Gilbert / March v. Dept. of Energy

Under OAR 345-0371(9), EFSC is required to grant contested case proceedings only when it raises a significant issue of fact or law that is reasonably likely to affect the amendment.

Petitioners Irene Gilbert and Kevin March appeal EFSC’s approval of Idaho Power’s amended site certificate, which expands the site boundary and updates bond requirements. Petitioners assign error to (1) the adequacy of the bond under the site certificate and (2) the amendment’s potential to allow construction within the expanded area without legal protections for watersheds and fish and wildlife habitats. OAR 345-027-0371(9) requires EFSC to grant contested case proceedings only if it raises a significant issue of fact or law that would likely affect the amendments. OAR 345-001-0010(21) restricts construction with micrositing corridors within the site boundary, and OAR 345-027-0375(2)(e) requires EFSC to determine if the bond is adequate with the amendment. However, the bond challenge provision is untimely because it was in the original 2022 site certificate, not part of the challenged, altered amendment. The site boundary challenges fail because the construction is limited to micrositing corridors, so no authorized new construction or shortcuts in environmental review will occur. Thus, petitioners failed to raise significant legal or factual issues. The final order of the Energy Facility Siting Council is affirmed.