Senate Bill No. 224

Introduced By cole, beaudry, jabs, devlin, keating, miller, mahlum, knox, stovall, holland, l. taylor, gage, stang



A Bill for an Act entitled: An Act generally revising the Montana Major Facility Siting Act; amending sections 75-20-102, 75-20-104, 75-20-201, 75-20-207, 75-20-208, 75-20-211, 75-20-213, 75-20-215, 75-20-216, 75-20-225, 75-20-226, 75-20-301, 75-20-302, 75-20-303, 75-20-304, 75-20-402, 75-20-403, 75-20-406, 75-20-1202, and 75-20-1205, MCA; repealing sections 75-20-202, 75-20-205, 75-20-218, 75-20-220, 75-20-221, 75-20-222, 75-20-227, 75-20-501, and 75-20-503, MCA; and providing an effective date and an applicability provision.



Be it enacted by the Legislature of the State of Montana:



Section 1.  Expedited review. (1) The department shall issue a certification decision within 180 days from the date on which an application is considered complete for a facility that:

(a) is unlikely to result in significant adverse environmental impacts based on the criteria listed in [section 2]; or

(b) is presently in existence and proposed for upgrade, reconstruction, or relocation and is unlikely to result in significant impacts pursuant to [section 2].

(2) A facility that qualifies for expedited review is exempt from undergoing an alternative siting study, except as provided in 75-1-201.



Section 2.  Criteria for identifying proposed facilities that qualify for expedited review. (1) In order for a facility to qualify for expedited review under [section 1], the department shall make a significance determination of the impacts associated with a proposed facility. This determination is the basis of the department's decision concerning whether the proposed facility qualifies for expedited review.

(2) The department shall consider the following criteria in determining the significance of each impact that the proposed facility has on the quality of the human environment:

(a) the severity, duration, geographic extent, and frequency of occurrence of the impact;

(b) (i) the probability that the impact will occur if the proposed action occurs; or

(ii) reasonable assurance in keeping with the potential severity of an impact that the impact will not occur;

(c) growth-inducing or growth-inhibiting aspects of the impact, including the relationship or contribution of the impact to cumulative impacts;

(d) the quantity and quality of each environmental resource or value that would be affected, including the uniqueness and fragility of those resources or values;

(e) the importance to the state and to society of each environmental resource or value that would be affected;

(f) any precedent that would be set as a result of an impact of the proposed action that would commit the department to future actions with significant impacts or to a decision in principle about future actions;

(g) potential conflict with local, state, or federal laws, requirements, or formal plans; and

(h) the degree to which the impacts on the human environment are likely to create a high level of public concern.

(3) An impact may be adverse, beneficial, or both. If none of the adverse effects of the impact are significant, expedited review is required.



Section 3.  Board review of department decisions. A person aggrieved by the final decision of the department on an application for a certificate, the renewal of a certificate, or the issuance of an air or water quality decision, opinion, order, certification, or permit under this chapter may within 30 days appeal the decision to the board under the contested case procedures of Title 2, chapter 4, part 6.



Section 4.  Section 75-20-102, MCA, is amended to read:

"75-20-102.   Policy and legislative findings. (1) It is the constitutionally declared policy of this state to maintain and improve a clean and healthful environment for present and future generations, to protect the environmental life-support system from degradation and prevent unreasonable depletion and degradation of natural resources, and to provide for administration and enforcement to attain these objectives.

(2)  The legislature finds that the construction of additional power or energy conversion facilities may be necessary to meet the increasing need for electricity, energy, and other products and that these facilities have an effect on the environment, an impact on population concentration, and an effect on the welfare of the citizens of this state. Therefore, it is necessary to ensure that the location, construction, and operation of power and energy conversion facilities will not produce minimal unacceptable adverse effects on the environment and upon the citizens of this state by providing that a power or energy conversion facility may not be constructed or operated within this state without a certificate of environmental compatibility and public need acquired pursuant to this chapter.

(3) The legislature also finds that it is the purpose of this chapter to:

(a) ensure protection of the state's environmental resources, including but not limited to air, water, animals, plants, and soils;

(b) ensure consideration of socioeconomic impacts;

(c) provide citizens with the opportunity to participate in facility siting decisions; and

(d) establish a coordinated and efficient method for the processing of all authorizations required for regulated facilities under this chapter."



Section 5.  Section 75-20-104, MCA, is amended to read:

"75-20-104.   (Temporary) Definitions. In this chapter, unless the context requires otherwise, the following definitions apply:

(1)  "Addition thereto" means the installation of new machinery and equipment that would significantly change the conditions under which the facility is operated.

(2)  "Application" means an application for a certificate submitted in accordance with this chapter and the rules adopted under this chapter.

(3)  "Associated facilities" includes but is not limited to transportation links of any kind, aqueducts, diversion dams, pipelines, transmission substations, storage ponds, reservoirs, and any other device or equipment associated with the production or delivery of the energy form or product produced by a facility, except that the term does not include a facility or a natural gas or crude oil gathering line 17 inches or less in inside diameter.

(4)  "Board" means the board of environmental review provided for in 2-15-3502.

(5)  "Certificate" means the certificate of environmental compatibility and public need issued by the board department under this chapter that is required for the construction or operation of a facility.

(6)  "Commence to construct" means:

(a)  any clearing of land, excavation, construction, or other action that would affect the environment of the site or route of a facility but does not mean changes needed for temporary use of sites or routes for nonutility purposes or uses in securing geological data, including necessary borings to ascertain foundation conditions;

(b)  the fracturing of underground formations by any means if such the activity is related to the possible future development of a gasification facility or a facility employing geothermal resources but does not include the gathering of geological data by boring of test holes or other underground exploration, investigation, or experimentation;

(c)  the commencement of eminent domain proceedings under Title 70, chapter 30, for land or rights-of-way upon or over which a facility may be constructed;

(d)  the relocation or upgrading of an existing facility defined by subsection (8)(b) (8)(c) or (8)(c) (8)(d), including upgrading to a design capacity covered by subsection (8)(b) (8)(c), except that the term does not include normal maintenance or repair of an existing facility.

(7)  "Department" means the department of environmental quality provided for in 2-15-3501.

(8)  "Facility" means:

(a)  except for crude oil and natural gas refineries and those facilities subject to The Montana Strip and Underground Mine Reclamation Act, each plant, unit, or other facility and associated facilities designed for or capable of:

(i)  generating 150 250 megawatts of electricity or more or any addition thereto, except pollution control facilities approved by the department and added to an existing plant;

(ii) producing 25 million cubic feet or more of gas derived from coal per day or any addition thereto, except pollution control facilities approved by the department and added to an existing plant;

(iii) producing 25,000 barrels of liquid hydrocarbon products per day or more or any addition thereto, except pollution control facilities approved by the department and added to an existing plant;

(iv) enriching uranium minerals or any addition thereto; or

(v)  for purposes of 75-20-204 only, generating 50 megawatts of hydroelectric power or more or any addition thereto;

(b) each plant, unit, or other facility and associated facilities generating less than 250 megawatts that would be defined in 75-20-104(8)(a):

(i) emitting 300 tons a year of particulate matter at 10 microns or less;

(ii) that is not employing best available control technology pursuant to 42 U.S.C. 7479 or is not employing lowest achievable emission rates as required by Title 75, chapter 2, or rules adopted under Title 75, chapter 2;

(iii) directly affecting:

(A) a class I airshed as designated pursuant to 42 U.S.C. 7470, et seq.;

(B) a class I river or stream as designated pursuant to 33 U.S.C. 1251, et seq.;

(C) habitat used by a threatened or endangered species of plant or animal as designated pursuant to 16 U.S.C. 1531, et seq.; or

(D) one of the following exclusion areas:

(I) national wilderness areas designated pursuant to 16 U.S.C. 1131, et seq.;

(II) national primitive areas;

(III) national parks as designated pursuant to 16 U.S.C. 1a-1, et seq.;

(IV) rivers in the national wild and scenic river system as designated pursuant to 16 U.S.C. 1271, et seq.;

(V) national wildlife refuges and ranges as designated pursuant to 16 U.S.C. 668dd, et seq.; or

(iv) that would require a permanent workforce greater than 300 workers.

(b)(c)  each electric transmission line and associated facilities of a design capacity of more than 69 kilovolts, except that the term:

(i)  does not include an electric transmission line and associated facilities of a design capacity of 230 kilovolts or less and 10 miles or less in length; and

(ii) does not include an electric transmission line with a design capacity of more than 69 kilovolts and up to and including 115 but less than 230 kilovolts for which the person planning to construct the line has obtained right-of-way agreements or options for a right-of-way from more than 75% of the owners who collectively own more than 75% of the property along the centerline;

(c)(d)  each pipeline, whether partially or wholly within the state, greater than 17 inches in inside diameter and 30 miles in length, and associated facilities;

(d)(e)  any use of geothermal resources, including the use of underground space in existence or to be created, for the creation, use, or conversion of energy, designed for or capable of producing geothermally derived power equivalent to 25 million Btu Btu's per hour or more or any addition thereto, except pollution control facilities approved by the department and added to an existing plant;

(e)(f)  any underground in situ gasification of coal; or

(g) an energy-related project for which the department has granted a petition pursuant to 75-20-201(5).

(9)  "Person" means any individual, group, firm, partnership, corporation, limited liability company, cooperative, association, government subdivision, government agency, local government, or other organization or entity.

(10) "Transmission substation" means any structure, device, or equipment assemblage, commonly located and designed for voltage regulation, circuit protection, or switching necessary for the construction or operation of a proposed transmission line.

(11) "Utility" means any person engaged in any aspect of the production, storage, sale, delivery, or furnishing of heat, electricity, gas, hydrocarbon products, or energy in any form for ultimate public use.

75-20-104.   (Effective July 1, 1997) Definitions. In this chapter, unless the context requires otherwise, the following definitions apply:

(1)  "Addition thereto" means the installation of new machinery and equipment that would significantly change the conditions under which the facility is operated.

(2)  "Application" means an application for a certificate submitted in accordance with this chapter and the rules adopted under this chapter.

(3)  "Associated facilities" includes but is not limited to transportation links of any kind, aqueducts, diversion dams, pipelines, transmission substations, storage ponds, reservoirs, and any other device or equipment associated with the production or delivery of the energy form or product produced by a facility, except that the term does not include a facility or a natural gas or crude oil gathering line 17 inches or less in inside diameter.

(4)  "Board" means the board of environmental review provided for in 2-15-3502.

(5)  "Certificate" means the certificate of environmental compatibility and public need issued by the board department under this chapter that is required for the construction or operation of a facility.

(6)  "Commence to construct" means:

(a)  any clearing of land, excavation, construction, or other action that would affect the environment of the site or route of a facility but does not mean changes needed for temporary use of sites or routes for nonutility purposes or uses in securing geological data, including necessary borings to ascertain foundation conditions;

(b)  the fracturing of underground formations by any means if such the activity is related to the possible future development of a gasification facility or a facility employing geothermal resources but does not include the gathering of geological data by boring of test holes or other underground exploration, investigation, or experimentation;

(c)  the commencement of eminent domain proceedings under Title 70, chapter 30, for land or rights-of-way upon or over which a facility may be constructed;

(d)  the relocation or upgrading of an existing facility defined by subsection (8)(b) (8)(c) or (8)(c) (8)(d), including upgrading to a design capacity covered by subsection (8)(b) (8)(c), except that the term does not include normal maintenance or repair of an existing facility.

(7)  "Department" means the department of environmental quality provided for in 2-15-3501.

(8)  "Facility" means:

(a)  except for crude oil and natural gas refineries and those facilities subject to The Montana Strip and Underground Mine Reclamation Act, each plant, unit, or other facility and associated facilities designed for or capable of:

(i)  generating 50 250 megawatts of electricity or more or any addition thereto, except pollution control facilities approved by the department and added to an existing plant;

(ii) producing 25 million cubic feet or more of gas derived from coal per day or any addition thereto, except pollution control facilities approved by the department and added to an existing plant;

(iii) producing 25,000 barrels of liquid hydrocarbon products per day or more or any addition thereto, except pollution control facilities approved by the department and added to an existing plant;

(iv) enriching uranium minerals or any addition thereto; or

(v)  for purposes of 75-20-204 only, generating 50 megawatts of hydroelectric power or more or any addition thereto;

(b) each plant, unit, or other facility and associated facilities generating less than 250 megawatts that would be defined in 75-20-104(8)(a):

(i) emitting 300 tons a year of particulate matter at 10 microns or less;

(ii) that is not employing best available control technology pursuant to 42 U.S.C. 7479 or is not employing lowest achievable emission rates as required by Title 75, chapter 2, or rules adopted under Title 75, chapter 2;

(iii) directly affecting:

(A) a class I airshed as designated pursuant to 42 U.S.C. 7470, et seq.;

(B) a class I river or stream as designated pursuant to 33 U.S.C. 1251, et seq.;

(C) habitat used by a threatened or endangered species of plant or animal as designated pursuant to 16 U.S.C. 1531, et seq.; or

(D) one of the following exclusion areas:

(I) national wilderness areas designated pursuant to 16 U.S.C. 1131, et seq.;

(II) national primitive areas;

(III) national parks as designated pursuant to 16 U.S.C. 1a-1, et seq.;

(IV) rivers in the national wild and scenic river system as designated pursuant to 16 U.S.C. 1271, et seq.; or

(V) national wildlife refuges and ranges as designated pursuant to 16 U.S.C. 668dd, et seq.; or

(iv) that would require a permanent workforce greater than 300 workers.

(b)(c)  each electric transmission line and associated facilities of a design capacity of more than 69 kilovolts, except that the term:

(i)  does not include an electric transmission line and associated facilities of a design capacity of 230 kilovolts or less and 10 miles or less in length; and

(ii) does not include an electric transmission line with a design capacity of more than 69 kilovolts and up to and including 115 but less than 230 kilovolts for which the person planning to construct the line has obtained right-of-way agreements or options for a right-of-way from more than 75% of the owners who collectively own more than 75% of the property along the centerline;

(c)(d)  each pipeline, whether partially or wholly within the state, greater than 17 inches in inside diameter and 30 miles in length, and associated facilities;

(d)(e)  any use of geothermal resources, including the use of underground space in existence or to be created, for the creation, use, or conversion of energy, designed for or capable of producing geothermally derived power equivalent to 25 million Btu Btu's per hour or more or any addition thereto, except pollution control facilities approved by the department and added to an existing plant;

(e)(f)  any underground in situ gasification of coal; or

(g) an energy-related project for which the department has granted a petition pursuant to 75-20-201(5).

(9)  "Person" means any individual, group, firm, partnership, corporation, limited liability company, cooperative, association, government subdivision, government agency, local government, or other organization or entity.

(10) "Transmission substation" means any structure, device, or equipment assemblage, commonly located and designed for voltage regulation, circuit protection, or switching necessary for the construction or operation of a proposed transmission line.

(11) "Utility" means any person engaged in any aspect of the production, storage, sale, delivery, or furnishing of heat, electricity, gas, hydrocarbon products, or energy in any form for ultimate public use."



Section 6.  Section 75-20-201, MCA, is amended to read:

"75-20-201.   Certificate required -- operation in conformance -- certificate for nuclear facility -- applicability to federal facilities. (1) A Except for a facility under diligent onsite physical construction or in operation on January 1, 1973, a person may not commence to construct a facility in the state without first applying for and obtaining a certificate of environmental compatibility and public need issued with respect to the facility by the board department.

(2)  A facility with respect to which a certificate is issued may not thereafter be constructed, operated, or maintained except in conformity with the certificate and any terms, conditions, and modifications contained therein within the certification.

(3)  A certificate may only be issued pursuant to this chapter.

(4)  If the board department decides to issue a certificate for a nuclear facility, it shall report such the recommendation to the applicant and may not issue the certificate until such the recommendation is approved by a majority of the voters in a statewide election called by initiative or referendum according to the laws of this state.

(5) A person that proposes to construct an energy-related project that is not defined as a facility pursuant to 75-20-104(8) may petition the department to review the energy-related project under the provisions of this chapter.

(5)(6)  This chapter applies, to the fullest extent allowed by federal law, to all federal facilities and to all facilities over which an agency of the federal government has jurisdiction."



Section 7.  Section 75-20-207, MCA, is amended to read:

"75-20-207.   Notice requirement for certain electric transmission lines. Whenever a person plans to construct an electric transmission line or associated facilities of a design capacity of more than 69 kilovolts and up to and including 115 kilovolts that is more than 10 miles in length under the provisions of 75-20-104(8)(c)(ii), it must provide public notice to persons residing in the area in which any portion of the electric transmission facility may be located and to the department. This notice must be made no less than 180 days prior to the commencement of acquisition of right-of-way by publication of a summary describing the transmission facility and the proposed location of the facility in those newspapers that will substantially inform those persons of the construction and by mailing such a summary to the department. The notice must inform the property owners of their rights under this chapter concerning the location of the facility and that more information concerning their rights may be obtained from the department."



Section 8.  Section 75-20-208, MCA, is amended to read:

"75-20-208.   Certain electric transmission lines -- verification of requirements. (1) Prior to constructing a transmission line under 75-20-104(8)(b)(ii)(8)(c)(ii), the person planning to construct the line shall provide to the department within 36 months of the date of the public notice provided under 75-20-207, unless extended by the board department for good cause:

(a)  copies of the right-of-way agreements or options for a right-of-way containing sufficient information to establish landowner consent to construct the line; and

(b)  sufficient information for the department to verify to the board that the requirements of 75-20-104(8)(b)(ii)(8)(c)(ii) are satisfied.

(2)  The provisions of 75-20-104(8)(b)(ii)(8)(c)(ii) do not apply to any facility for which public notice under 75-20-207 has been given but for which the requirements of subsection (1) of this section have not been complied with."



Section 9.  Section 75-20-211, MCA, is amended to read:

"75-20-211.   Application -- filing and contents -- proof of service and notice. (1) (a) An applicant shall file with the department an application for a certificate under this chapter and for the permits required under the laws administered by the department in the form that the board requires is required under applicable rules, containing the following information:

(i)  a description of the proposed location and of the facility to be built;

(ii) a summary of any studies that have been made of the environmental impact of the facility;

(iii) a statement explaining the need for the facility;

(iv)(iii) for facilities defined in 75-20-104(8)(b)(8)(c) and (8)(c) (8)(d), a statement explaining the need for the facility, a description of reasonable alternate locations for the facility, a general description of the comparative merits and detriments of each location submitted, and a statement of the reasons why the proposed location is best suited for the facility;

(v)(iv)  (A) for facilities as defined in 75-20-104(8)(b)(8)(c) and (8)(c) (8)(d), baseline data for the primary and reasonable alternate locations; or

(B)  for facilities as defined in 75-20-104(8)(a), (8)(d) (8)(b), (8)(e), and (8)(e) (8)(f), baseline data for the proposed location and, at the applicant's option, any alternative locations acceptable to the applicant for siting the facility;

(vi)(v) at the applicant's option, an environmental study plan to satisfy the requirements of this chapter; and

(vii)(vi) other information that the applicant considers relevant or that the board by order or rule or the department by order or rule may require.

(b)  A copy or copies of the studies referred to in subsection (1)(a)(ii) must be filed with the department, if ordered, and must be available for public inspection.

(2)  An application may consist of an application for two or more facilities in combination that are physically and directly attached to each other and are operationally a single operating entity.

(3)  An application must be accompanied by proof of service of a copy of the application on the chief executive officer of each unit of local government, county commissioner, city or county planning boards, and federal agencies charged with the duty of protecting the environment or of planning land use in the area in which any portion of the proposed facility is proposed or is alternatively proposed to be located and on the following state government agencies:

(a)  environmental quality council;

(b)  department of public service regulation;

(c)  department of fish, wildlife, and parks;

(d)  department of natural resources and conservation;

(e)  department of commerce;

(f)  department of transportation.

(4)  The copy of the application must be accompanied by a notice specifying the date on or about which the application is to be filed.

(5)  An application must also be accompanied by proof that public notice of the application was given to persons residing in the area in which any portion of the proposed facility is proposed or is alternatively proposed to be located, by publication of a summary of the application in those newspapers that will substantially inform those persons of the application."



Section 10.  Section 75-20-213, MCA, is amended to read:

"75-20-213.   Supplemental material -- amendments. (1) An application for an amendment of an application or a certificate must be in the form and contain the information that the board department by rule or the department by order prescribes. Notice of an application must be given as set forth in 75-20-211(3) through (5).

(2)  An application may be amended by an applicant any time prior to the department's recommendation. If the proposed amendment is such that it prevents the department or the agencies listed in 75-20-216(5)(6) from carrying out their duties and responsibilities under this chapter, the department may require additional filing fees as the department determines necessary, or the department may require a new application and filing fee.

(3)  The applicant shall submit supplemental material in a timely manner as requested by the department or as offered by the applicant to explain, support, or provide the detail with respect to an item described in the original application, without filing an application for an amendment. The department's determination as to whether information is supplemental or whether an application for amendment is required is conclusive."



Section 11.  Section 75-20-215, MCA, is amended to read:

"75-20-215.   Filing fee -- accountability -- refund -- use. (1) (a) A filing fee must be deposited in the state special revenue fund for the use of the department in administering Title 75, chapter 1, and this chapter. The applicant shall pay to the department a filing fee as provided in this section based upon the department's estimated costs of processing the application under this chapter. The fee may not exceed the following scale based upon the estimated cost of the facility:

(i)  4% of any estimated cost up to $1 million; plus

(ii) 1% of any estimated cost over $1 million and up to $20 million; plus

(iii) 0.5% of any estimated cost over $20 million and up to $100 million; plus

(iv) 0.25% of any amount of estimated cost over $100 million and up to $300 million; plus

(v)  0.125% of any amount of estimated cost over $300 million and up to $1 billion; plus

(vi) 0.05% of any amount of estimated cost over $1 billion.

(b)  The department may allow in its discretion a credit against the fee payable under this section for the development of information or providing of services required under this chapter or required for preparation of an environmental impact statement or assessment under the Montana or national environmental policy acts. The applicant may submit the information to the department, together with an accounting of the expenses incurred in preparing the information. The department shall evaluate the applicability, validity, and usefulness of the data and determine the amount that may be credited against the filing fee payable under this section. Upon 30 days' notice to the applicant, this credit may at any time be reduced if the department determines that it is necessary to carry out its responsibilities under this chapter.

(2)  (a) The department may contract with an applicant for the development of information, provision of services, and payment of fees required under this chapter. The contract may continue an agreement entered into pursuant to 75-20-106. Payments made to the department under a contract must be credited against the fee payable pursuant to this section. Notwithstanding the provisions of this section, the revenue derived from the filing fee must be sufficient to enable the department, the board, and the agencies listed in 75-20-216(5)(6) to carry out their responsibilities under this chapter. The department may amend a contract to require additional payments for necessary expenses up to the limits set forth in subsection (1)(a) upon 30 days' notice to the applicant. The department and applicant may enter into a contract that exceeds the scale provided in subsection (1)(a).

(b)  If a contract is not entered into, the applicant shall pay the filing fee in installments in accordance with a schedule of installments developed by the department, provided that no one an installment may not exceed 20% of the total filing fee provided for in subsection (1).

(3)  The estimated cost of upgrading an existing transmission substation may not be included in the estimated cost of a proposed facility for the purpose of calculating a filing fee.

(4)  If an application consists of a combination of two or more facilities, the filing fee must be based on the total estimated cost of the combined facilities.

(5)  The applicant is entitled to an accounting of money expended and to a refund with interest at the rate of 6% a year of that portion of the filing fee not expended by the department in carrying out its responsibilities under this chapter. A refund must be made after all administrative and judicial remedies have been exhausted by all parties to the certification proceedings.

(6)  The revenue derived from filing fees must be used by the department in compiling the information required for rendering a decision on a certificate and for carrying out its and the board's other responsibilities under this chapter."



Section 12.  Section 75-20-216, MCA, is amended to read:

"75-20-216.   Study, evaluation, and report on proposed facility -- assistance by other agencies. (1) After receipt of an application, the department shall within 90 60 days notify the applicant in writing that:

(a)  the application is in compliance and is accepted as complete; or

(b)  the application is not in compliance and shall list the deficiencies. Upon correction of these deficiencies and resubmission by the applicant, the department shall within 30 days notify the applicant in writing that the application is in compliance and is accepted as complete.

(2)  Upon receipt of an application complying with 75-20-211 through 75-20-213, 75-20-215, and this section, the department shall commence an intensive study and evaluation of the proposed facility and its effects, considering all applicable criteria listed in 75-20-301 and 75-20-503, and shall issue a decision, opinion, order, certification, or permit as provided in subsection (3). The department shall use, to the extent that it considers applicable, valid and useful existing studies and reports submitted by the applicant or compiled by a state or federal agency.

(3)  The Except as provided for in [section 1], the department shall issue within 1 year following the date of acceptance of an application and the board of environmental review, if applicable, within an additional 6 months shall issue any decision, opinion, order, certification, or permit required under the laws, other than those contained in this part, administered by the department or the board of environmental review and this chapter. The department and the board shall determine compliance with all standards, permit requirements, and implementation plans under their jurisdiction for the proposed location or any proposed alternate location in their decision, opinion, order, certification, or permit. The A decision, opinion, order, certification, or permit, with or without conditions, is conclusive on all matters that the department must be made under those laws. and the board administer, and on any of the criteria specified in 75-20-503(2) through (7) that are a part of the determinations made under the laws administered by the department and the board. Although the decision, opinion, order, certification, or permit issued under this subsection is conclusive, the board Nevertheless, the department retains authority to make the determination required under 75-20-301(2)(c)(1)(c) or (3). The decision, opinion, order, certification, or permit must be used in the final site selection process. Prior to the issuance of a preliminary decision by the department and pursuant to rules adopted by the board department, the department shall provide an opportunity for public review and comment.

(4)  Within 22 months Except as provided in [section 1], within 1 year following acceptance of an application for a facility as defined in 75-20-104(8)(a) and (8)(d) and for a facility as defined in 75-20-104(8)(b) and (8)(c) that is more than 30 miles in length and within 1 year for a facility as defined in 75-20-104(8)(b) and (8)(c) that is 30 miles or less in length, the department shall make a report to the board issue a report that must contain the department's studies, evaluations, recommendations, other pertinent documents resulting from its study and evaluation, and an environmental impact statement or analysis prepared pursuant to the Montana Environmental Policy Act, if any. If the application is for a combination of two or more facilities, the department shall make its report to the board issue its report within the greater of the lengths of time provided for in this subsection for either of the facilities.

(5) For projects subject to joint review by the department and a federal land management agency, the department's certification decision may be timed to correspond to the record of decision issued by the participating federal agency.

(5)(6)  The departments of transportation; commerce; fish, wildlife, and parks; natural resources and conservation; revenue; and public service regulation shall report to the department information relating to the impact of the proposed site on each department's area of expertise. The report may include opinions as to the advisability of granting, denying, or modifying the certificate. The department shall allocate funds obtained from filing fees to the departments making reports to reimburse them for the costs of compiling information and issuing the required report."



Section 13.  Section 75-20-225, MCA, is amended to read:

"75-20-225.   Certificate renewal -- application -- contents -- filing fee. (1) A certificate holder for a facility, as defined in 75-20-104(8)(a)(i) or (8)(b), may apply for renewal of a certificate prior to the certificate lapsing.

(2)  An applicant for a renewal of a certificate shall file with the department an application in the form that the board requires by rule.

(3)  An application for renewal of a certificate must include updated information on the matters listed in 75-20-211(1)(a) that have changed since the original application and other information that the board requires by rule for certification. The matters listed in 75-20-211(1)(a)(iv)(1)(a)(iii) and (1)(a)(v) (1)(a)(iv) for the alternate locations must be updated only if the board determines that within the certified location significant changes have occurred to warrant a review of alternate locations.

(4)  An application filed under subsection (1) must comply with the provisions of 75-20-211(3) through (5).

(5)  Except as provided in this subsection, the applicant shall pay a filing fee to the department in accordance with 75-20-215(2). The fee is in addition to any previous filing fee paid for processing the original application for a certificate pursuant to 75-20-215. The fee may not exceed the following scale:

(a)  0.125% of any estimated cost up to $300 million; plus

(b)  0.063% of any estimated cost over $300 million."



Section 14.  Section 75-20-226, MCA, is amended to read:

"75-20-226.   Renewal study -- renewal hearing -- decision. (1) Upon receipt of a completed application for renewal of a certificate, the department shall evaluate the updated information and any significant changes in need, alternatives, technology, baseline environment, and the environmental impacts of a facility that have taken place since the original study performed in granting the certificate, considering the applicable criteria listed in 75-20-301 and 75-20-503 and the original board department findings and certificate conditions.

(2)  The department and the board, within 10 months of acceptance of a complete renewal application, shall complete the statutory duties established in 75-20-216(3). Any air or water quality decision, opinion, order, certification, or permit must be used as part of their its decisionmaking process under 75-20-227 and subsection subsections (3), (5), and (6) of this section of this section.

(3)  Within 12 months following acceptance of a complete application for renewal of a certificate, the department shall make a report to the board issue a report. This report must contain the department's studies, evaluations, recommendations, and other pertinent documents resulting from its study and evaluation and an updated environmental impact statement or analysis pursuant to the Montana Environmental Policy Act. The department's report must be directed to the question of whether the original board department findings and conditions have been or need to be altered as a result of any significant changes in need, alternatives, technology, baseline environment, or environmental impact since issuance of the certificate, considering the applicable criteria listed in 75-20-301 and 75-20-503.

(4)  The departments of transportation; commerce; fish, wildlife, and parks; natural resources and conservation; revenue; and public service regulation shall report to the department information relating to the impact of the proposed site on each department's area of responsibility. The report may include opinions as to the advisability of renewing the certificate. The department shall allocate funds obtained from filing fees to the departments making reports to reimburse them for the cost of compiling information and issuing the required reports.

(5) Within 45 days after completion of the report pursuant to 75-20-226, the department shall make complete findings, issue an opinion, and render a decision upon the record, either granting or denying the renewal application or renewing the certificate with such changes in the terms and conditions as the board considers appropriate.

(6) The department may not renew a certificate either as proposed by the applicant or as modified by the department unless it finds and determines that the criteria in 75-20-301, considering any significant changes in need, alternatives, technology, baseline environment, and environmental impact, have been met."



Section 15.  Section 75-20-301, MCA, is amended to read:

"75-20-301.   Decision of board department -- findings necessary for certification. (1) Within 60 days after submission of the recommended decision by the hearing examiner, the board shall make complete findings, issue an opinion, and render a decision upon the record, either granting or denying the application as filed or granting it upon the terms, conditions, or modifications of the construction, operation, or maintenance of the facility that the board considers appropriate. Within 45 days after issuance of the report pursuant to 75-20-216, for facilities defined in 75-20-104(8)(c) and (8)(d),

(2)  The board may not grant a certificate unless it finds and determines the department shall approve a facility as proposed or as modified or an alternative to a proposed facility if the department finds and determines:

(a)  the basis of the need for the facility;

(b)  the nature of the probable environmental impact;

(c)  that the facility minimizes adverse environmental impact, considering the state of available technology and the nature and economics of the various alternatives;

(d)  each of the criteria listed in 75-20-503;

(e)(d)  in the case of an electric, gas, or liquid transmission line or aqueduct:

(i)  what part, if any, of the line or aqueduct will be located underground;

(ii) that the facility is consistent with regional plans for expansion of the appropriate grid of the utility systems serving the state and interconnected utility systems; and

(iii) that the facility will serve the interests of utility system economy and reliability;

(f)(e)  that the location of the facility as proposed conforms to applicable state and local laws and regulations, except that the board department may refuse to apply any local law or regulation if it finds that, as applied to the proposed facility, the law or regulation is unreasonably restrictive in view of the existing technology, of factors of cost or economics, or of the needs of consumers, whether located inside or outside the directly affected government subdivisions;

(g)(f)  that the facility will serve the public interest, convenience, and necessity;

(h)(g)  that the department or board has issued any necessary air or water quality decision, opinion, order, certification, or permit as required by 75-20-216(3); and

(i)(h)  that the use of public lands for location of the facility was evaluated and public lands were selected whenever their use is as economically practicable as the use of private lands and compatible with the environmental criteria listed in 75-20-503.

(3)(2)  In determining that the facility will serve the public interest, convenience, and necessity under subsection (2)(g) (1)(f), the board department shall consider:

(a)  the items listed in subsections (2)(a) (1)(a) and (2)(b) (1)(b);

(b)  the benefits to the applicant and the state resulting from the proposed facility;

(c)  the effects of the economic activity resulting from the proposed facility;

(d)  the effects of the proposed facility on the public health, welfare, and safety;

(e)  any other factors that it considers relevant.

(4)  Considerations of need, public need, or public convenience and necessity and demonstration thereof by the applicant apply only to utility facilities described in 75-20-104(8)(a)(i), (8)(b), (8)(c), and (8)(d).

(3) Within 45 days after issuance of the report pursuant to 75-20-216, for facilities defined in 75-20-104(8)(a), (8)(b), and (8)(e) through (8)(g), the department shall approve a facility as proposed or as modified or an alternative to a proposed facility if the department finds and determines:

(a) that the facility or alternative incorporates all reasonable, cost-effective mitigation of significant environmental impacts; or

(b) that unmitigated impacts, including those that cannot be reasonably quantified or valued in monetary terms, do not pose any threat of serious injury or damage to:

(i) the environment; or

(ii) the social and economic conditions of inhabitants of the affected area; or

(iii) the health, safety, or welfare of area inhabitants.

(4) To be considered an alternative to a proposed facility defined in 75-20-104(8)(a) and (8)(b), the alternative must:

(a) meet the objective of the applicant's proposal;

(b) be available to the applicant; and

(c) be reasonable and specific to the applicant's proposed site.

(5) Consideration of alternatives for facilities defined in 75-20-104(8)(c) and (8)(d) may not be a basis for requiring considerations of alternative sites for facilities defined in 75-20-104(8)(a) and (8)(b).

(6) For facilities defined in 77-20-104(8), if the department cannot make the findings required in 75-20-301, it shall deny the certificate."



Section 16.  Section 75-20-302, MCA, is amended to read:

"75-20-302.   Conditions imposed. (1) If the board department determines that the location of all or a part of the proposed facility should be modified, it may condition its certificate upon the modification, provided that the persons residing in the area affected by the modification have been given reasonable notice of the modification.

(2)  In making its findings under 75-20-301(2)(a) for a facility defined in 75-20-104(8)(a)(i), the board may condition a certificate upon actual load growth reaching a specified level or on availability of other planned energy resources.

(2) The department may require the applicant to post performance bonds to guarantee successful reclamation and revegetation of the project area."



Section 17.  Section 75-20-303, MCA, is amended to read:

"75-20-303.   Opinion issued with decision -- contents. (1) In rendering a decision on an application for a certificate, the board department shall issue an opinion stating its reasons for the action taken.

(2)  If the board department has found that any regional or local law or regulation that would be otherwise applicable is unreasonably restrictive, it shall state in its opinion the reasons that it is unreasonably restrictive.

(3)  Any A certificate issued by the board department must include the following:

(a)  an environmental evaluation statement related to the facility being certified. The statement must include but is not limited to analysis of the following information:

(i)  the environmental impact of the proposed facility; and

(ii) any adverse environmental effects that cannot be avoided by issuance of the certificate;

(b)  a plan for monitoring environmental effects of the proposed facility;

(c)  a plan for monitoring the certified facility site between the time of certification and completion of construction;

(d)  a time limit as provided in subsection (4); and

(e)  a statement signed by the applicant showing agreement to comply with the requirements of this chapter and the conditions of the certificate.

(4)  (a) The board department shall issue as part of the certificate the following time limits:

(i)  For a facility as defined in 75-20-104(8)(b)(8)(c) or (8)(c)(8)(d) that is more than 30 miles in length, construction must be completed within 10 years.

(ii) For a facility as defined in 75-20-104(8)(b)(8)(c) or (8)(d) that is 30 miles or less in length, construction must be completed within 5 years.

(iii) For a facility as defined in 75-20-104(8)(a), (8)(b), and (8)(e) through (8)(g), construction must begin within 6 years and continue with due diligence in accordance with preliminary construction plans established in the certificate.

(b)  Unless extended or renewed, a certificate lapses and is void if the facility is not constructed or if construction of the facility is not commenced within the time limits provided in this section.

(c)  The time limit may be extended for a reasonable period upon a showing by the applicant to the board department that a good faith effort is being undertaken to complete construction under subsections (4)(a)(i) and (4)(a)(ii) or to begin construction under subsection (4)(a)(iii). Under this subsection, a good faith effort includes the process of acquiring any necessary state or federal permit or certificate for the facility and the process of judicial review of a permit or certificate."



Section 18.  Section 75-20-304, MCA, is amended to read:

"75-20-304.   Waiver of provisions of certification proceedings. (1) The board department may waive compliance with any of the provisions of 75-20-216 through 75-20-222, 75-20-501, and this part if the applicant makes a clear and convincing showing to the board department at a public hearing that an immediate, urgent need for a facility exists and that the applicant did not have knowledge that the need for the facility existed sufficiently in advance to fully comply with the provisions of 75-20-216 through 75-20-222, 75-20-501, and this part.

(2)  The board department may waive compliance with any of the provisions of this chapter upon receipt of notice by a person subject to this chapter that a facility or associated facility has been damaged or destroyed as a result of fire, flood, or other natural disaster or as the result of insurrection, war, or other civil disorder and there exists an immediate need for construction of a new facility or associated facility or the relocation of a previously existing facility or associated facility in order to promote the public welfare.

(3)  The board department shall waive compliance with the requirements of 75-20-301(2)(c)(1)(c), (3)(b) (2)(b), and (3)(c) (2)(c) and the requirements of 75-20-211(1)(a)(iv)(1)(a)(iii) and (1)(a)(v)(1)(a)(iv), and 75-20-216(3), and 75-20-303(3)(a)(iv) relating to consideration of alternative sites if the applicant makes a clear and convincing showing to the board department at a public hearing that:

(a)  a proposed facility will be constructed in a county where a single employer within the county has permanently curtailed or ceased operations, causing a loss of 250 or more permanent jobs within 2 years at the employer's operations within the preceding 10-year period;

(b)  the county and municipal governing bodies in whose jurisdiction the facility is proposed to be located support by resolution such a the waiver;

(c)  the proposed facility will be constructed within a 15-mile radius of the operations that have ceased or been curtailed; and

(d)  the proposed facility will have a beneficial effect on the economy of the county in which the facility is proposed to be located.

(4)  The waiver provided for in subsection (3) applies only to permanent job losses by a single employer. The waiver provided for in subsection (3) does not apply to jobs of a temporary or seasonal nature, including but not limited to construction jobs or job losses during labor disputes.

(5)  The waiver provided for in subsection (3) does not apply to consideration of alternatives or minimum adverse environmental impact for a facility defined in 75-20-104(8)(b)(8)(c), (8)(c) (8)(d), (8)(d) (8)(e), or (8)(e) (8)(f), for an associated facility defined in 75-20-104(3), or for any portion of or process in a facility defined in 75-20-104(8)(a) or (8)(b) to the extent that the process or portion of the facility is not subject to an air or water quality permit issued by the department or board.

(6)  The applicant shall pay all expenses required to process and conduct a hearing on a waiver request under subsection (3). However, any payments made under this subsection must be credited toward the fee paid under 75-20-215 to the extent that the data or evidence presented at the hearing or the decision of the board department under subsection (3) can be used in making a certification decision under this chapter.

(7)  The board department may grant only one waiver under subsections (3) and (4) for each permanent loss of jobs as defined in subsection (3)(a)."



Section 19.  Section 75-20-402, MCA, is amended to read:

"75-20-402.   Monitoring. The board and the department shall monitor the operations of all certificated facilities for ensuring continuing compliance with this chapter and certificates issued under this chapter and for discovering and preventing noncompliance with this chapter and the certificates. The applicant shall pay all expenses related to the monitoring plan established in 75-20-303(3)(b) or (3)(c) to the extent federal funds available for the facility, as determined by the department, have not been provided for those purposes."



Section 20.  Section 75-20-403, MCA, is amended to read:

"75-20-403.   Revocation or suspension of certificate. Following notice and an opportunity for a hearing, a certificate may be revoked or suspended by the board department:

(1)  for any material false statement in the application or in accompanying statements or studies required of the applicant if a true statement would have warranted the board's department's refusal to grant a certificate;

(2)  for failure to maintain safety standards or to comply with the terms or conditions of the certificate; or

(3)  for violation of any provision of this chapter, the rules issued thereunder under this chapter, or orders of the board or department."



Section 21.  Section 75-20-406, MCA, is amended to read:

"75-20-406.   Judicial review of board and department decisions. (1) Any active party, as defined in 75-20-221, A person aggrieved by the final decision of the board on an application for a certificate may obtain judicial review of that decision by the filing of a petition in a state district court of competent jurisdiction.

(2)  The judicial review procedure is the same as that procedure for contested cases under the Montana Administrative Procedure Act.

(3)  When the board or department conducts hearings pursuant to 75-20-216(3) and 75-20-218 and the applicant is granted a permit or certification, with or without conditions, pursuant to the laws administered by the department and the board and this chapter, the decision may be appealed only in conjunction with the final decision of the board as provided in [section 2] and subsections (1) and (2) of this section. If an air or water quality permit or certification is denied by the department or the board, the applicant may:

(a)  appeal the denial under the appellate review procedures provided in the air and water quality laws administered by the department and the board; or

(b)  reserve the right to appeal the denial by the department or the board until after the board has issued a final decision as provided in [section 2].

(4)  Nothing in this This section may not be construed to prohibit the board from holding a hearing as provided in this section on all matters that are not the subject of a pending appeal by the applicant under subsection (3)(a)."



Section 22.  Section 75-20-1202, MCA, is amended to read:

"75-20-1202.   Definitions. As used in 75-20-201, through 75-20-203, and this part, the following definitions apply:

(1)  "Facility", as defined in 75-20-104(8), is further defined to include any nuclear facility as defined in subsection (2)(a).

(2)  (a) "Nuclear facility" means each plant, unit, or other facility designed for or capable of:

(i)  generating 50 megawatts of electricity or more by means of nuclear fission;

(ii) converting, enriching, fabricating, or reprocessing uranium minerals or nuclear fuels; or

(iii) storing or disposing of radioactive wastes or materials from a nuclear facility.

(b)  Nuclear facility does not include any small-scale facility used solely for educational, research, or medical purposes not connected with the commercial generation of energy."



Section 23.  Section 75-20-1205, MCA, is amended to read:

"75-20-1205.   Emergency approval authority invalid for nuclear facilities. Notwithstanding the provisions of 75-20-304(2) and (3), the board may not waive compliance with any of the provisions of this part or 75-20-201 through and 75-20-203 or this part relating to certification of a nuclear facility."



Section 24.  Repealer. Sections 75-20-202, 75-20-205, 75-20-218, 75-20-220, 75-20-221, 75-20-222, 75-20-227, 75-20-501, and 75-20-503, MCA, are repealed.



Section 25.  Codification instruction. [Sections 1 through 3] are intended to be codified as an integral part of Title 75, chapter 20, and the provisions of Title 75, chapter 20, apply to [sections 1 through 3].



Section 26.  Applicability. A person who, prior to January 1, 1997, has filed a correct and complete air quality permit application with the department of environmental quality for a power plant capable of generating less than 150 megawatts is not subject to the provisions of Title 75, chapter 20.



Section 27.  Effective date. [This act] is effective July 1, 1997.

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