2021 -- S 0759

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LC000328

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2021

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A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT - ENERGY FACILITY SITING

ACT

     Introduced By: Senators Miller, Calkin, Kallman, Murray, DiMario, and Euer

     Date Introduced: April 01, 2021

     Referred To: Senate Environment & Agriculture

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 42-98-3, 42-98-8, 42-98-11 and 42-98-16 of the General Laws in

Chapter 42-98 entitled "Energy Facility Siting Act" are hereby amended to read as follows:

     42-98-3. Definitions.

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

subdivision of the state.

     (b) "Alteration" means a significant modification to a major energy 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."

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

     (d) "Major energy facility" means 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; transmission lines of sixty-nine (69) Kv or over;

facilities for the conversion, gasification, treatment, transfer, or storage of liquefied natural and

liquefied petroleum gases; facilities for the processing, enrichment, storage, or disposal of nuclear

fuels or nuclear byproducts; facilities for the refining of oil, gas, or other petroleum products;

facilities of ten (10) megawatts or greater capacity for the generation of electricity by water power,

and facilities associated with the transfer of oil, gas, and coal via pipeline; any energy facility

project of the Rhode Island economic development corporation; 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.

     (e) "Fossil fuel facility" means an electricity generating facility that uses as its primary or

secondary fuel, natural gas, coal, petroleum, any petroleum distillate, or any combination of those

fuels.

     (f) "Major energy facility" means 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; transmission lines of sixty-nine (69) Kv or over;

facilities for the conversion, gasification, treatment, transfer, or storage of liquefied natural and

liquefied petroleum gases; facilities for the processing, enrichment, storage, or disposal of nuclear

fuels or nuclear byproducts; facilities for the refining of oil, gas, or other petroleum products;

facilities of ten (10) megawatts or greater capacity for the generation of electricity by water power,

and facilities associated with the transfer of oil, gas, and coal via pipeline; any energy facility

project of the Rhode Island economic development corporation; 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.

     (g) "Renewable energy facility" means an electricity generating unit located within the

state and which is a renewable energy resource as defined in § 39-26-5.

     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 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 complete plans as to all structures, including underground construction and

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

     In the case of a fossil fuel facility, a plan shall include provisions to construct or invest in

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one or more renewable energy facilities in conjunction with construction and operation of the

proposed fossil fuel facility. The aggregate estimated cost or investment in one or more renewable

energy facilities shall be equal to no less than twenty percent (20%) of the estimated cost of the

fossil fuel facility.

     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.

     (3) 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) 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) 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) A complete life-cycle management plan for the proposed facility, including measures

for protecting the public health and safety and the environment during the facility's operations,

including plans for the handling and disposal of wastes from the facility, and plans for the

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

     (7) 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. The study shall include estimates of facility cost and unit

energy costs of alternatives considered.

     (b) Within thirty (30) days of the filing of an applicant under this chapter, 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 requirements shall then be docketed. Any application deemed to be

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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.

     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 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 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 hearing shall proceed on not less than thirty (30) days' notice to the

parties and the public, 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 and will

enhance the socio-economic fabric of the state.

     (4) In the case of an application for permitting of a fossil fuel facility, the applicant has

complied with § 42-98-8. The board shall not approve the fossil fuel facility application unless and

until:

     (i) The applicant's plan for the construction of one or more renewable energy facilities, as

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the board in its discretion may modify, change, or amend, has been approved;

     (ii) The applicant has satisfied the renewable energy facilities investment of § 42-98-8; or

     (iii) In lieu of building or investing in one or more renewable energy facilities, and at the

applicant's sole election, the applicant may pay an amount equal to twenty-five percent (25%) of

the actual cost of the fossil fuel facility into the renewable energy development fund as established

by § 39-26-7. A payment equal to at least twelve and five-tenths percent (12.5%) of the estimated

cost of the fossil fuel facility shall be made prior to the commencement of construction. The second

payment equal to the remainder of twenty-five percent (25%) of the actual costs of the fossil fuel

facility shall be paid within forty-five (45) days of the commercial operation date of the fossil fuel

facility as determined by the Independent System Operator-New England or successor entity

regulated by the Federal Energy Regulatory Commission.

     (c) 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, 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. The board shall, within ten (10) days of granting a license, with or without conditions,

deliver the decision to the speaker of the Rhode Island house of representatives, and the president

of the Rhode Island senate.

     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 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). Each day of continuing noncompliance shall be considered a separate

violation and so punished.

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     (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 revoke a fossil fuel facility license already granted, in the event of a

willful failure of a licensee to comply with the construction or investment in renewable energy

facilities, or, in the alternative, the failure to make payment to the renewable energy development

fund pursuant to § 42-98-11. The applicant/licensee shall be provided notice and a hearing prior to

revocation. The applicant/licensee shall be afforded a reasonable opportunity to cure a willful

failure not to exceed one hundred eighty (180) days following notice and hearing before revocation

of license.

     (d)(e) 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.

     SECTION 2. This act shall take effect upon passage.

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LC000328

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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

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     This act would provide that applicants/licensees for fossil fuel electricity generating

facilities invest in renewable energy facilities in conjunction with the fossil fuel facility

construction.

     This act would take effect upon passage.

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