SB 245-FN – AS AMENDED BY THE SENATE

03/13/14 0921s

03/27/14 1125s

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

AMENDED ANALYSIS

This bill:

I. Modifies the membership and duties of the site evaluation committee.

II. Modifies requirements for energy facility certificates.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03/13/14 0921s

03/27/14 1125s

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 Evaluation and Siting. RSA 162-H:1 is repealed and reenacted to read as follows: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, may have significant impacts and benefits on the following: the welfare of the population, private property, the location and growth of industry, the overall economic growth of the state, the environment of the state, 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 among those potential significant impacts and benefits in the siting, construction and operation of new energy facilities in New Hampshire; that undue delay in the construction of new energy 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 new energy facilities are sited, constructed, and operated 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; Administrator. Amend RSA 162-H:2 by inserting after paragraph I the following new paragraph:

I-a. “Administrator” means the administrator of the committee established by this chapter.

3 Site Evaluation Committee. RSA 162-H:3 is repealed and reenacted to read as follows:

I. There is hereby established a committee to be known as the New Hampshire site evaluation committee to evaluate applications for certificates of site and facility and petitions for 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. The committee shall consist of 9 members, as follows:

(a) The commissioners of the public utilities commission, the chairman of which shall be the chairman of the committee;

(b) The commissioner of the department of environmental services, who shall be the vice-chairman of the committee;

(c) The commissioner of the department of resources and economic development;

(d) The commissioner of the department of transportation;

(e) The director of the division of historic resources; and

(f) Two members of the public, appointed by the governor, with the consent of the council, at least of one of whom shall be an attorney licensed to practice in New Hampshire, and both 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.

II. The public members shall serve 4 year terms and until their successors are appointed and qualified. 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 members of the committee shall constitute a quorum for the purpose of conducting the committee’s business, with the exception of administrative actions that may be taken by the chairman or designee as presiding officer, or procedural rulings that may be made by a hearing officer.

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. Public members of the committee shall be compensated at on a pro rata basis, based upon a rate equal to the daily salary rate for a commissioner of the public utilities commission at the initial step.

IX. 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 committee, the budgetary requirements of the committee.

(d) Engage personnel in accordance with this chapter.

X. The committee may exercise its powers through subcommittees of no fewer than 7 members established at any time by the chairperson. The 2 public members shall serve on each subcommittee so established. The remaining 5 or more members shall be selected from among the members of the committee, or their designees, including the senior administrator positions of the department of environmental services, the public utilities commission, the department of resources and economic development, division of historic resources, and the department of transportation. At least one member of a subcommittee shall be an attorney licensed to practice in New Hampshire. For purposes of statutory interpretation and executing the regulatory functions of this chapter, the subcommittee shall assume the role and be considered the committee, with all of its associated powers and duties. Five members of the subcommittee shall constitute a quorum for the purpose of conducting the committee’s business, with the exception of administrative actions that may be taken by the chairperson of the subcommittee or designee as presiding officer, or procedural rulings that may be made by a hearing officer.

4 New Section; Site Evaluation Committee; Administrator. Amend RSA 162-H by inserting after section 3 the following new section:

162-H:3-a Administrator. The site evaluation committee may establish the position of administrator. The administrator shall be a classified state employee at labor grade 34, or an independent consultant, hired at the discretion of the chairperson through a competitive bid process. The salary of the administrator shall be paid from the site evaluation committee fund established in RSA 162-H:21. The administrator, with committee approval, may engage additional technical, legal, or administrative support to fulfill the functions of the committee as necessary.

5 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 administrator 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 [an] the administrator or such state agency or official [represented on the committee] as it deems appropriate 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.

6 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 administrator 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 significant disputed issues for hearing and decision by the committee.

7 Application for Certificate. Amend RSA 162-H:7, IV and V 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 state agencies having jurisdiction and to other state agencies identified in committee 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 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] reasonably 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 applicant’s preferred choice and [any other choices] other alternatives it considers available for the site and configuration of each major part of the proposed facility, and the reasons supporting 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 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.

8 Application for Certificate. Amend RSA 162-H:7, VI-a through VI-d to read as follows:

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,] Public information sessions shall be held in accordance with RSA 162-H:10.

VI-b. All [participating] state agencies having jurisdiction 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 on the parts of the application that relate to its jurisdiction.

VI-c. All [participating] state agencies having jurisdiction 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.

9 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 State Agencies.

I. State agencies having jurisdiction may 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 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;

(d) When issues of concern are identified, 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 that such conditions or rulings are in conformity with the laws and regulations applicable to the project and state whether the conditions or rulings are appropriate in light of the agency’s statutory responsibilities.

II. When initiating a proceeding for a committee matter, the committee shall expeditiously notify state agencies having jurisdiction or that are identified in committee rules.

III. Within 30 days of receipt of a notification of proceeding, a state agency not having jurisdiction but wishing to participate in the proceeding shall advise the chairperson of the committee.

IV. The commissioner or director of each state agency that intends to participate in a committee proceeding shall advise the chairperson of the name of the individual on the agency’s staff designated to be the agency liaison for the proceeding. The committee chairman may request the attendance of an agency’s designated liaison 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.

V. All communications between the committee and participating 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.

10 Public Hearing; Information Sessions; 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 of site and facility, an applicant shall hold at least one public information session open to the public in each county where 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 session is to be held, describing the nature and location of the proposed facilities. At such session, the applicant shall present information regarding the project and receive comments from the public. Not less than 10 days before said session, the applicant shall provide a copy of the public notice to the chairman of the committee. The applicant shall arrange for a transcript of said session to be prepared and shall include the transcript in its application for a certificate.

I-a. Within [30] 45 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] session is to be held, describing the nature and location of the proposed facilities. Not less than 10 days before said session, the applicant shall provide a copy of the public notice to the chairman of the committee. The session shall be for public information on the proposed facilities with the applicant presenting the information to the public.

I-b. Upon request of the governing body of a municipality or unincorporated place in which the proposed facility is to be located, or on the committee’s own motion, the committee may order the applicant to provide such informational meetings as are reasonable to inform the public of the proposed project in addition to the required public information sessions required by RSA 162-H:10.

I-c. Within 90 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 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 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 or subcommittee, a hearing officer designated by the administrator may preside at hearings concerning procedural matters before the committee pursuant to RSA 162-H:4, V. The full committee or subcommittee 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 but prior to the closing of the record of a proceeding. 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 a certificate 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.

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 the reorganizing of the committee and 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.

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

I. Whenever the committee, or the administrator 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.

12 Findings and Certificate Issuance. Amend the introductory paragraph of RSA 162-H:16, IV to read as follows:

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] public interest would be best served by the issuance of the certificate, must find that the site and facility:

13 New Subparagraph; Findings and Certificate Issuance. Amend RSA 162-H:16, IV by inserting after subparagraph (d) the following new subparagraph:

(e) Will serve the public interest.

14 New Sections; Fund Established; Funding Plan; Applicability; Transitional Responsibilities. Amend RSA 162-H by inserting after section 20 the following new sections:

162-H:21 Fund Established; Funding Plan.

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 $1,000,000. Repayment of the initial renewable energy fund advance shall be made over a period of not more than 10 years.

II. By December 1, 2014, the committee shall submit a permanent funding plan, including recommendations for legislation, to the governor and to the chairpersons of the house and senate finance committees. The committee shall consider potential funding sources, including but not limited to the imposition of reasonable application fees and other funding sources. The plan shall describe the costs of the ongoing administration of the committee’s duties, including state agency expenses associated with processing an application under this chapter. The plan shall include recommendations for the ongoing funding of the committee’s operations, including reimbursement for the hearing and review time of members of the committee and state agency staff. The plan shall make recommendations for funding sources to meet those needs, except that such funding sources shall not include annual operating fees imposed on energy facilities. The plan shall provide an estimate of revenues from application fees and additional funding sources.

162-H:22 Applicability.

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

II. Pending matters for which a public hearing was held 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 for which a public hearing was held prior to July 1, 2014 have been resolved, through ruling on requests for rehearing or reconsideration.

162-H:23 Transitional Responsibilities.

I. Any pending matter for which a public hearing was not held prior to July 1, 2014, and all matters filed after July 1, 2014 shall be reviewed by the committee as re-organized under this chapter. The parties in any pending matter for which a public hearing was not held prior to July 1, 2014 shall have a reasonable opportunity to supplement filings under the provisions of this chapter as effective July 1, 2014.

II. The re-organization of the committee, including the appointment of a administrator and public members, shall occur no later than November 1, 2014.

III. All time frames under this chapter shall be tolled until the date that committee is re-organized.

IV. Notwithstanding any other provision of this chapter, the committee in existence prior to July 1, 2014 shall continue the process of adopting rules pursuant to RSA 162-H:10, VII, until such time as the re-organized committee is established. Notwithstanding any other provision of law, the actions of the committee in existence prior to July 1, 2014 shall be deemed the actions of the committee for the purposes of appointing an administrator and of adopting rules pursuant to RSA 162-H:10, VII.

V. Any application for approval of a transfer pursuant to RSA 162-H:5, I shall be reviewed and decided by the committee in existence prior to July 1, 2014 provided such application is filed no later than December 31, 2014.

15 New Subparagraph; Application of Receipts. Amend RSA 6:12, I(b) by inserting after subparagraph (316) the following new subparagraph:

(317) Moneys deposited in the site evaluation committee fund established in RSA 162-H:21, I.

16 Repeal. The following are repealed:

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

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

III. RSA 162-H:7, VI-e, relative to time frames for applications for certificates.

IV. RSA 162-H:15, relative to informational meetings.

17 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: