March 15, 2015
Mr. Eric Desmarais
Energy Facility Siting Analyst
Oregon Department of Energy
625 Marion St, NE
Salem, Oregon 97301
Dear Mr. Desmarais:
I am requesting a Contested Case hearing regarding the proposed order for Summit Ridge Wind
Farm, Amendment No. 1
1. Issues Being Contested:
EFSC erred in Acceptance of the amendment request over 5 mos. after the deadline
for filing it had passed. The request for Amendment No. 1 needed to be submitted
by Feb. 18, 2014 according to the EFSC rules. It was not submitted until August 15,
2014. The applicant failed to show good cause for the delay as required by 345-0270030(1). EFSC erred in considering a lack of need for the electricity being generated
as this is specifically excluded from EFSC jurisdiction by ORS 469.501. Per OAR 345022-0000 the council cannot waive any applicable state statute.
2. DOE and the EFSC are not allowed to consider whether or not there is a need for the
energy which will be generated by the Summit Ridge Wind Farm. The statutes are
clear in the exclusion of need as a consideration in eligibility determinations for
wind developments. An amended site certificate has the same legal standing as the
original site certificate and the amendment to extend the start date of construction
constitutes a general reopener. The EFSC cannot rely on arguments that there was
no purchaser for the electricity which would be generated to base a decision
regarding whether or not there is just cause for the applicant’s untimely request for
an extension in the start date for this project. All the information contained in
section 1.2 of the application for amendment, paragraphs 1 through 3 and
paragraph 6 relate to the fact that the developer had been unable to find a
purchaser for the energy they will generate. None of this information has relevance
to or can be considered in a determination of “good cause”. Even if it were not
excluded from consideration by statute and rule, the circumstance the developer
found themselves in is no different than most of the developers who currently have
site certificates, but have not initiated construction. The information in section 1.2,
paragraphs 4 and 5 relating to the costs associated with the start of construction do
not support a determination of good cause because these are not costs that occur
until the developer actually decides to start the construction process. They are not
costs that occur due to the applicant filing an amendment request and are not costs
which would have to occur prior to the filing of the amendment request and thus
are not relevant to a good cause determination.. The only costs the developer must
assume are the costs of payments to the landowners and the cost of submitting and
processing the application for amendment.
Other developers who have no purchaser for their electricity assume the costs of
filing for an amendment and pay the landowners until such time as they are ready
to start construction. They meet the required timelines and process amendment
requests with the same issues that this developer has. These are not circumstances
which justify a determination of good cause to request an amendment over 5
months after the mandatory date for doing so. Unless the agreements this
developer has with their landowners are significantly different than those of other
developers, they can cancel their agreements with the landowners with a simple
notice. This has been done by other developers. In addition, unless this developer
can prove that their payments to landowners are substantially more than other
developers, there is nothing unusual about a developer making payments to
landowners during extensions of the start dates for construction. It is done all the
time. A determination of good cause requires a set of circumstances that are
substantially different than the norm and outside the control of the applicant.
Nothing in this situation meets the test for a determination of good cause and
nothing prevented the applicant from filing their request on time. The EFSC does
not have the authority to accept excuses relating to a lack of a purchaser for their
product as justification for failing to follow the rules. The statute clearly removes
this issue from EFSC consideration. There is nothing in the “just cause” argument
given by the applicant that constitutes unusual or extraordinary circumstances
outside the control of the applicant.
For the above reasons, I am requesting that a contested case be provided due to the
fact that the actions taken by the EFSC do not comply with the statute. Need is not
an issue EFSC is allowed to consider and even if they were able to consider it, there
is nothing unique about a developer not having a purchaser for their electricity that
would preclude them from meeting the timeframes required by rule. There is no
justification for a determination of good cause when the circumstances are the
same as virtually every other developer who is timely in their requests.
Sincerely,