ORS 469.503
Requirements for approval of energy facility site certificate

  • carbon dioxide emissions standard
  • offset funds
  • use of offset funds by qualifying organization
  • rules

In order to issue a site certificate, the Energy Facility Siting Council shall determine that the preponderance of the evidence on the record supports the following conclusions:

(1)

The facility complies with the applicable standards adopted by the council pursuant to ORS 469.501 (Energy facility siting, construction, operation and retirement standards) 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.

(2)

If the energy facility is a fossil-fueled power plant, the energy facility complies with any applicable carbon dioxide emissions standard adopted by the council or enacted by statute. Base load gas plants shall comply with the standard set forth in subsection (2)(a) of this section. Other fossil-fueled power plants shall comply with any applicable standard adopted by the council by rule pursuant to subsection (2)(b) of this section. Subsections (2)(c) and (d) of this section prescribe the means by which an applicant may comply with the applicable standard.

(a)

The net carbon dioxide emissions rate of the proposed base load gas plant shall not exceed 0.70 pounds of carbon dioxide emissions per kilowatt hour of net electric power output, with carbon dioxide emissions and net electric power output measured on a new and clean basis. Notwithstanding the foregoing, the council may by rule modify the carbon dioxide emissions standard for base load gas plants if the council finds that the most efficient stand-alone combined cycle, combustion turbine, natural gas-fired energy facility that is commercially demonstrated and operating in the United States has a net heat rate of less than 7,200 Btu per kilowatt hour higher heating value adjusted to ISO conditions. In modifying the carbon dioxide emission standard, the council shall determine the rate of carbon dioxide emissions per kilowatt hour of net electric output of such energy facility, adjusted to ISO conditions, and reset the carbon dioxide emissions standard at 17 percent below this rate.

(b)

The council shall adopt carbon dioxide emissions standards for other types of fossil-fueled power plants. Such carbon dioxide emissions standards shall be promulgated by rule. In adopting or amending such carbon dioxide emissions standards, the council shall consider and balance at least the following principles, the findings on which shall be contained in the rulemaking record:

(A)

Promote facility fuel efficiency;

(B)

Promote efficiency in the resource mix;

(C)

Reduce net carbon dioxide emissions;

(D)

Promote cogeneration that reduces net carbon dioxide emissions;

(E)

Promote innovative technologies and creative approaches to mitigating, reducing or avoiding carbon dioxide emissions;

(F)

Minimize transaction costs;

(G)

Include an alternative process that separates decisions on the form and implementation of offsets from the final decision on granting a site certificate;

(H)

Allow either the applicant or third parties to implement offsets;

(I)

Be attainable and economically achievable for various types of power plants;

(J)

Promote public participation in the selection and review of offsets;

(K)

Promote prompt implementation of offset projects;

(L)

Provide for monitoring and evaluation of the performance of offsets; and

(M)

Promote reliability of the regional electric system.

(c)

The council shall determine whether the applicable carbon dioxide emissions standard is met by first determining the gross carbon dioxide emissions that are reasonably likely to result from the operation of the proposed energy facility. Such determination shall be based on the proposed design of the energy facility. The council shall adopt site certificate conditions to ensure that the predicted carbon dioxide emissions are not exceeded on a new and clean basis. For any remaining emissions reduction necessary to meet the applicable standard, the applicant may elect to use any of subparagraphs (A) to (D) of this paragraph, or any combination thereof. The council shall determine the amount of carbon dioxide or other greenhouse gas emissions reduction that is reasonably likely to result from the applicant’s offsets and whether the resulting net carbon dioxide emissions meet the applicable carbon dioxide emissions standard. For purposes of determining the net carbon dioxide emissions, the council shall by rule establish the global warming potential of each greenhouse gas based on a generally accepted scientific method, and convert any greenhouse gas emissions to a carbon dioxide equivalent. Unless otherwise provided by the council by rule, the global warming potential of methane is 23 times that of carbon dioxide, and the global warming potential of nitrous oxide is 296 times that of carbon dioxide. If the council or a court on judicial review concludes that the applicant has not demonstrated compliance with the applicable carbon dioxide emissions standard under subparagraphs (A), (B) or (D) of this paragraph, or any combination thereof, and the applicant has agreed to meet the requirements of subparagraph (C) of this paragraph for any deficiency, the council or a court shall find compliance based on such agreement.

(A)

The facility will sequentially produce electrical and thermal energy from the same fuel source, and the thermal energy will be used to displace another source of carbon dioxide emissions that would have otherwise continued to occur, in which case the council shall adopt site certificate conditions ensuring that the carbon dioxide emissions reduction will be achieved.

(B)

The applicant or a third party will implement particular offsets, in which case the council may adopt site certificate conditions ensuring that the proposed offsets are implemented but shall not require that predicted levels of avoidance, displacement or sequestration of greenhouse gas emissions be achieved. The council shall determine the quantity of greenhouse gas emissions reduction that is reasonably likely to result from each of the proposed offsets based on the criteria in sub-subparagraphs (i) to (iii) of this subparagraph. In making this determination, the council shall not allow credit for offsets that have already been allocated or awarded credit for greenhouse gas emissions reduction in another regulatory setting. In addition, the fact that an applicant or other parties involved with an offset may derive benefits from the offset other than the reduction of greenhouse gas emissions is not, by itself, a basis for withholding credit for an offset.
(i)
The degree of certainty that the predicted quantity of greenhouse gas emissions reduction will be achieved by the offset;
(ii)
The ability of the council to determine the actual quantity of greenhouse gas emissions reduction resulting from the offset, taking into consideration any proposed measurement, monitoring and evaluation of mitigation measure performance; and
(iii)
The extent to which the reduction of greenhouse gas emissions would occur in the absence of the offsets.

(C)

The applicant or a third party agrees to provide funds in an amount deemed sufficient to produce the reduction in greenhouse gas emissions necessary to meet the applicable carbon dioxide emissions standard, in which case the funds shall be used as specified in paragraph (d) of this subsection. Unless modified by the council as provided below, the payment of 57 cents shall be deemed to result in a reduction of one ton of carbon dioxide emissions. The council shall determine the offset funds using the monetary offset rate and the level of emissions reduction required to meet the applicable standard. If a site certificate is approved based on this subparagraph, the council may not adjust the amount of such offset funds based on the actual performance of offsets. After three years from June 26, 1997, the council may by rule increase or decrease the monetary offset rate of 57 cents per ton of carbon dioxide emissions. Any change to the monetary offset rate shall be based on empirical evidence of the cost of offsets and the council’s finding that the standard will be economically achievable with the modified rate for natural gas-fired power plants. Following the initial three-year period, the council may increase or decrease the monetary offset rate no more than 50 percent in any two-year period.

(D)

Any other means that the council adopts by rule for demonstrating compliance with any applicable carbon dioxide emissions standard.

(d)

If the applicant elects to meet the applicable carbon dioxide emissions standard in whole or in part under paragraph (c)(C) of this subsection, the applicant shall identify the qualified organization. The applicant may identify an organization that has applied for, but has not received, an exemption from federal income taxation, but the council may not find that the organization is a qualified organization unless the organization is exempt from federal taxation under section 501(c)(3) of the Internal Revenue Code as amended and in effect on December 31, 1996. The site certificate holder shall provide a bond or comparable security in a form reasonably acceptable to the council to ensure the payment of the offset funds and the amount required under subparagraph (A)(ii) of this paragraph. Such security shall be provided by the date specified in the site certificate, which shall be no later than the commencement of construction of the facility. The site certificate shall require that the offset funds be disbursed as specified in subparagraph (A) of this paragraph, unless the council finds that no qualified organization exists, in which case the site certificate shall require that the offset funds be disbursed as specified in subparagraph (B) of this paragraph.

(A)

The site certificate holder shall disburse the offset funds and any other funds required by sub-subparagraph (ii) of this subparagraph to the qualified organization as follows:
(i)
When the site certificate holder receives written notice from the qualified organization certifying that the qualified organization is contractually obligated to pay any funds to implement offsets using the offset funds, the site certificate holder shall make the requested amount available to the qualified organization unless the total of the amount requested and any amounts previously requested exceeds the offset funds, in which case only the remaining amount of the offset funds shall be made available. The qualified organization shall use at least 80 percent of the offset funds for contracts to implement offsets. The qualified organization shall assess offsets for their potential to qualify in, generate credits in or reduce obligations in other regulatory settings. The qualified organization may use up to 20 percent of the offset funds for monitoring, evaluation, administration and enforcement of contracts to implement offsets.
(ii)
At the request of the qualified organization and in addition to the offset funds, the site certificate holder shall pay the qualified organization an amount equal to 10 percent of the first $500,000 of the offset funds and 4.286 percent of any offset funds in excess of $500,000. This amount shall not be less than $50,000 unless a lesser amount is specified in the site certificate. This amount compensates the qualified organization for its costs of selecting offsets and contracting for the implementation of offsets.
(iii)
Notwithstanding any provision to the contrary, a site certificate holder subject to this subparagraph shall have no obligation with regard to offsets, the offset funds or the funds required by sub-subparagraph (ii) of this subparagraph other than to make available to the qualified organization the total amount required under paragraph (c) of this subsection and sub-subparagraph (ii) of this subparagraph, nor shall any nonperformance, negligence or misconduct on the part of the qualified organization be a basis for revocation of the site certificate or any other enforcement action by the council with respect to the site certificate holder.

(B)

If the council finds there is no qualified organization, the site certificate holder shall select one or more offsets to be implemented pursuant to criteria established by the council. The site certificate holder shall give written notice of its selections to the council and to any person requesting notice. On petition by the State Department of Energy, or by any person adversely affected or aggrieved by the site certificate holder’s selection of offsets, or on the council’s own motion, the council may review such selection. The petition must be received by the council within 30 days of the date the notice of selection is placed in the United States mail, with first-class postage prepaid. The council shall approve the site certificate holder’s selection unless it finds that the selection is not consistent with criteria established by the council. The site certificate holder shall contract to implement the selected offsets within 18 months after commencing construction of the facility unless good cause is shown requiring additional time. The contracts shall obligate the expenditure of at least 85 percent of the offset funds for the implementation of offsets. No more than 15 percent of the offset funds may be spent on monitoring, evaluation and enforcement of the contract to implement the selected offsets. The council’s criteria for selection of offsets shall be based on the criteria set forth in paragraphs (b)(C) and (c)(B) of this subsection and may also consider the costs of particular types of offsets in relation to the expected benefits of such offsets. The council’s criteria shall not require the site certificate holder to select particular offsets, and shall allow the site certificate holder a reasonable range of choices in selecting offsets. In addition, notwithstanding any other provision of this section, the site certificate holder’s financial liability for implementation, monitoring, evaluation and enforcement of offsets pursuant to this subsection shall be limited to the amount of any offset funds not already contractually obligated. Nonperformance, negligence or misconduct by the entity or entities implementing, monitoring or evaluating the selected offset shall not be a basis for revocation of the site certificate or any other enforcement action by the council with respect to the site certificate holder.

(C)

Every qualified organization that has received funds under this paragraph shall, at five-year intervals beginning on the date of receipt of such funds, provide the council with the information the council requests about the qualified organization’s performance. The council shall evaluate the information requested and, based on such information, shall make any recommendations to the Legislative Assembly that the council deems appropriate.

(e)

As used in this subsection:

(A)

“Adjusted to ISO conditions” means carbon dioxide emissions and net electric power output as determined at 59 degrees Fahrenheit, 14.7 pounds per square inch atmospheric pressure and 60 percent humidity.

(B)

“Base load gas plant” means a generating facility that is fueled by natural gas, except for periods during which an alternative fuel may be used and when such alternative fuel use shall not exceed 10 percent of expected fuel use in Btu, higher heating value, on an average annual basis, and where the applicant requests and the council adopts no condition in the site certificate for the generating facility that would limit hours of operation other than restrictions on the use of alternative fuel. The council shall assume a 100 percent capacity factor for such plants and a 30-year life for the plants for purposes of determining gross carbon dioxide emissions.

(C)

“Carbon dioxide equivalent” means the global warming potential of a greenhouse gas reflected in units of carbon dioxide.

(D)

“Fossil-fueled power plant” means a generating facility that produces electric power from natural gas, petroleum, coal or any form of solid, liquid or gaseous fuel derived from such material.

(E)

“Generating facility” means those energy facilities that are defined in ORS 469.300 (Definitions) (11)(a)(A), (B) and (D).

(F)

“Global warming potential” means the determination of the atmospheric warming resulting from the release of a unit mass of a particular greenhouse gas in relation to the warming resulting from the release of the equivalent mass of carbon dioxide.

(G)

“Greenhouse gas” means carbon dioxide, methane and nitrous oxide.

(H)

“Gross carbon dioxide emissions” means the predicted carbon dioxide emissions of the proposed energy facility measured on a new and clean basis.

(I)

“Net carbon dioxide emissions” means gross carbon dioxide emissions of the proposed energy facility, less carbon dioxide or other greenhouse gas emissions avoided, displaced or sequestered by any combination of cogeneration or offsets.

(J)

“New and clean basis” means the average carbon dioxide emissions rate per hour and net electric power output of the energy facility, without degradation, as determined by a 100-hour test at full power completed during the first 12 months of commercial operation of the energy facility, with the results adjusted for the average annual site condition for temperature, barometric pressure and relative humidity and use of alternative fuels, and using a rate of 117 pounds of carbon dioxide per million Btu of natural gas fuel and a rate of 161 pounds of carbon dioxide per million Btu of distillate fuel, if such fuel use is proposed by the applicant. The council may by rule adjust the rate of pounds of carbon dioxide per million Btu for natural gas or distillate fuel. The council may by rule set carbon dioxide emissions rates for other fuels.

(K)

“Nongenerating facility” means those energy facilities that are defined in ORS 469.300 (Definitions) (11)(a)(C) and (E) to (I).

(L)

“Offset” means an action that will be implemented by the applicant, a third party or through the qualified organization to avoid, sequester or displace emissions.

(M)

“Offset funds” means the amount of funds determined by the council to satisfy the applicable carbon dioxide emissions standard pursuant to paragraph (c)(C) of this subsection.

(N)

“Qualified organization” means an entity that:
(i)
Is exempt from federal taxation under section 501(c)(3) of the Internal Revenue Code as amended and in effect on December 31, 1996;
(ii)
Either is incorporated in the State of Oregon or is a foreign corporation authorized to do business in the State of Oregon;
(iii)
Has in effect articles of incorporation that require that offset funds received pursuant to this section are used for offsets that require that decisions on the use of the offset funds are made by a decision-making body composed of seven voting members of which three are appointed by the council, three are Oregon residents appointed by the Bullitt Foundation or an alternative environmental nonprofit organization named by the body, and one is appointed by the applicants for site certificates that are subject to paragraph (d) of this subsection and the holders of such site certificates, and that require nonvoting membership on the body for holders of site certificates that have provided funds not yet disbursed under paragraph (d)(A) of this subsection;
(iv)
Has made available on an annual basis, beginning after the first year of operation, a signed opinion of an independent certified public accountant stating that the qualified organization’s use of funds pursuant to this statute conforms with generally accepted accounting procedures except that the qualified organization shall have one year to conform with generally accepted accounting principles in the event of a nonconforming audit;
(v)
Has to the extent applicable, except for good cause, entered into contracts obligating at least 60 percent of the offset funds to implement offsets within two years after the commencement of construction of the facility; and
(vi)
Has to the extent applicable, except for good cause, complied with paragraph (d)(A)(i) of this subsection.

(3)

Except as provided in ORS 469.504 (Facility compliance with statewide planning goals) 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 compliance with applicable Oregon statutes and administrative rules, other than those involving federally delegated programs, would result in conflicting conditions in the site certificate, the council may resolve the conflict consistent with the public interest. A resolution may not result in the waiver of any applicable state statute.

(4)

The facility complies with the statewide planning goals adopted by the Land Conservation and Development Commission. [1993 c.569 §23 (469.501 (Energy facility siting, construction, operation and retirement standards), 469.503 (Requirements for approval of energy facility site certificate), 469.505 (Consultation with other agencies) and 469.507 (Monitoring environmental and ecological effects of construction and operation of energy facilities) enacted in lieu of 469.500 and 469.510); 1995 c.505 §21; 1997 c.428 §4; 1999 c.365 §11; 2001 c.134 §10; 2003 c.186 §78; 2011 c.298 §2; 2013 c.263 §2]

Source: Section 469.503 — Requirements for approval of energy facility site certificate; carbon dioxide emissions standard; offset funds; use of offset funds by qualifying organization; rules, https://www.­oregonlegislature.­gov/bills_laws/ors/ors469.­html.

469.010
Policy
469.020
Definitions
469.030
State Department of Energy
469.040
Director
469.050
Limitations on subsequent employment of director
469.055
Authority of department to require fingerprints
469.059
Biennial comprehensive report
469.080
Energy resource information
469.085
Procedure for imposing civil penalties
469.090
Confidentiality of information submitted under ORS 469.080
469.097
Duty to monitor industry progress in energy conservation
469.100
Agency consideration of legislative policy
469.110
Dealings with federal government
469.120
State Department of Energy Account
469.135
Energy Conservation Clearinghouse for Commerce and Industry
469.137
Biogas and renewable natural gas inventory
469.150
Energy suppliers to provide conservation services and information
469.155
Advisory energy conservation standards for dwellings
469.229
Definitions for ORS 469.229 to 469.261
469.233
Energy efficiency standards
469.238
Sale of products not meeting standards prohibited
469.239
Installation of products not meeting standards prohibited
469.255
Manufacturers to test products
469.261
Department to review standards
469.300
Definitions
469.310
Policy
469.320
Site certificate required
469.330
Notice of intent to file application for site certificate
469.350
Application for site certificate
469.360
Evaluation of notice of intent, site application or expedited review request
469.370
Draft proposed order for hearing
469.373
Expedited processing for certain natural gas energy facilities
469.375
Required findings for radioactive waste disposal facility certificate
469.378
Land use compatibility statement for energy facility
469.401
Energy facility site certificate
469.402
Delegation of review of future action required by site certificate
469.403
Rehearing on approval or rejection of application for site certificate or amendment
469.405
Amendment of site certificate
469.407
Amendment of application to increase capacity of facility
469.409
Amendment of site certificate to demonstrate compliance with carbon dioxide emissions standard
469.410
Energy facility site certificate applications filed or under construction prior to July 2, 1975
469.413
Power generation from fossil fuels
469.421
Fees
469.424
Energy resource suppliers
469.426
Advisory group
469.430
Site inspections
469.440
Grounds for revocation or suspension of certificates
469.441
Justification of fees charged
469.442
Procedure prior to construction of transmission line in excess of 230,000 volts
469.450
Energy Facility Siting Council
469.460
Officers
469.470
Powers and duties
469.480
Local government advisory group
469.490
Adoption of rules
469.501
Energy facility siting, construction, operation and retirement standards
469.503
Requirements for approval of energy facility site certificate
469.504
Facility compliance with statewide planning goals
469.505
Consultation with other agencies
469.507
Monitoring environmental and ecological effects of construction and operation of energy facilities
469.520
Cooperation of state governmental bodies
469.525
Prohibitions on radioactive waste disposal, arrangements for disposal, transportation for disposal and disposal facilities
469.530
Review and approval of security programs
469.533
State Department of Energy rules for health protection and evacuation procedures in nuclear emergency
469.534
County procedures
469.535
Governor may assume control of emergency operations during nuclear accident or catastrophe
469.536
Public utility to disseminate information under ORS 469.533
469.540
Reductions or curtailment of operations for violation of safety standards
469.550
Order for halt of plant operations or activities with radioactive material
469.553
Active uranium mill or mill tailings disposal facility site certification required
469.556
Rules governing uranium-related activities
469.559
Cooperative agreements authorized between council and federal officials and agencies
469.560
Records
469.561
Property insurance required
469.562
Eligible insurers
469.563
Court orders for enforcement
469.564
Records or information for enforcement
469.566
Legislative findings
469.568
Construction of ORS 469.566 to 469.583
469.569
Definitions for ORS 469.566 to 469.583
469.571
Oregon Hanford Cleanup Board
469.572
Compensation of board members
469.573
Purpose of Oregon Hanford Cleanup Board
469.574
Duties of Oregon Hanford Cleanup Board
469.575
Duties of chairperson of Oregon Hanford Cleanup Board
469.576
Review of Hanford as site selected for long-term disposal of high-level radioactive waste
469.577
Lead agency
469.578
Oregon Hanford Cleanup Board to implement agreements with federal agencies
469.579
Authority to accept moneys
469.581
Advisory and technical committees
469.582
Cooperation with Oregon Hanford Cleanup Board
469.583
Rules
469.584
Findings
469.585
Activities of state related to selection of high-level radioactive waste disposal site
469.586
Findings
469.587
Position of State of Oregon related to operation of Hanford Nuclear Reservation
469.590
Definitions for ORS 469.590 to 469.595
469.593
Findings
469.594
Storage of high-level radioactive waste after expiration of license prohibited
469.595
Condition to site certificate for nuclear-fueled thermal power plant
469.597
Election procedure
469.599
Public Utility Commission’s duty
469.601
Effect of ORS 469.595 on applications and applicants
469.603
Intent to regulate transportation of radioactive material
469.605
Permit to transport required
469.606
Determination of best and safest route
469.607
Authority of council
469.609
Annual report to state agencies and local governments on shipment of radioactive wastes
469.611
Emergency preparedness and response program
469.613
Records
469.615
Indemnity for claims against state insurance coverage certification
469.617
Report to legislature
469.619
State Department of Energy to make federal regulations available
469.631
Definitions for ORS 469.631 to 469.645
469.633
Investor-owned utility program
469.634
Contributions for urban and community forest activities by customers of investor-owned utilities
469.635
Alternative program of investor-owned utilities
469.636
Additional financing program by investor-owned utility for rental dwelling
469.637
Energy conservation part of utility service of investor-owned utility
469.639
Billing for energy conservation measures
469.641
Conditions for cash payments to dwelling owner by investor-owned utility
469.643
Formula for customer charges
469.645
Implementation of program by investor-owned utility
469.649
Definitions for ORS 469.649 to 469.659
469.651
Publicly owned utility program
469.652
Contributions for urban and community forest activities by customers of publicly owned utilities
469.653
Alternative program of publicly owned utility
469.655
Energy conservation as part of utility service of publicly owned utility
469.657
Conditions for cash payments to dwelling owner by publicly owned utility
469.659
Implementation of program by publicly owned utility
469.685
Use of earlier energy audit
469.687
Title for ORS 456.594 to 456.599 and 469.631 to 469.687
469.700
Energy efficiency ratings
469.703
Home energy performance score system
469.710
Definitions for ORS 469.710 to 469.720
469.715
Low interest loans for cost-effective energy conservation
469.717
When installation to be completed
469.719
Eligibility of lender for tax credit not affected by owner’s failure
469.720
Energy audit required
469.730
Declaration of purpose
469.735
Definitions for ORS 469.730 to 469.745
469.740
Rules establishing energy conservation standards for public buildings
469.745
Voluntary compliance program
469.750
State purchase of alternative fuels
469.752
Definitions for ORS 469.752 to 469.756
469.754
Authority of state agencies to establish projects
469.756
Rules
469.802
Definition for ORS 469.802 to 469.845
469.803
Oregon participation in Pacific Northwest Electric Power and Conservation Planning Council
469.805
State members of council
469.810
Conflicts of interest prohibited
469.815
Status of members
469.820
Term
469.825
Prohibited activities of members
469.830
Removal of members
469.835
Salary of members
469.840
Northwest Regional Power and Conservation Account
469.845
Annual report to Governor and legislature
469.860
Definitions for ORS 469.860 to 469.900
469.863
Gas utility to adopt commercial energy audit program
469.865
Electric utility to adopt commercial energy conservation services program
469.870
Application of ORS 469.865, 469.870 and 469.900 (1) to electric utility
469.875
Fee for gas utility audit
469.880
Energy audit program
469.885
Publicly owned utility to adopt commercial energy audit program
469.890
Publicly owned utility to adopt commercial energy conservation program
469.895
Application of ORS 469.890 to 469.900 to publicly owned utility
469.900
Duty of commission to avoid conflict with federal requirements
469.930
Northwest Interstate Compact on Low-Level Radioactive Waste Management
469.950
Authority to enter into interstate cooperative agreements to control power costs and rates
469.990
Penalties
469.992
Civil penalties
Green check means up to date. Up to date