WSR 07-09-059

PROPOSED RULES

ENERGY FACILITY SITE

EVALUATION COUNCIL

[ Filed April 13, 2007, 1:03 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 06-13-030.

Title of Rule and Other Identifying Information: Chapter 463-28 WAC, State preemption (all subsections); chapter 463-47 WAC, SEPA rules (WAC 463-47-060, 463-47-090, 463-47-110, and 463-47-140); and chapter 463-66 WAC, Amending, transferring, or termination a site certification agreement (WAC 463-66-040, 463-66-070, and 463-66-080).

Hearing Location(s): Energy Facility Site Evaluation Council, 3rd Floor, Building 4, 925 Plum Street S.E., Olympia, WA 9850 [98504], on June 12, 2007, at 3:00 p.m.; and at the Yakima Area Arboretum, 1401 Arboretum Drive, Yakima, WA 98901, on June 13, 2007, at 2:00 p.m.

Date of Intended Adoption: July 10, 2007.

Submit Written Comments to: Allen Fiksdal, P.O. Box 43712, Olympia, WA 98504-3172, e-mail efsec@cted.wa.gov, fax (360) 956-2158, by June 13, 2007.

Assistance for Persons with Disabilities: Contact Tammy Talburt by June 1, 2007, (360) 956-2121.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Chapter 463-28 WAC, State preemption. Changes would expedite the siting of energy facilities where a project is found to be inconsistent with local land use plans and zoning ordinances by eliminating the requirement for the application to try to get local government to change land use plans or zoning ordinances prior to an adjudicative hearing.

Chapter 463-47 WAC, SEPA rules. Changes would streamline and reduce costs of siting energy facilities by (1) providing EFSEC the option of having SEPA documents prepared by EFSEC, and independent consultants, or the applicant; (2) giving EFSEC the option of preparing a final environmental impact statement before or after an adjudicative hearing; and (3) changing the immediate responsibility for SEPA activities from the council to the council's responsible official.

Chapter 463-66 WAC, Amending, transferring, or terminating a site certification agreement. Changes will clarify and expedite the process for amending site certification agreement by having EFSEC to approve all amendments to site certification agreements.

Reasons Supporting Proposal: These proposed rule changes would streamline EFSEC's siting of energy facilities and other regulator administrative processes, saving time and costs associated with these requirements.

Statutory Authority for Adoption: RCW 80.50.040.

Statute Being Implemented: Chapter 80.50 RCW.

Rule is not necessitated by federal law, federal or state court decision.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: EFSEC has determined that RCW 80.50.110 provides the basis for the proposed changes to chapter 463-28 WAC and these proposed changes to this chapter will streamline EFSEC's procedure where a project is inconsistent with local land use plans and zoning ordinances. The proposed changes to chapters 463-47 and 463-66 WAC will streamline EFSEC's regulatory process and will provide savings in time and costs to applicants and certificate holders by eliminating or providing options to EFSEC so it can conduct its business more efficiently.

Name of Proponent: Energy facility site evaluation council, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Allen Fiksdal, 925 Plum Street S.E., Olympia, WA 98504, (360) 956-2152.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Over the past thirty years, the businesses that have come to EFSEC for the siting and operation of large energy facilities that the EFSEC's rules have all had more [than] fifty employees. EFSEC currently regulates or is conducting siting reviews for the following companies: Energy Northwest (1,054 employees), Invenergy (130) employees, Horizon Energy (102) employees, Puget Sound Energy (2,400 employees), BP (700 local and 100,000 world-wide employees), and Suez Energy (x,xxx) employees. EFSEC does not expect small business to enter into this industry or be impacted by its rules.

A cost-benefit analysis is not required under RCW 34.05.328. These are not significant legislative rules as defined in RCW 34.05.328 because (1) EFSEC is not one of the listed agencies and (2) these are procedural and interpretative rules as defined by RCW 34.05.328 (5)(c)(i) and (ii), not "significant legislative rules" under [subsection (5)(c)](iii). In addition EFSEC believes that the proposed changes to these rules will expedite its regulatory process by eliminating duplicative land use consistency reviews, allow EFSEC to choose more cost-effective SEPA document preparation, and allow EFSEC to make all decisions regarding amendments to site certification agreements. These proposed rule changes will reduce the time and costs to applicants during an application review and to certificate holders during amendments to site certification agreements. It will also reduce EFSEC's costs which are charged directly to the applicants and certificate holders because of the elimination and streamlining of administrative procedures and process.

April 13, 2007

Allen J. Fiksdal

EFSEC Manager

OTS-9697.1


AMENDATORY SECTION(Amending WSR 04-21-013, filed 10/11/04, effective 11/11/04)

WAC 463-28-010   Purpose.   This chapter sets forth procedures to be followed by the council in determining whether to recommend to the governor that the state preempt ((local)) land use plans ((or)), zoning ordinances, or other development regulations for a site or portions of a site for an energy facility, or alternative energy facility.

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, 463-28-010, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.040(1). 78-07-036 (Order 78-3), 463-28-010, filed 6/23/78.]


AMENDATORY SECTION(Amending WSR 91-03-090, filed 1/18/91, effective 2/18/91)

WAC 463-28-060   ((Request for preemption -- ))Adjudicative proceeding.   (1) Should ((an applicant elect to continue processing the application and file a request with the council for state preemption,)) the council determine under WAC 463-26-110 a site or any portions of a site is inconsistent it will schedule an adjudicative proceeding ((hearing on the application as specified)) under chapter 463-30 WAC to consider preemption.

(2) The proceeding for preemption may be combined or scheduled concurrent with the adjudicative proceeding held under RCW 80.50.090(3).

(3) The council shall determine ((during the adjudicative proceeding)) whether to recommend to the governor that the state ((should)) preempt the ((local)) land use plans ((or)), zoning ordinances, or other development regulations for a site or portions of a site for the energy facility or alternative energy resource proposed by the applicant. ((The factors to be evidenced under this issue are those set forth in WAC 463-28-040. The determination of preemption shall be by council order, and shall be included in its recommendation to the governor pursuant to RCW 80.50.100.))

[Statutory Authority: RCW 80.50.040. 91-03-090, 463-28-060, filed 1/18/91, effective 2/18/91. Statutory Authority: RCW 80.50.040(1). 83-08-031 (Order 83-2), 463-28-060, filed 3/31/83; 78-07-036 (Order 78-3), 463-28-060, filed 6/23/78.]


AMENDATORY SECTION(Amending Order 78-3, filed 6/23/78)

WAC 463-28-070   Certification -- Conditions -- State/local interests.   If the council approves the request for preemption it shall include conditions in the draft certification agreement which ((give due consideration to)) consider state or local governmental or community interests affected by the construction or operation of the energy facility or alternative energy resource and the purposes of laws or ordinances, or rules or regulations promulgated thereunder that are preempted ((or superseded)) pursuant to RCW 80.50.110(2).

[Statutory Authority: RCW 80.50.040(1). 78-07-036 (Order 78-3), 463-28-070, filed 6/23/78.]


AMENDATORY SECTION(Amending WSR 91-03-090, filed 1/18/91, effective 2/18/91)

WAC 463-28-080   Preemption -- ((Failure to justify)) Recommendation.   ((During the adjudicative proceeding, if the council determines that the applicant has failed to justify the request for state preemption, the council shall do so by issuance of an order accompanied by findings of fact and conclusions of law. Concurrent with the issuance of its order, the council shall report to the governor its recommendation for rejection of certification of the energy facility proposed by the applicant.)) The council's determination on a request for preemption shall be part of its recommendation to the governor pursuant to RCW 80.50.100.

[Statutory Authority: RCW 80.50.040. 91-03-090, 463-28-080, filed 1/18/91, effective 2/18/91. Statutory Authority: RCW 80.50.040(1). 78-07-036 (Order 78-3), 463-28-080, filed 6/23/78.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 463-28-030 Determination of noncompliance -- Procedures.
WAC 463-28-040 Inability to resolve noncompliance.
WAC 463-28-050 Failure to request preemption.

OTS-9698.1


AMENDATORY SECTION(Amending WSR 04-21-013, filed 10/11/04, effective 11/11/04)

WAC 463-47-060   Additional timing considerations.   (1) The council will determine when it receives an application whether the proposal is an "action" and, if so, whether it is "categorically exempt" from SEPA. If the proposal is an action and is not exempt, the council will request the applicant to complete an environmental checklist. A checklist is not needed if the council and applicant agree an EIS is required, SEPA compliance has been completed, SEPA compliance has been initiated by another agency, or a checklist is included with the application. The applicant should also complete an environmental checklist if the council is unsure whether the proposal is exempt.

(2) The council may initiate an adjudicative proceeding ((hearing)) required by RCW 80.50.090 prior to completion of the draft EIS. ((The council shall initiate and conclude an adjudicative proceeding prior to issuance of the final EIS.))

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, 463-47-060, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.040. 91-03-090, 463-47-060, filed 1/18/91, effective 2/18/91. Statutory Authority: RCW 80.50.040(1). 84-19-031 (Order 84-2), 463-47-060, filed 9/14/84.]


AMENDATORY SECTION(Amending WSR 04-21-013, filed 10/11/04, effective 11/11/04)

WAC 463-47-090   EIS preparation.   (1) Preparation of draft and final EISs ((and)), SEISs, or addenda is the responsibility of the council. ((Before the council issues an EIS,)) The responsible official shall be satisfied that ((it complies)) these documents comply with these rules and chapter 197-11 WAC prior to issuance.

(2) The council ((normally will)) has the following options for draft and final EISs, SEISs, or addenda preparation:

(a) The council prepares its own ((draft and final EISs. It may)) documents.

(b) The council's independent consultant prepares any or all of the documents under the supervision of the responsible official.

(c) The council requires the applicant to prepare the documents with oversight from the responsible official.

(3) If the council prepares its own draft and final EISs, SEISs, or addenda, or its independent consultant prepares them, the council can require an applicant to provide information that the council or independent consultant does not possess, including specific investigations.

(((3) If the council would be unable to prepare a draft and/or final EIS due to its commitments or other constraints the council may allow an applicant the following option for preparation of the draft and/or final EIS for the applicant's proposal:

(a))) (4) The applicant ((and the council agree upon a method of funding in which the applicant will)) shall bear the expense of the ((EIS)) draft and final EISs, SEISs, or addenda preparation, but the consultant will work directly for the council.

(((b) The outside party will prepare the document under the supervision of the council or council subcommittee, and the responsible official.

(c))) (5) Normally, the council will have the documents printed and distributed.

(((4))) (6) Whenever someone other than the council prepares a draft or final EISs, SEISs, or addenda, the ((council shall)) responsible official:

(a) May direct the areas of research and examination to be undertaken and the content and organization of the document.

(b) Shall initiate and coordinate scoping, ensuring that the individuals preparing the ((EIS)) documents receive((s)) all substantive information submitted by any agency or person.

(c) Shall assist in obtaining information on file with ((another agency)) other agencies that is needed by the persons preparing the ((EIS)) document.

(d) Shall allow the person preparing the ((EIS)) document access to council records relating to the ((EIS)) document (under chapter 42.17 RCW -- Public disclosure and public records law).

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, 463-47-090, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.040(1). 92-09-013, 463-47-090, filed 4/2/92, effective 5/3/92; 84-19-031 (Order 84-2), 463-47-090, filed 9/14/84.]


AMENDATORY SECTION(Amending Order 84-2, filed 9/14/84)

WAC 463-47-110   Policies and procedures for conditioning or denying permits or other approvals.   (1)(a) The overriding policy of the council is to avoid or mitigate adverse environmental impacts which may result from the council's decisions.

(b) The council shall use all practicable means, consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs, and resources to the end that the state and its citizens may:

(i) Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

(ii) Assure for all people of Washington safe, healthful, productive, and aesthetically and culturally pleasing surroundings;

(iii) Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

(iv) Preserve important historic, cultural, and natural aspects of our national heritage;

(v) Maintain, wherever possible, an environment which supports diversity and variety of individual choice;

(vi) Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and

(vii) Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

(c) The council recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

(d) The council shall ensure that presently unquantified environmental amenities and values will be given appropriate consideration in decision making along with economic and technical considerations.

(2)(a) When the environmental document for a proposal shows it will cause significant adverse impacts that the proponent does not plan to mitigate, the council shall consider whether:

(i) The environmental document identified mitigation measures that are reasonable and capable of being accomplished;

(ii) Other local, state, or federal requirements and enforcement would mitigate the significant adverse environmental impacts; and

(iii) Reasonable mitigation measures are sufficient to mitigate the significant adverse impacts.

(b) The council may:

(i) Condition the approval or recommendation for approval for a proposal if mitigation measures are reasonable and capable of being accomplished and the proposal is inconsistent with the policies in subsection (1) of this section.

(ii) Reject or recommend rejection of the application if reasonable mitigation measures are insufficient to mitigate significant adverse environmental impacts and the proposal is inconsistent with the policies in subsection (1) of this section.

(c) The procedures in WAC 197-11-660 must also be followed when conditioning, denying or recommending permits or ((rejection of)) rejecting applications.

[Statutory Authority: RCW 80.50.040(1). 84-19-031 (Order 84-2), 463-47-110, filed 9/14/84.]


AMENDATORY SECTION(Amending Order 84-2, filed 9/14/84)

WAC 463-47-140   Responsibilities of the council's responsible official.   The ((council)) EFSEC manager shall be responsible for the following:

(1) Coordinating activities to comply with SEPA and encouraging consistency in SEPA compliance.

(2) Providing information and guidance on SEPA and the SEPA rules to council, council staff, groups, and citizens.

(3) Reviewing SEPA documents falling under council interests and providing the department of ecology with comments.

(4) Maintaining the files for EISs, DNSs, and scoping notices, and related SEPA matters.

(5) Writing and/or coordinating EIS preparation, including scoping and the scoping notice, making sure to work with interested agencies.

(6) Publishing and distributing its SEPA rules and amending its SEPA rules, as necessary.

(7) Fulfilling the council's other general responsibilities under SEPA and the SEPA rules.

[Statutory Authority: RCW 80.50.040(1). 84-19-031 (Order 84-2), 463-47-140, filed 9/14/84.]

OTS-9699.1


AMENDATORY SECTION(Amending WSR 04-21-013, filed 10/11/04, effective 11/11/04)

WAC 463-66-040   Amendment review.   In reviewing any proposed amendment, the council shall consider whether the proposal is consistent with:

(1) The intention of the original SCA;

(2) Applicable laws and rules; ((and))

(3) The public health, safety, and welfare; and

(4) The provisions of chapter 463-72 WAC.

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, recodified as 463-66-040, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.040(1). 87-24-006 (Order 87-2), 463-36-040, filed 11/19/87.]


AMENDATORY SECTION(Amending WSR 04-21-013, filed 10/11/04, effective 11/11/04)

WAC 463-66-070   Approval by council action.   An amendment request ((which does not substantially alter the substance of any provisions of the SCA, or which is determined not to have a significant detrimental effect upon the environment,)) shall be effective upon approval by the council. Such approval may be in the form of a council resolution or order.

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, amended and recodified as 463-66-070, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.040(1). 87-24-006 (Order 87-2), 463-36-070, filed 11/19/87.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 463-66-080 Approval by governor.

Washington State Code Reviser's Office