Montana Energy Facility Siting (7-MT-a)
Energy Facility Siting Process
7-MT-a.1 to 7-MT-a.2 - Does the Geothermal Generating Facility Have a Production Capacity of 50 MW or Greater
If the developer is seeking to construct a geothermal generating facility with the capability of producing 50 MW or greater, then they must obtain a Certificate of Compliance with the DEQ. MCA 75-20-104(8)(c).
7-MT-a.3 - Notify Interested Persons
If a developer plans to construct a geothermal generating facility under the provisions of MCA 75-20-104(8)(a)(ii), then they must provide public notice to persons residing in the area in which any portion of the facility may be located and to the DEQ. This notice must be made no less than 60 days prior to the commencement of acquisition of a right-of-way. The notice provided by the developer must include a description and the proposed location of the facility in a newspaper that will substantially inform the public of construction. The developer is also required to mail a summary of the facility to the DEQ. The notice must inform the property owners of their rights under the Montana Major Facility Siting Act concerning the location of the facility and that more information concerning their rights may be obtained from the DEQ. MCA 75-20-207.
7-MT-a.4 - Application for Certificate and Associated Documents
A developer seeking a certificate under the Montana Major Facility Siting Act must file an application with the DEQ. Facilities covered by the Montana Major Facility Siting Act are listed in MCA 75-20-104(8). Information concerning the need for the facility, the proposed location, baseline data and reasonable alternate locations must be included in the application. See MCA 75-20-211. Any application for an energy generation facility must contain an engineering description of the facility in detail sufficient to enable the DEQ to assess the environmental impacts of construction, operation, maintenance, and decommissioning. ARM 17.20.1501.
The developer is required to deposit a filing fee based on the estimated cost of the project in an earmarked revenue fund for use by the DEQ to process the certificate. The DEQ may contract with the developer for payment of the fee or the developer must pay the fee in installments. See MCA 75-20-215.
7-MT-a.5 to 7-MT-a.6 - Review Application Materials for Completeness
The DEQ must notify the developer within 30 days that the application is either complete or incomplete. If the application is incomplete and the developer corrects it for resubmission, the DEQ has 15 days to advise the developer that the application is complete and accepted. MCA 75-20-216.
7-MT-a.7 - Review Application
The DEQ will review the application materials to ensure compliance and consistency with the Major Facility Siting Act. Expedited review is permitted for applications that qualify. Expedited review (90 days) is available under MC 75-20-231, for facilities that:
- Are unlikely to result in significant adverse environmental impacts; or
- Are presently in existence and proposed for upgrade, reconstruction or relocation and are unlikely to result in significant impacts.
A facility that qualifies for expedited review is exempt from undergoing an alternative siting study.
See also the criteria for identifying proposed facilities that qualify for expedited review under MCA 75-20-232.
7-MT-a.8 – Provide Public Notice of the Application
7-MT-a.9 – Comment on Application
The DEQ may allow up to 30 days for the public to comment on the application.
7-MT-a.10 - Forward Application to Interested Agencies
The DEQ acts as the main point of contact for the application and forwards the application to any agencies that may have an interest in the new facility. MCA 75-20-207.
7-MT-a.11 - Initiate Montana Environmental Policy Act Process
The Montana Environmental Policy Act (Montana) (MEPA) requires the state government to consider the environmental impacts of their decisions. MEPA review of projects can be conducted jointly with the federal National Environmental Policy Act review if required.
7-MT-a.12 - Does the DEQ Approve the Application?
The DEQ must approve the certificate within 30 days following review if the following findings and/or determinations are made:
- The basis of the need for the facility;
- The nature of the probable environmental impact;
- That the facility minimizes adverse environmental impact, considering the state of available technology and the nature and economics of the various alternatives;
- The location of the facility is consistent with the law;
- That the facility will serve the public interest, convenience, and necessity;
- Water and air quality decisions have already been issued; and
- Public lands and federal corridors were considered.
The DEQ must approve a facility as proposed or modified if they determine:
- That the facility incorporates all reasonable, cost-effective mitigation of significant environmental impacts; and
- That the unmitigated impacts, including those that cannot be reasonably qualified or valued in monetary terms, will not result in violated of a law or standard that protects the public health and safety or the environment. 75-20-301(3).
7-MT-a.13 - Certification
The DEQ will issue a Certificate of Compliance to the developer following review of the proposed project. The certificate must include the requirement that construction of a geothermal facility must be initiated within 6 years of certification. MCA 75-20-303.
The Certificate of Compliance will likely contain monitoring requirements under ARM 17.20.1902. Typically, the DEQ will monitor compliance with environmental specifications and any other conditions contained in the certificate. Most of the monitoring issues should be settled during the pre-construction conference (must happen 15 days before construction commences).
Within 15 days of approving the certificate, the developer must identify a representative for monitoring purposes. The developer is also required to inform the DEQ before construction operations. MCA 75-20-216. The information required in the notice includes maps with the following points identified:
- The centerline;
- All construction and maintenance access roads;
- Clearing backlines, clearing limits or disturbance limits, staging sites, and pulling sites;
- Borrow pits;
- Campsites; and
- Storage or other buildings.
The developer must also submit a list of contractors, number of workers, types of heavy equipment, and the proposed construction schedule.
A bond may be required as well.
7-MT-a.14 – Monitor Facility for Compliance
The DEQ conducts all facility inspections and reviews reports to determine compliance with permit conditions, laws, and regulations. If violations are discovered, the DEQ provides the technical assistance needed to bring the facility back into compliance or prepares an enforcement request for further action by the Enforcement Division within the DEQ. MCA 75-20-402.
7-MT-a.15 - Is the Decision Contested?
Any person aggrieved by the final decision of the DEQ on an application for a certificate may appeal the decision or request a public hearing on the decision within 30 days to the Board of Environmental Review within the DEQ. 75-20-223(1)(a).
If a public hearing is requested and the DEQ provided a public comment period, then the request must be limited to the issues which that party raised in comments during the public comment period unless the issues are related to the following:
- A material change in law made during the comment period;
- A judicial decision issued after the comment period; or
- To a material change to the draft permit.
7-MT-a.16 – Hold Hearing (optional)
The Board of Environmental Review may hold a public hearing to consider issues in the final decision which have been contested. Decisions of the Board of Environmental Review may be appealed to a state district court. 75-20-223.
7-MT-a.17 to a.18 – Does DEQ Approve the Application?
The DEQ may approve or reject the application following the public hearing. The Board of Environmental Review must issue a final decision within 4 months from the close of the hearing on the merits or, if no hearing is held, within 3 months from the date that briefing by the parties is complete. If the decision is contested by a third party, then the developer and the third party may agree to an extension of time for the final decision. 75-20-223(c)(4). The DEQ will conduct monitoring of the facility if it is approved. For more information on DEQ monitoring, see 7-MT-a.14.
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