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Energy Facility Siting Standards
Introduction
The Energy Facility Siting Council's standards for new energy facilities protect natural resources, ensure public health and safety and protect against adverse environmental impacts. The standards ask three fundamental questions:
  • Does the applicant have the appropriate abilities to build this energy facility?
  • Is the site suitable? 
  • Would the facility have adverse impacts on the environment and the community?
The standards in OAR Chapter 345, Division 22, apply to all types of energy facilities. However, some types of facilities need not meet all of the Division 22 standards for the Council to issue a site certificate. 
 
Division 24 has additional specific standards for wind facilities, surface facilities related to underground gas storage reservoirs and transmission lines. These standards address public health and safety concerns. In addition, Division 24 contains standards for carbon dioxide emissions from energy facilities. 
 
Division 23 contains a "need" standard that applies only to nongenerating facilities.

 
General Standard of Review
OAR 345-022-0000
 
The General Standard of Review requires a proposed energy facility to comply with all applicable Oregon standards, statutes and rules, including those of agencies other than the Siting Council. The Council consults with other agencies in determining compliance with this standard.
 
Some of the other permits and agency standards that the Council reviews under the general standard include:
Noise: The Environmental Quality Commission (EQC) has adopted noise standards in OAR Chapter 340, Division 35. There is no noise permit, but the EQC noise standards apply to all industrial facilities, including energy facilities.
Wetlands: Some facilities require a Removal/Fill permit from the Division of State Lands (DSL). For these facilities, the Council performs a review using DSL criteria.
Water Pollution Control Facility: The Council reviews WPCF permit information, using the Department of Environmental Quality´s criteria. This is a Department of Enviornmental Quality permit that is not federally delegated. 
Water Rights: If the facility will require a new water right, a water right transfer or a temporary water right, the Water Resources Department (WRD) will issue the water right based on a Council finding of compliance with WRD regulations.
Some permits are outside Council jurisdiction. Permits that the federal government has delegated to a state agency other than the Council are outside the site certificate process. For example, the Air Contaminant Discharge and NPDES permits are federally delegated to the Department of Environmental Quality. Likewise, permits related to detailed design and operation specifications, such as local building permits, are outside Council jurisdiction.

 
Organizational Expertise
OAR 345-022-0010
 
This standard helps ensure that the applicant has the abilities and resources to successfully build and operate the facility. By meeting this standard, the applicant demonstrates the expertise to do an effective and conscientious job of mitigating impacts and meeting commitments to the Council and to the community.
 
In determining compliance with this standard, the Council considers the applicant´s experience with similar types of projects. The Council looks at any history of regulatory citations received by the applicant and any other evidence of technical, managerial and organizational expertise. The Council considers the applicant´s ability to comply with site certificate conditions and to restore the site to a useful, non-hazardous condition.
 
In addition, this standard ensures that "third party permits" will be available when they are needed. Some applicants do not apply directly for all the permits needed for the proposed facility. Instead, they arrange to use permits that third parties will obtain or they enter into agreements to use permits already held by third parties.

 
Structural Standard
OAR 345-022-0020
 
The structural standard protects public health and safety, including the safety of facility workers, from seismic hazards. Applicants should consult with the Oregon Department of Geology and Mineral Industries to determine the information needed to show compliance with the standard. In many cases, the applicant´s commitment to secure all needed building permits and follow the Oregon Building Code is all that is required. For some types of facilities, however, there is no building code, and some proposed energy facility sites may have specific geological features or seismic hazards that go beyond the seismic zones in the Oregon Building Code.
 
For this reason, the structural standard is largely a site characterization standard. To support a Council finding that the site is suitable, the applicant must do enough site-specific work to identify potential faults or other hazards and to assess the extent of the hazard. This is especially useful in parts of the state where detailed geological exploration and mapping have not yet been done. In addition to characterizing the seismic hazards, the applicant must study the site for hazards that do not require an earthquake as an initiating event, such as landslide potential.
 
The Council requires that the assessment of seismic hazards and non-earthquake related hazards be based on actual physical exploration, not merely on available literature. Predictions of ground acceleration must take into account the specific soil and rock conditions underlying the site. The Council looks for evidence that the applicant has fully characterized the site in terms of stability. If there are unstable or erosion-prone soils, the Council looks for evidence that the applicant will use proper engineering techniques to avoid hazards to public safety.
 
The Council may issue a site certificate for a wind, solar or geothermal energy facility or for a gas-fired power plant that qualifies for special criteria expedited review without finding compliance with this standard. Nevertheless, the Council may impose site certificate conditions for such facilities based on this standard.

 
Soil Protection
OAR 345-022-0022
 
This standard requires the applicant to consider problems of erosion and drainage that could affect land in the surrounding area. The applicant must also consider potential impacts on soils from cooling tower drift and other forms of chemical deposition. 
 
The soil protection standard requires the applicant to describe the site in detail. The applicant should plan to prevent or mitigate the impacts on soils or show evidence that the impacts are insignificant.
 
Some counties have erosion and drainage control ordinances as part of their land use requirements. In these counties, the information required under this standard applies to the land use standard as well. 

 
Land Use
OAR 345-022-0030
 
The land use standard ensures that the proposed facility will comply with Oregon´s land use planning goals adopted by the Land Conservation and Development Commission (LCDC). To show compliance with the standard, the applicant must first choose whether to seek land use approval from the local jurisdiction or to have the Council make the land use determination.
 
If  the applicant chooses local approval, the land use authority in the location of the proposed facility determines compliance with the local government´s acknowledged comprehensive plan and land use regulations. The applicant must complete the local land use process before the Council can issue a site certificate. For some facilities, such as long pipelines, the location of the proposed facility lies in more than one land use jurisdiction. In such cases, the applicant must obtain land use approvals from each jurisdiction, and the applicant may prefer to have the Council make the land use determination.
 
If the applicant chooses Council determination of land use compliance, the Council appoints the governing body of the local government in the location of the proposed facility as the "Special Advisory Group." The Council considers applicable substantive criteria identified by the Special Advisory Group in determining whether the proposed facility complies with the statewide planning goals. The applicable land use criteria are those in effect on the date the application is submitted.
 
In addition, the Council must decide whether the facility complies with any LCDC rules and goals and any land use statutes directly applicable to the facility under ORS 197.646(3).
 
If the proposed facility does not comply with one or more of the applicable substantive criteria, then the Council must decide whether the facility complies directly with the statewide planning goals. If the proposed facility does not comply with a statewide planning goal, then the Council may find that the facility qualifies for an exception to that goal. In deciding if such an exception is justified, the Council applies criteria listed in its land use rule, OAR 345-022-0030(4).
 
The land use standard addresses conflicts between the applicable substantive criteria recommended by the special advisory group and state statutes or administrative rules. The Council must resolve such conflicts consistent with the public interest. The resolution cannot override any state statute.
 
The standard provides for the special case of proposed pipelines, transmission lines or solar collecting facilities that would lie in more than one local government jurisdiction or more than three zones in any one jurisdiction. For such facilities, the Council may choose not to apply the applicable substantive criteria recommended by the local authorities and instead evaluate the proposed facility against the statewide planning goals or against a combination of the applicable substantive criteria and statewide planning goals. The Council must consult with the special advisory group and consider the factors listed in OAR 345-022-0030(6).

 
Protected Areas
OAR 345-022-0040
 
This standard prohibits energy facilities in protected areas, except for special cases (primarily transmission lines or pipelines) where there is no better alternative. Protected areas include national and state parks, national monuments and other areas deemed by the Council to have special scenic, natural or environmental value. 
 
For proposed facilities near protected areas, the standard ensures that energy facilities located near these areas would have no significant adverse impact. The Council might find no significant adverse impact, either because the facility is inherently low in impact or because the applicant proposes mitigation. The applicant must address not only direct impacts but also downstream impacts such as air and water quality.

 
Retirement and Financial Assurance
OAR 345-022-0050 
 
The Council recognizes the risks that construction of an energy facility could stop in a partially completed state or that an operating facility could cease operating, leaving the community with unusable property and no funds for site restoration. The Retirement and Financial Assurance standard protects against these risks by requiring financial assurance to pay for site restoration. The applicant does not have to show adequate funding to complete the facility but needs only show adequate funding to restore the site in case of early termination of the project.
 
The Council includes a mandatory condition in every site certificate requiring a bond or letter of credit to be in place before construction begins to provide funds for site restoration. 
 
The applicant must explain how it proposes to restore the site. The Council will decide whether the proposed restoration would leave the site in a useful, non-hazardous condition. The applicant must estimate site restoration costs. The Council will review the cost estimates to determine if they are reasonable, and the Council will use these estimates to set the amount of the bond or letter of credit required under the mandatory conditions. The applicant must provide evidence that it can obtain the required bond or letter of credit from a financial institution acceptable to the Council.

 
Fish and Wildlife Habitat
OAR 345-022-0060 
 
This standard requires that the proposed facility comply with the habitat mitigation goals and standards of the Oregon Department of Fish and Wildlife (ODFW). The ODFW rule defines six categories of habitat in order of their value to wildlife. The rule then establishes mitigation goals and corresponding implementation standards for each habitat category.
 
The Council must determine whether the applicant has done appropriate site-specific studies to characterize the fish and wildlife habitat at the site and nearby. If impacts cannot be avoided, the applicant must provide a habitat mitigation plan. The plan must provide for appropriate mitigation measures, depending on the habitat categories affected by the proposed facility. The plan may require setting aside and improving other land for fish and wildlife habitat to make up for the habitat removed by the facility.
 
The Council reviews this part of the application in consultation with ODFW. Applicants are encouraged to consult with ODFW and to begin relevant biological surveys before submitting a notice of intent.

 
Threatened and Endangered Species
OAR 345-022-0070 
 
Through this standard, the Council seeks to avoid harmful impacts to plant and animal species identified as threatened or endangered under state law. The applicant must provide appropriate studies of the site to identify threatened or endangered species that the proposed facility could affect. The Oregon Department of Fish and Wildlife determines the state-listed threatened or endangered wildlife species. The Oregon Department of Agriculture determines the state-listed threatened or endangered plant species. If a potential risk to the survival or recovery of a threatened or endangered species exists, the applicant must redesign or relocate the facility to avoid that risk or propose appropriate mitigation measures.

 
Scenic Resources
OAR 345-022-0080 
 
This standard protects scenic values that identified as significant or important in local or state land use plans, tribal land management plans or federal land management plans identify as significant or important. The preferred site is one where an energy facility would have no adverse impact on identified scenic values, either because of distance or because the facility is inherently low in visual impact. If the proposed facility would affect scenic values identified as significant or important, the applicant must propose appropriate measures to reduce the impact.
 
The Council may issue a site certificate for a gas-fired power plant that qualifies for special criteria expedited review without finding compliance with this standard. Nevertheless, the Council may impose site certificate conditions for such facilities based on this standard.

 
Historic, Cultural and Archaeological Resources
OAR 345-022-0090 
 
This standard protects the public interest in preserving places that have historic, cultural or archeological significance, including sites of historic or religious importance to Native American Tribes. The standard preserves historic and cultural artifacts and prevents permanent loss of the archaeological record unique to particular sites in the state.
 
The applicant must conduct appropriate surveys at the proposed site to identify and avoid places of historic, cultural or archaeological significance. If  previously unidentified resources are discovered during construction of an energy facility, ground-disturbing activities must halt until a qualified archaeologist can examine the site. If the project involves construction on an archaeological site, then the applicant may need a permit from the State Historic Preservation Officer in addition to the site certificate.
 
The Council may issue a site certificate for a wind, solar or geothermal energy facility or for a gas-fired power plant that qualifies for special criteria expedited review without finding compliance with this standard. Nevertheless, the Council may impose site certificate conditions for such facilities based on this standard.

 
Recreation
OAR 345-022-0100 
 
Under this standard, the Council must decide whether construction or operation of the proposed facility would adversely affect important recreational opportunities at the site or in the surrounding area. The applicant must identify the recreational opportunities and describe the potential impact of the facility. The Council will determine whether a recreational opportunity is "important" based on criteria listed in the standard. If the Council finds that a significant adverse impact to an important recreational opportunity is likely, the Council may impose site certificate conditions to avoid or reduce the impact or require the certificate holder to develop alternate recreational opportunities in the area.
 
The Council may issue a site certificate for a gas-fired power plant that qualifies for special criteria expedited review without finding compliance with this standard. Nevertheless, the Council may impose site certificate conditions for such facilities based on this standard.

 
Public Services
OAR 345-022-0110 
 
This standard protects the ability of providers in local communities to deliver critical services. The applicant must assess the proposed facility´s needs for water and for disposal of wastewater, storm water and solid waste. The applicant must evaluate the expected population increases in local communities resulting from construction and operation of the facility. The applicant should address all permanent and temporary impacts on housing, traffic safety, police and fire protection, health care and schools. The Council reviews the application to ensure that the applicant has addressed potential adverse impacts.
 
The Council may issue a site certificate for a wind, solar or geothermal energy facility or for a gas-fired power plant that qualifies for special criteria expedited review without finding compliance with this standard. Nevertheless, the Council may impose site certificate conditions for such facilities based on this standard.

 
Waste Minimization
OAR 345-022-0120 
 
This standard requires the applicant to plan to minimize solid waste and wastewater generated by construction and operation of the proposed facility. The standard requires recycling of wastes, if possible, or proper waste disposal. The Council has applied this standard to encourage developers to use state-of-the-art techniques to reduce their consumptive use of water.
 
The applicant must evaluate the types of waste products that would be produced during construction and operation of the proposed facility and estimate the amounts or volume of waste products. The applicant must propose appropriate methods to handle the waste through collection, storage and disposal. Compliance with the standard assures that the applicant will reduce the amount of waste generated and dispose of waste in a responsible manner.
 
The Council may issue a site certificate for a wind, solar or geothermal energy facility or for a gas-fired power plant that qualifies for special criteria expedited review without finding compliance with this standard. Nevertheless, the Council may impose site certificate conditions for such facilities based on this standard.

 
Carbon Dioxide Emissions
Under Division 24 of the Council´s rules, beginning at OAR 345-024-0500, there are specific standards for base load gas plants, non-base load (peaking) power plants and non-generating energy facilities that emit carbon dioxide.
 
Base load gas plants 0.675 lb. CO2 / kWh
Non-base load gas plants 0.675 lb. CO2 / kWh
Nongenerating facilities 0.504 lb. CO2 / horsepower-hour
 
The standard for base load gas plants applies only to natural gas-fired plants. The standards for non-base load plants and nongenerating facilities apply to all fuels. The Council has not yet set a carbon dioxide emissions standards for base load power plants using other fossil fuels. Rules allow base load gas plants that have power augmentation equipment to meet both the base load and non-base load standards for the respective parts of the plant. The definitions for the facilities are in Division 1.
 
The calculations for compliance with the standard account for the efficiency of the facility. Generating plants have the option of offsetting part or all of their excess carbon dioxide emissions through guaranteed cogeneration.
 
At their discretion, applicants can propose carbon dioxide offset projects they or a third party will manage, or they can provide funds via the "monetary path" to the The Climate Trust. The Council recognizes The Climate Trust as a "qualified organization," as defined in statute (ORS 469.503). This definition appears also in Council rules (OAR 345-001-0010). The Climate Trust takes responsibility for obtaining offsets when an applicant uses the "monetary path." Once a site certificate holder has provided adequate funds to The Climate Trust, it has met its obligations under the carbon dioxide standard.
 
The calculations to show the required offsets or offset funds are detailed. Applicants who propose facilities that will emit carbon dioxide should state in their Notice of Intent the compliance paths they plan to take and should consult with the Department before submitting an application. In a site certificate application, the information needed to show compliance with this standard is contained in Exhibit Y. See the rules in Division 21 of the Council rules for a description of the information that should be included (OAR 345-021-0010).
 
 

 
Need Standard for Nongenerating Facilities
OAR Chapter 345, Division 23
 
The need standard applies to electric transmission lines, gas pipelines and liquefied natural gas (LNG) storage facilities with capacity of 3 million gallons or more. An applicant may be able to demonstrate that the facility is needed by showing that the proposed facility’s capacity is identified in a least cost plan acknowledged by the Oregon Public Utilities Commission. If no such plan applies to the proposed facility, the applicant may demonstrate need by showing that the proposed facility´s capacity is identified in a short term action plan or energy resource plan adopted by a public utility district or other governmental body that makes or implements energy policy, provided the plan meets the criteria listed in OAR 345-023-0020 (1)(a) through (L).
 
If the proposed facility does not appear in an energy resource plan that meets these criteria, then the applicant must show need under the system reliability rule for electric transmission lines (OAR 345-023-0030) or under the economically reasonable rule for gas pipelines and LNG storage facilities (OAR 345-023-0040). Both rules involve detailed analysis of system reliability or supply and demand.