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Chapter 80.50 RCW

ENERGY FACILITIES--SITE LOCATIONS

80.50.060

80.50.150

80.50.180

80.50.040

It is the intent to seek courses of action that will balance the increasing demands for energy facility location

and operation in conjunction with the broad interests of

the public. Such action will be based on these premises:

(1) To assure Washington state citizens that, where

applicable, operational safeguards are at least as stringent as the criteria established by the federal government and are technically sufficient for their welfare and

protection.

(2) To preserve and protect the quality of the environment; to enhance the public's opportunity to enjoy

the esthetic and recreational benefits of the air, water'

and land resources; to promote air cleanliness; and to

pursue beneficial changes in the environment.

(3) To provide abundant energy at reasonable cost.

[1975-'76 2nd ex.s. c 108 § 29; 1970 ex.s. c 45 § I.]

Severability--Effective dat~197S-'76 2nd ex.s, c 108: See ".

notes following RCW 43.2IF.010.

Nuclear power facilities. joint operation: Chapter 54.44 RCW.

State energy office: Chapter 43.21F RCW.

Western interstate nuclear compact: RCW 43.31.400 through ':'

43.31.420. .

RCW 80.50.020 Definitions. (1) "Applicant" means:

any person who makes application for a site certification?

pursuant to the provisions of this chapter; ~:

(2) "Application" means any request for approval of a·:;:.

particular site or sites filed in accordance with the pro-:::;

cedures established pursuant to this chapter, unless the.::.

context otherwise requires;' . ;.'.

(3) "Person" means an individual, partnership, joint\

venture, private or public corporation, association, firm,

public s~rvice company, political subdivision, municipal

corporation, government agency, public utility district,

or any other entity. public or private, however organized;'

(4) "Site" means any proposed or approved location

of an energy facility;

(5) "Certification" means a binding agreement between. an applicant and the state which shall embody

compliance to the siting guidelines, in effect as of the

date of certification, which have been adopted pursuant

to RCW 80.50.040 as now or hereafter amended as conditions to be met prior to or concurrent with the construction or operation of any energy facility;

(6) n Associated facilities" means storage, transmission, handling, or other related and supporting facilities

connecting an energy plant. with the existing energy sup-

~Iy, processing, or distribution system, including, but not

Itmited to,. communications, controls, mobilizing or

maintenance equipment, instrumentation, and other

types of ancillary transmission equipment, off-line storage or ventin~ r.equired for efficient operation or safety

of the transrmssion system and overhead, and surface or

subsurface lines of physical access for the inspection,

Sections

80.50.010

80.50.Q20

80.50.030 .

80.50.071

80.50.075

80.50.080

80.50.090

80.50.100

80.50.120

80.50.130

80.50.140

80.50.150

80.50.160

80.50.175

80.50.190

80.50.800

Legislative finding--Policy--Intent.

Definitions.

Energy facility site evaluation council-Created--

. Membership.

Energy facility site evaluation council--Powers

enumerated.

Energy facilities to which chapter applies--Applications for certification--Forms-Information.

Council to receive applications--Fees or charges for

application processing or certification monitoring.

Expedited processing of applications.

Counsel for the environment.

Public hearings.

Recommendations to governor--Approval or rejection

of certification--Reconsideration.

80.50.110 C~apter governs and supersedes other law or regulaltons--Preemption of regulation and certification by

state.

Effect of certification.

Revocation or suspension of certification--Grounds.

Review.

Enforcement of compliance--Penalties (as amended

by 1979 c 41).

Enforcement of compliance--Penalties (as amended

by 1979 ex.s. c 254).

Availability of information.

Study of potential sites--Fee--Disposition of

payments.

Proposals and actions by other state agencies and local

political subdivisions pertaining to energy facilities exempt from 'detailed statement' required by RCW

43.21C.030.

Disposition'of receipts from applicants.

Rules of thermal plant site evaluation council to continue until amended or rescinded.

80.50.900 Severability--1970 ex.s. c 45.

80.50.901 Severability--1974 ex.s. cliO.

80.50.902 Severability--1977 ex.s. c 371.

Energy supply emergencies: Chapter 43.21G RCW.

State energy office: Chapter 43.21F RCW.

Water pollution control. energy facilities, perrnits.. etc., duties of energy facility site evaluation council: RCW 90.48.262.

RCW 80.50.010 Legislative finding--Policy--

Intent. The legislature finds that the present and predicted growth in energy demands in the state of

Washington requires the development of a procedure for

the selection and utilization of sites for energy facilities

and the identification of a state position with respect to

each proposed site. The legislature recognizes that the

selection of sites will have a significant impact upon the

welfare of the population, the location and growth of industry and the use of the natural resources of the state..

It is the policy of the state of Washington to recognize

the pressing need for increased energy facilities, and to

ensure through available and reasonable methods, that

th~ .location and operation of such facilities will produce

minimal adverse effects on the environment, ecology of

the land and its wildlife, and the ecology of state waters

and their aquatic life. ;,'~:~;~,

"-..-1

(1983 Laws) [eb. 80.50 RCW-p I)
110.50.020 Energy Facilities--8ite Locations

'.

maintenance, and safe operations of the transmission fa-'

cilh'y and new transmission lines constructed to operate

at nominal voltages in excess of 200,000 volts to connect

a thermal power plant to the northwest power grid: Provided, That common carrier railroads or motor vehicles

shall not be included;

(7) "Transmission facility" means any of the follow-

.ing together with their associated facilities:

(a) Crude or refined petroleum or liquid petroleum

product transmission pipeline of the following dimensions: A pipeline larger than six inches minimum inside

diameter between valves for the transmission of these

products with a total length of at least fifteen miles;

(b) Natural gas, synthetic fuel gas, or liquified petroleum gas transmission pipeline of the following dimensions: A pipeline larger than fourteen inches minimum

inside diameter between valves, for the transmission of

these products, with a total length of at least fifteen

miles for the purpose of delivering gas to a distribution

facility, except an interstate natural gas pipeline regulated by the United States federal power commission;

(8) "Independent consultants" means those persons

who have no financial interest in the applicant's proposals and who are retained by the council to evaluate the

applicant's proposals, supporting studies, or to conduct

additional studies;

(9) "Thermal power plant" means, for the purpose of

certification, any electrical generating facility using any

fuel, including nuclear materials, for distribution of

electricity by electric utilities;

(10) "Energy facility" means an energy plant or

transmission facilities: Provided, That the following are

excluded from the provisions of this chapter:

\a) Facilities for the extraction, conversion, transmission or storage of water, other than water specifically

consumed or discharged by energy production or conversion for energy purposes; and

(b) Facilities operated by and for the armed services

for military purposes or by other federal authority for

the national defense;

(II) "Council" means the energy facility site evaluation council created by RCW 80.50.030;

(12) "Counsel for environment ,- means an assista nt

attorney general or a special assistant attorney general

who shall represent the public in accordance with RCW

80.50.080;

(13) "Construction" means on-site improvements, ex- .

eluding exploratory work, which cost in excess of two

hundred fifty thousand dollars;

(14) "Energy plant" means the following facilities together with their associated facilities:

(a) Any stationary thermal power plant with generating capacity of two hundred fifty thousand kilowatts or

more and floating thermal power plants of fifty thousand

kilowatts or more, including associated facilities;

(b) Facilities which will have the capacity to receive

liquified natural gas in the equivalent of more than one

hundred million standard cubic feet of natural gas per

day, which has been transported over marine waters;

-(c). Facilities which will have the capacity to receive

more than an average of fifty thousand barrels per day

-iCb. SO.SO RCW-:p 11

of crude or refined petroleum or liquified petroleum gas

which has been or will be transported over marine waters, except that the provisions of this chapter shall not

apply to storage facilities unless occasioned by such new

facility construction;

(d) Any underground reservoir for receipt and storage

of natural gas as defined in RCW 80.40.010 capable of

delivering an average of more than one hundred million

standard cubic feet of natural gas per day; and

(e) Facilities capable of processing more than twentyfive thousand barrels per day of petroleum into refined

products;

(15) "Land use plan" means a comprehensive plan or

land use element thereof adopted by a unit of local government pursuant to chapters 35.63, 35A.63, or 36.70

RCW;

(16) "Zoning ordinance" means an ordinance of a

unit of local government regulating the use of land and

adopted pursuant to chapters 35.63, 35A.63, or 36.70

RCW or Article XI of the state Constitution. [1977 ex.s.

c. 371 § 2; 1975-'76 2nd ex.s. c 108 § 30; 1970 ex.s. c 45

§ 2.]

Severability-Effective date--1975-'76 2nd ex.s, c 108: See

notes following RCW 43.21 F.OIO.

RCW 80.50.030 Energy facility site evaluation

council--ereated--Membership. (I) There is

hereby created and established the "energy facility site

evaluation council".

(2) The chairman of the council shall be appointed by

the governor with the advice and consent of the senate,

shall have a vote on matters before the council, shall

serve for a term coextensive with the term of the governor and shall be removable for cause. The chairman may

designate a member of the council to serve as acting

chairman in the event of the chairman's absence. The

salary of the chairman shall be determined pursuant to

the provisions of RCW 43.03.040. The chairman shall

be deemed a "state employee" for the purposes of chapter 42.18 RCW.

(3) The council shall consist of the directors, administrators, or their designees. of the following departments,

agencies, commissions and committees or their statutory

successors:

(a) Department of ecology

(b) Department of fisheries

(c) Department of game

(d) Department of parks and recreation

(e) Department of social and health services

(f) State energy office

(g) Department of commerce and economic

development

(h) Utilities and transportation commission

(i) Office of program planning and fiscal management

U> Department of natural resources .

(k) Planning and community affairs agency

(I) Department of emergency services

(01) Department of agriculture

(n) Department of highways.

(4) The appropriate county legislative authority of every county wherein an application for a proposed site ·is·_· -

(1983 Laws)

~~~. .----

.";'~·l:-,

V
Energy Facilities--Site Locations 80.50.060

.,~

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......

filed shall appoint a member or designee as a voting

member to the council. The member or designee so appointed shall sit with the council only at such times as

the council considers the proposed site for the county

which he represents and such member or designee shall

serve until there has been a final acceptance or rejection

of such proposed site;

(5) The city legislative authority of every city within

whose corporate limits an energy plant is proposed to be

located shall appoint a member or designee as a voting

member to the council. The member or designee so appointed shall sit with the council only at such times as

the council considers the proposed site for the city which

he represents and such member or designee shall serve

until there has been a final acceptance or rejection of

such proposed site.

(6) For any port district wherein an application for a

proposed port facility is filed subject to this chapter. the

port district shall appoint a member or designee as a

nonvoting member to the council. The member or designee so appointed shall sit with the council only at such

times as the council considers the proposed site for the

port district which he represents and such member or

designee shall serve until there has been a final acceptance or rejection of such proposed site. The provisions of

this subsection shall not apply if the port district is the

applicant. either singly or in partnership or association

with any other person. [1977 ex.s. c 371 § 3; 1975-'76

2nd ex.s. c 108 § 31; 1974 ex.s, c 171 § 46; 1970 ex.s. c

45 § 3.]

Re,ise,', note: (I) The 'office of program planning and fiscal management' was redesignated as 'office of financial management" by

1977 ex.s, c t t4; see RCW 43.41.035.

(2) Powers. duties, and functions of department of highways transferred to department of transportation; see RCW 47.01.031. Term

"department of highways" means department of transportation; see

RCW 47.04.015.

SeYerability--Errecthe date---1975-'76 2nd ex.s, c 108: See

notes following RCW 43.21F.OIO.

RCW 80.50.040 Energy facility site evaluation

council--Powers enumerated. The council shall have

the following powers:

(I) To adopt, promulgate, amend, or rescind suitable

rules and regulations, pursuant to chapter 34.04 RCW,

to carry out the provisions of this chapter. and the policies and practices of the council in connection therewith;

(2) To appoint an executive secretary to serve at the

pleasure of the council:

(3) To appoint and prescribe the duties of such clerks,

employees, and agents as may be necessary to carry out

the provisions of this chapter: Provided. That such persons shall be employed pursuant to the provisions of

chaptera l.Oe RCW;

(4) To develop and apply environmental and ecological guidelines in relation to the type, design, location,

construction. and operational conditions of certification

of energy facilities subject to this chapter:

(5) To establish rules of practice for the conduct of

public hearings pursuant to the provisions of the Administrative Procedure Act, as found in chapter 34.04

RCW;

(19g3 Laws)

(6) To prescribe the form, content, and necessary

supporting documentation for site certification;

(7) To receive applications for energy facility locations and to investigate the sufficiency thereof;

(8) To make and contract, when applicable, for independent studies of sites proposed by the applicant;

(9) To conduct hearings on the proposed location of

the energy facilities;

(10) To prepare written reports to the governor which

shall include: (a) A statement indicating whether the

application is in compliance with the council's guidelines. (b) criteria specific to the site and transmission

line routing. (c) a council recommendation as to the disposition of the application. and (d) a draft certification

agreement when the council recommends approval of the

application;

(II) To prescribe the means for monitoring of the effects arising from the construction and the operation of

energy facilities to assure continued compliance with

terms of certification and/or permits issued by the

council pursuant to chapter 90.48 RCW or RCW

80.50.040( 14): Provided, That any on-site inspection required by the" council shall be performed by other state

agencies pursuant to interagency agreement: Provided

Further, That the council shall retain authority for determining compliance relative to monitoring;

(12) To integrate its site evaluation activity with activities of federal agencies having jurisdiction in such

matters to avoid unnecessary duplication;

(13) To present state concerns and interests to other

states, regional organizations, and the federal government on the location, construction, and operation of any','

energy facility which may affect the environment,"

health, or safety of the citizens of the state of .:

Washington; .',

(14) To issue permits in compliance with applicable'

provisions of the federally approved state implementa-.

tion plan adopted in accordance with the Federal Clean

Air Act. as now existing or hereafter amended, for the

new construction. reconstruction. or enlargement or operation of energy facilities: Provided. That such permits

shall become effective only if the governor approves an'

application for certification and executes a certification

agreement pursuant to this chapter: And provided Further. That all such permits be conditioned upon compliance with all provisions of the federally approved state

implementation plan which apply to energy facilities

covered wit hin the provisions of this chapter. [1979 ex.s.

c 254 § I: 1977 cx.s, c 371 § 4: 1975-'76 2nd ex.s. c 108

§ 32; 1970 ex.s. c 45 § 4.)

Se~erability--Errectiw dale--t975-'76 2nd ex.s. c 108: See

notes following RCW 43.2\ F.OIO.

RCW 80.50.060 Energy facilities to which chapter

applies--Applications for certification-FormsInformation. (I) The provisions of this chapter shall apply to the construction of energy facilities which includes

the new construction of energy facilities and the reconstruction or enlargement of existing energy facilities

where the net increase in physical capacity or dimensions resulting from such reconstruction or enlargement

leb. 80.50 RCW-p 3)
80.50.060

.-"

Energy Facilities--8ite Locations

meets or exceeds those capacities or dimensions set forth

in RCW 80.50.020(7) and *( 17), as now or herea fter

amended. No construction of such energy facilities may

be undertaken, except as otherwise provided in this

chapter, after July 15, 1977, without first obtaining certification in the manner provided in this chapter.

(2) The provisions of this chapter shall not apply to

normal maintenance and repairs which do not increase

the .capacity or dimensions beyond those set forth in

RCW 80.50.020 (7) and *( 17), as now or hereafter

amended.

(3) Applications for certification of energy facilities

made prior to July IS, 1977 shall continue to be. governed by the applicable provisions of law in effect on the

day immediately preceding July IS, 1977 with the exceptions of RCW 80.50.190 and 80.50.071 which shall

apply to such prior applications and to site certifications

prospectively from July 15, 1977.

('l) Applications for certification shall be upon forms

prescribed by' the council and shall be supported by such

information and technical studies as the council may require. [1977 ex.s. c 371 § 5; 1975-'76 2nd ex.s. c 108 §

34; 1970 ex.s, c 45 § 6.]

*Re,iser's note: The ~eference to subsection (17) of RCW 80.50.020

appears to be erroneous. Su bsection (14) was apparently intended.

Senrability-Effecti,e date-1975-'76 2nd ex.s. c ·108: See

notes following RCW 43.21 F.OIO.

RCW 80.50.071 Council to receive applicationsFees or charges for application processing or certification

mdhitoring. (I) The council shall receive all applications

for energy facility site certification. The following fees

or charges for application processing or certification

monitoring shall be paid by the applicant or certificate

holder:

(a) A fee of twenty-five thousand dollars for each

proposed site, to be applied toward the cost of the independent consultant study authorized in this subsection.

shall accompany the application and shall be a condition

precedent to any further consideration or action on the

application by the council. The council shall commission

its own independent consultant study to measure the

consequences of the proposed energy facility on the environment for each site application. The council shall direct the consultant to study any matter which it deems

essential to an adequate appraisal of the site. The full

cost of the study shall be paid by the applicant: Provided, That said costs exceeding a total of the twentyfive thousand dollars paid pursuant to subsection (I )(a)

of this section shall be payable subject to the applicant

giving prior approval to such excess amount.

{b) Each applicant shall, in addition to the costs of

the independent consultant provided by subsection (I)(a)

of this section, pay such reasonable costs as are actually

and necessarily incurred by the council in processing the

application. Such costs shall include, but are not limited

to, costs of a hearing examiner, a court reporter, additional staff salaries, wages and employee benefits, goods

and services. travel expenses within the state and mis-

~--__cellane.ous_elt~!l~eli,_as arise directly from processing

such application. .

(a.. 80.50 RCW......, 4)

Each applicant shall, at the time of application submission, deposit twenty thousand dollars, or such lesser

amount as may be specified by council rule, to cover

costs provided for by subsection (I Hb) of this section.

Reasonable and necessarv costs of the council directly

attributable to application processing shall be charged

against such deposit.

The council shall submit to each applicant a statement

of such expenditures actually made during the preceding

calendar quarter which shall be in sufficient detail to

explain such expenditures. The applicant shall pay the

state treasurer the amount of such statement to restore

the total amount on deposit to the originally established

level: Provided, That such applicant may, at the request

of the council, increase the amount of funds on deposit

to cover anticipated expenses during peak periods of application processing. Any funds remaining unexpended

at the conclusion of application processing shall be refunded to the applicant, or at the applicant's option,

credited against required deposits of certificate holders.

(c) Each certificate holder shall pay such reasonable

costs as are actually and necessarily incurred by the

council for inspection and determination of compliance

by the certificate holder with the terms of the certification relative to monitoring the effects of construction

and operation of the facility.

Each certificate holder, within thirty days of execution of the site certification agreement, shall deposit

twenty thousand dollars, or such other amount as may

be specified by council rule, to cover costs provided for

by subsection (l)(c) of this section. Reasonable and

necessary costs of the council directly attributable to inspection and determination of compliance by the certificate holder with the terms of the certification relative to

monitoring the effects of construction and operation of .

the facility shall be charged against such deposit.

The council shall submit to each certificate holder a

statement of such expenditures actually made during the

preceding calendar quarter which shall be in sufficient

detail to explain such expenditures. The certificate

holder shall pay the state treasurer the amount of such

statement to restore the total amount on deposit to the

originally established level: Provided, That if the actual,

reasonable. and necessary expenditures for inspection

and determination of compliance in the preceding calendar quarter have exceeded the amount of funds on deposit, such excess costs shall be paid by the certificate

holder.

(2) If an'applicant or certificate holder fails to provide the initial deposit. or if subsequently required payments are not received within thirty days following

receipt of the statement from the council, the council

may (a) in the case of the applicant, suspend processing

of the application until payment is received; or (b) in the

case of a certificate holder, suspend the certification.

(3) All payments required of the applicant or certificate holder under this section are to be made to the state

treasurer who shall make payments as instructed by the

council from the funds submitted. All such funds shall

be subject to state auditing procedures. Any unexpended

(1983 Laws)

,,:•.~.- "~"'i

~-.....,.I.,
Energy Facilities--Site Locations 80.50.100

'''-'

portions thereof shall be returned to the applicant or

certificate holder. [1977 ex.s. c 371 § 16.]

RCW 80.50.075 Expedited processing of applications. (I) Any person required to file an application for

certification of an energy facility pursuant to this chapter may apply to the council for an expedited processing

of such an application. The application for expedited

processing shall be submitted to the council in such form

and manner and accompanied by such information as

may be prescribed by council rule. The council may

grant an applicant expedited processing of an application

for certification upon finding that:

(a) The environmental impact of the proposed energy

facility;

(b) The area potentially affected;

(c) The cost and magnitude of the proposed energy

facility; and

(d) The degree to which the proposed energy facility

represents a change in use of the proposed site

are not significant enough to warrant a full review of the

application for certification under the provisions of this

chapter.

(2) Upon granting an applicant expedited processing

of an application for certification, the council shall not

.be required to:

(a) Commission an independent study, notwithstanding the provisions of RCW 80.50.071; nor

(b) Hold a contested case hearing under chapter 34.04

RCW on the application.

(3) The council shall adopt rules governing the expedited processing of an application for certification pursuant to this section. [1977 ex.s. c 371 § 17.]

RCW 80.50.080 Counsel for the environment. After

the council has received a site application, the attorney

general shall appoint an assistant attorney general as a

counsel for the environment. The counsel for the environment shall represent the public and its interest in

protecting the quality of the environment. Costs incurred

by the counsel for the environment in the performance of

these duties shall be charged to the office of the attorney

general. and shall not be a charge against the appropriation to the energy facility site evaluation council. He

shall be accorded all the rights. privileges and responsibilities of an attorney representing a party in a formal

action. This section shall not be construed to prevent any

person from being heard or represented by counsel in

accordance with the other provisions of this chapter.

[1977 ex.s. c 371 § 6; 1970 ex.s. c 45 § 8.]

RCW 80.50.090 Public hearings. (I) The council

shall conduct a public hearing in the county of the proposed site within sixty days of receipt of an application

for site certification: Provided, That the place of such

public hearing shall be as elose as practical to the proposed site.

(2) The council must determine at the initial public

hearing whether or not the proposed site is consistent

and in compliance with county or regional land use plans

(1983 Laws)

or zoning ordinances. If it is determined that the proposed site does conform with existing land use plans or

zoning ordinances in effect as of the date of the application, the county or regional planning authority shall not

thereafter change such land use plans or zoning ordinances so as to affect the proposed site.

(3) Prior to the issuance of a council recommendation

to the governor under RCW 80.50.100 a public hearing,

conducted as a contested case under chapter 34.04

RCW. shall be held. Al such public hearing any person

shall be entitled lO be heard in support of or in opposilion to the application for certification.

(4) Additional public hearings shall be held as

deemed appropriate by the council in the exercise of its

functions under this chapter. [1970 ex.s. c 45 § 9.]

RCW 80.50.100 Recommendations to governor--

Approval or rejection of certification-Reconsideration. (I) The council shall report to the governor its recommendations as to the approval or rejection of an

application for certification within twelve months of receipt by the council of such an application, or such later

time as is mutually agreed by the council and the applicant. If the council recommends approval of an applica- .

tion for certification, it shall also submit a draft

certification agreement with the report. The council

shall include conditions in the draft certification agree- .

ment to implement the provisions of this chapter, in- '

eluding, but not limited to, conditions to protect state or

local governmental or community interests affected by

the construction or operation of the energy facility, and

conditions designed to recognize the purpose of laws or '

ordinances, or rules or regulations promulgated thereun- .'C·

der, that are preempted or superseded pursuant to RCW '~

80.50.110 as now or hereafter amended. ~,,:

(2) Within sixty days of receipt ofthe council's report.':

the governor shall take one of the following actions:

(a) Approve the application and execute the draft

certification agreement; or

(b) Reject the application; or

(c) Direct the council to reconsider certain aspects of

the draft certification agreement.

The council shall reconsider such aspects of the draft

certification agreement by reviewing the existing record

of the application or, as necessary, by reopening the

contested case for the purposes of receiving additional

evidence. Such reconsideration shall be conducted expeditiously. The council shall resubmit the draft certification to the governor incorporating any amendments

deemed necessary upon reconsideration. Within sixty

days of receipt of such draft certification agreement, the

governor shall either approve the application and execute

the certification agreement or reject the application. The

certification agreement shall be binding upon execution

by the governor and the applicant.

(3) The rejection of an application for certification by

the governor shall be final as to that application but

shall not preclude submission of a subsequent application for the same site on the basis of changed conditions

or new information. [1977 ex.s. c 371 § 8; 1975-'76 2nd

ex.s. c 108 § 36; 1970 ex.s. c 45 § 10.]

[Cb. SO.50 RCW-p 5J
,

_.__.. _.~.~ ..__ ._ ...

.-.

80.50.100 Energy Facilities--Site Locations

Severability--Effective date--197S-'76 2nd ex.s. c 108: See

notes following RCW 43.21 F.OlO.

~CW 80.50.110 Cbapter governs and supersedes

otber law or regulations--Preemption of regulation

and certification by state. (1) If any provision of this

chapter is in conflict with any other provision, limitation,

or restriction which is now in effect under any other law

of this state, or any rule or regulation promulgated

thereunder, this chapter shall govern and control and

such other law or rule or regulation promulgated thereunder shall be deemed superseded for the purposes of

this chapter.

(2) The state hereby preempts the regulation and certification of the location, construction, and operational

conditions of certification of the energy facilities ineluded under RCW 80.50.060 as now or hereafter

amended. [1975-'76 2nd ex.s. c 108 § 37; 1970 ex.s. c

45 § I L]

Severabillty--Effecthe date--197S-'76 2nd ex.s, c 108: See

nol,eS following RCW 43.21 F.OIO.

RCW 80.50.120 Effect of certification. (1) Subject

to the conditions set forth therein any certification shall

bind the state and each of its departments, agencies, divisions, bureaus, commissions, boards, and political subdivisions, whether a member of the councilor not, as to

the approval of the site and the construction and operation of the proposed energy facility.

(2) The certification shall authorize the person named

therein to construct and operate the proposed energy facil~ty subject only to the conditions set forth in such

certification.

(3) The issuance of a certification shall be in .Iieu of

any permit, certificate or similar document reqUl~ed. by

any department, agency, division, bureau, comrmssron,

board, or political subdivision of this state, whether a

member of the councilor not. [1977 ex.s. c 371 § 10;

1975-'76 2nd ex.s. c 108 § 38; 1970 ex.s. c 45 § 12.]

Severability--Effective date--1975-'76 2nd ex.s. e 108: See

notes following RCW 43.21 F.OIO.

RCW 80.50.130 Revocation or suspension of certification--Grounds. Any certification may be revoked or

suspended: .. .

(1) For any material false statement 10 the application

or in the supplemental or additional statements of fact

or studies required of the applicant when a true answer

would have warranted the council's refusal to recommend certification in the first instance; or

(2) For failure to comply with the terms or conditions

of the original certification; or

(3) For violation of the provisions of this chapte.r,

regulations issued thereunder or order of the council,

(1970 ex.s. c 45 § 13.]

RCW 80.50.140 Review. (I) A final decision pursuant to RCW 80.50.100 on an application for certification shall be subject to judicial review pursuant to

provisions of chapter 34.04 R~~ and this section.. Petitions for review of such a deCISIOn shall be filed 10 the

ICb. BO.SO RCW-p 6)

Thurston county superior court. All petitions fo} revie~ of a decision under RCW 80.50.100 shall be consolidated into a single proceeding before the Thurst.on

county superior court. The Thurston county superior

court shall certify the petition for review to the supreme

. court upon the following conditions:

(a) Review can be made on the administrative record;

(b) Fundamental and urgent interests affe~~i~g the

public interest and development of energy facilities are

involved which require a prompt determination;

(c) An appeal to the supreme court would likely be

made regardless of thc determination of the Thurston

county superior court; and

(d) The record is complete for review.

The Thurston county superior court shall assign a petition for review of a decision under RCW 80.50.100 for

hearing at the earliest possible date and shall expedite

such petition in every way possible. If the court finds

that review cannot be limited to the administrative

record as set forth in subparagraph (a) of this subsection

because there are alleged irregularities in the procedure

before the council not found in the record, but finds that

the standards set forth in subparagraphs (b), (c), and

(d) of this subsection are met, the court shall proceed to

take testimony and determine such factual issues raised

by the alleged irregularities and certify the petition and

its determination of such factual issues to the supreme

court. Upon certification, the supreme court shall assign

the petition for hearing at the earliest possible date, and

it shall expedite its review and decision in every way

possible. . .

(2) Objections raised by any party 10 interest concerning procedural error by the council shall .be. filed

with the council within sixty days of the comrrussion of

such error, or within thirty days of the first public hearing or meeting of the council at which the general subject matter to which the error is related is discussed,

whichever comes later. or such objection shall be deemed

waived for purposes of judicial review as provided in this

section.

(3) The rules and regulations adopted by the counc!1

shall be subject to judicial review pursuant to the provisions of chapter 34.04 RCW. [1981 c 64 § 3; 1977 ex.s.

c 371 § 11; 1970 ex.s. c 45 § 14.]

RCW 80.50.150 Enforcement of compliance--Peoalties (as

amended by 1979 c 4)). (I) The courts are authorized to grant su~h

restraining orders, and such temporary and permanent injunctive ~ehef

as is necessary to secure compliance with this chapter and/or with a

site certification agreement issued pursuant to this chapte~ or National Pollutant Discharge Elimination System (hereafter In thIS section. NPDES) permit issued by the council pursuant to chapter 90.48

RCW. The court may assess civil penalties in an amount not less than

one thousand dollars per day nor more than twenty-fiv~ thousa~d d?llars per day for each day of construction or operation I.n mate!lal ~Iolation of this chapter, or in material violation of any site certification

agreement issued pursuant to this chapter or in violation of any Np·

DES permit issued by the council pursuant to chapter 90.48 RC~.

The court may charge the expenses of an enforcement action relating

to a site certification agreement under this section, including. but not

limited to, expenses incurred for legal services and expert test~mony,

against any person found to be in material violation of the provisions of

such certification: Provided, That the expenses of a person found not to

be in material violation of the provisions of such certification, including. but not limited .to, expe.nses. incurred for legal se.':"i.c~. ~nd expc---",-

(1983 Laws)
Energy Facilities-Site Locations 80.50.150

F~?; <:»

testimony, may be charged against the person or persons bringing an

enforcement action or other action under this section.

(2) Wilful violation of any provision of this chapter shall be a gross

misdemeanor.

(3) Wilful or criminally negligent. as defined in RCW

9A.08.010(dl. violation of any provision of an NPDES permit issued

by the council pursuant to chapter 90.48 RCW shall be deemed a

crime, and upon conviction thereof shall be punished by a fine of up to

twenty-five thousand dollars per day and costs of prosecution. Any violation of this subsection shall be a gross misdemeanor.

(4) Any person knowingly making any false statement, representation, or certification in any document in any NPDES form, notice, or

report required by an NPDES permit shall be deemed guilty of a

crime, and upon conviction thereof shall be punished by a fine of up to

ten thousand dollars and costs of prosecution.

(5) Every person who violates the provisions of certificates and permits issued or administered by the council shall incur, in addition to

any other penalty as provided by law, a penalty in an amount of up to

five thousand dollars a day for every such violation. Each and every

such violation shall be a separate and distinct offense, and in case of a

continuing violation, every day's continuance shall be and be deemed

to be a separate and distinct violation. Every act of commission or

omission which procures, aids, or abets in the violation shall be considered a violation under the provisions of this section and subject to the

penalty provided in this section. The penalty provided in this section

shall be imposed by a notice in writing, either by certified mail with

return receipt requested or by personal service, to the person incurring

the same from the council describing such violation with reasonable

particularity. The council may, upon written application therefor received within fifteen days after notice imposing any penalty is received

by the person incurring the penalty, and when deemed in the best interest to carry out the purposes of this chapter, remit or mitigate any

penalty provided in this section upon such terms as the council shall

deem proper, and shall have authority to ascertain the facts upon all

such applications in such manner and under such regulations as it may

deem proper. Any person incurring any penalty under this section may

appeal the same to the council. Such appeals shall be filed within

thirty days of receipt of notice imposing any penalty unless an application for remission or mitigation is made to the council. When an application for remission or mitigation is made, such appeals shall be

filed within thirty days of receipt of notice from the council setting

forth the disposition of the application. Any penalty imposed under

this section shall become due and payable thirty days after receipt of a

notice imposing the same unless application for remission or mitigation

is made or an appeal is filed. When an application for remission or

mitigation is made, any penalty incurred hereunder shall become due

and payable thirty days after receipt of notice setting forth the disposition of the application unless an appeal is filed from such disposition.

Whenever an appeal of any penalty incurred hereunder is filed. the

penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part. If the amount of any penalty is not paid to the

council within thirty days after it becomes due and payable, the attorney general, upon the request of the council, shall bring an action in

the name of the state of Washington in the superior court of Thurston

county or of any county in which such violator may do business, to recover such penalty. In all such actions the procedure and rules of evidence shall be the same as an ordinary civil action except as otherwisc

provided in this chapter. All penalties recovered under this section

shall be paid into Ihe state treasury and credited 10 Ihe general fund.

(6) Civil proceedings 10 enforce Ihis chapter may be brought by tbc

allorney general or the prosecuting uuorney of any county affected by

the violation on his own motion or at the request of the council. Criminal proceedings to enforce this chapter may be brought by the prosecuting attorney of any county affected by the violation on his own

motion or at the request of the council.

(7) The remedies and penalties in this section, both civil and criminal, shall be cumulative and shall be in addition to any other penalties

and remedies available at law, or in equity, to any person. [1979 c 41 §

I; 1977 ex.s. c 371 § 12; 1970 ex.s. c 45 § 15.J

RCW 80.50.150 Enforcement of compliance-Penalties (as

amended by 1979 ex.s, c 154). (I) The courts are authorized to grant

such restraining orders, and such temporary and permanent injunctive

relief as is necessary to secure compliance with this chapter and/or

(1983 Laws)

with a site certification agreement issued pursuant to this chapter or a

National Pollutant Discharge Elimination System (hereafter in this

section, NPDES) permit issued by the council pursuant to chapter 90-

.48 RCW or any permit issued pursuant to RCW 80.50.040( 14). The

court may assess civil penalties in an amount not less than one thousand dollars per day nor more than twenty-five thousand dollars per

day for each day of construction or operation in material violation of

this chapter, or in material violation of any site certification agreement

issued pursuant to this chapter, or in violation of any NPDES permit

issued by the council pursuant to chapter 90.48 RCW, or in violation

of any permitissued pursuant to RCW 80.50.040(14). The court may

charge the expenses of an enforcement action relating to a site certification agreement under this section. including, but not limited to, ex- penses incurred for legal. services and expert testimony, against any

person found to be in material violation of the provisions of such certification: Provided. That the expenses of a person found not to be in

material violation of the provisions of such certification, including, but

not limited to, expenses incurred for legal services and expert testimony, may be charged against the person or persons bringing an enforcement action or other action under this section.

(2) Wilful violation of any provision of this chapter shall be a gross

misdemeanor. .

(3) Wilful or criminally negligent. as defined in RCW

9A.08.010(dl, violation or any provision of an NPDES permit issued

by the council pursuant to chapter 90.48 RCW or any permit issued by

the council pursuant to RCW 80.50.040(14) or any emission standards

promulgated by the council in order to implement the Federal Clean

Air Act and the state implementation plan with respect to energy facilities under the jurisdiction provisionsof this chapter shall be deemed

a crime, and upon conviction thereof shall be punished by a fine of up

to twenty-five thousand dollars per day and costs of prosecution. Any'

violation of this subsection shall be a gross misdemeanor.

(4) Any person knowingly making any false statement, representation, or certification in any document in any NPDES form, notice, or

report required by an NPDES permit or in any form, notice, or report

required for or by any permit issued pursuant to *RCW 80.50.090(14):-

shall be deemed guilty of a crime, and upon conviction thereof shall be'

punished by a fine of up to ten thousand dollars and costs of

prosecution.

(5) Every person who violates the provisions of certificates and per':'

mits issued or administered by the council shall incur, in addition to .

any other penalty as provided by law, a penalty in an amount of up to:

five thousand dollars a day for every such violation. Each and every

such violation shall be a separate and distinct offense, and in case of a.

continuing violation. every day's continuance shall be and be deemed

to be a separate and distinct violation. Every act of commission or

omission which procures, aids, or abets in the violation shall be consid- .

ered a violation under the provisions of this section and subject to the

penalty provided in this section. The penalty provided in this section

shall be imposed by a notice in writing, either by certified mail with

return receipt requested or by personal service, to the person incurring

the same from the council describing such violation with reasonable

particularity. The council may. upon written application therefor received within fifteen days after notice imposing any penalty is received

by the person incurring the penalty, and when deemed in the best interest to carry OUI [he purposes of this chapter, remit or mitigate any

penalty provided in this section upon such terms as the council shall

deem proper, and shall have authority to ascertain the facts upon all

such applications in such manner and under such regulations as it may

deem proper. Any person incurring any penalty under this section may

appeal thc same 10 the council. Such appeals shall be filed within

thirty days of receipt or notice imposing any penalty unless an applicalion for remission or miugution is made III the. council. When an application for remission or mitigation is made, such appeals shall be

filed within thirty days of receipt of notice from the council setting

forth the disposition of the application. Any penalty imposed under

this section shall become due and payable thirty days after receipt.of a

notice imposing the same unless application for remission or mitigation

is made or an appeal is filed. When an application for remission or

mitigation is made, any penalty incurred hereunder shall become due

and payable thirty days after receipt of notice setting forth the disposition of the application unless an appeal is filed from such disposition.

Whenever an appeal of any penalty incurred hereunder is filed, the

penalty shall become due and payable only upon completion of all re- view proceedings and the issuance of a final order confirming the penalty in whole or in part. If the amount of any penalty is not paid to the

(Cb; 80.50 RCW-1' 7)

"
80.50.150

.-.

Energy Facilities--Site Locations

council within thirty days after it becomes due and payable. the attorney general, upon the request of the council, shall bring an action in

the name of the state of Washington in the superior court of Thurston

county or of any county in which such violator may do business, to recover such penalty. In all such actions the procedure and rules of evidence shall be the same as an ordinary civil action except as otherwise

provided in this chapter. All penalties recovered under this section

shall be paid into the state treasury and credited to the general fund.

. (6) Civil proceedings to enforce this chapter may be brought by the

attorney general or the prosecuting attorney of any county affected by

the violation on his own motion or at the request of the council. Criminal proceedings to enforce this chapter may be brought by the prosecuting attorney of any county affected by the violation on his own

motion or at the request of the council.

(7) The remedies and penalties in this section, both civil and criminal, shall be cumulative and shall be in addition to any other penalties

and remedies available at law, or in equity, to any person. [1979 ex.s. c

254 § 2; 1977 ex.s, c 371 § 12; 1970 ex.s. c 45 § 15.]

Remer's note: (I) RCW 80.50.150 was amended twice during the

1979 legislative sessions, each without reference to the other.

Fer rule of construction concerning sections amended more than

once at consecutive sessions of the same legislature, see RCW

1.12.025.

-(2) The reference to RCW 80.50.090(14) appears to be in error;

that section has only four subsections and concerns public hearings, not

issuance of permits. RCW 80.50.040(14) relates \0 issuance of permits.

RCW 80.50.160 Availability of information. The

council shall make available for public inspection and

copying during regular office hours at the expense of

any person requesting copies, any information filed or

submitted pursuant to this chapter. [1970 ex.s, c 45 §

16.)

RCW 80.50.175 Study of potential sites--

Fee--Disposition of payments. (1) In addition to all

other powers conferred on the council under this chapter, the council shall have the powers set forth in this

. section.

(2) The council, upon request of any potential applicant, is authorized, as provided in this section, to conduct a preliminary study of any potential site prior to.

receipt of an application for site certification. A fee of

ten thousand dollars for each potential site, to be applied

toward the cost of any study agreed upon pursuant to

subsection (3) of this section, shall accompany the request and shall be a condition precedent to any action on

the request by the council.

(3) After receiving a request to study a potential site,

the council shall commission its own independent consultant to study matters relative to the potential site.

The study shall include, but need not be limited to, the

preparation and analysis of environmental impact information for the proposed potential site and any other

matter the council and the potential applicant deem essential to an adequate appraisal of the potential site. In

conducting the study, the council is authorized to cooperate and work jointly with the county or counties in

which the potential site is located, any federal, state, or

local governmental agency that might be requested to

comment upon the potential site, and any municipal or

public corporation having an interest in the matter. The

full cost of the study shall be paid by the potential applicant: Provided, That such costs exceeding a total of

-r--~~------------- ---~

leb. 80.50 RCW-p 81

ten thousand dollars shall be payable subject to the potential applicant giving prior approval to such excess

amount.

(4) Any study prepared by the council pursuant to

subsection (3) of this section may be used in place of the

"detailed statement" required by RCW

43.21 C.030(2)(c) by any branch of government except

the council created pursuant to chapter 80.50 RCW.

(5) All payments required of the potential applicant

under this section are to be made to the state treasurer,

who in turn shall pay the consultant as instructed by the

council. All such funds shall be subject to state auditing

procedures. Any unexpended portions thereof shall be

returned to the potential applicant.

(6) Nothing in this section shall change the requirements for an application for site certification or the requirement of payment of a fee as provided in RCW

80.50.071, or change the time for disposition of an application for certification as provided in RCW

80.50.100.

(7) Nothing in this section shall be construed as preventing a city or county from requiring any. information

it deems appropriate to make a decision approving a

particular location. [1983 c 3 § 205; 1977 ex.s. c 371 §

13; 1975-'76 2nd ex.s. c 108 § 40; 1974 ex.s. cliO § 2.]

Se,erabiUty--Effecthe date--1975-'76 2nd ex.s, c 108: See

notes following RCW 43.2IF.010.

RCW 80.50.180 Proposals and actions by other

state agencies and local political subdivisions pertaining

to energy facilities exempt from "detailed statement" required by RCW 43.21C.030. Except for actions of the

council under chapter 80.50 RCW, all proposals for legislation and other actions of any branch of government

of this state, including state agencies, municipal and

public corporations, and counties, to the extent the legislation or other action involved approves, authorizes,

permits, or establishes procedures solely for approving,

authorizing or permitting, the location, financing or

construction of any energy facility subject to certification under chapter 80.50 RCW, shall be exempt from

the "detailed statement" required by RCW 43.21 C.030.

Nothing in this section shall be construed as exempting

any action of the council from any provision of chapter

43.21C RCW. [1977 ex.s. c 371 § 14.J

RCW 80.50.190 Disposition of receipts from applicants. The state general fund shall be credited with all

receipts from applicants paid to the state pursuant to

chapter 80.50 RCW. Such funds shall be used only by

the council for the purposes set forth in chapter 80.50

RCW. All expenditures shall be authorized by law.

[1977 ex.s. c 371 § 15.]

RCW 80;50.800 Rules of thermal plant site evaluation council to continue until amended or rescinded. All

rules of the thermal power plant site evaluation council

in effect on March IS, 1976 shall continue in full force

and effect until amended or rescinded by the energy facility site evaluation council after March IS, 1976 .

. [1975:-'76__~nd_~x:.:'. c .!..O~ §_ 42.]

(1983 Laws)

_•.:....

·(2#!:

":.~'~~'

.....;..
Energy Facilities--Site Locations

Sennbllily-Effte:live dale---1975-'76 2nd ex.s, c 108: See

..r--.... notes following RCW 43.21 F.OIO.

RCW 80.50.900 Severability--1970 ex.s, c 45. If

any provision of this act, or its application to any person

or circumstance is held invalid, the remainder of the act,

or the application of the provision to other persons or

circumstances, is not affected. [1970 ex.s. c 45 § 17.)

RCW 80.50.901 Severability--1974 ex.s, cliO. If

any provision of this 1974 act, or its application to any

person or circumstance is held invalid, the remainder of

the act, or the application of the provision to other persons or circumstances, is not affected. [1974 ex.s. c 110

§ 3.]

RCW 80.50.902 Severability--1977 ex.s. c 371. If

any provision of this 1977 amendatory act, or its application to any person or circumstance is held invalid, the

remainder of the act. or the application of the provision

to other persons or circumstances is not affected. [1977

ex.s. c 371 § 20.)

;.:~:~~~ .....~,

...........

(1983 Laws)

80.50.902

(Cb. 80.50 RCW-p 9)