Or. Admin. Code § 345-022-0000 - General Standard of Review
(1)
To issue a site certificate for a proposed facility or to amend a site
certificate, the Council shall determine that the preponderance of evidence on
the record supports the following conclusions:
(a) The facility complies with the
requirements of the Oregon Energy Facility Siting statutes, ORS
469.300 to
469.570 and
469.590 to
469.619, and the standards
adopted by the Council pursuant to 469.501 or the overall public benefits of
the facility outweigh any adverse effects on a resource or interest protected
by the applicable standards the facility does not meet as described in section
(2);
(b) Except as provided in OAR
345-022-0030 for land use
compliance and except for those statutes and rules for which the decision on
compliance has been delegated by the federal government to a state agency other
than the Council, the facility complies with all other Oregon statutes and
administrative rules identified in the project order, as amended, as applicable
to the issuance of a site certificate for the proposed facility. If the Council
finds that applicable Oregon statutes and rules, other than those involving
federally delegated programs, would impose conflicting requirements, the
Council shall resolve the conflict consistent with the public interest. In
resolving the conflict, the Council cannot waive any applicable state
statute.
(2) The Council
may issue or amend a site certificate for a facility that does not meet one or
more of the applicable standards adopted under ORS
469.501 if the Council
determines that the overall public benefits of the facility outweigh any
adverse effects on a resource or interest protected by the applicable standards
the facility does not meet. The Council shall make this balancing determination
only when the applicant has shown that the proposed facility cannot meet
applicable Council standards or has shown, to the satisfaction of the Council,
that there is no reasonable way to meet the applicable Council standards
through mitigation or avoidance of any adverse effects on a protected resource
or interest. The applicant has the burden to show that the overall public
benefits outweigh any adverse effects on a resource or interest, and the burden
increases proportionately with the degree of adverse effects on a resource or
interest. The Council shall weigh overall public benefits and any adverse
effects on a resource or interest as follows:
(a) The Council shall evaluate any adverse
effects on a resource or interest by considering factors including, but not
limited to, the following:
(A) The uniqueness
and significance of the resource or interest that would be affected;
(B) The degree to which current or future
development may adversely affect the resource or interest, if the proposed
facility is not built;
(C) Proposed
measures to reduce any adverse effects on a resource or interest by avoidance
of impacts;
(D) The magnitude of
any anticipated adverse effects on a resource or interest, taking into account
any proposed mitigation.
(b) The Council shall evaluate overall public
benefits by considering factors including, but not limited to, the following:
(A) The overall environmental effects of the
facility, considering both beneficial and adverse environmental
effects;
(B) The degree to which
the proposed facility promotes Oregon energy policy as described in ORS
469.010 by demonstrating or
advancing new efficiency or renewable technology or by expanding electric
generating capacity from renewable energy sources;
(C) Recommendations from any special advisory
group designated by the Department under OAR
345-015-0115;
(D) Evidence that the benefits are likely to
occur only if the proposed facility is built;
(E) For facilities that are subject to a need
standard, evidence underlying the Council's decision on compliance with the
rules in OAR 345, Division 23, except that the Council shall not find that need
for a facility is sufficient, by itself, to outweigh any adverse effects on a
resource or interest affected by the proposed facility.
(3) Notwithstanding section (2) of
this rule, the Council shall not apply the balancing determination to the
following standards:
(a) The organizational
expertise standard described in OAR
345-022-0010;
(b) The land use standard described in OAR
345-022-0030;
(c) The retirement and financial assurance
standard described in OAR
345-022-0050;
(d) The need standards described in OAR
345-023-0005;
(e) The standards for energy facilities that
emit carbon dioxide described in OAR
345-024-0500 through
345-024-0720;
(f) The protected areas standard described in
OAR 345-022-0040, if the statutes or
administrative rules governing the management of the protected area prohibit
location of the proposed facility in that area; or
(g) The sage-grouse specific habitat
mitigation requirements under the Council's fish and wildlife habitat standard
described in OAR 345-022-0060, except that the
Council may apply the balancing determination to the requirements of
635-140-0025(2)(a) and
(b) for indirect impacts on core and low
density sage-grouse habitat, as defined in
635-140-0015, which are caused
by transmission lines or pipelines as defined in ORS
469.300(11)(a),
and by transmission lines or pipelines that are related or supporting
facilities to an energy facility as defined in ORS
469.300(24),
proposed to be sited entirely outside of core and low density sage-grouse
habitat.
(4) In making
determinations regarding compliance with statutes, rules and ordinances
normally administered by other agencies or compliance with requirements of the
Council statutes if other agencies have special expertise, the Department of
Energy shall consult with such other agencies during the notice of intent, site
certificate application and site certificate amendment processes. Nothing in
these rules is intended to interfere with the state's implementation of
programs delegated to it by the federal government.
Notes
Statutory/Other Authority: ORS 469.470 & 469.501
Statutes/Other Implemented: ORS 469.501, 469.503, 469.504 & 469.505
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