Revision: May 1, 2024, 8:55 a.m.
Rep. Vose, Rock. 5
April 29, 2024
2024-1676h
06/08
Amendment to SB 451
Amend the bill by replacing all after the enacting clause with the following:
1 New Paragraph; Definitions; Qualified Repurposing. Amend RSA 162-H:2 by inserting after paragraph XI the following new paragraph:
XI-a. "Qualified repurposing" means the modification of an existing energy facility that meets each of the following criteria:
(a) The existing energy facility holds a current certificate from the site evaluation committee, or began operations with state and local approvals prior to the site evaluation committee certification process and continues to hold those state and local approvals.
(b) The existing energy facility is certificated or permitted for electric generation or battery storage.
(c) The existing energy facility is not a hydroelectric generation facility.
(d) The existing energy facility is currently interconnected with the distribution and/or regional transmission system.
(e) The modified energy facility, would either be permitted by local zoning ordinance or could be permitted by special exception if local zoning ordinances applied, as supported by a signed opinion of legal counsel or verification by the municipality’s zoning enforcement officer.
(f) The modified energy facility would not require a variance if local zoning ordinances applied, as supported by a signed opinion of legal counsel or verification by the municipality’s zoning enforcement officer.
(g) The modified energy facility would be located on the same parcel or parcels of land certificated or approved for the physical location of generation equipment and supporting operational uses, or an addition on an abutting parcel of land. For purposes of this subparagraph, "abutting'' means contiguous to or directly across a road, railroad, or stream from the parcels on, under, or above which the existing energy facility’s generation equipment and supporting operational uses are located.
(h) The combined generation capacity or storage capacity or both of the modified energy facility, taking into account capacity factors and any planned intermittency, would not exceed the capacity of the interconnection to the grid existing at the time of application, which capacity must be stated in the application.
(i) The modification changes the fuel type or source, adds a different fuel type or source, or adds battery storage to or replaces all or a portion of the facility with battery storage.
(j) The applicant demonstrates that the modification results in qualitative improvements to the health and safety of the state.
2 Energy Facility Siting, Construction, and Operation; Applications; Qualified Existing Energy Facilities Repurposing. RSA 162-H:7-a is repealed and reenacted to read as follows:
162-H:7-a Application for Certificate; Qualified Existing Energy Facilities Repurposing.
I. This section applies only to repurposing qualified existing energy facilities as defined in RSA 162-H:2, XI-a.
II. All applications for a certificate for an energy facility shall be filed with the chairperson of the site evaluation committee.
III. Upon filing of an application, the chairperson of the site evaluation committee shall expeditiously conduct a preliminary review to ascertain if the application contains sufficient information to carry out the purposes of this chapter. If the application does not contain such sufficient information, the chairperson of the site evaluation committee shall, in writing, expeditiously notify the applicant of that fact and specify what information the applicant must supply.
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, which shall be contemporaneously filed with the state agency 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 permitting or other regulatory authority, that agency shall, in writing, notify the committee and the applicant of that fact and specify what information the applicant must supply. 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 chairperson of the site evaluation committee, the committee at large, 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.
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 applicant's preferred choice and other alternatives it considers available for the site and configuration of each major part of the proposed facility and the reasons for the applicant's preferred choice.
(c) Describe in reasonable detail the impact of each major part of the proposed facility on the environment 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 affected municipality, as defined in RSA 162-H:2, I-b. The application shall include a list of the affected municipalities.
(g) Describe in reasonable detail the elements of and financial assurances for a facility decommissioning plan.
(h) Provide such additional information as the committee may require to carry out the purposes of this chapter.
VI. Upon filing the application with the committee, the applicant shall publish a public notice describing the nature and location of the proposed facility and repurposing in one or more newspapers having a regular circulation in the town and/or county in which the facility is located and shall provide a copy of the public notice to the city or town administrator in which the facility is located for public posting.
VII. The committee shall make a determination of whether or not to accept the application as administratively complete and that the application meets the requirements of RSA 162-H:2,XI-a, relative to qualified existing energy facility repurposing, within 30 days of filing. Notice of acceptance of the application shall be simultaneously provided to the applicant and the applicable state agency. 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.
VIII. Public information sessions shall be held in accordance with RSA 162-H:10.
IX. All state agencies having permitting or other regulatory authority shall report their progress to the committee within 90 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.
X. 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 120 days after the application has been accepted.
XI. Within 180 days of the acceptance of an application, the committee shall issue or deny a certificate for an energy facility.
XII. This chapter shall not preclude an agency from imposing its usual statutory fees.
XIII. The applicant shall immediately inform the committee and applicable state agency of any substantive modification to its application.
XIV. The time to render a decision on the application may be extended by the agency of jurisdiction for good cause upon written request of the applicant. Such extensions shall be reported to the committee.
162-H:7-b Role of State Agencies in All Proceedings.
I. State agencies having permitting or other regulatory authority may participate in committee proceedings as follows:
(a) Receive proposals or permit requests within the agency's permitting or other regulatory authority, expertise, or both; determine completeness of elements required for such agency's permitting or other programs; and report on such issues to the committee;
(b) Review proposals or permit requests and submit recommended draft permit terms and conditions to the committee;
(c) Identify issues of concern on the proposal or permit request or notify the committee that the application raises no issues of concern; and
(d) When issues of concern are identified by the agency or committee, designate one or more witnesses to appear before the committee at a hearing to provide input and answer questions of parties and committee members.
II. When initiating a proceeding for a committee matter, the committee shall expeditiously notify state agencies having permitting or other regulatory authority or that are identified in administrative rules.
III. Within 30 days of receipt of a notification of proceeding, a state agency not having permitting or other regulatory authority but wishing to participate in the proceeding shall advise the presiding officer of the committee in writing of such desire and be allowed to do so provided that the presiding officer determines that a material interest in the proceeding is demonstrated and such participation conforms with the normal procedural rules of the committee.
IV. The commissioner or director of each state agency that intends to participate in a committee proceeding shall advise the presiding officer of the name of the individual on the agency's staff designated to be the agency liaison for the proceeding. The presiding officer may request the attendance of an agency's designated liaison at a session of the committee if that person could materially assist the committee in its examination or consideration of a matter.
V. All communications between the committee and agencies regarding a pending committee matter shall be included in the official record and be publicly available.
VI. A state agency may intervene as a party in any committee proceeding in the same manner as other persons under RSA 541-A. An intervening agency shall have the right to rehearing and appeal of a certificate or other decision of the committee.
3 Public Hearing; Studies; Rules. Amend RSA 162-H:10 to read as follows:
162-H:10 Public Hearing; Studies; Rules.
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] provided that if the proposed facility is located within a single city or town the public meeting will be held within that city or town. An applicant shall, at a minimum, publish a public notice for such public meeting 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.
I-a. Within [45] 30 days after acceptance of an application for a certificate, pursuant to RSA 162-H:7, the applicant shall hold at least one public information session as described in paragraph I in each county in which the proposed facility is to be located and shall, at a minimum, publish a public notice not less than 14 days before said 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. Not less than 10 days before such session, the applicant shall provide a copy of the public notice to the presiding officer of the committee. The administrator, or a designee of the presiding officer of the committee, shall act as presiding officer of the information session. The session shall be for public information on the proposed facility with the applicant presenting the information to the public. The presiding officer shall also explain to the public the process the committee will use to review the application for the proposed facility.
I-b. Except in the case of a qualified repurposing upon request of the governing body of a municipality or unincorporated place in which any part of the proposed facility is to be located, or on the committee's own motion, the committee may order the applicant to provide such additional public information sessions as described in paragraph I as are reasonable to inform the public of the proposed project.
I-c. Within 90 days after acceptance of an application for a certificate, pursuant to RSA 162-H:7, or within 45 days after acceptance of an application pursuant to RSA 162-H:7-a, the site evaluation committee shall hold at least one public hearing in each county in which the proposed facility is to be located provided that if the proposed facility is located within a single city or town the public hearing will be held within that city or town, and the applicant 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. Not fewer than 10 days before such session, the applicant shall provide a copy of the public notice to the presiding officer of the committee. The applicant shall arrange for a transcript of such session to be prepared. Except for state agencies and programs that are required by state or federal law or regulation to comply with program specific public notice and public hearing requirements, the public hearings may be joint hearings, with representatives of the agencies that have permitting or other regulatory authority 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 hearing may be a joint hearing with 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. Subsequent public hearings shall be in the nature of adjudicative proceedings under RSA 541-A and shall 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 hearing.
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, during, and subsequent to public hearings, but prior to the closing of the record of the proceeding. The committee shall provide an opportunity at one or more public hearings for comments from the governing body of each affected municipality and residents of each affected municipality. The committee shall consider, as appropriate, prior committee findings and rulings on the same or similar subject matters, but shall not be bound thereby.
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 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 or certificate holder 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 or certificate holder for all travel and related expenses associated with the processing of an application or other proceedings under this chapter.
VI. The site evaluation committee shall 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.
[VII. As soon as practicable but no later than November 1, 2015, the committee shall adopt rules, pursuant to RSA 541-A, relative to the organization, practices, and procedures of the committee and criteria for the siting of energy facilities, including specific criteria to be applied in determining if the requirements of RSA 162-H:16, IV have been met by the applicant for a certificate of site and facility. Prior to the adoption of such rules, the department of energy shall hire and manage one or more consultants to conduct a public stakeholder process to develop recommended regulatory criteria, which may include consideration of issues identified in attachment C of the 2008 final report of the state energy policy commission, as well as others that may be identified during the stakeholder process. Except for the cases where the adjudicatory hearing has commenced, applications pending on the date rules adopted under this paragraph take effect shall be subject to such rules. Prior to the adoption of rules under this paragraph, applications shall be continuously processed pursuant to the rules in effect upon the date of filing. If the rules require the submission of additional information by an applicant, such applicant shall be afforded a reasonable opportunity to provide that information while the processing of the application continues.]
VII. Times for conducting public hearings and rendering a decision on the application may be extended for good cause upon written request of the applicant.
4 Applicability; Transition Period. RSA 162-H, as amended by this act, shall apply to applications submitted on or after the effective date of this act. An applicant with a pending application on the effective date of this act shall have the option to resubmit the application under RSA 162-H, as amended by this act, but shall not be required to do so.
5 Effective Date. This act shall take effect upon its passage.