2017 ORS 469.403¹
Rehearing on approval or rejection of application for site certificate or amendment
  • appeal
  • judicial review vested in Supreme Court
  • stay of order

(1) Any party to a contested case proceeding may apply for rehearing within 30 days from the date the approval or rejection is served. The date of service shall be the date on which the Energy Facility Siting Council delivered or mailed its approval or rejection in accordance with ORS 183.470 (Orders in contested cases). The application for rehearing shall set forth specifically the ground upon which the application is based. No objection to the council’s approval or rejection of an application for a site certificate or a site certificate amendment shall be considered on rehearing without good cause shown unless the basis for the objection is urged with reasonable specificity before the council in the site certificate or amended site certificate process. Upon such application, the council shall have the power to grant or deny rehearing or to abrogate or modify its order without further hearing. Unless the council acts upon the application for rehearing within 30 days after the application is filed, the application shall be considered denied. The filing of an application for rehearing shall not, unless specifically ordered by the council, operate as a stay of the site certificate or amended site certificate for the facility.

(2) Any party to a contested case proceeding on a site certificate or amended site certificate application may appeal the council’s approval or rejection of the site certificate or amended site certificate application. Issues on appeal shall be limited to those raised by the parties to the contested case proceeding before the council.

(3) Jurisdiction for judicial review of the council’s approval or rejection of an application for a site certificate or amended site certificate is conferred upon the Supreme Court. Proceedings for review shall be instituted by filing a petition in the Supreme Court. The petition shall be filed within 60 days after the date of service of the council’s final order or within 30 days after the date the petition for rehearing is denied or deemed denied. Date of service shall be the date on which the council delivered or mailed its order in accordance with ORS 183.470 (Orders in contested cases).

(4) The filing of a petition for judicial review may not stay the order, except that a party to the contested case may apply to the Supreme Court for a stay upon a showing that there is a colorable claim of error and that:

(a) The petitioner will suffer irreparable injury; or

(b) Construction of the energy facility will result in irreparable harm to resources protected by applicable council standards or applicable agency or local government standards.

(5) If the Supreme Court grants a stay pursuant to subsection (4) of this section, the court:

(a) Shall require the petitioner requesting the stay to give an undertaking in the amount of $5,000.

(b) May grant a stay in whole or in part.

(c) May impose other reasonable conditions on the stay.

(6) Except as otherwise provided in ORS 469.320 (Site certificate required) and this section, the review by the Supreme Court shall be the same as the review by the Court of Appeals described in ORS 183.482 (Jurisdiction for review of contested cases). The Supreme Court shall give priority on its docket to such a petition for review and shall render a decision within six months of the filing of the petition for review.

(7) The following periods of delay shall be excluded from the six-month period within which the court must render a decision under subsection (6) of this section:

(a) Any period of delay resulting from a motion properly before the court; or

(b) Any reasonable period of delay resulting from a continuance granted by the court on the court’s own motion or at the request of one of the parties, if the court granted the continuance on the basis of findings that the ends of justice served by granting the continuance outweigh the best interests of the public and the other parties in having a decision within six months.

(8) No period of delay resulting from a continuance granted by the Supreme Court under subsection (7)(b) of this section shall be excluded from the six-month period unless the court sets forth, in the record, either orally or in writing, its reasons for finding that the ends of justice served by granting the continuance outweigh the best interests of the public and the other parties in having a decision within six months. The factors the court shall consider in determining whether to grant a continuance under subsection (7)(b) of this section are:

(a) Whether the failure to grant a continuance in the proceeding would be likely to make a continuation of the proceeding impossible or result in a miscarriage of justice; or

(b) Whether the case is so unusual or so complex, due to the number of parties involved or the existence of novel questions of fact or law, that it is unreasonable to expect adequate consideration of the issues within the six-month period.

(9) No continuance under subsection (7)(b) of this section shall be granted because of general congestion of the court calendar or lack of diligent preparation or attention to the case by any member of the court or any party. [1993 c.569 §12 (469.401 (Energy facility site certificate) and 469.403 (Rehearing on approval or rejection of application for site certificate or amendment) enacted in lieu of 469.400); 1995 c.505 §13; 1999 c.385 §4; 2001 c.683 §12]

Notes of Decisions

Under Former Similar Statute (Ors 469.400)

Energy Facility Siting Council order determining that council lacks authority to require site certificate in particular case is, in effect, “rejec­tion” of applica­tion for certificate, and Supreme Court has jurisdic­tion, under this sec­tion, for direct review of order. Forelaws on Board v. Energy Fac. Siting Council, 303 Or 541, 738 P2d 973 (1987)

Peti­tion requesting Energy Facility Siting Council to take ac­tions re­gard­ing disposal of allegedly radioactive waste was not tantamount to applica­tion for site certificate and, therefore, Supreme Court lacked jurisdic­tion for direct review of Council’s ruling. Forelaws on Board v. Energy Fac. Siting Council, 311 Or 350, 811 P2d 636 (1991)

In General

Supreme Court authority to review applica­tions for initial site certificates does not extend to site certificate modifica­tions. Emerald PUD v. Energy Facility Siting Council, 321 Or 562, 902 P2d 1134 (1995)

Atty. Gen. Opinions

Under Former Similar Statute (Ors 469.400)

Permits, licenses and certificate require­ments for “executed site certificate,” (1974) Vol 37, p 103; issuance of a site certificate, (1976) Vol 37, p 1438; issuance of permits, etc., to construct transmission line along and over rights-of-way within counties where relevant site certificate has been issued, (1978) Vol 38, p 2185

Law Review Cita­tions

Under Former Similar Statute (Ors 469.400)

54 OLR 533 (1975); 6 EL 695, 696 (1976)

Atty. Gen. Opinions

Site certificate require­ment for geothermal pipe­line six inches or greater in diameter which will have ultimate length of longer than five miles, (1979) Vol 40, p 186

Law Review Cita­tions

6 EL 898-900 (1976)

Notes of Decisions

The Energy Facility Siting Council failed to adopt sufficient standards concerning financial ability, qualifica­tions to construct and operate, and power needs. Marbet v. Portland General Electric, 277 Or 447, 561 P2d 154 (1977)

Atty. Gen. Opinions

Permits, licenses and certificate require­ments for “executed site certificate,” (1974) Vol 37, p 103; appoint­ment and reappoint­ment of Council members, (1979) Vol 39, p 619

Law Review Cita­tions

13 WLJ 499 (1977); 57 OLR 334 (1978)

1 Legislative Counsel Committee, CHAPTER 469—Energy; Conservation Programs; Energy Facilities, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors469.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 469, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano469.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.