ML20206U029
| ML20206U029 | |
| Person / Time | |
|---|---|
| Site: | Satsop |
| Issue date: | 04/15/1999 |
| From: | Ross D WASHINGTON, STATE OF |
| To: | |
| References | |
| 98-1, NUDOCS 9905250016 | |
| Download: ML20206U029 (15) | |
Text
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, f()D SERVICE DATE 1
fpk APR 2 01999
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' BEF' ORE THE STATE OF WASHINGTON ENERGY FACILITY SITE EVALUATION COUNCIL 7
8 In re Application No. 98-1 9
.of COUNCIL ORDER NO. 731 10 WASHINGTON PUBLIC POWER ORDER RECOMMENDING GOVERNOR'S
'i SUPPLY SYSTEM APPROVAL OF AMENDMENTOF SITE
.I1 CERTIFICATION AGREEMENT FOR For Amendment of Site Certification SATSOP POWER PLANT SITE
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Agreement for Satsop Power Plant Site 13 14 Nature of the Aetion. This matter involves a request to the Washington State Energy Facility Site Evaluation Council (EFSEC or the Council) to amend the existing Site Certification 15 Agreement (SCA) for the Satsop Power Plant Site.' The existing SCA authorizes construction and operation of two nuclear power plants (WNP-3 and WNP-5) and a combustion turbine 16 (Satsop Combustion Turbine Project). The purpose of the requested amendment is to remove the authonzation for the two nuclear power plants from the agreement. The remaining agreement 17 would continue to authorize the operation and construction of the combustion turbine project with an associated natural gas pipeline.
I8 Procedural Setting. On June 25,1998, the Washington Public Power Supply System (Supply 19 System) filed a request with the Council to a nend its SCA for the Satsop Power Plant site.
Consistent with WAC 463-36-030 and purst. ant to due and proper notice, the Council held a j
20 puolic hearing in Montesano, Washington, on October 28,1998, to receive comments on the proposed amendment. The Council also received written comments on the proposed amendment 21 through November 30,1998.
22 While this application was pending, the Supply System has engaged in negotiations with the t;
Satsop Redevelopment Project (SRP), an interlocal grou compsed of Grays Harbor County, 23 the Port of Grays Harbor, and the Grays Harbor Public lity Jistrict (PUD). Th? SRP has also been in negotiation with the Washington Department of Fish and Wildlife (WDFW). Certain -
24 agreements executed between these parties have provided the Council with information relevant to its decision here.
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' 25 The Council has reviewed the request for amendment under the procedures outlined in chapter 26 463-36 WAC and hereby submits this recommendation to the Govemor of the State of Washington for final action.'
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EFSEC Order No.731 PDR ADOCK 05000508f
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1
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l FINDINGS OF FACT j
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These findings do not attempt to provide a chmnology of events on the Satsop site since 1976.
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3 Rather, they highlight and document certain assurances that EFSEC believes are necessary prior to completion of this amendment.
4 1.
WNP-3 and WNP-5 are unfinished r.uclear facilities. They are located on private (not 5
federal) land near Elma, Washington. The Board of Directors of the Supply System formally terminated WNP-5 in January 1982 and WNP-3 in May 1994. Nuclear fuel was 6
n t brought onto the sites, and the plants were never completed or operated.
7 Transfer ofSite 8
2.
On February 26,1999, the Satsop Site Transfer Agreement (Transfer Agreement) between the Washington Public Power Supply System (Supply System) and the Satsop 9
Redevelopment Project (SRP) became effective. The agreement contains the terms and conditions for the transfer of the ownership of, management of, and responsibility for the 10 Satsop Site from the Supply System to the SRP. Satsop Site Transfer Agreement, February 26,1999, p.1.
I1 State Interest in Economic Development 12 3.
Washington has recognized the statewide importance of economic development, 13 Particularly in communities where changed circumstances have required retraining to create a healthy economy. Governor Locke has praised the Grays Harbor community for 14 its commitment to this goal. Remarks at the Dedication of the Satsop Development Park.
November 17,1998.
15 4.
Grays Harbor County is designated as economically distressed with a three-year 16 unemployment average of at least 20 percent above the state average and has been affected by downturns in the state's commercial salmon and timber harvests. Community 17 Economic Revitalization Board Community, Department of Community, Trade, and Economic Development, November 20,1998.
I8 Feasibility ofEconomic Development at Satsop Site 19 5.
In 1996, the Satsop Redevelopment Project (with supporting funding from the Supply 20 System and Bonneville Power Administration) retained consultant NBBJ to study the feasibility of redevelopment at the Satsop Site, including the potential for a successful 21 business / industrial park and the potential for reuse of the existing infrastructure and facilities on the property.
22 6.
NBBJ concluded that the Satsop site offers competitive advantages for certain 23 business / industrial developments, which would be in keeping with the SRP's goal of economic stimulus. Five of the WNP-3/5 buildings have remaining economic life; the 24 reuse potential for the infrastructure is mixed; and the existing roads can accommodate increased traffic associated with site redevelopment. NBBJ, Phase 2 Final Report, June 25 1997,p.3.
26 2
i fSIC Order No ',
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l I
l Intentfor Economic Development 2
- 7. '
Th'e principal purpose of the SRP is economic development on the Satsop site. Sats.:p 3
Site Tn nsfer Agreement, February 26,1999. p. 3.
1 8.
4 The Supply System and SRP agree that the property transferred pursuant to the Traufer Agreement is intended to be used for the purposes of economic development in Grays 5
Ilarbor County. Satsop Site Transfer Agreement, February 26,1999, Exhibit A, p. A-1.
The Council understands this statement to mean that only the developedportion of the 6
pr perty is intended for economic development purposes. The undeveloped acres of-he l
Satsop Site will be protected, managed, and in some cases enhanced for the benefit of wildlife including habitat.
7 8
h idana ofCosts 9.
9 NBBJ estimated that complete site restoration, including demolition to grade, would cost i
approximately $40 million. NBBJ, Phase 1 Report, February 1997, p.13.
L 10 Transfer to Political Subdivision (s) ofthe State i
11 10.
The Satsop Redevelopment Project (SRP) is a local public agency, formed in April 1996 12 by interlocal agreement pursuant to chapter 39.34 RCW among Grays Harbor County. the Port of Grays Harbor, and the Public Utility District No. I af Grays Harbor County. The
- 3 SRP and each of these entities separately are political subdivisions of the state, composed of elected officials and located in the same county as the Satsop Site.
I I
14 l
11.
Under the Transfer Agreement, the SRP may assign the agreement to a public corporation 15 f rmed pursuant to County ordinance for the purpose of taking possession of and I
managing the Satsop Site. The Supply System and SRP have agreed that any assiguoent i
16 shall assign the agreement in its entirety with no changes or amendments unless agreed i
otherwise in writing. Satsop Site Transfer Agreement, February 26,1999, p.12.
i 17 Transfer ofTitle 18 12.
In the Transfer Agreement, the Supply System undertakes to deliver an executed wa=2nty j
39 deed conveying fee simple title to the Satsop Site into escrow as soon as possible afte:-
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February 26,1999. At closing, the escrow agent shall deliver the duly executed and i
l 20 acknowledged warranty deed to the SRP. The legal description of the site is contained in I
the agreement. Satsop Site Transfer Agreement, February 26,1999, Exhibit A, pp A 1, A-6; Exhibit A-1 to Exhibit A.
21 Site Restoration i
22 13.
23 The principal purpose of the restoration work is to put the real property and certain buildings and structures into agreed condition for use by the SRP. Restoration work shall 24 be accomplished through one or more "Demalition and Restoration Contracts" awarded by Supply System and subsequently assigned to the SRP to manage. The SRP will have 25 the opportunity to participate in developing the specifications for the contracts. Satsep Site Transfer Agreement, February 26.1999, pp. 3-4, and Exhibit A-6 to Exhibit A, p. A-64.
26 1
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I 14.
The Supply System and SRP's mutual understanding of the scope of Demolition and 2
Restoration work is reflected in a letter from Burns & McDonnell Engineers to the Supply System dated November 3,1998. Satsop Site Transfer Agreement, February 26,1999, Exhibit A-6 to Exhibit A, p. A-6-6.
3 15.
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4 The Supply System briefed members of the Council in February 1998 and February 1999 on restoration plans mutually agreed with the SRP. On October 28,1998, some Council 5
members toured the site to evaluate the effectiveness of the restoration plan.
6 Public Health and Safety, Security on the Site 16.
7 The restoration work will provide for certain protections of the public health and safety.
Satsop Site Transfer Agreement, February 26,1999, pp. 3-4.
8 17.
From February 26,1999 until completion of the Supply System's obligations for site 9
demolition and restoration and any asset disposition, the Supply System and SRP will jointly occupy the site. Exhibit C of the Transfer Agreement prescribes the arrangements 10 f rj int occupation and use of the site, including the transition of custody and control.
18.
33 The SRP will assume the responsibility for site security sixty days after receipt of the closing amount in the Transfer Agreement. The Agreement defines " site security" to 12 include a secure perimeter fence around the site, on-site guards, security systems, and other measures that are reasonably necessary. Satsop Transfer Agreement, February 26, 1999, Exhibit, p. C-1.
13 14 The Supply System will be responsible for additional security measures that may be 19.
necessary or advisable during Demolition and Restoration. The Supply System shall erect a security fence suitable to prevent entry around the boundary of the Power Block. This 15 fencing isolates the health and safety concerns unique to the site. Initially, the fence line shall include both cooling towers in the Power Block. After completion of restoration j
16 work on each cooling tower, the fence line shall be moved to exclude that tower from the 37 Power Block secured area. Satsop Site Transfer Agreement, February 26,1999, Exhibit C, p. C-4.
18 Responsibility and Liabilityfor Public Health and Safety 19 20.
The SRP has agreed to assume responsibility for complying with local regulations that 20 pr tect the public welfare, including, but not limited to, general and environmental health and safety, at the site. Satsop Site Transfer Agreement, February 26,1999, p. 7 21 21.
During the period ofjoint occupation and use beginning February 26, the Supply System and SRISvill each bear responsibility for its own intentional or negligent acts or
.n omissions that result in property damage, personal injury or death, and shall defend, 23 indemnify and hold harmless the other party therefore during that time. Satsop Site Transfer Agreement, February 26,1999, Exhibit C, pp. C-5.
24 Public 'Velfare; Wildlife Mitigation Agreements 25 22.
"Public welfare," as used in RCW 80.50.300(2), means " health, scf:ty and the 26 envir nment, including any existing fish and wildlife agreements and successor agreements." Journal of the liouse, Fifty-Second Day, February 28,1996, p. 2068.
4 f f Sf C Order No 731
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I 23.
In November 1998, the SRP and the Washington Department of Fish and Wildlife 2
(WDFW) executed their Satsop Power Plant Site Wildlife Mitigation Lands Management Agreement (new Mitigation Agreement). The agreement is binding on the SRP, the individual signatories, and the WDFW.
3 24.
4 Under the agreement, upon transfer of the Satsop Site from the Supply System to the SRP, the " Supply System's duties and responsibilities for the protection of wildlife, including 5
habitat, shall be transferred to the SRP."' The SRP will fund up to three weeks of WDFW staff time for monitoring and coordination. The commitments contained in the 6
inc rporated documents will remain in force unless and until modified, per the terms of the new agreement.
7 25.
The new Mitigation Agreement shall be binding on all successors or assignees. Control of 8
the lands designated for wildlife mitigation may be transferred to a third party upon written concurrence of the SRP and WDFW. Thus, the Council understands that, if the 9
site is transferred to a public corporation, WDFW may either agree to have the public corporation assume these responsibilities or continue to hold the individual signatories of 10 the new Mitigation Agreementjointly and severally liable. Satsop Power Plant Site Wildlife Mitigation Lands Management Agreement, November 1998, p. 3.
I1 26.
The Supply System's " duties and responsibilities" under the 1994 agreement included (i) 12 acceptance of the 1994 Habitat Evaluation Procedure (HEP) Impact Assessment as a standard, (ii) fulfillment of the obligations in the Satsop Wildlife Mitigation Plan, Revision 1, and (iii) agreement to the terms in the Wildlife Mitigation Plan Standard 13 Operating Procedures. Agreement on Management for Wildlife Mitigation between the y
State of Washington Department of Fish and Wildlife and the Washington Public Power Supply System,1994.
15 27.
In Resolution 275, EFSEC approved the 1994 Agreement on Management for Wildlife Mitigation. Council Resolution No. 275, November 14,1994.
16 28.
37 The Transfer Agreement acknowledges the new Wildlife Mitigation Agreement.
18 Reendon opCModauogmnbudonfuMnmojed 39 The proposed revision to the SCA deletes the terms relevant to the nuclear projects and 29.
retains the terms relevant to the combustion turbine project. The amended SCA will 20 e ntinue to certify the construction and operation of the Satsop Combustion Turbine project.
21 CONCLUSIONS OF LAW g
1.
The proposed amendment to the SCA is consistent with applicable laws and rules. WAC 23 463-36-040(2) 24
' De SUPP y System's duties atA nsponsibilities are contained in a 1994 agreement between the Supply System l
25 and WDFW entitled " Agreement on Management for Wi!dlife Mitigation Between the State of Washington 26 Department of Fish and Wildlife and the Washington Public Power Supply System."
5 trsrc order so 73:
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2.
The proposed amendment to the SCA is consistent with the public health, safety, and welfare. WAC 463-36-040(3) and WAC 463-36-050, 3.
The proposed amendment to the SCA is consistent with the original Site Certification Agreement (SCA). WAC 463-36-040(1).
Discussion:
Notwithstanding the close inte'rrelationships between the Supply System's amendment request I
and the Supply System and SRP's ultimate plans for the site, the Council's action here is strictly termination of a " license."2 It is not state authorization to engage in any particular activity on i
any portion of the site. Any future plans for the site are subject to all applicable state and local laws, including the State Environmental Policy Act.
Chapter 463-36 WAC governs the Council's procedure for amending or terminating a Site
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Certification Agreement. WAC 463-36-040 outlines the relevant considerations prior to a
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decision to amend or terminate. Specifically,
...[i]n reviewing any proposed amendment, the council shall consider whether the proposalis consistent with:
(1) [t]he intention of the original SCA;
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(2)
[a]pplicable laws and rules; and (3) [t]he public health, safety, and welfare.
WAC 463-36-050 explains that the council's consideration of public health, safety, and welfare includes environmental concerns, as follows:
[ijn reviewing whether a proposed amendment is consistent with the public health, safety, and welfare, the council shall consider the short-term and long-term environnenal impacts of the proposal.
As indicated in the Conclusions of Law, the Council has considered all relevant factors, and concluded that the proposed amendment is consistent with these factors. Each of the council's
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conclusions is discussed below.
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A.
Consistency with applicable laws and rules.
The Council's action must consider all applicable (and potentially applicable) laws and rules, including but not limited to RCW 80.50.010, chapter 43.21C RCW (the State Environmental Policy Act or SEPA), the Council's rules for 42-655-680, and potentially RCW 80.50.300.gite restoration in WAC 463-54-080 and WAC 2 The proposed revis. ion to the SCA deletes the terms relevant to the nuclear projects and retains the terms relevant to the combustion turbine project. The amended SCA will continue to cenify the constmetion and operation of the Satsop Combustion Turbine project.
1 8 The Council notes that RCW 80.50.300(1) and RCW 80.50.300(2) each apply te ";htly different circumstances.
RCW 80.50.300(1) is not conditioned on the transfer of title to the site, and allows the transfer of site re storation responsibilities with or without the transfer of title.
l 6
ITSEC Order No.731 l
1 L
I 1.
Consistency with RCW 80.50.010 (Lenislative Intent)
The Legislature's intent in creating EFSEC, as expressed in RCW 80.50.010, was to create a 3
pr cess to balance the need of state citizens for energy and the state's interest in protecting the quality ofits environment. When the Legislature amended this section in.1996, it acknowledged 4
these interests may include the efficient reuse of resources. Specifically, RCW 80.50.010(4) indicates that the state (through EFSEC's actions) will strive 5
[t]o avoid costs of complete site restoration and demolition ofimprovements and infrastructure at unfinished nuclear energy sites, and to use unfimshed nuclear energy 6
facilities for public uses, including economic development, under the regulatory and management control oflocal governments and port districts.
The proposed amendment to the SCA is consistent with the Legislature's intent, as expressed in 8
RCW 80.50.010, because it allows for the efficient reuse of resources. Termination of the SCA will terminate EFSEC's regulatory authority on the WNP-3/5 site and allow the Supply System 9
and SRP to proceed with their plans for the site, subject to applicable state and local law.
10 The Supply System and the Satsop Redevelopment Project have presented a plan that will allow th: SRP to pursue economic development, reusing structures and infrastructure on the site for
- 3 commercial and light industrial purposes, rather than demolishing them. Through the intended transfer of the site (outside the scope of this amendment process), such redevelopment will be 12 under the full management and regulatory control oflocal government, including Grays Harbor County, the public utility district, and the Port of Grays Harbor.
13 2.
Consistency with SEPA (chapter 43.21C RCW and chapter 197-11 WAC) 14 In general, SEPA requires an agency to prepare an Environmental Impact Statement (EIS) before 15 taking any major action significantly affectmg the quality of the environment. See RCW 43.21C.030(c). The SEPA rules require 16
[a] supplemental EIS (SEIS) shall be prepared... if: (a) there are substantial changes to a proposal so that the proposal is likely to have significant adverse environmental impacts; 17 or (b) there is significant new information indicating... probable significant adverse environmentalimpacts. WAC 197-11-405(4).
EFSEC's responsible SEPA official determined that an SEIS is not required for this amendment 19 of the SCA. The Council endorsed this conclusion. SEPA requires an agency to " prepare an SEIS if substantial changes in the proposal or new information indicate probable significant 20 adverse environmental impacts not adequately covered by the range ofalternatives and impacts
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analyzedin the FEIS."(emphasis added) The Washir.cton State Environmental Policy Act. A 21 Lecal and Policy Analysis, Issue 10, Richard L. Settle,1998, p. 205. Amendment of the SCA to j
withdraw the right to complete construction and to operate the nuclear facility would have no j
22 significant environmental effect that had not already been studied. The original Environmental j
23 l
RCW 80.50.300(2) is conditioned on the transfer of title, and requires the Council to release the site at the point a 24 deed is delivered. In this case, RCW 80.50.300(2) may or may not apply, depending on whether title is transferred a
before or aner the Council's amendment.
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25 Irrespective of the applicability of either of these sections, the Council's amendment process requires a full review under chapter 463 30 WAC.
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trstc onder so 7n i
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1 Impact Statement,' the 1994 IIEP analysis (performed in conjunction with the 1994 Agreement n Management for Wildlife Mitigation), the environmental analysis presented in the 2
adjudications of both the nuclear and CT projects, and the Ccuncil's review of the Supply System's Site Restoration Plan in 1995 (prior to the adoption of Resolution 280) all have 3
provided thorough information about environmental impacts at the site.
4 As the local entities proceed with economic development plans for the developed portion of the site, additional environmental review, up to and including SEPA study, will likely be required.
5 3.
Consistency wi'th the Council's rules for site restoration 6
7 The Council's statute sets no general provisions for site restoration. The Council's rules on site restoration indicate that 8
[i]n the absence of a council determination as to the level of site restoration, restoration of the site to a reasonable approximation ofits original condition prior to construction 9
should be required. WAC 463-42-680.
10 Although the Council's rules establish a default, the rules acknowledge that the Council has discretion not to require "greenfield re::toration." In this case, the Council's " determination as to
- 3 the level of site restoration" will be guided by RCW 80.50.010(4), which encourages the Council to allow economic restoration in lieu of greenfield restoration. Thus, the proposed amendment to the SCA is consistent with the Council's rules.
12 13 4.
Anniipbility of RCW 80.50.300 14 RCW 80.50.300 contains provisions for release of EFSEC's jurisdiction upon transfer of a site to "any political subdivision or subdivisions of the state composed of elected officials." Because a 15 transfer has not occurred, and because the ultimate transfer will not necessarily be made to a political subdivision composed of elected officials, the Council finds that this section is not 16 directly applicable. However, the Council is guided by the expression of public policy contained therein.
17 18 In conclusion, the Council's rules require it to consider whether the proposed amendment is consistent with applicable laws and rules. As demonstrated, the Council has considered whether 19 the proposed amendment is consistent with RCW 80.50.010, SEPA, the Council's rules regarding site restoration, and expressions of public policy in RCW 80.50.300. The Council 20 concludes that the proposed amendment is consistent with each.
21 H.
Consistency with public health, safety, and welfare 22 The Council must consider whether the proposed amendment protects public health and safety, protects environmental aspects of the public welfare, and is consistent with the public welfare in 23 other regards.
s 24 1.
Protection of health and safety 25 The proposed amendment itself simply withdraws EFSEC's right and tesponsibility to regulate public health and safety on the site. The amendment in no way alters the condition of the site 26 vis-a-vis public safety. EFSEC has required full assurance that public health and safety will be fully protected at all times as a necessary condition to releasing its regulatory authority.
g rJSI C order No 731
I During the past months, EFSEC has maintained close communication with the Supply System and the SRP, regarding their plans to secure the site as the structures are gradually reconfigured for future industrial purposes. The Supply System and SRP have briefed the Council and its Executive Committee, and Council members toured the site in October 1998. See Finding of Fact No.15.
4 The Transfer Agreement memorializes these plans. Through the agreement, the SRP acknowledges and accepts responsibility for complying with local regulations that protect the 3
public welfare, including, but not limited to, general and environmental health and safety, at the 6
site. See Finding of Fact No. 20. Through a series of transitional steps, the site will be secured and restored, ultimately leading'to the SRP's full custody and control of the site. The Transfer 7
Agreement delineates clear responsibilities for securing the site and clear liabilities for the public health, safety and welfare during the transition. See Findings of Fact Nos.17-21.
8 Consistent with the assurances contained in the agreement, EFSEC is satisfied that amendment 9
of the SCA, releasing its oversight, is consistent with public health and safety.
2.
Protection of the oublic welfare.
j 10 ll a.
Environmentalissues.
12 WAC 463-36-050 requires the Council to consider the short-term and long-term ensironmental impacts of a proposed amendment. The Council notes that this requirement may be more 13 applicable to an amendment other than termination in which the certificate holder has requested a specific change in its activities on the site and the Council is able to evaluate the environmental 14 impacts of the proposed change. In the case of termination, the certificate holder does not request a specific change; future activities on the site remain speculative and the environmental 15 impacts are difficult to evaluate. Nonetheless, the Council has considered the environmental impacts on both the developed site (approximately 400 acres) and the undeveloped site 16 (approximately 1200 acres).
17 (1)
Developedportion.
18 Consistent with the terms of the transfer agreement, the Council understands that the SRP 39 intends to use the currently developed portions of the site for light industry and commercial purposes. This will likely involve reconfiguring structures in the power block, building new 20 structures, expanding the existing infra structure, and attracting tenants. The Council notes that the SRP, as the governmental entity responsible for future action on the site, is subject to SEPA y-and all other legally required processes. Thus, the Council is satisfied that all potential adverse environmental impacts arising from future activities on this portion of the site will be adequately 22 addressed by the appropriate parties with appropriate opportunity for public involvement.
23 (2)
Undevelopedportion.
24 Amendment of the SCA (termination of the WNP-3/5 portion) includes terminat;on of the Supply System's obligation to the state to act within the constraints and conditions of the SCA, 25 as enforced by EFSEC. One of the major " environmental conditions" undertaken by the Supply System in the SCA was compliance with a stipulated wildlife mitigation plan (1994 Agreement 1
26 on Management for Wildlife Mitigation incorporated by reference into the EFSEC SCA). Unbr 9
USI C Oider Sc " ~
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the original mitigation plan, the Supply System was bound to preserve and m'anage '
approximately 1200 acres of forest habitat in its natural condition throughout the life of the SCA.
2 The Council has interpreted the agreement to continue through the year 2040 at a minimum.
3 Even though the wildlife mitigation plan was to continue through the year.2040, upon termination of the SCA, EFSEC no longer has authority to enforce its. terms.
4 Concerned about potential loss of protection for this significant habitat, the Council encouraged 5
the SRP, as future owner of the site, and the Washington Department of Fish and Wildlife (WDFW) to enter an enforceable agreement to perpetuate the terms of the mitigation plan. In 6
November 1998, these parties executed their Satsop Power Plant Site Wildlife Mitigation Lands Management Agreement, which adopts the terms of the existing wildlife mitigation plan. Under 7
4 this agreement, the commitments outlined in the 1994 documents remain in force unless and until modified in writing by mutual agreement of the SRP and WDFW. The Council believes 8
that WDFW will actively monitor the site and enforce the terms of the new agreement in the purmit ofits statutory mandate on behalf of the citizens of the state.
9 The new Mitigation Agreement between the SRP and WDFW is not effective until actual 10 transfer of title to the SRP. However, between the effective date of the SCA ' amendment (and concomitant termination of the Council'sjurisdiction over the mitigation lands), the original mitigation agreement between the Supply System and WDFW continues in effect and assures the protection of the mitigation lands until the new Mitigation Agmement becomes effective.
12 Public comments. The majority of public comments received.on the application for amendment 13 related to the issue of wildlife mitigation; these comments are addressed in this section of the Council's order. The Council received comments from the Grays Harbor Audubon Society 14 (Audubon), the WDFW, the Grays Harbor Public Development Authority (GHPDA), and Columbia-Pacific Resource Conservation and Development (RCD). These comments 15 encompass all the major concerns submitted to the Council.
16 i.
Mitigation in perpetuity.
17 Audubon position. Audubon argues that (i) mitigation for the effects of the construction of the nuclear plants should continue into perpetuity, and (ii) EFSEC has the responsibility and 18 authority to require as much.
19 First, Audubon states, the original Mitigation Agreement was compensation to the pe,ople of 20 Washington for the adverse environmental impacts of construction of the nuclear prgject.
Redevelopment as an industrial park perpetuates these impacts. As long as adverse unpacts exist, the people of the state must be compensated by the preservation of the mitigation lands.
21 Only after greenfield restoration do the effects of construction terminate.
22 23 24
- The 1998 Agreement states,"SRP...shall be bound by the Supply System's duties and obligations contained in the following documents, hereinafter referred to as the Wildlife Mitigation Documents: [i]...Satsop Power Plant Site 25 Wildlife Mitigation Plan, Revision I,...includ[ing] the Agreement on Peripheral Properties; [ii] Satsop Power Plant Habitat Evaluation Procedure impact Assessment, dated June 28,1994; and [iii] Satsop Power Plant, Wildlife Mitigation Plan, Standard Operating Procedures. Each of[these] documents is incorporated by reference..."
26 10 Er50C Order No.731
1 Second, Audubon asserts, EFSEC has the authority to ensure that mitigation will continue into y
per aetuity. It has the authority to require a conservation easement, to impose conditions that go wit i the land," or to perpetuate mitigation in some other fashion.5 3
GHPDA vosition. The Grays Harbor Public Development Authority (GHPDA) responds that 4
locking the site into preservation status for perpetuity is not reasonable. The site may be fully restored at some point, such that mitigation is no longer required.
5 Discussion. In general, EFSEC does not inter) ret its authority as broadly as Audubon proposes.
-6 During the life of an SCA, EFSEC has the autlority to set terms and conditions for the a
construction and operation of a project and to enforce those terms and conditions. This includes 7
terms to mitigate adverse environmental effects. The terms are regulatory in nature. _A_t termination of an SCA, EFSEC has the authority to determine an appropriate level of site 8
restoration (unless constrained by other provisions oflaw) and to predicate termination upon successful completion of these requirements. It does not have the authority to set regulatory 9
conditions for mitigation into the future. It does not have the authority to require property transactions. After termination of an SCA, EPSEC has no further regulatory authority. Thus, the 10 nly matter that the Council is asked and able to rule on at this time is whether to amend the Site Certification Agreement.
1I In this case, EFSEC's authority to determine the level of site restoration guided in significant 12 Part by statutory expressions of public policy negarding the use of unhinhad nuclear sites. If and when an actual transfer is effectuated as described in RCW 80.50.300, authority for public 13 welfare, including environmental mitigation, would be transferred to the SRP and its aneca==s.
At that point, EFSEC would have no authority to set terms for mitigation that will require funne 14 regulatory oversight. Moreover, EFSEC hcs no authority to require the grant of a conservation easement, which is the grant of an interest in property.
15 ii. Ambieuity in new Mitication Agreement
- 16 dudubon~vosition. Audubon argues that the terms of the new Mitigation Agreement are l
17 ambiguous and suggests that EFSEC should require clarification of the terms prior to amendmg i
the SCA. Among the ambiguities are (i) the degree of forest management contemplated by the
'I8 agreement and (ii) the termmation date of the new Agreement. Audubon implies that EFSEC may be able to negotiate changes in either the Mitigation Agreement or the Transfer Agreemer 19 to clarify these issues.
j 20 Discussion. Whether or not the mitigation agreement is ambiguous, EFSEC is not in a position to alter or override its terms. Both the Mitigation and Transfer Agreements have been executed.
21 Prior to their execution, EFSEC consistently supported a strong, enforceable agreement to supercede the old Mitigation Agreement. This was accomplished in the new Mitigation 22 Agreement, after negotiation by knowledgeable people representing multiple interests. EFSEC has no role in these contractual relationships and no role m clarifying the tenns of contracts to 23 which it is not a party. Nevertheless, the Council is satisfied that the new Mitigation Apwii mt continues substantial protections and that changes require mutual agreement by the appropriate 24 representatives of the affected interests.
25 5-udubon has cited no legal authority for this proposition nor suggested mechanisms other than conservation casements to' accomplish this goal.
II Er$EC order No U1 e
a.umA-
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l' iii. Compliance with new Mitiaation Aerceme'nt 2
Audubon position. Audubon argues that (i) the SRP's plans are inconsistent with the Mitigation Agreement and (ii) the SRP's recent actions belie its commitment to the agreement.
3 Among the plans that are inconsistent, Audubon cites the Columbia Resource and Conservation 4
District's (RCD's) plans for a managed forest (with limited timber harvest) and the GHPDA's plans for recreational uses of the site. According to Audubon, these plans are intrusive and 5
change the character of the preserved lands.
6 Further, Audubon argues, the GHPDA may not have the cor.unitment or the resources to perform its responsibilities under the agreement. Recent actions including the county's rezone of portions 7
of the site and its retention of the Columbia RCD to study managed forestry indicate that it is exploring avenues for eventual use of the site. Moreover, operating with a minimal budget 8
within an economically depressed area, the GHPDA is unlikely to place a priority on allocating adequate funds for the management of the mitigation lands.
9 GHPDA and RCD vosition. The GHPDA and Columbia-Pacific RCD respond that they 10 acknowledge the Mitigation Agreement and are bound by its terms. Under the agreement, the primary objective of forest habitat management is to provide conditions suitable for viable
,3 populations of wildlife species dependent upon fomst habitats. This objective is to be met by Preserving and planning for the future development of mature forests. The RCD is investigating 12 a plan to im )lement a landscape management system that will allow the desired " mature forest" structure to 3e reached faster and more reliably than by natural aging. The plan will allow for 13 adaytive management. The WDFW has been and will continue to be involved in the formulation of t1e plan.
g 15 GHPDA acknowledges that it is open to the pos,sibility oflimited recreational use of the site. All decisions regarding public access to and recreational use of the site will be made with the broad Public interest in mind, consistent with the terms of the mitigation agreement.
16 Discussion. EFSEC notes that the SRP, the GHPDA, and the WDFW have all acknowledged the 37 existence of the Wildlife Mitigation Agreement as a binding agreement. The SRP and WDFW ea h has a statutory commitment to the public. Under the agreement, WDFW's monitoring l8 responsibilities will be funded by the SRP on a cost reimbursable basis. Based on the commitments of these public entities and the enforceability of the agreement, EFSEC believes 39 that the terms of the agreement ensure compliance.
i 20 iv. Enforcement of Mitication Acreement 21 Audubon position. Audubon argues that the WDFW is not politically in a position to enforce the Mitigation Agreement. If WDFW took a violation of the agreement to court, it would suffer 22 negative political repercussions. Consequently, WDFW is unlikely to enforce the agreement wg musly.
23 iscussi n. The Council notes that WDFW has voluntarily entered the new Wildlife Mitigation 24 agreement. The agreement is binding on the SRP, its individual members, and the WDFW and pr vides for compensation to WDFW not only for regular monitoring activities, but for costs and 25 attorneys' fees that may be incurred during enforcement. EFSEC must assume that WDFW, in i
entering and enforcing the agreement, has taken and will continue to take the steps it deems j
26 necessary to fulfill its statutory obligations to the public, at least to the extent that EFSEC would have done so under the SCA and, conceivably, more effectively and vigorously.
Q ErSEC Order No.731
1 In conclusion, the Council has considered both the sho t-and long-term environmental effects of 2
the proposed amendment on the developed and undeveloped portions of the site. The Council is confident that (i) future activity on the developed portion will be govemed by SEPA with active 3
public involvement 6 and (ii) future activity on the undeveloped site will conform to the terms of the new mitigation plan, as actively enforced by WDFW.
4 b.
Economic issues.
5
'Ihe proposed amendment also supports those aspects of the public welfare envisioned by the 6
Legislature when it amended the Council's statute in 1996. RCW 80.50.010(4) clearly expresses statewide policy that reuse of ah unfinished nuclear site for economic development, managed and 7
directed by a political subdivision, is consistent with the public welfare.7 Termination of the SCA without greenfield restoration opens the door for economic development, an acknowledged 8
'ri rity of the state in Grays Harbor County. Use of the existing facilities and infrastmeture,in ieu of demolition, restoration, and development of alternate sites, is an efficient use of public 9
financial and natural resources, benefiting not only the local community, but all ratepayers and citizens of the state. See Satsop Site Transfer Agreement, February 26,1999, p. 3.
10 In conclusion, the Council's rules require it to consider whether the proposed amendment is 3g consistent with the public health, safety, and welfare. After due consideration, the Council is confident that the public health, safety and welfare will be well maintained after the SCA is 12 amended.
13 C.
Consistency with the intention of the original SCA 14 The Council must consider whether the proposed amendment is consistent with the intention of the original SCA.
15 In general, the intention of every SCA is to grant state authorization to a cettificate holder to 16 construct and operate an energy project that has been determined to be in the state interest.
Through the SCA, the state grants the certificate holder a " license"8 for the project. In retum, 17 the cettificate holder commits itself to comply with the terms of the SCA, including (i) conditions governing construction, (ii) conditions governing operation, (iii) conditions to 18 mitigate for the environmental effects of construction and operation, and (iv) conditions EFSEC may subsequently im mse for site restoration (after consideration of restoration plans submitted 19 by the certificate hok er). The certificate holder' chooses whether to proceed to construction and may terminate the project at will, consistent with established tequirements for restoration.
20 During the life of an SCA, EFSEC has the authority to enforce compliance with these conditions 21 and the authority to set an appropriate level of restoration, required prior to termination.
22 23
- Grays Harbor Audubon Society, as demonstrated by its involvement in this amendment process, has a strong concern for the future of the site.
' Although the site may be transferred to a public corporation, the corporation would be bound by the same terms as g
the SRP. See Finding of Fact No. II.
- The " license" i:; called a site certificadon agreement.
26 13 ETSEC order No.731 w
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1 1
Tennination of an SCA concludes EFSEC's involvement with the site and its' ability to set and enf rce ongoing mitigation.
2 Termination of the SCA for the WNP 3/5 nuclear projects is consistent with its original intent.
3 The Supply System has chosen not to complete and operate the projects and accordingly has requested termination ofits " license" to do so.
4 As ertificate holder, the Supply System has complied with the conditions for construction.
j 5
operation, and mitigation set forth in the original document. Among the requirements for
{
mitigation was the stipulated wildlife mitigation plan, incorporated by reference into the SCA.
6 By incorporation of this agreement into the SCA, the Council required and the Supply System agreed to mitigate the loss of habitat occasioned by the clearing of the nuclear site during the life 7
of the project. Since the execution of the SCA in 1976, the Supply System has performed the required mitigation, preserving and managing the natural habitat.
8 9
As certificate holder, the Supply System has also comphi with the intent of the SCA regarding site restoration. Consistent with the Council's rules, the origina! SCA required the Supply System to update its plan for site restoration periodically (in a level of detail commensurate with 10 the time until site restoration is to begin), but acknowledged the Council's ultimate discretion to 3;
determine an appropriate level of restoration. Subsequent legislation has narrowed the range of the council's discretion in the event of a transfer of the site to a political subdivision. Because the Governor and legislature have indicated that redevelopment of the area as a vital industrial 12 park is in the state interest and stands in lieu of greenfield restoration, EFSEC does not believe it 13 is appmpriate to require further restoration prior to termination of the WNP 3/5 SCA?
E.
Conclusion 14 15 The Council has concluded that the proposed amendment to terminate the nuclear project is consistent with applicable law; the public health, safety, and welfare; and the intent of the 16 riginal SCA. - Certification for the Satsop Combustion Turbine project (CT project) condnues unchanged, tmder the terms and conditions in effect prior to the amendment. Certification for 17 the CT project was granted through the EFSEC siting process after a full review and adjudication in 1996.
18 When and if this amendment becomes effective and when loca: government assumes full 39 responsibility for the public interest at the site, the broad interesw of the state will have been well served.
20 21 22 23 I
' The Council's statute and rules provide no authority for EFSEC to establish and enforce mitigation measures past l
25 the termination of an SCA. Rather, EFSEC is expected to consider the state's interest in the environment as it establishes appropriate requirements for restoration.
26 14 trstc order No 73:
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x 4-p I
l ORDER I
I 2
For the fo'egoing reasons, the Council adopts the proposed Amendment No. 3 of the Site r
3 Certification Agreement for the Satsop Power Plant Site and recommends its approval by the Governor. The Council directs that this Order shall be attached to the amended Site Certification 4
^8reement and forwarded to the Governor of the State of Washington for~h,is consideration and action.
5 DATED and effective at Olympia, Washington, this ay pril 1999.
6 I
7 Ueb6 (EPEEC Chair 4
8 Notice: This is a final order of the Council. Administrative relief may be available through a 9
petition for reconsideration, filed with the Council Manager within ten days of the service of this order.
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14 15 16 17 18 19 20 21' 22 l
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.s 15 riste order No 731 l
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