Original Notice.

     Preproposal statement of inquiry was filed as WSR 08-18-090.

     Title of Rule and Other Identifying Information: Chapter 463-10 WAC, Definitions, add new definition. Chapter 463-43 WAC, Expedited processing, update to reflect statute changes. Chapter 463-58 WAC, Fees or charges for independent consultant study, regular and expedited application processing, determining compliance and potential site studies, clarify fee language, update to include required monetary charges for electrical transmission facilities, clarify responsibility for financial services, and correct citation. Chapter 463-60 WAC, Applications for site certification, add existing requirements for carbon dioxide plan submittal, meeting greenhouse gas performance standards, and meeting electrical transmission facilities rules. Chapter 463-62 WAC, Construction standards for energy facilities, correct citation.

     Hearing Location(s): Energy Facility Site Evaluation Office, 3rd Floor, 905 Plum Street S.E., Olympia, WA 98504-3172, on February 10, 2009, at 2:30 p.m.

     Date of Intended Adoption: February 10, 2009.

     Submit Written Comments to: Allen Fiksdal, P.O. Box 43172, Olympia, WA 98504-3172, e-mail allenf@cted.wa.gov, fax (360) 956-2158, received by February 9, 2009.

     Assistance for Persons with Disabilities: Contact Tammy Talburt by February 6, 2009, (360) 956-2121.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of this proposal is to correct and clarify rule language; correct citations, update, and add new sections within existing chapters of TITLE 463 WAC due to statute changes and previous adoption of rules. The effect of this proposal will be more clear and precise rules, rules that reflect current statutes and rules, and corrected citations.

     Reasons Supporting Proposal: Although the energy facility site evaluation council (EFSEC) has adopted rules on carbon dioxide (chapter 463-80 WAC), greenhouse gasses (chapter 463-85 WAC), and adopted new rules for electrical transmission facilities (chapter 463-61 WAC), it has not integrated or updated some of its other rules relating to information to be supplied in applications for site certification as a result of the previous rule adoption. EFSEC's rule on expedited processing of applications for site certification rules need to be changed to reflect the 2006 changes to RCW 80.50.075 and changes to the criteria for granting requests for this process. Clarifying language in chapter 463-58 WAC is needed to reflect current terminology regarding costs and fees. Some WAC citations need to be corrected.

     Statutory Authority for Adoption: RCW 80.50.040(1).

     Statute Being Implemented: Chapter 80.50 RCW.

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

     Name of Proponent: EFSEC, governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Allen Fiksdal, 905 Plum Street, Olympia, WA 98504-3172, (360) 956-2152.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. EFSEC has determined that these rule changes are: (1) Citation corrections, (2) language clarification that does not substantive[ly] change the intent of the rule(s), and (3) minor modification or additions to existing rules as a result of statue changes and previous rule adoption. These changes will have no economic impact.

     A cost-benefit analysis is not required under RCW 34.05.328. EFSEC is not listed as an agency required to prepare a cost-benefit analysis and this proposed rule does not meet the definition of a "significant legislative rule" under RCW 34.05.328.

December 10, 2008

Allen J. Fiksdal

Manager

OTS-1996.1

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

WAC 463-10-010   Definitions.   Except where otherwise indicated in the following chapters, the following terms have the meaning shown:

     (1) "Council" means the energy facility site evaluation council created pursuant to chapter 80.50 RCW and, where appropriate, to the staff of the council.

     (2) "Applicant" means the person or entity making application for a certification or permit covered by this title.

     (3) "Adjudicative proceeding" means a proceeding conducted pursuant to RCW 80.50.090(3) and the state Administrative Procedure Act.

     (4) "Certificate holder" means a person or entity who is signatory to a site certification agreement, which has been signed by the governor, and who is bound by its terms.

     (5) "Chair" means the person appointed by the governor pursuant to RCW 80.50.030.

     (6) "Council manager" means the individual who handles day-to-day administration for the council, administers the decisions of the council, and directs the staff that supports the council.

     (7) "Energy facility" includes electrical transmission facilities under RCW 80.50.020(8) and alternative energy resources under RCW 80.50.020(18).

     (8) "Site certification agreement (SCA)" means the agreement between the state of Washington and the applicant that prescribes the conditions required for construction and operation of an energy facility.

     (((8))) (9) "Rule" as used herein, includes the terms "agency order," "directive" or "regulation" in accordance with RCW 34.05.010(16).

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, § 463-10-010, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.040(1). 98-01-080, § 463-10-010, filed 12/12/97, effective 1/12/98. Statutory Authority: RCW 80.50.040. 91-03-090, § 463-10-010, filed 1/18/91, effective 2/18/91; Order 104, § 463-10-010, filed 11/4/76.]

OTS-1997.1

NEW SECTION
WAC 463-43-025   Environmental checklist required.   An applicant seeking expedited processing shall submit a completed SEPA environmental checklist with an application for site certification unless the council finds the proposal is categorically exempt.

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     (1) The environmental impact of the proposed energy facility((,)) will be mitigated to a nonsignificant level under the State Environmental Policy Act; and

     (2) The ((area potentially affected,

     (3) The cost and magnitude of the proposed energy facility, and

     (4) The degree to which the proposed energy facility represents a change in use of the proposed site)) project is found to be consistent and in compliance with city, county, or regional land use plans.

[Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-43-030, filed 4/26/78.]

     (1) Conduct a public informational meeting in the county of the proposed site within sixty days of receipt of an application to provide information to the public concerning the nature and purpose of the energy facility and the review process to be undertaken by the council and to provide an opportunity for the public to present its views;

     (2) Determine at a public hearing within sixty days of receipt of an application if the proposed site is consistent and in compliance with city, county or regional land use plans and zoning ordinances;

     (3) Review the application pursuant to WAC 463-43-030; in making its review the council may engage pursuant to RCW 80.50.071 (1)(a) an independent consultant to provide an assessment of the application and environmental checklist and to conduct any special study deemed necessary by the council; and

     (4) If applicable, initiate processing of ((the applicant's)) :

     (a) A NPDES application((, if required,)) in accordance with chapter 463-76 WAC;

     (b) An air emissions or PSD permit application in accordance with 463-78 WAC;

     (c) Other such authorizations or permits as may be required by law or rule and necessary for construction and operation of the project.

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, § 463-43-040, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-43-040, filed 4/26/78.]

     (1) The proposed site is consistent and in compliance with city, county or regional land use plans ((and)), zoning ordinances; and

     (2) The environmental impacts((, area potentially affected, cost and magnitude, and degree of change in use caused by the proposed energy facility)) are not significant ((enough to warrant a full review of an application for certification under the provisions of chapter 80.50 RCW)) or may be mitigated to nonsignificant level under RCW 43.21C.031.

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, § 463-43-050, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-43-050, filed 4/26/78.]

     (1) Conduct any further review of an application by an independent consultant; however, at the direction of the council an independent consultant may prepare air or water discharge permits or other ancillary permits or studies that may be needed as part of a recommendation to the governor;

     (2) Hold an adjudicative proceeding under chapter 34.05 RCW; and

     (3) Continue an adjudicative proceeding that has commenced.

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, § 463-43-060, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.040. 91-03-090, § 463-43-060, filed 1/18/91, effective 2/18/91. Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-43-060, filed 4/26/78.]

OTS-1998.1

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, § 463-58-010, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-58-010, filed 4/26/78.]

     (1) The council may determine that the initial ((fee)) charge of twenty-five thousand dollars is insufficient to adequately fund the study. If so, the council shall so advise the applicant and shall furnish an estimate of the supplemental ((fees)) costs needed to complete the study and shall direct the applicant to increase the funds on deposit to cover the anticipated costs. In no event shall the study be allowed to continue if the applicant has not agreed to pay the cost thereof and has not deposited the agreed upon funds;

     (2) Should the applicant file amendments or supplements to the application or should the council find that additional study of the application is required, additional cost estimates will be prepared by the consultant and provided to the council. Upon approval of the estimate by the council, the applicant shall be advised of the additional study costs;

     (3) The council shall authorize the independent consultant to initiate evaluation of the application materials or subsequently filed amendatory or supplementary materials when the applicant has paid the required costs.

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, § 463-58-020, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-58-020, filed 4/26/78.]

     (1) A hearing examiner(s) who may be retained by the council for the duration of the application processing period or for such portion of the processing period as the council may consider necessary;

     (2) A court reporter(s) for the recording and preparation of transcripts of an adjudicative proceeding, council meetings or public sessions which the council shall consider necessary;

     (3) Additional staff salaries for those persons employed on the council staff for the duration of the application processing period; and

     (4) Such overhead and support costs including wages and employee benefits, goods and services, travel expenses within the state and miscellaneous expenses as arise directly from application processing;

     (5) The council may determine that the initial ((fee)) charge of twenty thousand dollars is insufficient to fund the council costs. If so, the council shall so advise the applicant and shall request the applicant to increase the funds on deposit to cover the anticipated costs. In no event shall the processing of the application continue if the applicant has not agreed to pay the cost thereof and has not deposited the agreed upon funds.

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, § 463-58-030, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.040. 91-03-090, § 463-58-030, filed 1/18/91, effective 2/18/91. Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-58-030, filed 4/26/78.]

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, § 463-58-040, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-58-040, filed 4/26/78.]

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, § 463-58-050, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-58-050, filed 4/26/78.]

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, § 463-58-060, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-58-060, filed 4/26/78.]

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[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, § 463-58-070, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-58-070, filed 4/26/78.]

     (2) Any funds remaining unexpended shall be refunded to the certificate holder, or in the case of an applicant to the applicant or, at the applicant's option, credited against required deposits of a certificate holder.

     (3) All payments shall be ((made by a cashier's check)) payable to the state treasurer ((and delivered to the council office)). The method of payment shall be prearranged with the department prior to submission. The ((council)) department will establish and maintain separate accounts for each application and certificate. All funds will be subject to state auditing procedures. The ((council)) department will provide copies of such audits to the affected applicants and certificate holders as they are completed by the state auditor.

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, § 463-58-080, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.071. 78-05-054 (Order 78-2), § 463-58-080, filed 4/26/78.]

OTS-1999.1

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

WAC 463-60-010   Purpose.   This chapter sets forth guidelines for preparation of applications for energy facility site certification pursuant to chapter 80.50 RCW. Applications for siting energy facilities must contain information regarding the standards required by chapter 463-62 WAC. Applications for fossil-fueled thermal and/or baseload electric generation facilities shall contain information required by chapters 463-80 and 463-85 WAC.

     The application shall provide the council with information regarding the applicant, the proposed project design and features, the natural environment, and the built environment. This information shall be in such detail as determined by the council to enable the council to go forward with its application review.

     The council encourages applicants to consult with appropriate agencies for guidance in gathering sufficient detailed information, and development of comprehensive mitigation plans, for inclusion in their application.

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, amended and recodified as § 463-60-010, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.040. 92-23-012, § 463-42-010, filed 11/6/92, effective 12/7/92. Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-010, filed 10/8/81; Order 113, § 463-42-010, filed 2/4/77. Formerly chapter 463-12 WAC.]

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, recodified as § 463-60-035, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.040(1) and chapter 80.50 RCW. 81-21-006 (Order 81-5), § 463-42-035, filed 10/8/81. Formerly WAC 463-42-100.]

     (a) The environmental impact of the proposed energy facility;

     (b) The area potentially affected;

     (c) The cost and magnitude of the proposed energy facility; and

     (d) The degree to which the proposed energy facility represents a change in use of the proposed site.

     (2) Contents. Applications for expediting processing submitted to the council in accordance with the requirements of chapter 463-43 WAC must address all sections of chapters 463-60 and 463-62 WAC.

     (3) ((Fees)) Funds. The applicant shall submit those ((fees)) funds and costs for independent consultant review and application processing pursuant to RCW 80.50.071 (1)(a) and (b) and chapter 463-58 WAC with the understanding that any unexpended portions shall be returned to the applicant at the completion of application processing.

[04-23-003, recodified as § 463-60-117, filed 11/4/04, effective 11/11/04. Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, § 463-42-117, filed 10/11/04, effective 11/11/04.]

     (2) An application for an electric transmission facility shall include the information required by this chapter unless the requirement may not be applicable to such a facility.

     (3) An application for an electrical transmission facility shall include the results of any preapplication negotiations including any agreements between the applicant and cities, towns, or counties where the electrical transmission facility is proposed to be located.

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     (1) Air quality. The application shall identify all pertinent air pollution control standards. The application shall contain adequate data showing air quality and meteorological conditions at the site. Meteorological data shall include, at least, adequate information about wind direction patterns, air stability, wind velocity patterns, precipitation, humidity, and temperature. The applicant shall describe the means to be utilized to assure compliance with applicable local, state, and federal air quality and emission standards.

     (2) Odor. The application shall describe for the area affected all odors caused by construction or operation of the facility, and shall describe how these are to be minimized or eliminated.

     (3) Climate. The application shall describe the extent to which facility operations may cause visible plumes, fogging, misting, icing, or impairment of visibility, and changes in ambient levels caused by all emitted pollutants.

     (4) Climate change. The application shall describe impacts caused by greenhouse gases emissions and the mitigation measures proposed.

     (5) Dust. The application shall describe for any area affected all dust sources created by construction or operation of the facility, and shall describe how these are to be minimized or eliminated.

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, amended and recodified as § 463-60-312, filed 10/11/04, effective 11/11/04. Statutory Authority: RCW 80.50.040. 92-23-012, § 463-42-312, filed 11/6/92, effective 12/7/92.]

OTS-2000.1

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

WAC 463-62-010   Purpose.   (1) The purpose of this chapter is to implement the policy and intent of RCW 80.50.010. This chapter sets forth performance standards and mitigation requirements specific to seismicity, noise limits, fish and wildlife, wetlands, water quality, and air quality, associated with site certification for construction and operation of energy facilities under the jurisdiction of the council. The council shall apply these rules to site certification agreements issued in connection with applications filed after the effective date of this chapter. Except for the provisions in chapter ((463-36)) 463-66 WAC, these regulations shall not apply to energy facilities for which site certification agreements have been issued before the effective date of this chapter.

     (2) The provisions of this chapter shall apply to the construction and operation of energy facilities, pursuant to chapter 80.50 RCW.

     (3) Compliance with the standards within this chapter shall satisfy, in their respective subject areas, the requirements for issuance of a site certificate for construction and operation of energy facilities specified in subsection (2) of this section provided, however, that the council may require additional mitigation in the event that documents prepared pursuant to 43.21 RCW (State Environmental Policy Act), demonstrate that the project poses a probable significant adverse impact that is not mitigated by the provisions of this chapter.

[Statutory Authority: RCW 80.50.040 (1) and (12). 04-21-013, § 463-62-010, filed 10/11/04, effective 11/11/04.]

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