2022 -- H 7820 | |
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LC004988 | |
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STATE OF RHODE ISLAND | |
IN GENERAL ASSEMBLY | |
JANUARY SESSION, A.D. 2022 | |
____________ | |
A N A C T | |
RELATING TO STATE AFFAIRS AND GOVERNMENT -- ENERGY FACILITY SITING | |
ACT | |
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Introduced By: Representatives Place, and Newberry | |
Date Introduced: March 03, 2022 | |
Referred To: House State Government & Elections | |
It is enacted by the General Assembly as follows: | |
1 | SECTION 1. Sections 42-98-1, 42-98-2, 42-98-3, 42-98-5, 42-98-7, 42-98-8, 42-98-9, 42- |
2 | 98-9.1, 42-98-10, 42-98-11 and 42-98-16 of the General Laws in Chapter 42-98 entitled "Energy |
3 | Facility Siting Act" are hereby amended to read as follows: |
4 | 42-98-1. Legislative findings. |
5 | (a) The general assembly recognizes that reasonably priced, reliable sources of energy are |
6 | vital to the well-being and prosperity of the people of this state; that there are major issues of public |
7 | health and safety and impact upon the environment related to the technologies and energy sources |
8 | used in some facilities; that some energy facilities require a major commitment of funds and |
9 | resources and require many years to build that the decision to permit or deny their construction will |
10 | have long term impact on the economy of the state; that these decisions will affect the availability |
11 | and cost of the energy; and that the evaluation of proposals must recognize and consider the need |
12 | for these facilities in relation to the overall impact of the facilities upon public health and safety, |
13 | the environment and the economy of the state; |
14 | (b) The general assembly further finds that the authority to regulate many aspects of the |
15 | issues involved in the siting of major energy facilities currently exists in a variety of agencies within |
16 | the government of the state and the political subdivisions of the state; that there is overlapping |
17 | jurisdiction among several state agencies in the siting of energy facilities; and that there is the |
18 | potential for conflicting decisions being issued by the various agencies having authority over the |
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1 | different aspects of the siting of a major energy facility; |
2 | (c) The jurisdiction of each state agency should be defined, and the role of each agency in |
3 | energy siting should be delineated, to eliminate overlap and duplication and to insure that |
4 | expeditious decisions are made within a time frame to be determined by law; and that in addition |
5 | to the existing regulation, statewide and regional planning for energy resources and the assessment |
6 | of our state's need for energy should be on-going activities within Rhode Island; |
7 | (d) There is need for a coordinated decision on any major energy facility; the technical |
8 | expertise for this evaluation is available within existing agencies involved with the siting process; |
9 | and |
10 | (e) There is a need for coordinating and expediting the review of each state agency and that |
11 | the authority and responsibility to perform that function should be established; and |
12 | (f) The general assembly recognizes that a host community for a proposed or existing major |
13 | generating facility is uniquely affected by the energy facility siting process. |
14 | 42-98-2. Declaration of policy. |
15 | It shall be the policy of this state to assure that: |
16 | (1) The facilities required to meet the energy needs of this and succeeding generations of |
17 | Rhode Islanders are planned for, considered, and built in a timely and orderly fashion; |
18 | (2) Construction, operation, and/or alteration of major energy facilities shall only be |
19 | undertaken when those actions are justified by long term state and/or regional energy need |
20 | forecasts; |
21 | (3) The energy shall be produced at the least possible cost to the consumer consistent with |
22 | the objective of ensuring that the construction, operation, and decommissioning of the facility shall |
23 | produce the fewest possible adverse effects on the quality of the state's environment; most |
24 | particularly, its land and its wildlife and resources, the health and safety of its citizens, the purity |
25 | of its air and water, its aquatic and marine life, and its esthetic and recreational value to the public; |
26 | (4) The licensure and regulatory authority of the state be consolidated in a single body, |
27 | which will render the final licensing decision concerning the siting, construction, operation and/or |
28 | alteration of major energy facilities; |
29 | (5) An energy facility planning process shall be created through which the statewide |
30 | planning program, in conjunction with the division of public utilities and carriers, will be |
31 | empowered to undertake evaluations and projections of long and short term energy needs, and any |
32 | other matters that are necessary to establish the state energy plans, goals, and policies. The state |
33 | planning council shall be authorized and empowered to adopt a long term plan assessing the state's |
34 | future energy needs and the best strategy for meeting them, as part of the state guide plan by January |
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1 | 1, 1991. |
2 | (6) The construction, operation and/or alteration of major energy facilities shall be |
3 | consistent with the state's established energy plans, goals, and policy. |
4 | (7) Before approving the construction, operation and/or alteration of major energy |
5 | facilities, the board shall determine whether cost effective efficiency and conservation |
6 | opportunities provide an appropriate alternative to the proposed facility. |
7 | (8) The energy facilities siting board shall give priority to energy generation projects based |
8 | on the degree to which such projects meet, criteria including, but not limited to: |
9 | (i) Using renewable fuels, or natural gas, or coal processed by "clean coal technology" as |
10 | their primary fuel; |
11 | (ii) Maximizing efficiency; |
12 | (iii) Using low levels of high quality water; |
13 | (iv) Using existing energy-generation facilities and sites; |
14 | (v) Producing low levels of potentially harmful air emissions; |
15 | (vi) Producing low levels of wastewater discharge; |
16 | (vii) Producing low levels of waste into the solid waste stream; and |
17 | (viii) Having dual fuel capacity. |
18 | The board shall, within its rules and regulations, provide guidelines and definitions of |
19 | appropriate standards for the criteria designated in this subsection by January 1, 1991. |
20 | 42-98-3. Definitions. |
21 | As used in this chapter: |
22 | (1) "Advisory agencies" means the agencies, councils, boards, departments, and officials |
23 | of state or political subdivisions of the state which, absent this chapter, would have statutory |
24 | authority to grant or deny a permit, license, variance, or assent, and which shall function at the |
25 | direction of the board for hearing an issue and rendering an advisory opinion thereon, including, |
26 | but not limited to, the public utilities commission, department of transportation, department of |
27 | environmental management, historical preservation and heritage commission, division of planning, |
28 | department of health, office of energy resources, municipal zoning board, municipal planning |
29 | board, municipal building inspector, and municipal tax assessor. |
30 | (a)(2) "Agency" means any agency, council, board, or commission of the state or political |
31 | subdivision of the state. |
32 | (b)(3) "Alteration" means a significant modification to a major energy facility, which, as |
33 | determined by the board, will result in a significant impact on the environment, or the public health, |
34 | safety, and welfare. Conversion from one type of fuel to another to biofuel shall not be considered |
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1 | to be an "alteration." |
2 | (c)(4) "Board" for purposes of this chapter refers to the siting board. |
3 | (5) "Host community" means any municipality in the state in which all or the majority of |
4 | a major energy facility is or shall be located. |
5 | (6) For purpose of this chapter, there shall be two types of "major energy facilities": |
6 | (i) "Major generating facility" means facilities for the generation of electricity designed or |
7 | capable of operating at a gross capacity of forty (40) megawatts or more. |
8 | (d)(ii) "Major energy non-generating facility" means: |
9 | (A) Facilities facilities for the extraction, production, conversion, and processing of coal; |
10 | facilities for the generation of electricity designed or capable of operating at a gross capacity of |
11 | forty (40) megawatts or more; |
12 | (B) Electric transmission lines of sixty-nine (69) Kv or over; |
13 | (C) Facilities facilities for the conversion, gasification, treatment, transfer, or storage of |
14 | liquefied natural and liquefied petroleum gases; |
15 | (D) Facilities facilities for the processing, enrichment, storage, or disposal of nuclear fuels |
16 | or nuclear byproducts; |
17 | (E) Facilities facilities for the refining of oil, gas, or other petroleum products; facilities of |
18 | ten (10) megawatts or greater capacity for the generation of electricity by water power, and |
19 | (F) Facilities facilities associated with the transfer of oil, gas, and coal via pipeline; any |
20 | energy facility project of the Rhode Island economic development corporation; the board may |
21 | promulgate regulations to further define "major energy facility" to the extent further definition is |
22 | required to carry out the purpose of this chapter, provided that any waste to energy facility shall |
23 | not be deemed a major energy facility for the purposes of this chapter. |
24 | (e) "Clean coal technology" means one of the technologies developed in the clean coal |
25 | technology program of the United States Department of Energy, and shown to produce emissions |
26 | levels substantially equal to those of natural gas fired power plants. |
27 | 42-98-5. Board established. |
28 | (a) There is established the siting board which shall be a part of state government. |
29 | (1) The siting board shall consist of three (3) five (5) members, as follows: the chairperson |
30 | of the public utilities commission, or designee, who shall serve as chairperson of the siting board; |
31 | the director of the department of environmental management or designee; and the associate director |
32 | of administration for planning, or designee; the attorney general, or designee; and the secretary of |
33 | commerce, or designee. Any member of the board who recuses him or herself shall designate his |
34 | or her own successor from his or her respective agency. |
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1 | (2) Any member of the board may select their own designee from their respective agency |
2 | who shall serve until a final determination is made in the proceeding for which they were |
3 | designated. |
4 | (b) Each member of the board, including designees, shall take an oath to administer the |
5 | duties of office faithfully and impartially and that oath shall be filed in the office of the secretary |
6 | of state. |
7 | (c) The members of the board shall serve without compensation, but shall be reimbursed |
8 | for their actual expenses necessarily incurred in the performance of their duties. The board may |
9 | engage any consultants or expert witnesses that it deems necessary to implement its statutory |
10 | responsibilities; provided, however, that to the maximum extent possible, board staff be drawn |
11 | from existing state agencies. The board shall select a coordinator to be responsible for the |
12 | publication and distribution of all official minutes, reports, and documents and to further serve as |
13 | director of the board staff, which shall be located at the division of public utilities and common |
14 | carriers. The coordinator, under the direction of the chairperson, shall coordinate and expedite the |
15 | work of the various agencies to ensure that decisions are made within the time frame established |
16 | by this chapter. The board may appoint hearing officers to conduct hearings in accordance with § |
17 | 42-98-5.1. Any individual designated as board staff shall be bound to comply with the ex parte |
18 | provisions of § 42-35-13. |
19 | (d) A quorum shall consist of a majority of the board. A majority vote of the board shall be |
20 | required for all actions, including licensing decisions; provided, however, one member of the board |
21 | may conduct any hearings the board is authorized to conduct pursuant to this chapter. |
22 | (e) The board shall maintain and grant free access to records and reports in its files to |
23 | members of the public during normal working hours and shall permit copies of those records and |
24 | reports to be made by interested members of the public at their expense; provided, however, that |
25 | the board shall not permit disclosure, other than to another government agency for the sole purpose |
26 | of rendering an advisory opinion, of any information obtained by or submitted to the board pursuant |
27 | to the provisions of this chapter, upon a showing, satisfactory to the board, that the information is |
28 | entitled to protection as trade secrets or as privileged, confidential, or proprietary information. No |
29 | other governmental agency shall disclose any trade secrets or privileged, confidential, or |
30 | proprietary information. |
31 | 42-98-7. Powers and duties. |
32 | (a)(1) The siting board is the licensing and permitting authority for all licenses, permits, |
33 | assents, or variances which, under any statute of the state or ordinance of any political subdivision |
34 | of the state, would be required for siting, construction or alteration of a major energy facility in the |
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1 | state. |
2 | (2) Any agency, board, council, or commission of the state or political subdivision of the |
3 | state which, absent this chapter, would be required to issue a permit, license, assent, or variance in |
4 | order for the siting, construction, or alteration of a major energy facility to proceed, shall sit and |
5 | function at the direction of the siting board. These agencies shall follow the procedures established |
6 | by statute, ordinance, and/or regulation provided for determining the permit, license, assent, or |
7 | variance, but, instead of issuing the permit, license, assent, or variance, shall forward its findings |
8 | from the proceeding, together with the record supporting the findings and a recommendation for |
9 | final action, to the siting board. |
10 | (3) Notwithstanding any provision in this chapter to the contrary, in those instances in |
11 | which the department of environmental management exercises a permitting or licensing function |
12 | under the delegated authority of federal law, including, but not limited to, the Federal Clean Water |
13 | Act (33 U.S.C. § 1251 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et |
14 | seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), and those state laws and regulations which |
15 | implement those federal laws, the department of environmental management shall be the licensing |
16 | and permitting authority. Moreover, the authority to issue licenses and permits delegated to the |
17 | department of environmental management pursuant to chapter 1 of title 2 and to the coastal |
18 | resources management council pursuant to chapter 23 of title 46, shall remain with those agencies, |
19 | but in all other respects the department of environmental management and the coastal resources |
20 | management council shall follow the procedures set forth in this chapter. |
21 | (b) The siting board is authorized and empowered to summon and examine witnesses and |
22 | to compel the production and examination of papers, books, accounts, documents, records, |
23 | certificates, and other legal evidence that may be necessary for the determination of its jurisdiction |
24 | and decision of any question before, or the discharge of any duty required by law of, the board. |
25 | (c) The siting board is empowered to issue any orders, rules, or regulations as may be |
26 | required to effectuate the purposes of this chapter. The board shall review its rules and regulations |
27 | from time to time and shall modify, amend or repeal any rules or regulations as may be required to |
28 | effectuate the purposes of this chapter. |
29 | (d) The siting board shall, by regulation, determine the standards for intervention. Each |
30 | host community shall be granted intervenor status as of right. |
31 | (e) The siting board's proceedings shall in all respects comply with the requirements of the |
32 | Administrative Procedures Act, chapter 35 of this title, except where otherwise explicitly provided. |
33 | 42-98-8. Applications -- Contents -- Acceptance for filing. |
34 | (a) The rules and regulations promulgated by the board pursuant to § 42-98-7(c) shall |
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1 | prescribe the form and contents of applications under this chapter. The applications shall contain |
2 | at least the following, where applicable: |
3 | (1) Identification of the proposed owner(s) of the facility, including identification of all |
4 | affiliates of the proposed owners, as the term is defined in § 39-3-27. |
5 | (2) Detailed description of the proposed facility, including its function and operating |
6 | characteristics, and a complete set of plans as to all structures, including underground construction |
7 | and transmission facilities, underground or aerial, associated with the proposed facility. |
8 | The complete set of plans shall be the basis for determining jurisdiction under the energy |
9 | facility siting act and shall be the plans submitted to all advisory agencies whose permit is required |
10 | under the law. |
11 | (3) A detailed description and analysis of the impact of the proposed facility on its physical |
12 | and social environment together with a detailed description of all environmental characteristics of |
13 | the proposed site, including, but not limited to, the types of fuels and waste products used, stored, |
14 | and produced by the facility, and a summary of all studies prepared and relied upon in connection |
15 | therewith. |
16 | Where applicable these descriptions and analysis shall include a review of current |
17 | independent, scientific research pertaining to electric and magnetic fields (EMF). The review shall |
18 | provide data assessing potential health risks associated with EMF exposure. For the purposes of |
19 | this chapter "prudent avoidance" shall refer to measures to be implemented in order to protect the |
20 | public from EMF exposure. |
21 | (4) All studies and forecasts, complete with the information, data, methodology, and |
22 | assumptions on which they are based, on which the applicant intends to rely in showing the need |
23 | for the proposed facility under the statewide master construction plan submitted annually. |
24 | (5) Complete detail as to the estimated construction cost of the proposed facility, the |
25 | projected maintenance and operation costs, estimated costs to the community such as safety and |
26 | public health issues, storm damage and power outages, estimated costs to businesses and |
27 | homeowners due to power outages, the estimated unit cost of energy to be produced by the proposed |
28 | facility, and expected methods of financing the facility. |
29 | (6) A detailed description of the short-term and long-term economic impacts associated |
30 | with constructing and operating the proposed project. |
31 | (6)(7) A complete life-cycle management plan for the proposed facility, including |
32 | measures for protecting the public health and safety and the environment during the facility's |
33 | normal and off-normal operations, including, but not limited to, plans for the handling and disposal |
34 | of wastes from the facility, and plans for the decommissioning of the facility at the end of its useful |
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1 | life. |
2 | (7)(8) A study of alternatives to the proposed facility, including alternatives as to energy |
3 | sources, methods of energy production, and sites for the facility, together with reasons for the |
4 | applicant's rejection of these alternatives. The study shall include estimates of facility cost and unit |
5 | energy costs of alternatives considered. |
6 | (b) When an application relates to a major generating facility, the application shall also |
7 | include at least the following, where applicable: |
8 | (1) All information and materials which, not set forth in this chapter, the applicant would |
9 | be required to submit to advisory agencies in order to apply for necessary permits, licenses, |
10 | variances, or assents, including, but not limited to, items required for major land development |
11 | submissions under §§ 45-23-40(a) and 45-23-41(a). |
12 | (2) Confirmation that the applicant met or attempted to meet with advisory agencies for |
13 | pre-application conferences held with state and municipal agencies, as set forth in § 42-98-8.1. |
14 | (3) Detailed description of applicant’s access to all necessary utilities, including, but not |
15 | limited to, water, sewer, electric, and gas. |
16 | (c) Each application shall be reviewed prior to docketing. |
17 | (b)(1) When an application relates to a major non-generating facility, the board shall |
18 | conduct a preliminary review to determine whether the application contains each item as required |
19 | by subsection (a) of this section. Within thirty (30) days of the filing of an applicant application |
20 | under this chapter, the board shall notify the applicant whether the application is in the form and |
21 | addresses the matters that are required by this section and the rules and regulations as are |
22 | promulgated pursuant to § 42-98-7. An application meeting these requirements shall then be |
23 | docketed. Any application deemed to be deficient shall be returned to the applicant, together with |
24 | a concise and explicit statement of the application's deficiencies. Within fifteen (15) days of the |
25 | resubmission of an application following a rejection for deficiency, the board shall either docket |
26 | the application together with specification of continuing deficiencies noted by the board, if any; or |
27 | shall issue a decision rejecting the application due to continuing deficiencies. |
28 | (2) When an application relates to a major generating facility, the board shall conduct a |
29 | preliminary review to determine whether the application contains each item as required by |
30 | subsections (a) and (b) of this section. The advisory agencies shall review the application and shall |
31 | advise the board in writing whether the application contains sufficient information and materials |
32 | for the purposes of issuing an advisory opinion to the board. The board may require the applicant |
33 | to provide public copies of the application to each advisory agency along with notification of the |
34 | advisory agency’s authority to advise the board of the application’s completeness pursuant to this |
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1 | chapter. Each advisory agency shall provide written comments to the board related to the |
2 | sufficiency of the application within sixty (60) days of receipt of the board's notification, or the |
3 | right to review the application for sufficiency shall be forfeited. Nothing contained herein shall be |
4 | construed as preventing any advisory agency from requesting additional information during the |
5 | siting process. Within seventy-five (75) days of the filing of an application under this chapter, the |
6 | board shall notify the applicant whether the application is in the form and addresses the matters that |
7 | are required by this section and the rules and regulations as are promulgated pursuant to § 42-98- |
8 | 7. An application meeting these requirements shall then be docketed. Any application deemed to |
9 | be deficient shall be returned to the applicant, together with a concise and explicit statement of the |
10 | application's deficiencies. Following the resubmission of an application after a rejection for |
11 | deficiency, the board shall coordinate with the advisory agencies to determine whether the |
12 | application’s deficiencies have been cured. The board shall then either docket the application |
13 | together with specification of continuing deficiencies, if any, or shall issue a decision rejecting the |
14 | application due to continuing deficiencies. |
15 | 42-98-9. Applications -- Procedures for review -- Preliminary hearing. |
16 | (a) Within sixty (60) days following the board's docketing of an application the board shall, |
17 | on not less than forty-five (45) days' notice to all agencies, subdivisions of the state, and the public, |
18 | convene a preliminary hearing on the application to determine the issues to be considered by the |
19 | board in evaluating the application, and to designate those agencies of state government and of |
20 | political subdivisions of the state which shall act at the direction of the board for the purpose of |
21 | rendering advisory opinions on these issues, and to determine petitions for intervention. |
22 | (b) The board shall consider as issues in every proceeding the ability of the proposed |
23 | facility to meet the requirements of the laws, rules, regulations, and ordinances under which, absent |
24 | this chapter, the applicant would be required to obtain a permit, license, variance, or assent. The |
25 | agency of state government or of a political subdivision of the state which, absent this chapter, |
26 | would have statutory authority to grant or deny the permit, license, variance, or assent, shall |
27 | function at the direction of the board for hearing the issue and rendering an advisory opinion |
28 | thereon. |
29 | (c) The board shall may limit the scope of any agency's investigation where it finds that |
30 | more than one agency has jurisdiction over a matter at issue in the licensing process. In these |
31 | instances, the board shall may determine which agency shall make the necessary findings on the |
32 | issue after giving proper consideration to the expertise and resources available to each of the |
33 | agencies involved. |
34 | (d) The public utilities commission shall conduct an investigation in which the division of |
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1 | planning of the department of administration, the governor's office of energy assistance and the |
2 | division of public utilities and carriers shall participate and render an advisory opinion as to the |
3 | need for the proposed facility. |
4 | (e) The statewide planning program within the department of administration shall conduct |
5 | an investigation and render an advisory opinion as to the socio-economic impact of the proposed |
6 | facility and its construction and consistency with the state guide plan, and consistency with the |
7 | municipal comprehensive plan for the host community. |
8 | (f) When the subject of the application is a major generating facility, the zoning, planning, |
9 | and building departments of the host community shall conduct investigations and render advisory |
10 | opinions as to consistency with the municipal comprehensive plan, the potential impact of the |
11 | proposed facility on local services and infrastructure, and the potential impact on all public and |
12 | private property located within three (3) miles of the proposed site bounds. |
13 | (g) Any town or city council may submit to the board a resolution setting forth the council’s |
14 | support or opposition to a proposed project. |
15 | (h) Nothing contained herein shall be construed as preventing the board from requesting |
16 | additional advisory opinions. |
17 | (f)(i) A decision of the board under this section shall be issued within thirty (30) days |
18 | following the conclusion of the preliminary hearing and in any event within forty-five (45) days of |
19 | the commencement of the hearing. |
20 | 42-98-9.1. Public notice and hearings on construction projects in cities and towns |
21 | affected. |
22 | (a) Upon receiving a utility company application the board shall immediately notify, in |
23 | writing, the councils of the towns and cities affected by the construction. |
24 | (b) The When the subject of the application is a major non-generating facility, the board |
25 | shall have at least one public hearing in each town or city affected the host community prior to |
26 | holding its own hearings and prior to taking final action on the application. All details of acceptance |
27 | for filing in § 42-98-8(a)(1) -- (a)(6) shall be presented at town or city hearings for public comment. |
28 | When the subject of the application is a facility for the generation of electricity, or are new facilities |
29 | for the transmission of electricity, the town or city where the proposed facility would be located |
30 | may request funding from the applicant to perform studies of the local environmental effects of the |
31 | proposed facility. The expense of those studies shall not exceed the lesser of one hundred thousand |
32 | dollars ($100,000) or one-tenth percent (.1%) of the estimated capital cost of the proposed facility |
33 | located in such city or town. If the applicant contests the relevance of the requested study, or |
34 | believes it to be redundant with studies already performed, the applicant may request a ruling from |
| LC004988 - Page 10 of 16 |
1 | the board whether the study is necessary and reasonably expected to produce relevant information. |
2 | The board's ruling shall be conclusive and final, and shall not be the basis for an interlocutory |
3 | appeal, injunction or otherwise delay the board's processing of the application. |
4 | (c) When the subject of the application is a major generating facility, the board shall have |
5 | at least three (3) public hearings in the host community prior to holding its own hearings and prior |
6 | to taking final action on the application. All details of acceptance for filing in § 42-98-8(a) and (b) |
7 | shall be presented at public hearings for public comment. The host community where the proposed |
8 | generating facility would be located may request funding from the applicant to perform studies of |
9 | the local environmental effects of the proposed facility. The expense of those studies shall not |
10 | exceed the greater of one hundred fifty thousand dollars ($150,000) or one-tenth percent (.1%) of |
11 | the estimated capital cost of the proposed facility. The applicant shall also pay any and all fees and |
12 | expenses reasonably incurred by the host community to fully participate in the facility siting |
13 | process and local review, including, but not limited to, fees and expenses for legal counsel, expert |
14 | evaluations, transcripts and other costs associated with the energy facility siting process. If the |
15 | applicant contests any fee or expense as unrelated or unreasonable, the applicant may request a |
16 | ruling from the board whether the fee or expense is related and reasonable. The board's ruling shall |
17 | be conclusive and final and shall not be the basis for an interlocutory appeal, injunction or otherwise |
18 | delay the board's processing of the application. |
19 | (c)(d) The applicant shall notify the citizens in towns and cities affected thirty (30) days |
20 | prior to public meetings through local papers. |
21 | (d)(e) The applicant shall notify abutting land the following property owners individually, |
22 | in writing, thirty (30) days prior to the hearings, by certified mail, postage prepaid: |
23 | (1) For applications related to major non-generating facilities, applicants shall notify all |
24 | property owners whose property is located within three hundred feet (300’) from the limit of |
25 | disturbance of the proposed project or the centerline of a proposed linear project; and |
26 | (2) For applications related to major generating facilities, applicants shall notify all |
27 | property owners whose property is located within two (2) miles from the proposed site boundaries. |
28 | (e)(f) Public input shall be a part of the decision making process. |
29 | 42-98-10. Agency procedures -- Advisory opinion. |
30 | (a) Each agency of the state or political subdivision of the state designated under § 42-98- |
31 | 9 shall proceed to consider the issue or issues consigned to it for review. Each advisory agency |
32 | shall conclude its consideration and issue its advisory opinion not more than six (6) months |
33 | following its designation under § 42-98-9 and receipt of all application materials, or any lesser time |
34 | that the board may require, or the right to exercise the function shall be forfeited to the board. The |
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1 | board may suspend an application proceeding where an applicant fails to provide requested relevant |
2 | information or materials to an advisory agency in a timely manner. |
3 | (b) Advisory opinions issued by agencies designated under § 42-98-9 shall not be |
4 | considered as final decisions of the agencies making the opinions, and shall not be subject to |
5 | judicial review under § 42-35-15, or any other provision of the general laws. |
6 | (c) Advisory opinions issued by zoning boards of review, building inspectors, or any other |
7 | agency of a municipality designated under § 42-98-9 shall not be reviewable by the public utilities |
8 | commission under § 39-1-30. |
9 | (d) Failure or refusal of the applicant to provide requested information may be considered |
10 | as grounds for recommending denial. |
11 | (e) At the request of the siting board, the director of environmental management and the |
12 | coastal resources management council shall give priority to the review of permits for energy |
13 | facilities. |
14 | 42-98-11. Final hearing -- Standards -- Decisions. |
15 | (a) Within forty-five (45) days after the final date for submission of advisory opinions |
16 | pursuant to § 42-98-10, the board shall convene the final hearing on the application. The purpose |
17 | of this the final hearing shall not be to rehear the evidence which was presented previously in |
18 | hearings before agencies designated under § 42-98-9, but rather to provide the applicant, |
19 | intervenors, the public, and all other parties in the proceeding, the opportunity to address in a single |
20 | forum, and from a consolidated, statewide prospective, the issues reviewed, and the |
21 | recommendations made in the proceedings before the agencies designated under § 42-98-9. The |
22 | board at this hearing may, at its discretion, allow the presentation of new evidence by any party as |
23 | to the issues considered by the agencies designated under § 42-98-9. The board may limit the |
24 | presentation of repetitive or cumulative evidence. The final hearing shall proceed on not less than |
25 | thirty (30) days' notice to the parties and the public, shall be concluded not more than sixty (60) |
26 | days following its initiation, and shall be conducted expeditiously. |
27 | (b) The board shall issue a decision granting a license only upon finding that the applicant |
28 | has shown that: |
29 | (1) Construction of the proposed facility is necessary to meet the needs of the state and/or |
30 | region for energy of the type to be produced by the proposed facility. |
31 | (2) The proposed facility is cost-justified, and can be expected to produce energy at the |
32 | lowest reasonable cost to the consumer consistent with the objective of ensuring that the |
33 | construction and operation of the proposed facility will be accomplished in compliance with all of |
34 | the requirements of the laws, rules, regulations, and ordinances, under which, absent this chapter, |
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1 | a permit, license, variance, or assent would be required, or that consideration of the public health, |
2 | safety, welfare, security and need for the proposed facility justifies a waiver of some part of the |
3 | requirements when compliance cannot be assured. |
4 | (3) The proposed facility will not cause unacceptable harm to the environment and will |
5 | enhance the socio-economic fabric of the state. |
6 | (c) For multiple applications related to a single project, the board shall consider the |
7 | cumulative impacts of the related applications. |
8 | (c)(d) Within sixty (60) days of the conclusion of the final hearing the board shall issue its |
9 | final decision on the application. A decision in favor of the application shall constitute a granting |
10 | of all permits, licenses, variances, or assents, which under any law, rule, regulation, or ordinance |
11 | of the state or of a political subdivision thereof which would, absent this chapter, be required for |
12 | the proposed facility. The decision may be issued requiring any modification or alteration of the |
13 | proposed facility, and may be issued on any condition the board deems warranted by the record, |
14 | and may be issued conditional upon the applicant's receipt of permits required by federal law. The |
15 | board's decision shall explicitly address each of the advisory opinions received from agencies, and |
16 | the board's reasons for accepting, rejecting, or modifying, in whole or in part, any of those advisory |
17 | opinions. The board’s decision shall take into consideration any town or city council resolution |
18 | regarding the application. The board shall, within ten (10) days of granting a license, with or |
19 | without conditions, deliver the decision to the governor, the speaker of the Rhode Island house of |
20 | representatives, and the president of the Rhode Island senate. |
21 | 42-98-16. Violations. |
22 | (a) Failure to comply with any promulgated board rule, regulation, requirement or |
23 | procedure for the licensing of energy facilities shall constitute grounds for suspension or dismissal, |
24 | with or without prejudice in its discretion, of licensing proceedings, provided that the applicant |
25 | shall have a reasonable opportunity to show cause for and remedy the lack of compliance. |
26 | (b) Failure to comply with any provision, condition or limitation contained in a board |
27 | license to site, build, or alter a major energy facility and/or failure to comply with a board cease |
28 | and desist order and/or a board order to remedy a non-complying action shall be grounds for |
29 | suspension or revocation of the license, and/or shall be punishable by a fine of not more than twenty |
30 | thousand dollars ($20,000). Each day of continuing noncompliance shall be considered a separate |
31 | violation and so punished. |
32 | (c) The board may require the licensee to maintain those records as are reasonable and |
33 | necessary to monitor compliance with license provisions, and shall have the authority to enter onto |
34 | the property of licensees to investigate complaints of noncompliance and to perform routine |
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1 | inspections. |
2 | (d) The board may designate officials or staff of any state agencies as its agents for the |
3 | purposes of investigating complaints, performing routine maintenance functions and issuing |
4 | written cease and desist orders. |
5 | (e) Nothing in this chapter shall preclude a host community from enforcing municipal |
6 | ordinances, levying fines, or pursuing any other legally available enforcement remedies, unless |
7 | such ordinances are in direct conflict with a certificate or license issued by the board. |
8 | SECTION 2. Chapter 42-98 of the General Laws entitled "Energy Facility Siting Act" is |
9 | hereby amended by adding thereto the following sections: |
10 | 42-98-5.1. Hearing officers. |
11 | (a) The board may appoint a hearing officer to conduct hearings related to a major non- |
12 | generating facility. Hearing officers shall not be appointed to conduct hearings related to a major |
13 | generating facility. |
14 | (b) A hearing officer shall be an attorney licensed to practice law in this state. |
15 | (c) A hearing officer shall be reasonably compensated for their services to the board, either |
16 | through contract or, if the hearing officer is a state employee, through a transfer to the state agency |
17 | or department by whom the attorney is normally employed. |
18 | (d) Following the completion of the hearing, the hearing officer shall file their findings and |
19 | recommended decision in writing with the board. The board may accept, reject, or modify, in whole |
20 | or in part, the hearing officer’s findings and recommended decision. The hearing officer’s findings |
21 | and recommended decision shall become effective and shall have the same force and effect as a |
22 | decision of the board. If the board rejects or modifies the hearing officer’s findings or recommended |
23 | decision, then the board shall decide the matter independently and issue an order of the board with |
24 | its findings and decision. |
25 | 42-98-7.1. Public advocate. |
26 | (a) Consistent with the attorney general’s constitutional and statutory authority to advocate |
27 | for and on behalf of the citizens of Rhode Island, the attorney general shall appoint attorney(s) |
28 | licensed to practice law in this state to serve as public advocates regarding energy facility siting |
29 | matters. |
30 | (b) The board shall notify the attorney general when an application has been accepted and |
31 | docketed by the board, and the public advocate may intervene as a matter of right in any proceeding |
32 | before the board. |
33 | (c) The public advocate shall represent the citizens of Rhode Island as the attorney general |
34 | may direct. The public advocate shall be accorded all the rights, privileges, and responsibilities of |
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1 | an attorney representing a party before the board. |
2 | (d) The public advocate shall be reasonably compensated for the advocate's services to the |
3 | board. Fees for compensation of the public advocate, including fees for expert witnesses, if any, |
4 | shall be paid by the applicant through the board’s assessment process. |
5 | (e) No provision of this chapter shall derogate from the common law or statutory authority |
6 | of the attorney general nor shall any provision be construed as a limitation on the common law or |
7 | statutory authority of the attorney general. |
8 | (f) No provision of this chapter shall be construed as preventing individuals or entities from |
9 | being represented by counsel of their own choosing at their own expense. |
10 | 42-98-8.1. Pre-application requirements -- Major generating facility. |
11 | (a) At least sixty (60) days prior to filing an application for a major generating facility, the |
12 | applicant shall meet with the board coordinator or designee to review the contents of the application |
13 | and arrange for the completion of all pre-filing and filing requirements of the board, including |
14 | information necessary to bill the applicant for costs related to the board’s review process. |
15 | (b) At least sixty (60) days prior to filing an application for a major generating facility, the |
16 | applicant shall meet with each advisory agency for one or more pre-application conferences, as the |
17 | term is defined in § 45-23-32. |
18 | (1) During pre-application conferences, the applicant shall meet with appropriate officials |
19 | and staff for advice as to the required steps in the approval process, pertinent local plans, |
20 | ordinances, regulations, rules, procedures, and standards which may bear upon the proposed |
21 | facility. Consistent with § 45-23-35, pre-application conferences shall encourage information |
22 | sharing, discussion of project concepts, and provide guidance to the applicant. |
23 | (2) Prior to pre-application conferences, the applicant shall submit general, conceptual |
24 | materials, as requested by officials and staff. |
25 | (c) At least thirty (30) days prior to filing an application for a major generating facility, an |
26 | applicant shall hold an advertised public information session in each municipality in which all or a |
27 | portion of the proposed facility is or shall be located to present information on the proposed project |
28 | and provide an opportunity for comments and answer questions from the public. |
29 | SECTION 3. This act shall take effect upon passage. |
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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 | |
*** | |
1 | This act would increase the membership of the energy facility siting board from three (3) |
2 | to five (5) members and would revise the process of energy facility siting to mandate inclusion and |
3 | participation of the public and cities and towns. This act would allow the appointment of hearing |
4 | officers and public advocates and would require pre-application conferences. |
5 | This act would take effect upon passage. |
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