of the rule, and
(c) By mailing or furnishing a copy of the notice to the Associated Press and the Capitol Press Room.
(2) Notwithstanding the requirements of ORS 183.335, when the Council is required to adopt rules or regulations promulgated by an agency of the federal government and the Council has no authority to alter or amend the content or language of those rules or regulations prior to their adoption, the Council shall adopt these rules or regulations under the procedures prescribed in ORS 183.337.
Stat. Auth.: ORS 469.470

Stats. Implemented: ORS 469.470 & 469.490

Hist.: EFSC 1, f. & ef. 1-9-76; EFSC 4-1981, f. & ef. 3-25-81; EFSC 6-1986, f. & ef. 9-12-86; EFSC 2-1992, f. & cert. ef. 8-28-92, Renumbered from 345-010-0031; EFSC 5-1994, f. & cert. ef. 11-30-94; EFSC 2-1999, f. & cert. ef. 4-14-99; EFSC 1-2002, f. & cert. ef. 4-3-02; EFSC 1-2007, f. & cert. ef. 5-15-07
345-001-0005
Uniform and Model Rules
(1) Except as described in this rule,
the Council adopts and incorporates by reference in this chapter the following rules
from the Attorney General's Uniform and Model Rules (July 2014): OAR 137-001-0005
through 137-001-0100, 137-002-0010 through 137-002-0060, 137-003-0001 through 137-003-0092,
and 137-005-0010 through 137-005-0070.
(2) Notwithstanding the provisions
of OAR 137-003-0055(1), following the issuance of notice of a contested case, the
Department of Energy shall enter into the record the substance of any significant
contact between a Council member and any Department staff from that point forward,
concerning facts in the record.
(3) In any conflict between
the model rules and Council rules, the Council shall apply its own rules.
Stat. Auth.: ORS 469.470
Stats. Implemented: ORS 469.490
Hist.: NTEC 1, f. 12-16-71,
ef. 1-1-72; NTEC 6, f. 11-19-73, ef. 12-11-73; EFSC 13, f. & ef. 6-11-76; EFSC
5-1978, f. & ef. 5-9-78; EFSC 4-1981, f. & ef. 3-25-81; EFSC 10-1981, f.
& ef. 12-28-81; EFSC 6-1986, f. & ef. 9-12-86; EFSC 2-1992, f. & cert.
ef. 8-28-92, Renumbered from 345-010-0026; EFSC 5-1994, f. & cert. ef. 11-30-94;
EFSC 3-1995, f. & cert. ef. 11-16-95; EFSC 2-1999, f. & cert. ef. 4-14-99;
EFSC 2-2000, f. & cert. ef. 11-20-00; EFSC 1-2002, f. & cert. ef. 4-3-02;
EFSC 1-2007, f. & cert. ef. 5-15-07; EFSC 1-2012, f. & cert. ef. 5-15-12;
EFSC 2-2015, f. & cert. ef. 10-20-15
345-001-0010
Definitions
In this chapter, the following definitions
apply unless the context requires otherwise or a term is specifically defined within
a division or a rule:
(1) “Adjusted to ISO
conditions” as defined in ORS 469.503(2)(e).
(2) “Analysis area”
means the area or areas specifically described in the project order issued under
OAR 345-015-0160(1), containing resources that the proposed facility may significantly
affect. The analysis area is the area for which the applicant shall describe the
proposed facility’s impacts in the application for a site certificate. A proposed
facility might have different analysis areas for different types of resources. For
the purpose of submitting an application for a site certificate in an expedited
review granted under 345-015-0300 or 345-015-0310, the analysis areas are the study
areas defined in this rule, subject to modification in the project order.
(3) “Applicant”
as defined in ORS 469.300 or, if an application has not been submitted, a person
who has submitted, or intends to submit, a notice of intent or a request for expedited
review.
(4) “Associated transmission
lines” as defined in ORS 469.300.
(5) “Average electric
generating capacity” as defined in ORS 469.300.
(6) “Background radiation”
means the direct radiation (gamma) and concentrations of potential radionuclide
contaminants in construction materials and the environment in the vicinity of the
plant not associated with the nuclear operation and retirement of the facility.
Background shall be determined as follows:
(a) For direct radiation,
the results of any background measurements taken prior to operation of the facility
shall be provided and 6 to 10 measurements shall be taken in areas in the vicinity
of the site with materials and/or geological formations representative of the site
that have not been affected by the operation and retirement of the facility. Background
shall be calculated at the average and at the 95% confidence level.
(b) Environmental samples
shall be taken for soil, sediment, water, and other materials present at the facility
site that could have been affected by facility operations and retirement. Measurements
for these samples shall be calculated at the average and 95% confidence levels,
based on 6 to 10 measurements. Background environmental samples shall be taken at
locations on site or in the immediate vicinity of the site which are unaffected
by plant operations. Background shall be calculated at the average and 95% confidence
levels, based on 6 to 10 measurements at each location.
(c) For construction material
such as concrete, asphalt, block, brick and other materials used to construct the
buildings and systems at the site, representative samples of materials unaffected
by site operations shall be selected and surveyed. Six to ten samples of each material
shall be taken to determine the level of naturally occurring and artificially induced
concentrations of naturally occurring radioactivity present. Measurements shall
include direct radiation (beta-gamma and alpha), wipes and qualitative and quantitative
laboratory analyses. Concentrations of fission and activation products from historical
fallout shall be characterized as well.
(d) All measurements shall
be made using appropriate instruments, properly calibrated, and in sufficient number
to determine compliance with requirements.
(7) “Base load gas
plant” as defined in ORS 469.503(2)(e).
(8) “Carbon dioxide
equivalent” as defined in ORS 469.503(2)(e).
(9) “Certificate holder”
means the person to whom a site certificate has been granted by the Council pursuant
to this chapter.
(10) “Chair”
means the chairman or chairwoman of the Energy Facility Siting Council.
(11) “Committed firm
energy and capacity resources” means generating facilities or power purchase
contracts that are assured to be available to the energy supplier over a defined
time period. Committed firm energy and capacity resources include existing generating
facilities, existing power purchase contracts and planned generating facilities
that sponsors have made firm commitments to develop.
(12) “Construction”
as defined in ORS 469.300.
(13) “Corridor”
means a continuous area of land not more than one-half mile in width and running
the entire length of a proposed transmission line or pipeline. “Micrositing
corridor” is defined below in this rule.
(14) “Council”
means the Energy Facility Siting Council established under ORS 469.450.
(15) “Council Secretary”
means the person designated by the Director of the Oregon Department of Energy to
serve as secretary to the Council.
(16) “Department”
means the Office of Energy or the Department of Energy created under ORS 469.030.
(17) “Direct cost”
means the discounted sum of all monetary costs to the ultimate consumer over the
lifetime of the facility or resource plan or resource strategy.
(18) “Energy facility”
means an energy facility as defined in ORS 469.300, including a small generating
plant for which an applicant must have a site certificate according to OAR 345-001-0210.
(19) “Energy supplier”
means:
(a) A retail electric utility,
a federal power marketing agency, or a local gas distribution company, or
(b) A person or public agency
generating electric energy for its own consumption, lawfully purchasing electric
energy directly from a generator for its own consumption, or transmitting or distributing
natural or synthetic gas from an energy facility for its own consumption.
(20) “Existing corridor,”
as used in ORS 469.300 and 469.442, means the right-of-way of an existing transmission
line, not to exceed 100 feet on either side of the physical center line of the transmission
line or 100 feet from the physical center line of the outside lines if the corridor
contains more than one transmission line.
(21) “Facility”
as defined in ORS 469.300 or a small generating plant for which an applicant must
have a site certificate according to OAR 345-001-0210 together with any related
or supporting facilities.
(22) “Facility substantially
similar to the proposed facility” means:
(a) A facility that uses
the same fuel and substantially similar technology, that has substantially the same
in-service date, and that has a direct cost not substantially greater than that
of the proposed facility; or
(b) A facility that is demonstrated
to provide as good a mix of reliability, compatibility with the power system, strategic
flexibility, environmental impact and direct cost as the proposed facility taking
into account reasonable trade-offs among such factors.
(23) “Fossil fuel”
means natural gas, petroleum, coal and any form of solid, liquid or gaseous fuel
derived from such materials that is used to produce useful energy.
(24) “Fossil-fueled
power plant” as defined in ORS 469.503(2)(e).
(25) “Fuel chargeable
to power heat rate” means the net heat rate of electric power production during
the first twelve months of commercial operation. A fuel chargeable to power heat
rate is calculated with all factors adjusted to the average temperature, barometric
pressure and relative humidity at the site during the times of the year when the
facility is intended to operate using the formula, FCP = (FI - FD)/ P, where:
(a) FCP = Fuel chargeable
to power heat rate.
(b) FI = Annual fuel input
to the facility applicable to the cogeneration process in British thermal units
(higher heating value).
(c) FD = Annual fuel displaced
in any industrial or commercial process, heating, or cooling application by supplying
useful thermal energy from a cogeneration facility instead of from an alternate
source, in British thermal units (higher heating value). (d) P = Annual net electric
output of the cogeneration facility in kilowatt-hours.
(26) “Generating facility”
as defined in ORS 469.503(2)(e).
(27) “Greenhouse gas”
as defined in ORS 469.503(2)(e).
(28) “Gross carbon
dioxide emissions” as defined in ORS 469.503(2)(e). The Council shall measure
the gross carbon dioxide emissions of a fossil-fueled power plant on a new and clean
basis. For nongenerating energy facilities that emit carbon dioxide, the Council
shall measure the gross carbon dioxide emissions as described in OAR 345-024-0620(1).
(29) “High efficiency
cogeneration facility” means an energy facility, except coal and nuclear power
plants, that sequentially produces electrical and useful thermal energy from the
same fuel source and under average annual operating conditions:
(a) Has a nominal electric
generating capacity of less than 50 megawatts and the fuel chargeable to power heat
rate value is not greater than 5550 Btu per kilowatt-hour (higher heating value);
or
(b) Has a nominal electric
generating capacity of 50 megawatts or more and the fuel chargeable to power heat
rate value is not greater than 6000 Btu per kilowatt-hour (higher heating value).
(30) “Land use approval”
means a final quasi-judicial decision or determination made by a local government
that:
(a) Applies existing comprehensive
plan provisions or land use regulations to a proposed facility;
(b) Amends a comprehensive
plan map or zoning map to accommodate a proposed facility;
(c) Amends comprehensive
plan text or land use regulations to accommodate a proposed facility;
(d) Applies the statewide
planning goals to a proposed facility; or
(e) Takes an exception to
the statewide planning goals adopted by the Land Conservation and Development Commission
for a proposed facility.
(31) “Local government”
as defined in ORS 469.300.
(32) “Micrositing corridor”
means a continuous area of land within which construction of facility components
may occur, subject to site certificate conditions.
(33) “Mitigation”
means taking one or more of the following actions listed in order of priority:
(a) Avoiding the impact altogether
by not taking a certain action or parts of an action;
(b) Minimizing impacts by
limiting the degree or magnitude of the action and its implementation;
(c) Partially or completely
rectifying the impact by repairing, rehabilitating or restoring the affected environment;
(d) Reducing or eliminating
the impact over time by preservation and maintenance operations during the life
of the action by monitoring and taking appropriate corrective measures;
(e) Partially or completely
compensating for the impact by replacing or providing comparable substitute resources
or environments; or
(f) Implementing other measures
approved by the Council.
(34) “Natural gas”
means gas as defined in ORS 520.005.
(35) “Natural gas fired
facility” means an energy facility that is intended to be fueled by natural
gas except for infrequent periods when the natural gas supply is interrupted, during
which an alternate fuel may be used. Such alternate fuel use shall not exceed 10
percent of expected fuel use in British thermal units, higher heating value on an
annual basis.
(36) “Net carbon dioxide
emissions” as defined in ORS 469.503(2)(e).
(37) “Net electric
power output” means the electric power produced or capacity made available
for use. Calculation of net electric power output subtracts losses from on-site
transformers and power used for any on-site electrical loads from gross capacity
as measured or estimated at the generator terminals for each generating unit.
(38) “New and clean
basis” means the average carbon dioxide emissions rate per hour and net electric
power output of the energy facility, without degradation. The site certificate holder
shall determine the new and clean basis:
(a) By a 100-hour test at
full power that the site certificate holder completes during the first 12 months
of commercial operation of the energy facility, unless the Council specifies a different
testing period for a non-base load power plant (or power augmentation) or a nongenerating
energy facility. A 100-hour test performed for purposes of the certificate holder’s
commercial acceptance of the facility may suffice in lieu of testing after beginning
commercial operation;
(b) With the results adjusted
for the average annual site condition for temperature, barometric pressure and relative
humidity and use of alternative fuels unless the Council specifies that the results
for a non-base load power plant (or power augmentation) or a nongenerating energy
facility be adjusted for the average temperature, barometric pressure and relative
humidity at the site during the times of the year when the facility is intended
to operate;
(c) Using a rate of 117 pounds
of carbon dioxide per million Btu of natural gas fuel (higher heating value); and,
(d) Using a rate of 161 pounds
of carbon dioxide per million Btu of distillate fuel (higher heating value), if
such fuel use is proposed by the applicant.
(e) Notwithstanding subsection
(a) and including subsections (b) through (d), for a facility that employs major
power generating equipment that has previously been used, the new and clean basis
shall mean average carbon dioxide emissions rate and net electric power output for
the first use of the equipment at the site, as determined by historical data from
the previous usage or by testing on site.
(39) “Nominal electric
generating capacity” as defined in ORS 469.300.
(40) “Non-base load
power plant” means a fossil-fueled generating facility that is limited by
the site certificate to an average number of hours of operation per year of not
more than 6,600 hours. For a non-base load power plant designed to operate at variable
loads, the facility’s annual hours of operation are determined by dividing
the actual annual electric output of the facility in megawatt-hours by the facility’s
nominal electric generating capacity in megawatts. The Council shall assume a 30-year
life for the plants for purposes of determining gross carbon dioxide emissions,
unless the applicant requests and the Council approves a shorter operational life
in the site certificate. If the Council approves a shorter operational life, the
certificate holder shall operate the facility for no longer than the approved operational
life or, before the expiration of the approved operational life, shall request an
amendment of the site certificate to extend the operational life.
(41) “Nongenerating
facility” as defined in ORS 469.503(2)(e).
(42) “Office of Energy”
and “Office” mean the Oregon Office of Energy and the Oregon Department
of Energy.
(43) “Offset”
as defined in ORS 469.503(2)(e).
(44) “Offset funds”
means the amount of funds determined by the Council to satisfy the applicable carbon
dioxide emissions standard pursuant to OAR 345-024-0560(3), 345-024-0600(3) or 345-024-0630(2)
and (4).
(45) “Owner”
means owner or lessee under a capital lease.
(46) “Permit”
means any permit, license, certificate or other approval required by federal law,
state statute, state administrative rule or local government ordinance.
(47) “Person”
as defined in ORS 469.300.
(48) “Power augmentation”
means technologies that increase the capacity and the heat rate of the plant above
the capacity and heat rate of the base load gas plant. These include, but are not
limited to, duct burning and some forms of steam augmentation.
(49) “Project order”
as defined in ORS 469.300.
(50) “Qualified organization”
means an organization that:
(a) Is exempt from federal
taxation under section 501(c)(3) of the Internal Revenue Code as amended and in
effect on September 18, 2015;
(b) Either is incorporated
in the State of Oregon or is a foreign corporation authorized to do business in
the State of Oregon;
(c) Has in effect articles
of incorporation that:
(A) Require that offset funds
received under OAR 345-024-0710(3) are used for offsets;
(B) Require that decisions
on the use of the offset funds are made by a decision-making 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 OAR 345-024-0550, 345-024-590, and 345-024-0620 and the holders
of such site certificates; and
(C) Require nonvoting membership
on the decision-making body for holders of site certificates that have provided
funds not yet disbursed under OAR 345-024-0710(3);
(d) 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 ORS 469.503 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;
(e) 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
(f) Has to the extent applicable,
except for good cause, complied with OAR 345-024-0710(3).
(51) “Related or supporting
facilities” as defined in ORS 469.300. The Council interprets the terms “proposed
to be built in connection with” as meaning that a structure is a related or
supporting facility if it would not be built but for construction or operation of
the energy facility. “Related or supporting facilities” does not include
any structure existing prior to construction of the energy facility, unless such
structure must be significantly modified solely to serve the energy facility.
(52) “Reviewing agency”
means any of the following officers, agencies or tribes:
(a) Department of Environmental
Quality.
(b) Water Resources Commission
and the Water Resources Director through the Water Resources Department.
(c) Fish and Wildlife Commission
through the Department of Fish and Wildlife.
(d) State Geologist.
(e) Department of Forestry.
(f) Public Utility Commission.
(g) Department of Agriculture.
(h) Department of Land Conservation
and Development.
(i) Pacific Northwest Electric
Power and Conservation Planning Council.
(j) Office of State Fire
Marshal.
(k) Department of State Lands.
(L) State Historic Preservation
Office.
(m) Any other agency identified
by the Department of Energy.
(n) Any tribe identified
by the Legislative Commission on Indian Services as affected by the proposed facility.
(o) The governing body of
any incorporated city or county in Oregon within the study area as defined in OAR
345-001-0010 for impacts to public services.
(p) Any special advisory
group designated by the Council under ORS 469.480.
(q) The federal land management
agency with jurisdiction if any part of the proposed site is on federal land.
(53) “Significant”
means having an important consequence, either alone or in combination with other
factors, based upon the magnitude and likelihood of the impact on the affected human
population or natural resources, or on the importance of the natural resource affected,
considering the context of the action or impact, its intensity and the degree to
which possible impacts are caused by the proposed action. Nothing in this definition
is intended to require a statistical analysis of the magnitude or likelihood of
a particular impact.
(54) “Site” as
defined in ORS 469.300. “Energy facility site” means all land upon which
an energy facility is located or proposed to be located. “Related or supporting
facilities site” means all land upon which related or supporting facilities
for an energy facility are located or proposed to be located.
(55) “Site boundary”
means the perimeter of the site of a proposed energy facility, its related or supporting
facilities, all temporary laydown and staging areas and all corridors and micrositing
corridors proposed by the applicant.
(56) “Site certificate”
as defined in ORS 469.300.
(57) “Special nuclear
material” means plutonium, uranium-233 or uranium enriched in the isotope
233 or in the isotope 235.
(58) “Strategic flexibility”
means the value of a resource as part of a strategy to manage variance in costs
or risks caused by future uncertainty.
(59) “Study area”
means an area defined in this rule. Except as specified in subsections (f) and (g),
the study area is an area that includes all the area within the site boundary and
the area within the following distances from the site boundary:
(a) For impacts to threatened
and endangered plant and animal species, 5 miles.
(b) For impacts to scenic
resources and to public services, 10 miles.
(c) For land use impacts
and impacts to fish and wildlife habitat, one-half mile.
(d) For impacts to recreational
opportunities, 5 miles.
(e) For impacts to protected
areas described in OAR 345-022-0040, 20 miles.
(f) The distance stated in
subsection (a) above does not apply to surface facilities related to an underground
gas storage reservoir.
(g) The distances stated
in subsections (a) and (d) above do not apply to pipelines or transmission lines.
(60) “Substantial loss
of steam host” means the thermal energy user associated with a high efficiency
cogeneration facility has made such long-term changes in its manner and magnitude
of operation as to result in the loss of one or more work shifts for at least a
year, accompanied by at least a 30 percent resultant reduction in the use of thermal
energy.
(61) “Substantial loss
of fuel use efficiency” means an increase in the fuel chargeable to power
heat rate at a high efficiency cogeneration facility to greater than 7000 Btu per
kilowatt-hour (higher heating value), or reduction of the fraction of energy output
going to the thermal energy user associated with the facility to less than 20 percent,
as a result of a substantial loss of steam host. Substantial loss of fuel use efficiency
does not include efficiency losses due to equipment wear or condition.
(62) “Surface facilities
related to an underground gas storage reservoir” means structures or equipment
adjacent to and associated with an underground gas storage reservoir that are proposed
to be built in connection with an underground gas storage reservoir and include,
but are not limited to:
(a) Facilities such as stripping
plants, main line dehydration stations, offices, warehouses, equipment shops, odorant
storage and injection equipment and compressors;
(b) Pipelines, such as gathering
lines and liquid collection lines; and
(c) Roads and road maintenance
equipment housing at the reservoir site.
(63) “Thermal power
plant” as defined in ORS 469.300.
(64) “Total energy
output” means the sum of useful thermal energy output and useful electrical
energy output.
(65) “Underground gas
storage reservoir” as defined in ORS 469.300.
(66) “Useful thermal
energy” means the verifiable thermal energy used in any industrial or commercial
process, heating or cooling application;
(67) “Utility”
as defined in ORS 469.300.
(68) “Vice-chair”
means the vice-chairman or vice-chairwoman of the Energy Facility Siting Council.
(69) “Waste disposal
facility” as defined in ORS 469.300.
Stat. Auth.: ORS 469.373 & 469.470
Stats. Implemented: ORS 469.300-570,
469.590-619 & 469.992
Hist.: EFSC 1-1980, f. &
ef. 2-28-80; EFSC 1-1981, f. & ef. 1-19-81; EFSC 2-1981, f. & ef. 1-19-81;
EFSC 8-1981, f. & ef. 10-29-81; EFSC 4-1982, f. & ef. 5-3-82; EFSC 4-1986,
f. & ef. 9-5-86; EFSC 7-1986, f. & ef. 9-18-86; EFSC 2-1992, f. & cert.
ef. 8-28-92; EFSC 1-1993, f. & cert. ef. 1-15-93; Renumbered from 345-079-0025,
345-100-0025, 345-111-0020 & 345-125-0025; EFSC 5-1994, f. & cert. ef. 11-30-94;
EFSC 3-1995, f. & cert. ef. 11-16-95; EFSC 2-1999, f. & cert. ef. 4-14-99;
EFSC 1-2000, f. & cert. ef. 2-2-00; EFSC 1-2002, f. & cert. ef. 4-3-02;
EFSC 1-2003, f. & cert. ef. 9-3-03; EFSC 1-2007, f. & cert. ef. 5-15-07;
EFSC 1-2009, f. & cert. ef. 11-24-09; EFSC 1-2012, f. & cert. ef. 5-15-12;
EFSC 1-2012, f. & cert. ef. 5-15-12; EFSC 2-2015, f. & cert. ef. 10-20-15
345-001-0020
Purpose
(1) The purpose of the rules of this chapter is to establish application requirements, review procedures and standards for the siting, construction, operation and retirement of energy facilities, for the transport of radioactive materials, and for the disposal of radioactive waste and uranium mine overburden. These rules are to ensure that the siting, construction, operation and retirement of energy facilities and disposal facilities and the transport of radioactive materials are done 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 Oregon.
(2) Except as indicated otherwise, the Council shall use the rules of this chapter to determine whether to grant or deny a site certificate and, if the Council grants a site certificate for a facility, to oversee the construction, operation and retirement of the facility. The Council shall use the rules of this chapter in proceedings for amendment, suspension, revocation, transfer or termination of a site certificate.
(3) When the Council deems appropriate, it may adopt additional rules on matters within its jurisdiction. The Council shall adopt any additional rules relating to site certificates sufficiently in advance of the close of testimony in a contested case proceeding on a site certificate to allow parties to address the rule, or if after the close of testimony, in sufficient time to allow the parties an opportunity to supplement their testimony to offer evidence relating to the new rule.
Stat. Auth.: ORS 469.470, 469.556, 469.559 & 469.607

Stats. Implemented: ORS 469.310, 469.374, 469.401, 469.501, 469.525 & 469.603-615

Hist.: EFSC 8-1978, f. & ef. 11-17-78; EFSC 1-1980, f. & ef. 2-28-80; EFSC 6-1980, f. & ef. 8-26-80; EFSC 9-1980, f. & ef. 12-22-80; EFSC 1-1981, f. & ef. 1-19-81; EFSC 2-1981, f. & ef. 1-19-81; EFSC 4-1986, f. & ef. 9-5-86; EFSC 7-1986, f. & ef. 9-18-86; EFSC 2-1992, f. & cert. ef. 8-28-92, Renumbered from 345-079-0010, 345-080-0010, 345-100-0010, 345-111-0005, 345-115-0010 & 345-125-0010; EFSC 5-1994, f. & cert. ef. 11-30-94; EFSC 2-1999, f. & cert. ef. 4-14-99; EFSC 1-2007, f. & cert. ef. 5-15-07
345-001-0030
Applicability
The rules in this chapter apply
to all matters under Council jurisdiction, except that the rules in effect before
the date of adoption of this rule apply to site certificate amendment proceedings
pending before the Council as of that date.
Stat. Auth.: ORS 469.470

Stats. Implemented: ORS 469.310
& 469.320

Hist.: EFSC 8-1978, f. &
ef. 11-17-78; EFSC 1-1980, f. & ef. 2-28-80; EFSC 6-1980, f. & ef. 8-26-80;
EFSC 9-1980, f. & ef. 12-22-80; EFSC 1-1981, f. & ef. 1-19-81; EFSC 2-1981,
f. & ef. 1-19-81; EFSC 8-1981, f. & ef. 10-29-81; EFSC 4-1982, f. &
ef. 5-3-82; EFSC 4-1986, f. & ef. 9-5-86; EFSC 7-1986, f. & ef. 9-18-86;
EFSC 2-1992, f. & cert. ef. 8-28-92, Renumbered from 345-079-0012, 345-079-0015,
345-080-0012, 345-080-0015, 345-100-0012, 345-100-0015, 345-111-0015, 345-115-0012,
345-115-0015, 345-125-0012 & 345-125-0015; EFSC 5-1993(Temp), f. & cert.
ef. 8-16-93; EFSC 1-1994, f. & cert. ef. 1-28-94; EFSC 2-1994, f. & cert.
ef. 5-6-94; EFSC 5-1994, f. & cert. ef. 11-30-94; ESFC 3-1995, f. & cert.
ef. 11-16-95; EFSC 2-1999, f. & cert. ef. 4-14-99
345-001-0035
Electric and Magnetic Field Committee
(1) The chair shall appoint an Electric and Magnetic Field Committee composed of Council members and representatives of the public, utilities, manufacturers and state agencies. The chair may delegate the authority to set meeting dates and agendas to the committee.
(2) The committee shall monitor information available and being developed on the health effects of exposure to low frequency electric and magnetic fields and report the committee's findings periodically to the Council. The Council shall report the findings of the committee to the Legislative Assembly.
Stat. Auth.: ORS 469.470

Stats. Implemented: ORS 469.480

Hist.: EFSC 1-1995, f. & cert. ef. 5-15-95; EFSC 2-1999, f. & cert. ef. 4-14-99; EFSC 1-2000, f. & cert. ef. 2-2-00
345-001-0050
Public Records Availability
and Fees for Copying
(1) All public
records of the Council that are retained by the Department of Energy are available
for public inspection and copying at the Department during usual business hours,
except for records that the Department has determined to be exempt or conditionally
exempt from disclosure in accordance with ORS Chapter 192. Except as protected under
ORS 357.875, any permanent record of the Council kept by the State Archivist can
be inspected at the State Archive building, subject to applicable rules of the Secretary
of State, Archives Division.
(2) To
inspect Council records a person shall submit to the Department a written request
containing the following information:
(a) Name,
address, e-mail address and telephone number of the person requesting the record.
(b) A
specific description of the record requested.
(3) After
receiving a request to inspect a Council record, the Department shall notify the
requesting person whether the record is stored on or off the premises of the Department
or is kept by the State Archivist.
(4) If
the requested record is stored on the premises of the Department, the person who
requested the record may inspect it on the premises without charge.
(5) If
the requested record is stored off the premises of the Department, the Department
shall charge for the staff time necessary to make the record available for inspection
on the premises of the Department.
(6) A
person who is receiving a copy of a public record or information from a public record
shall pay for the Department’s actual cost for:
(a) Staff
time necessary to locate and handle the records, to delete material exempt from
disclosure and to supervise the inspection by the requester;
(b) Producing
the copy or the information; and
(c) Other
supplies or services necessary to furnish the copy or information.
(7) The
person requesting copies of records shall pay the fees described in section (6)
in advance, except that government agencies or parties in proceedings before the
Council need not pay before delivery of the copies.
Stat. Auth.:
ORS 469.470

Stats.
Implemented: ORS 469.560

Hist.:
EFSC 2-1992, f. & cert. ef. 8-28-92; EFSC 5-1994, f. & cert. ef. 11-30-94;
EFSC 3-1995, f. & cert. ef. 11-16-95; EFSC 2-1999, f. & cert. ef. 4-14-99;
EFSC 1-2007, f. & cert. ef. 5-15-07; EFSC 1-2012, f. & cert. ef. 5-15-12
345-001-0060
Council Representation at Contested Case Hearings
(1) A Council member, an officer of the Department of Energy, or an employee of the Department may appear, but not make legal argument, on behalf of the Council in a hearing or in a class of contested case hearings in which the Attorney General or the Deputy Attorney General has given written consent to the Council member or to the officer or employee of the Department pursuant to ORS 183.450(7) to represent the Council. Before each contested case hearing in which the Council wishes to appear by a member or by an officer or employee of the Department, the Council shall request written consent from the Attorney General or the Deputy Attorney General for the designated representative to appear on behalf of the Council. The Department and the Department of Justice shall maintain a copy of the list of contested case hearings for which the Attorney General or the Deputy Attorney General has given such consent.
(2) Legal argument as used in this rule has the same meaning as in OAR 137-003-0008(1)(c) and (d).
Stat. Auth.: ORS 469.470

Stats. Implemented: ORS 183.450(8) & 469

Hist.: EFSC 1-1988, f. & cert. ef. 5-11-88; EFSC 2-1992, f. & cert. ef. 8-28-92, Renumbered from 345-010-0028; EFSC 2-1999, f. & cert. ef. 4-14-99; EFSC 1-2007, f. & cert. ef. 5-15-07
345-001-0080
Reconsideration and Rehearing -- Orders in Other than Contested Cases
(1) A person entitled to judicial review under ORS 183.484 of a final order in other than a contested case may file a petition for reconsideration or rehearing with the Council within 60 days after the date of the order. A person seeking reconsideration or rehearing shall deliver or mail a copy of the petition to all other persons and agencies required by statute or rule to be notified.
(2) The petitioner shall set forth the specified grounds for reconsideration. The petitioner may support the petition by a written argument.
(3) The petitioner may include a request for a stay of a final order if the petition complies with the requirements of OAR 137-003-0090(2).
(4) The Council may grant or deny a petition by summary order, and, if the Council does not take action, the petition is deemed denied as provided by ORS 183.484(2).
(5) Any Council member may move for reconsideration of a final order in other than a contested case within 60 days after the date of the order. The Council shall grant reconsideration if approved by a majority of the Council. The procedural and substantive effect of granting reconsideration under this section is identical to the effect of granting a party's petition for reconsideration.
(6) The Council shall not grant reconsideration after the filing of a petition for judicial review unless permitted by the court.
(7) A final order remains in effect during reconsideration until stayed or changed.
(8) At the conclusion of a reconsideration, the Council shall enter a new order, which may be an order affirming the existing order.
Stat. Auth.: ORS 469.470

Stats. Implemented: ORS 469.403

Hist.: EFSC 2-1992, f. & cert. ef. 8-28-92; EFSC 5-1994, f. & cert. ef. 11-30-94; EFSC 2-1999, f. & cert. ef. 4-14-99

Energy Generation Areas

345-001-0200
Creation of an Energy Generation Area
(1) The Council shall define the boundaries of an energy generation area by rule when:
(a) The Council finds that a geographical area exists within which the effects of development of two or more small generating plants, as defined in OAR 345-001-0210, are likely to accumulate so the small generating plants have effects of a magnitude similar to a single generating plant with an average electric generating capacity of 35 megawatts or more;
(b) The Council finds that creation of an energy generation area is in the public interest; and
(c) The Council finds that energy resource, environmental, social, economic, public health or safety justification exists to create the energy generation area.
(2) In defining the boundaries of an energy generation area, the Council shall consider:
(a) The location of geothermal, solar or wind resources;
(b) The effect of energy facility development on wildlife or wildlife habitat;
(c) Natural geographical features; and
(d) Political and treaty boundaries.
Stat. Auth.: ORS 469.470

Stats. Implemented: ORS 469.300 & ORS 469.320

Hist.: EFSC 2-1999, f. & cert. ef. 4-14-99; EFSC 1-2002, f. & cert. ef. 4-3-02
345-001-0210
Effect of an Energy Generation Area
(1) For the purpose of this rule:
(a) "Energy resource" means geothermal, solar or wind power;
(b) "Small generating plant" means one or more electric power generating devices that:
(A) Have a combined nominal electric generating capacity of more than 3 megawatts and a combined average electric generating capacity of less than 35 megawatts;
(B) Are connected to a common switching station or are constructed maintained or operated as a contiguous group of devices; and
(C) Are owned by a single person or entity or subsidiaries of a single entity;
(c) "Accumulated effects" means the effects of a proposed small generating plant or proposed expansion to a small generating plant combined with the effects of all existing small generating plants using the same energy resource within the energy generation area. "Accumulated effects" includes the effects of all related or supporting facilities;
(d) Expansion of a small generating plant includes any enlargement of the site and any increase in the small generating plant's nominal electric generating capacity;
(e) Construction of a small generating plant includes the creation of a small generating plant by constructing one or more new electric power generating devices or otherwise adding to the nominal electric generating capacity of one or more existing electric power generating devices that have a combined nominal electric generating capacity of 3 megawatts or less.
(2) For the designated energy resource within an energy generation area created under OAR 345-001-0200:
(a) Except as described in subsection (b), any person who intends to construct or expand a small generating plant shall submit a request for exemption to the Office of Energy, as described in OAR 345-015-0360(6);
(b) If the expansion of a small generating plant would create an electric power generating plant with an average electric generating capacity of 35 megawatts or more, a person shall not expand the small generating plant unless the Council has granted a site certificate or an amendment to an existing site certificate.
(3) Upon consideration of a request for exemption described in section (2), if the Council finds that the accumulated effects have a magnitude similar to a single generating plant with an average electric generating capacity of 35 megawatts or more, a person shall not construct or expand the small generating plant as proposed unless the Council has granted a site certificate or an amendment to an existing site certificate. In making a finding about accumulated effects, the Council shall consider factors including, but not limited to, the following:
(a) The nominal electric generating capacity of the proposed small generating plant or proposed expansion to a small generating plant;
(b) The location of the proposed small generating plant or proposed expansion to a small generating plant relative to existing small generating plants and energy facilities using the same energy resource;
(c) Significant potential adverse environmental impacts of the proposed small generating plant or proposed expansion to a small generating plant, including the impacts of related or supporting facilities;
(d) Significant adverse environmental impacts of all existing small generating plants using the same energy resource within the energy generation area, including the impacts of all related or supporting facilities;
(e) The contribution of the proposed small generating plant or proposed expansion to a small generating plant toward maintaining reliable energy delivery to an area in the state; and
(f) Significant public benefits of the proposed small generating plant or proposed expansion to a small generating plant.
Stat. Auth.: ORS 469.470

Stats. Implemented: ORS 469.320

Hist.: EFSC 2-1999, f. & cert. ef. 4-14-99; EFSC 1-2002, f. & cert. ef. 4-3-02
345-001-0220
Energy Generation Areas
The Council may designate geothermal, solar or wind energy generation areas by rule.
Stat. Auth.: ORS 469.470

Stats. Implemented: ORS 469.300 & 469.320

Hist.: EFSC 2-1999, f. & cert. ef. 4-14-99; EFSC 1-2010, f. & cert. ef. 5-11-10

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