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We need testimony for the ODOE Oversight Committee Hearing on Nov 4th

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To:          Joint Legislative Oversight Committee Department of Energy
Re:         Testimony - ODOE Oversight Committee Hearing Nov 4th 

 The State of Oregon’s Energy Siting Process and Department of Energy (ODOE) have long been problematic and I am grateful that this committee has been established to investigate and make recommendations for improving or changing the Department. Thank you for your good work.

 The main problem that I see is that ODOE controls all parts of the siting and oversight of energy developments in the state. They write the rules, apply the rules, interpret the rules, control the hearings process, and monitor compliance with the rules. The ODOE hires their own hearings officers who consistently support the department's recommendations. There is no place to file complaints/appeals  if the hearings officer behaves in an unethical manner. There has been a lack of accountability for the projections energy developers are making, a failure in assuring ongoing compliance with site certificate requirements and a failure to allow public access to the increasing amount of information which is developed or changed after the site certificate is issued.

There is a growing lack of credibility within the Oregon Department of Energy, confirmed and fueled by media coverage, resulting in a lack of trust that their siting process and monitoring processes are fair and neutral. Please consider implementing some of the suggestions below. I understand that there will be multiple options available to you, but please take at least one step forward in the direction of improved accountability, transparency and effective public policy implementation. The first five recommendations are structural in nature and the remaining are more process or procedural.

 Thank you for your time and consideration. Please keep me informed of the work and recommendations of this Committee. 


 Suggestions for Committee Consideration

 #1.  Remove the whole Siting Division or at a minimum, remove the Contested Case process from the control of the Oregon Department of Energy.

 The Contested Case process is probably the biggest “hot button” item within ODOE. This function needs to be transferred out of the department if any credibility to the state’s siting process is to regain trust.

 ODOE has shown little or no interest in addressing problems with the process. They were directed to make changes to the contested case process for amended site certificates two years ago. They have yet to update the rules. The Administrative Judges are employees of the ODOE and they are quick to deny standing to parties opposing development or aspects of a development. They only allow hearings on specific siting requirements as opposed to hearings based upon other related rules such as a decision to ignore timeframes, failure to follow procedures, etc.  They require details in contested case requests that are not required by the statutes or rules; and they have never allowed even one contested case on an amended site certificate no matter how great the changes being proposed are. Finally, they require strict adherence to judicial rules from the public even though this is a quasi-judicial process.  These are just a few of the numerous complaints that have been placed on the record from lay persons, attorneys and organizations throughout the state claiming unprofessional and biased handling of contested cases.

I believe Contested Cases should be transferred to Land Conservation and Development Commission (LCDC). Site certificates are basically a land use determination and LCDC already handles most land use contested cases. This would be a logical fit.

#2.  Eliminate the Energy Facilities Siting Council (EFSC) or separate them from ODOE.

The people on the Council are political appointments. They may not have the expertise to make the decisions regarding the siting of energy developments in the state. As a result, they simply approve whatever recommendations come to them from the ODOE staff. If ODOE is going to be making the decisions, they should be held accountable for those decisions and the results. There is no point in having another layer of bureaucracy when they are not really serving any purpose other than rubber stamping decisions being made by ODOE.

If it is determined that EFSC should still exist, then it should be moved under the Office of Administrative Hearings where it would be required to adhere to the hearing procedures that other agencies are required to follow.

#3.  Move the staff currently responsible for monitoring compliance with the site certificate requirements to Oregon Occupational Safety and Health Division (OSHA).  Include processing of complaints in that position description and allow the public access to the results of the monitoring visits.

 There is a growing lack of credibility within the ODOE resulting in a lack of trust that their monitoring process is fair and neutral.  This perception is magnified by the fact that the monitoring results are not made public.  Currently, monitoring appears to focus on the types of activities occurring at the site rather than evaluating whether or not the site certificate requirements are in place.  There is no third party testing or audit verification to show whether there is compliance with such items as noise to determine if the projections were accurate. Adding to this issue is the fact that a “Public Complaint process” is not consistently available and the results are not compiled so that problems can be categorized, analyzed and systematically addressed. 

 Oregon OSHA is in the business of conducting inspections to determine whether or not businesses are in compliance with regulatory requirements.  Oregon OSHA staff receive ongoing education in relevant topics such as Violation Identification and Documentation, Environmental Hazards, Noise, Report writing, Electrical, etc. which are topics necessary to perform this function effectively.  Oregon OSHA also has Industrial Hygiene staff qualified to do testing, including Noise Monitoring to confirm that developers are not exceeding the limits.  Since the statutes state that the developer is responsible for paying for staff work required to issue and monitor site certificates, this would be budget neutral for Oregon OSHA.  It makes sense to place the monitoring and enforcement duties under an agency which specializes in doing regulatory-type work.

 #4.  Allow the individual Counties to decide whether they want to process Energy Facility Applications, Requests for Amendments, and Site Certificates for any size development that will be constructed within the boundaries of a single county.  This could be a function delegated by the state to counties.

The Oregon Department of Energy is removed from the resources and protections necessary to maintain the quality of life at the local level. They make decisions absent an understanding of the significance of protected areas, local geology, and why local land use plans include the protections they do. The Oregon Department of Energy is quick to revert to the general rules included in the state land use plan and override the wishes and intent of the local communities. Frequently they use the statement "no significant impact" to describe impacts that most people living in an area would consider major impacts on their environment.

Most counties that currently have wind farms or other energy developments have already gone through the siting process for at least one industrial energy development. For example, Baker County, Union County, Morrow County, Umatilla County, Harney County, Sherman County and Deschutes Counties have all sited wind developments. Allowing the siting to occur in the counties impacted by the development is more likely to assure appropriate siting locations which honor the resources important to the people living in the area and supports better relationships between the developers and the communities impacted by the developments.

#5.  Establish a third party location for people to lodge complaints regarding the Department of Energy as well as energy developments (e.g.: wind, gas, solar, transmission, etc).

These complaints could then be tracked and, hopefully, addressed prior to them becoming significant political issues. The information would then be available to the department, the legislature and the public and should reinforce the fact that progress is being made in reducing the number of concerns regarding the department and the site certificates that they are issuing.

Currently there is no designated repository for complaints regarding the Oregon Department of Energy or individual energy developments. As a result, by the time issues raise to the surface, it is often in the form of a newspaper article or other public forum. There would be an advantage to the persons siting energy developments, as well as the legislature in identifying what the bulk of the concerns are as this would provide an opportunity to be proactive in addressing them prior to them becoming larger.

#6.  The minutes of the Energy Facility Siting Council need to include information about the content of the public comments so that the reader knows what the concern was or the recommendation that was made.

The recordings of the Energy Facility Siting Council should be available on line just like the legislature hearings are available for the public to review immediately after the hearings are heard.

The minutes of the meetings are not posted until several months after the meetings are held and they do not include important information regarding the public comments that are made. This means that no action occurs on public comments and the public is discouraged from making comments.

The Energy Facility Siting Council (EFSC) or Department of Energy (ODOE) should be required to make some kind of response to formal public comments. Either answer the question, say what they are going to do about the issue, recognize in writing that they got a comment and what they are going to do about it, or not do anything, etc.

The minutes of the meetings do not say what the public comments were or what the Energy Facility Siting Council action or response is. They only make vague statements that someone made a public comment or that someone made a public comment on a topic, but not what the comment was. The public does not believe that there is any point in making public comments as no one listens or cares what they have to say. The current system makes people believe that it is a waste of their time to even try to give information during the public comment periods since nothing will come of it.

#7.   Require a showing of “need” prior to issuing a site certificate.

There was a presumption that market forces would control the number and timing of applications for site certificates when the rule was enacted. That has not occurred. This has been partially due to the number and amounts of subsidies and tax credits available to wind and solar developments. What has actually occurred is that developers have gone through the process of obtaining site certificates even though there was no market for the energy they would produce. These developers have asked for multiple amendments to the site certificates due to changes in the technology and to keep the site certificates active in the hopes that there will be a market for the energy at some future date.

This has resulted in ODOE spending hundreds of hours processing site certificates and amendments on developments that have never been constructed. In the meantime, the material in the files has become more and more dated. It also has resulted in active site certificates which are for developments that have not been constructed. This makes it difficult to assess the actual impact of these developments on the resources of the state or to have a realistic sense of what the cumulative impacts of the multiple developments will be on the environment and quality of life for those living in proximity to the planned developments.

#8.   Require notice to property owners within one mile of a proposed energy development that a proposal has been made to build a development within a mile of their property.

Currently the notices are only sent to people living within 100, 250 or 500 feet of a proposed development, depending upon the zoning and type of land. The Oregon Department of Energy Rules in Division 20 identify the distances from a wind farm or other energy development used to notify people living around a proposed development that it is planned.

It is common that people who live or own property beyond these distances do not even know that a development is planned until it is too late to make any comments. Individuals with property within one mile of a proposed energy development should receive notice when a Letter of Intent is filed informing that there is a potential development that will be located within a mile of their homes or property. How would you feel if the first you heard that a wind farm was going to be built within 1000 feet of your home was when the developers started to build it?

#9.  Require Department of Energy to implement recommendations from the US Fish and Wildlife Department related to federally protected species or provide documentation regarding why the recommendations lack merit.

The US Fish and Wildlife Department makes ongoing recommendations about how to limit the deaths of federally listed threatened and endangered species. The Department of Energy and Energy Facility Siting Council largely ignores the comments regarding things like setbacks from nest sites for federally endangered birds because they are only required to honor state laws. The rule under OAR 345-022-0070 (2) says" For wildlife species that the Oregon Fish and Wildlife Commission has listed as threatened or endangered under ORS 469.172(2), the design, construction and operation of the proposed facility, taking into account mitigation, are not likely to cause a significant reduction in the likelihood of survival or recovery of the species."

The impacts to wildlife of the state are cumulative; the more energy developments that are built in Oregon, the greater the risk of bringing a species of animals to extinction. This cumulative impact is being ignored for energy developments. The ODOE and EFSC use an arbitrary "Threshold of Concern" before they consider mitigation or changes to reduce the fatalities at wind farms. Continued use of this standard which includes deaths of both state and federally listed threatened and endangered species absent any scientifically valid basis means they are approving the deaths of protected animals. There is no reason to believe that the continued use of this standard will not result in increasing the likelihood of survival or recovery of the species.

Require ODOE to obtain data that supports the determination that the predicted number of threatened and endangered species they are including in their "Threshold of Concern' will not reduce the likelihood of survival or recovery of the species.

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