Administrative Rule Review Report #AR11-012
Legislative Service Office
22-Mar-11
AGENCY: Department of Environmental Quality, Industrial Siting Division.
DATE SUBMITTED: March 21, 2011.
SUBJECT: Chapter 1, Industrial Development Information and Siting Rules and Regulations.
NATURE OF RULES: Legislative and Procedural.
STATUTORY AUTHORITY: W.S. 35-12-105(b), (d) through (f).
DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO: Apparently complete to date. Notice of the proposed adoption of new rules was provided by the LSO as required by W.S. 28-9-103(d). No comments have been received to date.
NOTE: The first draft of the proposed rules were made available for public comment on October 15, 2010. A public meeting and comments were received on the first draft of the proposed rules. A second draft of the rules with substantive changes prompted by comments received on the first draft of the rules was made available for public comment on December 15, 2010. Additional comments were received on the second draft of the proposed rules and a third draft of the rules were made available on February 15, 2011. The third draft of the rules do not appear to contain substantive changes which would necessitate an additional 45-day public comment period under W.S. 16-3-103(a)(ii).
SUMMARY OF RULES:
The Industrial Siting Council ("Council") promulgated amendments to Chapter 1 of the Industrial Development Information and Siting Rules and Regulations to conform to specified rulemaking requirements contained within 2010 Chapter Laws 47 and 97 (2010 SF66 and HB72, respectively) which concern wind energy facilities, to update statutory references, to update practices and general revision of the rules. Many of the sections were renumbered. Substantive amendments to affected sections of Chapter 1 are discussed below.
Section 2. Definitions. - Amends definitions of: "Area or local government primarily affected by the proposed industrial facility"; "Cumulative impacts"; "Permit applicant"; and "Wyoming resident". Creates new definitions for: "Construction schedule"; "Decommissioning"; "District or Special District"; "Financial assurance"; "Financial capability"; "Job classification"; "Mineral rights"; "Office"; "Phase or phase of construction"; and "Study Area".
Section 4. Jurisdictional Meeting. - This section allows a person to request a meeting with the Industrial Siting Division of the Department of Environmental Quality ("Division") prior to requesting a jurisdictional determination of whether a proposed facility is within the jurisdiction of the Council prior to certain actions as specified. Provides the type of information the person seeking the jurisdictional meeting must submit to the Division prior to the jurisdictional meeting. The director of DEQ shall issue a written decision within 15 days of the meeting stating whether the facility is within the jurisdiction of the ISC. The director will also provide notice of any application fee pursuant to W.S. 35-12-105(g) and W.S. 35-12-109(b).
Section 5. Pre-filing and Filing. – This section had previously been portions of Sections 15 and 17. Provides for determination of the "Study Area" at the jurisdictional meeting by the administrator of the Division. Provides for notice to local governments on the project study area. After the study area is determined, an informational meeting shall be held at least 30 days prior to the filing of an application in a place as close as practicable to the project site. Provides for determination of the date of filing of an application. The administrator shall make the determination of the area affected after examination of the application. Provides a procedure for counties who wish to make a referral of a wind energy facility to the Council as provided by W.S. 18-5-509.
Section 6. General Format of Application or Request for Waiver. - This section had previously been portions of Sections 4 and 6. Provides that an application or request for waiver must be signed by the president or owner of the company and accompanied by a letter of transmittal. The letter of transmittal shall contain: 1) the company's request for a permit or waiver of permit to construct and operate the facility; 2) an attestation that the company has the financial capability to construct, maintain, operate, decommission and reclaim the facility; and 3) a person at the company whom the division can contact throughout the permitting process.
Section 9. Application Information to be Submitted. - This section had previously been portions of Sections 7 and 8. Requires that an application shall contain, among other existing requirements: 1) the estimated work force to construct and operate the facility by calendar quarter and year; 2) all workers providing direct labor and direct support at the worksite; 3) estimates by quarter of workers who may be in-migrating into the study area; 4) estimates of wages and paid benefits; 5) estimates of the cost of the facility and costs of construction; 6) certify that all local governments in the study area were provided the required notification of the facility; 7) a description of the land use and changes to land use as a result of the project; 8) estimates of required impact assistance payments; 9) an evaluation of potential impacts and plans to alleviate those impacts; 10) an evaluation of the potential impact on threatened or endangered species and rare species of concern at the site location and an evaluation of the potential impacts to terrestrial and aquatic wildlife; 11) plan for maximizing in-state contractors and labor; 12) information demonstrating the applicant's financial capability to construct, maintain, operate, decommission and reclaim the land of the facility; and 13) commitments letters from the principal investors of the project. Section 9(p)(ii) and (iii) provides different requirements for submittal of financial information from those companies that are publicly traded and those companies which are not publicly traded.
Section 10. Addition Application Requirements for Wind Energy. – Portions of this section had previously been contained in Section 9. Provides requirements for Wind Energy Facilities including: 1) requiring a decommissioning plan as specified; 2) requiring interim reclamation and final reclamation plans as specified; 3) financial assurance that the Applicant shall complete decommissioning and site reclamation of the wind energy facility and determination of what that financial assurance amount shall be; 4) cost estimation for decommissioning and site reclamation of the site; 5) providing for variances by the Council on a case-by-case basis; and 6) notice to record owners of mineral rights as specified.
Section 12. Decision of Council. - This section had previously been portions of Sections 9 and 11. Provides for actions by the Council after the issuance of a permit for a facility including termination of the permit, including when construction of the facility fails to follow the schedule used by the Council when issuing the permit or has not commenced or been discontinued for 12 months and providing that a local government may request a bond pursuant to W.S. 35-12-113(e) as specified.
Section 13. Impact Assistance Funds. - This section had previously been portions of Sections 10 and 12. Provides that the administrator shall make recommendations to the Council for distribution of energy impacted assistance money.
Section 17. Waste Management Surcharge. – Provides that each permittee of a commercial waste incineration or disposal facility shall keep a record of hazardous waste treated at the facility, as well as other existing recording requirements.
FINDINGS: The rules appear to be within the scope of statutory authority and legislative intent.
STAFF RECOMMENDATION: That the rules be placed on the Consent List and approved by the Council as submitted by the Agency.
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Matthew D. Obrecht
Staff Attorney
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Lynda G. Cook
Staff Attorney
MDO/