Siting / Review Process
Before certain energy facilities can be sited, constructed, or operated in Washington, application must be made to the Energy Facility Site Evaluation Council (Council or EFSEC). The Council was created to provide a one-stop licensing agency for certain non-hydro energy projects.
The Siting Process
EFSEC project siting review, or certification, is the state licensing process for the siting, construction, and operation of an energy project. A preliminary site study may be done prior to starting the certification process to assess whether to proceed with an application. The Council is responsible for evaluating applications to ensure that all environmental and socioeconomic impacts are considered before a site is approved. After evaluating an application, EFSEC submits a recommendation to the Governor (flow chart). If the Council determines that constructing and operating the facility will produce minimal adverse effects on the environment, ecology of the land and wildlife, and ecology of the state waters and aquatic life, and meets its construction and operation standards then it recommends that a Site Certification Agreement (SCA) be approved and signed by the Governor . The SCA lists the conditions the applicant must meet during construction and while operating the facility. A SCA does not grant the right of eminent domain to the SCA holder.
The EFSEC statute directs the Council to regulate the construction and operation of the facility. EFSEC is the state's regulatory agency that determines compliance with state laws and the terms set in the SCA. (EFSEC contracts with other state agencies for on-site inspection.) The Council has the regulatory authority to enforce compliance with state laws and the conditions in the SCA through fines or by ceasing construction or operation of the project. EFSEC continues this oversight responsibility through restoration of the site after the project is terminated.
Thermal Electrical Generation:
Floating thermal power plants of 100 MW (100,000 kilowatts) or more.
Alternative Energy Electrical Generation: (Facilities of any size for which an applicant chooses to receive certification under EFSEC)
Electrical Transmission Lines:
- Greater than 115 kilovolts and located outside an electrical
transmission corridor; or
- At least 115 kilovolts and located in a new corridor or located in more
more than one jurisdiction that has promulgated land use plans and
Refineries which increases its processing of petroleum into refined product by more than 25,000 barrels per day.
Crude or refined petroleum or liquefied petroleum facilities that can receive more than an average of 50,000 barrels per day that will be or have been transported over marine waters. (This doesn't apply to storage facilities unless they are part of a new energy plant or transmission facility.)
Preliminary (Potential) Site Study
Prior to submitting an application for certification, a prospective applicant may request that EFSEC conduct a Preliminary (or Potential) Site Study. Conducting a Preliminary Site Study can help determine if there are any environmental, social, or regulatory "hurdles" that can not be overcome, rendering the project unsuitable. Determining this before beginning the certification process saves the applicant time and money. In addition, a Preliminary Site Study allows EFSEC to begin assessing what resources it will need for reviewing and processing the application. A Preliminary Site Study saves prospective applicants time and expense by informing them of existing environmental conditions and enables the Council to prepare for the application and its review.
After receiving a request to study a potential site, the Council commissions an independent consultant to study relevant site issues. The study includes preparing and analyzing environmental impact information for the proposed site. Any other matters the Council and the applicant believe are essential to an adequate appraisal of the potential site are also studied. In conducting the study, the Council cooperates with:
A $10,000 fee must accompany an applicant's request for a Preliminary Site Study. Until the Council receives this fee, it will not take any action. The Council applies the $10,000 fee to the study. If the Council finds that $10,000 is insufficient to cover the costs of the study, the Council advises the applicant and requests additional funds. The study is discontinued if the applicant does not agree to pay the additional costs.
Certification (Siting Review)
The EFSEC certification process was designed to give applicants an opportunity to present their proposals, allow interested parties to express their concerns to the Council, and have the Council to address issues related to the application.
There are six major steps in the certification process:
Each step has specific requirements the applicant and the Council must follow to ensure a comprehensive and balanced review of the project. Many of the steps take place at the same time.
Submitting an application is the first step in the EFSEC certification process. An application to EFSEC must follow the guidelines for applications found in Chapter 463-60 Washington Administrative Code (WAC). The guidelines require the applicant to fully address more than 60 subjects dealing with environmental and socioeconomic impacts, including measures the applicant will take for mitigating or offsetting impacts the project may have.
The application must be accompanied by a $45,000 fee and the applicant will be billed for all actual costs throughout EFSEC's review.
An applicant may request EFSEC conduct its review using an Expedited Process (Chapter 463-43 WAC). In an Expedited Process, the Council is required to determine eligibility within 4 months of application submittal and make a recommendation to the Governor within 6 weeks of granting eligibility. However, to be eligible for expedited processing the Council must find that the proposed project has no significant environmental impact (or impacts will be mitigated to a non-significant level) and is consistent and in compliance with existing local land use ordinances.
Only one application to EFSEC has been successful in meeting these criteria and after EFSEC's review, was approved by the Governor.
2. Application Review
When an application is submitted, EFSEC begins its application review. EFSEC retains an independent consultant to ascertain if the information submitted in the application conforms to Chapter 463-60 WAC and in most cases, to prepare an Environmental Impact Statement (EIS). The $25,000 application fee is applied toward the cost of the independent consultant under contract to EFSEC for this review.
The application must specify how the project will meet the Council's Construction and Operational Standards (Chapter 463-62 WAC) and information and detail of the design, methods of construction, and operation of the proposed facility that will ensure a clean and safe environment. The application will also describe how the applicant will abide by the rules and regulations that the Council will use to monitor and check for compliance with state laws. The application should contain the relevant information and data as specified in Chapter 463-60 WAC and that would be necessary for the development of an EIS. The information in the application provides the technical background information for the adjudicative hearing.
EFSEC's independent consultant will advise the Council and the applicant if additional information is needed to prepare the EIS and/or commence the adjudicative hearings. When the Council determines there is sufficient information regarding the proposed project it will proceed with the adjudicative hearings.
The Council asks the counties, cities, and port districts where the project is to be located to appoint representatives to sit on the Council when it considers issues within their jurisdiction. State law (RCW 80.50.030) only gives voting authority to city and county representatives; not to port district representatives. These members serve until the proposed site is accepted or rejected.
No later than 60 days of receipt of the application, the Council must hold an initial public meeting on the proposed project. The purpose of the initial public meeting is to explain the proposed project and the Council process. After the applicant has described the proposed project, the Council explains the process for review, determination, and recommendation to the Governor. The Council also allows the public to present written or oral testimony relating to the proposed project. This meeting may also act as scoping meetings for the EIS. The initial public hearing is held in the vicinity of the proposed project after notifying public officials, publishing public notices, and putting out news releases.
Subsequent to the informational public meeting, the Council must hold a land use hearing to ascertain if the proposed project is consistent with city, county or regional land use plans or ordinances. Anyone wishing to address the Council regarding consistency with land use plans may testify at this hearing.
If the Council determines the project is not consistent with local land use plans it will schedule an adjudicative proceeding (usually held concurrent with the adjudicative proceeding described below) to determine if it will recommend the Governor preempt the local land use regulations. Details for this process are contained in Chapter 463-28 WAC.
The project may require a simple Environmental Checklist or most likely a more detailed Environmental Impact Statement. It may fall under both state and federal jurisdiction.
State Environmental Policy Act (SEPA)
For major energy facilities the Council becomes the lead SEPA agency. If the proposal is an action and not exempt from SEPA, the Council asks the applicant to complete an Environmental Checklist. (A checklist is not needed if the Council and applicant agree that an EIS is required.) The applicant may also submit an Environmental Checklist with its application.
National Environmental Policy Act (NEPA)
In the past EFSEC has worked cooperatively with federal agencies to develop EISs, conduct hearings, and publish EISs for projects that fall under both the National Environmental Policy Act and the State Environmental Policy Act. EFSEC's policy is to continue to develop and conduct cooperative NEPA/SEPA reviews when possible.
The EIS Process
The Council retains an independent consultant to help in the preparation and review of the document. The applicant bears the expense of the EIS preparation, but the consultant working for the Council helps ensures that all pertinent environmental issues are addressed thoroughly. The Council can require the applicant to provide additional information that may require the applicant to conduct specific investigations.
The amount of time required to develop an EIS depends on:
The public is notified when the draft EIS is ready. The EIS is subjected to public review. The Council holds public hearings on the draft EIS. If it is a joint federal/state EIS, joint hearings are held. At the same time the EIS is developed and related public hearings on the draft EIS are held, adjudicative proceedings may take place. However, the adjudicative proceedings must be finalized before the Council issues the final EIS.
Adjudicative proceedings are held at the same time air and water discharge permits are developed.
EFSEC's certification process calls for the Council to hold hearings on the proposed project to allow the applicant and opponents to present information to support their cases. Council rule requires the hearings to be conducted as "Adjudicative Proceedings" (Chapter 463-30 WAC). Land use preemption issues may be heard during these proceedings.
The Council's Adjudicatory Proceeding is a formal hearing process similar to courtroom proceedings, where the Council hears from the official "parties" to the proceedings. By law all state agencies and local governments with members on the Council are considered parties to any Adjudicatory Proceeding before the Council (however, they may not elect to participate as a party). If an agency wishes to be an active participant in the proceedings, the agency's Assistant Attorney General represents the agency during the proceedings. The state Attorney General's Office appoints a Counsel for the Environment to be a party in the proceedings representing the public and its interest in protecting the quality of the environment.
Other interested persons; tribes; groups; or local, state, or federal agencies may petition the Council to become interveners in the proceedings. The Council considers the intervener petitions and determines whether to grant intervener participation based on the project's impact on the concerns of the interveners. If denied party status, petitioners may ask the Council for administrative review if they disagree with the Council's decision.
A series of prehearing conferences are held prior to the adjudicative proceedings to organize and schedule the hearings by subject matter. The primary purpose of the prehearing conferences is to streamline the hearings as much as possible by defining, focusing, and narrowing the issues. The Council or hearings officer uses these conferences to determine what contested issues will be heard during the adjudicative hearings, the order of issues to be heard, and a schedule for the hearings. In that way each individual issue can be addressed in a logical and methodical manner.
The Council may use an Administrative Law Judge, or conduct the hearings itself. The Council attends the hearings, but may rely on its Administrative Law Judge for procedural rulings and other legal matters during the hearings.
The adjudicatory proceedings are conducted in a manner in accordance with the Washington State Administrative Procedures Act (Chapter 34.05 RCW). Expert testimony is given and cross-examination is allowed. It is recommended that parties and interveners have legal counsel represent them during the hearings.
The testimony and exhibits introduced during these proceedings are the basis for the record the Council refers to when determining whether to recommend project approval or disapproval to the Governor. Information from these proceedings is also used to determine the SCA's conditions for construction and operation of the project. The applicant must meet these conditions if the Governor approves the project.
Air and Water Discharge Permits
In tandem with the adjudicative proceedings, the Council initiates its process for developing air and water discharge permits if needed.
Additional hearings are scheduled for developing the conditions to be set in the air and water discharge permits. Discharges to the air may require the applicant to receive a Prevention of Significant Deterioration (PSD) permit. The Environmental Protection Agency (EPA) has delegated responsibility for issuing the PSD to the Council. The PSD permit details the components and levels of contaminants that may be discharged to the air by the project. The applicant must provide evidence that the project will meet all local, state, and federal Clean Air Act standards before the Council will issue the permit.
For general and operating air permit regulations see Chapter 463-78 WAC.
The EPA has also granted the Council authority to issue the National Pollutant Discharge Elimination System (NPDES) permit for discharging wastes in the state's waters. Again the applicant is required to provide evidence that any discharge to state waters will meet all the standards in the state and federal Clean Water Acts. See Chapter 463-76 WAC.
When the adjudicative hearings have concluded, the Council takes time to consider the information collected during the proceedings. After its deliberations the Council writes an administrative order containing the Council's findings of fact, conclusions of law, and, if it finds the project should proceed, a recommendation to the Governor to approve the project. The Council has the option of issuing a preliminary or draft administrative order allowing the parties to take exceptions to the findings. The Council then reviews any exceptions and issues a final administrative order.
If the Council determines the project should be recommended to the Governor, it develops an administrative order on recommendation (including any recommended preemption of local land use regulations) and a draft Site Certification Agreement to be signed by the Governor. The SCA has all of the environmental, social, economic, and engineering conditions the applicant must meet for construction and operation throughout the life of the project. The draft SCA includes any proposed PSD or NPDES permits developed by the Council as attachments.
If the Council determines the project should not be recommended to the Governor for approval, the final order explains the Council's decision.
The Governor has 60 days to consider the Council's recommendation and can take one of the following actions:
EFSEC - Energy Facility Site Evaluation Council