Revision: Dec. 16, 2011, midnight
SB 264 – AS INTRODUCED
2012 SESSION
09/04
SENATE BILL 264
AN ACT relative to energy facility site evaluations.
SPONSORS: Sen. Odell, Dist 8; Rep. Bettencourt, Rock 4
COMMITTEE: Energy and Natural Resources
This bill makes changes in the site evaluation process for energy facilities.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
12-2988
09/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twelve
AN ACT relative to energy facility site evaluations.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Definitions; Energy Facility. Amend RSA 162-H:2, VII(c) to read as follows:
(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. Electric transmission lines with a design rating of less than 100 kilovolts shall not be considered energy facilities under this chapter.
2 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.
3 Powers of the Site Evaluation Committee. Amend RSA 162-H:4, III-a to read as follows:
III-a. The committee may delegate to an agency or official represented on the committee the authority to specify the use of any technique, methodology, practice, or procedure approved by the committee within a certificate issued under this chapter, or the authority to specify minor changes in the route alignment to the extent that such changes are authorized by the certificate for those portions of a proposed electric transmission line or energy transmission pipeline for which information was unavailable due to conditions which could not have been reasonably anticipated prior to the issuance of the certificate. The committee’s authority to specify the use of any technique, methodology, practice, or procedure is strictly limited to those techniques, methodologies, practices, or procedures contained in state laws and rules.
4 Powers of the Site Evaluation Committee. Amend RSA 162-H:4, V to read as follows:
V. Once an energy facility application has been accepted, the chairperson may designate a subcommittee of no fewer than [7] 5 members that shall consider such application. The subcommittee shall include the chairperson or the vice-chairperson of the committee, and at least [3] 2 members selected from [among] the department of environmental services[,] and 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.
5 Time Frames for Review of Renewable Energy Facilities. Amend RSA 162-H:6-a, I to read as follows:
I. Upon the filing of an application for a certificate for a renewable energy facility, the chairperson shall expeditiously forward to each of the other participating state agencies having jurisdiction, under state or federal law, to regulate the construction or operation of the proposed facility, a copy of the parts of the application that are relevant to its jurisdiction. Upon the filing of the copy, each of the other participating state agencies shall conduct a preliminary review as described in RSA 162-H:7, IV. To qualify for the time frames for review specified in this section, an application for a renewable energy facility shall include testimony, exhibits, and sufficient information to satisfy the application requirements of each state agency having jurisdiction, under state or federal law, to regulate the construction or operation of the proposed facility, and shall include each agency’s completed application forms.
6 Time Frames for Review of Renewable Energy Facilities. Amend RSA 162-H:6-a, V-IX to read as follows:
V. All participating state agencies shall report their progress to the subcommittee within [90] 60 days of the acceptance of the application, outlining draft permit conditions and specifying additional data requirements necessary to make a final decision.
VI. All participating state agencies shall make and submit to the subcommittee a final decision on the parts of the application that relate to its jurisdiction, no later than [180] 120 days after the application has been accepted.
VII. Within 30 days of the submission of final decisions under paragraph VI, the subcommittee shall hold a public hearing on the merits of the application, which shall be part of an adjudicative proceeding as provided under RSA 162-H:10, II. At such public hearing, the subcommittee shall hear testimony and receive evidence submitted on behalf of the applicant, any intervenors, agencies with jurisdiction, and members of the public represented by counsel for the public appointed under RSA 162-H:9. At such public hearing the subcommittee may also receive comment from any member of the public on the application.
VIII. Within [240] 180 days of the acceptance of an application, the subcommittee shall issue or deny a certificate for a renewable energy facility.
IX. If the subcommittee 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 enlarge the time frame established under this section to issue or deny a certificate]. Temporary suspensions shall be limited to 10 days and the subcommittee shall provide the applicant with written notification of the reason for the temporary suspension as well as specific guidance on action, information, documents, or other necessary means to alleviate the temporary suspension. If the subcommittee determines it to be in the public interest it may extend its deliberations for a maximum of 60 days upon providing the applicant written notification of the specific reasons for the extension.
7 Applications for Certificate. Amend RSA 162-H:7, IV-VI-d to read as follows:
IV. Each application shall contain sufficient information to satisfy the application requirements of each participating state agency having jurisdiction, under state or federal law, to regulate any aspect of the construction or operation of the proposed facility, and shall include each agency’s completed application forms. Upon the filing of an application, the committee shall expeditiously forward a copy to the state agencies having jurisdiction. Upon receipt of a copy, each agency shall conduct a preliminary review to ascertain if the application contains sufficient information for its purposes. If the application does not contain sufficient information for the purposes of any of the state agencies having jurisdiction, that agency shall, in writing, notify the committee of that fact and specify what information the applicant must supply; thereupon the committee shall provide the applicant with a copy of such notification and specification. Notwithstanding any other provision of law, for purposes of the time limitations imposed by this section, any application made under this section shall be deemed not accepted either by the committee or by any of the state agencies having jurisdiction if the applicant is seasonably notified that it has not supplied sufficient information for any of the state agencies having jurisdiction in accordance with this paragraph.
V. Each application shall also:
(a) Describe in reasonable detail the type and size of each major part of the proposed facility.
(b) Identify both the preferred choice and any other choices for the site of each major part of the proposed facility.
(c) Describe in reasonable detail the impact of each major part of the proposed facility on the aspects of the environment within the committee’s jurisdiction for each site proposed.
(d) Describe in reasonable detail the applicant’s proposals for studying and solving environmental problems.
(e) Describe in reasonable detail the applicant’s financial, technical, and managerial capability for construction and operation of the proposed facility.
(f) Document that written notification of the proposed project, including appropriate copies of the application, has been given to the appropriate governing body of each community in which the facility is proposed to be located.
(g) Provide such additional information as the committee may require to carry out the purposes of this chapter.
VI. The committee shall decide whether or not to accept the application within [60] 30 days of filing. If the committee rejects 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.
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] 6 months after the application has been accepted.
VI-d. Within [9] 8 months of the acceptance of an application, the committee shall issue or deny a certificate for an energy facility.
8 New Section; Intervention. Amend RSA 162-H by inserting after section 9 the following new section:
162-H:9-a Intervention. Persons who can demonstrate that their rights, privileges, and other interests will be directly impacted by the applicant’s proposal shall be eligible to participate in and be represented in the site evaluation and certification process as intervenors. At a minimum, such persons shall demonstrate that they reside in the town, city or unincorporated place of the proposed facility site, or an immediately abutting town, city or unincorporated place, and also demonstrate the potential for a clear and direct impact on their persons or property.
9 Public Hearing, Studies, Rules. Amend RSA 162-H:10, III-V to read as follows:
III. The site evaluation committee 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[,] and during[, and subsequent to] public hearings. The committee 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 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] 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 reasonable cost of which shall be borne by the applicant in such amount as may be approved by the committee. The site evaluation committee and counsel for the public are further authorized to assess the applicant for all travel and related expenses associated with the processing of an application under this chapter.
10 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:7, subject to the limitations contained in RSA 162-H:6-a, IX.
11 Findings and Certificate Issuance. Amend RSA 162-H:16 to read as follows:
162-H:16 Findings and Certificate Issuance.
I. The committee shall incorporate in any certificate 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 impose any terms, conditions, requirements or any other actions on the applicant that are more restrictive than those specified to the committee by any other state or federal agency having jurisdiction over the construction or operation of the proposed facility, and 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.
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, sound, visual effects, and economic development.
III. The committee may consult with interested regional agencies and agencies of border states in the consideration of certificates.
IV. 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:
(a) Applicant has adequate financial, technical, and managerial capability to assure construction and operation of the facility in continuing compliance with the terms and conditions of the certificate.
(b) Will not unduly interfere with the orderly development of the region with due consideration having been given to the views of municipal and regional planning commissions and municipal governing bodies.
(c) Will not have an unreasonable adverse effect on aesthetics, [historic sites,] air and water quality, the natural environment, and public health and safety.
(d) [Repealed.]
V. [Repealed.]
VI. A certificate of site and facility may contain such reasonable terms and conditions as the committee deems necessary and may provide for such reasonable monitoring procedures as may be necessary, except that the committee shall be prohibited from imposing terms, conditions, requirements, or any other actions on the applicant that are more restrictive than those imposed by any other state or federal agencies having jurisdiction over the construction or operation of the proposed facility. Such certificates, when issued, shall be final and subject only to judicial review.
VII. The committee may condition the certificate upon the results of required federal and state agency studies whose study period exceeds the application period.
12 Effective Date. This act shall take effect 60 days after its passage.