Chapter 12 - Industrial Development And Siting
CHAPTER 12 - INDUSTRIAL DEVELOPMENT AND SITING
35-12-101. Short title.
Thischapter is the "Industrial Development Information and Siting Act".
35-12-102. Definitions.
(a) As used in this chapter:
(i) "Advisory member" means an advisory member of thecouncil provided by W.S. 35-12-104(f);
(ii) "Applicant" means any person who applies for apermit pursuant to this chapter;
(iii) "Commence to construct" means:
(A) Any clearing of land, excavation, construction or otheraction that would affect the environment of the site of any facility, but doesnot include changes needed for temporary use of sites for less than ninety (90)days, changes required to conduct required studies and tests under this chapter,or any other state or federal act or regulation, or access roads and servicesassociated with utilities, or routes for nonutility purposes or for uses insecuring geological data but not limited to necessary borings or drillings toascertain foundation conditions;
(B) The nuclear fracturing of underground formation, if anysuch activity is related to the possible future development of a facilitysubject to this chapter, but does not include the gathering of geological databy boring of test holes or other underground exploration, investigation orexperimentation.
(iv) "Council" means the industrial siting council;
(v) "Director" means the director of the departmentof environmental quality;
(vi) "Impacted area" means an area of Wyoming in whichsudden or prolonged population growth may occur or may cause environmental,social or economic stresses of such nature that the total local, state andfederal resources available are not sufficient to alleviate them properly andeffectively as determined by the council;
(vii) "Industrial facility" or "facility"means any industrial facility with an estimated construction cost of at leastninety-six million nine hundred thousand dollars ($96,900,000.00) as of May 30,1987. Exempt activities shall not be included in the estimated constructioncost of an industrial facility. The council shall adjust this amount, up ordown, each year using recognized construction cost indices as the councildetermines to be relevant to the actual change in construction cost applicableto the general type of construction covered under this chapter. "Facility" also includes, regardless of construction cost:
(A) Any commercial waste incineration or disposal facilitycapable of receiving greater than five hundred (500) short tons per day ofhousehold refuse or mixed household and industrial refuse;
(B) Any commercial facility which incinerates or disposes ofany regulated quantity of hazardous wastes which are subject to hazardous wasteshipping manifest requirements under subtitle C of the Resource Conservationand Recovery Act (42 U.S.C. 6921 through 6939e);
(C) Any commercial radioactive waste management facilitydefined by W.S. 35-11-103(d)(v);
(D) Until July 1, 1999, any facility constructed solely for thedisposal of overburden, development waste rock or refuse from mining as definedunder W.S. 35-11-103, except for the following facilities:
(I) Facilities permitted or licensed under article 4 of theWyoming Environmental Quality Act;
(II) Facilities specifically exempt from permitting requirementsunder article 4 of the Wyoming Environmental Quality Act;
(III) Facilities specifically identified under W.S.35-11-103(d)(v)(A).
(E) Any commercial facility generating electricity from windand associated collector systems that:
(I) Consists of thirty (30) or more wind turbines in allplanned phases of the installation; or
(II) Expand an existing installation not previously defined as afacility to include a total number of turbines greater than or equal to thethresholds in subdivision (a)(vii)(E)(I) of this section.
(F) Any facility over which a board of county commissioners hasauthority to issue the permit required by W.S. 18-5-502 and which facility theboard of county commissioners has referred to the council under W.S. 18-5-509.
(viii) "Local government" means any county, city, townor school district or any combination thereof as formed under the Wyoming JointPowers Act;
(ix) Repealed by Laws 1992, ch. 60, 4.
(x) "Permit" means the permit issued by the counciland required for the construction or operation of any industrial facility orfacilities;
(xi) "Person" includes an individual, group, firm,partnership, corporation, cooperative, association, or other entity excludingthe state, federal government and local government. "Person" alsoincludes the parent company, partnership or holding entity for a commercialfacility generating electricity from wind;
(xii) "Administrator" means the administrator of thedivision;
(xiii) "Division" means the industrial siting divisionof the department of environmental quality;
(xiv) "Collector system" means the electricaltransmission infrastructure, including conductors, towers, substations,switchgear and other components necessary to deliver power from any commercialfacility generating electricity from wind up to, but not including, electricsubstations or similar facilities necessary to interconnect to existing orproposed transmission lines that serve load or export energy from Wyoming.
35-12-103. Creation of industrial siting division.
Thereis created within the department of environmental quality the industrial sitingdivision.
35-12-104. Industrial siting council created; composition; terms;removal; compensation.
(a) There is created the industrial siting council consistingof seven (7) members who are residents of Wyoming.
(b) The terms of council members shall be six (6) years, exceptthat on the initial appointment three (3) members shall serve for six (6)years, two (2) members shall serve for four (4) years and two (2) members shallserve two (2) years as designated by the initial appointment.
(c) Members shall be appointed by the governor with the adviceand consent of the senate. The governor may remove any member as provided inW.S. 9-1-202. If a vacancy occurs the governor shall appoint a new member asprovided in W.S. 28-12-101. Not more than four (4) members shall be of the samepolitical party.
(d) The council, annually, shall elect a chairman,vice-chairman and secretary from among its members. The council shall have atleast four (4) regularly scheduled meetings each year and may meet at the callof the chairman or upon request of a majority of the members at other times.For the purpose of conducting council business four (4) members constitute aquorum but no action taken is valid unless approved by at least four (4)members.
(e) Council members appointed pursuant to this section shall bereimbursed for per diem, mileage and expenses and receive salary for attendingmeetings and hearings of the council in the same manner and amount as membersof the Wyoming legislature.
(f) The administrative head of each state agency enumerated inW.S. 35-12-110(b), or the designated representative, may attend meetings of thecouncil and serve in an advisory capacity to facilitate and expedite thedecision making process of the council. The council may request anyadministrative head to pursue, evaluate and submit reports relative to anystudy which may be required in the evaluation of an application for a permit.
(g) Appointments and terms under this chapter shall be inaccordance with W.S. 28-12-101 through 28-12-103.
35-12-105. Appointment and duties of administrator; staff; rules andregulations.
(a) The director shall appoint an administrator of the divisionwho shall serve at the director's pleasure as the executive and administrativehead of the division. The administrator is responsible to and under control andsupervision of the director. The director shall employ such other staff asdeemed necessary by the director to carry out the functions andresponsibilities of the division.
(b) The council shall promulgate rules and regulations pursuantto the Wyoming Administrative Procedure Act, implementing this chapter. Thedirector, or the administrator if designated by the director, shall administerand enforce this chapter and any rules, regulations and orders approved orissued by the council.
(c) The director, administrator and the staff of the divisionare authorized to the extent possible, at the request of local governments, toprovide technical assistance to local governments in the negotiation ofagreements with applicants as provided for in W.S. 35-12-107 and35-12-113(a)(vi).
(d) In addition to the rules and regulations adopted undersubsection (b) of this section, the council shall promulgate rules andregulations prescribing decommissioning and site reclamation standards forfacilities permitted under W.S. 35-12-102(a)(vii)(E) and (F). Such standardsshall preempt county rules or regulations concerning decommissioning andreclamation and shall be designed to assure the proper decommissioning andinterim and final site reclamation of commercial facilities generatingelectricity from wind and wind energy facilities during construction andoperation of the facility, at the end of their useful life, upon revocation ofa permit authorizing their operation or upon the happening of any event whichcauses operations to cease. The council's regulation shall only preempt thosefacilities regulated under this act. In the event of any conflict between astandard applied under this subsection and a valid order of the Wyoming publicservice commission, the order of the public service commission shall beapplied.
(e) In addition to the rules and regulations adopted undersubsection (b) of this section, the council shall promulgate rules andregulations prescribing financial assurance requirements for facilitiespermitted by it pursuant to W.S. 35-12-102(a)(vii)(E) and (F). These rules andregulations shall not apply to facilities that are public utilities andregulated by the Wyoming public service commission. These rules andregulations shall preempt county rules and regulations concerning financialassurances and shall be designed to provide adequate assurance that thepermitted facilities will be properly reclaimed and decommissioned at the endof their useful life, upon revocation of a permit authorizing their operationor upon the happening of any event which causes operations to cease. Theelements to consider when establishing adequate levels of financial assuranceshall include credit worthiness, financial strength, credit history, creditrating and any other factors that reasonably bear upon the decision to accept afinancial assurance. The financial assurance may be in any form acceptable tothe council and may include a corporate guarantee, letter of credit, bond,deposit account or insurance policy.
(f) In addition to the rules and regulations adopted undersubsection (b) of this section, the council shall promulgate rules andregulations requiring applicants for facilities described in W.S.35-12-102(a)(vii)(E) and (F) to provide notice to record owners of mineralrights located on or under the lands where the proposed facility will beconstructed. Such notice may include notice by publication.
(g) The council may adopt such rules and regulations, includingfee structures, as are appropriate to accept and consider applications referredby any board of county commissioners under W.S. 18-5-509.
35-12-106. Permit from council required prior to commencingconstruction of facility; electronic permitting; amendments; exceptions.
(a) No person shall commence to construct a facility, as definedin this chapter, in this state without first obtaining a permit for thatfacility from the council. Any facility, for which a permit is required, shallbe constructed, operated and maintained in conformity with the permit and anyterms, conditions and modifications contained in the permit. A permit may onlybe issued pursuant to this chapter or pursuant to the provisions of W.S.18-5-501 through 18-5-513 for facilities referred to the council.
(b) A permit may be transferred, subject to council approval,to a person who agrees to comply with the terms, conditions and modificationscontained in the permit.
(c) Except as provided in subsection (d) of this section, thecouncil may allow the amendment of a permit or application for a permit forgood cause if the holder demonstrates to the council at its next meeting thatthe requested change is in compliance with local ordinances and applicable landuse plans and will not significantly add to adverse environmental, social andeconomic impact in the impacted area.
(d) On an application for an amendment of a permit, the councilshall hold a hearing in the same manner as a hearing is held on an applicationfor a permit if in the council's opinion the requested change in the facilitywould result in a significant adverse increase in any environmental, social oreconomic impact of the facility or a change in the location of all or a portionof the facility unless the change in location was specifically approved by thecouncil in the permit.
(e) The council may waive the application and permit provisionsof this chapter if the applicant establishes by clear and convincing proof thatan emergency exists created by the loss or damage to an existing facility whichseriously threatens the health, safety and welfare of the public.
(f) The council may allow the permitting and reportingrequirements of this act to be conducted electronically as provided by theUniform Electronic Transaction Act, W.S. 40-21-101 through 40-21-119.
35-12-107. Request for waiver of permit application; form.
(a) Any person proposing to construct an industrial facilitymay submit a written request for a waiver of the application provisions of thischapter.
(b) A request for a waiver shall be filed with the division, ina form as prescribed by council rules and regulations, and shall contain thefollowing information:
(i) The name and address of the applicant, and if the applicantis a partnership, association or corporation, the names and addresses of themanagers designated by the applicant responsible for permitting or constructionof the facility;
(ii) A description of the nature and location of the facility;
(iii) Estimated time of commencement of construction andconstruction time;
(iv) Estimated number and job classifications by calendarquarter of employees of the applicant, or contractor or subcontractor of theapplicant, during the construction phase and during the operating phase;
(v) Estimated population increases attributable to thefacility;
(vi) Estimated additional revenue to local governments due tothe facility;
(vii) Estimated construction cost of the facility;
(viii) A description of the methods and strategies the applicantwill use to maximize the employment and utilization of the existing local orin-state contractors and labor force during the construction and operation ofthe facility;
(ix) Any other information the applicant considers relevant orrequired by council rule or regulation;
(x) The procedures proposed to avoid constituting a publicnuisance, endangering the public health and safety, human or animal life,property, wildlife or plant life, or recreational facilities which may beadversely affected by the facility;
(xi) Preliminary evaluations of or plans and proposals foralleviating social, economic or environmental impacts upon local government orany special districts which may result from the proposed facility, includingvoluntary company agreements with local governments;
(xii) Certification that the governing bodies of all localgovernments within the potentially impacted area were provided notification, adescription of the proposed project and an opportunity to ask the applicantquestions at least thirty (30) days prior to submission of the application;
(xiii) For facilities permitted pursuant to W.S.35-12-102(a)(vii)(E) or (F), a site reclamation and decommissioning plan, whichshall be updated every five (5) years and a description of a financialassurance plan which will assure that all facilities will be properly reclaimedand decommissioned. All such plans, unless otherwise exempt, shall demonstratecompliance with any rules or regulations adopted by the council pursuant toW.S. 35-12-105(d) and (e);
(xiv) Information demonstrating the applicant's financialcapability to construct, maintain, operate, decommission and reclaim thefacility.
(c) Not more than seven (7) days following receipt of a requestfor a waiver, the director shall:
(i) Serve notice of the request upon the governing bodies oflocal governments which will be primarily affected by the proposed facility;
(ii) Cause a summary of the request to be published in one (1)or more newspapers of general circulation within the area to be primarilyaffected by the proposed facility;
(iii) File a copy of the request with the county clerk of thecounty or counties in which the proposed facility will be constructed or whichwill be affected by the construction.
(d) Not more than fourteen (14) days following receipt of arequest, the director shall:
(i) Schedule and conduct a public meeting;
(ii) Notify the applicant and local governments of the meeting;
(iii) Cause notice of the meeting to be published in one (1) ormore newspapers of general circulation within the area to be primarily affectedby the proposed facility; and
(iv) Hold the meeting at a community as close as practicable tothe proposed facility.
(e) At the public meeting, the applicant shall present suchinformation as necessary to describe the proposed facility and its estimatedimpacts upon local units of government.
(f) Within fourteen (14) days of the public meeting, theapplicant shall meet with the director and each local government affected bythe proposed facility to determine the mitigation required to minimize anyadverse impacts resulting from the proposed facility.
(g) Not more than fifty (50) days following receipt of arequest, the director shall:
(i) Schedule and conduct a public hearing;
(ii) Notify the applicant and local governments of the hearing;
(iii) Cause notice of the hearing to be published in one (1) ormore newspapers of general circulation within the area to be primarily affectedby the proposed facility; and
(iv) Hold the hearing at a community as close as practicable tothe proposed facility.
(h) The applicant shall present any evidence necessary todemonstrate to the council:
(i) That the facility would not produce an unacceptableenvironmental, social or economic impact;
(ii) That the applicant has reached agreement with local governmentsaffected by the facility on the mitigation required to alleviate adverseeffects resulting from the facility; and
(iii) That the applicant has financial resources to construct,maintain, operate, decommission and reclaim the facility.
(j) Within ten (10) days from the date of completion of thehearing the council shall make complete findings, issue an opinion and render adecision upon the record, either granting or denying the request for a waiver. The council shall grant a request for a waiver either as proposed or asmodified by the council if it finds and determines that:
(i) The facility would not produce an unacceptableenvironmental, social and economic impact;
(ii) The applicant has discussed the proposed facility with alllocal governments potentially affected by the project;
(iii) The proposed facility is in compliance with all localordinances and land use plans; and
(iv) The applicant has financial resources to construct,maintain, operate, decommission and reclaim the facility.
(k) No request for a waiver shall be granted if two (2) or morelocal governments which will be affected are not satisfied that the facility,considering the voluntary company agreements, represents an acceptable impacton the local governments.
(m) If the council decides to waive all of the applicationrequirements of this chapter, it shall issue a permit for the facility inaccordance with W.S. 35-12-113. If the council decides to waive a part of theapplication requirements of this chapter, it shall issue an order specifyingthe requirements which will not be required for an application filed pursuantto W.S. 35-12-109.
35-12-108. Quantity of water available; analysis; public comment;opinions.
(a) If an applicant applies for an industrial siting permit,pursuant to W.S. 35-12-106, or for a waiver of the application provisions,pursuant to W.S. 35-12-107, for a facility which requires the use of eighthundred (800) or more acre feet of the waters of this state annually, theapplicant shall prepare and submit to the state engineer a water supply andwater yield analysis with a request for a preliminary and final opinion as tothe quantity of water available for the proposed facility.
(b) Within ninety (90) days after the applicant has submittedan acceptable water supply and yield analysis, the state engineer, at theapplicant's expense, shall complete a comprehensive review of the water supplyand water yield analysis submitted.
(c) Within five (5) days after completion of the review, thestate engineer shall render a preliminary opinion as to the quantity of wateravailable for the proposed facility. The preliminary opinion, or a reasonablesummary, shall be published for three (3) consecutive weeks in a newspaper ofgeneral circulation in the county in which the proposed facility is to belocated. The expense of the publication shall be borne by the applicant.
(d) The state engineer may hold a public hearing beforerendering a final opinion on the water supply and water yield analysis.
(e) In rendering a final opinion as to the quantity of wateravailable for the proposed facility, the state engineer shall consider any commentswhich are submitted in writing within twenty (20) days of the last date ofpublication.
(f) Within thirty (30) days after the last date of publication,the state engineer shall render a final opinion. The final opinion shall:
(i) Be submitted to the industrial siting council and thepublic service commission;
(ii) Be binding on the industrial siting council for thepurposes of issuing an industrial siting permit; and
(iii) Be reviewed by the public service commission prior to itsissuance of a certificate of public convenience and necessity.
(g) The state engineer's preliminary and final opinion shallnot create a presumption concerning injury or noninjury to water rights, norshall those opinions be used as evidence in any administrative proceeding or inany judicial proceeding concerning water right determinations oradministration.
35-12-109. Application for permit; form; fee; financial accounting.
(a) An application for a permit shall be filed with thedivision, in a form as prescribed by council rules and regulations, and shallcontain the following information:
(i) The name and address of the applicant, and, if theapplicant is a partnership, association or corporation, the names and addressesof the managers designated by the applicant responsible for permitting,construction or operation of the facility;
(ii) The applicant shall state that to its best knowledge andbelief the application is complete when filed and includes all the informationrequired by W.S. 35-12-109 and the rules and regulations, except for anyrequirements specifically waived by the council pursuant to W.S. 35-12-107;
(iii) A description of the nature and location of the facility;
(iv) Estimated time of commencement of construction andconstruction time;
(v) Estimated number and job classifications, by calendarquarter, of employees of the applicant, or contractor or subcontractor of theapplicant, during the construction phase and during the operating life of thefacility. Estimates shall include the number of employees who will be utilizedbut who do not currently reside within the area to be affected by the facility;
(vi) Future additions and modifications to the facility whichthe applicant may wish to be approved in the permit;
(vii) A statement of why the proposed location was selected;
(viii) A copy of any studies which may have been made of theenvironmental impact of the facility;
(ix) Inventory of estimated discharges including physical,chemical, biological and radiological characteristics;
(x) Inventory of estimated emissions and proposed methods ofcontrol;
(xi) Inventory of estimated solid wastes and proposed disposalprogram;
(xii) The procedures proposed to avoid constituting a publicnuisance, endangering the public health and safety, human or animal life,property, wildlife or plant life, or recreational facilities which may beadversely affected by the estimated emissions or discharges;
(xiii) An evaluation of potential impacts together with any plansand proposals for alleviating social and economic impacts upon localgovernments or special districts and alleviating environmental impacts whichmay result from the proposed facility. The evaluations, plans and proposalsshall cover the following:
(A) Scenic resources;
(B) Recreational resources;
(C) Archaeological and historical resources;
(D) Land use patterns;
(E) Economic base;
(F) Housing;
(G) Transportation;
(H) Sewer and water facilities;
(J) Solid waste facilities;
(K) Police and fire facilities;
(M) Educational facilities;
(N) Health and hospital facilities;
(O) Water supply;
(P) Other relevant areas;
(Q) Agriculture;
(R) Terrestrial and aquatic wildlife;
(S) Threatened, endangered and rare species and other speciesof concern identified in the state wildlife action plan as prepared by theWyoming game and fish department.
(xiv) Estimated construction cost of the facility;
(xv) What other local, state or federal permits and approvalsare required;
(xvi) Compatibility of the facility with state or local land useplans, if any;
(xvii) Any other information the applicant considers relevant orrequired by council rule or regulation;
(xviii) A description of the methods and strategies the applicantwill use to maximize employment and utilization of the existing local orin-state contractors and labor force during the construction and operation ofthe facility;
(xix) Certification that the governing bodies of all localgovernments which will be primarily affected by the proposed facility wereprovided notification, a description of the proposed project and an opportunityto ask the applicant questions at least thirty (30) days prior to submission ofthe application;
(xx) For facilities permitted pursuant to W.S.35-12-102(a)(vii)(E) or (F), a site reclamation and decommissioning plan, whichshall be updated every five (5) years, and a description of a financialassurance plan which will assure that all facilities will be properly reclaimedand decommissioned. All such plans, unless otherwise exempt, shall demonstratecompliance with any rules or regulations adopted by the council pursuant toW.S. 35-12-105(d) and (e);
(xxi) Information demonstrating the applicant's financialcapability to construct, maintain, operate, decommission and reclaim thefacility.
(b) At the time of filing an application or a written requestfor a waiver of the application provisions of this chapter as provided in W.S.35-12-107, or as subsequently required by the director, an applicant shall paya fee to be determined by the director based upon the estimated cost ofinvestigating, reviewing, processing and serving notice of an application,holding a hearing in case of a request for waiver, inspection and complianceactivities and processing application update requests. The fee shall becredited to a separate account and shall be used by the division as required toinvestigate, review, process and serve notice of the application, to hold ahearing in case of a request for waiver and to pay the reasonable costs of anymeeting or hearing associated with permit compliance. Unused fees shall berefunded to the applicant. The maximum fee chargeable shall not exceed one-halfof one percent (0.5%) of the estimated construction cost of the facility or onehundred thousand dollars ($100,000.00), whichever is less.
(c) The director shall provide the applicant with a fullfinancial accounting, including but not limited to all materials, labor andoverhead costs relating to the expenditures of the fee at the time of thecouncil's decision as provided in W.S. 35-12-113 or at the completion ofconstruction, whichever occurs later.
(d) At any time after the fee required by subsection (b) ofthis section has been exhausted or refunded and in addition to the fee imposedunder subsection (b) of this section, the applicant may be required to pay afee, as determined by the director, for the costs of any meeting or hearingassociated with permit compliance. The director shall provide the applicantwith a full financial accounting for the expenditure of the fee, including butnot limited to all materials, labor and overhead costs, at the conclusion ofthe council meeting or hearing.
35-12-110. Service of notice of application; information andrecommendations; application deficiencies; procedure; jurisdiction; hearing.
(a) Not more than ten (10) days following receipt of anapplication for a permit, the director shall:
(i) Serve an electronic or physical copy of the applicationupon the governing bodies of local government which will be primarily affectedby the proposed facility together with notice of the applicable provisions ofW.S. 35-12-111;
(ii) Cause a summary of the application to be published in one(1) or more newspapers of general circulation within the area to be primarilyaffected by the proposed facility;
(iii) File a copy of the application with the county clerk of thecounty or counties in which the proposed facility will be constructed.
(b) The division shall obtain information and recommendationsfrom the following state agencies relative to the impact of the proposedfacility as it applies to each agency's area of expertise:
(i) Wyoming department of transportation;
(ii) Public service commission;
(iii) Repealed By Laws 1998, ch. 6, 5.
(iv) Game and fish department;
(v) Department of health;
(vi) Department of education;
(vii) Office of state engineer;
(viii) Repealed by Laws 1990, ch. 44, 3.
(ix) Wyoming state geologist;
(x) Wyoming department of agriculture;
(xi) Department of environmental quality;
(xii) Repealed by Laws 1992, ch. 60, 4.
(xiii) Repealed by Laws 1990, ch. 44, 3.
(xiv) The University of Wyoming;
(xv) Department of revenue;
(xvi) The Wyoming business council;
(xvii) Department of workforce services;
(xviii) Office of state lands and investments;
(xix) Department of employment;
(xx) Department of state parks and cultural resources;
(xxi) Department of fire prevention and electrical safety;
(xxii) Department of family services;
(xxiii) Oil and gas conservation commission.
(c) The information required by subsection (b) of this sectionshall be provided by the agency from which it is requested not more than sixty(60) days from the date the request is made and shall include opinions as tothe advisability of granting or denying the permit together with reasonstherefor, and recommendations regarding appropriate conditions to include in apermit, but only as to the areas within the expertise of the agency. Eachagency which has regulatory authority over the proposed facility shall provideto the council a statement defining the extent of that agency's jurisdiction toregulate impacts from the facility, including a statement of the agency'scapability to address cumulative impacts of the facility in conjunction withother facilities. The statement of jurisdiction from each agency is binding onthe council.
(d) On receipt of an application, the director shall conduct areview of the application to determine if it contains all the informationrequired by W.S. 35-12-109 and the rules and regulations. If the directordetermines that the application is incomplete, he shall within thirty (30) daysof receipt of the application notify the applicant of the specific deficienciesin the application. The applicant shall provide the additional informationnecessary within thirty (30) days of a receipt of a request for additionalinformation from the director.
(e) Upon receipt of the additional information specified insubsection (d) of this section, the director shall either notify the applicantthat the application is complete or notify the applicant of continueddeficiencies. The applicant shall provide the required information withinfifteen (15) days of receipt of the notice of continued deficiency. Uponreceipt of the second deficiency notice, the applicant may:
(i) Provide the required information within the time allotted;or
(ii) Withdraw the application.
(iii) Repealed By Laws 2010, Ch. 47, 2.
(f) Not more than ninety (90) days after receipt of anapplication for a permit, the director shall:
(i) Schedule and conduct a public hearing, provided that nohearing shall be held until the state engineer has submitted a preliminary andfinal opinion as to the quantity of water available for the proposed facilitypursuant to W.S. 35-12-108;
(ii) Notify the applicant and local governments of the hearing;
(iii) Cause notice of the hearing to be published in one (1) ormore newspapers of general circulation within the area to be primarily affectedby the proposed facility; and
(iv) Hold the hearing at a community as close as practicable tothe proposed facility. The provisions of W.S. 35-12-111, 35-12-112 and35-12-114 apply to the hearing.
35-12-111. Parties to permit proceeding; waiver by failure toparticipate.
(a) The parties to a permit proceeding include:
(i) The applicant;
(ii) Each local government entitled to receive a copy of theapplication under W.S. 35-12-110(a)(i);
(iii) Any person residing in a local government entitled toreceive a copy of the application under W.S. 35-12-110(a)(i) including anyperson holding record title to lands directly affected by construction of thefacility and any nonprofit organization with a Wyoming chapter, concerned inwhole or in part to promote conservation or natural beauty, to protect theenvironment, personal health or other biological values, to preserve historicalsites, to promote consumer interests, to represent commercial and industrialgroups, or to promote the orderly development of the areas in which thefacility is to be located. In order to be a party the person or organizationmust file with the office a notice of intent to be a party not less than twenty(20) days before the date set for the hearing.
(b) Any party identified in paragraph (a)(iii) of this sectionwaives his right to be a party if he does not participate orally at thehearing. Any party identified in paragraph (a)(ii) of this section waives itsright to be a party unless the local government files a notice of intent to bea party with the office not less than twenty (20) days before the date set forthe hearing.
(c) Any person may make a limited appearance in the proceedingby filing a statement in writing with the council prior to adjournment of thehearing. A statement filed by a person making a limited appearance shall becomepart of the record and shall be made available to the public. No person makinga limited appearance under this subsection is a party to the proceeding.
(d) No state agency other than the industrial siting divisionshall act as a party at the hearing. Members and employees of all other stateagencies and departments may file written comments prior to adjournment of thehearing but may testify at the hearing only at the request of the council, theindustrial siting division or any party.
(e) Any person described in W.S. 35-12-111(a)(ii) or (iii) whoparticipated in the public hearing under W.S. 35-12-107 may obtain judicialreview of a council decision waiving all or part of the applicationrequirements of this chapter.
35-12-112. Record of hearing; procedure.
Anystudies, investigations, reports or other documentary evidence, including thoseprepared by the division, which any party wishes the council to consider orwhich the council itself expects to utilize or rely upon, shall be made a partof the record. A complete record shall be made of the hearing and of alltestimony taken. The contested case procedures of the Wyoming AdministrativeProcedure Act apply to the hearing under W.S. 35-12-110(f), but do not apply tothe hearing under W.S. 35-12-107.
35-12-113. Decision of council; findings necessary for permitconditions imposed; service of decision on parties; waste management surcharge.
(a) Within forty-five (45) days from the date of completion ofthe hearing the council shall make complete findings, issue an opinion andrender a decision upon the record, either granting or denying the applicationas filed, or granting it upon terms, conditions or modifications of the construction,operation or maintenance of the facility as the council deems appropriate. Thecouncil shall not consider the imposition of conditions which address impactswithin the area of jurisdiction of any other regulatory agency in this state asdescribed in the information provided in W.S. 35-12-110(b), unless the otherregulatory agency requests that conditions be imposed. The council mayconsider direct or cumulative impacts not within the area of jurisdiction ofanother regulatory agency in this state. The council shall grant a permiteither as proposed or as modified by the council if it finds and determinesthat:
(i) The proposed facility complies with all applicable law;
(ii) The facility will not pose a threat of serious injury tothe environment nor to the social and economic condition or inhabitants orexpected inhabitants in the affected area;
(iii) The facility will not substantially impair the health,safety or welfare of the inhabitants; and
(iv) The applicant has financial resources to construct,maintain, operate, decommission and reclaim the facility.
(b) No permit shall be granted if the application isincomplete.
(c) If the council determines that the location of all or partof the proposed facility should be modified, it may condition its permit uponthat modification, provided that the local governments, and persons residingtherein, affected by the modification, have been given reasonable notice of themodification.
(d) The council shall issue with its decision, an opinionstating in detail its reasons for the decision. If the council decides to granta permit for the facility, it shall issue the permit embodying the terms andconditions in detail, including the time specified to commence construction,which time shall be determined by the council's decision as to the reasonablecapability of the local government, most substantially affected by the proposedfacility, to implement the necessary procedures to alleviate the impact. Acopy of the decision shall be served upon each party.
(e) A permit may be issued conditioned upon the applicantfurnishing a bond to the division in an amount determined by the director fromwhich local governments may recover expenditures in preparation for impact tobe caused by a facility if the permit holder does not complete the facilityproposed. The permit holder is not liable under the bond if the holder isprevented from completing the facility proposed by circumstances beyond his control.
(f) Within ten (10) days from the date of the council'sdecision, a copy of the findings and the council's decision shall be servedupon the applicant, parties to the hearing and local governments to besubstantially affected by the proposed facility and filed with the county clerkof the county or counties to be primarily affected by the proposed facility.Notice of the decision shall be published in one (1) or more newspapers ofgeneral circulation within the area to be affected by the proposed facility.
(g) Each approved facility enumerated under W.S.35-12-102(a)(vii)(A) through (D) shall, on a quarterly basis, remit to thedivision a waste management surcharge to be deposited in the general fund. Thesurcharge amount is:
(i) A minimum of ten dollars ($10.00) per short ton of solidwastes, including radioactive wastes, received at the facility, less a minimumof five dollars ($5.00) for each short ton of solid wastes removed at thefacility and recycled or reused and less any amount credited against thesurcharge pursuant to W.S. 35-11-503(b)(iv)(B); and
(ii) A minimum of twenty-five dollars ($25.00) per short ton ofhazardous wastes received at the facility, less a minimum of three dollars($3.00) for each short ton of hazardous wastes treated at the facility toreduce toxicity and long-term hazards to the environment.
(h) For applicants subject to W.S. 35-12-105(e), a permit maybe issued conditioned upon the applicant furnishing a bond or other financialassurance acceptable to the division in an amount determined by the director tocover the cost of decommissioning and reclaiming the facility.
35-12-114. Review of grant or denial of permit.
(a) Any party as defined in W.S. 35-12-111 aggrieved by thefinal decision of the council on an application for a permit may obtainjudicial review by the filing of a petition in any state district court inwhich the major portion of the proposed facility is to be located within thirty(30) days after the issuance of a final decision. The petition for appeal byany party must include an express assumption of the cost of preparation of thecomplete written transcripts and record for the court. Upon receipt of apetition, the division shall deliver to the court a copy of the completewritten transcript of the record of the proceeding before it and a copy of thecouncil's decision and opinion entered therein which shall constitute therecord on judicial review. At the same time the division shall deliver to thepetitioner an itemized statement of the cost of preparing the complete writtentranscript and record for the court. The petitioner shall pay the division thiscost within forty-five (45) days or forfeit the right to appeal to districtcourt. A copy of the transcript, decision and opinion shall remain on file withthe division and shall be available for public inspection.
(b) When a decision is issued after a hearing on an applicationfor a permit, the decision is final for purposes of judicial review. Thejudicial review procedure shall be the same as that for contested cases underthe Wyoming Administrative Procedure Act.
35-12-115. Additional requirements by other governmental agencies notpermitted after issuance of permit; exceptions.
(a) Notwithstanding any other provision of law, no state,intrastate regional agency or local government may require any approval,consent, permit, certificate or other condition for the construction, operationor maintenance of a facility authorized by a permit issued pursuant to thischapter except that:
(i) The department of environmental quality shall retainauthority which it has or which it may be granted to determine compliance ofthe proposed facility with state and federal standards and implementation plansand to enforce those standards; and
(ii) The public service commission shall retain authority whichit has or may be granted relative to certificates of convenience and necessity,rates, interchange of services and safety regulations.
(b) Nothing in this chapter prevents the application of statelaws for the protection of employees engaged in the construction, operation ormaintenance of any facility specified in this section.
35-12-116. Revocation or suspension of permit.
(a) A permit may be revoked or suspended for:
(i) Any material false statement in the application or inaccompanying statements or studies required of the applicant, if a truestatement would have warranted the council's refusal to grant a permit;
(ii) Failure to comply with the terms or conditions of thepermit after notice of the failure from the office and reasonable opportunityto correct the failure; or
(iii) Violation of this chapter, the regulations issued pursuantto this chapter or orders of the council or office.
35-12-117. Monitoring of facilities.
(a) Except as provided in subsection (b) of this section, thecouncil and the division, utilizing to the fullest extent possible the staffand resources of all state agencies, boards and commissions, has continuingauthority and responsibility for:
(i) Monitoring the operations of all facilities which have beengranted permits under this chapter;
(ii) Assuring continuing compliance with this chapter andpermits issued pursuant to this chapter; and
(iii) Discovering and preventing noncompliance with this chapterand the permits.
(b) The department of environmental quality has exclusivecontinuing authority and responsibility for monitoring and assuring compliancewith:
(i) Laws and regulations pertaining to air, water and landquality, and solid waste management; and
(ii) Any permit conditions ordered by the council relating tomatters of air, water and land quality, and solid waste management.
35-12-118. Penalties for violations; civil action by attorney general.
(a) No person shall:
(i) Commence to construct a facility after the effective dateof this chapter without first obtaining a permit required under this chapter;
(ii) Construct, operate or maintain a facility, after havingfirst obtained a permit, other than in specific compliance with the permit;
(iii) Cause any of the acts specified in this subsection tooccur;
(iv) Operate or maintain an industrial facility without havingfirst obtained the permit required under this chapter.
(b) Any person violating subsection (a) of this section isliable to a civil penalty of not more than ten thousand dollars ($10,000.00)for each violation. Each day of a continuing violation constitutes a separateoffense. The penalty shall be recoverable in a civil suit brought by theattorney general on behalf of the state in the district court in and for thecounty of Laramie.
(c) Whoever knowingly and willfully violates subsection (a) ofthis section shall be fined not more than ten thousand dollars ($10,000.00) foreach violation or imprisoned for not more than one (1) year, or both. Each dayof a continuing violation constitutes a separate offense.
(d) In addition to any penalty provided in subsection (b) or(c) of this section, if the director determines that a person is violating thissection, he shall refer the matter to the attorney general who may bring acivil action on behalf of the state in the district court in and for the countyof Laramie for injunctive or other appropriate relief against the violation andto enforce this chapter or a permit issued under this chapter, and upon aproper showing a permanent or preliminary injunction or temporary restrainingorder shall be granted without bond.
(e) All fines collected pursuant to subsection (b) of thissection shall be paid to the state treasurer and credited as provided in W.S.8-1-109.
35-12-119. Exemptions; information required.
(a) Nonmineral processing facilities to be constructed inexisting industrial parks, as designated by local governments, are exempt frompayment of fees and certification procedures but shall furnish the informationrequired by W.S. 35-12-109(a)(iii), (iv) and (v) to the division if included inW.S. 35-12-102(a)(vii).
(b) State and local governmental units and agencies are exemptfrom the application and permit procedures of this chapter, but prior tocommencing to construct any facility as provided in W.S. 35-12-102(a)(vii),those units and agencies shall furnish to the division information required byW.S. 35-12-109(a)(iii), (iv) and (v).
(c) The construction, operation and maintenance of thefollowing activities are exempt from this chapter:
(i) Electric transmission lines with a maximum operatingvoltage of less than one hundred sixty thousand (160,000) volts, except:
(A) Any collector system, regardless of voltage, associatedwith a commercial facility generating electricity from wind and which meets thedefinition of an industrial facility pursuant to W.S. 35-12-102(a)(vii)(E) and(F) shall not be exempt;
(B) A commercial facility generating electricity from wind thatis exempt from W.S. 35-12-102(a)(vii)(E) or (F) shall not become subject tothis chapter because its collector system is greater than one hundred sixtythousand (160,000) volts.
(ii) Oil and gas drilling facilities;
(iii) All pipelines except coal slurry pipelines;
(iv) Oil and gas producing facilities;
(v) Oil and gas wellfield activities.
(d) Activities exempt under this section shall not be includedas part of the application review of a facility subject to this chapter, andthe council does not have jurisdiction over exempt activities. Applicants shallfurnish the information required by W.S. 35-12-109(a)(iii), (iv), (v) and(viii) for exempt activities.