2019 -- H 5446

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LC001454

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

____________

A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- ENERGY FACILITY SITING

ACT

     Introduced By: Representatives Place, and Newberry

     Date Introduced: February 14, 2019

     Referred To: House Environment and Natural Resources

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 42-98-1, 42-98-2, 42-98-3, 42-98-4, 42-98-5, 42-98-6, 42-98-7,

42-98-8, 42-98-9, 42-98-9.1, 42-98-10, 42-98-11, 42-98-12, 42-98-13, 42-98-16, 42-98-17 and

42-98-20 of the General Laws in Chapter 42-98 entitled "Energy Facility Siting Act" are hereby

amended to read as follows:

     42-98-1. Legislative findings.

     (a) The general assembly recognizes that reasonably priced, reliable sources of energy are

vital to the well-being and prosperity of the people of this state; that there are major issues of

public health and safety and impact upon the environment related to the technologies and energy

sources used in some facilities; that some energy facilities require a major commitment of funds

and resources and require many years to build that the decision to permit or deny their

construction will have long term impact on the economy of the state; that these decisions will

affect the availability and cost of the energy; and that the evaluation of proposals must recognize

and consider the need for these facilities in relation to the overall impact of the facilities upon

public health and safety, the environment and the economy of the state;

     (b) The general assembly further finds that the authority to regulate many aspects of the

issues involved in the siting of major energy or power generating facilities currently exists in a

variety of agencies within the government of the state and the political subdivisions of the state;

that there is overlapping jurisdiction among several state agencies in the siting of energy

facilities; and that there is the potential for conflicting decisions being issued by the various

agencies having authority over the different aspects of the siting of a major energy facility;

     (c) The jurisdiction of each state agency should be defined, and the role of each agency in

energy siting should be delineated, to eliminate overlap and duplication and to insure that

expeditious decisions are made within a time frame to be determined by law; and that in addition

to the existing regulation, statewide and regional planning for energy resources and the

assessment of our state's need for energy should be on-going activities within Rhode Island;

     (d) There is need for a coordinated decision on any major energy or power generating

facility; the technical expertise for this evaluation is available within existing agencies involved

with the siting process; and

     (e) There is a need for coordinating and expediting the review of each state agency and

that the authority and responsibility to perform that function should be established.; and

     (f) The general assembly recognizes that each host community for any proposed or

existing power generating facility is uniquely affected by the energy facility siting process.

     42-98-2. Declaration of policy.

     It shall be the policy of this state to assure that:

     (1) The facilities required to meet the energy needs of this and succeeding generations of

Rhode Islanders are planned for, considered, and built in a timely and orderly fashion;

     (2) Construction, operation, and/or alteration of major energy or power generating

facilities shall only be undertaken when those actions are justified by long term state and/or

regional energy need forecasts;

     (3) The energy shall be produced at the least possible cost to the consumer consistent

with the objective of ensuring that the construction, operation, and decommissioning of the

facility shall produce the fewest possible adverse effects on the quality of the state's environment;

most particularly, its land and its wildlife and resources, the health and safety of its citizens, the

purity of its air and water, its aquatic and marine life, and its esthetic and recreational value to the

public;

     (4) The licensure and regulatory authority of the state be consolidated in a single body,

which will render the final licensing decision concerning the siting, construction, operation and/or

alteration of major energy facilities;

     (5) An energy facility planning process shall be created through which the statewide

planning program, in conjunction with the division of public utilities and carriers, will be

empowered to undertake evaluations and projections of long and short term energy needs, and

any other matters that are necessary to establish the state energy plans, goals, and policies. The

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state planning council shall be authorized and empowered to adopt a long term plan assessing the

state's future energy needs and the best strategy for meeting them, as part of the state guide plan

by January 1, 1991.

     (6) The construction, operation and/or alteration of major energy or power generating

facilities shall be consistent with the state's established energy plans, goals, and policy.

     (7) Before approving the construction, operation and/or alteration of a major energy

facilities or power generating facility, the board shall determine whether cost effective efficiency

and conservation opportunities provide an appropriate alternative to the proposed facility.

     (8) The energy facilities siting board shall give priority to energy generation projects

based on the degree to which such projects meet, criteria including, but not limited to:

     (i) Using renewable fuels, natural gas, or coal processed by "clean coal technology" as

The relative environmental impact of their primary fuel;

     (ii) Maximizing efficiency;

     (iii) Using low levels of high quality water;

     (iv) Using existing energy-generation facilities and sites;

     (v) Producing low levels of potentially harmful air emissions;

     (vi) Producing low levels of wastewater discharge;

     (vii) Producing low levels of waste into the solid waste stream; and

     (viii) Having dual fuel capacity Complying with the state's greenhouse gas emissions

reduction targets in the resilient Rhode Island act of 2014, chapter 6.2 of title 42.

     The board shall, within its rules and regulations, provide guidelines and definitions of

appropriate standards for the criteria designated in this subsection by January 1, 1991 2020.

     42-98-3. Definitions.

     As used in this chapter:

     (a) (1)"Agency" means any agency, council, board, or commission of the state or political

subdivision of the state.

     (b) (2) "Alteration" means a significant modification to a major energy or power

generating facility, which, as determined by the board, will result in a significant impact on the

environment, or the public health, safety, and welfare. Conversion from one type of fuel to

another shall not be considered to be an "alteration."

     (3) "Applicant" means the entity that seeks board approval for the construction, operation

or alteration of a major energy or power generating facility.

     (c) (4) "Board" for purposes of this chapter refers to means the siting board.

     (5) "Clean coal technology" means one of the technologies developed in the clean coal

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technology program of the United States Department of Energy, and shown to produce emissions

levels substantially equal to those of natural gas fired power plants.

     (6) "Designee" means a person currently employed by the agency that has designating

authority.

     (7) "Environmental justice" means and includes the equal protection and meaningful

involvement of all people with respect to the development, implementation, and enforcement of

environmental laws, regulations, and policies and the equitable distribution of environmental

benefits.

     (8) "Host community" means any city or town in the state in which all or a portion of a

power generating facility shall be or is located.

     (d) (9) "Major energy facility" means:

     (i) facilities Facilities for the extraction, production, conversion, and processing of coal;

facilities for the generation of electricity designed or capable of operating at a gross capacity of

forty (40) megawatts or more;

     (ii) Facilities for the generation of electricity designed or capable of operating at a gross

capacity between greater than forty megawatts (40MW) and less than sixty megawatts (60MW);

     (iii) transmission Transmission lines of sixty-nine (69) Kv Kilovolts (69KV) or over;

     (iv) facilities Facilities for the conversion, gasification, treatment, transfer, or storage of

liquefied natural and liquefied petroleum gases;

     (v) facilities Facilities for the processing, enrichment, storage, or disposal of nuclear fuels

or nuclear byproducts;

     (vi) facilities Facilities for the refining of oil, gas, or other petroleum products;

     (vii) facilities Facilities of ten (10) megawatts or greater capacity for the generation of

electricity by water power,;

     (viii) and facilities Facilities associated with the transfer of oil, gas, and coal via pipeline;

     (ix) any Any energy facility project of the Rhode Island economic development

corporation commerce corporation;

     (x) the The board may promulgate regulations to further define "major energy facility" to

the extent further definition is required to carry out the purpose of this chapter, provided that any

waste to energy facility shall not be deemed a major energy facility for the purposes of this

chapter.

     (e) "Clean coal technology" means one of the technologies developed in the clean coal

technology program of the United States Department of Energy, and shown to produce emissions

levels substantially equal to those of natural gas fired power plants.

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     (10) "Power generating facility" means a facility for the generation of electricity designed

or capable of operating at a gross capacity of sixty megawatts (60MW) or more.

     42-98-4. License required.

     No person shall site, construct, or alter a major energy or power generating facility within

the state without first obtaining a license from the siting board pursuant to this chapter.

     42-98-5. Board established.

     (a) There is established the siting board which shall be a part of state government.

     (1) When the board sits for any purpose related to a major energy facility, The the siting

board shall consist of three (3) members, as follows: the chairperson of the public utilities

commission, who shall serve as chairperson of the siting board; the director of the department of

environmental management,; and or designee, who shall be an employee of the department of

environmental management; and the associate director of administration for planning., or

designee, who shall be an employee of the department of administration.

     (2) When the board sits for any purpose related to a power generating facility, the board

shall consist of seven (7) members, as follows: the chairperson of the public utilities commission,

who shall serve as chairperson of the siting board; the director of the department of

environmental management, or designee, who shall be an employee of the department of

environmental management; the associate director of administration for planning, or designee,

who shall be an employee of the department of administration; the director of the department of

health, or designee, who shall be an employee of the department of health; the state fire marshal,

or designee, who shall be an employee of the state fire marshal's office; and two (2) members of

the public who shall be appointed by the elected chief executive of the host community or, if

there is no elected chief executive, the president of the town council of the host community. One

public member shall be a resident of the host community, and the other public member shall be

from the business community of the host community, but need not be a resident of the host

community. If there are multiple host communities, those communities shall confer and make

joint appointments pursuant to this section.

     (3) Any member of the board who recuses him or herself or is otherwise unable to fulfill

his or her obligations shall designate his or her own successor from his or her respective agency.

or, in the case of a public member, a successor shall be appointed in like manner as set forth in

subsection (a)(2) of this section.

     (4) Each application relating to a proposed or existing facility shall have a board

established for that application. A person may serve on two (2) or more boards simultaneously.

     (b) Each member of the board shall take an oath to administer the duties of office

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faithfully and impartially and that oath shall be filed in the office of the secretary of state.

     (c) The members of the board who serve in their capacity as an employee of the state or

quasi-state agency or municipality shall serve without compensation,. Members of the board who

are not employees of the state or municipality shall receive reasonable compensation for their

services, as determined and approved by the board chairperson. but All members of the board

shall be reimbursed for their actual expenses necessarily incurred in the performance of their

duties. Such compensation and expense reimbursement shall be paid monthly by the applicant.

     (d) The board may engage, at the applicant's expense, any consultants or expert witnesses

that it deems necessary to implement its statutory responsibilities; provided, however, that to the

maximum extent possible, board staff be drawn from existing state agencies. Any individual

designated as a personal assistant of the board or as board staff shall be bound to comply with the

ex parte provisions of § 42-35-13. Board staff may be compensated by the board, either through

contract or through a transfer to the state agency or department by whom the individual is

normally employed.

     The board shall select a an employee of the public utilities commission to serve as

coordinator. The coordinator is to be responsible for the publication and distribution of all official

minutes, reports, and documents and to further serve as director of the board staff, which shall be

located at the division of public utilities and common carriers. The coordinator, under the

direction of the chairperson, shall coordinate and expedite the work of the various agencies to

ensure that decisions are made within the time frame established by this chapter.

     (d)(e) A quorum shall consist of a majority of the board. A quorum is required to conduct

any meeting of the board held for the purpose of considering and voting upon an adjudicatory

decision, a proposal to adopt, amend or rescind regulations, or any other matter requiring a vote

of the board. A majority vote of the board shall be required for all actions, including licensing

decisions; provided, however, one member of the board may conduct any hearings the board is

authorized to conduct pursuant to this chapter.

     (e)(f) The board shall maintain and grant free access to records and reports in its files to

members of the public during normal working hours and shall permit copies of those records and

reports to be made by interested members of the public at their expense; provided, however, that

the board shall not permit disclosure, other than to another government agency for the sole

purpose of rendering an advisory opinion, of any information obtained by or submitted to the

board pursuant to the provisions of this chapter, upon a showing, satisfactory to the board, that

the information is entitled to protection as trade secrets or as privileged, confidential, or

proprietary information. No other governmental agency shall disclose any trade secrets or

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privileged, confidential, or proprietary information.

     (g) Time periods within this chapter are discretionary, not mandatory. For good cause

shown, the board may, at its discretion, extend any and all time periods herein.

     42-98-6. Holding over in office.

     When the term of office of a member of the siting board expires or otherwise terminates,

and that person has participated in hearing all or a substantial part of the evidence in a proceeding

before the board, that person shall remain a member of the siting board for the sole purpose of

completing the hearing and deciding the matter pending and signing the findings, orders, and

judgments in the proceeding. For these services, the person shall be paid reasonable

compensation and necessary expenses as fixed by the siting board as composed following the

expiration of that person's term of office. For this purpose, a proceeding shall be deemed

completed when the siting board enters its final decision therein regardless of whether that

decision is or may be appealed to the supreme court and the case remanded to the siting board for

further proceedings.

     42-98-7. Powers and duties.

     (a)(1) The siting board is the licensing and permitting authority for all licenses, permits,

assents, or variances which, under any statute of the state or ordinance of any political

subdivision of the state, would be required for siting, construction or alteration of a major energy

or power generating facility in the state.

     (2) Any agency, board, council, or commission of the state or political subdivision of the

state which, absent this chapter, would be required to issue a permit, license, assent, or variance

in order for the siting, construction, or alteration of a major energy or power generating facility to

proceed, shall sit and function at the direction of the siting board. These agencies shall follow the

procedures established by statute, ordinance, and/or regulation provided for determining the

permit, license, assent, or variance, but, instead of issuing the permit, license, assent, or variance,

shall forward its findings from the proceeding, together with the record supporting the findings

and a recommendation for final action, to the siting board.

     (3) Notwithstanding any provision in this chapter to the contrary, in those instances in

which the department of environmental management exercises a permitting or licensing function

under the delegated authority of federal law, including, but not limited to, the Federal Clean

Water Act (33 U.S.C. § 1251 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. §

6901 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), and those state laws and regulations

which implement those federal laws, the department of environmental management shall be the

licensing and permitting authority. Moreover, the authority to issue licenses and permits

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delegated to the department of environmental management pursuant to chapter 1 of title 2 and to

the coastal resources management council pursuant to chapter 23 of title 46, shall remain with

those agencies, but in all other respects the department of environmental management and the

coastal resources management council shall follow the procedures set forth in this chapter.

     (4) Each host community shall prepare and submit to the board a report as to the

consistency of the proposed power generating facility with the host community's comprehensive

plan as defined in § 45-22.2-4, as well as consistency of the proposed power generating facility

with all local ordinances, regulations, standards and criteria that apply to the facility.

     (b) The siting board is authorized and empowered to summon and examine witnesses and

to compel the production and examination of papers, books, accounts, documents, records,

certificates, and other legal evidence that may be necessary for the determination of its

jurisdiction and decision of any question before, or the discharge of any duty required by law of,

the board.

     (c) The siting board is empowered to issue any orders, rules, or regulations as may be

required to effectuate the purposes of this chapter.

     (d) The siting board shall, by regulation, determine the standards for intervention, which

shall be liberally granted. Each host community shall be granted intervenor status as a matter of

right.

     (e) The siting board's proceedings shall in all respects comply with the requirements of

the Administrative Procedures Act, chapter 35 of this title, except where otherwise explicitly

provided.

     42-98-8. Applications -- Contents -- Acceptance for filing.

     (a) The rules and regulations promulgated by the board pursuant to § 42-98-7(c) shall

prescribe the form and contents of applications under this chapter. The board shall review energy

facility siting board rules of practice and procedure every two (2) years to ensure standards for

filing requirements and application contents are sufficient. The applications shall contain at least

the following, where applicable:

     (1) Identification of the proposed owner(s) of the facility, including identification of all

affiliates of the proposed owners, as the term is defined in § 39-3-27.

     (2) Detailed description of the proposed facility, including its function and operating

characteristics, and.

     (3) A complete set of plans as to all structures, underground and above ground, including

underground construction and transmission facilities, underground or aerial, associated with the

proposed facility., and a detailed description of the applicant's access to all necessary utilities,

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including, but not limited to: water; sewer; electric; and gas.

     The complete plans shall be the basis for determining jurisdiction under the energy

facility siting act and shall be the plans submitted to all agencies whose permit is required under

the law. The application shall include all information which, absent this chapter, the applicant

would be required to submit to each agency to obtain a permit, license, variance, or assent

including, but not limited to, items required for major land development submissions under §§

45-23-40(a) and 45-23-41(a).

     (3)(4) A detailed description and analysis of the impact of the proposed facility on its

physical and social environment together with a detailed description of all environmental

characteristics of the proposed site, and a summary of all studies prepared and relied upon in

connection therewith.

     Where applicable these descriptions and analysis shall include a review of current

independent, scientific research pertaining to electric and magnetic fields (EMF). The review

shall provide data assessing potential health risks associated with EMF exposure. For the

purposes of this chapter "prudent avoidance" shall refer to measures to be implemented in order

to protect the public from EMF exposure.

     (4)(5) All studies and forecasts, complete with the information, data, methodology, and

assumptions on which they are based, on which the applicant intends to rely in showing the need

for the proposed facility under the statewide master construction plan submitted annually.

     (5)(6) Complete detail as to the estimated construction cost of the proposed facility, the

projected maintenance and operation costs, estimated costs to the community such as safety and

public health issues, storm damage and power outages, estimated costs to businesses and

homeowners due to power outages, the estimated unit cost of energy to be produced by the

proposed facility, and expected methods of financing the facility.

     (6)(7) A complete life-cycle management plan for the proposed facility, including a

detailed schedule providing design, material acquisition, construction, testing, and operation

dates; and measures for protecting the public health and safety and the environment during the

facility's operations, including, but not limited to, plans for the handling and disposal of wastes

from the facility, plans for emergency operations and shut downs and plans for the

decommissioning of the facility at the end of its useful life.

     (7)(8) A study of alternatives to the proposed facility, including alternatives as to energy

sources, methods of energy production, and sites for the facility, together with reasons for the

applicant's rejection of these alternatives. An assessment of alternatives shall include a

comparison of vulnerability to power outages related to storm damage and estimated costs to

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businesses and homeowners during power outages. The study shall include estimates of facility

cost and unit energy costs of alternatives considered.

     (9) Identification of federal, state and municipal agencies which may exercise licensing

authority over any aspect of the facility or which could exercise licensing authority over any

aspect of the facility absent the act. When filing an application for a power generating facility, the

applicant shall also affirm that pre-application conferences were held with each agency, as set

forth in § 42-98-7.2, including the date of each such pre-application conference.

     (10) A detailed and specific statement as to the effects the proposed facility would have

on the ability of the state to meet the carbon-emissions-reduction goals set forth in § 42-6.2-

2(a)(2).

     (b) Simultaneous with the filing of an application for a power generating facility, the

applicant shall provide five (5) public copies to the executive office of each host community, one

public copy to the municipal clerk's office, and one public copy of the application to each of the

federal, state and municipal agencies identified in subsection (a) of this section, including, but not

limited to: the public utilities commission; the department of transportation; the department of

environmental management, the historical preservation and heritage commission; the division of

planning; the department of health; and the office of energy resources. The applicant shall also

notify each host community and each state and municipal agency of its ability to advise the board

as to completeness of the application pursuant to subsection (c) of this section. The executive

office of each host community shall distribute application materials to appropriate municipal

departments, boards, and officials.

     (c) Each application shall be reviewed for completeness.

     (1) Upon receiving an application, the board shall conduct a preliminary review to

ascertain if the application contains each item as required by subsection (a) of this section.

     (2) Within forty-five (45) days of the filing of an application for a power generating

facility, each host community and state agency that receives a public copy of the application

pursuant to subsection (b) of this section shall advise the board in writing whether the application

contains sufficient information for purposes of issuing its advisory opinion. Nothing contained

herein shall be construed as preventing any state or municipal agency from being able to request

additional information during its advisory opinion process.

     (b)(3) Within thirty (30) sixty (60) days of the filing of an applicant application under this

chapter, and prior to docketing the application, the board shall notify the applicant whether the

application is in the form and addresses the matters that are required by this section and the rules

and regulations as are promulgated pursuant to § 42-98-7. An application meeting these

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requirements shall then be docketed. Any application deemed to be deficient shall be returned to

the applicant, together with a concise and explicit statement of the application's deficiencies.

Within fifteen (15) days of the resubmission of an application following a rejection for

deficiency, the board shall docket the application together with specification of continuing

deficiencies noted by the board, if any. must meet every requirement of this section and all

applicable regulations in order to be docketed; no application will be docketed that does not

satisfy every requirement of this section and all applicable regulations.

     (4) If the application is in the proper form and addresses all matters that are required by

this section and the rules and regulations promulgated pursuant to § 42-98-7, then the application

shall be docketed.

     (5) If the application is deemed incomplete or deficient, the board shall notify the

applicant in writing, specifying each of the areas in which the application has been deemed

incomplete. The application may be resubmitted once all identified deficiencies have been

remedied.

     (6) Within twenty-one (21) days of the applicant's receipt of notification of

incompleteness, the applicant may complete the filed application by curing the specified defects

or may file a new and more complete application. Public copies of supplemental application

materials shall be simultaneously provided to the host community and state agencies as set forth

in subsection (b) of this section.

     (7) If the applicant completes the filed application or files a new and more complete

application within twenty-one (21) days of receiving notice pursuant to subsection (c)(6) of this

section, the board shall, within thirty (30) days of the resubmission of an application following a

rejection for deficiency, notify the applicant if the application is still deficient by returning it to

the applicant together with a concise and explicit statement of the application's deficiencies.

     (8) If a resubmitted application is in the proper form and addresses all matters that are

required by this section and the rules and regulations as are promulgated pursuant to § 42-98-7,

then the board shall docket the resubmitted application together with the correspondence from the

board specifying the deficiencies in all earlier applications.

     (9) If the application remains incomplete or the specified defects in the filed application

remain uncured, the board shall notify the applicant in writing of its rejection of the application

and instruct the applicant to file a new application.

     (d) Any change to the application made after state and municipal agencies have been

assigned advisory opinions pursuant to § 42-98-9 shall be presented to the board for a

determination of whether the change represents a material difference to the application. If the

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board finds a change represents a material difference, the application may be dismissed without

prejudice and the applicant may refile the application.

     (c) Nothing contained herein shall be construed as preventing the board from dismissing

an application.

     42-98-9. Applications -- Procedures for review -- Preliminary hearing.

     (a) Within sixty (60) days following the board's docketing of an application the board

shall, on not less than forty-five (45) days' notice to all agencies, subdivisions of the state, and the

public, convene a preliminary hearing on the application to determine the issues to be considered

by the board in evaluating the application, and to designate those agencies of state government

and of political subdivisions of the state which shall act at the direction of the board for the

purpose of rendering advisory opinions on these issues, and to determine petitions for

intervention.

     (b) The board shall consider as issues in every proceeding the ability of the proposed

facility to meet the requirements of the laws, rules, regulations, and ordinances under which,

absent this chapter, the applicant would be required to obtain a permit, license, variance, or

assent. The agency of state government or of a political subdivision of the state which, absent this

chapter, would have statutory authority to grant or deny the permit, license, variance, or assent,

shall function at the direction of the board for hearing the issue and rendering an advisory opinion

thereon.

     (c) The board shall may limit the scope of any agency's investigation where it finds that

more than one agency has jurisdiction over a matter at issue in the licensing process. In these

instances, the board shall may determine which agency shall make the necessary findings on the

issue after giving proper consideration to the expertise and resources available to each of the

agencies involved.

     (d) The public utilities commission shall conduct an investigation in which the division of

planning of the department of administration, the governor's office of energy resources assistance

and the division of public utilities and carriers shall participate and render an advisory opinion as

to the need for the proposed facility.

     (e) The statewide planning program within the department of administration shall

conduct an investigation and render an advisory opinion as to the socio-economic impact of the

proposed facility and its construction and consistency with the state guide plan. This investigation

shall include review of municipal comprehensive plans for all host communities to ensure the

proposed project conforms to each municipal comprehensive plan.

     (f) The commerce corporation shall conduct an investigation and render an advisory

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opinion as to the economic impacts of the proposed facility and its construction.

     (g) The department of environmental management, in consultation with the office of

energy resources, shall render an advisory opinion as to the proposed facility's impact on

greenhouse gas emissions and consistency with the resilient Rhode Island act.

     (h) The historical preservation and heritage commission shall conduct an investigation

and render an advisory opinion as to the potential impacts of the proposed facility on historic and

archeological sites in the state, as well as any measures proposed by the applicant to avoid,

minimize, or mitigate unreasonable adverse effects on those sites.

     (i) The board shall seek advisory opinions from the zoning, planning, and building

departments of each host community. The board shall also seek advisory opinions from all public

utilities serving the utility, including, but not limited to, water; sewer; electric; and gas. Advisory

opinions from municipal entities shall include a study of the financial impact of the proposed

facility on local services, infrastructure, and all public and private property located within three

(3) miles of the proposed site boundaries. No advisory opinion shall be sought until the

application is docketed.

     (j) Nothing contained herein shall be construed as preventing the board from requesting

additional advisory opinions.

     (f)(k) A decision of the board under this section shall be issued within thirty (30) days

following the conclusion of the preliminary hearing and in any event within forty-five (45) sixty

(60) days of the commencement of the hearing.

     42-98-9.1. Public notice and hearings on construction projects in cities and towns

affected.

     (a) When the subject of the application is a major energy facility, the applicant shall

notify each host community no less than thirty (30) days prior to filing its application with the

board.

     (b) When the subject of the application is a power generating facility, the applicant shall

notify each host community no less than sixty (60) days prior to filing its application with the

board.

     (a)(c) Upon receiving a utility company application the board shall immediately notify, in

writing, the councils of the towns and cities affected by the construction. This includes, but is not

limited to, each host community.

     (b)(d) When the subject of the application is a power generating facility, the The board

shall have at least one three (3) public hearing hearings in each town or city affected host

community prior to holding its own hearings and prior to taking final action on a power

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generating facility the application. All details of acceptance for filing in §§ 42-98-8(a)(1) --

(a)(6)42-98-8(a)(7) shall be presented at town or city hearings for public comment. No public

hearing shall occur until the application is deemed sufficient and docketed by the board as

required in § 42-98-8(b). Public hearings shall be held within six (6) months of the date the

application is docketed by the board. When the subject of the application is a facility for the

generation of electricity, or new facilities for the transmission of electricity, the town or city Each

host community, including quasi-municipal corporations within the host community, where the

proposed facility would be located may request funding from the applicant to perform studies of

the local environmental effects of the proposed facility. The expense of those studies shall not

exceed the greater of the lesser of one hundred thousand dollars ($100,000) one hundred fifty

thousand dollars ($150,000) or one-tenth percent (.1%) of the estimated capital cost of the

proposed facility. located in such city or town. If the applicant contests the relevance of the

requested study, or believes it to be redundant with studies already performed, the applicant may

request a ruling from the board whether the study is necessary and reasonably expected to

produce relevant information. The board's ruling shall be conclusive and final, and shall not be

the basis for an interlocutory appeal, injunction or otherwise delay the board's processing of the

application. The applicant shall also pay any and all fees and expenses reasonably incurred by

each host community, including quasi-municipal corporations within the host community, to fully

participate in the facility siting process, and local review, including, but not limited to, fees and

expenses for legal counsel, expert evaluations, transcripts and other costs associated with the

entire facility siting process. At the request of an applicant, the chairperson of the board may

refuse to approve any fee or expense incurred by the host community if the chairperson believes

the fee or expense is excessive or unreasonable.

     (e) When the subject of the application is a major energy facility, the board shall have at

least one public hearing in each town or city affected by the major energy facility. Each town or

city affected by the major energy facility, including quasi-municipal corporations located therein,

may request funding from the applicant to perform studies of the local environmental effects of

the proposed facility. The expense of the studies shall not exceed the lesser of one hundred

thousand dollars ($100,000) or one-tenth percent (.1%) of the estimated capital cost of the

proposed facility. If the applicant contests the relevance of the requested study, or believes it to be

redundant with studies already performed, the applicant may request a ruling from the board

whether the study is necessary and reasonably expected to produce relevant information. The

board's ruling shall be conclusive and final, and shall not be the basis for an interlocutory appeal,

injunction or otherwise delay the board's processing of the application.

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     (c)(f) The applicant shall notify the citizens in towns and cities affected thirty (30) days

prior to public meetings through local papers. Newspaper notices shall be at least one-half (1/2)

page in size, and shall include a map depicting the project and all associated corridors. If the

board determines that any notice was substantially inaccurate, then the board may order an

additional hearing with appropriate notice.

     (d)(g) The applicant shall notify abutting the following land owners individually, in

writing, thirty (30) days prior to the any hearings, by certified mail, postage prepaid. :

     (1) For proposed or existing power generating facilities, applicants shall notify all land

owners whose property is located within one and one-half (1.5) miles of the proposed site

boundaries;

     (2) For all other projects, applicants shall notify all land owners whose property is located

within three hundred feet (300') from the proposed project or corridor.

     (e)(h) Public input shall be a part of the decision making process.

     42-98-10. Agency procedures -- Advisory opinion.

     (a) Each agency of the state or political subdivision of the state designated under § 42-98-

9 shall proceed to consider the issue or issues consigned to it for review. Each agency shall

conclude its consideration and issue its advisory opinion not more than six (6) months following

its designation under § 42-98-9, and receipt of all details required under §§ 42-98-8(a)(1) through

42-98-8 (a)(7) or any lesser time that the board may require, or the right to exercise the function

shall be forfeited to the board. If sufficient details to allow agencies to consider and issue

advisory opinions are unavailable for any reason, the application proceeding shall be suspended

for up to sixty (60) days to allow sufficient details to be submitted by the applicant. If, at the end

of sixty (60) days, sufficient details have not been provided in writing, the application shall be

denied. The applicant may refile its application no sooner than sixty (60) days from the date of

denial.

     (b) Advisory opinions issued by agencies designated under § 42-98-9 shall not be

considered as final decisions of the agencies making the opinions, and shall not be subject to

judicial review under § 42-35-15, or any other provision of the general laws.

     (c) Advisory opinions issued by zoning boards of review, building inspectors, or any

other agency of a municipality designated under § 42-98-9 shall not be reviewable by the public

utilities commission under § 39-1-30.

     (d) Failure or refusal of the applicant to provide requested information may shall be

considered as grounds for recommending denial.

     (e) At the request of the siting board, the director of environmental management and the

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coastal resources management council shall give priority to the review of permits for energy

facilities.

     (f) Any town or city council may submit to the board a resolution setting forth the

council's support or opposition to the project at any time after the application is docketed by the

board and no later than thirty (30) days following the submission of advisory opinions, unless an

extension is granted by the board for good cause shown.

     42-98-11. Final hearing -- Standards -- Decisions.

     (a) Within forty-five (45) days after the final date for submission of advisory opinions

pursuant to § 42-98-10, the board shall convene the final hearing on the application. The purpose

of this the final hearing shall not be to rehear the evidence which was presented previously in

hearings before agencies designated under § 42-98-9, but rather to provide the applicant,

intervenors, the public, and all other parties in the proceeding, the opportunity to address in a

single forum, and from a consolidated, statewide prospective, the issues reviewed, and the

recommendations made in the proceedings before the agencies designated under § 42-98-9. The

board at this hearing may, at its discretion, allow the presentation of new evidence by any party

including intervenors as to the issues considered by the agencies designated under § 42-98-9. The

board may limit the presentation of repetitive or cumulative evidence. The final hearing shall

proceed on not less than thirty (30) ten (10) days' notice to the parties and the public, and shall be

concluded not more than sixty (60) days following its initiation, and shall be conducted

expeditiously.

     (b) The board shall issue a decision granting a license only upon finding that the

applicant has shown that:

     (1) Construction of the proposed facility is necessary to meet the needs of the state and/or

region for energy of the type to be produced by the proposed facility.

     (2) The proposed facility is cost-justified, and can be expected to produce energy at the

lowest reasonable cost to the consumer consistent with the objective of ensuring that the

construction and operation of the proposed facility will be accomplished in compliance with all of

the requirements of the laws, rules, regulations, and ordinances, under which, absent this chapter,

a permit, license, variance, or assent would be required, or that consideration of the public health,

safety, welfare, security and need for the proposed facility justifies a waiver of some part of the

requirements when compliance cannot be assured.

     (3) The proposed facility will not cause unacceptable harm to the environment, will not

prevent the state from reaching its greenhouse gas emissions reduction target in the resilient

Rhode Island act of 2014, chapter 6.2 of title 42, and will enhance the socio-economic fabric of

LC001454 - Page 16 of 23

the state.

     (c) The board shall not issue a decision granting a license to any applicant unless the

board has thoroughly considered whether construction of the proposed facility will adversely

impact the ability of the state to achieve the carbon-emissions-reduction goals set forth in § 42-

6.2-2(a)(2).

     (d) Prior to the making of a decision, the board shall take into consideration any town or

city council resolution regarding the application. Where a host community is already burdened by

one or more fossil fuel energy facilities of two hundred fifty megawatts (250MW) or more, the

board shall abide by the town or city council's wishes with regard to a proposed new facility,

unless the board is presented with clear and convincing evidence to the contrary.

     (e) Where multiple applications relate to a single project, the board shall consider the

cumulative impacts of the related applications.

     (c)(f) Within sixty (60) days of the conclusion of the final hearing the board shall issue its

final decision on the application. A decision in favor of the application shall constitute a granting

of all permits, licenses, variances, appraisals, or assents, which under any law, rule, regulation, or

ordinance of the state or of a political subdivision thereof which would, absent this chapter, be

required for the proposed facility. The decision may be issued requiring any modification or

alteration of the proposed facility, and may be issued on any condition the board deems warranted

by the record, and may be issued conditional upon the applicant's receipt of permits required by

federal law. The board's decision shall explicitly address each of the advisory opinions received

from agencies, and the board's reasons for accepting, rejecting, or modifying, in whole or in part,

any of those advisory opinions; any resolution from a host community, and the board's reasons

for accepting or rejecting that resolution. The board shall, within ten (10) days of granting a

license, with or without conditions, deliver the decision to the governor, speaker of the Rhode

Island house of representatives, and the president of the Rhode Island senate.

     42-98-12. Appeals and judicial review.

     (a) The licensing decision issued by the siting board shall constitute the sole, final,

binding, and determinative regulatory decision within the state for the purposes of siting,

building, operating, or altering a major energy or power generating facility.

     (b) Any person aggrieved by a decision of the board may within ten (10) thirty (30) days

from the date of ratification of the decision, obtain judicial review of the decision in the manner

and according to the standards and procedures provided in chapter 5 of title 39. appeal the

decision to the Rhode Island supreme court by filing a notice of appeal with the board and the

supreme court.

LC001454 - Page 17 of 23

     42-98-13. Access to premises.

     (a) Members of the siting board, or agents of the board, while engaged in the

performance of their duties, may at all reasonable times enter any premises, buildings, or other

places belonging to, or controlled by, an applicant for a license under this chapter, and inspect the

premises or any part of the premises. Reasonable notice of the inspection shall be given to the

owner of the facility and a representative of the owner shall accompany the members of the board

or its agent at all times during any inspection.

     (b) Any person obstructing, hindering, or in any way, causing to be obstructed or

hindered, any board member or agent of the board, in the performance of his or her duties, or who

shall refuse to permit any board member or agent of the board entrance into any premises,

buildings, or other places belonging to, or controlled by an applicant, in the performance of his or

her duties, shall be deemed guilty of a misdemeanor and fined not more than five hundred dollars

($500) one thousand dollars ($1,000).

     42-98-16. Violations.

     (a) Failure to comply with any promulgated board rule, regulation, requirement or

procedure for the licensing of energy facilities shall constitute grounds for suspension or

dismissal, with or without prejudice in its discretion, of licensing proceedings, provided that the

applicant shall have a reasonable opportunity to show cause for and remedy the lack of

compliance.

     (b) Failure to comply with any provision, condition or limitation contained in a board

license to site, build, or alter a major energy or power generating facility and/or failure to comply

with a board cease and desist order and/or a board order to remedy a non-complying action shall

be grounds for suspension or revocation of the license, and/or shall be punishable by a fine of not

more than twenty thousand dollars ($20,000) fifty thousand dollars ($50,000). Each day of

continuing noncompliance shall be considered a separate violation and so punished.

     (c) The board may require the licensee to maintain those records as are reasonable and

necessary to monitor compliance with license provisions, and shall have the authority to enter

onto the property of licensees to investigate complaints of noncompliance and to perform routine

inspections.

     (d) The board shall take reasonable steps to ensure each facility for which a certificate

has been issued is constructed, maintained, and operated in compliance with such certificate and

any other standard established pursuant to this chapter. The board may designate officials or staff

of any state agencies as its agents for the purposes of investigating complaints, performing

routine maintenance functions and issuing written cease and desist orders.

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     (e) Any license may be revoked or suspended for any materially false statement in the

application or supplemental submissions by the applicant when a true answer would have

warranted the board's refusal to issue a license in the first instance.

     (f) Civil proceedings to enforce this chapter may be brought by the attorney general or

any host community in the superior court.

     (g) Nothing in this chapter shall preclude a host community from enforcing municipal

ordinances, levying fines, or pursuing any other legally available enforcement remedies, unless

such ordinances are in direct conflict with a certificate or license issued by the board.

     42-98-17. Appropriation, fees and grants.

     (a) There is created an account to be known as the "energy facility siting account", an

account within the public utilities commission in the general fund, hereinafter referred to as the

"account", for the purpose of providing the financial means for the board to purchase materials

and to employ on a contract or other basis legal counsel, official stenographers, engineers,

accountants, and expert witnesses and for other necessary expenses of the board in investigations

and hearings on applications for licensure under this chapter. The general assembly shall annually

appropriate to the account the amounts as may be required to bring the balance of the account to

the sum of one hundred thousand dollars ($100,000); provided, however, that if at June 30 in any

year the balance in the account shall be in excess of one hundred thousand dollars ($100,000), the

amount of the excess shall be transferred to the general account of the state. The controller is

authorized and directed to draw his or her orders upon the general treasurer for the payment from

the account of the sums as may be required from time to time upon receipt by the controller of

proper vouchers approved by the chairperson of the board or the secretary.

     (b) The board shall be authorized to establish reasonable fees for investigations,

applications and hearings. Applicants shall pay those fees in full prior to the hearing process

commencing unless the board agrees to an alternative payment schedule. All fees collected by the

board shall be deposited with the general treasurer and appropriated to the board. The state

controller is authorized and directed to draw his or her orders upon the general treasurer for

payment of any sum or sums as may be necessary from time to time and upon receipt by him or

her of authenticated vouchers presented by the coordinator of the board.

     (c) All moneys collected by the chairperson or the secretary pursuant to this section shall

be paid by him or her monthly to the general treasurer to be added to the energy facility siting

account.

     (d) Failure of the applicant to pay expenses lawfully assessed by the board shall

constitute grounds for suspension of licensing proceedings or revocation of any license granted,

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until the applicant has paid the expenses.

     (e) The board shall be empowered to draw upon this account and to distribute monies

from the fees to and bodies of state and local government participating in licensing actions or

acting as the board's agents for the purposes of insuring compliance with license provisions and

for employing staff or consultants and for carrying out the provisions of this chapter.

     (f) The board shall be authorized to receive any grants made for the purpose of planning

for or regulating the siting of energy facilities and to disburse and administer the grants under the

terms of the grants.

     (g) The board shall not issue a license to build a new power generating facility unless the

applicant demonstrates it has satisfied the following requirements:

     (1) Applicant shall provide adequate funds for the host community's fire marshal to retain

at least one special inspector to assist the host community's fire marshal, for the duration of the

construction project; and

     (2) Applicant shall provide adequate funds to be used in the training of local public safety

and emergency management personnel in the host community, including quasi-municipal

corporations within the host community, and personnel from neighboring communities which

would likely provide mutual aid within the host community, on the complex issues of electric

generating facility construction and operation.

     (h) The special inspector retained under subsection (g) of this section shall:

     (1) Be approved by the board and not otherwise employed by or financially involved in

the construction or operation of the facility;

     (2) Have knowledge and field experience in electric generating facility construction; and

     (3) Assist the local fire marshal with review and approval of an appropriate safety plan

for the electric generating facility, and conduct inspections during construction of the facility to

ensure compliance with certificates and safety standards.

     42-98-20. Informational filings.

     (a) To assist the board in achieving the policy objectives set forth in § 42-98-2, the

owners of any proposed energy facility, whether or not the facility qualified as a major energy or

power generating facility, shall make an informational filing with the board at the time of first

application to any other agency, board, council, or commission of the state or political

subdivision of the state required to issue a permit, license, assent, or variance in order for the

siting, construction, or alteration of the facility to proceed. Copies of any informational filing

shall be provided to the councils of the towns and cities affected by the proposed facility within

seven (7) days of filing with the board.

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     (b) The informational filing shall contain at least the following:

     (1) Identification of the proposed owner(s) of the facility, including identification of all

affiliates of the proposed owners, as the term is defined in § 39-3-27.

     (2) Detailed description of the proposed facility, including its function and operating

characteristics, and complete plans as to all structures, including underground construction and

transmission facilities, underground or aerial, associated with the proposed facility.

     SECTION 2. Chapter 42-98 of the General Laws entitled "Energy Facility Siting Act" is

hereby amended by adding thereto the following sections:

     42-98-7.1. Counsel for the public.

     (a) Within fifteen (15) days of the board's docketing of an application related to a power

generating facility, the attorney general shall appoint an attorney or attorneys, licensed in Rhode

Island, to serve as counsel for the public.

     (b) Counsel for the public shall represent the public in seeking to protect the quality of

the environment, including advocating for environmental justice matters.

     (c) Counsel for the public shall be accorded all the rights, privileges, and responsibilities

of an attorney representing a party in formal action and shall serve until the decision to issue or

deny an application is final.

     (d) Counsel for the public shall represent the public interest which may include issuance

of discovery, attendance at public comment hearings, presenting testimony and recommendations

to the board relevant to the application, and attending all hearings of the board.

     (e) Fees for compensation of the counsel for the public, including fees for expert

witnesses, if any, shall be paid by the applicant through the board's assessment process.

      (f) Nothing contained herein shall be construed as preventing any person or entity from

being represented by counsel of his or her own choosing and at his or her own expense.

     42-98-7.2. Pre-application requirements.

     (a) At least sixty (60) days prior to filing an application for a power generating facility,

the applicant shall meet with the board coordinator or designee to review the contents of the

application and discuss and arrange for the completion of all pre-filing and filing requirements of

the board, including information necessary to bill the applicant for costs related to the board's

review process.

     (b) At least sixty (60) days prior to filing an application for a power generating facility,

one or more pre-application conferences, as the term is defined in § 45-23-32, shall be held with

each state and municipal agency which may exercise licensing authority over any aspect of the

facility.

LC001454 - Page 21 of 23

     (1) During pre-application conferences the applicant shall meet with appropriate

municipal officials, boards, commissions, planning staff and state agencies for advice as to the

required steps in the approvals process, pertinent local plans, ordinances, regulations, rules,

procedures and standards which may bear upon the proposed power generating facility.

Consistent with § 45-23-35, pre-application conferences shall encourage information sharing,

discussion of project concepts, and provide guidance to an applicant.

     (2) Prior to the pre-application conference(s) applicants shall submit general, conceptual

materials, as requested by municipal and state officials.

     (c) At least thirty (30) days prior to filing an application for a power generating facility,

an applicant must hold a public information session in each host community to present

information on the project and provide an opportunity for comments and questions from the

public.

     SECTION 3. This act shall take effect on January 1, 2020 and shall apply to applications

filed on or after January 1, 2020.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- ENERGY FACILITY SITING

ACT

***

     This act would make changes to the membership of the energy facilities siting board by

increasing the size of the board from three (3) to seven (7) members for certain applications, and

also imposes additional requirements on applicants for energy facilities.

     This act would take effect on January 1, 2020 and would apply to applications filed on or

after January 1, 2020.

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