Revision: June 11, 2009, midnight
CHAPTER 65
HB 55 – FINAL VERSION
04Mar2009… 0319h
2009 SESSION
06/09
HOUSE BILL 55
AN ACT relative to energy facility siting construction and operation.
COMMITTEE: Science, Technology and Energy
This bill removes references to bulk power facilities from the energy facilities to be considered by the site evaluation committee and makes certain modifications to the membership and procedures of the committee.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
04Mar2009… 0319h
09-0096
06/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT relative to energy facility siting construction and operation.
Be it Enacted by the Senate and House of Representatives in General Court convened:
65:1 Purpose Statement. RSA 162-H:1 is repealed and reenacted to read as follows:
162-H:1 Declaration of Purpose. The legislature recognizes that the selection of sites for energy facilities, including the routing of high voltage transmission lines and energy transmission pipelines, will have a significant impact upon the welfare of the population, the location and growth of industry, the overall economic growth of the state, the environment of the state, and the use of natural resources. Accordingly, the legislature finds that it is in the public interest to maintain a balance between the environment and the need for new energy facilities in New Hampshire; that undue delay in the construction of needed facilities be avoided and that full and timely consideration of environmental consequences be provided; that all entities planning to construct facilities in the state be required to provide full and complete disclosure to the public of such plans; and that the state ensure that the construction and operation of energy facilities is treated as a significant aspect of land-use planning in which all environmental, economic, and technical issues are resolved in an integrated fashion, all to assure that the state has an adequate and reliable supply of energy in conformance with sound environmental principles. The legislature, therefore, hereby establishes a procedure for the review, approval, monitoring, and enforcement of compliance in the planning, siting, construction, and operation of energy facilities.
65:2 Definitions. Amend RSA 162-H:2, II-a to read as follows:
II-a. “Certificate” or “certificate of site and facility” means the document issued by the committee, containing such terms and conditions as the committee deems appropriate, that authorizes the applicant to proceed with the proposed site and facility.
65:3 Definitions. Amend RSA 162-H:2, VII to read as follows:
VII. “Energy facility” means:
(a) Any industrial structure[, other than bulk power supply facilities, as defined in paragraph II,] that may be used substantially to extract, produce, manufacture, transport or refine sources of energy, including ancillary facilities as may be used or useful in transporting, storing or otherwise providing for the raw materials or products of any such industrial structure. This shall include but not be limited to industrial structures such as oil refineries, gas plants, equipment and associated facilities designed to use any, or a combination of, natural gas, propane gas and liquefied natural gas, which store on site a quantity to provide 7 days of continuous operation at a rate equivalent to the energy requirements of a 30 megawatt electric generating station and its associated facilities, plants for coal conversion [and], onshore and offshore loading and unloading facilities for energy sources[. Energy facility shall also include] and energy transmission pipelines[, storage tanks, or any other facility which the applicant or 2 or more petition categories as defined in RSA 162-H:2, XI request and the committee agrees, or which the committee determines requires a certificate, consistent with the findings and purposes set forth in RSA 162-H:1] that are not considered part of a local distribution network.
(b) Electric generating station equipment and associated facilities designed for, or capable of, operation at any capacity of 30 megawatts or more.
(c) An electric transmission line of design rating of 100 kilovolts or more, associated with a generating facility under subparagraph (b), over a route not already occupied by a transmission line or lines.
(d) An electric transmission line of a design rating in excess of 100 kilovolts that is in excess of 10 miles in length, over a route not already occupied by a transmission line.
(e) A new electric transmission line of design rating in excess of 200 kilovolts.
(f) A renewable energy facility.
(g) Any other facility and associated equipment that the committee determines requires a certificate, consistent with the findings and purposes of RSA 162-H:1, either on its own motion or by petition of the applicant or 2 or more petitioners as defined in RSA 162-H:2, XI.
65:4 Definitions. Amend RSA 162-H:2, XI(c) to read as follows:
(c) A petition endorsed by the [board of selectmen] governing body of the host community or 2 or more [boards of selectmen] governing bodies of abutting communities.
65:5 Site Evaluation Committee. Amend RSA 162-H:3 to read as follows:
162-H:3 Site Evaluation Committee. The site evaluation committee shall consist of the commissioner of the department of environmental services or assistant commissioner as designee, the director of the division of water, the commissioner of the department of resources and economic development or the director of the division of economic development as designee, the commissioner of the department of health and human services or one of the 2 most senior administrators within the department responsible for management of public health services as designee, the executive director of the fish and game department, the director of the office of energy and planning or deputy director as designee, the director of the division of parks and recreation, the director of the division of forests and lands, the director of the division of air resources, the commissioner of the department of transportation or assistant commissioner as designee, the commissioners of the public utilities commission, [and] a staff engineer designated by the commissioners of the public utilities commission, and the commissioner of the department of cultural resources or director of the division of historical resources as designee. The commissioner of the department of environmental services shall be chairperson of the committee, and the chairperson of the public utilities commission shall be vice-chairperson.
65:6 Powers of the Committee. Amend RSA 162-H:4, I(a)-(c) to read as follows:
(a) Issue any certificate under this chapter [in the case of] for an energy facility[, or forward its findings to the commission in the case of a bulk power supply facility].
(b) Determine the terms and conditions of any certificate [or findings] issued under this chapter[, subject to RSA 162-H:10].
(c) Monitor the construction and operation of any energy [or bulk power] facility granted a certificate under this chapter.
65:7 Powers of the Committee. Amend RSA 162-H:4, IV to read as follows:
IV. In cases where the committee determines that other existing statutes provide adequate protection of the objectives of RSA 162-H:1, the committee may, within 60 days of [filing] acceptance of the application, or filing of a request for exemption with sufficient information to enable the committee to determine whether the proposal meets the requirements set forth below, and after holding a public informational hearing in a county where the energy facility is proposed, exempt the applicant from the approval and certificate provisions of this chapter, provided that the following requirements are met:
(a) Existing state or federal statutes, state or federal agency rules or municipal ordinances provide adequate protection of the objectives of RSA 162-H:1;
(b) A review of the application or request for exemption reveals that consideration of the [application] proposal by only selected agencies represented on the committee is required and that the objectives of RSA 162-H:1 can be met by those agencies without exercising the provisions of RSA 162-H;
(c) Response to the application or request for exemption from the general public indicates that the objectives of RSA 162-H:1 are met through the individual review processes of the participating agencies; and
(d) All environmental impacts or effects are adequately regulated by other federal, state, or local statutes, rules, or ordinances.
65:8 Powers of the Committee. RSA 162-H:4, V is repealed and reenacted to read as follows:
V. Once an energy facility application has been accepted, the chairperson may designate a subcommittee of no fewer than 7 members that shall consider such application. The subcommittee shall include the chairperson or the vice-chairperson of the committee, and at least 3 members selected from among the department of environmental services, the department of resources and economic development, and the fish and game department. With the exception of the chairperson or vice-chairperson, each member of the committee may designate an employee from his or her agency to assume his or her responsibilities as a subcommittee member for the purposes of this paragraph, provided that such designee shall be a senior administrator within the agency, department, or division that the member represents under RSA 162-H:3. The chairperson may designate the assistant commissioner of the department of environmental services to assume his or her responsibilities as a subcommittee member for the purposes of this paragraph. For purposes of statutory interpretation and executing the regulatory functions of this chapter, the subcommittee shall assume the role of and be considered the committee, with all of its associated powers and duties.
65:9 Prohibitions and Restrictions. Amend RSA 162-H:5, I to read as follows:
I. No person shall commence to construct any [bulk power or] energy facility within the state unless it has obtained a certificate pursuant to this chapter. Such facilities shall be constructed, operated and maintained in accordance with the terms of the certificate. Such certificates are required for sizeable changes or additions to existing facilities. Such a certificate shall not be transferred or assigned without approval of the committee.
65:10 New Paragraph; Time Frames for Review of Renewable Energy Facilities. Amend RSA 162-H:6-a by inserting after paragraph IX the following new paragraph:
X. The provisions of this section shall take precedence over any other provision of this chapter if there is a conflict.
65:11 Application for Certificate. Amend RSA 162-H:7, II and III to read as follows:
II. All applications for a certificate for an energy facility shall be filed with the chairman of the site evaluation committee. [Applications shall include each individual agency’s completed application forms.]
III. Upon filing of an application, the committee shall expeditiously conduct a preliminary review to ascertain if the application contains sufficient information [in accordance with this section] to carry out the purposes of this chapter. If the application does not contain such sufficient information, the committee shall, in writing, expeditiously notify the applicant of that fact and specify what information the applicant must supply.
65:12 Application for Certificate. Amend RSA 162-H:7, VI to read as follows:
VI. The committee shall decide whether or not to accept the application within 60 days of filing. If the committee rejects [the] an application because it determines it to be administratively incomplete, the applicant may choose to file a new and more complete application or cure the defects in the rejected application within 10 days of receipt of notification of rejection.
65:13 New Paragraphs; Application for Certificate. Amend RSA 162-H:7 by inserting after paragraph VI the following new paragraphs:
VI-a. Within 30 days after acceptance of the application, the committee shall hold at least one public hearing in each county in which the proposed facility is to be located, in accordance with RSA 162-H:10.
VI-b. All participating state agencies shall report their progress to the committee within 5 months of the acceptance of the application, outlining draft permit conditions and specifying additional data requirements necessary to make a final decision.
VI-c. All participating state agencies shall make and submit to the committee a final decision on the parts of the application that relate to its jurisdiction, no later than 8 months after the application has been accepted.
VI-d. Within 9 months of the acceptance of an application, the committee shall issue or deny a certificate for an energy facility.
VI-e. Notwithstanding any other provision of this chapter, the committee shall employ the time frames specified under RSA 162-H:6-a to any proposal for the upgrade of the transmission system considered part of the Coos county loop.
65:14 Public Hearing; Studies; Rules. Amend RSA 162-H:10 to read as follows:
162-H:10 Public Hearing; Studies; Rules.
I. Within 30 days after acceptance of an application for a certificate of site and facility, pursuant to RSA 162-H:7, the site evaluation committee [and, if a bulk power supply facility application, the commission,] shall hold at least one joint public hearing in each county in which the proposed facility is to be located and shall publish a public notice not less than 14 days before said hearing in one or more newspapers having a regular circulation in the county in which the hearing is to be held, describing the nature and location of the proposed facilities. The public hearings shall be joint hearings, with representatives of the other agencies that have jurisdiction over the subject matter and shall be deemed to satisfy all initial requirements for public hearings under statutes requiring permits relative to environmental impact. The hearings shall be for public information on the proposed facilities with the applicant presenting the information to the site evaluation committee and to the public. Notwithstanding any other provision of law, the hearing shall be a joint hearing with the other state agencies and shall be in lieu of all hearings otherwise required by any of the other state agencies; provided, however, if any of such other state agencies does not otherwise have authority to conduct hearings, it may not join in the hearing under this chapter; provided further, however, the ability or inability of any of the other state agencies to join shall not affect the composition of the committee under RSA 162-H:3 nor the ability of any member of the committee to act in accordance with this chapter.
II. Except for informational hearings, subsequent hearings shall be in the nature of adjudicative proceedings under RSA 541-A and may be held in the county or one of the counties in which the proposed facility is to be located or in Concord, New Hampshire, as determined by the site evaluation committee. The committee shall give adequate public notice of the time and place of each subsequent session.
III. The site evaluation committee [and, if a bulk power supply facility application, the commission,] shall consider and weigh all evidence presented at public hearings and shall consider and weigh written information and reports submitted to it by members of the public before, during, and subsequent to public hearings. The committee [and the commission] shall grant free access to records and reports in its files to members of the public during normal working hours and shall permit copies of such records and reports to be made by interested members of the public at their expense.
IV. The site evaluation committee [and, if a bulk power supply facility application, the commission,] shall require from the applicant whatever information it deems necessary to assist in the conduct of the hearings, and any investigation or studies it may undertake, and in the determination of the terms and conditions of any certificate under consideration.
V. The site evaluation committee and counsel for the public [and, if a bulk power supply facility application, the commission,] shall jointly conduct such reasonable studies and investigations as they deem necessary or appropriate to carry out the purposes of this chapter and may employ a consultant or consultants, legal counsel and other staff in furtherance of the duties imposed by this chapter, the cost of which shall be borne by the applicant in such amount as may be approved by the committee [in the case of an energy facility, or the committee and the commission in the case of a bulk power supply facility]. The site evaluation committee[, the commission,] and counsel for the public[, as provided for by RSA 162-H:9,] are further authorized to assess the applicant for all travel and related expenses associated with the processing of an application under this chapter.
VI. The site evaluation committee [and, if a bulk power supply facility application, the commission,] shall [jointly] issue such rules to administer this chapter, pursuant to RSA 541-A, after public notice and hearing, as may from time to time be required.
time to time be required.
65:15 New Paragraph; Enforcement. Amend RSA 162-H:12 by inserting after paragraph III the following new paragraph:
IV. Notwithstanding any other provision of this chapter, each of the other state agencies having jurisdiction shall retain all of its powers and duties of enforcement.
65:16 Temporary Suspension of Deliberations. Amend RSA 162-H:14, I to read as follows:
I. If the site evaluation committee at any time during its deliberations relative to an application for a certificate deems it to be in the public interest, it may temporarily suspend its deliberations and time frame established under RSA 162-H:[6] 7.
65:17 Informational Meetings. Amend RSA 162-H:15 to read as follows:
162-H:15 Informational Meetings. Upon request of the governing body of a community in which the proposed facility is to be located, or upon request of the committee, the applicant shall provide informational meetings to inform the public of the proposed project.
65:18 Findings and Certificate Issuance. Amend the section heading of RSA 162-H:16 to read as follows:
162-H:16 Findings and Certificate Issuance.
65:19 Findings and Certificate Issuance. Amend RSA 162-H:16, I to read as follows:
I. The committee shall incorporate in any certificate [or findings issued hereunder] such terms and conditions as may be specified to the committee by any of the other state agencies having jurisdiction, under state or federal law, to regulate any aspect of the construction or operation of the proposed facility; provided, however, the committee shall not issue any certificate under this chapter if any of the other state agencies denies authorization for the proposed activity over which it has jurisdiction. The denial of any such authorization shall be based on the record and explained in reasonable detail by the denying agency. [Notwithstanding any other provision of law, each of the other state agencies shall make and submit to the committee a final decision on the parts of the application that relate to its jurisdiction no later than 8 months after acceptance of the application. Notwithstanding any other provision of this section or this chapter, each of the other state agencies shall retain all of its powers and duties of enforcement.]
65:20 Findings. RSA 162-H:16, II is repealed and reenacted to read as follows:
II. Any certificate issued by the site evaluation committee shall be based on the record. The decision to issue a certificate in its final form or to deny an application once it has been accepted shall be made by a majority of the full membership. A certificate shall be conclusive on all questions of siting, land use, air and water quality.
65:21 Findings and Certificate Issuance. Amend RSA 162-H:16, III and the introductory paragraph of IV, to read as follows:
III. The committee [and, in the case of a bulk power certificate, the commission] may consult with interested regional agencies and agencies of border states in the consideration of certificates.
IV. [In the case of energy and bulk power facilities,] The site evaluation committee, after having considered available alternatives and fully reviewed the environmental impact of the site or route, and other relevant factors bearing on whether the objectives of this chapter would be best served by the issuance of the certificate, must find that the site and facility:
65:22 Penalties. Amend RSA 162-H:19, II to read as follows:
II. Any construction or operation of [bulk power supply or] energy facilities in violation of this chapter, or in material violation of the terms and conditions of a certificate issued under this chapter, may result in an assessment by the superior court of civil damages not to exceed $10,000 for each day in violation.
65:23 Endangered Species Conservation Act; Exemptions and Restrictions. Amend RSA 212-A:13, III to read as follows:
III. The provisions of RSA 212-A or any rule promulgated under this chapter shall not interfere in any way with the siting or construction of any [bulk power supply facility or any] energy facility as defined in RSA 162-H:2.
65:24 Repeal. The following are repealed:
I. RSA 162-H:2, II, relative to the definition of bulk power supply facilities.
II. RSA 162-H:2, IV, relative to the definition of commission.
III. RSA 162-H:2, X, relative to the definition of public utility or utility.
IV. RSA 162-H:2, X-a, relative to the definition of petition.
V. RSA 162-H:5, IV, relative to prohibitions and restrictions.
VI. RSA 162-H:6, relative to time frames.
VII. RSA 162-H:7, I, relative to application for certificate.
VIII. RSA 162-H:14, II, relative to temporary suspension of deliberations.
IX. RSA 162-H:16, IV(d) and V, relative to findings of the site evaluation committee.
X. RSA 162-H:17, relative to bulk power facility plans.
XI. RSA 162-H:18, relative to review; hearing.
65:25 Effective Date. This act shall take effect 60 days after its passage.
Approved: June 9, 2009
Effective Date: August 8, 2009