20230331IPC to Staff 15-16.pdf

Donovan E. Walker
Lead Counsel
[e-mail]

March 31, 2023

VIA ELECTRONIC FILING

Jan Noriyuki, Secretary
Idaho Public Utilities Commission
11331 W. Chinden Blvd., Bldg 8,
Suite 201-A (83714)
PO Box 83720
Boise, Idaho 83720-0074

Re: Case No. IPC-E-23-01
In the Matter of Idaho Power Company’s Application for a Certificate of
Public Convenience and Necessity for the Boardman to Hemingway 500-
kV Transmission Line

Dear Ms. Noriyuki:

Enclosed for electronic filing, please find Idaho Power Company’s Supplemental
Response to the First Production Request of Commission Staff.

If you have any questions about the attached filing, please do not hesitate to
contact me.

Very truly yours,

Donovan E. Walker

DEW:sg
Enclosures
RECEIVED
2023 March, 31 2:32PM
IDAHO PUBLIC
UTILITIES COMMISSION
IDAHO POWER COMPANY’S SUPPLEMENTAL RESPONSE TO THE FIRST PRODUCTION REQUEST
OF THE COMMISSION STAFF - 1
DONOVAN E. WALKER (ISB No. 5921)
Idaho Power Company
1221 West Idaho Street (83702)
P.O. Box 70
Boise, Idaho 83707
Telephone: [phone]
Facsimile: [phone]
[e-mail]

Attorney for Idaho Power Company

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF IDAHO POWER
COMPANY’S APPLICATION FOR A
CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY FOR
THE BOARDMAN TO HEMINGWAY 500-KV
TRANSMISSION LINE.
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CASE NO. IPC-E-23-01

IDAHO POWER COMPANY’S
SUPPLEMENTAL RESPONSE
TO THE FIRST PRODUCTION
REQUEST OF THE
COMMISSION STAFF

COMES NOW, Idaho Power Company (“Idaho Power” or “Company”), and in
response to the First Production Request of the Commission Staff (“IPUC or
Commission”) dated February 13, 2023, herewith supplements the following
information:

IDAHO POWER COMPANY’S SUPPLEMENTAL RESPONSE TO THE FIRST PRODUCTION REQUEST
OF THE COMMISSION STAFF - 2

REQUEST FOR PRODUCTION NO. 15: Please describe all lawsuits in process
for the B2H project. In the response, please include the following:
a. Case No.,
b. County filed in,
c. Name of parties,
d. Case caption,
e. Date filed, and
f. Any other relevant information.
SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 15:
Subsequent to submitting the Company’s Responses to Request for Production
Nos. 15 and 16, on March 9, 2023, the Supreme Court issued a unanimous opinion
affirming the Energy Facility Siting Council’s (“EFSC”) Final Order. The Supreme Court
concluded “that EFSC did not err in any of the ways contended by petitioners Stop B2H,
[Mr.] McAllister, or [Ms.] Gilbert” upholding the Final Order and site certificate,
concluding the appeal process. In addition, on March 22, 2023, the Company filed a
new Right-of-Entry case with the State of Oregon Circuit Court. Idaho Power has
updated the list of the known pending lawsuits and regulatory proceedings regarding the
B2H Project to reflect these changes, moving the Oregon Supreme Court case to the
resolved cases listing in the Company’s Supplemental Response to Request for
Production No. 16, and adding the Right-of-Entry case below:
IDAHO POWER COMPANY’S SUPPLEMENTAL RESPONSE TO THE FIRST PRODUCTION REQUEST
OF THE COMMISSION STAFF - 3

The response to this Request is sponsored by David Stanish, Senior Counsel,
Idaho Power Company.
Venue Case No(s).Petitioners/Applicant/
Plaintiff Defendant(s)/Intervenor(s) Date Filed Nature of Case and Status of Litigation
Idaho Public 
Utilities 
Commission
IPC‐E‐23‐01 Idaho Power Company Idaho Irrigation Pumpers 
Association, Inc., Idaho 
Industrial Customers of Idaho 
Power, city of Boise City, 
Micron Technology, Inc., and 
Idaho Conservation League
1/10/2023 Idaho Power applied for a Certificate of 
Public Convenience and Necessity before 
the Idaho Public Utilities Commission. At 
this time, no schedule has been set.
Oregon Public 
Utility 
Commission
PCN 5 Idaho Power Company Stop B2H, Christopher Lyon, 
Kaye Foss, Meg Cooke, James 
Foss, Jason Gaskill, Susan 
Geer, Irene Gilbert, Joanne 
Rode, F. Steven Knudsen, 
Carol Fuji Kreider, Greg 
Larkin, Margie Lyon, Carl 
Morton, Julie Morton, Sam 
Myers, Skylan Myers, Timothy 
Proesch, John Williams, 
Wendy King, and PacifiCorp
9/30/2022 Idaho Power applied for a Certificate of 
Public Convenience and Necessity before 
the Oregon Public Utility Commission. An 
evidentiary hearing is scheduled for April 
19‐20, and Idaho Power expects a final 
decision by June 30.
State of Oregon 
Circuit Court, 
Morrow County
21CV46147 Idaho Power Company Vanburen Family Property 12/1/2021 Right‐of‐entry case, whereby Idaho Power 
sought judicial confirmation of the 
Company's statutory right to enter the 
defendant's property to complete certain 
environmental and other surveys. In 
February 2022, the Circuity Court entered 
a General Judgment in Idaho Power's 
favor, providing the Company access to 
the property. In February 2023, Idaho 
Power moved to enforce the Company's 
right of access under the General 
Judgment. That motion is pending.
State of Oregon 
Circuit Court, 
Morrow County
23CV03300 Idaho Power Company Luciani, Beatrice, John 1/23/2023 Right‐of‐entry case, whereby Idaho Power 
is seeking judicial confirmation of the 
Company's statutory right to enter the 
defendant's property to complete certain 
environmental and other surveys.
State of Oregon 
Circuit Court, 
Union County
23CV12213 Idaho Power Company Douglas Baldwin Bean, 
Mallory Hardt Bean and 
Madeline Baldwin Bean, 
partners doing business as 
516 Ranches Partnership; and 
For the Girls, LLC
3/22/2023 Right‐of‐entry case, whereby Idaho Power 
is seeking judicial confirmation of the 
Company's statutory right to enter the 
defendant's property to complete certain 
environmental and other surveys.
IDAHO POWER COMPANY’S SUPPLEMENTAL RESPONSE TO THE FIRST PRODUCTION REQUEST
OF THE COMMISSION STAFF - 4
REQUEST FOR PRODUCTION NO. 16: Please describe all lawsuits resolved
for the B2H project. In the response, please include the following:
a. Case No.,
b. County filed in,
c. Name of parties,
d. Case caption,
e. Date filed,
f. Date resolved,
g. The outcome of the case, and
f. Any other relevant information.
SUPPLEMENTAL RESPONSE TO REQUEST FOR PRODUCTION NO. 16:
As explained in the Company’s Supplemental Response to Request for
Production No. 15, on March 9, 2023, the Supreme Court issued a unanimous opinion
affirming EFSC’s Final Order, included as Attachment 1. The Supreme Court concluded
“that EFSC did not err in any of the ways contended by petitioners Stop B2H, [Mr.]
McAllister, or [Ms.] Gilbert” upholding the Final Order and site certificate, concluding the
appeal process. Idaho Power has updated the list of the resolved lawsuits regarding the
B2H project reflecting the opinion below:

Venue Case No. Plaintiff(s)Defendant(s)/Defendants‐
Intervenors Date Filed Nature of Case and Status of Litigation
United States 
District Court, 
District of Oregon
2:19‐cv‐1822‐SI Stop B2H Coalition, 
Greater Hells Canyon 
Council, Carol “Fuji” 
Kreider, Jim Kreider, and 
Gail Carbiener
U.S. Bureau of Land 
Management, U.S. Department 
of the Interior, Jose Linares, 
State Director, BLM 
Oregon/Washington, U.S. 
Forest Service, Tom Montoya, 
Forest Service Supervisor, 
Wallowa‐Whitman National 
Forest, Idaho Power Co. and 
PacifiCorp
11/12/2019 Stop B2H's federal court lawsuit challenging 
the BLM and Forest Service’s approval of 
rights‐of‐way for the B2H Project, including 
challenges related to National 
Environmental Policy Act (NEPA) 
compliance. On August 4, 2021, United 
States District Judge Michael Simon entered: 
(a) an Opinion and Order denying Plaintiffs’ 
motion for summary judgment and granting 
Defendants’ and Intervenor‐Defendants’ 
motions for summary judgment; and (b) a 
Judgment dismissing the case. No appeal 
was filed.
IDAHO POWER COMPANY’S SUPPLEMENTAL RESPONSE TO THE FIRST PRODUCTION REQUEST
OF THE COMMISSION STAFF - 5
Oregon Supreme 
Court
S069919, S069920, 
and S069924
Stop B2H Coalition, 
Michael McAllister, and 
Irene Gilbert
Oregon Department of 
Energy, Oregon Energy 
Facility Siting Council, and 
Idaho Power Company
12/6/2022 Petitioners appealed EFSC’s final order, 
which approved a site certificate for the 
B2H Project. On March 9, 2023, the 
Oregon Supreme Court issued its decision, 
finding EFSC did not err in the ways 
contended by petitioners and affirming 
EFSC's final order approving the site 
certificate.
State of Oregon 
Circuit Court, 
Baker County
22CV02672 Idaho Power Company Bunch, Levi A 1/20/2022 Right‐of‐entry case, whereby Idaho Power 
sought judicial confirmation of the 
Company's statutory right to enter the 
defendant's property to complete certain 
environmental and other surveys. The 
parties settled, providing the Company 
access for the surveys, and the case was 
dismissed. ("Right‐of‐entry 
case/Settled/Dismissed")
State of Oregon 
Circuit Court, 
Union County
22CV02728 Idaho Power Company Free, Johnathan E & Diane L 1/20/2022 Right‐of‐entry case/Settled/Dismissed. 
State of Oregon 
Circuit Court, 
Union County
21CV47304 Idaho Power Company Geer, Susan Et Al 12/10/2021 Right‐of‐entry case/Settled/Dismissed. 
State of Oregon 
Circuit Court, 
Umatilla County
21CV48563 Idaho Power Company Parcel 1‐Hemphill, Richard C & 
Jean E (Trs) Etal
12/22/2021 Right‐of‐entry case/Settled/Dismissed. 
State of Oregon 
Circuit Court, 
Umatilla County
21CV48562 Idaho Power Company Parcel 2‐Hemphill, Richard C & 
Jean E (Trs) Etal
12/22/2021 Right‐of‐entry case/Settled/Dismissed. 
State of Oregon 
Circuit Court, 
Umatilla County
21CV49034 Idaho Power Company Parcel 3 ‐Hemphill, Richard C & 
Jean E 
12/29/2021 Right‐of‐entry case/Settled/Dismissed. 
State of Oregon 
Circuit Court, 
Malheur County
22CV05019 Idaho Power Company Jacobs, Jerry R. & Laura 2/8/2022 Right‐of‐entry case/Settled/Dismissed. 
State of Oregon 
Circuit Court, 
Union County
21CV48510 Idaho Power Company Osburn, Danna Et Al 12/22/2021 Right‐of‐entry case/Settled/Dismissed. 
State of Oregon 
Circuit Court, 
Morrow County
22CV02722 Idaho Power Company Sand Hollow Ranch, LLC 1/20/2022 Right‐of‐entry case/Settled/Dismissed. 
State of Oregon 
Circuit Court, 
Baker County
22CV02793 Idaho Power Company Smoke Ranch LP 1/21/2022 Right‐of‐entry case/Settled/Dismissed. 
State of Oregon 
Circuit Court, 
Umatilla County
22CV02694 Idaho Power Company White, Niel Owen 1/20/2022 Right‐of‐entry case/Settled/Dismissed. 
State of Oregon 
Circuit Court, 
Morrow County
22CV02580 Idaho Power Company William J. Doherty Ranch, LLC 1/19/2022 Right‐of‐entry case/Settled/Dismissed. 
State of Oregon 
Circuit Court, 
Morrow County
22CV02726 Idaho Power Company Ashbeck, Tony R & Gerald T 1/20/2022 Right‐of‐entry case/Settled/Dismissed. 
State of Oregon 
Circuit Court, 
Malheur County
21CV48530 Idaho Power Company Lyon Family Living Trust 12/22/2021 Right‐of‐entry case/Settled/Dismissed. 
State of Oregon 
Circuit Court, 
Morrow County
22CV02725 Idaho Power Company Myers, Jerry & Nancy 1/20/2022 Right‐of‐entry case/Settled/Dismissed. 
State of Oregon 
Circuit Court, 
Malheur County
21CV47320 Idaho Power Company Aston, Janet 12/10/2021 Right‐of‐entry case. The parties agreed to a 
Stipulated General Judgment, providing the 
Company access for surveys. ("Right‐of‐
entry case/Stipulated General Judgment")
State of Oregon 
Circuit Court, 
Union County
22CV02579 Idaho Power Company Dodson Family Trust 1/20/2022 Right‐of‐entry case/Stipulated General
IDAHO POWER COMPANY’S SUPPLEMENTAL RESPONSE TO THE FIRST PRODUCTION REQUEST
OF THE COMMISSION STAFF - 6

The response to this Request is sponsored by David Stanish, Senior Counsel,
Idaho Power Company.

DATED at Boise, Idaho this 31st day of March 2023.

DONOVAN E. WALKER
Attorney for Idaho Power Company

State of Oregon 
Circuit Court, 
Umatilla County
21CV42341 Idaho Power Company Harvey, Cynthia Anne 11/1/2021 Right‐of‐entry case/Stipulated General
State of Oregon 
Circuit Court, 
Baker County
22CV02578 Idaho Power Company McCall, Leland R. 1/19/2022 Right‐of‐entry case. The parties entered a 
Stipulated Limited Judgment, providing the 
Company access for surveys and retaining 
jurisdiction by the Court. ("Right‐of‐entry 
case/Stipulated Limited Judgment")
State of Oregon 
Circuit Court, 
Union County
21CV47309 Idaho Power Company Collins, John & Connie 12/10/2021 Right‐of‐entry case. The Circuit Court Judge 
entered a Limited Judgment, providing the 
Company access for surveys and retaining 
jurisdiction with the Court. ("Right‐of‐entry 
case/Limited Judgment")
State of Oregon 
Circuit Court, 
Malheur County
21CV42267 Idaho Power Company White, David E                10/29/2021 Right‐of‐entry case/Limited Judgment
State of Oregon 
Circuit Court, 
Union County
21CV47303 Idaho Power Company Hall, Marlene L Et Al 12/10/2021 Right‐of‐entry case. The entered a General 
Judgment, providing the Company access for 
surveys. The defendant(s) did not appear in 
the case. ("Right‐of‐entry case/General 
Judgment via Default") 
State of Oregon 
Circuit Court, 
Union County
21CV47301 Idaho Power Company Rice, Joel 12/10/2021 Right‐of‐entry case/General Judgment via 
Default
State of Oregon 
Circuit Court, 
Union County
22CV20394 Idaho Power Company Rice, Joel (2) 6/21/2022 Right‐of‐entry case/General Judgment via 
Default
State of Oregon 
Circuit Court, 
Union County
21CV47273 Idaho Power Company 516 Ranch Partnership etal 12/10/2021 Right‐of‐entry case. Idaho Power dismissed 
this case. 
IDAHO POWER COMPANY’S SUPPLEMENTAL RESPONSE TO THE FIRST PRODUCTION REQUEST
OF THE COMMISSION STAFF - 7
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 31st day of March 2023, I served a true and
correct copy of Idaho Power Company’s Supplemental Response to the First Production
Request of the Commission Staff to Idaho Power Company upon the following named
parties by the method indicated below, and addressed to the following:

Commission Staff
Riley Newton
Michael Duval
Deputy Attorney General
Idaho Public Utilities Commission
Po Box 83720
Boise, Idaho 83720-0074

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Idaho Irrigation Pumpers Association, Inc.
Eric L. Olsen
ECHO HAWK & Olsen, PLLC
505 Pershing Ave., Ste. 100
P.O. Box 6119
Pocatello, Idaho 83205

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Lance Kaufman, Ph.D.
2623 NW Bluebell Place
Corvallis, OR 97330
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Industrial Customer of Idaho Power
Peter J. Richardson
RICHARDSON ADAMS, PLLC
515 North 27th Street
P.O. Box 7218
Boise, Idaho 83702

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Dr. Don Reading
6070 Hill Road
Boise, Idaho 83703
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IDAHO POWER COMPANY’S SUPPLEMENTAL RESPONSE TO THE FIRST PRODUCTION REQUEST
OF THE COMMISSION STAFF - 8
City of Boise
Ed Jewell
150 N. Capitol Blvd.
P.O. Box 500
Boise, Idaho 83701-0500

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Wil Gehl
Boise City Dept. of Public Works
150 N. Capitol Blvd.
P.O. Box 500
Boise, Idaho 83701-0500
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Micron Technology, Inc.
Austin Rueschhoff
Thorvald A. Nelson
Austin W. Jensen
Holland & Hart LLP
555 17th Street, Suite 3200
Denver, CO 80202

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Jim Swier
Micron Technology, Inc.
8000 South Federal Way
Boise, ID 83707
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Idaho Conservation League
Marie Kellner
Idaho Conservation League
710 N. 6th Street
Boise, Idaho 83702
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IDAHO POWER COMPANY’S SUPPLEMENTAL RESPONSE TO THE FIRST PRODUCTION REQUEST
OF THE COMMISSION STAFF - 9
Brad Heusinkveld
Idaho Conservation League
710 N. 6th Street
Boise, Idaho 83702
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______________________________
Stacy Gust, Regulatory Administrative
Assistant

BEFORE THE

IDAHO PUBLIC UTILITIES COMMISSION

CASE NO. IPC-E-23-01

IDAHO POWER COMPANY

REQUEST NO. 16

ATTACHMENT 1

Filed: March 9, 2023
IN THE SUPREME COURT OF THE STATE OF OREGON
In the Matter of the Application for Site
Certificate for the Boardman to
Hemingway Transmission Line.

STOP B2H COALITION,
Petitioner,
v.

OREGON DEPARTMENT OF ENERGY,
OREGON ENERGY FACILITY SITING
COUNCIL, and IDAHO POWER COMPANY,
Respondents.

(SC S069919)
________________________________________________________________________

In the Matter of the Application for Site
Certificate for the Boardman to
Hemingway Transmission Line.

MICHAEL McALLISTER,
Petitioner,
v.

OREGON DEPARTMENT OF ENERGY,
OREGON ENERGY FACILITY SITING
COUNCIL, and IDAHO POWER COMPANY,
Respondents.

(SC S069920)
_____________________________________________________________________

In the Matter of the Application for Site
Certificate for the Boardman to
Hemingway Transmission Line.

IRENE GILBERT,
Petitioner,
v.

OREGON DEPARTMENT OF ENERGY,
OREGON ENERGY FACILITY SITING
COUNCIL, and IDAHO POWER COMPANY,
Respondents.

(SC S069924)
On judicial review from the Energy Facility Siting Council.*

S069919 and S069920 argued and submitted January 18, 2023; S069924
submitted on the briefs January 18, 2023.

Karl G. Anuta, Law Office of Karl G. Anuta, PC, Portland, argued the cause and
filed the brief for petitioner STOP B2H Coalition. Also on the briefs was Mike J.
Sargetakis, Crag Law Center, Portland.

Hailey R. McAllister, Oakland, California, argued the cause for petitioner Michael
McAllister. Jesse A. Buss, Willamette Law Group, PC, Oregon City, filed the brief for
petitioner on review. Also on the brief was Hailey R. McAllister, Oakland, California.

Irene Gilbert, La Grande, filed the brief pro se.

Patricia G. Rincon, Assistant Attorney General, Salem, argued the cause and filed
the briefs for respondents Oregon Department of Energy and Oregon Energy Facility
Siting Council. Patricia G. Rincon, Assistant Attorney General, Salem, filed the briefs
for those respondents in S069919 and S069920. Denise G. Fjordbeck filed the brief for
those respondents in S069924. Also on the briefs were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.

Sara Kobak, Schwabe Williamson & Wyatt, PC, Portland, argued the cause and
filed the briefs for respondent Idaho Power Company. Also on the briefs were Andrew J.
Lee, Portland, and Lisa Rackner and Jocelyn C. Pease, McDowell Rackner & Gibson,
PC, Portland.

Anne Morrison, La Grande, filed the brief for amicus curiae Anne Morrison,
Attorney.

Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog, Bushong, and James,
Justices.**

BUSHONG, J.

The final order of the Energy Facility Siting Council is affirmed.

*Judicial review of a Final Order of the Energy Facility Siting Counsel dated
September 27, 2022, Kent Howe, Vice Chair.

**Nelson, J., resigned February 25, 2023, and did not participate in the decision of
this case.

DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS

Prevailing party: Respondents.
[ X ] No costs allowed.
[ ] Costs allowed, payable by:
[ ] Costs allowed, to abide the outcome on remand, payable to:

1
BUSHONG, J. 1
Petitioners seek review of an order of the Energy Facility Siting Council 2
(EFSC) approving an Idaho Power Company (Idaho Power) application for a site 3
certificate to construct a high-voltage electrical transmission line from Boardman, 4
Oregon, to Hemingway, Idaho. Petitioner STOP B2H Coalition (Stop B2H) contends 5
that EFSC erred in the following ways: (1) denying Stop B2H's request for full party 6
status in the contested case proceedings; (2) granting an exception or variance to noise 7
level requirements; (3) modifying the governing rule to limit the noise assessment to 8
landowners within one-half mile of the transmission line; and (4) misapplying EFSC's 9
rules on the visual impacts from the transmission line. 10
Petitioner Michael McAllister (McAllister) contends that EFSC erred by 11
failing to require Idaho Power to include in its application an "environmentally 12
preferable" location for a segment of the transmission line in Union County. 13
Petitioner Irene Gilbert (Gilbert) contends that EFSC erred by (1) denying 14
Gilbert's request for full party status; (2) failing to document the impacts on historic 15
properties and mitigation measures; (3) delegating future approval of mitigation plans to 16
the Oregon Department of Energy (ODOE); (4) relying on federal standards to determine 17
mitigation requirements for historic properties; and (5) modifying a mandatory site 18
certificate condition without rulemaking. 19
Applying the governing standard of review, we affirm EFSC's final order 20

2
approving the site certificate for this transmission line for the reasons stated below.1 1
I. BACKGROUND 2
A. Statutory Framework 3
A high-voltage transmission line is an "energy facility" that cannot be 4
constructed or operated in Oregon without a site certificate from EFSC.2 ORS 5
469.300(11) (defining "energy facility"); ORS 469.320 (site certificate requirement). The 6
process starts when the applicant submits a notice of intent to apply for a site certificate. 7
ORS 469.330(1). ODOE then issues a project order that identifies all statutes, 8
administrative regulations, and other requirements that the applicant must satisfy to 9
obtain the site certificate. ORS 469.330(3). The applicant must submit evidence of 10
compliance with all project order requirements in its site certificate application. ORS 11
469.350. 12
If ODOE determines that an application is complete, it issues a draft 13
proposed order and gives the public an opportunity to comment. ORS 469.350(4); ORS 14
469.370. EFSC then conducts a contested case on issues raised during the public 15
comment period in accordance with ORS chapter 183 and any procedures adopted by 16
EFSC. ORS 469.370(5).3 Only issues raised with sufficient specificity during the public 17

1 We consolidate the three petitions for purposes of this opinion only.
2 EFSC consists of seven public members appointed by the Governor, subject
to confirmation by the Senate. ORS 469.450(1). ODOE is responsible for providing
staff support and funding for EFSC. ORS 469.450(6).
3 By rule, EFSC appoints a hearing officer "to conduct a contested case
proceeding on behalf of the Council." OAR 345-015-0023(1).

3
comment period may be raised in the contested case proceeding. ORS 469.370(3), (4). 1
EFSC then issues a final order "either approving or rejecting the application based upon 2
the standards adopted under ORS 469.501 and any additional statutes, rules or local 3
ordinances determined to be applicable to the facility by the project order[.]" ORS 4
469.370(7). Any party to the contested case can seek review of EFSC's final order in this 5
court. ORS 469.403(2), (3). 6
ORS 469.501(1) authorizes EFSC to adopt standards for the siting, 7
construction, and operation of an energy facility. The standards may address a wide 8
variety of subjects, including seismic hazards; protection of wilderness areas, wildlife 9
refuges, and scenic waterways; effects on fish and wildlife; impacts on historic, cultural, 10
and archaeological resources; protection of public health and safety; impacts on 11
recreation, scenic, and aesthetic values; consistency with the state energy policy; 12
compliance with statewide planning goals; soil protection; and other subjects. ORS 13
469.501(1)(a) - (o). 14
To issue a site certificate, EFSC must find by a preponderance of the 15
evidence that the facility complies with (1) the standards adopted by EFSC and (2) "all 16
other Oregon statutes and administrative rules" that apply to the proposed facility, unless 17
EFSC finds that full compliance is not required. ORS 469.503(1), (3). If the facility does 18
not fully comply with all applicable standards, EFSC may still issue the site certificate if 19
it finds that "the overall public benefits of the facility outweigh any adverse effects on a 20
resource or interest protected by the applicable standards the facility does not meet." 21
ORS 469.501(3)(a); 469.503(1). 22

4
The stated purpose of this statutory scheme is to establish "a comprehensive 1
system for the siting, monitoring and regulating of the location, construction and 2
operation of all energy facilities in this state." ORS 469.310. As part of this 3
"comprehensive system," the statute provides that a site certificate "shall bind the state 4
and all counties and cities and political subdivisions in this state as to the approval of the 5
site and the construction and operation of the facility." ORS 469.401(3). State agencies 6
and local political subdivisions must issue any permits, licenses, and certificates required 7
by the site certificate. Id. On administrative or judicial review of any permitting 8
decision, the only issue is whether the permit is consistent with the site certificate. Id. 9
We examined this statutory scheme in Marbet v. Portland Gen. Elect., 277 10
Or 447, 449, 561 P2d 154 (1977), "the first contested proceeding under the energy 11
facility siting act" after its enactment in 1971. There, we pointed out that the statute 12
"assigns the council a wide range of duties relating to power facilities in this state." Id. at 13
450. The statute "reflects a legislative policy to centralize these responsibilities in the 14
council." Id. Regulatory concerns "previously pursued through * * * separate agencies 15
are now to find expression through special advisory groups, * * * interagency 16
coordination, * * * and in the council's procedures." Id. 17
B. Proceedings Below 18
The following overview -- summarized from EFSC's final order and not 19
disputed by the parties -- provides context for the issues raised in this case. 20
Idaho Power submitted its notice of intent to apply for a site certificate for 21
the transmission line at issue in August 2008. Over the course of the next ten years, 22

5
Idaho Power engaged in community outreach and a series of public meetings to obtain 1
input and refine the proposed project. Seventeen different agencies, including the Oregon 2
Department of Fish and Wildlife and the United States Department of the Interior Bureau 3
of Land Management (BLM),4 participated and offered comment. 4
ODOE issued its first project order in March 2012, and Idaho Power 5
submitted its preliminary application for a Site Certificate in February 2013. Over the 6
next five years, ODOE amended the project order twice, while Idaho Power amended its 7
preliminary application, partly in response to input from the public and other agencies. 8
One such agency was BLM. The National Environmental Policy Act 9
(NEPA) had required BLM to prepare an Environmental Impact Statement (EIS) for the 10
project. 42 USC §§ 4321 - 4370. BLM had issued its final EIS in November 2016 and 11
issued its Record of Decision (ROD) a year later. In its EIS and ROD, BLM had listed an 12
alternative route for one segment of the transmission line in Union County -- known as 13
the Glass Hill route -- as "environmentally preferable." 14
Idaho Power had included that route -- along with other alternatives -- in its 15
preliminary application, but it did not include the Glass Hill route in its amended 16
application. In written testimony, Idaho Power explained why it decided not to include 17
the Glass Hill route: 18
"* * * Idaho Power has worked to develop an acceptable route through 19
Union County for over a decade. Early on, Idaho Power considered the 20
Glass Hill Route, along with at least one other route in the vicinity of 21

4 BLM was involved because some segments of the proposed transmission
line would cross federal lands managed by BLM.

6
Morgan Lake. However, the Glass Hill Route was confronted with 1
substantial backlash from the affected landowners and other interested 2
parties, some of which formed the Glass Hill Coalition specifically to 3
challenge that route. The Confederated Tribes of the Umatilla Indian 4
Reservation also expressed disfavor for the Glass Hill Route due to impacts 5
to cultural resources. The Morgan Lake Alternative was developed in 6
response to those concerns, as well as in response to a request made by one 7
of the affected landowners during the federal National Environmental 8
Policy Act ('NEPA') process to locate the route close to the border of their 9
property rather than bisecting it. The Mill Creek Route was also developed 10
during the NEPA process, in response to the County's request to site the 11
Project in parallel with the existing 230-kv line." 12
In September 2018, Idaho Power finalized its application. ODOE issued a 13
draft proposed order recommending approval of the application, and EFSC appointed a 14
hearing officer; public notice was given, and a public comment period was opened. 15
Petitioners Stop B2H, McAllister, and Gilbert submitted comments during that public 16
comment period. In July 2020, ODOE issued a proposed order and set a deadline for 17
interested parties to request party status in the contested case proceedings. Over 50 18
petitioners -- including, as relevant here, Stop B2H and Gilbert -- asked to participate as 19
full parties. 20
In late 2020, the hearing officer issued an order on the petitions for party 21
status, granting only limited party status to Stop B2H and Gilbert, among others. Stop 22
B2H and Gilbert appealed that ruling to EFSC. EFSC conducted a hearing and ultimately 23
agreed with the hearing officer that Stop B2H and Gilbert would only be allowed to 24
participate in the contested case proceeding as limited parties. 25
The hearing officer issued the first case management order for the contested 26
case proceedings in January 2021 and began receiving witness testimony and other 27

7
evidence. The evidentiary record for the contested case closed on January 31, 2022. The 1
hearing officer issued a proposed contested case order on May 31, 2022. EFSC 2
conducted a hearing on the hearing officer's proposed contested case order in August 3
2022. EFSC then issued a draft final order and held its final hearing on September 27, 4
2022. After that hearing, the EFSC members voted unanimously to approve Idaho 5
Power's application. 6
EFSC's final order, dated September 27, 2022, is 729 pages long (excluding 7
attachments). The order describes the procedural history, opportunities for public input, 8
and the proposed facility -- including the corridor assessment establishing the locations 9
for this 300-mile transmission line -- in detail. The order also includes detailed findings 10
and conclusions regarding compliance with the standards established by EFSC and other 11
applicable statutes and regulations, including the standards for noise, visual impacts, 12
effects on historic properties, and mitigation that had been raised in this case. Stop B2H, 13
McAllister, and Gilbert filed timely petitions for review of that order pursuant to ORS 14
469.403(3). 15
C. Standard of Review 16
"We review final orders of the council for errors of law, abuse of agency 17
discretion, and lack of substantial evidence in the record to support the challenged 18
findings of fact." Save Our Rural Oregon v. Energy Facility Siting, 339 Or 353, 356, 121 19
P3d 1141 (2005); see ORS 469.403(6); ORS 183.482(7), (8). 20
Many of the parties' assignments of error require us to construe and apply 21
various provisions of the energy facility siting act. In construing the statute, we attempt 22

8
to discern the intent of the legislature that enacted it. ORS 174.020; State v. McDowell, 1
352 Or 27, 30, 279 P3d 198 (2012) ("[o]ur task is to discern what the legislature 2
contemplated in enacting" the statute at issue). To discern that intent, we give primary 3
weight to the statutory text in context, with appropriate additional weight accorded to any 4
relevant legislative history. City of Portland v. Bartlett, 369 Or 606, 610, 509 P3d 99 5
(2022); State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). Context "includes 6
other provisions of the same statute and other related statutes," PGE v. Bureau of Labor 7
and Industries, 317 Or 606, 611, 859 P2d 1143 (1993), and "case law interpreting the 8
statute at issue and related statutes, including earlier versions of those statutes," SAIF v. 9
Walker, 330 Or 102, 109, 996 P2d 979 (2000). 10
Some assignments of error require us to apply agency rules and review 11
EFSC's interpretation of those rules. We review an agency's interpretation of a rule to see 12
if the agency has "erroneously interpreted a provision of law." ORS 183.482(8)(a). 13
Where "the provision of law" at issue is the rule itself, and the agency offers a "plausible 14
interpretation" of that rule, then "there is no basis on which this court can assert that the 15
rule has been interpreted 'erroneously'" unless the interpretation is "shown either to be 16
inconsistent with the wording of the rule itself, or with the rule's context, or with any 17
other source of law." Don't Waste Oregon Com. v. Energy Facility Siting, 320 Or 132, 18
142, 881 P2d 119 (1994). 19

9
II. DISCUSSION 1
A. Stop B2H's Assignments of Error 2
1. First Assignment: Denial of Full Party Status 3
Stop B2H applied to be a full party in the contested case proceedings but 4
was only allowed to participate as a limited party. Stop B2H contends that EFSC has no 5
authority to override its choice to participate as a full party. 6
The Oregon Administrative Procedures Act (APA) defines "party" to 7
include any person or entity "requesting to participate before the agency as a party or in a 8
limited party status which the agency determines either has an interest in the outcome of 9
the agency's proceeding or represents a public interest in such result." ORS 10
183.310(7)(c). The model rules promulgated by the Attorney General for contested case 11
proceedings -- adopted by EFSC, OAR 345-001-0005 -- further address party status: 12
"Persons who have an interest in the outcome of the agency's contested case proceeding 13
or who represent a public interest in such result may request to participate as parties or 14
limited parties." OAR 137-003-0005(1). The rule goes on to state, "A petition to 15
participate as a party may be treated as a petition to participate as a limited party." OAR 16
137-003-0005(8). If the agency grants a petition to participate, "the agency shall specify 17
areas of participation and procedural limitations as it deems appropriate." OAR 137-003-18
0005(9). 19
Under the model rules, an agency is not bound by the party's "request" and 20
is authorized to treat a party's petition to participate as a party "as a petition to participate 21

10
as a limited party."5 That conclusion is supported by our recent decision in Friends of 1
Columbia Gorge v. Energy Fac. Siting Coun., 368 Or 123, 486 P3d 787 (2021). There, 2
we held that certain procedural rules adopted by EFSC were invalid because they 3
restricted "the participatory rights of all parties, in a manner not allowed by the APA." 4
Id. at 133. 5
In reaching that conclusion, we discussed the legislative history of the APA 6
provisions on "parties" and "limited parties" in a contested case proceeding. The statute 7
originally distinguished between parties "entitled as of right" to participate and parties 8
"permitted to intervene by the agency." Id. at 129. Parties entitled "as of right" could 9
fully participate in the proceeding, but "the APA allowed agencies to limit the 10
participation of intervening parties." Id. 11
A 1979 amendment to the APA "inserted the concept of limited parties into 12
the definition of 'party' that exists today." Id. at 131. As a result, "a person requesting to 13
participate before the agency -- in the nature of an intervenor -- might be either a full 14
party or a limited party in a particular contested case proceeding[.]" Id. at 132. An 15
agency "may * * * restrict rights of participation for limited parties in a manner that it 16
cannot for full parties." Id.; see ORS 183.450(3) ("Persons appearing in a limited party 17
status shall participate in the manner and to the extent prescribed by rule of the agency."). 18

5 OAR 137-003-0005(8) uses the passive voice: A petition to participate
"may be treated" as a petition to participate as a limited party. In context, the only logical
reading is that the agency is the actor with the authority to treat a petition to participate as
a party as a petition to participate as a limited party.

11
ORS 469.370(5) provides that the applicant (Idaho Power in this case) 1
"shall be a party to the contested case." In other words, the applicant is entitled to fully 2
participate "as of right." EFSC "may permit any other person" who participated during 3
the public comment period to become a party to the contested case. Id. The APA has 4
always "allowed agencies to limit the participation" of parties who are "permitted to 5
intervene by the agency." Friends of Columbia Gorge, 368 Or at 129. 6
Applying those principles here, under the energy facility siting act, EFSC 7
"may permit" Stop B2H to participate in the contested case, just as an agency could 8
"permit" an interested party to intervene under earlier versions of the APA. Under the 9
model rules, EFSC could treat a petition to participate as a full party "as a petition to 10
participate as a limited party" under OAR 137-003-0005(8), just as an agency could limit 11
the participation of an intervenor under earlier versions of the APA. And under the 12
current version of the APA and the model rules, EFSC is expressly authorized to limit the 13
participation of a party that it permitted to participate as a limited party. ORS 14
183.450(3); OAR 137-003-0005(9). The terminology has changed, but the agency's 15
authority has not. We conclude that EFSC was authorized to treat Stop B2H as a limited 16
party. 17
Stop B2H also argues that EFSC did not apply the factors in OAR 137-003-18
0005(7) in evaluating its application to be a full party. That rule provides: 19
"(7) In ruling on petitions to participate as a party or a limited party, 20
the agency shall consider: 21
"(a) Whether the petitioner has demonstrated a personal or public 22
interest that could reasonably be affected by the outcome of the proceeding; 23

12
"(b) Whether any such affected interest is within the scope of the 1
agency's jurisdiction and within the scope of the notice of contested case 2
hearing; 3
"(c) When a public interest is alleged, the qualifications of the 4
petitioner to represent that interest; 5
"(d) The extent to which the petitioner's interest will be represented 6
by existing parties." 7
Here, EFSC's hearing officer addressed over 50 different petitions to 8
appear, most of them asking for full party status. The hearing officer's order cited the 9
governing rule, OAR 137-003-0005(7), and expressly discussed the public interest factor 10
of those petitioners seeking to appear as parties, which covers factors (a) and (c) of the 11
rule.6 The hearing officer also stated that petitioners had shown either a personal or 12
public interest in the outcome: 13
"[L]imited party status is appropriate where, as in this case, a petitioner 14
satisfies the eligibility requirements for participation and has established a 15
personal or public interest in the outcome of the proceeding, but is only 16
qualified to respond to some, but not all, issues to be considered in the 17
contested case." 18
The hearing officer articulated its reasons for giving limited party status to 19
most petitioners: 20
"Mindful of the following considerations -- the strict eligibility 21
requirements for participation set out in ORS 469.370, OAR 345-015-22
0016(3), and OAR 137-003-0005; the number of petitioners with an interest 23
in the outcome of this contested case requesting to participate as a party; 24
the number and nature of properly raised contested case issues in this 25
matter; and the ALJ's duties under OAR 345-015-0023(2) to, among other 26
things, ensure a full, fair and impartial hearing, facilitate the presentation of 27

6 EFSC's order affirming the hearing officer's designation of limited party
status for Stop B2H and Gilbert also stated that it was relying on the Attorney General's
model rules for contested cases, OAR 137-003-0000 to 137-003-0092.

13
evidence, maintain order, comply with time limits, and assist the Council in 1
making its decision -- I find it appropriate under OAR 137-003-0005(8) and 2
(9), OAR 137-003-0040, and OAR 345-015-0083, to limit successful 3
petitioners' participation in this contested case to the issues properly raised 4
in their respective petitions for party status." 5
(Footnote omitted.) 6
Although the hearing officer did not expressly address factor (d) -- the 7
extent to which Stop B2H's interest would be represented by existing parties -- the 8
hearing officer allowed all limited parties to participate with respect to the issues raised in 9
their petitions. Given the number of parties and the breadth of the issues raised, there 10
may have been some duplication of interests represented by multiple parties, but the 11
hearing officer's order ensured that all issues raised by any party would be considered 12
during this process. Thus, the failure to expressly address factor (d) did not preclude 13
Stop B2H from presenting all the issues it wanted to present during the contested case 14
process. Nothing in the rule precluded the hearing officer from also considering the need 15
to limit party status to keep the proceedings manageable. 16
Stop B2H does not contend that EFSC abused its discretion in granting it 17
limited party status under that rule or challenge the evidentiary support for any factual 18
findings. We conclude that EFSC (1) had authority to grant limited party status to Stop 19
B2H and (2) considered the factors it was required to consider in making that 20
determination. 21
2. Second Assignment: Noise Level Limits 22
It is undisputed that, on occasion, the "corona noise" from the transmission 23

14
line will exceed the noise limits specified in OAR 340-035-0035(1)(b)(B)(i).7 EFSC 1
concluded that, under the circumstances, it could grant an exception to the noise 2
standards under OAR 340-035-0035(6)(a) and a variance under ORS 467.060 and OAR 3
340-035-0100.8 4
Stop B2H contends that EFSC lacks authority to grant either an exception 5
or a variance. According to Stop B2H, only the Department of Environmental Quality 6
(DEQ) has authority to grant exceptions to the noise standards under OAR 340-035-7
0035(6), and only the Environmental Quality Commission (EQC) has authority to grant 8
variances under ORS 467.060. In Stop B2H's view, if the legislature had intended to give 9
EFSC the authority to grant exceptions and variances from noise regulations, it would 10
have stated that expressly, as it did in ORS 469.504(2) (authorizing EFSC to grant 11

7 As described in EFSC's final order, corona noise "is characterized by a low
hum, hissing, frying, or crackling sound" that results from "small local pressure changes"
causing energy dissipation "near the surface of * * * conductors." Corona noise may be
perceptible at some locations "during occasional foul weather events."
8 The statute and rules do not define "exception" and "variance" for purposes
of the noise standards statute. Those terms are commonly used in zoning laws, however.
In that context, an "exception" generally means a predefined circumstance to which a
general regulation would not apply; a "variance" is a decision to not apply a regulatory
requirement so as to avoid undue hardship to the applicant. See Application of Devereux
Found., 351 Pa 478, 483, 41 A2d 744, 746, appeal dismissed, 326 US 686, 66 S Ct 89, 90
L Ed 403 (1945); Mitchell Land Co. v. Planning & Zoning Board Of Appeals, 140 Conn
527, 531-33, 102 A2d 316, 318-19 (1953); see generally Sara C. Bronin and Dwight H.
Merriam, 3 Rathkopf's Law of Zoning and Planning § 58.3, 58-10-11 (4th ed 2018).
Those definitions are consistent with how those terms are used here.

15
exceptions to statewide planning goals).9 1
EFSC explained in its final order why it addressed Idaho Power's requests 2
for an exception and variance instead of referring Idaho Power to EQC and DEQ. EFSC 3
stated that it "assumes the authority as the decision maker to interpret and implement" the 4
noise rules because (1) "the Legislative Assembly withdrew all funding for implementing 5
and administering" the noise program as stated in OAR 340-035-0110; and (2) it had 6
received a management directive from DEQ as part of the contested case authorizing 7
EFSC to "review applications to ensure that proposed facilities meet the State noise 8
regulations." The rule cited by EFSC states that EQC and DEQ have "suspended 9
administration of the noise program, including but not limited to processing requests for 10
exceptions and variances[.]" OAR 340-035-0110. 11
Thus, EFSC addressed Idaho Power's requests for an exception or variance 12
only because EQC and DEQ had made it clear by rule -- and confirmed in the directive to 13
EFSC -- that EQC and DEQ would not address those requests.10 Under those 14

9 ORS 469.504(2) states that EFSC "may take an exception" to a statewide
planning goal under certain circumstances. Similarly, ORS 469.501(2) states that EFSC
"may adopt exemptions from any need standard" adopted under the state energy policy.
10 Compare EFSC's decision to grant Idaho Power's requests for an exception
to and variance from the noise standards with EFSC's response to Idaho Power's request
for an exemption from the reforestation requirements of the Oregon Forest Practices Act
(FPA), ORS 527.610 to 527.770. EFSC stated in that context that it "does not assert
jurisdiction of the FPA" and directed Idaho Power "to submit its request for exemption
directly to the Oregon Department of Forestry." That statement supports the conclusion
that EFSC addressed the requests for an exception to and variance from the noise
standards only because EQC and DEQ had suspended processing those requests.

16
circumstances, it would have been futile for EFSC to refer Idaho Power's 1
exception/variance requests to EQC and DEQ. 2
The question, though, is whether EFSC's practical solution to this problem 3
exceeded its authority under those circumstances. We conclude that it did not. The 4
energy facility siting act (1) grants EFSC authority to adopt standards for a particular 5
facility in a wide variety of areas that otherwise would be governed by other state 6
agencies (ORS 469.501(1)); (2) authorizes EFSC to approve a site certificate based on 7
those standards "and any additional statutes, rules or local ordinances" that may apply 8
(ORS 469.370(7)); (3) makes EFSC's decision to issue a site certificate binding on all 9
state agencies and local governments and requires them to "promptly issue" any permits, 10
licenses, and certificates required by the site certificate11 (ORS 469.401(3)); and (4) 11
authorizes EFSC to issue a site certificate even if the facility does not meet all applicable 12
standards if EFSC determines that "the overall public benefits of the facility outweigh 13
any adverse effects on a resource or interest protected by the applicable standards the 14
facility does not meet" (ORS 469.501(3)(a) and 469.503(1)). 15
Stop B2H's contention that the legislature intended to give EFSC authority 16
to grant exceptions only where the statute stated that authority expressly -- as in ORS 17
469.501(2) and 469.504(2) -- is inconsistent with the legislature's broad grant of statutory 18

11 An example of EFSC's authority to direct other agencies to issue permits
otherwise required by state law, subject only to the conditions in the site certificate, is
found in EFSC's direction to the Department of State Lands to issue a removal-fill permit
for wetlands affected by the project, subject only to the conditions specified in the site
certificate.

17
authority to EFSC throughout the energy facility siting act as summarized above. We 1
conclude that EFSC had the authority to grant (1) an exception to the noise standards 2
under OAR 340-035-0035(6)(a), and (2) a variance under OAR 340-035-0100 and ORS 3
467.060.12 4
Stop B2H also contends that, even if EFSC had the authority to grant a 5
variance or an exception, it erred in doing so because the criteria for granting an 6
exception or a variance were not met. Stop B2H primarily contends that noise violations 7
are not "unusual or infrequent" as required for an exception under OAR 340-035-8
0035(6)(a).13 Stop B2H contends that the evidence in the record established that weather 9
would cause noise violations 48 days a year, which (it argues) is more than "unusual or 10
infrequent." 11
EFSC determined that noise exceedances would be unusual or infrequent 12
based on the evidence showing that exceedances may occur only in less than two percent 13
of the total hours in a year. To the extent Stop B2H contends that EFSC committed a 14
legal error in interpreting what is meant by "unusual or infrequent" under the rule, we see 15
no error. Nothing in the rule or statute required EFSC to use the number of days instead 16

12 We need not decide whether EFSC could exercise this broad statutory
authority absent the unusual circumstances presented here given EQC and DEQ's
decision to suspend processing requests for exceptions and variances.
13 Stop B2H also contends in its brief that the requirements for a variance in
paragraphs (1)(b) through (d) of ORS 467.060 are not met, but it does not address a
variance under paragraph (1)(a) of ORS 467.060 for noise exceedances resulting from
conditions "that are beyond the control" of Idaho Power.

18
of the percentage of hours in assessing whether noise exceedances would be unusual or 1
infrequent.14 To the extent Stop B2H is challenging the evidentiary support for the 2
factual findings underlying the exception and variance granted by EFSC, we review that 3
issue for substantial evidence in the record. 4
First, we conclude that there was substantial evidence supporting the grant 5
of an exception. EFSC explained in its final order its reason for granting an exception for 6
unusual or infrequent events: 7
"* * * Council finds that exceedances along the transmission line would be 8
an infrequent event because exceedances are expected to occur less than 9
two percent of the total hours in a given year (because they are projected to 10
occur during foul weather, and foul weather events are infrequent in the 11
project area, and other circumstances need to occur simultaneously to result 12
in an exceedance, i.e., low ambient noise environment and transmission line 13
operating at full capacity). Therefore, under OAR 340-035-0035(6)(a)[,] 14
Council grants an exception to the facility, subject to the noise control 15
conditions described in this Order." 16
That conclusion was based on weather data evaluated by a meteorologist and detailed 17
sound measurement studies summarized in the final order. That evidence constitutes 18
substantial evidence supporting EFSC's conclusion that noise exceedances would be 19
"unusual or infrequent," thereby justifying an exception under OAR 340-035-0035(6)(a). 20
Second, we also conclude that there was substantial evidence to support 21
granting a variance. Idaho Power had requested a variance from the "ambient 22

14 Stop B2H does dispute EFSC's finding that noise exceedances will occur in
less than two percent of the total hours per year.

19
antidegradation standard" in OAR 340-035-0100.15 Based on the noise analysis studies 1
and weather data summarized in the final order, EFSC granted a variance to the ambient 2
antidegradation standard for the transmission line "at any time of day or night during foul 3
weather events (defined as a rain rate of 0.8 to 5 millimeters per hour)." EFSC's final 4
order first explains that "ambient antidegradation standard exceedance[s] are predicted 5
during foul weather conditions" and Idaho Power "cannot be accountable for weather 6
conditions that may cause audible corona noise, as the weather is a condition beyond its 7
control." EFSC also found that "strict compliance with the ambient antidegradation 8
standard in DEQ rule is inappropriate, unreasonable, or impractical because of special 9
physical conditions and special circumstances contributed to the applicant's proposed 10
transmission line location relating to NSRs [noise-sensitive receptors] that may 11
experience noise exceedances." Finally, EFSC found that strict compliance with the rule 12
"would result in substantial curtailment or closing down (never building) the proposed 13
transmission line and that * * * there is not another alternative facility available." 14
Stop B2H disagrees with EFSC's findings and conclusions, but it has not 15
demonstrated that the findings are unsupported by substantial evidence given the studies 16
and analyses summarized in the final order, and it has not persuaded us that EFSC's 17

15 "Ambient [n]oise" is defined in the regulations as "the all-encompassing
noise associated with a given environment, being usually a composite of sounds from
many sources near and far." OAR 340-035-0015(5). The "ambient antidegradation
standard" established in the rule means that a noise source may not "cause or permit" an
increase of ambient noise levels by more than 10 dBA (decibels adjusted to human
hearing using the A-weighting scale (soft)) in any one hour or exceed the levels specified
by the rules at an appropriate measurement point. OAR 340-035-0035(1)(b)(B)(i).

20
conclusions are legally erroneous in any respect. 1
3. Third Assignment: Modifying Rule to Limit Noise Assessment to 2
Landowners Within One-Half Mile of the Transmission Line 3
Former OAR 345-021-0010(1)(x)(E) (Jan 1, 2019) generally requires 4
applicants to submit a list of noise-sensitive landowners within one mile of the proposed 5
facility.16 Here, ODOE's project order only required Idaho Power to list landowners 6
within a half mile of the transmission line "because of the linear nature of the proposed 7
facility." Stop B2H contends that ODOE could not change the one-mile requirement by 8
project order without engaging in rulemaking. 9
However, the existing rule states that ODOE "may waive or modify those 10
requirements that [ODOE] determines are not applicable to the proposed facility." OAR 11
345-021-0000(4). The rule further provides that the project order may identify "any 12
appropriate modifications to applicable provisions of this rule." OAR 345-021-0010(1). 13
Here, ODOE in effect modified the one-mile requirement -- or determined 14
that the one-mile requirement was "not applicable" to this transmission line -- in a way 15
that was authorized by the rule. When a rule expressly authorizes an agency to modify a 16
condition to address a specific case, the modification is not an amendment of the rule. A 17
rule is an agency directive "of general applicability." ORS 183.310(9). An agency action 18
"directed to a specific person or entity" is not a generally applicable rule. Pen-Nor, Inc. 19

16 At the time of the agency proceedings, that regulation was numbered OAR
345-021-0010(1)(x). Rule amendments have shifted those provisions to OAR 345-021-
0010(1)(y). We refer to the former version of the rule, subsection (1)(x), for consistency
with citations in the agency record.

21
v. Oregon Dept. Higher Ed., 84 Or App 502, 507-08, 734 P2d 395 (1987). Here, 1
ODOE's modification of the one-mile requirement applied only to the site certificate for 2
this specific proposed transmission line. That modification is not a rule of general 3
applicability that would apply to other projects. 4
Thus, rulemaking was not required. There was no legal error in modifying 5
the one-mile requirement specified in former OAR 345-021-0010(1)(x)(E) (Jan 1, 2019) 6
for this transmission line. Stop B2H does not contend that ODOE abused its discretion in 7
making that modification or challenge the evidentiary support for any factual findings.17 8
4. Fourth Assignment: Assessing Visual Impacts 9
Under OAR 345-022-0080(1), EFSC can issue a site certificate only if "the 10
design, construction and operation of the facility, taking into account mitigation, are not 11
likely to result in significant adverse visual impacts to significant or important scenic 12
resources." "Significant" is defined in part to mean "having an important consequence 13
* * * based upon the magnitude and likelihood of the impact on the affected human 14
population[.]" OAR 345-001-0010(29). 15
Stop B2H contends that Idaho Power's methodology for assessing the visual 16
impacts of the transmission line was flawed because it failed to account for viewers' 17
subjective perceptions and reactions when determining whether a potential impact was 18

17 EFSC's final order required Idaho Power to address noise impacts on
landowners of noise-sensitive properties within one mile of the facility for any landowner
"who nevertheless believes that exceedances above the ambient degradation standard
have occurred at their NSR property."

22
going to be "significant." However, nothing in the rule required Idaho Power to utilize a 1
particular methodology or specifically account for subjective perceptions and reactions in 2
assessing whether the transmission line would be likely to result in "significant adverse 3
visual impacts" to scenic resources. 4
Moreover, as explained in the final order, the methodology used to assess 5
the visual impacts of the transmission line did take viewers' subjective perceptions into 6
account. Idaho Power developed a detailed visual-impact assessment methodology and 7
prepared a comprehensive visual impact study. The assessment "incorporated the BLM 8
visual 'sensitivity level' criterion and the [US Forest Service] visual 'concern' criterion 9
into its methodology, both of which measure the degree to which viewers subjectively 10
value a visual resource."18 11
Stop B2H disagrees with how the methodology took subjective perceptions 12
into account and the conclusions EFSC reached in assessing the visual impacts of the 13
facility, but Stop B2H has not identified a legal error in EFSC's use of Idaho Power's 14
methodology to assess whether the transmission line would result in significant adverse 15
visual impacts to scenic resources. Stop B2H does not challenge the evidentiary support 16
for any factual findings or contend that EFSC abused its discretion in assessing the visual 17
impacts of the transmission line. 18

18 The study concluded that, without mitigation, the facility might cause
significant visual impacts at certain points -- including near the National Historic Oregon
Trail Interpretive Center outside of Baker City -- but EFSC required mitigation
(including, among other things, modified H-frame tower structures) to lessen the visual
impacts at those locations, consistent with EFSC's siting standards.

23
B. McAllister's Assignment of Error 1
As noted above, for a portion of the transmission line running through 2
Union County, Idaho Power's preliminary application included an alternative known as 3
the Glass Hill route, but the final application did not include the Glass Hill route, 4
proposing instead two other alternative routes for that segment of the line. During the 5
public comment period and contested case proceedings, McAllister argued that the Glass 6
Hill route should be chosen because BLM had identified that route during the NEPA 7
process as the "environmentally preferable" alternative. EFSC concluded that 8
McAllister's argument that EFSC must consider the Glass Hill alternative route under 9
ORS 469.370(13) was outside the scope of its jurisdiction. 10
McAllister contends here that ORS 469.370(13) required Idaho Power to 11
include that "environmentally preferable" alternative in its application for EFSC's full 12
consideration. In response, Idaho Power and the state contend that (1) McAllister did not 13
preserve that argument for judicial review, because he did not cite ORS 469.370(13) 14
during the public comment period; (2) EFSC correctly rejected the argument as outside 15
the scope of its jurisdiction; and (3) the argument fails on its merits. 16
We need not decide the preservation issue, because we agree with Idaho 17
Power and the state that the argument fails on its merits.19 Before addressing the merits, 18
however, we first address the jurisdictional argument. 19

19 McAllister cited ORS 469.370(13) in the contested case proceedings but
did not cite the statute in advocating for the Glass Hill route during the public comment
period.

24
ORS 469.370(7) authorizes EFSC to review "the application" for 1
compliance with EFSC conditions and other legal standards. According to Idaho Power 2
and the state, Idaho Power's decision to delete the Glass Hill route from its application 3
removed that alternative from EFSC's jurisdiction, under Teledyne Wah Chang v. Energy 4
Fac. Siting Council, 298 Or 240, 692 P2d 86 (1984). We disagree in part. 5
In Teledyne Wah Chang, EFSC had approved a site certificate for a waste 6
disposal facility at a location different from the location specified in the application. We 7
reversed, noting that the statutory standard governing this type of facility required EFSC 8
to determine whether "the site" specified in the application "is suitable for disposal of 9
such wastes." Id. at 258 (citing ORS 469.375). We explained that "[t]his [statutory] 10
standard does not permit the Council to reject a proposed site because it believes another 11
location is better. EFSC was obligated to accept or reject the [site] on its own merits, 12
rather than engaging in a comparison." Id. 13
The statutory standard at issue here is different. This transmission line 14
traverses a 300-mile "corridor." It is not placed on a single "site" that is subject to EFSC 15
review to determine whether that site is "suitable" for the proposed facility. The statute 16
governing EFSC's review of a transmission line application broadly requires EFSC to 17
review "the application" for compliance with legal standards and issue a final order 18
"either approving or rejecting" that application. ORS 469.370(7). Unlike an application 19
for a waste disposal facility, an application for a transmission line must include a 20
"corridor selection assessment explaining how the applicant selected the corridors for 21

25
analysis in the application." OAR 345-021-0010(1)(b)(D).20 1
Thus, Idaho Power and the state are correct that EFSC is limited to 2
reviewing the application, but reviewing the application did not necessarily remove from 3
EFSC's jurisdiction an alternative route that Idaho Power addressed during the corridor 4
selection assessment process. Because McAllister has not challenged the corridor 5
selection assessment process, we decline to further address EFSC's review of that 6
process. We turn to the merits of McAllister's argument that ORS 469.370(13) required 7
EFSC to approve the Glass Hill route. 8
ORS 469.370(13) states: 9
"For a facility that is subject to and has been or will be reviewed by 10
a federal agency under the National Environmental Policy Act, 42 U.S.C. 11
Section 4321, et seq., the council shall conduct its site certificate review, to 12
the maximum extent feasible, in a manner that is consistent with and does 13
not duplicate the federal agency review. Such coordination shall include, 14
but need not be limited to: 15
"(a) Elimination of duplicative application, study and reporting 16
requirements; 17
"(b) Council use of information generated and documents prepared 18
for the federal agency review; 19
"(c) Development with the federal agency and reliance on a joint 20
record to address applicable council standards; 21
"(d) Whenever feasible, joint hearings and issuance of a site 22
certificate decision in a time frame consistent with the federal agency 23

20 The rule requires the applicant to "discuss the reasons for selecting the
corridors, based upon the evaluation" of the factors listed in the rule. OAR 345-021-
0010(1)(b)(D). The factors include "[l]east disturbance to streams, rivers and wetlands"
and "[l]east disturbance to areas where historical, cultural or archaeological resources are
likely to exist." Id.

26
review; and 1
"(e) To the extent consistent with applicable state standards, 2
establishment of conditions in and site certificate that are consistent with 3
the conditions established by the federal agency." 4
Thus, the text of the statute only required EFSC's "coordination" with BLM and required 5
it to conduct its site review, "to the maximum extent feasible," in a manner that was 6
"consistent with and d[id] not duplicate" the BLM review. It also required EFSC to 7
establish conditions in the site certificate "that [were] consistent with the conditions 8
established by the federal agency." ORS 469.370(13)(e). 9
"Coordination" means the "combination in suitable relation for most 10
effective or harmonious results." Webster's Third New Int'l Dictionary 502 (unabridged 11
ed 2002). "Consistent with" generally means "marked by harmony, regularity, or steady 12
continuity throughout" or "coexisting and showing no noteworthy opposing, conflicting, 13
inharmonious, or contradictory qualities or trends." Id. at 484. Those terms govern 14
EFSC's process -- that is, the "manner" in which EFSC must "conduct its site certificate 15
review" -- but they do not mandate any particular result, including choosing a route 16
deemed preferable during the NEPA process. 17
Moreover, NEPA "does not mandate particular results, but simply provides 18
the necessary process to ensure that federal agencies take a hard look at the 19
environmental consequences of their actions." Muckleshoot Indian Tribe v. U.S. Forest 20
Service, 177 F3d 800, 814 (9th Cir 1999) (internal quotation marks omitted); see also 21
Robertson v. Methow Valley Citizens Council, 490 US 332, 350, 109 S Ct 1835, 104 L Ed 22
2d 351 (1989) ("If the adverse environmental effects of the proposed action are 23

27
adequately identified and evaluated, the agency is not constrained by NEPA from 1
deciding that other values outweigh the environmental costs."). 2
Thus, identifying an "environmentally preferable" alternative under NEPA 3
does not mean that selecting that alternative is a condition for approval, even for a federal 4
project. Without that condition, McAllister cannot show that EFSC's approval of the two 5
alternative routes proposed by Idaho Power results in inconsistency between state and 6
federal regulatory review. It follows that Idaho Power was not required to include the 7
environmentally preferable alternative in its application, and ORS 469.370(13) did not 8
require EFSC to order Idaho Power to amend its application to include that alternative. 9
McAllister also contends that EFSC effectively denied him a fair process to 10
advocate in favor of the Glass Hill alternative. But as noted above, McAllister was able 11
to present his arguments in favor of the Glass Hill alternative during the public comment 12
period and the contested case proceedings. Idaho Power explained as part of the corridor 13
selection assessment why it chose not to include the Glass Hill alternative in its final 14
application. And we have addressed the merits of McAllister's legal argument under 15
ORS 469.370(13). Under the circumstances, we do not agree that McAllister has been 16
denied a fair opportunity to present his argument. 17
C. Gilbert's Assignments of Error 18
1. First Assignment: Denial of Full Party Status 19
Gilbert appears to contend that EFSC was legally required to grant her 20
request for full party status. We disagree, for the reasons stated above on Stop B2H's 21
first assignment of error. 22

28
2. Second, Third, and Fourth Assignments: Impacts on Historic Sites 1
and Mitigation Efforts 2
These assignments of error all involve EFSC's treatment of historic sites. 3
ORS 469.501(1) requires EFSC to adopt standards addressing: 4
"Impacts of the facility on historic, cultural or archaeological resources 5
listed on, or determined by the State Historic Preservation Officer to be 6
eligible for listing on, the National Register of Historic Places[21] or the 7
Oregon State Register of Historic Properties." 8
ORS 469.501(1)(f). EFSC adopted those standards in OAR 345-022-0090,22 which 9
includes a requirement that EFSC "tak[e] into account mitigation" in determining 10
whether the facility is "likely to result in significant adverse impacts" on those resources. 11

21 The National Historic Preservation Act, 54 USC § 306108, defines "historic
property" as districts, sites, or buildings "included on, or eligible for inclusion on, the
National Register [of Historic Places]." 54 USC § 300308; see 54 USC § 300311
(defining "National Register").
22 OAR 345-022-0090 provides, in pertinent part:
"(1) * * * [T]o issue a site certificate, the Council must find that the
construction and operation of the facility, taking into account mitigation,
are not likely to result in significant adverse impacts to:
"(a) Historic, cultural or archaeological resources that have been
listed on, or would likely be listed on the National Register of Historic
Places;
"(b) For a facility on private land, archaeological objects, as defined
in ORS 358.905(1)(a), or archaeological sites, as defined in 358.905(1)(c);
and
"(c) For a facility on public land, archaeological sites, as defined in
ORS 358.905(1)(c)."

29
"Mitigation" is defined in former OAR 345-001-0010(33) (June 30, 2020).23 1
Gilbert contends in her second, third, and fourth assignments of error that 2
Condition 2 in EFSC's final order fails to comply with those statutory and regulatory 3
requirements. That condition states: 4
"Historic, Cultural, and Archaeological Resources Condition 2: 5
Prior to construction of a phase or segment of the facility, subject to 6
confidential material submission procedures, and based on 1) new survey 7
data from previously unsurveyed areas and 2) the final design of the 8
facility, the certificate holder shall submit to [ODOE], the State Historic 9
Preservation Office (SHPO), and applicable Tribal Governments, for 10
review and [ODOE] approval a final Historic Properties Management Plan 11
(HPMP) Attachment S-9 of the Final Order on [the application for the site 12
certificate]. [ODOE] may engage its consultant to assist in review of the 13
HPMP. The certificate holder shall conduct all construction activities in 14

23 Former OAR 345-001-0010(33) (June 30, 2020), now OAR 345-001-
0010(22), states:
"'Mitigation' means taking one or more of the following actions
listed in order of priority:
"(a) Avoiding the impact altogether by not taking a certain action or
parts of an action;
"(b) Minimizing impacts by limiting the degree or magnitude of the
action and its implementation;
"(c) Partially or completely rectifying the impact by repairing,
rehabilitating or restoring the affected environment;
"(d) Reducing or eliminating the impact over time by preservation
and maintenance operations during the life of the action by monitoring and
taking appropriate corrective measures;
"(e) Partially or completely compensating for the impact by
replacing or providing comparable substitute resources or environments; or
"(f) Implementing other measures approved by the Council."

30
compliance with the final [ODOE]-approved HPMP." 1
Gilbert contends in her third assignment of error that EFSC cannot approve a site 2
certificate subject to ODOE's future review and approval of the HPMP, reasoning that 3
EFSC cannot make all the required findings when information is to be developed in the 4
future outside the record of the site certificate approval proceedings. 5
That argument fails because ORS 469.402 expressly authorizes EFSC to 6
delegate future review and approval to ODOE: 7
"If the Energy Facility Siting Council elects to impose conditions on 8
a site certificate or an amended site certificate, that require subsequent 9
review and approval of a future action, the council may delegate the future 10
review and approval to the State Department of Energy if, in the council's 11
discretion, the delegation is warranted under the circumstances of the case." 12
If EFSC "elects" to impose conditions that require future review and 13
approval and determines that delegation of that action to ODOE is "warranted under the 14
circumstances," EFSC's decision would be subject to review for abuse of discretion. 15
Gilbert's third assignment of error appears to suggest that EFSC abused its discretion 16
because Idaho Power did not survey some private properties that it could have surveyed 17
for impacts on historic sites.24 In Gilbert's view, delegating authority to ODOE to assess 18
the impacts on those properties in the future is an abuse of discretion because impacts 19
could (and should) have been reviewed as part of EFSC's site certificate approval 20
proceedings with full public participation. 21

24 Gilbert acknowledges that Idaho Power lacked legal authority to enter and
survey private property without the owner's consent.

31
Gilbert, however, does not identify any specific private properties that 1
Idaho Power failed to review even though it had the legal authority to enter and survey 2
during the site certificate approval process. EFSC had statutory authority to delegate that 3
assessment to ODOE for future review. We find no abuse of discretion under those 4
circumstances. 5
In her fourth assignment of error, Gilbert contends that EFSC erroneously 6
allowed Idaho Power to use federal standards for mitigating adverse environmental 7
effects on historic, cultural, and archaeological resources without requiring it to meet 8
more stringent state standards.25 We disagree. 9
As noted above, former OAR 345-001-0010(33) (June 30, 2020) lists 10
acceptable forms of mitigation. The final order prescribes in Table HCA-4b the specific 11
types of mitigation that EFSC required for this project: design modification (former 12
OAR 345-001-0010(33)(b) (June 30, 2020)), plus "at least one of the" mitigation methods 13
found in former OAR 345-001-0010(33)(c) - (e), "with a demonstrated direct benefit to 14
affected area (county of resource site)," and with the priority of those additional 15
mitigation methods further specified. The final order also requires Idaho Power to 16
demonstrate that any mitigation efforts required by federal "section 106 review"26 are 17

25 The state contends that Gilbert failed to preserve her argument here, as she
did not raise it during the contested case proceeding. For purposes of this opinion, we
will assume without deciding that Gilbert sufficiently preserved the issue.
26 "Section 106" refers to the review required by section 106 of the National
Historic Preservation Act, 54 USC § 306108, which requires agencies to "take into

32
sufficient to meet the state law standards articulated in Table HCA-4b: 1
"Mitigation established through the federal Section 106 compliance review 2
may be used to satisfy the EFSC mitigation requirement * * * if [Idaho 3
Power] can demonstrate that it addresses both the design modifications and 4
the restoration; preservation and maintenance; or compensation mitigation 5
within affected area (county), as included in the below Table HCA-4b 6
* * *. If not duplicated through the federal Section 106 process, the 7
applicant shall establish the scope and scale of Table HCA-4b mitigation, 8
prior to construction, subject to [ODOE] review and approval, in 9
consultation with SHPO, its consultants, or other entities with expertise 10
with historic trails." 11
Thus, EFSC required Idaho Power to demonstrate that the mitigation efforts it adopted to 12
comply with federal law would also satisfy state law. 13
Finally, Gilbert contends in her second assignment of error that EFSC's 14
final order is insufficiently specific regarding the impacts on historic sites and the 15
appropriate mitigation necessary for EFSC to "find that the construction and operation of 16
the facility, taking into account mitigation, are not likely to result in significant adverse 17
impacts" to historic sites, OAR 345-022-0090(1). 18
EFSC's final order contains specific information identifying the resources 19
that will be impacted, the extent of those impacts, and how those impacts will be 20
mitigated. Table HCA-2 of the order identifies specific sites and explains the mitigation 21
measures for those sites. For example, one site (number 35MW00227), described as an 22
"Archaeological Site -- Road," is not yet evaluated for eligibility for the National Register 23
of Historic Places, so the federal "section 106" review is not yet complete. Nevertheless, 24

account the effect of the undertaking on any historic property" for federal or federally-
funded projects.

33
the table sets out the following mitigation information: 1
"Avoid. Subsurface probing needed. If the Section 106 2
determination is eligible, applicant will avoid Site # 35MW227 as follows: 3
Approved Route: For the structure work area and pulling & tension site, 4
applicant will relocate or reduce the size of those areas to avoid Site # 5
35MW227; for the existing road, all improvements will be made within the 6
existing road prism thereby avoiding any new impacts; applicant will flag 7
any portion of the boundary of Site # 35MW227 that occurs within 100 feet 8
of construction activity. West of Bombing Range Road Alternatives 1 & 2: 9
No avoidance measures are necessary as there are no direct impacts 10
proposed for these alternatives." 11
Gilbert does not explain why that information would be inadequate to support the 12
findings required by OAR 345-022-0090(1). She also does not identify any specific sites 13
that were omitted from the final order, or for which the proposed mitigation is 14
insufficient. We see no error in the final order regarding the specificity of EFSC's 15
assessment of impacts on historic sites and mitigation requirements. 16
3. Fifth Assignment: Whether EFSC Changed a Mandatory Site 17
Certificate Condition Without Rulemaking 18
Gilbert contends in her fifth assignment of error that EFSC changed a 19
mandatory site certificate condition without going through the required process to amend 20
the rule. OAR 345-025-0006 lists certain conditions that EFSC "must impose * * * in 21
every site certificate." The mandatory condition identified by Gilbert provides: 22
"Except as necessary for the initial survey or as otherwise allowed 23
for wind energy facilities, transmission lines or pipelines under this section, 24
the certificate holder may not begin construction, as defined in OAR 345-25
001-0010, or create a clearing on any part of the site until the certificate 26
holder has construction rights on all parts of the site. For the purpose of 27
this rule, 'construction rights' means the legal right to engage in 28
construction activities. For wind energy facilities, transmission lines or 29
pipelines, if the certificate holder does not have construction rights on all 30
parts of the site, the certificate holder may nevertheless begin construction, 31

34
as defined in OAR 345-001-0010, or create a clearing on a part of the site if 1
the certificate holder has construction rights on that part of the site and: 2
"(a) The certificate holder would construct and operate part of the 3
facility on that part of the site even if a change in the planned route of a 4
transmission line or pipeline occurs during the certificate holder's 5
negotiations to acquire construction rights on another part of the site; or 6
"(b) The certificate holder would construct and operate part of a 7
wind energy facility on that part of the site even if other parts of the facility 8
were modified by amendment of the site certificate or were not built." 9
OAR 345-025-0006(5). 10
Gilbert suggests that General Standard of Review Condition 7 in EFSC's 11
final order is inconsistent with the mandatory condition in the rule, so rulemaking was 12
required. Condition 7 provides: 13
"General Standard of Review Condition 7: The certificate holder 14
may begin construction, as defined in OAR 345-001-0010(12), or create a 15
clearing on a part of the site if the certificate holder has construction rights 16
on that part of the site and the certificate holder would construct and 17
operate part of the facility on that part of the site even if a change in the 18
planned route of transmission line occurs during the certificate holder's 19
negotiations to acquire construction rights on another part of the site." 20
EFSC's final order explains that it modified the wording of the rule in drafting General 21
Condition 7 "to remove the language of the condition that does not apply to transmission 22
lines and maintain the portion of the condition that would apply to the facility." Gilbert 23
does not identify any substantive difference between General Condition 7 and OAR 345-24
025-0006(5), and we see none.27 25

27 Gilbert claims that the text of the mandatory condition was changed in a
footnote. Footnote 77, found on the same page of the final order as General Condition 7,
contains a redline/strikeout version intended to show the changes between OAR 345-025-

35
III. CONCLUSION 1
Oregon law limits our review of EFSC's final order approving Idaho 2
Power's application for a site certificate for the Boardman-to-Hemingway high voltage 3
electricity transmission line to errors of law, abuse of discretion, and substantial 4
evidentiary support for factual findings. Applying that standard, we conclude that EFSC 5
did not err in any of the ways contended by petitioners Stop B2H, McAllister, or Gilbert. 6
The final order of the Energy Facility Siting Council is affirmed. 7

0006(5) and General Condition 7. Idaho Power acknowledges that that redline/strikeout
version erroneously shows OAR 345-025-0006(5)(a) as being deleted.
The error was typographical and harmless. EFSC's stated intent was not to
delete or change any substantive requirement of OAR 345-025-0006(5), and the text of
General Condition 7 does contain the substance of OAR 345-025-0006(5)(a). Moreover,
Idaho Power must comply with the text of General Condition 7 itself, not the explanatory
version contained in an erroneous footnote.