2006 Legislation
Print Friendly

SENATE BILL NO. 1292 – Energy facility siting

SENATE BILL NO. 1292

View Bill Status

View Bill Text

View Statement of Purpose / Fiscal Impact



Text to be added within a bill has been marked with Bold and
Underline. Text to be removed has been marked with
Strikethrough and Italic. How these codes are actually displayed will
vary based on the browser software you are using.

This sentence is marked with bold and underline to show added text.

This sentence is marked with strikethrough and italic, indicating
text to be removed.

Bill Status



S1292............................by KELLY, STENNETT, WERK, MALEPEAI, MARLEY
ENERGY FACILITY SITING - Adds to existing law to create an energy facility
site evaluation planning committee and to provide membership; to provide
for the state energy facility siting management plan; to provide a
moratorium on permitting; to provide for permits and licenses; to provide
for licenses and their issuance after adoption of the energy siting
management plan; to provide for expansion, enlargement or altering of
energy facilities; to provide for review and siting licenses; to provide a
siting license application, fees and rules; to provide for the creation of
site review panels, members, meetings and procedures; to provide for duties
of the director of the Department of Environmental Quality upon receipt of
a siting license application; to provide for a recommendation; to provide
that information obtained shall be a public record; and to provide a remedy
for devaluation of property caused by an approved facility.
                                                                        
01/20    Senate intro - 1st rdg - to printing
01/23    Rpt prt - to St Aff

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   Second Regular Session - 2006
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1292
                                                                        
                         BY KELLY, STENNETT, WERK, MALEPEAI, MARLEY
                                                                        
  1                                        AN ACT
  2    RELATING TO ENERGY FACILITY SITING; AMENDING TITLE  39,  IDAHO  CODE,  BY  THE
  3        ADDITION  OF  A  NEW  CHAPTER 68, TITLE 39, IDAHO CODE, TO PROVIDE A SHORT
  4        TITLE, TO PROVIDE LEGISLATIVE INTENT, TO DEFINE TERMS, TO PROVIDE  METHODS
  5        OF ENERGY GENERATION, TO CREATE A STATE ENERGY FACILITY PLANNING COMMITTEE
  6        AND TO PROVIDE MEMBERSHIP, TO PROVIDE FOR THE STATE ENERGY FACILITY SITING
  7        MANAGEMENT PLAN, TO PROVIDE FOR A MORATORIUM ON PERMITTING, TO PROVIDE FOR
  8        PERMITS  AND  LICENSES,  TO  PROVIDE FOR LICENSES AND THEIR ISSUANCE AFTER
  9        ADOPTION OF THE ENERGY FACILITY SITING MANAGEMENT  PLAN,  TO  PROVIDE  FOR
 10        EXPANSION,  ENLARGEMENT OR ALTERATION OF ENERGY FACILITIES, TO PROVIDE FOR
 11        REVIEW AND SITING LICENSES, TO PROVIDE A SITING LICENSE APPLICATION,  FEES
 12        AND RULES, TO PROVIDE FOR THE CREATION OF  SITE  REVIEW  PANELS,  MEMBERS,
 13        MEETINGS  AND  PROCEDURES,  TO  PROVIDE  FOR DUTIES OF THE DIRECTOR OF THE
 14        DEPARTMENT OF ENVIRONMENTAL QUALITY  UPON  RECEIPT  OF  A  SITING  LICENSE
 15        APPLICATION  AND TO PROVIDE FOR A RECOMMENDATION, TO PROVIDE THAT INFORMA-
 16        TION OBTAINED SHALL BE A PUBLIC RECORD AND TO PROVIDE A REMEDY FOR DEVALU-
 17        ATION OF PROPERTY CAUSED BY AN APPROVED FACILITY; DECLARING  AN  EMERGENCY
 18        AND PROVIDING A RETROACTIVE EFFECTIVE DATE.
                                                                        
 19    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 20        SECTION  1.  That Title 39, Idaho Code, be, and the same is hereby amended
 21    by the addition thereto of a NEW CHAPTER, to be known and designated as  Chap-
 22    ter 68, Title 39, Idaho Code, and to read as follows:
                                                                        
 23                                      CHAPTER 68
 24                                ENERGY FACILITY SITING
                                                                        
 25        39-6801.  SHORT TITLE. This chapter shall be known and may be cited as the
 26    "State Energy Facility Siting Act."
                                                                        
 27        39-6802.  LEGISLATIVE  INTENT.  (1)  The legislature of the state of Idaho
 28    recognizes that the selection of sites for the construction and  operation  of
 29    energy  facilities  will have a significant impact upon the health and welfare
 30    of the population, the location and growth of industry and the use of the nat-
 31    ural resources of the state. Site selection is a matter of statewide  concern,
 32    and  the  provisions of this chapter are therefor enacted to provide an effec-
 33    tive method of establishing such sites.
 34        (2)  It is the policy of the state of Idaho to recognize  the  significant
 35    impact  of  energy  facilities, and to ensure through available and reasonable
 36    methods, that the location and operation of such facilities will produce mini-
 37    mal adverse effects on Idaho's citizens and the environment. It is the  intent
 38    to  seek  courses  of action that will balance the demands for energy facility
 39    location and operation in conjunction with the broad interests of the public.
 40        (3)  It is the intent of the legislature that the site license process not
 41    duplicate or replace the existing local, state, and federal  permitting  proc-
                                                                        
                                           2
                                                                        
  1    esses.  The site license is a preliminary, general review and prerequisite for
  2    the permitting processes to proceed.
                                                                        
  3        39-6803.  DEFINITIONS. As used in this chapter:
  4        (1)  "Committee" means the state energy facility planning  committee  cre-
  5    ated in section 39-6805, Idaho Code.
  6        (2)  "Department" means the department of environmental quality.
  7        (3)  "Director"  means  the  director  of  the department of environmental
  8    quality.
  9        (4)  "Energy facility"  or  "facility"  means  any  electrical  generating
 10    facility  using  any fuel, including nuclear materials, for generation or dis-
 11    tribution of electricity by electric utilities.
 12        (5)  "Panel" means the site review panel created in section 39-6812, Idaho
 13    Code.
 14        (6)  "Plan" means the state energy facility siting  management  plan  pre-
 15    pared under the provisions of section 39-6806, Idaho Code.
                                                                        
 16        39-6804.  METHODS  OF  ENERGY GENERATION. The department and the committee
 17    in the conduct of their duties under the  provisions  of  this  chapter  shall
 18    assist  in  encouraging, developing and implementing methods of energy genera-
 19    tion which are environmentally sound, maximize  the  utilization  of  valuable
 20    resources and encourage conservation.
                                                                        
 21        39-6805.  STATE ENERGY FACILITY PLANNING COMMITTEE -- CREATION -- MEMBERS.
 22    (1)  The  state  energy  facility  planning committee is hereby created in the
 23    department. The committee shall represent diverse geographical  areas  of  the
 24    state.  No  later  than  September 1, 2006, the governor shall, subject to the
 25    advice and consent of the senate, appoint a committee consisting of  the  fol-
 26    lowing representatives:
 27        (a)  Both  members  of the northwest power and conservation council repre-
 28        senting Idaho pursuant to chapter 12, title 61, Idaho Code;
 29        (b)  One (1) representative of county government;
 30        (c)  One (1) representative of city government;
 31        (d)  One (1) member of an environmental group;
 32        (e)  The director of the department of health and welfare or his designee;
 33        (f)  The director of the department of commerce and labor or his designee;
 34        (g)  One (1) member of a conservation group;
 35        (h)  Two (2) members of the general public;
 36        (i)  The director of the department or his designee;
 37        (j)  The director of the department of water resources or his designee;
 38        (k)  One (1) licensed professional engineer;
 39        (l)  A faculty member of a university or college in this state well versed
 40        in power generation, transmission or other environmental matters;
 41        (m)  The director of the Idaho transportation department or his designee;
 42        (n)  One (1) representative of the mining industry;
 43        (o)  One (1) representative of the forest products industry;
 44        (p)  One (1) representative of the agricultural industry; and
 45        (q)  The president of the public utilities commission.
 46        (2)  A vacancy occurring on the committee shall be filled in the same man-
 47    ner as the original appointment.
 48        (3)  The chairman of the committee shall be elected by the members of  the
 49    committee and the chairman shall be a voting member of the committee.
 50        (4)  Members  of  the committee who are not state employees shall be enti-
 51    tled to receive compensation as provided in section 59-509(b), Idaho Code.
 52        (5)  The committee by majority vote shall establish operating  procedures.
                                                                        
                                           3
                                                                        
  1    The operating procedures shall be made available for public review.
  2        (6)  In  the  conduct  of  its  business,  the committee shall solicit the
  3    advice of, and consult periodically with cities, counties and  persons  within
  4    the state for the purpose of receiving information or advice that may be help-
  5    ful in the preparation of the plan.
  6        (7)  Employees  of  the  department  of  environmental quality, the public
  7    utilities commission, the department of water resources and the transportation
  8    department shall assist the committee on a priority basis.
  9        (8)  The committee shall disband after final approval of the plan  by  the
 10    legislature.
 11        (9)  Upon  petition  to  the director and the director's recommendation to
 12    the governor, the governor shall appoint a committee in the same manner as the
 13    original committee to amend or revise the plan.
 14        (10) The committee shall hold its first meeting  as  soon  as  practicable
 15    after confirmation by the senate.
                                                                        
 16        39-6806.  STATE  ENERGY  FACILITY SITING MANAGEMENT PLAN -- PREPARATION --
 17    INCLUSIONS -- STUDIES -- PUBLIC HEARINGS -- SUMMARY -- AMENDMENTS -- RECOMMEN-
 18    DATION. (1) Not later than January 1, 2008,  the  committee  shall  prepare  a
 19    state energy facility siting management plan.
 20        (2)  The plan shall:
 21        (a)  Provide for a reasonable geographic distribution of energy facilities
 22        to meet existing and probable future needs;
 23        (b)  Be based upon consideration of the location of transmission lines and
 24        fuel  sources, health and safety, the economics of transportation, and the
 25        location and nature of existing energy facilities;
 26        (c)  Include technical criteria based upon  the  studies  and  information
 27        gathered pursuant to this section; and
 28        (d)  Include  necessary  legislative,  administrative  and economic mecha-
 29        nisms, and a timetable, to carry out the plan.
 30        (3)  The committee may instruct the department of  environmental  quality,
 31    the  public  utilities  commission,  the department of water resources and the
 32    transportation department to complete studies as considered reasonably  neces-
 33    sary for the completion of the plan. The studies may include:
 34        (a)  An  inventory and evaluation of the sources of fuel for power genera-
 35        tion within this state or from other states, including the types and quan-
 36        tities of the fuel;
 37        (b)  An inventory and evaluation of current energy generation  and  trans-
 38        mission practices and costs, within this state;
 39        (c)  A  projection  or  determination  of  future energy needs based on an
 40        evaluation of existing capacities and capabilities,  manufacturing  activ-
 41        ity,  limitations  and  constraints, and projected economic and population
 42        growth. Projection of needs shall consider the types and sizes of existing
 43        generation facilities, general locations within the state, available  con-
 44        trol systems, and an identified need for additional facilities;
 45        (d)  An  investigation and analysis of methods and incentives to encourage
 46        interstate and international cooperation in the generation  and  transmis-
 47        sion of energy;
 48        (e)  An  investigation and analysis of methods, incentives or technologies
 49        for energy conservation and renewable energy sources; and
 50        (f)  An investigation and analysis of alternate methods for energy genera-
 51        tion.
 52        (4)  Upon completion of the plan, the committee  shall  publish  a  notice
 53    after  giving  twenty  (20)  days' notice as provided in section 60-109, Idaho
 54    Code, in a number of newspapers and  shall  issue  a  statewide  news  release
                                                                        
                                           4
                                                                        
  1    announcing  the availability of the plan for inspection by interested persons.
  2    The announcement shall indicate where and how the  plan  may  be  obtained  or
  3    reviewed and shall indicate that not less than three (3) public hearings shall
  4    be  conducted  at  varying  locations in the state before formal adoption. The
  5    first public hearing shall not be held until sixty (60) days have elapsed from
  6    the date of the notice announcing the availability of the plan.
  7        (5)  After public hearings, the committee shall prepare a written  summary
  8    of  the comments received, provide comments on the major concerns raised, make
  9    amendments to the plan as necessary and shall formally adopt the plan.
                                                                        
 10        39-6807.  MORATORIUM ON PERMITTING. From the effective date  of  this  act
 11    until  the  plan  is  adopted  by  the committee, no local government or state
 12    agency shall process or  issue  a  permit  for  the  construction,  expansion,
 13    enlargement or alteration of an energy facility.
                                                                        
 14        39-6808.  PERMITS  AND LICENSES. After adoption of the plan by the commit-
 15    tee, no person shall construct, expand, enlarge or alter  an  energy  facility
 16    without  a  siting  license  from the department. The owner or operator of the
 17    facility or site, rather than the builder, shall be responsible for  obtaining
 18    the license.
                                                                        
 19        39-6809.  LICENSES  -- ISSUANCE AFTER ADOPTION OF PLAN. After the plan has
 20    been adopted by the committee, the director shall not issue  a  license  under
 21    the  provisions  of  this chapter  until the director has made a determination
 22    that the action is consistent with the adopted plan. The director  may  exempt
 23    classes  or  categories of energy facilities from complying with the hazardous
 24    waste management plan if the exemption is in the public interest  and  consis-
 25    tent with state and federal law. If the director exempts classes or categories
 26    of  energy facilities from complying with the plan, rules shall be promulgated
 27    in compliance with chapter 52, title 67, Idaho Code,  specifically  indicating
 28    the exemption.
                                                                        
 29        39-6810.  EXPANSION,  ENLARGEMENT  OR  ALTERATION  OF  ENERGY  FACILITY --
 30    REVIEW -- SITING LICENSES. (1) An energy facility in existence on  the  effec-
 31    tive  date of this act shall not require a review under the provisions of this
 32    chapter.
 33        (2)  The expansion, enlargement, or alteration of an  energy  facility  in
 34    existence  on  the  effective  date of this act constitutes a new proposal for
 35    which a siting license is required.
                                                                        
 36        39-6811.  SITING LICENSE APPLICATION -- FEE -- RULES. (1)  An  application
 37    for a siting license shall include:
 38        (a)  The name and residence of the applicant;
 39        (b)  Site  information,  plans, descriptions, specifications, and drawings
 40        showing the design of the facility, or modification, the nature and amount
 41        of emissions, including secondary emissions, and the manner  in  which  it
 42        will be operated and controlled;
 43        (c)  A schedule for construction of the facility or modification;
 44        (d)  A  description  of the system of continuous emission control proposed
 45        for the new major facility;
 46        (e)  Certification that all other facilities, owned  or  operated  by,  or
 47        under  common ownership of, the proposed new facility or modification, are
 48        in compliance with all local, state or federal requirements or  are  on  a
 49        schedule for compliance with such;
 50        (f)  An  analysis  of  alternative  sites, sizes, production processes and
                                                                        
                                           5
                                                                        
  1        environmental control techniques;
  2        (g)  Information showing that harm to scenic, historic, cultural or recre-
  3        ational values is not substantial or can be mitigated;
  4        (h)  Information showing that the  risk  and  impact  of  accident  during
  5        transport  of fuel or waste from the facility is not substantial or can be
  6        mitigated; and
  7        (i)  Information showing that  the  impact  on  local  government  is  not
  8        adverse regarding health, safety, cost and consistency with local planning
  9        and existing development or can be mitigated.
 10        (2)  Within  thirty (30) days after receipt of the application, the direc-
 11    tor shall determine whether it is complete. If it is not complete, the  direc-
 12    tor shall notify the applicant and state the areas of deficiency.
 13        (3)  The  application shall be accompanied by a siting license application
 14    fee. The director shall establish by rule, the scale for determining the  sit-
 15    ing  license  application  fee.  The fee shall not exceed one hundred thousand
 16    dollars ($100,000) and shall be based on the cost to the department of review-
 17    ing the siting license application. The scale shall be based  on  characteris-
 18    tics  including the site size, projected volume, and characteristics surround-
 19    ing the site. Fees received pursuant to this section may be  expended  by  the
 20    director  to  pay  the  actual, reasonable and necessary costs incurred by the
 21    department in acting upon a siting license application. The director may  pro-
 22    mulgate  rules   in compliance with chapter 52, title 67, Idaho Code, in order
 23    to implement and administer the provisions of this section.
                                                                        
 24        39-6812.  SITE REVIEW  PANELS  --  MEMBERS,  CHAIRMAN,  QUORUM,  MEETINGS,
 25    STAFF.  (1) A site review panel shall be established to ensure public input in
 26    the licensing process, to recommend to the director conditions which should be
 27    included in a siting license and to recommend to the director whether  a  par-
 28    ticular facility should or should not be constructed, expanded or enlarged.
 29        (2)  A panel shall consist of members to be appointed as follows:
 30        (a)  Three  (3)  members shall be the director of the department of  envi-
 31        ronmental quality or his designee, the president of the  public  utilities
 32        commission  or  his  designee  and the director of the department of water
 33        resources or his designee.
 34        (b)  One (1) member shall be a public member appointed  by  the  governor.
 35        The  public  member shall be an environmental professional, shall serve as
 36        chairman of the panel and shall be a voting member. A member who is a pub-
 37        lic member shall be appointed to serve on site review  panels  only  until
 38        the  particular  siting  license  application  subject  to their review is
 39        approved, or until the application is rejected and is no longer subject to
 40        their review.
 41        (c)  One (1) member shall be appointed by the city council  of  each  city
 42        located  within  a  fifty  (50)  mile  radius of the site where the energy
 43        facility is proposed to be located. The members serving pursuant  to  this
 44        subsection  shall  serve  until  the particular siting license application
 45        subject to their  review  is  approved,  or  until  the  application    is
 46        rejected and is no longer subject to their review.
 47        (d)  One  (1) member shall be appointed by the board of county commission-
 48        ers for each county located within a fifty (50) mile radius  of  the  site
 49        where  the  energy facility is proposed to be located. The members serving
 50        pursuant to this  subsection  shall  serve  until  the  particular  siting
 51        license  application  subject  to  their  review is approved, or until the
 52        application is rejected and is no longer subject to their review.
 53        (e)  A person nominated to represent a city or county  shall  not  have  a
 54        conflict  of  interest,  as  that term is defined in section 59-703, Idaho
                                                                        
                                           6
                                                                        
  1        Code, or derive any economic gain as  that  term  is  defined  in  section
  2        59-703,  Idaho  Code,  from  the location or siting of the proposed energy
  3        facility.
  4        (3)  A majority of the members of the panel shall constitute a quorum  for
  5    the  transaction of business of the panel and the concurrence of a majority of
  6    the members of the panel shall constitute a legal action of  the  panel,  pro-
  7    vided  that  no  meeting of the panel shall occur unless there are at least as
  8    many members present representing the city or cities and county or counties as
  9    there are representing the state and the public as appointed pursuant to  sub-
 10    section (2) of this section. All meetings of the panel shall be conducted pur-
 11    suant to the state open meeting law.
 12        (4)  The director shall make staff available to assist a panel in carrying
 13    out its responsibilities.
 14        (5)  Members of the panel who are not state employees shall be entitled to
 15    receive compensation as provided in section 59-509(b), Idaho Code.
                                                                        
 16        39-6813.  DUTIES  OF DIRECTOR UPON RECEIPT OF A SITING LICENSE APPLICATION
 17    -- RECOMMENDATION. (1) Upon receipt of a complete siting license  application,
 18    the director or an authorized representative of the director shall:
 19        (a)  Immediately  notify  the permanent panel members described in section
 20        39-6812(2), Idaho Code, and the city council and board of  county  commis-
 21        sioners  of  each  city  and county described in section 39-6812(2), Idaho
 22        Code. The notice shall describe the procedure and the  schedule  based  on
 23        the  complexity  of  the  application  by  which the siting license may be
 24        approved or denied.
 25        (b)  Immediately publish a notice that the application has been  received,
 26        as  provided  in  section  60-109, Idaho Code, in a newspaper having major
 27        circulation in the county and  the  immediate  vicinity  of  the  proposed
 28        facility. The required published notice shall contain a map indicating the
 29        location  of  the proposed facility and shall contain a description of the
 30        proposed action and the location where the  complete  application  package
 31        may  be  reviewed  and  where  copies  may  be  obtained. The notice shall
 32        describe the procedure by which the siting license may be granted.
 33        (2)  Upon notification by the director,  the  chairman  shall  immediately
 34    notify  the  representatives of the state to the panel and the public members.
 35    The chairman shall also notify the applicable county or counties  and city  or
 36    cities  for their appointment of members as provided in subsection (2)(c), (d)
 37    and (e) of section 39-6812, Idaho Code. Within  thirty  (30)  days  after  the
 38    notification,  the  board  of commissioners of the county or counties  and the
 39    city council(s) shall select the members to serve  on  the  panel.  The  panel
 40    shall  be  created  at that time and notification of the creation of the panel
 41    shall be made to the chairman.
 42        (3)  If no technical criteria are applicable, the director shall submit to
 43    the panel a draft site license which includes conditions based on the informa-
 44    tion submitted in the  application. The director shall also recommend  to  the
 45    panel  that the license be issued or denied. The draft license submittal shall
 46    be made within sixty-five (65) days after a complete application is received.
 47        (4)  If technical criteria as adopted in  the  plan  are  applicable,  the
 48    director  shall determine if the proposed facility complies with the criteria.
 49    Such determination shall be made within forty-five (45) days after a  complete
 50    application  is  received. If the technical criteria are not met, the director
 51    shall deny the license and the panel shall be disbanded. If the technical cri-
 52    teria are met, the director shall submit to the panel  a  draft  site  license
 53    which  includes  conditions  regarding the technical criteria to be met. These
 54    conditions may be more stringent than those in the plan if warranted by infor-
                                                                        
                                           7
                                                                        
  1    mation provided in the application. The draft license may also  include  addi-
  2    tional  conditions  based  on  the  information  submitted  in the application
  3    regarding the construction of the facility. The director shall also  recommend
  4    to the panel that the license be issued or denied. The denial or draft license
  5    submittal  shall be made within sixty-five (65) days after a complete applica-
  6    tion is received. The director shall immediately notify the applicant and  the
  7    chairman of the panel of the denial or draft license submittal.
  8        (5)  Within  ten  (10)  days after submittal of a draft license, the panel
  9    shall meet to review and establish a timetable for the  consideration  of  the
 10    draft site license.
 11        (6)  The panel shall:
 12        (a)  Set  a date and arrange for publication of notice of a public hearing
 13        in a newspaper having major circulation in the vicinity  of  the  proposed
 14        site, at its first meeting. The public notice shall:
 15             (i)   Contain a map indicating the location of the proposed facility,
 16             a  description  of  the  proposed  action, and the location where the
 17             application for a siting license may be reviewed and where copies may
 18             be obtained;
 19             (ii)  Identify the time, place and location for  the  public  hearing
 20             held  to  receive  public  comment and input on the application for a
 21             siting license;
 22        (b)  Publish the notice not less than thirty (30) days before the date  of
 23        the  public  hearing  and the notice shall be, at a minimum, a twenty (20)
 24        days' notice as provided in section 60-109, Idaho Code.
 25        (7)  Comment and input on the proposed facility may be presented orally or
 26    in writing at the public hearing, and shall continue to be accepted in writing
 27    by the panel for fifteen (15) days after the public hearing date.
 28        (8)  The panel's primary responsibility shall be to consider the  concerns
 29    and objections submitted by the public in relation to the contents of the site
 30    license  application.  The  panel shall facilitate efforts to provide that the
 31    concerns and objections  are  mitigated  by  proposing  additional  conditions
 32    regarding  the  construction of the facility. The panel may propose conditions
 33    which integrate the provisions of the city or county  ordinances,  permits  or
 34    requirements.
 35        (9)  Within  ninety (90) days after creation, the panel shall recommend to
 36    the director that the license be issued as proposed, issued with different  or
 37    additional  conditions,  or  denied.  The director shall make a final decision
 38    within thirty (30) days after receipt of the panel's  recommendation.  If  the
 39    panel  recommends different or additional conditions, a clear statement of the
 40    need for the condition must be submitted to the director. If the panel  recom-
 41    mends  denial, a clear statement of the reasons for the denial must be submit-
 42    ted to the director.
 43        (10) The director shall issue a siting license if the director  determines
 44    that:
 45        (a)  The technical criteria are met;
 46        (b)  The  harm to scenic, historic, cultural or recreational values is not
 47        substantial or can be mitigated by appropriate license conditions;
 48        (c)  The risk and impact of accident during transportation  of  fuels  and
 49        waste  to  and  from  the site is not substantial or can be mitigated with
 50        appropriate license conditions;
 51        (d)  The impact on local  government  is  not  adverse  regarding  health,
 52        safety,  cost and consistency with local planning and existing development
 53        or can be mitigated with appropriate license conditions; and
 54        (e)  No other major concerns have been raised by the panel regarding  pub-
 55        lic health or the environment which cannot be mitigated by special license
                                                                        
                                           8
                                                                        
  1        conditions.
  2        (11) An  applicant denied a siting license pursuant to this chapter or any
  3    person aggrieved by a decision of the director pursuant to  this  chapter  may
  4    within  twenty-eight  (28)  days, after all remedies have been exhausted under
  5    the provisions of this chapter, seek judicial review under the procedures pro-
  6    vided in chapter 52, title 67, Idaho Code.
                                                                        
  7        39-6814.  INFORMATION OBTAINED -- PUBLIC RECORD. (1) Except as provided in
  8    subsection (2) of this section, information obtained by the  department  under
  9    the provisions of this chapter shall be deemed to be a public record.
 10        (2)  A person regulated under the provisions of this chapter may designate
 11    a  record,  site  license  application,  other  information, or a portion of a
 12    record, site  license  application,  or  other  information  furnished  to  or
 13    obtained  by  the  department  or its agents, as being only for the use of the
 14    department and the panel. The material shall then  be  subject  to  disclosure
 15    according to chapter 3, title 9, Idaho Code.
                                                                        
 16        39-6815.  REMEDY  FOR DEVALUATION OF PROPERTY CAUSED BY APPROVED FACILITY.
 17    (1) Before construction of an energy facility, but in no case later than  nine
 18    (9)  months after approval of a site license for an energy facility, any owner
 19    or user of real property adversely affected by approval may bring an action in
 20    a district court of competent jurisdiction against the owner of  the  proposed
 21    facility.  If the court determines that the planned construction and operation
 22    of the energy facility will result in the devaluation of the plaintiff's prop-
 23    erty or will otherwise interfere with the plaintiff's rights in the  property,
 24    it shall order the owner to compensate the plaintiff in an amount equal to the
 25    value of the plaintiff's loss.
 26        (2)  The  remedy  provided  in  subsection (1) of this section shall be in
 27    addition to other remedies provided by law for owners or  users  aggrieved  by
 28    the proposed construction and operation of an energy facility.
 29        (3)  Nothing  in  this  chapter shall prevent an owner or user of property
 30    aggrieved by the construction and operation of a facility from seeking damages
 31    that result from a subsequent modification of the design  or  operation  of  a
 32    facility  but  such damages are limited to the incremental damage that results
 33    from the modification. Any action for such damages under this section shall be
 34    brought within nine (9) months after the siting license  for  modification  of
 35    the design or operation of the facility is approved.
 36        (4)  For  the  purpose  of  assessing  damages,  the  value  of the rights
 37    affected is fixed at the date the siting license is approved  and  the  actual
 38    value  of  the  right  at  that date is the basis for the determination of the
 39    amount of damage suffered, and no improvements to the property  subsequent  to
 40    the  date of approval of the plans shall be included in the assessment of dam-
 41    ages. Similarly, for any subsequent modification of a facility, value is
 42    fixed at the date of approval of the siting license.
 43        (5)  The owner or operator of a proposed facility may, at any time  before
 44    an  award of damages, abandon the construction or operation of the facility or
 45    any modification and cause the action to be dismissed. As a condition of  dis-
 46    missal,  however, the owner or operator shall compensate the plaintiff for any
 47    actual damage sustained as a result of construction or operation of the facil-
 48    ity before abandonment together with court costs and a  reasonable  attorney's
 49    fee.
 50        (6)  Nothing  in  this  chapter  shall  prevent a court from enjoining any
 51    activity at an energy facility that is outside of, or not in compliance  with,
 52    the terms and conditions of an approved permit issued pursuant to local, state
 53    or federal law.
                                                                        
                                           9
                                                                        
  1        SECTION  2.  An  emergency  existing  therefor,  which emergency is hereby
  2    declared to exist, this act shall be in full force and effect on and after its
  3    passage and approval, and retroactively to January 1, 2006.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE

                            RS 15724

The purpose of this legislation is to codify a statewide process
for the selection of sites for the construction and operation of
energy facilities.


                          FISCAL IMPACT

None.  Costs of the implementation of the statutory provisions
will be covered by a fee from facility operators.




Contact
Name: Sen. Kate Kelly 
      Sen. Clint Stennett 
      Sen. Elliot Werk
      Sen. Edgar Malepeai    
      Sen. Bert Marley  
      Rep. Wendy Jaquet   

Phone: 332-1351
  



STATEMENT OF PURPOSE/FISCAL NOTE                         S1292