Background:

Energy Facility Site Evaluation Council.

The Energy Facility Site Evaluation Council (Council) was created in 1970 to provide a "one-stop" siting process for major energy facilities in Washington. The Council coordinates all evaluation and licensing steps for siting certain energy facilities in Washington. The Council specifies the conditions of construction and operation. If approved, a site certification agreement is issued in lieu of any other individual state or local agency permits.

The Council is comprised of a chair appointed by the Governor, and representatives from five state agencies. Agencies represented on the Council include: (1) the Department of Commerce; (2) the Department of Ecology; (3) the Department of Fish and Wildlife; (4) the Department of Natural Resources; and (5) the Utilities and Transportation Commission. When an application to site a facility is submitted to the Council, representatives from particular cities, counties, or port districts potentially affected by the project are added to the Council for proceedings related to the project.

Energy Facilities Subject to the Council's Site Certification Authority.

The Council's siting authority includes the following energy facilities: (1) large natural gas and petroleum pipelines; (2) thermal electric power plants 350 megawatts (MWs) or greater and their dedicated transmission lines; (3) new oil and biofuel refineries or large expansions of existing facilities; (4) all nuclear power facilities with the primary purpose to produce and sell electricity; and (5) underground natural gas storage fields. In addition, energy facilities of any size that exclusively use alternative energy resources (wind, solar, geothermal, landfill gas, wave or tidal action, or biomass energy) may opt-in to the Council process. The Council's jurisdiction does not extend to hydro based power plants or thermal electric plants that are less than 350 MWs.

Site Certification Process.

The Council certification process provides applicants an opportunity to present their proposals, allows interested parties to express their concerns about the proposed project to the Council, and permits the Council to address issues related to the application.

There are six major steps in the site certification process: (1) application submittal; (2) application review; (3) initial public hearings; (4) environmental impact statement; (5) adjudicative proceedings and permits review; and (6) recommendation to the Governor. Each step has specific requirements the applicant and the Council must follow to ensure a comprehensive review of the project. The Council must report to the Governor its recommendations as to the approval or rejection of an application for certification within 12 months of receipt of an application.

Within 60 days of receipt of the Council's report the Governor must take one of the following actions: (1) approve the application and execute the draft certification agreement; (2) reject the application; or (3) direct the Council to reconsider certain aspects of the draft certification agreement.

The Council must reconsider such aspects of the draft certification agreement by reviewing the existing record of the application or, as necessary, by reopening the adjudicative proceeding for the purposes of receiving additional evidence. Such reconsideration must be conducted expeditiously. The Council must resubmit the draft certification to the Governor incorporating any amendments deemed necessary upon reconsideration. Within 60 days of receipt of such draft certification agreement, the Governor must either approve the application and execute the certification agreement or reject the application. The certification agreement shall be binding upon execution by the Governor and the applicant.

A final decision on an application for certification is subject to judicial review and petitions for review of such a decision must be filed in Thurston County Superior Court.

Expedited Processing of an Application.

Any person filing an application for certification of an energy facility or an alternative energy resource facility may apply to the Council for an expedited processing of an application. The Council may grant an applicant expedited processing if it finds that the environmental impact of the proposed energy facility is not significant or will be mitigated to a non-significant level under the State Environmental Policy Act (SEPA) and the project is found to be consistent and in compliance with city, county, or regional land use plans or zoning ordinances. Upon granting an applicant expedited processing of an application, the Council is not required to: (1) commission an independent study to further measure the consequences of the proposed energy facility or alternative energy resource facility on the environment; nor (2) hold an adjudicative proceeding on the application consistent with the Administrative Procedure Act.

Counsel for the Environment.

After the Council has received a site application, the Attorney General must appoint an Assistant Attorney General to serve as a Counsel for the Environment. The Counsel for the Environment represents the public and its interest in protecting the quality of the environment.

Summary of Bill:

Powers and Duties.

The powers and duties of the Council are expanded. The Council is responsible for approving or denying an application for site certification of a proposed energy facility, rather than the Governor as required under current law. The Council is responsible for developing minimum safety standards for cities and counties in relation to the type, design, location, construction, operational conditions, and decommissioning of energy facilities. Also, the Council is authorized to enter into interlocal agreements with cities and counties for the purpose of issuing site certifications for energy facilities within the geographic jurisdiction of the city or county.

Council Membership.

The membership of the Council is modified to consist of the following voting members:

the Chair of the Council;

three members of the Growth Management Hearings Board, including two members residing closest to the proposed energy facility and a third member drawn from one of the other regions of the state;
the Department of Fish and Wildlife;
the Department of Ecology; and
a representative from a city, county, or port district potentially affected by the project.

If the Chair determines that a proposed energy facility may impact shorelines or forest resources in the state, a representative from either the Shoreline Hearings Board or the Forest Practices Board may be asked to serve on the Council, serving in place of one of the two Growth Management Hearings Board members residing closest to the proposed energy facility.

Eligible Energy Facilities.

Energy plants that are eligible for site certification through the Council include: (a) any nuclear power facility where the primary purpose is to produce and sell electricity; (b) any stationary thermal power plant; (c) floating thermal power plants suspended on the surface of water by means of a barge, vessel, or other floating platform; (d) facilities which will have the capacity to import or export liquefied natural gas that has been transported over land or marine waters; (e) facilities which will have the capacity to receive crude or refined petroleum or liquefied petroleum gas which has been or will be transported over marine waters; (f) any underground reservoir for receipt and storage of natural gas; (g) facilities capable of processing petroleum or biofuel into refined products except where such biofuel production is undertaken at existing industrial facilities; and (h) any alternative energy resource.

A proposed transmission pipeline facility project must apply to the Council for site certification if the transmission pipeline facility will transport petroleum or petroleum products with pipe strength levels in excess of 20 percent of the specified minimum yield strength. Also, natural gas, synthetic fuel gas and liquefied petroleum gas transmission pipelines with the purpose of delivering gas to a distribution facility must apply to the Council for site certification if the pipe strength levels are in excess of 20 percent of the specified minimum yield strength. A proposed transmission pipeline facility that carries federally listed hazardous waste to an energy facility must also apply to the Council for site certification.

The current definition of thermal power plant is modified to mean any electrical generating facility combusting any gaseous, liquid, or solid fuel or using heat to create steam for the generation of electricity. The current definition of alternative energy resources is modified to include energy storage as an alternative energy resource.

Adoption of Standards.

By December 1, 2014, the Council is required to adopt standards for the siting, construction, operation, and decommissioning of energy facilities. The standards adopted by the Council must, at a minimum, meet the requirements under Oregon Administrative Rules, Chapter 345, in effect as of January 1, 2013. The standards must address, but not be limited to, the following subjects:

the organizational, managerial, and technical expertise of the applicant;
the financial ability and qualifications of the applicant;
Seismic hazards;
areas designated for protection by the state or federal government;
Effects of the energy facility on fish and wildlife;
impacts of the energy facility on historic, cultural, or archaeological resources listed on the national register or the Washington Heritage Register;
protection of public health and safety;
the accumulation, storage, disposal, and transportation of nuclear waste;
impacts of the energy facility on recreation, scenic, and aesthetic values;
reduction of solid waste and wastewater generation;
ability of the communities in the affected area to provide sewers and sewage treatment, water, storm water drainage, solid waste management, housing, traffic safety, police and fire protection, health care, and schools;
soil protection;
noise; and
the distance an energy facility must be set back from adjoining properties.

The Council may issue a site certificate for an energy facility that does not meet one or more of the standards, if the Council determines that the overall public benefits of the energy facility outweigh the impact on the resources protected by the standards the facility does not meet.

Adoption of Minimum Standards for Local Governments and Interlocal Agreements.

By December 1, 2015, the Council must develop through rule making minimum standards for cities and counties in relation to the type, design, location, construction, operational conditions, and decommissioning of energy facilities. The Council and any local government in the state may enter into an interlocal agreement for the purpose of authorizing the Council to issue site certifications for energy facilities within the geographic jurisdiction of the local government.

Standards for Proven Energy Technologies.

The Council must develop a list of proven energy technologies to be granted expedited site certification processing. A proven energy technology is defined as any energy technology used in an energy facility offered for sale in the United States and preapproved by the Council. For each proven energy generation technology listed, the Council must develop specific operational guidelines for the energy technology consistent with the applicable standards adopted by the Council and the State Environmental Policy Act.

Any energy technology company may seek pre-approval of its energy technology by submitting to the Council a proven energy technology pre-approval application. The Council may impose a charge to cover necessary costs to process the pre-approval application. For each pre-approval application submitted by an applicant, the Council must develop through rule-making the standards an energy technology must meet to be pre-approved as a proven energy technology. The Council may collect a fee from the applicant to recover the cost of the rule-making.

Application Eligibility.

An applicant for the site certification of an energy facility in Washington may choose to apply to the Council for site certification or to apply to a city or county for a permit for the energy facility. Applicants proposing either a nuclear power plant or a transmission pipeline facility in Washington must apply to the Council for site certification. If an energy facility has been previously approved or denied by a local government, it is not eligible to apply to the Council for site certification.

Application Process.

Preliminary Application Process

Each applicant for a site certificate must submit to the Council a preliminary application for a site certificate. The preliminary application must provide information about the proposed site and the characteristics of the energy facility sufficient for the preparation of the Council's notice of application requirements.

The Council must provide notice to the public within three working days of receiving a preliminary application. The public notice must provide a description of the proposed site and facility in sufficient detail to inform the public of the location and proposed use of the site. The public has 14 days to provide comment on the preliminary application. After the Council provides public notice, a city, county, or regional planning authority may not change land use plans or zoning ordinances so as to affect the proposed site.

Within three working days after the Council provides public notice, an applicant for a site certification must distribute the preliminary application to any agency that has regulatory or advisory responsibility with respect to the facility and any city or county affected by the application.

Following review of the preliminary application and any public comments received in response to the public notice, the Council must hold a public information meeting in the vicinity of the proposed project with state agencies and local governments that have regulatory or advisory responsibility with respect to the facility.

Notice of Application Requirements.

No more than 30 days after receiving a preliminary application, the staff of the Council must issue a notice of application requirements establishing the statutes, administrative rules, Council standards, local ordinances, and study requirements for the site certificate application. The staff may consider whether the proposed facility is in compliance with city, county, or regional land use plans or zoning ordinances and may specify additional requirements in the notice of application based on a review of plans and ordinances where the proposed facility is to be located.

Following issuance of the notice of application requirements, an applicant must submit an application for site certification consistent with the notice of application requirements within 15 days.

The staff of the Council must determine within 15 days of submission of an application whether the application meets the Council's requirements. If an application meets the Council's requirements, the staff must establish the timeline in which the environmental review must be completed.

Environmental Review Timeline.

The environmental review of a proposed energy facility must be completed within six months after a preliminary application is submitted to the Council unless the staff determines that: (1) the environmental review, due to the potential impacts of the project, requires additional time to review; or (2) the energy facility uses a technology that is not listed by the Council as a proven energy generation technology. If the staff determines that the project requires additional time to review, the environmental review may not exceed 12 months in duration. If the environmental review process is extended to 12 months, the Attorney General must appoint an Assistant Attorney General to serve as Counsel for the Environment.

Environmental Review.

Following requirements under the State Environmental Policy Act (SEPA), the Chair oversees an environmental review of the proposed energy facility. The Chair initiates the scoping process to determine the range of proposed actions after an application has been determined to meet Council requirements. The Chair must conduct a public hearing on the proposed energy facility within 30 days of initiating the scoping process. Council staff must notify any agency that has regulatory or advisory responsibility with respect to the facility and any city or county affected by the application of the scoping process.

The Council staff, within 60 days after initiating the scoping process, must publish a draft Environmental Impact Statement (EIS).

The Chair must solicit comments on the draft EIS and hold a public hearing 15 days after the draft EIS is made public.

Within 15 days after the public hearing on the draft EIS, the Chair must submit to the Council a recommended final EIS. In submitting the recommended final EIS to the Council, the Chair must specify whether there are any disputed items based on public input provided during the development of the recommended final EIS.

If there are disputed items in the recommended final EIS, the Council must hold a public hearing within 15 days on the draft EIS. At the hearing, the Chair must provide a report to the Council regarding the disputed items in the recommended final EIS. The issues that may be considered at the public hearing are limited to issues raised during the preliminary application process and during the development of the recommended final EIS. The Chair must specify to the Council the basis for decisions made relating to the disputed items contained in the recommended final EIS. Based on the input of the Chair, the applicant, and the public at the public hearing, the Council may elect to address the disputed items from the recommended final EIS in the final EIS. The Council must issue the final EIS within 15 days of the public hearing.

If there are no disputed items in the recommended final EIS, the Chair must submit to the Council the recommended final EIS within 15 days of the public hearing and the Council must adopt the recommended final EIS as the final EIS.

Site Certification.

Within 15 days of issuing the final EIS, Council staff must prepare and issue an initial order and draft site certification based on the final EIS. Within 15 days of receiving an initial order and draft site certification, the Council must make a final decision on the application. The Council must either approve the application and execute the draft certification agreement or reject the application for site certification. If the Council fails to make a final decision, the initial order becomes the final order on the 15 day following receipt of the initial order.

Expedited Processing of Applications.

Under established procedures for expedited processing of an application, the Council must consider compliance with city, county, or regional land use plans or zoning ordinances rather than provide a finding that the project is consistent with such land use plans and zoning ordinances.

Net Metering.

No permit or certification or any condition or provision of any permit, certification, or agreement issued by the Council may preempt or supersede any provision relating to the net metering provisions in statute.

Federal Energy Regulatory Commission.

The Council is directed to monitor the activities of the Federal Energy Regulatory Commission (FERC) and may receive notifications for energy projects located in Washington that are under the regulatory oversight of the FERC. These notifications include, but are not limited to, project filings, delegated orders, notices, and decisions issues by the FERC.

Local Government Permitting of Energy Facilities.

A city and county that has approved an energy facility through a local permitting process must submit to the Council within 30 days of the issuance of a permit a copy of the permit and any conditions of approval.

Contract Oversight.

The Utilities and Transportation Commission's administrative responsibilities are expanded to include serving as the fiscal agent for the Council, ensuring compliance with state law, and consulting on the execution of contracts with the Council. The Council retains its independence in exercising its powers, functions, and duties relating to site certification applications.