020-1 Wyo. Code R. § 1-11

Current through April 27, 2019

Section 1-11 - Decision of Council

(a) The Council shall either grant or deny the application as filed, or grant it upon terms, conditions or modifications of the construction, operation or maintenance of the industrial facility as the Council deems appropriate. The Decision of the Council shall be written and shall be effective the date it is signed by the chair of the Council.

(b) Compliance with all applicable law. The Council must find that the proposed industrial facility will comply with all applicable local, state, and federal law throughout each phase of planning, construction, and operation. The local and state laws that must be complied with for purposes of this subsection consist of those laws which were in force on the date of application. In many cases, required permits and approvals may not be applied for until subsequent to the filing of the application. Therefore, the Council will examine the list of permits that regulate other aspects of the facility development for the purpose of determining whether the proposed industrial facility would be in compliance with all applicable laws if the permits and approvals specified therein were issued as expected.

(c) Threat of serious injury. In order to find that the industrial facility does not pose a threat of serious injury, the Council must find that the granting of a permit, as conditioned by the Council, will not result in a significant detriment to, or significant impairment of, the environment or the social and economic condition of present or expected inhabitants.

(i) In determining whether the proposed industrial facility poses a threat of serious injury to the social condition of the inhabitants, any significant decrease in the quality or quantity of services or facilities may be considered a serious injury. "Social condition" shall include, but is not limited to, the following factors:
- (A) Water treatment;
- (B) Sanitary waste disposal;
- (C) Solid waste collection;
- (D) Housing;
- (E) Police and fire protection;
- (F) Medical facilities;
- (G) Schools;
- (H) Recreational facilities;
- (I) Transportation systems;
- (J) Mental health facilities;
- (K) Social service facilities.

(ii) In determining whether the proposed industrial facility poses a threat of serious injury to the economic condition of the present or expected inhabitants, any net deterioration of a material nature in the condition of either present or expected inhabitants will be weighed negatively. "Economic conditions" may include, but is not limited to, the following factors:
- (A) Upgrading of jobs and increased income;
- (B) Family and per capita income;
- (C) Unemployment and underemployment rates within the area of site influence.
- (D) Purchasing power of earnings within the area of site influence.
- (E) Short term and long term fluctuations in resource consumption and resource availability.
- (F) Employment dislocation and skill obsolescence.
- (G) Employment opportunities;
- (H) Diversity of economy and stability of various segments of the economy.

(d) Substantially impair the health, safety or welfare. The Council must find that the proposed industrial facility will not substantially impair the health, safety or welfare of the present or expected inhabitants of the areas of site influence. A proposed industrial facility may be found to substantially impair the health, safety or welfare of the inhabitants if their health, safety or welfare during and after construction would be significantly diminished or weakened relative to present levels.

(e) If the Council is not able to find that these conditions are met, the Council shall deny the application.

(f) If the Council determines that the location of all or part of the proposed industrial facility should be modified, it may condition its permit upon that modification, provided that the local governments, and persons residing therein, affected by the modification, have been given reasonable notice of the modification.

(g) If the Council decides to grant a permit for the industrial facility, it shall issue the permit embodying the terms and conditions in detail, including the time specified to commence construction, which time shall be determined by the Council's decision as to the reasonable capability of the local government, most substantially affected by the proposed industrial facility, to implement the necessary procedures to alleviate the impact. If the construction of the facility fails to follow the schedule used by the Council to make its decision, the Council may require an amendment to the permit in accordance with W.S. 35-12-106(c) and (d).

(h) Unless the Council extends the permit as provided in subsection (i) of this section a permit to construct shall expire for any of the following conditions:

(i) Construction has not commenced within thirty-six (36) months after the date of the Decision of the Council;

(ii) If commenced construction has discontinued before the completion of the described project for a period of twelve (12) consecutive months, provided that the discontinuance is not in an approved schedule or for approved phases.

(i) The Council may extend the time periods of paragraphs (h)(i) and (h)(ii) above for good cause provided that the facility requests an extension in a timely manner accompanied by an update to the Application including the following:

(i) The construction schedule;

(ii) The estimated start of commercial operation;

(iii) Socio-economic baseline; and

(iv) Updates to those sections of the Application as defined by the Administrator where material changes are expected to occur.

(j) Permit Term. During the application for a permit or permit waiver, an applicant may request that the permit be issued for a term of less than the life of the facility, but not less than the construction phase(s). The Council may authorize a permit for a term less than the life of a facility if the applicant demonstrates that all of the following conditions exist:

(i) After the permit term (over the remaining life of the facility), no adverse environmental, social and economic impacts in the area of site influence may occur, which are not regulated by another State regulatory agency. The life of the facility includes cessation of operations, site clearance and site reclamation.

(ii) There are no conditions or requirements of the pending permit that warrant the continuation of Council's jurisdiction for the remaining life of the facility.

(iii) The permit term would not conflict with any statute or rule governing the facility, and would not conflict with the purposes of the Industrial Development Information and Siting Act.
- (A) The Council shall consider all objections from local government before granting a permit term request.

(k) Local governments may make a request for a bond pursuant to W. S. 35-12-113(e), such requests must:

(i) Be provided to the Director and parties three weeks prior to the date of the hearing of the permit application by the Council;

(ii) Justify the need for the bond;

(iii) Describe the purpose and use of the bond;

(iv) Justify the amount of the bond;

(v) Recommend a mechanism to determine when and if the bond should be released; and

(vi) Recommend a mechanism to determine when and if the bond should be surrendered to the State of Wyoming. The Director shall make a recommendation on any such bond request to the Council prior to the hearing of the Council. Such recommendation shall be provided to the parties to the hearing.

020-1 Wyo. Code R. § 1-11

Amended, Eff. 4/4/2017.

Amended, Eff. 8/9/2018.