2007 Legislation
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SENATE BILL NO. 1041 – Major energy facility siting

SENATE BILL NO. 1041

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S1041........by KELLY, LANGHORST, WERK, BILYEU, STENNETT, BURKETT, MALEPEAI
ENERGY FACILITY SITING - Adds to existing law relating to major energy
facility siting to create a State Energy Facility Planning Committee; to
provide membership; to provide for the state energy facility siting
management plan; to provide for permits and licenses; to provide for
expansion, enlargement or alteration of energy facilities; to provide for
review and siting licenses; and to provide for the creation of site review
panels.
                                                                        
01/19    Senate intro - 1st rdg - to printing
01/22    Rpt prt - to St Aff

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   First Regular Session - 2007
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1041
                                                                        
               BY KELLY, LANGHORST, WERK, BILYEU, STENNETT, BURKETT, MALEPEAI
                                                                        
  1                                        AN ACT
  2    RELATING TO MAJOR ENERGY FACILITY SITING; AMENDING TITLE 39,  IDAHO  CODE,  BY
  3        THE 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; AND DECLARING AN EMER-
 18        GENCY.
                                                                        
 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                             MAJOR ENERGY FACILITY SITING
                                                                        
 25        39-6801.  SHORT TITLE. This chapter shall be known and may be cited as the
 26    "Major 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    major energy facilities will have a significant impact  upon  the  health  and
 30    welfare  of the population, the location and growth of industry and the use of
 31    the natural resources of the state. Site selection is a  matter  of  statewide
 32    concern,  and  the provisions of this chapter are therefore enacted to provide
 33    an effective 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, 2007, 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 who is well
 40        versed 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.
                                                                        
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  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
                                                                        
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  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  adopted
 24    plan  if the exemption is in the public interest and consistent with state and
 25    federal law. If the director exempts classes or categories of  energy  facili-
 26    ties  from  complying  with the plan, rules shall be promulgated in compliance
 27    with chapter 52, title 67, Idaho Code, specifically indicating the exemption.
                                                                        
 28        39-6810.  EXPANSION, ENLARGEMENT  OR  ALTERATION  OF  ENERGY  FACILITY  --
 29    REVIEW  --  SITING LICENSES. (1) An energy facility in existence on the effec-
 30    tive date of this act shall not require a review under the provisions of  this
 31    chapter.
 32        (2)  The  expansion,  enlargement,  or alteration of an energy facility in
 33    existence on the effective date of this act constitutes  a  new  proposal  for
 34    which a siting license is required.
                                                                        
 35        39-6811.  SITING  LICENSE  APPLICATION -- FEE -- RULES. (1) An application
 36    for a siting license shall include:
 37        (a)  The name and residence of the applicant;
 38        (b)  Site information, plans, descriptions, specifications,  and  drawings
 39        showing the design of the facility, or modification, the nature and amount
 40        of  emissions,  including  secondary emissions, and the manner in which it
 41        will be operated and controlled;
 42        (c)  A schedule for construction of the facility or modification;
 43        (d)  A description of the system of continuous emission  control  proposed
 44        for the new major facility;
 45        (e)  Certification  that  all  other  facilities, owned or operated by, or
 46        under common ownership of, the proposed new facility or modification,  are
 47        in  compliance  with  all local, state or federal requirements or are on a
 48        schedule for compliance with such;
 49        (f)  An analysis of alternative sites,  sizes,  production  processes  and
 50        environmental control techniques;
                                                                        
                                       5
                                                                        
  1        (g)  Information showing that harm to scenic, historic, cultural or recre-
  2        ational values is not substantial or can be mitigated;
  3        (h)  Information  showing  that  the  risk  and  impact of accident during
  4        transport of fuel or waste to and from the facility is not substantial  or
  5        can be mitigated; and
  6        (i)  Information  showing  that  the  impact  on  local  government is not
  7        adverse regarding health, safety, cost and consistency with local planning
  8        and existing development or can be mitigated.
  9        (2)  Within thirty (30) days after receipt of the application, the  direc-
 10    tor  shall determine whether it is complete. If it is not complete, the direc-
 11    tor shall notify the applicant and state the areas of deficiency.
 12        (3)  The application shall be accompanied by a siting license  application
 13    fee.  The director shall establish by rule, the scale for determining the sit-
 14    ing license application fee. The fee shall not  exceed  one  hundred  thousand
 15    dollars ($100,000) and shall be based on the cost to the department of review-
 16    ing  the  siting license application. The scale shall be based on characteris-
 17    tics including the site size, projected volume, and characteristics  surround-
 18    ing  the  site.  Fees received pursuant to this section may be expended by the
 19    director to pay the actual, reasonable and necessary  costs  incurred  by  the
 20    department  in acting upon a siting license application. The director may pro-
 21    mulgate rules  in compliance with chapter 52, title 67, Idaho Code,  in  order
 22    to implement and administer the provisions of this section.
                                                                        
 23        39-6812.  SITE  REVIEW  PANELS  --  MEMBERS,  CHAIRMAN,  QUORUM, MEETINGS,
 24    STAFF. (1) A site review panel shall be established to ensure public input  in
 25    the licensing process, to recommend to the director conditions which should be
 26    included  in  a siting license and to recommend to the director whether a par-
 27    ticular facility should or should not be constructed, expanded or enlarged.
 28        (2)  A panel shall consist of members to be appointed as follows:
 29        (a)  Three (3) members shall be the director of the department  of   envi-
 30        ronmental  quality  or his designee, the president of the public utilities
 31        commission or his designee and the director of  the  department  of  water
 32        resources or his designee.
 33        (b)  One  (1)  member  shall be a public member appointed by the governor.
 34        The public member shall be an environmental professional, shall  serve  as
 35        chairman of the panel and shall be a voting member. A member who is a pub-
 36        lic  member  shall  be appointed to serve on site review panels only until
 37        the particular siting license  application  subject  to  their  review  is
 38        approved, or until the application is rejected and is no longer subject to
 39        their review.
 40        (c)  One  (1)  member  shall be appointed by the city council of each city
 41        located within a fifty (50) mile radius  of  the  site  where  the  energy
 42        facility  is  proposed to be located. The members serving pursuant to this
 43        subsection shall serve until the  particular  siting  license  application
 44        subject to their  review is approved, or until the application is rejected
 45        and is no longer subject to their review.
 46        (d)  One  (1) member shall be appointed by the board of county commission-
 47        ers for each county located within a fifty (50) mile radius  of  the  site
 48        where  the energy  facility is proposed to be located. The members serving
 49        pursuant to this  subsection  shall  serve  until  the  particular  siting
 50        license  application  subject  to  their  review is approved, or until the
 51        application is rejected and is no longer subject to their review.
 52        (e)  A person nominated to represent a city or county  shall  not  have  a
 53        conflict  of  interest,  as  that term is defined in section 59-703, Idaho
 54        Code, or derive any economic gain as  that  term  is  defined  in  section
                                                                        
                                       6
                                                                        
  1        59-703,  Idaho  Code,  from  the location or siting of the proposed energy
  2        facility.
  3        (3)  A majority of the members of the panel shall constitute a quorum  for
  4    the  transaction of business of the panel and the concurrence of a majority of
  5    the members of the panel shall constitute a legal action of  the  panel,  pro-
  6    vided  that  no  meeting of the panel shall occur unless there are at least as
  7    many members present representing the city or cities and county or counties as
  8    there are representing the state and the public as appointed pursuant to  sub-
  9    section (2) of this section. All meetings of the panel shall be conducted pur-
 10    suant to the state open meeting law.
 11        (4)  The director shall make staff available to assist a panel in carrying
 12    out its responsibilities.
 13        (5)  Members of the panel who are not state employees shall be entitled to
 14    receive compensation as provided in section 59-509(b), Idaho Code.
                                                                        
 15        39-6813.  DUTIES  OF DIRECTOR UPON RECEIPT OF A SITING LICENSE APPLICATION
 16    -- RECOMMENDATION. (1) Upon receipt of a complete siting license  application,
 17    the director or an authorized representative of the director shall:
 18        (a)  Immediately  notify  the permanent panel members described in section
 19        39-6812(2), Idaho Code, and the city council and board of  county  commis-
 20        sioners  of  each  city  and county described in section 39-6812(2), Idaho
 21        Code. The notice shall describe the procedure and the  schedule  based  on
 22        the  complexity  of  the  application  by  which the siting license may be
 23        approved or denied.
 24        (b)  Immediately publish a notice that the application has been  received,
 25        as  provided  in  section  60-109, Idaho Code, in a newspaper having major
 26        circulation in the county and  the  immediate  vicinity  of  the  proposed
 27        facility. The required published notice shall contain a map indicating the
 28        location  of  the proposed facility and shall contain a description of the
 29        proposed action and the location where the  complete  application  package
 30        may  be  reviewed  and  where  copies  may  be  obtained. The notice shall
 31        describe the procedure by which the siting license may be granted.
 32        (2)  Upon notification by the director,  the  chairman  shall  immediately
 33    notify  the  representatives of the state to the panel and the public members.
 34    The chairman shall also notify the applicable county or counties  and city  or
 35    cities  for their appointment of members as provided in subsection (2)(c), (d)
 36    and (e) of section 39-6812, Idaho Code. Within  thirty  (30)  days  after  the
 37    notification,  the  board  of commissioners of the county or counties  and the
 38    city council(s) shall select the members to serve  on  the  panel.  The  panel
 39    shall  be  created  at that time and notification of the creation of the panel
 40    shall be made to the chairman.
 41        (3)  If no technical criteria are applicable, the director shall submit to
 42    the panel a draft site license which includes conditions based on the informa-
 43    tion submitted in the application. The director shall also  recommend  to  the
 44    panel  that the license be issued or denied. The draft license submittal shall
 45    be made within sixty-five (65) days after a complete application is received.
 46        (4)  If technical criteria as adopted in  the  plan  are  applicable,  the
 47    director  shall determine if the proposed facility complies with the criteria.
 48    Such  determination shall be made within forty-five (45) days after a complete
 49    application is received. If the technical criteria are not met,  the  director
 50    shall deny the license and the panel shall be disbanded. If the technical cri-
 51    teria  are  met,  the  director shall submit to the panel a draft site license
 52    which includes conditions regarding the technical criteria to  be  met.  These
 53    conditions may be more stringent than those in the plan if warranted by infor-
 54    mation  provided  in the application. The draft license may also include addi-
                                                                        
                                       7
                                                                        
  1    tional conditions based  on  the  information  submitted  in  the  application
  2    regarding  the construction of the facility. The director shall also recommend
  3    to the panel that the license be issued or denied. The denial or draft license
  4    submittal shall be made within sixty-five (65) days after a complete  applica-
  5    tion  is received. The director shall immediately notify the applicant and the
  6    chairman of the panel of the denial or draft license submittal.
  7        (5)  Within ten (10) days after submittal of a draft  license,  the  panel
  8    shall  meet  to  review and establish a timetable for the consideration of the
  9    draft site license.
 10        (6)  The panel shall:
 11        (a)  Set a date and arrange for publication of notice of a public  hearing
 12        in  a  newspaper  having major circulation in the vicinity of the proposed
 13        site, at its first meeting. The public notice shall:
 14             (i)   Contain a map indicating the location of the proposed facility,
 15             a description of the proposed action,  and  the  location  where  the
 16             application for a siting license may be reviewed and where copies may
 17             be obtained;
 18             (ii)  Identify  the  time,  place and location for the public hearing
 19             held to receive public comment and input on  the  application  for  a
 20             siting license;
 21        (b)  Publish  the notice not less than thirty (30) days before the date of
 22        the public hearing and the notice shall be, at a minimum,  a  twenty  (20)
 23        days' notice as provided in section 60-109, Idaho Code.
 24        (7)  Comment and input on the proposed facility may be presented orally or
 25    in writing at the public hearing, and shall continue to be accepted in writing
 26    by the panel for fifteen (15) days after the public hearing date.
 27        (8)  The  panel's primary responsibility shall be to consider the concerns
 28    and objections submitted by the public in relation to the contents of the site
 29    license application. The panel shall facilitate efforts to  provide  that  the
 30    concerns  and  objections  are  mitigated  by  proposing additional conditions
 31    regarding the construction of the facility. The panel may  propose  conditions
 32    which  integrate  the  provisions of the city or county ordinances, permits or
 33    requirements.
 34        (9)  Within ninety (90) days after creation, the panel shall recommend  to
 35    the  director that the license be issued as proposed, issued with different or
 36    additional conditions, or denied. The director shall  make  a  final  decision
 37    within  thirty  (30)  days after receipt of the panel's recommendation. If the
 38    panel recommends different or additional conditions, a clear statement of  the
 39    need  for the condition must be submitted to the director. If the panel recom-
 40    mends denial, a clear statement of the reasons for the denial must be  submit-
 41    ted to the director.
 42        (10) The  director shall issue a siting license if the director determines
 43    that:
 44        (a)  The technical criteria are met;
 45        (b)  The harm to scenic, historic, cultural or recreational values is  not
 46        substantial or can be mitigated by appropriate license conditions;
 47        (c)  The  risk  and  impact of accident during transportation of fuels and
 48        waste to and from the site are not substantial or can  be  mitigated  with
 49        appropriate license conditions;
 50        (d)  The  impact  on  local  government  is  not adverse regarding health,
 51        safety, cost and consistency with local planning and existing  development
 52        or can be mitigated with appropriate license conditions; and
 53        (e)  No  other major concerns have been raised by the panel regarding pub-
 54        lic health or the environment which cannot be mitigated by special license
 55        conditions.
                                                                        
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  1        (11) An applicant denied a siting license pursuant to this chapter or  any
  2    person  aggrieved  by  a decision of the director pursuant to this chapter may
  3    within twenty-eight (28) days, after all remedies have  been  exhausted  under
  4    the provisions of this chapter, seek judicial review under the procedures pro-
  5    vided in chapter 52, title 67, Idaho Code.
                                                                        
  6        39-6814.  INFORMATION OBTAINED -- PUBLIC RECORD. (1) Except as provided in
  7    subsection  (2)  of this section, information obtained by the department under
  8    the provisions of this chapter shall be deemed to be a public record.
  9        (2)  A person regulated under the provisions of this chapter may designate
 10    a record, site license application, other  information,  or  a  portion  of  a
 11    record,  site  license  application,  or  other  information  furnished  to or
 12    obtained by the department or its agents, as being only for  the  use  of  the
 13    department  and  the  panel.  The material shall then be subject to disclosure
 14    according to chapter 3, title 9, Idaho Code.
                                                                        
 15        39-6815.  REMEDY FOR DEVALUATION OF PROPERTY CAUSED BY APPROVED  FACILITY.
 16    (1)  Before construction of an energy facility, but in no case later than nine
 17    (9) months after approval of a site license for an energy facility, any  owner
 18    or user of real property adversely affected by approval may bring an action in
 19    a  district  court of competent jurisdiction against the owner of the proposed
 20    facility. If the court determines that the planned construction and  operation
 21    of the energy facility will result in the devaluation of the plaintiff's prop-
 22    erty  or will otherwise interfere with the plaintiff's rights in the property,
 23    it shall order the owner to compensate the plaintiff in an amount equal to the
 24    value of the plaintiff's loss.
 25        (2)  The remedy provided in subsection (1) of this  section  shall  be  in
 26    addition  to  other  remedies provided by law for owners or users aggrieved by
 27    the proposed construction and operation of an energy facility.
 28        (3)  Nothing in this chapter shall prevent an owner or  user  of  property
 29    aggrieved by the construction and operation of a facility from seeking damages
 30    that  result  from  a  subsequent modification of the design or operation of a
 31    facility but such damages are limited to the incremental damage  that  results
 32    from the modification. Any action for such damages under this section shall be
 33    brought  within  nine  (9) months after the siting license for modification of
 34    the design or operation of the facility is approved.
 35        (4)  For the purpose  of  assessing  damages,  the  value  of  the  rights
 36    affected  is  fixed  at the date the siting license is approved and the actual
 37    value of the right at that date is the basis  for  the  determination  of  the
 38    amount  of  damage suffered, and no improvements to the property subsequent to
 39    the date of approval of the plans shall be included in the assessment of  dam-
 40    ages. Similarly, for any subsequent modification of a facility, value is fixed
 41    at the date of approval of the siting license.
 42        (5)  The  owner or operator of a proposed facility may, at any time before
 43    an award of damages, abandon the construction or operation of the facility  or
 44    any  modification and cause the action to be dismissed. As a condition of dis-
 45    missal, however, the owner or operator shall compensate the plaintiff for  any
 46    actual damage sustained as a result of construction or operation of the facil-
 47    ity  before abandonment, together with court costs and a reasonable attorney's
 48    fee.
 49        (6)  Nothing in this chapter shall prevent  a  court  from  enjoining  any
 50    activity  at an energy facility that is outside of, or not in compliance with,
 51    the terms and conditions of an approved permit issued pursuant to local, state
 52    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.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE

                             RS 16685

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


                           FISCAL NOTE

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





Contact
Name: Sen. Kate Kelly          Sen. Clint Stennett
      Sen. David Langhorst     Sen. Mike Burkett
      Sen. Elliot Werk         Sen. Edgar Malepeai
      Sen. Diane Bilyeu        Rep. Wendy Jaquet

Phone: 332-1351

          
STATEMENT OF PURPOSE/FISCAL NOTE                        S 1041