Stop B2H Coalition v. Dept. of EnergyStop B2H Coalition v. Dept. of Energy
The final order of the Energy Facility Siting Council is affirmed.
On judicial review from the Energy Facility Siting Council.*
Karl G. Anuta, Law Office of Karl G. Anuta, PC, Portland, argued the cause and filed the brief for petitioner STOP B2H Coalition. Also on the briefs was Mike J. Sargetakis, Crag Law Center, Portland.
Hailey R. McAllister, Oakland, California, argued the cause for petitioner Michael McAllister. Jesse A. Buss, Willamette Law Group, PC, Oregon City, filed the brief for petitioner on review. Also on the brief was Hailey R. McAllister, Oakland, California.
Irene Gilbert, La Grande, filed the brief pro se.
Patricia G. Rincon, Assistant Attorney General, Salem, argued the cause and filed the briefs for respondents Oregon Department of Energy and Oregon Energy Facility Siting
Sara Kobak, Schwabe Williamson & Wyatt, PC, Portland, argued the cause and filed the briefs for respondent Idaho Power Company. Also on the briefs were Andrew J. Lee, Portland, and Lisa Rackner and Jocelyn C. Pease, McDowell Rackner & Gibson, PC, Portland.
Anne Morrison, La Grande, filed the brief for amicus curiae Anne Morrison, Attorney.
Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog, Bushong, and James, Justices.**
BUSHONG, J.
The final order of the Energy Facility Siting Council is affirmed.
Petitioners seek review of an order of the Energy Facility Siting Council (EFSC) approving an Idaho Power Company (Idaho Power) application for a site certificate to construct a high-voltage electrical transmission line from Boardman, Oregon, to Hemingway, Idaho. Petitioner STOP B2H Coalition (Stop B2H) contends that EFSC erred in the following ways: (1) denying Stop B2H‘s request for full party status in the contested case proceedings; (2) granting an exception or variance to noise level requirements; (3) modifying the governing rule to limit the noise assessment to landowners within one-half mile of the transmission line; and (4) misapplying EFSC‘s rules on the visual impacts from the transmission line.
Petitioner Michael McAllister (McAllister) contends that EFSC erred by failing to require Idaho Power to include in its application an “environmentally preferable” location for a segment of the transmission line in Union County.
Petitioner Irene Gilbert (Gilbert) contends that EFSC erred by (1) denying Gilbert‘s request for full party status; (2) failing to document the impacts on historic properties and mitigation measures; (3) delegating future approval of mitigation plans to the Oregon Department of Energy (ODOE); (4) relying on federal standards to determine mitigation requirements for historic properties; and (5) modifying a mandatory site certificate condition without rulemaking.
Applying the governing standard of review, we affirm EFSC‘s final order approving the site certificate for this transmission line for the reasons stated below.1
I. BACKGROUND
A. Statutory Framework
A high-voltage transmission line is an “energy facility” that cannot be constructed or operated in Oregon without a site certificate from EFSC.2
If ODOE determines that an application is complete, it issues a draft proposed order and gives the public an opportunity to comment.
To issue a site certificate, EFSC must find by a preponderance of the evidence that the facility complies with (1) the standards adopted by EFSC and (2) “all other Oregon
The stated purpose of this statutory scheme is to establish “a comprehensive system for the siting, monitoring and regulating of the location, construction and operation of all energy facilities in this state.”
We examined this statutory scheme in Marbet v. Portland Gen. Elect., 277 Or 447, 449, 561 P2d 154 (1977), “the first contested proceeding under the energy facility siting act” after its enactment in 1971. There, we pointed out that the statute “assigns the council a wide range of duties relating to power facilities in this state.” Id. at 450. The statute “reflects a legislative policy to centralize these responsibilities in the council.” Id. Regulatory concerns “previously pursued through *** separate agencies are now to find expression through special advisory groups, *** interagency coordination, *** and in the council‘s procedures.” Id.
B. Proceedings Below
The following overview—summarized from EFSC‘s final order and not disputed by the parties—provides context for the issues raised in this case.
Idaho Power submitted its notice of intent to apply for a site certificate for the transmission line at issue in
ODOE issued its first project order in March 2012, and Idaho Power submitted its preliminary application for a Site Certificate in February 2013. Over the next five years, ODOE amended the project order twice, while Idaho Power amended its preliminary application, partly in response to input from the public and other agencies.
One such agency was BLM. The National Environmental Policy Act (NEPA) had required BLM to prepare an Environmental Impact Statement (EIS) for the project.
Idaho Power had included that route—along with other alternatives—in its preliminary application, but it did not include the Glass Hill route in its amended application. In written testimony, Idaho Power explained why it decided not to include the Glass Hill route:
“*** Idaho Power has worked to develop an acceptable route through Union County for over a decade. Early on, Idaho Power considered the Glass Hill Route, along with at least one other route in the vicinity of Morgan Lake. However, the Glass Hill Route was confronted with substantial backlash from the affected landowners and other interested parties, some of which formed the Glass Hill Coalition specifically to challenge that route. The Confederated Tribes of the Umatilla Indian Reservation also expressed disfavor for the Glass Hill Route due to impacts to cultural resources. The Morgan Lake Alternative was developed
In September 2018, Idaho Power finalized its application. ODOE issued a draft proposed order recommending approval of the application, and EFSC appointed a hearing officer; public notice was given, and a public comment period was opened. Petitioners Stop B2H, McAllister, and Gilbert submitted comments during that public comment period. In July 2020, ODOE issued a proposed order and set a deadline for interested parties to request party status in the contested case proceedings. Over 50 petitioners—including, as relevant here, Stop B2H and Gilbert—asked to participate as full parties.
In late 2020, the hearing officer issued an order on the petitions for party status, granting only limited party status to Stop B2H and Gilbert, among others. Stop B2H and Gilbert appealed that ruling to EFSC. EFSC conducted a hearing and ultimately agreed with the hearing officer that Stop B2H and Gilbert would only be allowed to participate in the contested case proceeding as limited parties.
The hearing officer issued the first case management order for the contested case proceedings in January 2021 and began receiving witness testimony and other evidence. The evidentiary record for the contested case closed on January 31, 2022. The hearing officer issued a proposed contested case order on May 31, 2022. EFSC conducted a hearing on the hearing officer‘s proposed contested case order in August 2022. EFSC then issued a draft final order and held its final hearing on September 27, 2022. After that hearing, the EFSC members voted unanimously to approve Idaho Power‘s application.
EFSC‘s final order, dated September 27, 2022, is 729 pages long (excluding attachments). The order describes the procedural history, opportunities for public input, and the
C. Standard of Review
“We review final orders of the council for errors of law, abuse of agency discretion, and lack of substantial evidence in the record to support the challenged findings of fact.” Save Our Rural Oregon v. Energy Facility Siting, 339 Or 353, 356, 121 P3d 1141 (2005); see
Many of the parties’ assignments of error require us to construe and apply various provisions of the energy facility siting act. In construing the statute, we attempt to discern the intent of the legislature that enacted it.
Some assignments of error require us to apply agency rules and review EFSC‘s interpretation of those rules. We review an agency‘s interpretation of a rule to see if the agency has “erroneously interpreted a provision of law.”
II. DISCUSSION
A. Stop B2H‘s Assignments of Error
1. First Assignment: Denial of Full Party Status
Stop B2H applied to be a full party in the contested case proceedings but was only allowed to participate as a limited party. Stop B2H contends that EFSC has no authority to override its choice to participate as a full party.
The Oregon Administrative Procedures Act (APA) defines “party” to include any person or entity “requesting to participate before the agency as a party or in a limited party status which the agency determines either has an interest in the outcome of the agency‘s proceeding or represents a public interest in such result.”
Under the model rules, an agency is not bound by the party‘s “request” and is authorized to treat a party‘s petition to participate as a party “as a petition to participate as a limited party.”5 That conclusion is supported by our recent decision in Friends of Columbia Gorge v. Energy
In reaching that conclusion, we discussed the legislative history of the APA provisions on “parties” and “limited parties” in a contested case proceeding. The statute originally distinguished between parties “entitled as of right” to participate and parties “permitted to intervene by the agency.” Id. at 129. Parties entitled “as of right” could fully participate in the proceeding, but “the APA allowed agencies to limit the participation of intervening parties.” Id.
A 1979 amendment to the APA “inserted the concept of limited parties into the definition of ‘party’ that exists today.” Id. at 131. As a result, “a person requesting to participate before the agency—in the nature of an intervenor—might be either a full party or a limited party in a particular contested case proceeding[.]” Id. at 132. An agency “may *** restrict rights of participation for limited parties in a manner that it cannot for full parties.” Id.; see
Applying those principles here, under the energy facility siting act, EFSC “may permit” Stop B2H to participate in the contested case, just as an agency could “permit” an interested party to intervene under earlier versions of the APA. Under the model rules, EFSC could treat a petition to participate as a full party “as a petition to participate as a limited party” under OAR 137-003-0005(8), just as an
Stop B2H also argues that EFSC did not apply the factors in OAR 137-003-0005(7) in evaluating its application to be a full party. That rule provides:
“(7) In ruling on petitions to participate as a party or a limited party, the agency shall consider:
“(a) Whether the petitioner has demonstrated a personal or public interest that could reasonably be affected by the outcome of the proceeding;
“(b) Whether any such affected interest is within the scope of the agency‘s jurisdiction and within the scope of the notice of contested case hearing;
“(c) When a public interest is alleged, the qualifications of the petitioner to represent that interest;
“(d) The extent to which the petitioner‘s interest will be represented by existing parties.”
Here, EFSC‘s hearing officer addressed over 50 different petitions to appear, most of them asking for full party status. The hearing officer‘s order cited the governing rule, OAR 137-003-0005(7), and expressly discussed the public interest factor of those petitioners seeking to appear as parties, which covers factors (a) and (c) of the rule.6 The hearing officer also stated that petitioners had shown either a personal or public interest in the outcome:
“[L]imited party status is appropriate where, as in this case, a petitioner satisfies the eligibility requirements for participation and has established a personal or public interest in the outcome of the proceeding, but is only qualified to respond to some, but not all, issues to be considered in the contested case.”
“Mindful of the following considerations—the strict eligibility requirements for participation set out in
ORS 469.370 , OAR 345-015-0016(3), and OAR 137-003-0005; the number of petitioners with an interest in the outcome of this contested case requesting to participate as a party; the number and nature of properly raised contested case issues in this matter; and the ALJ‘s duties under OAR 345-015-0023(2) to, among other things, ensure a full, fair and impartial hearing, facilitate the presentation of evidence, maintain order, comply with time limits, and assist the Council in making its decision—I find it appropriate under OAR 137-003-0005(8) and (9), OAR 137-003-0040, and OAR 345-015-0083, to limit successful petitioners’ participation in this contested case to the issues properly raised in their respective petitions for party status.”
(Footnote omitted.)
Although the hearing officer did not expressly address factor (d)—the extent to which Stop B2H‘s interest would be represented by existing parties—the hearing officer allowed all limited parties to participate with respect to the issues raised in their petitions. Given the number of parties and the breadth of the issues raised, there may have been some duplication of interests represented by multiple parties, but the hearing officer‘s order ensured that all issues raised by any party would be considered during this process. Thus, the failure to expressly address factor (d) did not preclude Stop B2H from presenting all the issues it wanted to present during the contested case process. Nothing in the rule precluded the hearing officer from also considering the need to limit party status to keep the proceedings manageable.
Stop B2H does not contend that EFSC abused its discretion in granting it limited party status under that rule or challenge the evidentiary support for any factual findings. We conclude that EFSC (1) had authority to grant limited party status to Stop B2H and (2) considered the factors it was required to consider in making that determination.
It is undisputed that, on occasion, the “corona noise” from the transmission line will exceed the noise limits specified in OAR 340-035-0035(1)(b)(B)(i).7 EFSC concluded that, under the circumstances, it could grant an exception to the noise standards under OAR 340-035-0035(6)(a) and a variance under
Stop B2H contends that EFSC lacks authority to grant either an exception or a variance. According to Stop B2H, only the Department of Environmental Quality (DEQ) has authority to grant exceptions to the noise standards under OAR 340-035-0035(6), and only the Environmental Quality Commission (EQC) has authority to grant variances under
EFSC explained in its final order why it addressed Idaho Power‘s requests for an exception and variance instead of referring Idaho Power to EQC and DEQ. EFSC stated that it “assumes the authority as the decision maker to interpret and implement” the noise rules because (1) “the Legislative Assembly withdrew all funding for implementing and
Thus, EFSC addressed Idaho Power‘s requests for an exception or variance only because EQC and DEQ had made it clear by rule—and confirmed in the directive to EFSC—that EQC and DEQ would not address those requests.10 Under those circumstances, it would have been futile for EFSC to refer Idaho Power‘s exception/variance requests to EQC and DEQ.
The question, though, is whether EFSC‘s practical solution to this problem exceeded its authority under those circumstances. We conclude that it did not. The energy facility siting act (1) grants EFSC authority to adopt standards for a particular facility in a wide variety of areas that otherwise would be governed by other state agencies (
Stop B2H‘s contention that the legislature intended to give EFSC authority to grant exceptions only where the statute stated that authority expressly—as in
Stop B2H also contends that, even if EFSC had the authority to grant a variance or an exception, it erred in doing so because the criteria for granting an exception or a variance were not met. Stop B2H primarily contends that noise violations are not “unusual or infrequent” as required for an exception under OAR 340-035-0035(6)(a).13 Stop B2H contends that the evidence in the record established that weather would cause noise violations 48 days a year, which (it argues) is more than “unusual or infrequent.”
EFSC determined that noise exceedances would be unusual or infrequent based on the evidence showing that exceedances may occur only in less than two percent of the total hours in a year. To the extent Stop B2H contends that EFSC committed a legal error in interpreting what is meant by “unusual or infrequent” under the rule, we see no error. Nothing in the rule or statute required EFSC to use the number of days instead of the percentage of hours in assessing whether noise exceedances would be unusual
First, we conclude that there was substantial evidence supporting the grant of an exception. EFSC explained in its final order its reason for granting an exception for unusual or infrequent events:
“*** Council finds that exceedances along the transmission line would be an infrequent event because exceedances are expected to occur less than two percent of the total hours in a given year (because they are projected to occur during foul weather, and foul weather events are infrequent in the project area, and other circumstances need to occur simultaneously to result in an exceedance, i.e., low ambient noise environment and transmission line operating at full capacity). Therefore, under OAR 340-035-0035(6)(a)[,] Council grants an exception to the facility, subject to the noise control conditions described in this Order.”
That conclusion was based on weather data evaluated by a meteorologist and detailed sound measurement studies summarized in the final order. That evidence constitutes substantial evidence supporting EFSC‘s conclusion that noise exceedances would be “unusual or infrequent,” thereby justifying an exception under OAR 340-035-0035(6)(a).
Second, we also conclude that there was substantial evidence to support granting a variance. Idaho Power had requested a variance from the “ambient antidegradation standard” in OAR 340-035-0100.15 Based on the noise analysis studies and weather data summarized in the final order, EFSC granted a variance to the ambient antidegradation
Stop B2H disagrees with EFSC‘s findings and conclusions, but it has not demonstrated that the findings are unsupported by substantial evidence given the studies and analyses summarized in the final order, and it has not persuaded us that EFSC‘s conclusions are legally erroneous in any respect.
3. Third Assignment: Modifying Rule to Limit Noise Assessment to Landowners Within One-Half Mile of the Transmission Line
Former OAR 345-021-0010(1)(x)(E) (Jan 1, 2019) generally requires applicants to submit a list of noise-sensitive landowners within one mile of the proposed facility.16 Here, ODOE‘s project order only required Idaho Power to list landowners within a half mile of the transmission line “because of the linear nature of the proposed facility.” Stop B2H contends that ODOE could not change the one-mile requirement by project order without engaging in rulemaking.
Here, ODOE in effect modified the one-mile requirement—or determined that the one-mile requirement was “not applicable” to this transmission line—in a way that was authorized by the rule. When a rule expressly authorizes an agency to modify a condition to address a specific case, the modification is not an amendment of the rule. A rule is an agency directive “of general applicability.”
Thus, rulemaking was not required. There was no legal error in modifying the one-mile requirement specified in former OAR 345-021-0010(1)(x)(E) (Jan 1, 2019) for this transmission line. Stop B2H does not contend that ODOE abused its discretion in making that modification or challenge the evidentiary support for any factual findings.17
4. Fourth Assignment: Assessing Visual Impacts
Under OAR 345-022-0080(1), EFSC can issue a site certificate only if “the design, construction and operation of the facility, taking into account mitigation, are not likely to result in significant adverse visual impacts to significant or important scenic resources.” “Significant” is defined in part to mean “having an important consequence *** based upon the magnitude and likelihood of the impact on the affected human population[.]” OAR 345-001-0010(29).
Moreover, as explained in the final order, the methodology used to assess the visual impacts of the transmission line did take viewers’ subjective perceptions into account. Idaho Power developed a detailed visual-impact assessment methodology and prepared a comprehensive visual impact study. The assessment “incorporated the BLM visual ‘sensitivity level’ criterion and the [US Forest Service] visual ‘concern’ criterion into its methodology, both of which measure the degree to which viewers subjectively value a visual resource.”18 Stop B2H disagrees with how the methodology took subjective perceptions into account and the conclusions EFSC reached in assessing the visual impacts of the facility, but Stop B2H has not identified a legal error in EFSC‘s use of Idaho Power‘s methodology to assess whether the transmission line would result in significant adverse visual impacts to scenic resources. Stop B2H does not challenge the evidentiary support for any factual findings or contend that EFSC abused its discretion in assessing the visual impacts of the transmission line.
B. McAllister‘s Assignment of Error
As noted above, for a portion of the transmission line running through Union County, Idaho Power‘s preliminary application included an alternative known as the Glass Hill route, but the final application did not include the Glass Hill route, proposing instead two other alternative routes
McAllister contends here that
We need not decide the preservation issue, because we agree with Idaho Power and the state that the argument fails on its merits.19 Before addressing the merits, however, we first address the jurisdictional argument.
In Teledyne Wah Chang, EFSC had approved a site certificate for a waste disposal facility at a location different from the location specified in the application. We reversed, noting that the statutory standard governing this type of facility required EFSC to determine whether “the site” specified in the application “is suitable for disposal of such wastes.” Id. at 258 (citing
The statutory standard at issue here is different. This transmission line traverses a 300-mile “corridor.” It is not placed on a single “site” that is subject to EFSC review to determine whether that site is “suitable” for the proposed facility. The statute governing EFSC‘s review of a transmission line application broadly requires EFSC to review “the application” for compliance with legal standards and issue a final order “either approving or rejecting” that application.
Thus, Idaho Power and the state are correct that EFSC is limited to reviewing the application, but reviewing the application did not necessarily remove from EFSC‘s jurisdiction an alternative route that Idaho Power addressed during the corridor selection assessment process. Because McAllister has not challenged the corridor selection assessment process, we decline to further address EFSC‘s review of that process. We turn to the merits of McAllister‘s argument that
“For a facility that is subject to and has been or will be reviewed by a federal agency under the National Environmental Policy Act,
42 U.S.C. Section 4321 , et seq., the council shall conduct its site certificate review, to the maximum extent feasible, in a manner that is consistent with and does not duplicate the federal agency review. Such coordination shall include, but need not be limited to:“(a) Elimination of duplicative application, study and reporting requirements;
“(b) Council use of information generated and documents prepared for the federal agency review;
“(c) Development with the federal agency and reliance on a joint record to address applicable council standards;
“(d) Whenever feasible, joint hearings and issuance of a site certificate decision in a time frame consistent with the federal agency review; and
“(e) To the extent consistent with applicable state standards, establishment of conditions in and site certificate that are consistent with the conditions established by the federal agency.”
Thus, the text of the statute only required EFSC‘s “coordination” with BLM and required it to conduct its site review, “to the maximum extent feasible,” in a manner that was “consistent with and d[id] not duplicate” the BLM review. It also required EFSC to establish conditions in the site certificate “that [were] consistent with the conditions established by the federal agency.”
“Coordination” means the “combination in suitable relation for most effective or harmonious results.” Webster‘s Third New Int‘l Dictionary 502 (unabridged ed 2002). “Consistent with” generally means “marked by harmony, regularity, or steady continuity throughout” or “coexisting and showing no noteworthy opposing, conflicting, inharmonious, or contradictory qualities or trends.” Id. at 484. Those terms govern EFSC‘s process—that is, the “manner” in which EFSC must “conduct its site certificate review“—but they do not mandate any particular result, including choosing a route deemed preferable during the NEPA process.
Moreover, NEPA “does not mandate particular results, but simply provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions.” Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F3d 800, 814 (9th Cir 1999) (internal quotation marks omitted); see also Robertson v. Methow Valley Citizens Council, 490 US 332, 350, 109 S Ct 1835, 104 L Ed 2d 351 (1989) (“If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.“).
McAllister also contends that EFSC effectively denied him a fair process to advocate in favor of the Glass Hill alternative. But as noted above, McAllister was able to present his arguments in favor of the Glass Hill alternative during the public comment period and the contested case proceedings. Idaho Power explained as part of the corridor selection assessment why it chose not to include the Glass Hill alternative in its final application. And we have addressed the merits of McAllister‘s legal argument under
C. Gilbert‘s Assignments of Error
1. First Assignment: Denial of Full Party Status
Gilbert appears to contend that EFSC was legally required to grant her request for full party status. We disagree, for the reasons stated above on Stop B2H‘s first assignment of error.
2. Second, Third, and Fourth Assignments: Impacts on Historic Sites and Mitigation Efforts
These assignments of error all involve EFSC‘s treatment of historic sites.
“Impacts of the facility on historic, cultural or archaeological resources listed on, or determined by the State Historic Preservation Officer to be eligible for listing on,
the National Register of Historic Places21 or the Oregon State Register of Historic Properties.”
Gilbert contends in her second, third, and fourth assignments of error that Condition 2 in EFSC‘s final order fails to comply with those statutory and regulatory requirements. That condition states:
”Historic, Cultural, and Archaeological Resources Condition 2: Prior to construction of a phase or segment of the facility, subject to confidential material submission procedures, and based on 1) new survey data from previously unsurveyed areas and 2) the final design of the facility, the certificate holder shall submit to [ODOE], the State Historic Preservation Office (SHPO), and applicable Tribal Governments, for review and [ODOE] approval a final Historic Properties Management Plan (HPMP) Attachment S-9 of the Final Order on [the application for the site certificate]. [ODOE] may engage its consultant to assist in review of the HPMP. The certificate holder shall conduct all construction activities in compliance with the final [ODOE]-approved HPMP.”
Gilbert contends in her third assignment of error that EFSC cannot approve a site certificate subject to ODOE‘s future review and approval of the HPMP, reasoning that EFSC cannot make all the required findings when information is to be developed in the future outside the record of the site certificate approval proceedings.
That argument fails because
“If the Energy Facility Siting Council elects to impose conditions on a site certificate or an amended site certificate, that require subsequent review and approval of a future action, the council may delegate the future review and approval to the State Department of Energy if, in the council‘s discretion, the delegation is warranted under the circumstances of the case.”
If EFSC “elects” to impose conditions that require future review and approval and determines that delegation of that action to ODOE is “warranted under the circumstances,” EFSC‘s decision would be subject to review for abuse of discretion. Gilbert‘s third assignment of error appears to suggest that EFSC abused its discretion because Idaho Power did not survey some private properties that it could have surveyed for impacts on historic sites.24 In Gilbert‘s view, delegating authority to ODOE to assess
Gilbert, however, does not identify any specific private properties that Idaho Power failed to review even though it had the legal authority to enter and survey during the site certificate approval process. EFSC had statutory authority to delegate that assessment to ODOE for future review. We find no abuse of discretion under those circumstances.
In her fourth assignment of error, Gilbert contends that EFSC erroneously allowed Idaho Power to use federal standards for mitigating adverse environmental effects on historic, cultural, and archaeological resources without requiring it to meet more stringent state standards.25 We disagree.
As noted above, former OAR 345-001-0010(33) (June 30, 2020) lists acceptable forms of mitigation. The final order prescribes in Table HCA-4b the specific types of mitigation that EFSC required for this project: design modification (former OAR 345-001-0010(33)(b) (June 30, 2020)), plus “at least one of the” mitigation methods found in former OAR 345-001-0010(33)(c) - (e), “with a demonstrated direct benefit to affected area (county of resource site),” and with the priority of those additional mitigation methods further specified. The final order also requires Idaho Power to demonstrate that any mitigation efforts required by federal “section 106 review”26 are sufficient to meet the state law standards articulated in Table HCA-4b:
“Mitigation established through the federal Section 106 compliance review may be used to satisfy the EFSC mitigation requirement *** if [Idaho Power] can demonstrate that it addresses both the design modifications and the
restoration; preservation and maintenance; or compensation mitigation within affected area (county), as included in the below Table HCA-4b ***. If not duplicated through the federal Section 106 process, the applicant shall establish the scope and scale of Table HCA-4b mitigation, prior to construction, subject to [ODOE] review and approval, in consultation with SHPO, its consultants, or other entities with expertise with historic trails.”
Thus, EFSC required Idaho Power to demonstrate that the mitigation efforts it adopted to comply with federal law would also satisfy state law.
Finally, Gilbert contends in her second assignment of error that EFSC‘s final order is insufficiently specific regarding the impacts on historic sites and the appropriate mitigation necessary for EFSC to “find that the construction and operation of the facility, taking into account mitigation, are not likely to result in significant adverse impacts” to historic sites, OAR 345-022-0090(1).
EFSC‘s final order contains specific information identifying the resources that will be impacted, the extent of those impacts, and how those impacts will be mitigated. Table HCA-2 of the order identifies specific sites and explains the mitigation measures for those sites. For example, one site (number 35MW00227), described as an “Archaeological Site—Road,” is not yet evaluated for eligibility for the National Register of Historic Places, so the federal “section 106” review is not yet complete. Nevertheless, the table sets out the following mitigation information:
“Avoid. Subsurface probing needed. If the Section 106 determination is eligible, applicant will avoid Site # 35MW227 as follows: Approved Route: For the structure work area and pulling & tension site, applicant will relocate or reduce the size of those areas to avoid Site # 35MW227; for the existing road, all improvements will be made within the existing road prism thereby avoiding any new impacts; applicant will flag any portion of the boundary of Site # 35MW227 that occurs within 100 feet of construction activity. West of Bombing Range Road Alternatives 1 & 2: No avoidance measures are necessary as there are no direct impacts proposed for these alternatives.”
3. Fifth Assignment: Whether EFSC Changed a Mandatory Site Certificate Condition Without Rulemaking
Gilbert contends in her fifth assignment of error that EFSC changed a mandatory site certificate condition without going through the required process to amend the rule. OAR 345-025-0006 lists certain conditions that EFSC “must impose *** in every site certificate.” The mandatory condition identified by Gilbert provides:
“Except as necessary for the initial survey or as otherwise allowed for wind energy facilities, transmission lines or pipelines under this section, the certificate holder may not begin construction, as defined in OAR 345-001-0010, or create a clearing on any part of the site until the certificate holder has construction rights on all parts of the site. For the purpose of this rule, ‘construction rights’ means the legal right to engage in construction activities. For wind energy facilities, transmission lines or pipelines, if the certificate holder does not have construction rights on all parts of the site, the certificate holder may nevertheless begin construction, as defined in OAR 345-001-0010, or create a clearing on a part of the site if the certificate holder has construction rights on that part of the site and:
“(a) The certificate holder would construct and operate part of the facility on that part of the site even if a change in the planned route of a transmission line or pipeline occurs during the certificate holder‘s negotiations to acquire construction rights on another part of the site; or
“(b) The certificate holder would construct and operate part of a wind energy facility on that part of the site even if other parts of the facility were modified by amendment of the site certificate or were not built.”
OAR 345-025-0006(5).
”General Standard of Review Condition 7: The certificate holder may begin construction, as defined in OAR 345-001-0010(12), or create a clearing on a part of the site if the certificate holder has construction rights on that part of the site and the certificate holder would construct and operate part of the facility on that part of the site even if a change in the planned route of transmission line occurs during the certificate holder‘s negotiations to acquire construction rights on another part of the site.”
EFSC‘s final order explains that it modified the wording of the rule in drafting General Condition 7 “to remove the language of the condition that does not apply to transmission lines and maintain the portion of the condition that would apply to the facility.” Gilbert does not identify any substantive difference between General Condition 7 and OAR 345-025-0006(5), and we see none.27
III. CONCLUSION
Oregon law limits our review of EFSC‘s final order approving Idaho Power‘s application for a site certificate for the Boardman-to-Hemingway high voltage electricity transmission line to errors of law, abuse of discretion, and substantial evidentiary support for factual findings. Applying that standard, we conclude that EFSC did not err in any of the ways contended by petitioners Stop B2H, McAllister, or Gilbert.
The final order of the Energy Facility Siting Council is affirmed.