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AGLO 1976 No. 71 - November 19, 1976
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- ENERGY FACILITY SITE EVALUATION COUNCIL ‑- AUTHORITY TO COMPEL COMPLIANCE WITH CHAPTER 80.50 RCW

The energy facility site evaluation council is not authorized by chapter 80.50 RCW, or any other law, to institute any form of legal proceeding to compel a given corporation to file an application for site certification or to refrain it from seeking a substantial development permit.

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                                                               November 19, 1976

Honorable Keith Sherman
Chairman, Energy Facility Site
Evaluation Council
820 East Fifth Avenue
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1976 No. 71

Dear Mr. Sherman:

            By recent letter you have briefly described a proposed refinery development by the Mobil Oil Company in Whatcom county and asked for our opinion on two questions relating thereto.  Specifically you have asked:

            "1) Whether the proposed Mobil development, including consideration of the identified amendment, falls within the definition and scope of RCW 80.50, as amended, and, therefore, under the Energy Facility Site Evaluation Council; and

            "2) What powers are conveyed by statute to the Energy Facility Site Evaluation Council to compel compliance with RCW 80.50."

            We respond to these questions in the manner set forth below.

                                                                     ANALYSIS

            Chapter 80.50 RCW, as amended by chapter 108, Laws of 1975-76, 2nd Ex. Sess., now encompasses the siting both of thermal power plants (as was the case under the original, 1970, law)1/ and of energy plant facilities as well.  The term "energy plant," as defined by RCW 80.50.020(17), means the following together with their associated facilities:

            ". . .

             [[Orig. Op. Page 2]]

            "(a) Any stationary thermal power plant with generating capacity of two hundred fifty thousand kilowatts or more and floating thermal power plants of fifty thousand kilowatts or more, including associated facilities;

            "(b) Facilities which will result in receipt of liquified natural gas in the equivalent of more than one hundred million standard cubic feet of natural gas per day, which has been transported over marine waters;

            "(c) Facilities which will result in the receipt of more than an average of fifty thousand barrels per day of crude or refined petroleum which has been or will be transported over marine waters, except that the provisions of this chapter shall not apply to storage facilities unless occasioned by such new facility construction;

            "(d) Any underground reservoir for receipt and storage of natural gas as defined in RCW 80.40.010 capable of delivering an average of more than one hundred million standard cubic feet of natural gas per day; and

            "(e)Facilities which will result in the processing of more than twenty-five thousand barrels per day of petroleum into refined products."  (Emphasis supplied.)

            As amended by § 34, chapter 108, supra, RCW 80.50.060 then states that:

            "(1) Provisions of this chapter shall apply to those energy facilities to be newly constructed or installed anywhere within the state of Washington, or to reconstruction or enlargement of such existing energy facilities where the new physical capacity being added meets or exceeds those capacities defined in section 30 of this 1976 amendatory act.  No construction of such energy facilities or energy transmission corridors may be undertaken, except as otherwise provided in this chapter, after the effective date of this 1976 amendatory act, without first obtaining certification in the manner provided in this chapter.

             [[Orig. Op. Page 3]]

            "(2) Provisions of this chapter shall not apply to normal maintenance and repairs which do not increase the capacity of an energy facility.

            "(3) Applications for certification of thermal power plants and associated transmission lines made prior to the effective date of this 1976 amendatory act, shall continue to be governed by the applicable provisions of law in effect on the day immediately preceding the effective date of this 1976 amendatory act.

            "(4) Applications for certification shall be upon forms prescribed by the council and shall be supported by such information and technical studies as the council may require."  (Emphasis supplied.)

            The effective date of chapter 108, supra, was March 15, 1976, in accordance with a specific provision to that effect contained in § 46 of the law.

            It would unduly lengthen this response to your letter to set forth, in detail, the statutory procedures which are to be found in chapter 80.50 RCW with regard to the certification of a thermal power plant or energy plant facility site.  Suffice it to say, however, that the basic function of the energy facility site evaluation council is that of reviewing each application for site certification and then making a recommendation to the governor who, in turn, is vested with the authority to make the actual decision and consummate a certification agreement if a particular application is approved.

            Finally, before turning to your questions, we take note of RCW 80.50.150, codifying the provisions of § 15, chapter 45, Laws of 1970, Ex. Sess. (the original siting act), which reads as follows:

            "(1) The courts are authorized to grant such restraining orders, and such temporary and permanent injunctive relief as is necessary to secure compliance with this chapter and/or with a site certification agreement issued pursuant to this chapter.  The court may assess civil penalties in an amount not less than one thousand dollars per day nor  [[Orig. Op. Page 4]] more than twenty-five thousand dollars per day for each day of construction or operation in material violation of this chapter, or in material violation of any site certification agreement issued pursuant to this chapter.

            "(2) Wilful violation of any provision of this chapter shall be a gross misdemeanor;

            "(3) Civil or criminal proceedings to enforce this chapter may be brought through the attorney general by the prosecuting attorney of any county affected by the violation.

            "(4) The remedies and penalties in this section, both civil and criminal, shall be cumulative and shall be in addition to any other penalties and remedies available at law, or in equity, to any person."

            Question (1):

            From the foregoing, with particular reference to the definition of the term "energy plant" in RCW 80.50.020(17), supra, it will necessarily be seen that the question of whether a given facility comes within the scope of that term is dependent upon all of the relevant facts of each case.  At this time, however, the proposed development to which you have referred in your letter is nothing more than that; i.e., a proposed addition to, and modification of, certain existing facilities now owned and operated by the Mobil Oil Company in Whatcom county.  The critical question, under RCW 80.50.020(17), is whether the project, when completed and put into operation, ". . . will result in the processing of more than twenty-five thousand barrels per day of petroleum into refined products."  RCW 80.50.020(17)(e).  If such is the result the test of the statute will be met and state certification under the siting act will be required.  Accord, RCW 80.50.060(1),supra.  But until that occurs the relevant facts as to this particular project are nothing more than mere speculation.

            Therefore, our present response to your first question must simply be that we cannot, at this time, conclusively determine for you whether or not the Mobil Oil Company development to which you have referred will, when actually constructed and put into operation, constitute an energy plant facility within the meaning of chapter 80.50 RCW, and, particularly, RCW 80.50.020(17),supra.  That determination  [[Orig. Op. Page 5]] can only be made on the basis of all of the relevant facts ‑ and those facts, in turn, can only be ascertained on the basis of the development as it actually comes into existence.

            Question (2):

            Of equal importance, it will also be seen from the above discussion of chapter 80.50 RCW that no actionable violation thereof can occur, in any given instance, until and unless the construction of (in this case) energy facilities within the meaning of the law actually commences.  It is the construction of such energy facilities which is prohibited by RCW 80.50.060(1),supra, without certification ‑ and not merely the preliminary planning of such facilities or, as in this case, the submission of an application for a substantial development permit under the state shorelines management act.2/   And by the same token, it is only an activity which is, in fact, violative of the law which may be remedied by a court action filed by either a prosecuting attorney or the attorney general under the provisions of RCW 80.50.150,supra.

            Conversely, we find nothing in the siting law which may be said to authorize the energy facility site evaluation council, as such, to initiate any form of legal action to enforce that law at any time.  Thus, even assuming, for purposes of discussion, that facts could now be developed which would clearly show the proposed Mobil project to be an "energy plant" as defined in RCW 80.50.020(17),supra, we are unable to find anything which would be legally supportive of an attempt by the council now to compel the Mobil Oil Company either to file an application for certification with the council or to abandon its pending application for a substantial development permit under the shorelines management act.

            If, however, at some future time it appears that there is a violation of the siting law as a consequence of either the construction or operation of the development in question, the attorney general's office will then be empowered, by virtue of RCW 80.50.150, to commence an appropriate civil action to remedy the situation as it then exists.

             [[Orig. Op. Page 6]]   Note, in particular, in that regard, the civil penalties which are specifically provided for in subsection (1) of RCW 80.50.150.  Thus if the Mobil Oil Company determines to proceed with the proposed development in question without compliance with the state siting law, and if it turns out that the project, as actually constructed and put into operation, does constitute an "energy plant" facility within the meaning of the law, you may most certainly be assured that this office will respond in an appropriate manner at that time.

            It is hoped that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Chapter 45, Laws of 1970, Ex.Sess.

2/In requesting our opinion on the above stated questions, you have advised us that, in late September, 1976, the Mobil Oil Company filed an application for a substantial development permit with Whatcom county.   You have then indicated that this application requested approval for, among other items, dock modification including modernized oil handling equipment.

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