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Oregon Transmission Site Certification (8-OR-a)

In Oregon, a person (developer) may need a Transmission Site Certificate from the Oregon Energy Facility Siting Council (EFSC) for energy facilities. “Energy facilities” is defined, in part, as “ A high voltage transmission line of more than 10 miles in length with a capacity of 230kV or more to be constructed in more than one city or county in Oregon." This definition does not include transmission projects to be constructed within 500 feet of an existing corridor occupied by high voltage transmission lines with a capacity of 230kV or more, or lines of 57kV or more that are rebuilt and upgraded to 230kV along the same right of way. Or. Rev. Stat. § 469.300(11)(a)(C). The Oregon Department of Energy (ODOE) controls the application process while the EFSC makes the decision on each Site Certificate. Or. Rev. Stat. § 469.320.

The EFSC and the ODOE regulate the siting of energy facilities pursuant to Oregon – Or. Rev. Stat. §§ 469.010-469.992, Energy, Conservation Programs, Energy Facilities, Oregon – Or. Admin. R. 345-015-0001–345-015-0500, Procedures Governing Council and Department of Energy Proceedings, Including Site Certificate Hearings, Or. Admin. R. 345-020-0006–345-020-0060, Notice of Intent, Oregon – Or. Admin. R. 345-021-0000–345-021-0100, Application for a Site Certificate, and Oregon – Or. Admin. R. 345-023-0005–345-023-0040, Need Standard for Nongenerating Facilities.

Transmission Site Certification Process

8-OR-a.1 – Contact ODOE and Affected Local Governments

The developer should contact the ODOE and local governments prior to initiating the application process to allow time for planning and to identify all potential issues related to the project. See Guidelines for Applicants for Energy Facility Site Certificates p. 32.

8-OR-a.2 to 8-OR-a.3 – Is the Proposed Project an “Energy Facility” Under the Jurisdiction of the EFSC?

Projects that are considered “energy facilities” under the EFSC must obtain a Site Certificate Or. Rev. Stat. § 469.320. For transmission lines in excess of 230 kV that do not fall under the jurisdiction of the EFSC, the developer must give public notice of the proposed project at least six months prior to initiating the local permitting process. Notice must be given:

  • By publication once a week for four consecutive weeks in a newspaper of general circulation in the county or counties in which the transmission line is to be constructed; and
  • To the governing bodies and planning directors of cities and counties which are in, or partially in, the project study area.

The developer must also provide an opportunity for public comment and respond specifically to concerns and recommendations regarding the proposed transmission line. Or. Rev. Stat. § 469.442(1). For transmission projects not in excess of 230kV and not under EFSC jurisdiction, the developer should contact local permitting authorities.

8-OR-a.4 - Notice of Intent (NOI)

The Notice of Intent (NOI) phase is the first part of the permitting process. The developer must submit a NOI to provide the EFSC with information about the proposed project and its potential impacts. The NOI must contain the following information:

  • Information about the developer and participating persons, including, but not limited to, names and contact information;
  • Information about the proposed facility;
  • A description of the location of the proposed facility;
  • Identification of at least two proposed corridors;
  • Identification of all federal, state, and local government permits related to the siting of the proposed facility;
  • A list of all owners of record of property located within or adjacent to the site boundary;
  • Maps of the proposed locations of the facility including corridors, study areas, protected areas and area topography;
  • A demonstration of need for the facility;
  • A statement indicating whether the developer intends to satisfy the Council’s land use standard under Or. Admin. R. 345-022-0030;
  • Identification of significant environmental impacts of construction and operation of the proposed facility;
  • Information about significant potential adverse impacts of construction and operation of the proposed facility on the ability to provide the services listed in Or. Admin. R. 345-022-0110;
  • Information about anticipated water use during construction and operation of the proposed facility;
  • Identification of all state statutes, administrative rules, and local government ordinances containing standards or criteria that the proposed project must meet for the Council to issue a site certificate;
  • A schedule stating when the developer expects to submit a preliminary application for a site certificate;
  • Evidence of consultation with the Legislative Commission on Indian Service to identify each appropriate tribe to consult with regarding the proposed facility’s possible effects on Indian historic and cultural resources.

For further detail on these requirements see Or. Admin. R. 345-020-0011(1)(a)-(p).

8-OR-a.5 to 8-OR-a.6 - Issue Public Notice of NOI

The ODOE will issue a public notice of the NOI by:

  • Sending notice to persons on the EFSC’s general mailing list;
  • Sending notice to owners of property whose names and addresses the developer has supplied;
  • Publishing notice in one or, if possible, two newspapers of general circulation in the vicinity of the proposed facility. Or. Admin. R. 345-015-0110(1)(a)-(c).

The public notice of the NOI will contain:

  • A description of the proposed project:
  • The location of the proposed site;
  • The date when the developer expects to submit an application for a site certificate;
  • A brief description of the EFSC review process;
  • An explanation of how the developer may choose to meet the EFSC land use standard;
  • The date, time, and location of any informational meeting on the NOI;
  • The date and method by which public comments may be submitted;
  • The contact information for the ODOE project officer. Or. Admin. R. 345-015-0110(2)(a)-(h).

The ODOE will then issue a Memorandum on the NOI to accompany the copies of the NOI that are distributed. In the Memorandum the ODOE will request comments from the reviewing agency, including the following information:

  • Contact information of the agency contact person;
  • Comments on aspects of the proposed facility that are within the particular responsibility or expertise of the reviewing agency;
  • Recommendations regarding the size and location of the analysis area;
  • A list of studies regarding potential impacts of the project and mitigation measures;
  • A discussion on the relative merits of the corridors selected by the developer;
  • A list of statutes, rules, and ordinances administered by the agency;
  • A list of permits administered by the agency;
  • A list of tribal code that any affected tribe recommends to the EFSC for its review.

Finally, the Memorandum will state the date, location, and purpose of any informational meeting that the ODOE has scheduled on the NOI. Or. Admin. R. 345-015-0120(1)-(3).

8-OR-a.7 to 8-OR-a.8 –Does the ODOE Conduct Public Informational Meetings?

The ODOE may hold one or more informational meetings for the public on the proposed project. At the informational meeting the ODOE will explain the NOI and application processes and outline the opportunities for public participation in these processes. Or. Admin. R. 345-015-0130.

8-OR-a.9 to 8-OR-a.10 – Review NOI

The ODOE will review the Notice of Intent and all comments and recommendations received from the public and reviewing agencies., The ODOE will then issue a Project Order within 140 days after receipt of the NOI Or. Admin. R. 345-015-0160. The ODOE and other agencies will use the NOI to compile relevant regulations and other information needed for the developer to complete the site certificate application. This information will be presented in the Project Order. The Project Order also determines “analysis areas” for which the developer must assess impacts. The developer may not submit a Preliminary Application for Site Certification until the ODOE issues the Project Order. See Guidelines for Applicants for Energy Facility Site Certificates.

8-OR-a.11 - Site Certificate Application and Demonstration of Need

After the ODOE issues a project order, the developer may submit a Site Certificate Application. Or. Admin. R. 345-021-0000(3). The required contents of the application are enumerated in Or. Admin. R. 345-021-0010. In addition, the developer must demonstrate a need for the project under Or. Admin. R. 345-023-0005. Need may be demonstrated under the “least-cost plan rule” under Or. Admin. R. 345-023-0020, or the “system reliability rule” under Or. Admin. R. 354-023-0030.

8-OR-a.12 to 8-OR-a.16 – Does the Developer Choose a Local Determination of Project’s Consistency with Statewide Planning Goals?

A proposed project must comply with the standards of state and local permitting agencies in addition to meeting the requirements of the EFSC. The developer must decide whether to obtain local government approval of the proposal’s consistency with statewide land use planning goals, or to allow the EFSC to make that determination. Or. Admin. R. 345-020-001(1)(i). If the developer chooses to allow the EFSC to make the determination, the EFSC will appoint a Special Advisory Group (SAG) consisting of the governing body of any local government within the jurisdiction of which the proposed project will be located. Or. Rev. Stat. § 469.480. The ODOE will contact the SAG upon receiving the developer’s preliminary application for site certification and request local government criteria and statewide planning goals. Or. Admin. R. 345-020-0330(3). The ODOE will then make its recommendations to the EFSC regarding the compliance of the proposed project with state and local land use requirements. See Guidelines for Applicants for Energy Facility Site Certificates pp.13-15.

8-OR-a.17 to 8-OR-a.18– Review Application for Completeness

The ODOE will review the application for completeness. Until the ODOE determines the application is complete, the application will be considered a preliminary application. Or. Admin. R. 345-021-0500. The ODOE will notify the developer whether the application is complete within 60 days after receipt of the preliminary application. Or. Admin. R. 345-015-0190.

8-OR-a.19 to 8-OR-a.20 – Draft Proposed Order

The ODOE will issue draft findings and recommendations regarding a proposed facility in a Draft Proposed Order (DPO). The DPO will be comprised of the recommendations of the ODOE staff and address the comments from other state and local agencies, as well as the public. The ODOE will provide notice for, and schedule, a public hearing upon issuing the DPO. See Guidelines for Applicants for Energy Facility Site Certificates p.36.

8-OR-a.21 - Conduct Public Hearing

The ODOE will conduct at least one public hearing regarding the developer’s application. The hearing is an opportunity for the public to express support for, or opposition to the proposed project. The public may submit written comments. See Guidelines for Applicants for Energy Facility Site Certificates p.36.

8-OR-a.22 to 8-OR-a.24 – Proposed Order and Notice of Contested Case Proceeding

The ODOE will issue a Proposed Order and Notice of Contested Case Proceeding (Notice) after the public hearing. The contested case proceeding is required under Or. Rev. Stat. § 469.370. A hearing officer appointed by the EFSC presides over the contested case proceeding. The Notice will include a deadline for eligible persons to request party status and to raise contested case issues Or. Admin. R. 345-015-0014(1)(a). The developer is automatically granted party status. Persons who have commented in person or in writing on the record of the public hearing are eligible to request party status. If no eligible person requests party status, the hearing officer will terminate the contested case proceedings and the EFSC will decide whether to issue the Site Certificate based on the DPO. See Guidelines for Applicants for Energy Facility Site Certificates p.37.

8-OR-a.25 to 8-OR-a.26 – Does the ODOE Hold a Prehearing Conference?

If an eligible person requests party status, the hearing officer may hold one or more prehearing conferences regarding the developer’s application. Or. Admin. R. 345-015-0023. The prehearing conference may address:

  • Agreement on the issues that will be the subject of testimony beyond the application;
  • Scheduling of filing direct and rebuttal testimony;
  • Clarification of issues to be subject to submission of testimony and cross examination;
  • Conduct of the proceedings;
  • The rights of the parties; and
  • Identification of additional information needed for the review.

See Guidelines for Applicants for Energy Facility Site Certificates p.37.

8-OR-a.27 to 8-OR-a.28 – Conduct Hearing

The contested case hearing will include discovery, presentation of evidence, rebuttal and cross-examination. Parties to a contested case may resolve the issues through settlement before the hearing occurs. After the hearing, the hearing officer will issue a Proposed Contested Case Order stating the hearing officer’s findings of fact, conclusions of law, and recommended conditions to the site certificate application. Parties to the contested case proceeding may file exceptions to the Proposed Contested Case Order. See Guidelines for Applicants for Energy Facility Site Certificates p.38.

8-OR-a.29 to 8-OR-a.31 – Hold Public Meeting

The EFSC will hold a public meeting at which they will adopt, modify or reject the hearing officer’s Proposed Contested Case Order. If the EFSC issues the Site Certificate, it becomes effective upon signature by the developer and the EFSC. See Guidelines for Applicants for Energy Facility Site Certificates p.38.

8-OR-a.32 to 8-OR-a.36 – Does the Developer Seek a Rehearing?

The developer has 30 days from the service of the EFSC’s final order to file an Application for Rehearing on the matter. The Application for Rehearing must specifically state the ground on which it is based. The EFSC has the power to grant or deny a rehearing. If the EFSC does not act upon the Application for Rehearing within 30 days after its filing, the Application for Rehearing is considered denied. Or. Rev. Stat. § 469.403(1). If the EFSC rules in favor of the developer at rehearing, it will issue the Site Certificate.

8-OR-a.37 to 8-OR-a.38 – Petition for Judicial Review – Supreme Court

Jurisdiction for judicial review of denial of a Site Certificate application is conferred upon the Oregon Supreme Court. The developer must file its Petition for Judicial Review with the Court within 60 days of service of the EFSC’s final order, or within 30 days of denial of an Application for Rehearing. Or. Rev. Stat. § 469.403(1). The developer must serve, and show proof of service, of the Petition for Judicial Review on:

  • The EFSC;
  • The Oregon Attorney General;
  • All other parties of record in the proceeding; and
  • Any other person required by law to be served. O.R.A.P. Rule 4.15(3)(a)-(d).

8-OR-a.39 – 8-OR-a.41 – Conduct Review

Issues on appeal to the Supreme Court are limited to those raised at the Contested Case Hearing. If the Supreme Court rules in favor of the developer, the EFSC will issue the Site Certificate. If the Supreme Court rules against the developer, the project cannot continue.

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