2010 Wyoming Statutes
Title 35 - Public Health And Safety
Chapter 12 - Industrial Development And Siting

CHAPTER 12 - INDUSTRIAL DEVELOPMENT AND SITING

35-12-101. Short title.

This chapter is the "Industrial Development Information and Siting Act".

35-12-102. Definitions.

(a) As used in this chapter:

(i) "Advisory member" means an advisory member of the council provided by W.S. 35-12-104(f);

(ii) "Applicant" means any person who applies for a permit pursuant to this chapter;

(iii) "Commence to construct" means:

(A) Any clearing of land, excavation, construction or other action that would affect the environment of the site of any facility, but does not include changes needed for temporary use of sites for less than ninety (90) days, changes required to conduct required studies and tests under this chapter, or any other state or federal act or regulation, or access roads and services associated with utilities, or routes for nonutility purposes or for uses in securing geological data but not limited to necessary borings or drillings to ascertain foundation conditions;

(B) The nuclear fracturing of underground formation, if any such activity is related to the possible future development of a facility subject to this chapter, but does not include the gathering of geological data by boring of test holes or other underground exploration, investigation or experimentation.

(iv) "Council" means the industrial siting council;

(v) "Director" means the director of the department of environmental quality;

(vi) "Impacted area" means an area of Wyoming in which sudden or prolonged population growth may occur or may cause environmental, social or economic stresses of such nature that the total local, state and federal resources available are not sufficient to alleviate them properly and effectively as determined by the council;

(vii) "Industrial facility" or "facility" means any industrial facility with an estimated construction cost of at least ninety-six million nine hundred thousand dollars ($96,900,000.00) as of May 30, 1987. Exempt activities shall not be included in the estimated construction cost of an industrial facility. The council shall adjust this amount, up or down, each year using recognized construction cost indices as the council determines to be relevant to the actual change in construction cost applicable to the general type of construction covered under this chapter. "Facility" also includes, regardless of construction cost:

(A) Any commercial waste incineration or disposal facility capable of receiving greater than five hundred (500) short tons per day of household refuse or mixed household and industrial refuse;

(B) Any commercial facility which incinerates or disposes of any regulated quantity of hazardous wastes which are subject to hazardous waste shipping manifest requirements under subtitle C of the Resource Conservation and Recovery Act (42 U.S.C. 6921 through 6939e);

(C) Any commercial radioactive waste management facility defined by W.S. 35-11-103(d)(v);

(D) Until July 1, 1999, any facility constructed solely for the disposal of overburden, development waste rock or refuse from mining as defined under W.S. 35-11-103, except for the following facilities:

(I) Facilities permitted or licensed under article 4 of the Wyoming Environmental Quality Act;

(II) Facilities specifically exempt from permitting requirements under article 4 of the Wyoming Environmental Quality Act;

(III) Facilities specifically identified under W.S. 35-11-103(d)(v)(A).

(E) Any commercial facility generating electricity from wind and associated collector systems that:

(I) Consists of thirty (30) or more wind turbines in all planned phases of the installation; or

(II) Expand an existing installation not previously defined as a facility to include a total number of turbines greater than or equal to the thresholds in subdivision (a)(vii)(E)(I) of this section.

(F) Any facility over which a board of county commissioners has authority to issue the permit required by W.S. 18-5-502 and which facility the board of county commissioners has referred to the council under W.S. 18-5-509.

(viii) "Local government" means any county, city, town or school district or any combination thereof as formed under the Wyoming Joint Powers Act;

(ix) Repealed by Laws 1992, ch. 60, 4.

(x) "Permit" means the permit issued by the council and required for the construction or operation of any industrial facility or facilities;

(xi) "Person" includes an individual, group, firm, partnership, corporation, cooperative, association, or other entity excluding the state, federal government and local government. "Person" also includes the parent company, partnership or holding entity for a commercial facility generating electricity from wind;

(xii) "Administrator" means the administrator of the division;

(xiii) "Division" means the industrial siting division of the department of environmental quality;

(xiv) "Collector system" means the electrical transmission infrastructure, including conductors, towers, substations, switchgear and other components necessary to deliver power from any commercial facility generating electricity from wind up to, but not including, electric substations or similar facilities necessary to interconnect to existing or proposed transmission lines that serve load or export energy from Wyoming.

35-12-103. Creation of industrial siting division.

There is created within the department of environmental quality the industrial siting division.

35-12-104. Industrial siting council created; composition; terms; removal; compensation.

(a) There is created the industrial siting council consisting of seven (7) members who are residents of Wyoming.

(b) The terms of council members shall be six (6) years, except that on the initial appointment three (3) members shall serve for six (6) years, two (2) members shall serve for four (4) years and two (2) members shall serve two (2) years as designated by the initial appointment.

(c) Members shall be appointed by the governor with the advice and consent of the senate. The governor may remove any member as provided in W.S. 9-1-202. If a vacancy occurs the governor shall appoint a new member as provided in W.S. 28-12-101. Not more than four (4) members shall be of the same political party.

(d) The council, annually, shall elect a chairman, vice-chairman and secretary from among its members. The council shall have at least four (4) regularly scheduled meetings each year and may meet at the call of the chairman or upon request of a majority of the members at other times. For the purpose of conducting council business four (4) members constitute a quorum but no action taken is valid unless approved by at least four (4) members.

(e) Council members appointed pursuant to this section shall be reimbursed for per diem, mileage and expenses and receive salary for attending meetings and hearings of the council in the same manner and amount as members of the Wyoming legislature.

(f) The administrative head of each state agency enumerated in W.S. 35-12-110(b), or the designated representative, may attend meetings of the council and serve in an advisory capacity to facilitate and expedite the decision making process of the council. The council may request any administrative head to pursue, evaluate and submit reports relative to any study which may be required in the evaluation of an application for a permit.

(g) Appointments and terms under this chapter shall be in accordance with W.S. 28-12-101 through 28-12-103.

35-12-105. Appointment and duties of administrator; staff; rules and regulations.

(a) The director shall appoint an administrator of the division who shall serve at the director's pleasure as the executive and administrative head of the division. The administrator is responsible to and under control and supervision of the director. The director shall employ such other staff as deemed necessary by the director to carry out the functions and responsibilities of the division.

(b) The council shall promulgate rules and regulations pursuant to the Wyoming Administrative Procedure Act, implementing this chapter. The director, or the administrator if designated by the director, shall administer and enforce this chapter and any rules, regulations and orders approved or issued by the council.

(c) The director, administrator and the staff of the division are authorized to the extent possible, at the request of local governments, to provide technical assistance to local governments in the negotiation of agreements with applicants as provided for in W.S. 35-12-107 and 35-12-113(a)(vi).

(d) In addition to the rules and regulations adopted under subsection (b) of this section, the council shall promulgate rules and regulations prescribing decommissioning and site reclamation standards for facilities permitted under W.S. 35-12-102(a)(vii)(E) and (F). Such standards shall preempt county rules or regulations concerning decommissioning and reclamation and shall be designed to assure the proper decommissioning and interim and final site reclamation of commercial facilities generating electricity from wind and wind energy facilities during construction and operation of the facility, at the end of their useful life, upon revocation of a permit authorizing their operation or upon the happening of any event which causes operations to cease. The council's regulation shall only preempt those facilities regulated under this act. In the event of any conflict between a standard applied under this subsection and a valid order of the Wyoming public service commission, the order of the public service commission shall be applied.

(e) In addition to the rules and regulations adopted under subsection (b) of this section, the council shall promulgate rules and regulations prescribing financial assurance requirements for facilities permitted by it pursuant to W.S. 35-12-102(a)(vii)(E) and (F). These rules and regulations shall not apply to facilities that are public utilities and regulated by the Wyoming public service commission. These rules and regulations shall preempt county rules and regulations concerning financial assurances and shall be designed to provide adequate assurance that the permitted facilities will be properly reclaimed and decommissioned at the end of their useful life, upon revocation of a permit authorizing their operation or upon the happening of any event which causes operations to cease. The elements to consider when establishing adequate levels of financial assurance shall include credit worthiness, financial strength, credit history, credit rating and any other factors that reasonably bear upon the decision to accept a financial assurance. The financial assurance may be in any form acceptable to the council and may include a corporate guarantee, letter of credit, bond, deposit account or insurance policy.

(f) In addition to the rules and regulations adopted under subsection (b) of this section, the council shall promulgate rules and regulations requiring applicants for facilities described in W.S. 35-12-102(a)(vii)(E) and (F) to provide notice to record owners of mineral rights located on or under the lands where the proposed facility will be constructed. Such notice may include notice by publication.

(g) The council may adopt such rules and regulations, including fee structures, as are appropriate to accept and consider applications referred by any board of county commissioners under W.S. 18-5-509.

35-12-106. Permit from council required prior to commencing construction of facility; electronic permitting; amendments; exceptions.

(a) No person shall commence to construct a facility, as defined in this chapter, in this state without first obtaining a permit for that facility from the council. Any facility, for which a permit is required, shall be constructed, operated and maintained in conformity with the permit and any terms, conditions and modifications contained in the permit. A permit may only be issued pursuant to this chapter or pursuant to the provisions of W.S. 18-5-501 through 18-5-513 for facilities referred to the council.

(b) A permit may be transferred, subject to council approval, to a person who agrees to comply with the terms, conditions and modifications contained in the permit.

(c) Except as provided in subsection (d) of this section, the council may allow the amendment of a permit or application for a permit for good cause if the holder demonstrates to the council at its next meeting that the requested change is in compliance with local ordinances and applicable land use plans and will not significantly add to adverse environmental, social and economic impact in the impacted area.

(d) On an application for an amendment of a permit, the council shall hold a hearing in the same manner as a hearing is held on an application for a permit if in the council's opinion the requested change in the facility would result in a significant adverse increase in any environmental, social or economic impact of the facility or a change in the location of all or a portion of the facility unless the change in location was specifically approved by the council in the permit.

(e) The council may waive the application and permit provisions of this chapter if the applicant establishes by clear and convincing proof that an emergency exists created by the loss or damage to an existing facility which seriously threatens the health, safety and welfare of the public.

(f) The council may allow the permitting and reporting requirements of this act to be conducted electronically as provided by the Uniform Electronic Transaction Act, W.S. 40-21-101 through 40-21-119.

35-12-107. Request for waiver of permit application; form.

(a) Any person proposing to construct an industrial facility may submit a written request for a waiver of the application provisions of this chapter.

(b) A request for a waiver shall be filed with the division, in a form as prescribed by council rules and regulations, and shall contain the following information:

(i) The name and address of the applicant, and if the applicant is a partnership, association or corporation, the names and addresses of the managers designated by the applicant responsible for permitting or construction of the facility;

(ii) A description of the nature and location of the facility;

(iii) Estimated time of commencement of construction and construction time;

(iv) Estimated number and job classifications by calendar quarter of employees of the applicant, or contractor or subcontractor of the applicant, during the construction phase and during the operating phase;

(v) Estimated population increases attributable to the facility;

(vi) Estimated additional revenue to local governments due to the facility;

(vii) Estimated construction cost of the facility;

(viii) A description of the methods and strategies the applicant will use to maximize the employment and utilization of the existing local or in-state contractors and labor force during the construction and operation of the facility;

(ix) Any other information the applicant considers relevant or required by council rule or regulation;

(x) The procedures proposed to avoid constituting a public nuisance, endangering the public health and safety, human or animal life, property, wildlife or plant life, or recreational facilities which may be adversely affected by the facility;

(xi) Preliminary evaluations of or plans and proposals for alleviating social, economic or environmental impacts upon local government or any special districts which may result from the proposed facility, including voluntary company agreements with local governments;

(xii) Certification that the governing bodies of all local governments within the potentially impacted area were provided notification, a description of the proposed project and an opportunity to ask the applicant questions at least thirty (30) days prior to submission of the application;

(xiii) For facilities permitted pursuant to W.S. 35-12-102(a)(vii)(E) or (F), a site reclamation and decommissioning plan, which shall be updated every five (5) years and a description of a financial assurance plan which will assure that all facilities will be properly reclaimed and decommissioned. All such plans, unless otherwise exempt, shall demonstrate compliance with any rules or regulations adopted by the council pursuant to W.S. 35-12-105(d) and (e);

(xiv) Information demonstrating the applicant's financial capability to construct, maintain, operate, decommission and reclaim the facility.

(c) Not more than seven (7) days following receipt of a request for a waiver, the director shall:

(i) Serve notice of the request upon the governing bodies of local governments which will be primarily affected by the proposed facility;

(ii) Cause a summary of the request to be published in one (1) or more newspapers of general circulation within the area to be primarily affected by the proposed facility;

(iii) File a copy of the request with the county clerk of the county or counties in which the proposed facility will be constructed or which will be affected by the construction.

(d) Not more than fourteen (14) days following receipt of a request, the director shall:

(i) Schedule and conduct a public meeting;

(ii) Notify the applicant and local governments of the meeting;

(iii) Cause notice of the meeting to be published in one (1) or more newspapers of general circulation within the area to be primarily affected by the proposed facility; and

(iv) Hold the meeting at a community as close as practicable to the proposed facility.

(e) At the public meeting, the applicant shall present such information as necessary to describe the proposed facility and its estimated impacts upon local units of government.

(f) Within fourteen (14) days of the public meeting, the applicant shall meet with the director and each local government affected by the proposed facility to determine the mitigation required to minimize any adverse impacts resulting from the proposed facility.

(g) Not more than fifty (50) days following receipt of a request, the director shall:

(i) Schedule and conduct a public hearing;

(ii) Notify the applicant and local governments of the hearing;

(iii) Cause notice of the hearing to be published in one (1) or more newspapers of general circulation within the area to be primarily affected by the proposed facility; and

(iv) Hold the hearing at a community as close as practicable to the proposed facility.

(h) The applicant shall present any evidence necessary to demonstrate to the council:

(i) That the facility would not produce an unacceptable environmental, social or economic impact;

(ii) That the applicant has reached agreement with local governments affected by the facility on the mitigation required to alleviate adverse effects resulting from the facility; and

(iii) That the applicant has financial resources to construct, maintain, operate, decommission and reclaim the facility.

(j) Within ten (10) days from the date of completion of the hearing the council shall make complete findings, issue an opinion and render a decision upon the record, either granting or denying the request for a waiver. The council shall grant a request for a waiver either as proposed or as modified by the council if it finds and determines that:

(i) The facility would not produce an unacceptable environmental, social and economic impact;

(ii) The applicant has discussed the proposed facility with all local governments potentially affected by the project;

(iii) The proposed facility is in compliance with all local ordinances and land use plans; and

(iv) The applicant has financial resources to construct, maintain, operate, decommission and reclaim the facility.

(k) No request for a waiver shall be granted if two (2) or more local governments which will be affected are not satisfied that the facility, considering the voluntary company agreements, represents an acceptable impact on the local governments.

(m) If the council decides to waive all of the application requirements of this chapter, it shall issue a permit for the facility in accordance with W.S. 35-12-113. If the council decides to waive a part of the application requirements of this chapter, it shall issue an order specifying the requirements which will not be required for an application filed pursuant to W.S. 35-12-109.

35-12-108. Quantity of water available; analysis; public comment; opinions.

(a) If an applicant applies for an industrial siting permit, pursuant to W.S. 35-12-106, or for a waiver of the application provisions, pursuant to W.S. 35-12-107, for a facility which requires the use of eight hundred (800) or more acre feet of the waters of this state annually, the applicant shall prepare and submit to the state engineer a water supply and water yield analysis with a request for a preliminary and final opinion as to the quantity of water available for the proposed facility.

(b) Within ninety (90) days after the applicant has submitted an acceptable water supply and yield analysis, the state engineer, at the applicant's expense, shall complete a comprehensive review of the water supply and water yield analysis submitted.

(c) Within five (5) days after completion of the review, the state engineer shall render a preliminary opinion as to the quantity of water available for the proposed facility. The preliminary opinion, or a reasonable summary, shall be published for three (3) consecutive weeks in a newspaper of general circulation in the county in which the proposed facility is to be located. The expense of the publication shall be borne by the applicant.

(d) The state engineer may hold a public hearing before rendering a final opinion on the water supply and water yield analysis.

(e) In rendering a final opinion as to the quantity of water available for the proposed facility, the state engineer shall consider any comments which are submitted in writing within twenty (20) days of the last date of publication.

(f) Within thirty (30) days after the last date of publication, the state engineer shall render a final opinion. The final opinion shall:

(i) Be submitted to the industrial siting council and the public service commission;

(ii) Be binding on the industrial siting council for the purposes of issuing an industrial siting permit; and

(iii) Be reviewed by the public service commission prior to its issuance of a certificate of public convenience and necessity.

(g) The state engineer's preliminary and final opinion shall not create a presumption concerning injury or noninjury to water rights, nor shall those opinions be used as evidence in any administrative proceeding or in any judicial proceeding concerning water right determinations or administration.

35-12-109. Application for permit; form; fee; financial accounting.

(a) An application for a permit shall be filed with the division, in a form as prescribed by council rules and regulations, and shall contain the following information:

(i) The name and address of the applicant, and, if the applicant is a partnership, association or corporation, the names and addresses of the managers designated by the applicant responsible for permitting, construction or operation of the facility;

(ii) The applicant shall state that to its best knowledge and belief the application is complete when filed and includes all the information required by W.S. 35-12-109 and the rules and regulations, except for any requirements specifically waived by the council pursuant to W.S. 35-12-107;

(iii) A description of the nature and location of the facility;

(iv) Estimated time of commencement of construction and construction time;

(v) Estimated number and job classifications, by calendar quarter, of employees of the applicant, or contractor or subcontractor of the applicant, during the construction phase and during the operating life of the facility. Estimates shall include the number of employees who will be utilized but who do not currently reside within the area to be affected by the facility;

(vi) Future additions and modifications to the facility which the applicant may wish to be approved in the permit;

(vii) A statement of why the proposed location was selected;

(viii) A copy of any studies which may have been made of the environmental impact of the facility;

(ix) Inventory of estimated discharges including physical, chemical, biological and radiological characteristics;

(x) Inventory of estimated emissions and proposed methods of control;

(xi) Inventory of estimated solid wastes and proposed disposal program;

(xii) The procedures proposed to avoid constituting a public nuisance, endangering the public health and safety, human or animal life, property, wildlife or plant life, or recreational facilities which may be adversely affected by the estimated emissions or discharges;

(xiii) An evaluation of potential impacts together with any plans and proposals for alleviating social and economic impacts upon local governments or special districts and alleviating environmental impacts which may result from the proposed facility. The evaluations, plans and proposals shall cover the following:

(A) Scenic resources;

(B) Recreational resources;

(C) Archaeological and historical resources;

(D) Land use patterns;

(E) Economic base;

(F) Housing;

(G) Transportation;

(H) Sewer and water facilities;

(J) Solid waste facilities;

(K) Police and fire facilities;

(M) Educational facilities;

(N) Health and hospital facilities;

(O) Water supply;

(P) Other relevant areas;

(Q) Agriculture;

(R) Terrestrial and aquatic wildlife;

(S) Threatened, endangered and rare species and other species of concern identified in the state wildlife action plan as prepared by the Wyoming game and fish department.

(xiv) Estimated construction cost of the facility;

(xv) What other local, state or federal permits and approvals are required;

(xvi) Compatibility of the facility with state or local land use plans, if any;

(xvii) Any other information the applicant considers relevant or required by council rule or regulation;

(xviii) A description of the methods and strategies the applicant will use to maximize employment and utilization of the existing local or in-state contractors and labor force during the construction and operation of the facility;

(xix) Certification that the governing bodies of all local governments which will be primarily affected by the proposed facility were provided notification, a description of the proposed project and an opportunity to ask the applicant questions at least thirty (30) days prior to submission of the application;

(xx) For facilities permitted pursuant to W.S. 35-12-102(a)(vii)(E) or (F), a site reclamation and decommissioning plan, which shall be updated every five (5) years, and a description of a financial assurance plan which will assure that all facilities will be properly reclaimed and decommissioned. All such plans, unless otherwise exempt, shall demonstrate compliance with any rules or regulations adopted by the council pursuant to W.S. 35-12-105(d) and (e);

(xxi) Information demonstrating the applicant's financial capability to construct, maintain, operate, decommission and reclaim the facility.

(b) At the time of filing an application or a written request for a waiver of the application provisions of this chapter as provided in W.S. 35-12-107, or as subsequently required by the director, an applicant shall pay a fee to be determined by the director based upon the estimated cost of investigating, reviewing, processing and serving notice of an application, holding a hearing in case of a request for waiver, inspection and compliance activities and processing application update requests. The fee shall be credited to a separate account and shall be used by the division as required to investigate, review, process and serve notice of the application, to hold a hearing in case of a request for waiver and to pay the reasonable costs of any meeting or hearing associated with permit compliance. Unused fees shall be refunded to the applicant. The maximum fee chargeable shall not exceed one-half of one percent (0.5%) of the estimated construction cost of the facility or one hundred thousand dollars ($100,000.00), whichever is less.

(c) The director shall provide the applicant with a full financial accounting, including but not limited to all materials, labor and overhead costs relating to the expenditures of the fee at the time of the council's decision as provided in W.S. 35-12-113 or at the completion of construction, whichever occurs later.

(d) At any time after the fee required by subsection (b) of this section has been exhausted or refunded and in addition to the fee imposed under subsection (b) of this section, the applicant may be required to pay a fee, as determined by the director, for the costs of any meeting or hearing associated with permit compliance. The director shall provide the applicant with a full financial accounting for the expenditure of the fee, including but not limited to all materials, labor and overhead costs, at the conclusion of the council meeting or hearing.

35-12-110. Service of notice of application; information and recommendations; application deficiencies; procedure; jurisdiction; hearing.

(a) Not more than ten (10) days following receipt of an application for a permit, the director shall:

(i) Serve an electronic or physical copy of the application upon the governing bodies of local government which will be primarily affected by the proposed facility together with notice of the applicable provisions of W.S. 35-12-111;

(ii) Cause a summary of the application to be published in one (1) or more newspapers of general circulation within the area to be primarily affected by the proposed facility;

(iii) File a copy of the application with the county clerk of the county or counties in which the proposed facility will be constructed.

(b) The division shall obtain information and recommendations from the following state agencies relative to the impact of the proposed facility as it applies to each agency's area of expertise:

(i) Wyoming department of transportation;

(ii) Public service commission;

(iii) Repealed By Laws 1998, ch. 6, 5.

(iv) Game and fish department;

(v) Department of health;

(vi) Department of education;

(vii) Office of state engineer;

(viii) Repealed by Laws 1990, ch. 44, 3.

(ix) Wyoming state geologist;

(x) Wyoming department of agriculture;

(xi) Department of environmental quality;

(xii) Repealed by Laws 1992, ch. 60, 4.

(xiii) Repealed by Laws 1990, ch. 44, 3.

(xiv) The University of Wyoming;

(xv) Department of revenue;

(xvi) The Wyoming business council;

(xvii) Department of workforce services;

(xviii) Office of state lands and investments;

(xix) Department of employment;

(xx) Department of state parks and cultural resources;

(xxi) Department of fire prevention and electrical safety;

(xxii) Department of family services;

(xxiii) Oil and gas conservation commission.

(c) The information required by subsection (b) of this section shall be provided by the agency from which it is requested not more than sixty (60) days from the date the request is made and shall include opinions as to the advisability of granting or denying the permit together with reasons therefor, and recommendations regarding appropriate conditions to include in a permit, but only as to the areas within the expertise of the agency. Each agency which has regulatory authority over the proposed facility shall provide to the council a statement defining the extent of that agency's jurisdiction to regulate impacts from the facility, including a statement of the agency's capability to address cumulative impacts of the facility in conjunction with other facilities. The statement of jurisdiction from each agency is binding on the council.

(d) On receipt of an application, the director shall conduct a review of the application to determine if it contains all the information required by W.S. 35-12-109 and the rules and regulations. If the director determines that the application is incomplete, he shall within thirty (30) days of receipt of the application notify the applicant of the specific deficiencies in the application. The applicant shall provide the additional information necessary within thirty (30) days of a receipt of a request for additional information from the director.

(e) Upon receipt of the additional information specified in subsection (d) of this section, the director shall either notify the applicant that the application is complete or notify the applicant of continued deficiencies. The applicant shall provide the required information within fifteen (15) days of receipt of the notice of continued deficiency. Upon receipt of the second deficiency notice, the applicant may:

(i) Provide the required information within the time allotted; or

(ii) Withdraw the application.

(iii) Repealed By Laws 2010, Ch. 47, 2.

(f) Not more than ninety (90) days after receipt of an application for a permit, the director shall:

(i) Schedule and conduct a public hearing, provided that no hearing shall be held until the state engineer has submitted a preliminary and final opinion as to the quantity of water available for the proposed facility pursuant to W.S. 35-12-108;

(ii) Notify the applicant and local governments of the hearing;

(iii) Cause notice of the hearing to be published in one (1) or more newspapers of general circulation within the area to be primarily affected by the proposed facility; and

(iv) Hold the hearing at a community as close as practicable to the proposed facility. The provisions of W.S. 35-12-111, 35-12-112 and 35-12-114 apply to the hearing.

35-12-111. Parties to permit proceeding; waiver by failure to participate.

(a) The parties to a permit proceeding include:

(i) The applicant;

(ii) Each local government entitled to receive a copy of the application under W.S. 35-12-110(a)(i);

(iii) Any person residing in a local government entitled to receive a copy of the application under W.S. 35-12-110(a)(i) including any person holding record title to lands directly affected by construction of the facility and any nonprofit organization with a Wyoming chapter, concerned in whole or in part to promote conservation or natural beauty, to protect the environment, personal health or other biological values, to preserve historical sites, to promote consumer interests, to represent commercial and industrial groups, or to promote the orderly development of the areas in which the facility is to be located. In order to be a party the person or organization must file with the office a notice of intent to be a party not less than twenty (20) days before the date set for the hearing.

(b) Any party identified in paragraph (a)(iii) of this section waives his right to be a party if he does not participate orally at the hearing. Any party identified in paragraph (a)(ii) of this section waives its right to be a party unless the local government files a notice of intent to be a party with the office not less than twenty (20) days before the date set for the hearing.

(c) Any person may make a limited appearance in the proceeding by filing a statement in writing with the council prior to adjournment of the hearing. A statement filed by a person making a limited appearance shall become part of the record and shall be made available to the public. No person making a limited appearance under this subsection is a party to the proceeding.

(d) No state agency other than the industrial siting division shall act as a party at the hearing. Members and employees of all other state agencies and departments may file written comments prior to adjournment of the hearing but may testify at the hearing only at the request of the council, the industrial siting division or any party.

(e) Any person described in W.S. 35-12-111(a)(ii) or (iii) who participated in the public hearing under W.S. 35-12-107 may obtain judicial review of a council decision waiving all or part of the application requirements of this chapter.

35-12-112. Record of hearing; procedure.

Any studies, investigations, reports or other documentary evidence, including those prepared by the division, which any party wishes the council to consider or which the council itself expects to utilize or rely upon, shall be made a part of the record. A complete record shall be made of the hearing and of all testimony taken. The contested case procedures of the Wyoming Administrative Procedure Act apply to the hearing under W.S. 35-12-110(f), but do not apply to the hearing under W.S. 35-12-107.

35-12-113. Decision of council; findings necessary for permit conditions imposed; service of decision on parties; waste management surcharge.

(a) Within forty-five (45) days from the date of completion of the hearing the council shall make complete findings, issue an opinion and render a decision upon the record, either granting or denying the application as filed, or granting it upon terms, conditions or modifications of the construction, operation or maintenance of the facility as the council deems appropriate. The council shall not consider the imposition of conditions which address impacts within the area of jurisdiction of any other regulatory agency in this state as described in the information provided in W.S. 35-12-110(b), unless the other regulatory agency requests that conditions be imposed. The council may consider direct or cumulative impacts not within the area of jurisdiction of another regulatory agency in this state. The council shall grant a permit either as proposed or as modified by the council if it finds and determines that:

(i) The proposed facility complies with all applicable law;

(ii) The facility will not pose a threat of serious injury to the environment nor to the social and economic condition or inhabitants or expected inhabitants in the affected area;

(iii) The facility will not substantially impair the health, safety or welfare of the inhabitants; and

(iv) The applicant has financial resources to construct, maintain, operate, decommission and reclaim the facility.

(b) No permit shall be granted if the application is incomplete.

(c) If the council determines that the location of all or part of the proposed 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.

(d) The council shall issue with its decision, an opinion stating in detail its reasons for the decision. If the council decides to grant a permit for the 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 facility, to implement the necessary procedures to alleviate the impact. A copy of the decision shall be served upon each party.

(e) A permit may be issued conditioned upon the applicant furnishing a bond to the division in an amount determined by the director from which local governments may recover expenditures in preparation for impact to be caused by a facility if the permit holder does not complete the facility proposed. The permit holder is not liable under the bond if the holder is prevented from completing the facility proposed by circumstances beyond his control.

(f) Within ten (10) days from the date of the council's decision, a copy of the findings and the council's decision shall be served upon the applicant, parties to the hearing and local governments to be substantially affected by the proposed facility and filed with the county clerk of the county or counties to be primarily affected by the proposed facility. Notice of the decision shall be published in one (1) or more newspapers of general circulation within the area to be affected by the proposed facility.

(g) Each approved facility enumerated under W.S. 35-12-102(a)(vii)(A) through (D) shall, on a quarterly basis, remit to the division a waste management surcharge to be deposited in the general fund. The surcharge amount is:

(i) A minimum of ten dollars ($10.00) per short ton of solid wastes, including radioactive wastes, received at the facility, less a minimum of five dollars ($5.00) for each short ton of solid wastes removed at the facility and recycled or reused and less any amount credited against the surcharge pursuant to W.S. 35-11-503(b)(iv)(B); and

(ii) A minimum of twenty-five dollars ($25.00) per short ton of hazardous wastes received at the facility, less a minimum of three dollars ($3.00) for each short ton of hazardous wastes treated at the facility to reduce toxicity and long-term hazards to the environment.

(h) For applicants subject to W.S. 35-12-105(e), a permit may be issued conditioned upon the applicant furnishing a bond or other financial assurance acceptable to the division in an amount determined by the director to cover the cost of decommissioning and reclaiming the facility.

35-12-114. Review of grant or denial of permit.

(a) Any party as defined in W.S. 35-12-111 aggrieved by the final decision of the council on an application for a permit may obtain judicial review by the filing of a petition in any state district court in which the major portion of the proposed facility is to be located within thirty (30) days after the issuance of a final decision. The petition for appeal by any party must include an express assumption of the cost of preparation of the complete written transcripts and record for the court. Upon receipt of a petition, the division shall deliver to the court a copy of the complete written transcript of the record of the proceeding before it and a copy of the council's decision and opinion entered therein which shall constitute the record on judicial review. At the same time the division shall deliver to the petitioner an itemized statement of the cost of preparing the complete written transcript and record for the court. The petitioner shall pay the division this cost within forty-five (45) days or forfeit the right to appeal to district court. A copy of the transcript, decision and opinion shall remain on file with the division and shall be available for public inspection.

(b) When a decision is issued after a hearing on an application for a permit, the decision is final for purposes of judicial review. The judicial review procedure shall be the same as that for contested cases under the Wyoming Administrative Procedure Act.

35-12-115. Additional requirements by other governmental agencies not permitted after issuance of permit; exceptions.

(a) Notwithstanding any other provision of law, no state, intrastate regional agency or local government may require any approval, consent, permit, certificate or other condition for the construction, operation or maintenance of a facility authorized by a permit issued pursuant to this chapter except that:

(i) The department of environmental quality shall retain authority which it has or which it may be granted to determine compliance of the proposed facility with state and federal standards and implementation plans and to enforce those standards; and

(ii) The public service commission shall retain authority which it has or may be granted relative to certificates of convenience and necessity, rates, interchange of services and safety regulations.

(b) Nothing in this chapter prevents the application of state laws for the protection of employees engaged in the construction, operation or maintenance of any facility specified in this section.

35-12-116. Revocation or suspension of permit.

(a) A permit may be revoked or suspended for:

(i) Any material false statement in the application or in accompanying statements or studies required of the applicant, if a true statement would have warranted the council's refusal to grant a permit;

(ii) Failure to comply with the terms or conditions of the permit after notice of the failure from the office and reasonable opportunity to correct the failure; or

(iii) Violation of this chapter, the regulations issued pursuant to this chapter or orders of the council or office.

35-12-117. Monitoring of facilities.

(a) Except as provided in subsection (b) of this section, the council and the division, utilizing to the fullest extent possible the staff and resources of all state agencies, boards and commissions, has continuing authority and responsibility for:

(i) Monitoring the operations of all facilities which have been granted permits under this chapter;

(ii) Assuring continuing compliance with this chapter and permits issued pursuant to this chapter; and

(iii) Discovering and preventing noncompliance with this chapter and the permits.

(b) The department of environmental quality has exclusive continuing authority and responsibility for monitoring and assuring compliance with:

(i) Laws and regulations pertaining to air, water and land quality, and solid waste management; and

(ii) Any permit conditions ordered by the council relating to matters of air, water and land quality, and solid waste management.

35-12-118. Penalties for violations; civil action by attorney general.

(a) No person shall:

(i) Commence to construct a facility after the effective date of this chapter without first obtaining a permit required under this chapter;

(ii) Construct, operate or maintain a facility, after having first obtained a permit, other than in specific compliance with the permit;

(iii) Cause any of the acts specified in this subsection to occur;

(iv) Operate or maintain an industrial facility without having first obtained the permit required under this chapter.

(b) Any person violating subsection (a) of this section is liable to a civil penalty of not more than ten thousand dollars ($10,000.00) for each violation. Each day of a continuing violation constitutes a separate offense. The penalty shall be recoverable in a civil suit brought by the attorney general on behalf of the state in the district court in and for the county of Laramie.

(c) Whoever knowingly and willfully violates subsection (a) of this section shall be fined not more than ten thousand dollars ($10,000.00) for each violation or imprisoned for not more than one (1) year, or both. Each day of a continuing violation constitutes a separate offense.

(d) In addition to any penalty provided in subsection (b) or (c) of this section, if the director determines that a person is violating this section, he shall refer the matter to the attorney general who may bring a civil action on behalf of the state in the district court in and for the county of Laramie for injunctive or other appropriate relief against the violation and to enforce this chapter or a permit issued under this chapter, and upon a proper showing a permanent or preliminary injunction or temporary restraining order shall be granted without bond.

(e) All fines collected pursuant to subsection (b) of this section shall be paid to the state treasurer and credited as provided in W.S. 8-1-109.

35-12-119. Exemptions; information required.

(a) Nonmineral processing facilities to be constructed in existing industrial parks, as designated by local governments, are exempt from payment of fees and certification procedures but shall furnish the information required by W.S. 35-12-109(a)(iii), (iv) and (v) to the division if included in W.S. 35-12-102(a)(vii).

(b) State and local governmental units and agencies are exempt from the application and permit procedures of this chapter, but prior to commencing to construct any facility as provided in W.S. 35-12-102(a)(vii), those units and agencies shall furnish to the division information required by W.S. 35-12-109(a)(iii), (iv) and (v).

(c) The construction, operation and maintenance of the following activities are exempt from this chapter:

(i) Electric transmission lines with a maximum operating voltage of less than one hundred sixty thousand (160,000) volts, except:

(A) Any collector system, regardless of voltage, associated with a commercial facility generating electricity from wind and which meets the definition of an industrial facility pursuant to W.S. 35-12-102(a)(vii)(E) and (F) shall not be exempt;

(B) A commercial facility generating electricity from wind that is exempt from W.S. 35-12-102(a)(vii)(E) or (F) shall not become subject to this chapter because its collector system is greater than one hundred sixty thousand (160,000) volts.

(ii) Oil and gas drilling facilities;

(iii) All pipelines except coal slurry pipelines;

(iv) Oil and gas producing facilities;

(v) Oil and gas wellfield activities.

(d) Activities exempt under this section shall not be included as part of the application review of a facility subject to this chapter, and the council does not have jurisdiction over exempt activities. Applicants shall furnish the information required by W.S. 35-12-109(a)(iii), (iv), (v) and (viii) for exempt activities.