Revision: Dec. 20, 2017, 12:05 p.m.
SB 449 - AS INTRODUCED
2018 SESSION
18-2764
06/03
SENATE BILL 449
AN ACT relative to the site evaluation committee.
SPONSORS: Sen. Ward, Dist 8; Sen. Birdsell, Dist 19; Sen. Carson, Dist 14; Sen. Daniels, Dist 11; Sen. Gannon, Dist 23; Sen. Giuda, Dist 2; Sen. Reagan, Dist 17; Rep. Darrow, Graf. 17
COMMITTEE: Energy and Natural Resources
-----------------------------------------------------------------
ANALYSIS
This bill makes changes to the site evaluation committee.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
18-2764
06/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eighteen
AN ACT relative to the site evaluation committee.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Energy Facility Siting; Committee; Members. Amend RSA 162-H:3 to read as follows:
162-H:3 Site Evaluation Committee Established.
I. There is hereby established a committee to be known as the New Hampshire site evaluation committee consisting of [9] 10 members, as follows:
(a) The [commissioners] chairman of the public utilities commission, [the chairperson of which] who shall be the chairperson of the committee and a nonvoting member;
(b) [The commissioner of the department of environmental services, who shall be the vice-chairperson of the committee;
(c) The commissioner of the department of business and economic affairs or designee;
(d) The commissioner of the department of transportation;
(e) The commissioner of the department of natural and cultural resources, the director of the division of historical resources, or designee; and
(f) Two] Nine members of the public, appointed by the governor, with the consent of the council, at least one of whom shall be a member in good standing of the New Hampshire Bar Association, and [both] all of whom shall be residents of the state of New Hampshire with expertise or experience in one or more of the following areas: public deliberative or adjudicative proceedings; business management; environmental protection; natural resource protection; energy facility design, construction, operation, or management; [or] community and regional planning or economic development; meteorology, astronomy, or topography.
II. The public members shall serve 4-year terms and until their successors are appointed and qualified. The initial term of one member shall be 2 years. Any public member chosen to fill a vacancy occurring other than by expiration of term shall be appointed for the unexpired term of the member who is to be succeeded.
III. No public member nor any member of his or her family shall receive income from energy facilities within the jurisdiction of the committee. The public members shall comply with RSA 15-A and RSA 15-B.
IV. All members shall refrain from ex parte communications regarding any matter pending before the committee.
V. [Seven] Five members of the committee shall constitute a quorum for the purpose of conducting the committee's business.
VI. Any public member of the committee may be removed by the governor and council for inefficiency, neglect of duty, or misconduct or malfeasance in office, after being given a written statement of the charges and an opportunity to be heard.
VII. The committee shall be administratively attached to the public utilities commission pursuant to RSA 21-G:10.
VIII. [Repealed.]
IX. The chairperson shall serve as the chief executive of the committee and may:
(a) Delegate to other members the duties of presiding officer, as appropriate.
(b) Perform administrative actions for the committee, as may a presiding officer.
(c) Establish, with the consent of the committee, the budgetary requirements of the committee.
(d) Engage personnel in accordance with this chapter.
(e) Form subcommittees pursuant to RSA 162-H:4-a.
X. An alternate public member who satisfies the qualification requirements of subparagraph [I(f)] I(b), excluding the New Hampshire Bar membership requirement, shall be appointed by the governor, with consent of the council. The alternate public member shall only sit on the committee or a subcommittee as provided for in paragraph XI.
XI. If at any time a member must recuse himself or herself on a matter or is not otherwise available for good reason, [such person, if a state employee, may designate a senior administrative employee or a staff attorney from his or her agency to sit on the committee. In the case of a public member,] the chairperson shall appoint the alternate public member, or if such member is not available, the governor and council shall appoint a replacement upon petition of the chairperson. The replacement process under this paragraph shall also be applicable to subcommittee members under RSA 162-H:4-a.
2 Site Evaluation Committee, Powers and Duties. Amend RSA 162-H:4, II to read as follows:
II. The committee shall hold hearings as required by this chapter and such additional hearings as it deems necessary and appropriate, including evenings and Saturdays.
3 Site Evaluation Committee; Powers and Duties. 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 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 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 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)] (c) All environmental impacts or effects are adequately regulated by other federal, state, or local statutes, rules, or ordinances.
4 Site Evaluation Committee; Subcommittees. Amend RSA 162-H:4-a, II and III to read as follows:
II. When considering the issuance of a certificate or a petition of jurisdiction, a subcommittee shall have no fewer than 7 members. [The 2 public members shall serve on each subcommittee with the remaining 5 or more members selected by the chairperson from among the state agency members of the committee. Each selected member may designate a senior administrative employee or staff attorney from his or her respective agency to sit in his or her place on the subcommittee.] The chairperson shall designate one member [or designee] to be the presiding officer who shall be an attorney whenever possible. Five members of the subcommittee shall constitute a quorum for the purpose of conducting the subcommittee's business.
[III. In any matter not covered under paragraph II, the chairperson may establish subcommittees of 3 members, consisting of 2 state agency members and one public member. Each state agency member may designate a senior administrative employee or staff attorney from his or her agency to sit in his or her place on the subcommittee. The chairperson shall designate one member or designee to be the presiding officer who shall be an attorney whenever possible. Two members of the subcommittee shall constitute a quorum. Any party whose interests may be affected may object to the matter being assigned to a 3-person subcommittee no less than 14 days before the first hearing. If objection is received, the chairperson shall remove the matter from the 3-person subcommittee and either assign it to a subcommittee formed under paragraph II or have the full committee decide the matter.]
5 Site Evaluation Committee; Application for Certificate. Amend RSA 162-H:7, IV to read as follows:
IV. Each application shall contain sufficient information to satisfy the application requirements of each 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] all state agencies [having permitting or other regulatory authority and to other state agencies identified in administrative rules]. 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 permitting or other regulatory authority, 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 permitting or other regulatory authority if the applicant is reasonably notified that it has not supplied sufficient information for any of the state agencies having permitting or other regulatory authority in accordance with this paragraph.
6 New Subparagraph; Site Evaluation Committee; Application for Certificate. Amend RSA 162-H:7, V by inserting after subparagraph (h) the following new subparagraph:
(i) Provide proof that land use issues have been resolved.
7 Site Evaluation Committee; Application for Certificate. Amend RSA 162-H:7, VI-b and VI-c to read as follows:
VI-b. All state agencies [having permitting or other regulatory authority] shall report their progress to the committee within 150 days of the acceptance of the application, outlining draft permit conditions and specifying additional data requirements necessary to make a final decision on the parts of the application that relate to its permitting or other regulatory authority.
VI-c. All state agencies [having permitting or other regulatory authority] shall make and submit to the committee a final decision on the parts of the application that relate to its permitting and other regulatory authority, no later than 240 days after the application has been accepted.
8 Site Evaluation Committee; Role of State Agencies. Amend RSA 162-H:7-a, I(d) to read as follows:
(d) When issues of concern are identified by the agency or committee, designate one or more witnesses, inside or outside the agency, to appear before the committee at a hearing to provide input and answer questions of parties and committee members; and
9 Site Evaluation Committee; Counsel for the Public. Amend RSA 162-H:9 to read as follows:
162-H:9 Counsel for the Public.
I. Upon notification that an application for a certificate has been filed with the committee in accordance with RSA 162-H:7, the attorney general shall appoint an assistant attorney general as a counsel for the public. The counsel shall represent the public in seeking to protect the quality of the environment [and in seeking to assure an adequate supply of energy]. The counsel shall be accorded all the rights and privileges, and responsibilities of an attorney representing a party in formal action and shall serve until the decision to issue or deny a certificate is final.
II. This section shall not be construed to prevent any person from being heard or represented by counsel; provided, however, the committee may compel consolidation of representation for such persons as have, in the committee's reasonable judgment, substantially identical interests.
10 Site Evaluation Committee. Amend RSA 162-H:10, I to read as follows:
I. At least 30 days prior to filing an application for a certificate, an applicant shall hold at least one public information session in each county where the proposed facility is to be located and shall, at a minimum, publish a public notice not less than 14 days before such session in one or more newspapers having a regular circulation in the county in which the session is to be held, describing the nature and location of the proposed facility. The applicant shall also send a copy of the public notice, not less than 14 days before the session, by first class mail to the governing body of each affected municipality. At such session, the applicant shall present information regarding the project and provide an opportunity for comments and questions from the public to be addressed by the applicant. Not less than 10 days before such session, the applicant shall provide a copy of the public notice to the chairperson of the committee. The applicant shall arrange for a transcript of such session to be prepared and shall include the transcript in its application for a certificate. Prior to such session, any member of the public may request electronic copies of the complete application and all responses from state agencies under RSA 162-H:7, IV. Any member of the public may submit questions for the public hearings which shall be available electronically to all interested parties.
11 Site Evaluation Committee; Public Hearing. Amend RSA 162-H:10, I-c to read as follows:
I-c. Within 90 days after acceptance of an application for a certificate, pursuant to RSA 162-H:7, the site evaluation committee shall hold at least one 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 such 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 committee shall also send a copy of the public notice, not less than 14 days before the hearing, by first class mail to the governing body of each affected municipality. The public hearings shall be joint hearings, with representatives of [the] all state agencies that [have permitting or other regulatory authority over the subject matter] submitted material to the committee and shall be deemed to satisfy all initial requirements for public hearings under statutes requiring permits relative to environmental impact. [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] Public hearings may be held during the evening and on Saturdays.
12 Site Evaluation Committee; Wind Energy Systems. Amend RSA 162-H:10-a, II to read as follows:
II. For the adoption of rules, pursuant to RSA 541-A, relative to the siting of wind energy systems, the committee shall address the following:
[(1)] (a) Visual impacts as evaluated through a visual impact assessment prepared in accordance with professional standards by an expert in the field, including the size, elevation, and isolation, and the additional impacts of noise, light, motion, including the impact of these factors at night.
[(2)] (b) Cumulative impacts to natural, scenic, recreational, and cultural resources from multiple towers or projects, or both.
[(3)] (c) Health and safety impacts, including but not limited to, shadow flicker caused by the interruption of sunlight passing through turbine blades and ice thrown from blades and including the detailed plan and thresholds for determining the occurrence of shadow flicker and the calculations of the extreme distance of ejected ice sheets.
[(4)] (d) Project-related sound impact assessment prepared in accordance with professional standards by an expert in the field and, for elevated sources, use of models which are appropriate for elevated sources only.
[(5)] (e) Impacts to the environment, air and water quality, plants, animals and natural communities.
[(6)] (f) Site fire protection plan requirements.
[(7)] (g) Site decommissioning, including sufficient and secure funding, removal of structures, and site restoration.
[(8)] (h) Best practical measures to avoid, minimize, or mitigate adverse effects.
13 Site Evaluation Committee; Enforcement. Amend RSA 162-H:12, II and III to read as follows:
II. The committee [may] shall suspend a person's certificate if the committee determines that the person has made a material misrepresentation in the application or, in the supplemental or additional statements of fact or studies required of the applicant, or if the committee determines that the person has violated the provisions of this chapter or any rule adopted under this chapter. Except for emergencies, prior to any suspension, the committee shall give written notice of its consideration of suspension and of its reasons therefor and shall provide an opportunity for a prompt hearing.
III. The committee [may] shall revoke any certificate that is suspended after the person holding the suspended certificate has been given at least 90 days' written notice of the committee's consideration of revocation and of its reasons therefor and has been provided an opportunity for a full hearing.
14 Site Evaluation Committee; Findings. Amend RSA 162-H:16, III to read as follows:
III. The committee [may] shall consult with interested regional agencies and agencies of border states in the consideration of certificates.
15 Site Evaluation Committee; Certificate Issuance. Amend RSA 162-H:16, VI and VII to read as follows:
VI. A certificate of site and facility [may] shall contain such reasonable terms and conditions, including but not limited to the authority to require bonding, as the committee deems necessary and may provide for such reasonable monitoring procedures as may be necessary. Such certificates, when issued, shall be final and subject only to judicial review.
VII. The committee [may] shall condition the certificate upon the results of required federal and state agency studies whose study period exceeds the application period.
16 Effective Date. This act shall take effect 60 days after its passage.