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 (Definitions) to 469.570 and 469.590 (Definitions for ORS 469.590 to 469.595) to 469.619 (State Department of Energy to make federal regulations available), and the standards adopted by the Council pursuant to 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 as described in section (2);
(b)Except as provided in OAR 345-022-0030 (Land Use) 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 (Energy facility siting, construction, operation and retirement standards) 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 (Policy) 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 Council under ORS 469.480 (Local government advisory group);
(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 (Organizational Expertise);
(b)The land use standard described in OAR 345-022-0030 (Land Use);
(c)The retirement and financial assurance standard described in OAR 345-022-0050 (Retirement and Financial Assurance);
(d)The need standards described in OAR 345-023-0005 (Need for a Facility);
(e)The standards for energy facilities that emit carbon dioxide described in OAR 345-024-0500 (General) through 345-024-0720 (Qualified Organization);
(f)The protected areas standard described in OAR 345-022-0040 (Protected Areas), 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 (Fish and Wildlife Habitat), except that the Council may apply the balancing determination to the requirements of 635-140-0025 (Mitigation Hierarchy of Impacts in Sage-grouse Core, Low Density, and General Habitats)(2)(a) and (b) for indirect impacts on core and low density sage-grouse habitat, as defined in 635-140-0015 (Core Area Approach to Conservation), which are caused by transmission lines or pipelines as defined in ORS 469.300 (Definitions)(11)(a), and by transmission lines or pipelines that are related or supporting facilities to an energy facility as defined in ORS 469.300 (Definitions)(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.
Rule 345-022-0000 — General Standard of Review,