Current through Register Vol. 63, No. 9, September 1, 2024
(1) To issue a site certificate for a
proposed facility or to amend a site certificate, the Council shall determine
that the preponderance of evidence on the record supports the following
conclusions:
(a) The facility complies with
the requirements of the Oregon Energy Facility Siting statutes, ORS
469.300 to
469.570 and
469.590 to
469.619, and the standards
adopted by the Council pursuant to
469.501 or the overall public
benefits of the facility outweigh any adverse effects on a resource or interest
protected by the applicable standards the facility does not meet as described
in section (2);
(b) Except as
provided in OAR 345-022-0030 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 the Council finds that applicable
Oregon statutes and rules, other than those involving federally delegated
programs, would impose conflicting requirements, the Council shall resolve the
conflict consistent with the public interest. In resolving the conflict, the
Council cannot waive any applicable state statute.
(2) The Council may issue or amend a site
certificate for a facility that does not meet one or more of the applicable
standards adopted under ORS 469.501 if the Council determines that the overall
public benefits of the facility outweigh any adverse effects on a resource or
interest protected by the applicable standards the facility does not meet. The
Council shall make this balancing determination only when the applicant has
shown that the proposed facility cannot meet applicable Council standards or
has shown, to the satisfaction of the Council, that there is no reasonable way
to meet the applicable Council standards through mitigation or avoidance of any
adverse effects on a protected resource or interest. The applicant has the
burden to show that the overall public benefits outweigh any adverse effects on
a resource or interest, and the burden increases proportionately with the
degree of adverse effects on a resource or interest. The Council shall weigh
overall public benefits and any adverse effects on a resource or interest as
follows:
(a) The Council shall evaluate any
adverse effects on a resource or interest by considering factors including, but
not limited to, the following:
(A) The
uniqueness and significance of the resource or interest that would be
affected;
(B) The degree to which
current or future development may adversely affect the resource or interest, if
the proposed facility is not built;
(C) Proposed measures to reduce any adverse
effects on a resource or interest by avoidance of impacts;
(D) The magnitude of any anticipated adverse
effects on a resource or interest, taking into account any proposed
mitigation.
(b) The
Council shall evaluate overall public benefits by considering factors
including, but not limited to, the following:
(A) The overall environmental effects of the
facility, considering both beneficial and adverse environmental
effects;
(B) The degree to which
the proposed facility promotes Oregon energy policy as described in ORS
469.010 by demonstrating or
advancing new efficiency or renewable technology or by expanding electric
generating capacity from renewable energy sources;
(C) Recommendations from any special advisory
group designated by the Department under OAR 345-015-0115;
(D) Evidence that the benefits are likely to
occur only if the proposed facility is built;
(E) For facilities that are subject to a need
standard, evidence underlying the Council's decision on compliance with the
rules in OAR 345, Division 23, except that the Council shall not find that need
for a facility is sufficient, by itself, to outweigh any adverse effects on a
resource or interest affected by the proposed facility.
(3) Notwithstanding section (2) of
this rule, the Council shall not apply the balancing determination to the
following standards:
(a) The organizational
expertise standard described in OAR 345-022-0010;
(b) The land use standard described in OAR
345-022-0030;
(c) The retirement
and financial assurance standard described in OAR 345-022-0050;
(d) The need standards described in OAR
345-023-0005;
(e) The standards for
energy facilities that emit carbon dioxide described in OAR 345-024-0500 through 345-024-0720;
(f) The
protected areas standard described in OAR 345-022-0040, if the statutes or
administrative rules governing the management of the protected area prohibit
location of the proposed facility in that area; or
(g) The sage-grouse specific habitat
mitigation requirements under the Council's fish and wildlife habitat standard
described in OAR 345-022-0060, except that the Council may apply the balancing
determination to the requirements of 635-140-0025(2)(a) and (b) for indirect
impacts on core and low density sage-grouse habitat, as defined in
635-140-0015, which are caused by transmission lines or pipelines as defined in
ORS 469.300(11)(a),
and by transmission lines or pipelines that are related or supporting
facilities to an energy facility as defined in ORS
469.300(24),
proposed to be sited entirely outside of core and low density sage-grouse
habitat.
(4) In making
determinations regarding compliance with statutes, rules and ordinances
normally administered by other agencies or compliance with requirements of the
Council statutes if other agencies have special expertise, the Department of
Energy shall consult with such other agencies during the notice of intent, site
certificate application and site certificate amendment processes. Nothing in
these rules is intended to interfere with the state's implementation of
programs delegated to it by the federal government.
Statutory/Other Authority: ORS
469.470 &
469.501
Statutes/Other Implemented: ORS 469.501,
469.503,
469.504 &
469.505
