Portland General Elec. Co., Application of

Decision Date03 March 1977
Parties, 7 Envtl. L. Rep. 20,372 Application of PORTLAND GENERAL ELECTRIC COMPANY, an Oregon Corporation, for a site certificate to construct and operate certain thermal power plants st the Pebble Springs site, Gilliam County, Oregon. Lloyd K. MARBET, Petitioner and Harold C. Christiansen, v. PORTLAND GENERAL ELECTRIC COMPANY, an Oregon Corporation, and the Energy Facility Siting Council, Respondents.
CourtOregon Supreme Court

William L. Hallmark, Portland, argued the cause for petitioner. With him on the briefs were Robert L. Allen, Albert J. Bannon, Daryll E. Klein, Ryan Lawrence, William M. McAllister, Christopher P. Thomas, and Frank Josselson, Portland.

W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent Energy Facility Siting Council. With him on the brief were Lee Johnson, Atty. Gen., and Richard M. Sandvik, Asst. Atty. Gen.

David N. Hobson, of Phillips, Coughlin, Buell, Stoloff & Black, Portland, argued the cause for respondent Portland General Electric Company.


LINDE, Justice.

Since 1971, construction of facilities for the production and transmission of energy has required a site certificate from the state. This case is the first contested proceeding under the energy facility siting act, now ORS 469.300--469.570, 469.992. On application of respondent Portland General Electric Company (PGE), respondent Nuclear and Thermal Energy Council (now renamed Energy Facility Siting Council) recommended to the Governor that he issue a site certificate to PGE for construction of two nuclear-fueled power plants at a site in Gilliam County known as Pebble Springs. Two individual petitioners whom the council had admitted as intervenors in its proceedings obtained review in the Court of Appeals. That court affirmed the council's order, 25 Or.App. 469, 550 P.2d 465 (1976), and petitioner Marbet sought review in this court. We allowed the petition in order to resolve issues of substance and procedure important to the administration of the statute. We reverse and remand to the Court of Appeals with directions to remand to the council for additional proceedings.

The statutory scheme

After enactment of the original statute, Oregon Laws 1971, ch. 609, no facilities covered by the act could be constructed or expanded without a certificate executed by the Governor upon the recommendation of a Nuclear and Thermal Energy Council composed of the Public Utility Commissioner, the State Engineer, the State Health Officer, the Director of the Department of Environmental Quality, and five 'public members' appointed by the Governor. In 1975, in legislation revising the state's energy laws and creating a Department of Energy, the terms and coverage of the facility siting law were amended in some respects, and the Nuclear and Thermal Energy Council was replaced by a new Energy Facility Siting Council composed only of seven public members. Oregon Laws 1975, ch. 606.

The statute assigns the council a wide range of duties relating to power facilities in this state. Its responsibilities concern the selection and certification of sites, ORS 469.470, the operating safety of power plants, their environmental effects, and disposal of their wastes, ORS 469.500, the security of nuclear installations and the transportation of radioactive material, ORS 469.530. The statute reflects a legislative policy to centralize these responsibilities in the council. The council's site certificate, when signed by the Governor, is binding on all state and local agencies as to the use of the site and the construction and operation of the facility, and other state agencies are directed to issue whatever permits may be required under their respective authority. ORS 469.400(5). The concerns previously pursued through these separate agencies are now to find expression through special advisory groups, ORS 469.480, interagency coordination, ORS 469.470(6), 469,520, and in the council's procedures, ORS 469.350(3), 469.370(1), 469.380, ORS 469.470(2) and (4). These procedures include provisions for public participation, but the nature and extent of that participation is disputed in this case.

The statute expressly directs the council to exercise some of its functions by rules or regulations. ORS 469.500(1), 469.510, 469.530. In the process of site certification, the statute directs the council to proceed by three procedures: General studies and investigations relating to site selection, ORS 469.470(1), designation, after public hearings, of areas suitable or unsuitable as sites for various types of energy facilities, ORS 469.470(2), and action on applications for certification of a specific site, ORS 469.370, 469.470(4). Proceedings on a specific application result either in a rejection of the application or in a recommendation to the Governor to grant the certificate. A certificate must contain conditions for the protection of the public health and safety, ORS 469.400(3), and the applicant's warranties as to this protection and as to its financial and operating qualifications, ORS 469.400(4). The Governor may decide against the recommended certificate, but he cannot execute a certificate rejected by the council. ORS 469.400(7). A site certificate is executed by the applicant as well as by the Governor acting 'for the state of Oregon' (described in the statute as 'parties'), and once executed it is binding on the state, ORS 469.400, although it may be revoked or suspended for cause. ORS 469.440. All the foregoing procedures and judicial review thereof are subject to the Administrative Procedure Act, ORS 183.310--183.500.

A central question concerns the standards to be used by the council in reaching a certification decision. The key section on the site certification process, ORS 469.470, directs the council to establish standards 'that applicants . . . must meet' including standards of ability to finance, construct, and operate the facility. The parties are in disagreement whether the council complied with this directive.

The proceedings

PGE filed its statutory notice of intent to apply for a site certificate in December, 1972 and its application in December, 1973, followed by amendments in May and July of 1974. The notice of intent and the application were circulated to other agencies for their comments, as required by ORS 469.350(3). In September, 1974, the council published notice of a prehearing conference and a hearing schedule. Thereafter Mr. Lloyd K. Marbet of Portland, Oregon, and Mr. Harold C. Christiansen of Lincoln City, Oregon, filed petitioners to intervene in the council's proceedings in opposition to the application. Marbet asked to intervene as an individual and in a representative capacity in order to dispute issues concerning dangers posed by nuclear power plants and radioactive materials to persons, plants, and animals, and concerning the propriety of 'banking' a site (i.e., extending the period of a site certificate beyond the date of construction on which the application is premised). Christiansen petitioned to intervene as an individual on the issue of dangers to health and welfare to himself and others posed by the disposal of nuclear waste materials. Over PGE's objections, the council granted Marbet's and Christiansen's petitions to intervene, limiting each to testify and cross-examine on the issues raised in his petition.

After prehearing conferences to identify contested issues, a hearing examiner held hearings on PGE's application in November, 1974, in Arlington and Portland. Thereafter the parties were invited to submit findings, conclusions, and proposed terms for the site certificate, and to reply to such submissions. On April 11, 1975, the council adopted its order, accompanied by findings and conclusions, recommending to the Governor approval of a site certificate for PGE's Pebble Springs project under the terms, warranties, and conditions of a site certificate agreement accompanying the order. One member of the council dissented on the ground that serious problems of the disposal of spent nuclear fuel remain unresolved.

The intervenors, Marbet and Christiansen, obtained review of the order in the Court of Appeals. In a cross-petition, PGE raised objections to the council's admission of intervenors as parties to the proceedings. While the case was before the Court of Appeals after the statutory deadline for agency withdrawal of an order for reconsideration, ORS 183.482(6), petitioners and the council asked the court to remand the case for consideration of subsequent changes in the financial arrangements for the project. The Court of Appeals denied this motion and affirmed the council's order in all respects. Only Marbet petitioned for review in this court. However, PGE's contentions in the Court of Appeals remain pertinent to the extent that, if accepted, they would preclude reversal of the judgment affirming the order. Accordingly, we turn first to the preliminary issues of judicial review.

Status of the parties

Status of the Parties

Since the council's resulted from a contested case, ORS 183.310(2), judicial review is governed by ORS 183.480. The pertinent words read:

'(1) Any person adversely affected or aggrieved by any order or any party to an agency proceeding is entitled to judicial review of a final order, * * *.'

The statute provides two distinct bases of standing entitling one to judicial review of an agency decision. Any Party to the agency proceeding, which includes any person in fact named or admitted as such by the agency, ORS 183.310(5), is entitled to judicial review by that fact alone, without further showing of interest. But one need not have participated in any way in the administrative process to obtain judicial review. Any Person is entitled to judicial review of an agency order...

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