SB 245-FN – AS AMENDED BY THE SENATE

03/13/14 0921s

2014 SESSION

14-2666

06/03

SENATE BILL 245-FN

AN ACT relative to the siting of energy facilities.

SPONSORS: Sen. Forrester, Dist 2; Sen. Bradley, Dist 3; Sen. Woodburn, Dist 1; Sen. Fuller Clark, Dist 21; Rep. Vadney, Belk 2; Rep. Ladd, Graf 4; Rep. Suzanne Smith, Graf 8; Rep. Ford, Graf 3; Rep. G. Chandler, Carr 1

COMMITTEE: Energy and Natural Resources

ANALYSIS

This bill:

I. Adds to the duties of the site evaluation committee.

II. Modifies requirements for energy facility certificates.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03/13/14 0921s

14-2666

06/03

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Fourteen

AN ACT relative to the siting of energy facilities.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Energy Facility Evaluation and Siting, Construction and Operation. Amend RSA 162-H:1 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] may have [a] significant [impact upon] impacts and benefits on the following: the welfare of the population, property values, the location and growth of industry, the overall economic growth of the state, the environment of the state, [and] historic sites, aesthetics, air and water quality, the use of natural resources, and public health and safety. Accordingly, the legislature finds that it is in the public interest to maintain a balance between [the environment] those potential significant impacts 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.

2 New Paragraph; Energy Facility Evaluation and Siting, Construction and Operation; Definitions; Participating State Agency. Amend RSA 162-H:2 by inserting after paragraph VIII the following new paragraph:

VIII-a. “Participating state agency” means each state agency having regulatory or other jurisdiction over, or interest in, an energy facility, including any aspect of construction, operation, or impacts of such facility, or a state agency that is consulted by an applicant for an energy facility certificate.

3 New Paragraph; Energy Facility Evaluation and Siting, Construction and Operation; Definitions; Staff Director. Amend RSA 162-H:2 by inserting after paragraph XII the following new paragraph:

XIII. “Staff director” means the staff director of the committee established by this chapter.

4 Site Evaluation Committee. RSA 162-H:3 is repealed and reenacted 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 to evaluate petitions for certificates for site and facility, exemption from jurisdiction, and declaratory rulings; to oversee the operations of certificated facilities to ensure they are meeting the conditions of their certificates; to assist the public in understanding the requirements of this chapter; and to engage in rulemaking as needed.

II. The committee shall consist of 7 members, who shall be appointed by the governor, with the consent of the council, one of whom shall be designated as chairman by the governor. All members shall be residents of the state of New Hampshire. No committee member nor any member of his or her family shall receive income from energy facilities within the jurisdiction of the committee. All members shall refrain from ex parte communications regarding any matter pending before the committee. All members shall comply with RSA 15-A and RSA 15-B.

III. Members shall serve 4 year terms and until their successors are appointed and qualified, provided that, for the initial appointments, one shall be appointed to a one year term, 2 shall be appointed to 2 year terms, 2 shall be appointed to 3 year terms, and 2 shall be appointed to 4 year terms.

IV. Any 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.

V. Three of the members shall be appointed based on geographic regions of the state such that one shall reside in Coos, Carroll, Grafton, or Belknap county; one shall reside in Sullivan, Cheshire, or Hillsborough county; and one shall reside in Merrimack, Strafford, or Rockingham county. The remaining 4 members shall be appointed based on their expertise or experience, to represent each of the following disciplines:

(a) Environmental protection or natural resource conservation, or both.

(b) Energy facility design, construction, operation, or management.

(c) Community and regional economic development.

(d) Regional planning.

VI. Five members of the committee shall constitute a quorum for the purpose of conducting the committee’s business, with the exception of administrative actions which may be taken by the chairman, or designated presiding officer, or procedure rulings which may be made by a hearing officer.

VII. Any 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.

VIII. The committee shall be administratively attached to the public utilities commission pursuant to RSA 21-G:10.

IX. Committee members shall be compensated at a per diem rate for any day involving more than 7 hours spent on committee matters and 1/2 the per diem rate for any day involving 7 hours or fewer spent on committee matters. The per diem rate shall be at a rate equal to the daily salary rate for a commissioner of the public utilities commission at the initial step.

X. The Chairman may:

(a) Serve as the chief executive of the committee.

(b) Delegate to other members the duties of presiding officer, as appropriate.

(c) Establish, with the consent of the panel, the budgetary requirements of the agency.

(d) Engage personnel in accordance with this chapter.

XI. Each application or petition shall be considered by the full committee. In the event that fewer than 5 members are available to sit, the governor shall appoint one or more alternates with the consent of the executive council.

XII. The committee shall have a full time staff director who, with committee approval, may engage additional technical, legal, or administrative support to fulfill the functions of the committee as necessary.

5 New Section; Staff Director. Amend RSA 162-H by inserting after section 3 the following new section:

162-H:3-a Staff Director. The site evaluation committee shall establish the position of staff director. The staff director shall be a classified state employee at labor grade 34. The salary of the staff director shall be paid from the site evaluation committee fund established in RSA 162-H:21.

6 Powers of the Committee. Amend RSA 162-H:4, III and III-a to read as follows:

III. The committee may delegate the authority to monitor the construction or operation of any energy facility granted a certificate under this chapter to the staff director or such state agency or official represented on the committee as it deems appropriate, but, subject to RSA 162-H:10, it may not delegate authority to hold hearings, issue certificates, determine the terms and conditions of a certificate, or enforce a certificate. Any authorized representative or delegate of the committee shall have a right of entry onto the premises of any part of the energy facility to ascertain if the facility is being constructed or operated in continuing compliance with the terms and conditions of the certificate. During normal hours of business administration and on the premises of the facility, such a representative or delegate shall also have a right to inspect such records of the certificate-holder as are relevant to the terms or conditions of the certificate.

III-a. The committee may delegate to the staff director or 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.

7 Powers of Committee. RSA 162-H:4, V is repealed and reenacted to read as follows:

V. Once an energy facility application has been accepted, the staff director may designate a hearing officer to hear and decide procedural matters that are before the committee, including procedural schedules, petitions for intervention, consolidation of parties with substantially similar interests, discovery schedules and motions, and identification of disputed issues for decision by the committee.

8 New Paragraph; Application for Certificate. Amend RSA 162-H:7 by inserting after paragraph I the following new paragraph:

I-a. At least 30 days prior to filing an application, an applicant for a certificate shall hold at least one public information session open to the public in a municipality where the energy facility is located or will be located. The applicant shall 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. At such session, the applicant shall present information regarding the project and receive comments from the public. The applicant shall notify the chairperson of the committee in advance of the time and place of such session and arrange for a transcript of the session to be prepared.

9 Application for Certificate. Amend RSA 162-H:7, IV through VI-e 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 participating state agencies [having jurisdiction] and to other state agencies that may have comments or information requests regarding the application. 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 participating 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 participating state agencies [having jurisdiction] if the applicant is [seasonably] reasonably notified that it has not supplied sufficient information for any of the participating 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 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 community in which the facility is proposed to be located.

(g) Provide the transcript of the pre-application public information session and a statement from the applicant regarding any changes made to the proposed project in response to such session.

(h) In the case of projects proposing overhead transmission facilities, present underground alternatives and site alternatives.

(i) Provide such additional information as the committee may require to carry out the purposes of this chapter.

V-a. Each application shall be accompanied by an application fee under RSA 162-H:21, II.

VI. The committee shall decide whether or not to accept the application within 60 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] information session in each county in which the proposed facility is to be located, in accordance with RSA 162-H:10. Within 30 days after the last public information session, 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] 150 days 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] 240 days after the application has been accepted.

VI-d. Within [9 months] 365 days 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.

VI-f. All state agencies not having regulatory jurisdiction that elect to be participating state agencies shall comply with the provisions of RSA 162-H:7-a.

VI-g. For each application for a certificate, each participating state agency and each state agency otherwise providing input to the committee shall designate a staff liaison responsible for providing timely reports, comments, and submissions to the committee.

10 New Section; Role of State Agencies. Amend RSA 162-H by inserting after section 7 the following new section:

162-H:7-a Role of Participating State Agencies.

I. Participating state agencies shall participate in committee proceedings as follows:

(a) Receive proposals or permit requests within the agency’s jurisdiction, expertise, or both; determine completeness of elements required for their 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;

(d) For those agencies identifying issues of concern, appear before the committee at a hearing to provide input and answer questions of parties and committee members; and

(e) Review and comment on proposed certificate conditions or rulings to confirm the proposed rulings are in conformity with the laws and regulations applicable to the project and state whether they conclude that the certificate or ruling is appropriate in light of their respective statutory responsibilities.

II. The commissioner or director of each participating agency shall advise the chairperson of the name of the individual on the participating agency staff designated to be the participating agency representative on the docket for each docketed proceeding. The committee chairman may request the attendance of an agency’s designated representative or designee at a session of the committee if that person’s availability could materially assist the committee in its examination or consideration of a matter.

III. All communications between the committee and participating agencies regarding a pending committee matter shall be included in the official record and be publicly available.

IV. Each participating agency has the right to rehearing and appeal of a certificate or other decision of the committee.

11 Counsel for the Public. Amend RSA 162-H:9, I to read as follows:

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] assure that the committee has acquired all necessary information to make its decision and has fulfilled all other requirements of this chapter. 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.

12 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 shall hold at least one [joint] public [hearing] information session 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] session 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 session shall be for public information on the proposed facilities with the applicant presenting the information to the site evaluation committee and to the public.

I-a. Within 30 days after the last public information session pursuant to paragraph I, the site evaluation committee 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 such session 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] participating state agencies 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] meetings, 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. In lieu of the full committee, a hearing officer designated by the staff director may preside at hearings concerning procedural matters before the committee and the identification of significant disputed issues for consideration by the full committee. The full committee shall preside at all hearings regarding the significant disputed issues identified by the hearing officer.

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. 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, and shall post all such records and reports regarding pending applications for certificates on a website.

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 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.

V-a. The site evaluation committee may use funds collected through application fees to employ a consultant or consultants, legal counsel, hearing officers, staff responsible for public and municipal engagement with committee matters, and other staff in furtherance of the duties imposed by 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. No later than January 1, 2015, the committee shall adopt rules, pursuant to RSA 541-A, relative to criteria for the siting of energy facilities, including specific criteria to be applied in determining if the requirements of RSA 162-H:16, IV(b) and (c) have been met by the applicant for a certificate of site and facility. Prior to the adoption of such rules, the office of energy and planning 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. The office of energy and planning shall submit a report based on the findings of the public stakeholder process to the committee by January 1, 2014.

13 Enforcement. Amend RSA 162-H:12, I to read as follows:

I. Whenever the committee, or the staff director as designee, determines that any term or condition of any certificate issued under this chapter is being violated, it shall, in writing, notify the person holding the certificate of the specific violation and order the person to immediately terminate the violation. If, 15 days after receipt of the order, the person has failed or neglected to terminate the violation, the committee may suspend the person’s certificate. 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 opportunity for a prompt hearing.

14 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 in addition to the required public information sessions required by RSA 162-H:7 and RSA 162-H:10.

15 Findings and Certificate Issued. Amend RSA 162-H:16, IV to read as follows:

IV. The site evaluation committee, after having considered available alternatives, including reasonable alternative not described in the application, 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) The 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) The site and facility 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] legislative bodies.

(c) The site and facility will not have an unreasonable adverse effect, including unreasonable adverse cumulative effects, on aesthetics, historic sites, air and water quality, the natural environment, and public health and safety.

(d) [Repealed.]

(e) The site and facility will serve the public interest when taking into account:

(1) The net environmental effects of the facility, considering both beneficial and adverse effects.

(2) The net economic effects of the facility, including but not limited to costs and benefits to energy consumers, property owners, state and local tax revenues, employment opportunities, and local and regional economies.

(3) Whether construction and operation of the facility will be consistent with federal, regional, state, and local policies.

(4) Whether the facility as proposed is consistent with municipal master plans and land use regulations pertaining to (i) natural, historic, scenic, cultural resources and (ii) public health and safety, air quality, economic development, and energy resources.

(5) Such additional public interest considerations as may be deemed pertinent by the committee.

(f) The site and facility will be consistent with the state energy strategy established in RSA 4-E:1.

16 New Sections; Fees; Applicability; Transitional Responsibilities. Amend RSA 162-H by inserting after section 20 the following new sections:

162-H:21 Fund Established; Fees.

I. There is hereby established in the office of the state treasurer a nonlapsing fund to be known as the site evaluation committee fund. All moneys in such fund shall be continually appropriated to the site evaluation committee for the purposes of the committee. The fund shall be established with an advance from the renewable energy fund established in RSA 362-F:10 in an amount not to exceed $500,000. Repayment of the initial renewable energy fund advance shall be made over time, whenever the site evaluation committee fund shall exceed 2 years of committee operations.

II. Any entity seeking an application for a certificate of site and facility, an amendment to a certificate of site and facility, a ruling for exemption from the committee’s requirements, or a declaratory or other ruling shall be accompanied by an application fee. The application fee shall be paid upon filing. Application fees shall be established by the committee through rules, based on a number of factors, including but not limited to:

(a) Nameplate capacity.

(b) Capacity and length of transmission lines or pipelines.

(c) Capacity for processing fuels.

(d) Anticipated time required before the committee for the application or petition to be acted upon.

III. An annual operating fee shall be assessed on all energy facilities as defined by RSA 162-H:2, VII that are currently operating within the state. The formula for the assessment of the operating fee shall be set forth in administrative rules. The operating fee shall collect sufficient revenues to enable the committee to oversee and ensure compliance with respect to all such facilities, and shall be available to the committee to hear and consider all applications or petitions filed with the committee.

IV. All fees shall be deposited to the site evaluation committee fund. The site evaluation committee fund shall always maintain a balance sufficient to cover 2 years of committee operations. The committee may waive assessments of operating fees if the balance of the site evaluation committee fund is sufficient in the view of the committee to meet committee needs in the next biennium.

162-H:22 Applicability.

I. The provisions of this chapter shall apply to any application or petitions received on or after June 1, 2014.

II. Matters pending prior to July 1, 2014 shall be governed by the standards in place prior to the enactment of this section and shall be addressed by the committee in effect at the time the matters were filed.

III. The committee in existence prior to July 1, 2014 shall cease to exist when all matters pending as of July 1, 2014 have been resolved, through ruling on requests for rehearing or reconsideration.

162-H:23 Transitional Responsibilities. Any matter filed after June 1, 2014 shall be reviewed by the committee; all time frames shall be tolled until the committee is established and staffed.

17 Repeal. The following are repealed:

I. RSA 162-H:6-a, relative to time frames for review of renewable energy facilities.

II. RSA 4-C:6, II(e), relative to energy facility evaluation committee.

III. RSA 162-H:7, VI-e, relative to upgrades of transmission systems that are part of the Coos county loop.

18 Effective Date. This act shall take effect July 1, 2014.

LBAO

14-2666

12/18/13

SB 245-FN - FISCAL NOTE

AN ACT relative to procedures and authority of the site evaluation committee.

FISCAL IMPACT:

METHODOLOGY: