Oregon Advisory Opinions July 15, 1981: OAG 81-59 (July 15, 1981)

OAG 81-59.

Oregon Laws 1981, ch 1 was enacted by initiative on November 4, 1980. It appeared on the ballot and will be referred to hereinafter as Measure 7. The measure conditions the establishment of nuclear plants on the existence of adequate waste disposal facilities.

Nuclear-fueled thermal power plants may be constructed in Oregon only after a site certificate has been issued by the Energy Facility Siting Council. ORS 469.320. The principal thrust of Measure 7 is found in sec 3, which prohibits the siting council from issuing a site certificate until it finds that:

If the council makes such a finding, the proposed site certificate must be submitted to the voters for approval and only after a favorable

vote may the siting council issue the certificate. Measure 7, secs 4 and 5.

Measure 7 further provides:

"Section 6. The Public Utility Commissioner shall not authorize the issuance of stocks, bonds or other evidences of indebtedness to finance any nuclear-fueled thermal power plant pursuant to ORS 757.400 to 757.450 until the Energy Facility Siting Council has made the finding required under section 3 of this 1980 Act.

"Section 7. The provisions of section 3 of this 1980 Act do not apply to any nuclear-fueled thermal power plant for which a site certificate was granted before November 15, 1980."

To interpret the measure, it must be read in its entirety. State v. Powell, 212 Or 684, 321 P2d 333 (1958).

The "grandfather clause" in sec 7 relates to the Trojan plant, and gives rise to the first part of the question presented. The section does not specifically make an exception to the provisions of sec 6, prohibiting the Public Utility Commissioner from authorizing nuclear plant financing until the finding required by sec 3 has been made.

It is quite possible that major work could be undertaken at the Trojan plant under its existing certificate, which would nevertheless require financing subject to authorization by the Public Utility Commissioner. See 38 Op Atty Gen 555 (1977), concluding that a new certificate was not necessary for expansion of the Trojan spent fuel pool.

Assuming that the work is permissible under the existing certificate, however, may the Commissioner approve financing for such work, if no finding pursuant to sec 3 has been made? We conclude that he may.

Our primary reason is that in such a case there will be no application for a site certificate, and no occasion for the EFSC to find that an adequate repository exists for disposal of "high-level radioactive waste produced by the plant" for which a site certificate is sought. The clear intention of sec 7 is to permit Trojan to operate under its existing certificate, and there is no indication of any intent to limit anything the operators of the plant are entitled to do under that certificate.

The second part of the question is easily answered. That is exactly the case that Measure 7 was principally intended to govern. No site certificate may be issued for a new nuclear plant in Oregon until the EFSC has made the finding required by sec 3 (and until the voters have approved under secs 4 and 5). The Public Utility Commissioner cannot authorize financing until that finding has been made.

This leads us to the third part of the question. As noted above, sec 3 of the Act prohibits the siting council from issuing a site certificate unless it finds an adequate waste disposal facility exists, "for waste produced by the plant" for which a certificate is sought. (Emphasis added.) The siting council's licensing jurisdiction, through site certificates, extends only to plants proposed to be built in Oregon. ORS 469.310. Since the finding required by sec 3 is to be made in connection with an application for a site certificate, the finding relates only to waste from facilities to be built in

Oregon. In other words, the siting council's required finding applies only to facilities over which it has jurisdiction.

Therefore, we conclude that the sec 6 restriction on the Public Utility Commissioner's authority to approve securities issued by a public utility, because it depends upon the same waste disposal finding, also relates only to financing of facilities for which a site certificate is necessary. That is, those which are to be located within the State of Oregon. The PUC authority depends upon an EFSC "finding required under section 3 of this 1980 Act," to be made in connection with an Oregon site certificate application. That finding relates to an adequate depository for the particular plant for which a site certificate is sought.

There is no ambiguity in the measure which would entitle us to consider extrinsic evidence of voter intent. However, our conclusion that Measure 7 was meant to relate only to facilities within Oregon is reinforced by the official representations to the voters in the November, 1980 Oregon Voters' Pamphlet at pp 28-30. The arguments in favor of the measure expressly state in six separate places that the measure applies to nuclear plants to be built "in Oregon." This expression is consistent with the argument opposing Measure 7 on p 32 of the pamphlet, which states that passage of the measure would cause new power plants to be built in Washington.(fn1)