[co-author Jayden M. Dirk - summer associate]
Last month, the Oregon Energy Facility Siting Council (EFSC) proposed changes to its rules on site certificate amendments in OAR 345 Division 27. These rules govern the process by which the Oregon Department of Energy (ODOE) and EFSC review requests for energy facility site certificate amendments. The proposed changes would combine the two most common current review pathways into a single, middle-ground review process, among other changes intended to clarify and streamline these processes. A redline version of the amendment rules with proposed changes is available here.
Current Amendment Process: EFSC’s current regulations provide three possible pathways for site certificate amendment review: “Type A,” “Type B,” and “Type C” reviews. The default review process, Type A, requires a public comment period and public hearing, and allows aggrieved commenters to request a contested case hearing on the amendment. The current Type B review is a more accelerated process and is available at EFSC’s discretion for amendments that are less complex, have less public interest, and are less likely to have significant adverse impacts. Unlike the Type A process, Type B review does not require a public hearing and does not permit a contested case on the amendment. The Type B process also entails a shorter review period: ODOE’s specified review and response timelines are nearly three months shorter than the timelines specified for Type A reviews. The third review process, Type C, is reserved for narrow situations in which a facility is not yet in operation and unavoidably and unforeseeably needs an expedited, typically non-substantial, amendment.
Proposed Changes: The proposed rule changes include numerous revisions intended to clarify and streamline the current amendment review processes. Among the more significant changes:
- Consolidated Type A and Type B review process: Type A and Type B processes would be combined into one single, middle-ground review process that would require a public hearing and (slightly longer) public comment period, like the current Type A process, but would no longer allow for a contested case hearing on the amendments.
- Though contested case proceedings would no longer be available, affected stakeholders would have an additional opportunity to weigh in on amendment requests through a revised comments response process under which they could reply to certificate holder responses to comments, and the certificate holder could again respond to those replies. By contrast, under the current Type A and Type B processes, commenters are not afforded an opportunity to reply, thus a certificate holder need not respond to those replies.
- The ODOE review timelines under this new process would more closely resemble the shorter timelines under the current Type B process, though ODOE still has significant discretion in determining how long proposed order issuance and ultimate amendment approval would take.
- Partial termination: The proposed rules would also clarify that a certificate holder can apply to retire just a portion of a site from the site certificate, without terminating the entire certificate. Partial retirement could be valuable to facilitate adjusted decommissioning bond requirements following partial termination to more accurately reflect the remaining infrastructure.
- Longer initial construction commencement period and extension clarifications: The changes would also (1) clarify existing rules surrounding construction deadline extension requests to eliminate the previous (fairly convoluted) framework that imposed different interim time limits based on certification date and limited the extensions available, (2) allow for a longer initial construction start period, and (3) eliminate the requirement to explain why an extension is needed.
- Terminology changes: The proposed rules would also clean up and clarify language in the existing rules. For example, the Type C review process would be renamed as a “pre-operational request for amendment,” and the interim version of the amendment order that is subject to a public hearing would be renamed from “draft proposed order” to “proposed order.”
Upshots for Developers: Overall, these changes are generally positive for project owners and operators seeking expediency and certainty in pursuing site certificate amendments. Compared to the current review process, the proposed changes would streamline and generally shorten the overall timeline for amendment requests compared to the current default review process. Certificate holders would also no longer face the risk of a full-blown contested case hearing. These new efficiencies would come at some cost, however. Minor, insubstantial amendment requests that could previously pursue Type B review without a public hearing must now undergo that additional step. And amendment seekers would have a new obligation to respond in writing to the additional round of public comment replies. The proposed changes to allow partial retirement of a site and to clarify the construction deadline extension process would also likely improve flexibility for certificate holders.
EFSC has not yet voted on the proposed rule changes. A public hearing for this proposed rulemaking is scheduled for July 18, 2025. The period for comments is open now and closes on August 1, 2025. Comments can be submitted via ODOE’s public comment portal available here. Stoel Rives will update this post once EFSC issues a decision on the proposed rules.
