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| 5 | 5 | | 2023 -- H 5945 |
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| 6 | 6 | | ======== |
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| 7 | 7 | | LC002003 |
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| 8 | 8 | | ======== |
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| 9 | 9 | | S TATE OF RHODE IS LAND |
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| 10 | 10 | | IN GENERAL ASSEMBLY |
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| 11 | 11 | | JANUARY SESSION, A.D. 2023 |
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| 12 | 12 | | ____________ |
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| 13 | 13 | | |
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| 14 | 14 | | A N A C T |
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| 15 | 15 | | RELATING TO STATE AFFAIRS AND GOVERNMENT -- ENERGY FACILITY SITING |
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| 16 | 16 | | ACT |
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| 17 | 17 | | Introduced By: Representatives Place, and Newberry |
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| 18 | 18 | | Date Introduced: March 01, 2023 |
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| 19 | 19 | | Referred To: House Municipal Government & Housing |
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| 20 | 20 | | |
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| 21 | 21 | | |
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| 22 | 22 | | It is enacted by the General Assembly as follows: |
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| 23 | 23 | | SECTION 1. Sections 42-98-1, 42-98-2, 42-98-3, 42-98-5, 42-98-7, 42-98-8, 42-98-9, 42-1 |
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| 24 | 24 | | 98-9.1, 42-98-10, 42-98-11 and 42-98-16 of the General Laws in Chapter 42-98 entitled "Energy 2 |
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| 25 | 25 | | Facility Siting Act" are hereby amended to read as follows: 3 |
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| 26 | 26 | | 42-98-1. Legislative findings. 4 |
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| 27 | 27 | | (a) The general assembly recognizes that reasonably priced, reliable sources of energy are 5 |
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| 28 | 28 | | vital to the well-being and prosperity of the people of this state; that there are major issues of public 6 |
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| 29 | 29 | | health and safety and impact upon the environment related to the technologies and energy sources 7 |
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| 30 | 30 | | used in some facilities; that some energy facilities require a major commitment of funds and 8 |
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| 31 | 31 | | resources and require many years to build that the decision to permit or deny their construction will 9 |
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| 32 | 32 | | have long term impact on the economy of the state; that these decisions will affect the availability 10 |
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| 33 | 33 | | and cost of the energy; and that the evaluation of proposals must recognize and consider the need 11 |
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| 34 | 34 | | for these facilities in relation to the overall impact of the facilities upon public health and safety, 12 |
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| 35 | 35 | | the environment and the economy of the state; 13 |
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| 36 | 36 | | (b) The general assembly further finds that the authority to regulate many aspects of the 14 |
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| 37 | 37 | | issues involved in the siting of major energy facilities currently exists in a variety of agencies within 15 |
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| 38 | 38 | | the government of the state and the political subdivisions of the state; that there is overlapping 16 |
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| 39 | 39 | | jurisdiction among several state agencies in the siting of energy facilities; and that there is the 17 |
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| 40 | 40 | | potential for conflicting decisions being issued by the various agencies having authority over the 18 |
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| 41 | 41 | | |
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| 42 | 42 | | |
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| 43 | 43 | | LC002003 - Page 2 of 15 |
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| 44 | 44 | | different aspects of the siting of a major energy facility; 1 |
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| 45 | 45 | | (c) The jurisdiction of each state agency should be defined, and the role of each agency in 2 |
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| 46 | 46 | | energy siting should be delineated, to eliminate overlap and duplication and to insure that 3 |
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| 47 | 47 | | expeditious decisions are made within a time frame to be determined by law; and that in addition 4 |
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| 48 | 48 | | to the existing regulation, statewide and regional planning for energy resources and the assessment 5 |
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| 49 | 49 | | of our state’s need for energy should be on-going activities within Rhode Island; 6 |
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| 50 | 50 | | (d) There is need for a coordinated decision on any major energy facility; the technical 7 |
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| 51 | 51 | | expertise for this evaluation is available within existing agencies involved with the siting process; 8 |
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| 52 | 52 | | and 9 |
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| 53 | 53 | | (e) There is a need for coordinating and expediting the review of each state agency and that 10 |
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| 54 | 54 | | the authority and responsibility to perform that function should be established; and 11 |
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| 55 | 55 | | (f) The general assembly recognizes that a host community for a proposed or existing major 12 |
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| 56 | 56 | | generating facility is uniquely affected by the energy facility siting process. 13 |
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| 57 | 57 | | 42-98-2. Declaration of policy. 14 |
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| 58 | 58 | | It shall be the policy of this state to assure that: 15 |
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| 59 | 59 | | (1) The facilities required to meet the energy needs of this and succeeding generations of 16 |
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| 60 | 60 | | Rhode Islanders are planned for, considered, and built in a timely and orderly fashion; 17 |
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| 61 | 61 | | (2) Construction, operation, and/or alteration of major energy facilities shall only be 18 |
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| 62 | 62 | | undertaken when those actions are justified by long term state and/or regional energy need 19 |
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| 63 | 63 | | forecasts; 20 |
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| 64 | 64 | | (3) The energy shall be produced at the least possible cost to the consumer consistent with 21 |
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| 65 | 65 | | the objective of ensuring that the construction, operation, and decommissioning of the facility shall 22 |
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| 66 | 66 | | produce the fewest possible adverse effects on the quality of the state’s environment; most 23 |
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| 67 | 67 | | particularly, its land and its wildlife and resources, the health and safety of its citizens, the purity 24 |
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| 68 | 68 | | of its air and water, its aquatic and marine life, and its esthetic and recreational value to the public; 25 |
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| 69 | 69 | | (4) The licensure and regulatory authority of the state be consolidated in a single body, 26 |
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| 70 | 70 | | which will render the final licensing decision concerning the siting, construction, operation and/or 27 |
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| 71 | 71 | | alteration of major energy facilities; 28 |
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| 72 | 72 | | (5) An energy facility planning process shall be created through which the statewide 29 |
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| 73 | 73 | | planning program, in conjunction with the division of public utilities and carriers, will be 30 |
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| 74 | 74 | | empowered to undertake evaluations and projections of long and short term energy needs, and any 31 |
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| 75 | 75 | | other matters that are necessary to establish the state energy plans, goals, and policies. The state 32 |
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| 76 | 76 | | planning council shall be authorized and empowered to adopt a long term plan assessing the state’s 33 |
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| 77 | 77 | | future energy needs and the best strategy for meeting them, as part of the state guide plan by January 34 |
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| 78 | 78 | | |
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| 79 | 79 | | |
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| 80 | 80 | | LC002003 - Page 3 of 15 |
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| 81 | 81 | | 1, 1991. 1 |
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| 82 | 82 | | (6) The construction, operation and/or alteration of major energy facilities shall be 2 |
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| 83 | 83 | | consistent with the state’s established energy plans, goals, and policy. 3 |
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| 84 | 84 | | (7) Before approving the construction, operation and/or alteration of major energy 4 |
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| 85 | 85 | | facilities, the board shall determine whether cost effective efficiency and conservation 5 |
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| 86 | 86 | | opportunities provide an appropriate alternative to the proposed facility. 6 |
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| 87 | 87 | | (8) The energy facilities siting board shall give priority to energy generation projects based 7 |
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| 88 | 88 | | on the degree to which such projects meet, criteria including, but not limited to: 8 |
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| 89 | 89 | | (i) Using renewable fuels, or natural gas, or coal processed by “clean coal technology” as 9 |
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| 90 | 90 | | their primary fuel; 10 |
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| 91 | 91 | | (ii) Maximizing efficiency; 11 |
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| 92 | 92 | | (iii) Using low levels of high quality water; 12 |
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| 93 | 93 | | (iv) Using existing energy-generation facilities and sites; 13 |
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| 94 | 94 | | (v) Producing low levels of potentially harmful air emissions; 14 |
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| 95 | 95 | | (vi) Producing low levels of wastewater discharge; 15 |
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| 96 | 96 | | (vii) Producing low levels of waste into the solid waste stream; and 16 |
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| 97 | 97 | | (viii) Having dual fuel capacity. 17 |
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| 98 | 98 | | The board shall, within its rules and regulations, provide guidelines and definitions of 18 |
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| 99 | 99 | | appropriate standards for the criteria designated in this subsection by January 1, 1991. 19 |
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| 100 | 100 | | 42-98-3. Definitions. 20 |
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| 101 | 101 | | As used in this chapter: 21 |
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| 102 | 102 | | (1) "Advisory agencies" means the agencies, councils, boards, departments, and officials 22 |
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| 103 | 103 | | of state or political subdivisions of the state which, absent this chapter, would have statutory 23 |
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| 104 | 104 | | authority to grant or deny a permit, license, variance, or assent, and which shall function at the 24 |
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| 105 | 105 | | direction of the board for hearing an issue and rendering an advisory opinion thereon, including, 25 |
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| 106 | 106 | | but not limited to, the public utilities commission, department of transportation, department of 26 |
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| 107 | 107 | | environmental management, historical preservation and heritage commission, division of planning, 27 |
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| 108 | 108 | | department of health, office of energy resources, municipal zoning board, municipal planning 28 |
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| 109 | 109 | | board, municipal building inspector, and municipal tax assessor. 29 |
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| 110 | 110 | | (a)(2) “Agency” means any agency, council, board, or commission of the state or political 30 |
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| 111 | 111 | | subdivision of the state. 31 |
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| 112 | 112 | | (b)(3) “Alteration” means a significant modification to a major energy facility, which, as 32 |
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| 113 | 113 | | determined by the board, will result in a significant impact on the environment, or the public health, 33 |
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| 114 | 114 | | safety, and welfare. Conversion from one type of fuel to another to biofuel shall not be considered 34 |
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| 115 | 115 | | |
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| 116 | 116 | | |
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| 117 | 117 | | LC002003 - Page 4 of 15 |
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| 118 | 118 | | to be an “alteration.” 1 |
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| 119 | 119 | | (c)(4) “Board” for purposes of this chapter refers to the siting board. 2 |
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| 120 | 120 | | (5) "Host community" means any municipality in the state in which all or the majority of 3 |
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| 121 | 121 | | a major energy facility is or shall be located. For the purpose of defining "located", linear aspects 4 |
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| 122 | 122 | | of a major energy facility that transit through multiple municipalities, to include electric 5 |
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| 123 | 123 | | transmission lines as used in this section and pipelines as used in this section shall not be considered 6 |
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| 124 | 124 | | in determining where "the majority" of a major energy facility is or shall be located. 7 |
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| 125 | 125 | | (6) For purpose of this chapter, there shall be two (2) types of "major energy facilities": 8 |
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| 126 | 126 | | (i) "Major generating facility" means facilities for the generation of electricity designed or 9 |
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| 127 | 127 | | capable of operating at a gross capacity of forty megawatts (40mw) or more. 10 |
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| 128 | 128 | | (d)(ii) “Major energy non-generating facility” means: 11 |
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| 129 | 129 | | (A) Facilities facilities for the extraction, production, conversion, and processing of coal; 12 |
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| 130 | 130 | | facilities for the generation of electricity designed or capable of operating at a gross capacity of 13 |
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| 131 | 131 | | forty (40) megawatts or more; 14 |
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| 132 | 132 | | (B) Electric transmission lines of sixty-nine (69) Kv or over; 15 |
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| 133 | 133 | | (C) Facilities facilities for the conversion, gasification, treatment, transfer, or storage of 16 |
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| 134 | 134 | | liquefied natural and liquefied petroleum gases, except natural gas pipelines that have a maximum 17 |
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| 135 | 135 | | allowable operating pressure (MOAP) of two hundred pounds per square inch gauge (200 psig) or 18 |
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| 136 | 136 | | less; 19 |
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| 137 | 137 | | (D) Facilities facilities for the processing, enrichment, storage, or disposal of nuclear fuels 20 |
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| 138 | 138 | | or nuclear byproducts; 21 |
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| 139 | 139 | | (E) Facilities facilities for the refining of oil, gas, or other petroleum products; facilities of 22 |
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| 140 | 140 | | ten (10) megawatts or greater capacity for the generation of electricity by water power, and 23 |
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| 141 | 141 | | (F) Facilities facilities associated with the transfer of oil, gas, gasoline, and coal via 24 |
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| 142 | 142 | | pipeline; any energy facility project of the Rhode Island economic development corporation; the 25 |
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| 143 | 143 | | board may promulgate regulations to further define “major energy facility” to the extent further 26 |
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| 144 | 144 | | definition is required to carry out the purpose of this chapter, provided that any waste to energy 27 |
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| 145 | 145 | | facility shall not be deemed a major energy facility for the purposes of this chapter. 28 |
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| 146 | 146 | | (e) “Clean coal technology” means one of the technologies developed in the clean coal 29 |
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| 147 | 147 | | technology program of the United States Department of Energy, and shown to produce emissions 30 |
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| 148 | 148 | | levels substantially equal to those of natural gas fired power plants. 31 |
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| 149 | 149 | | 42-98-5. Board established. 32 |
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| 150 | 150 | | (a) There is established the siting board which shall be a part of state government. 33 |
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| 151 | 151 | | (1) The siting board shall consist of three (3) five (5) members, as follows: the chairperson 34 |
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| 152 | 152 | | |
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| 153 | 153 | | |
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| 154 | 154 | | LC002003 - Page 5 of 15 |
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| 155 | 155 | | of the public utilities commission, or designee, who shall serve as chairperson of the siting board; 1 |
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| 156 | 156 | | the director of the department of environmental management, or designee; and the associate 2 |
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| 157 | 157 | | director of administration for planning, or designee; the secretary of commerce, or designee; and a 3 |
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| 158 | 158 | | public member appointed in accordance with § 42-98-5.1. Any member of the board who recuses 4 |
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| 159 | 159 | | him or herself shall designate his or her own successor from his or her respective agency. 5 |
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| 160 | 160 | | (2) Any member of the board, other than a public member, may select their own designee 6 |
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| 161 | 161 | | from their respective agency who shall serve until a final determination is made in the proceeding 7 |
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| 162 | 162 | | for which they were designated. 8 |
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| 163 | 163 | | (b) Each member of the board, including designees, shall take an oath to administer the 9 |
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| 164 | 164 | | duties of office faithfully and impartially and that oath shall be filed in the office of the secretary 10 |
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| 165 | 165 | | of state. 11 |
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| 166 | 166 | | (c) The members of the board shall serve without compensation, but shall be reimbursed 12 |
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| 167 | 167 | | for their actual expenses necessarily incurred in the performance of their duties. The board may 13 |
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| 168 | 168 | | engage any consultants or expert witnesses that it deems necessary to implement its statutory 14 |
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| 169 | 169 | | responsibilities; provided, however, that to the maximum extent possible, board staff be drawn 15 |
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| 170 | 170 | | from existing state agencies. The board shall select a coordinator to be responsible for the 16 |
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| 171 | 171 | | publication and distribution of all official minutes, reports, and documents and to further serve as 17 |
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| 172 | 172 | | director of the board staff, which shall be located at the division of public utilities and common 18 |
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| 173 | 173 | | carriers. The coordinator, under the direction of the chairperson, shall coordinate and expedite the 19 |
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| 174 | 174 | | work of the various agencies to ensure that decisions are made within the time frame established 20 |
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| 175 | 175 | | by this chapter. The board may appoint hearing officers to conduct hearings in accordance with § 21 |
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| 176 | 176 | | 42-98-5.2. Any individual designated as board staff shall be bound to comply with the ex parte 22 |
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| 177 | 177 | | provisions of § 42-35-13. 23 |
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| 178 | 178 | | (d) A quorum shall consist of a majority of the board. A majority vote of the board shall be 24 |
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| 179 | 179 | | required for all actions, including licensing decisions; provided, however, one member of the board 25 |
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| 180 | 180 | | may conduct any hearings the board is authorized to conduct pursuant to this chapter. 26 |
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| 181 | 181 | | (e) The board shall maintain and grant free access to records and reports in its files to 27 |
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| 182 | 182 | | members of the public during normal working hours and shall permit copies of those records and 28 |
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| 183 | 183 | | reports to be made by interested members of the public at their expense; provided, however, that 29 |
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| 184 | 184 | | the board shall not permit disclosure, other than to another government agency for the sole purpose 30 |
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| 185 | 185 | | of rendering an advisory opinion, of any information obtained by or submitted to the board pursuant 31 |
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| 186 | 186 | | to the provisions of this chapter, upon a showing, satisfactory to the board, that the information is 32 |
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| 187 | 187 | | entitled to protection as trade secrets or as privileged, confidential, or proprietary information. No 33 |
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| 188 | 188 | | other governmental agency shall disclose any trade secrets or privileged, confidential, or 34 |
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| 189 | 189 | | |
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| 190 | 190 | | |
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| 191 | 191 | | LC002003 - Page 6 of 15 |
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| 192 | 192 | | proprietary information. 1 |
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| 193 | 193 | | 42-98-7. Powers and duties. 2 |
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| 194 | 194 | | (a)(1) The siting board is the licensing and permitting authority for all licenses, permits, 3 |
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| 195 | 195 | | assents, or variances which, under any statute of the state or ordinance of any political subdivision 4 |
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| 196 | 196 | | of the state, would be required for siting, construction or alteration of a major energy facility in the 5 |
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| 197 | 197 | | state. 6 |
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| 198 | 198 | | (2) Any agency, board, council, or commission of the state or political subdivision of the 7 |
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| 199 | 199 | | state which, absent this chapter, would be required to issue a permit, license, assent, or variance in 8 |
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| 200 | 200 | | order for the siting, construction, or alteration of a major energy facility to proceed, shall sit and 9 |
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| 201 | 201 | | function at the direction of the siting board. These agencies shall follow the procedures established 10 |
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| 202 | 202 | | by statute, ordinance, and/or regulation provided for determining the permit, license, assent, or 11 |
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| 203 | 203 | | variance, but, instead of issuing the permit, license, assent, or variance, shall forward its findings 12 |
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| 204 | 204 | | from the proceeding, together with the record supporting the findings and a recommendation for 13 |
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| 205 | 205 | | final action, to the siting board. 14 |
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| 206 | 206 | | (3) Notwithstanding any provision in this chapter to the contrary, in those instances in 15 |
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| 207 | 207 | | which the department of environmental management exercises a permitting or licensing function 16 |
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| 208 | 208 | | under the delegated authority of federal law, including, but not limited to, the Federal Clean Water 17 |
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| 209 | 209 | | Act (33 U.S.C. § 1251 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et 18 |
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| 210 | 210 | | seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), and those state laws and regulations which 19 |
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| 211 | 211 | | implement those federal laws, the department of environmental management shall be the licensing 20 |
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| 212 | 212 | | and permitting authority. Moreover, the authority to issue licenses and permits delegated to the 21 |
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| 213 | 213 | | department of environmental management pursuant to chapter 1 of title 2 and to the coastal 22 |
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| 214 | 214 | | resources management council pursuant to chapter 23 of title 46, shall remain with those agencies, 23 |
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| 215 | 215 | | but in all other respects the department of environmental management and the coastal resources 24 |
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| 216 | 216 | | management council shall follow the procedures set forth in this chapter. 25 |
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| 217 | 217 | | (b) The siting board is authorized and empowered to summon and examine witnesses and 26 |
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| 218 | 218 | | to compel the production and examination of papers, books, accounts, documents, records, 27 |
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| 219 | 219 | | certificates, and other legal evidence that may be necessary for the determination of its jurisdiction 28 |
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| 220 | 220 | | and decision of any question before, or the discharge of any duty required by law of, the board. 29 |
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| 221 | 221 | | (c) The siting board is empowered to issue any orders, rules, or regulations as may be 30 |
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| 222 | 222 | | required to effectuate the purposes of this chapter. The board shall review its rules and regulations 31 |
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| 223 | 223 | | from time to time and shall modify, amend or repeal any rules or regulations as may be required to 32 |
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| 224 | 224 | | effectuate the purposes of this chapter. 33 |
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| 225 | 225 | | (d) The siting board shall, by regulation, determine the standards for intervention. Each 34 |
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| 226 | 226 | | |
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| 227 | 227 | | |
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| 228 | 228 | | LC002003 - Page 7 of 15 |
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| 229 | 229 | | host community shall be granted intervenor status as of right. 1 |
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| 230 | 230 | | (e) The siting board’s proceedings shall in all respects comply with the requirements of the 2 |
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| 231 | 231 | | Administrative Procedures Act, chapter 35 of this title, except where otherwise explicitly provided. 3 |
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| 232 | 232 | | 42-98-8. Applications — Contents — Acceptance for filing. 4 |
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| 233 | 233 | | (a) The rules and regulations promulgated by the board pursuant to § 42-98-7(c) shall 5 |
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| 234 | 234 | | prescribe the form and contents of applications under this chapter. The applications shall contain 6 |
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| 235 | 235 | | at least the following, where applicable: 7 |
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| 236 | 236 | | (1) Identification of the proposed owner(s) of the facility, including identification of all 8 |
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| 237 | 237 | | affiliates of the proposed owners, as the term is defined in § 39-3-27. 9 |
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| 238 | 238 | | (2) Detailed description of the proposed facility, including its function and operating 10 |
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| 239 | 239 | | characteristics, and complete plans as to all structures, including underground construction and 11 |
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| 240 | 240 | | transmission facilities, underground or aerial, associated with the proposed facility. 12 |
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| 241 | 241 | | The complete plans shall be the basis for determining jurisdiction under the energy facility 13 |
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| 242 | 242 | | siting act and shall be the plans submitted to all advisory agencies whose permit is required under 14 |
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| 243 | 243 | | the law. 15 |
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| 244 | 244 | | (3) A detailed description and analysis of the impact of the proposed facility on its physical 16 |
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| 245 | 245 | | and social environment together with a detailed description of all environmental characteristics of 17 |
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| 246 | 246 | | the proposed site, including, but not limited to, the types of fuels and waste products used, stored, 18 |
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| 247 | 247 | | and produced by the facility, and a summary of all studies prepared and relied upon in connection 19 |
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| 248 | 248 | | therewith. 20 |
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| 249 | 249 | | Where applicable these descriptions and analysis shall include a review of current 21 |
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| 250 | 250 | | independent, scientific research pertaining to electric and magnetic fields (EMF). The review shall 22 |
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| 251 | 251 | | provide data assessing potential health risks associated with EMF exposure. For the purposes of 23 |
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| 252 | 252 | | this chapter “prudent avoidance” shall refer to measures to be implemented in order to protect the 24 |
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| 253 | 253 | | public from EMF exposure. 25 |
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| 254 | 254 | | (4) All studies and forecasts, complete with the information, data, methodology, and 26 |
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| 255 | 255 | | assumptions on which they are based, on which the applicant intends to rely in showing the need 27 |
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| 256 | 256 | | for the proposed facility under the statewide master construction plan submitted annually. 28 |
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| 257 | 257 | | (5) Complete detail as to the estimated construction cost of the proposed facility, the 29 |
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| 258 | 258 | | projected maintenance and operation costs, estimated costs to the community such as safety and 30 |
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| 259 | 259 | | public health issues, storm damage and power outages, estimated costs to businesses and 31 |
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| 260 | 260 | | homeowners due to power outages, the estimated unit cost of energy to be produced by the proposed 32 |
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| 261 | 261 | | facility, and expected methods of financing the facility. 33 |
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| 262 | 262 | | (6) A complete life-cycle management plan for the proposed facility, including measures 34 |
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| 263 | 263 | | |
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| 264 | 264 | | |
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| 265 | 265 | | LC002003 - Page 8 of 15 |
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| 266 | 266 | | for protecting the public health and safety and the environment during the facility’s normal and off-1 |
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| 267 | 267 | | normal operations, including, but not limited to, plans for the handling and disposal of wastes from 2 |
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| 268 | 268 | | the facility, and plans for the decommissioning of the facility at the end of its useful life. 3 |
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| 269 | 269 | | (7) A study of alternatives to the proposed facility, including alternatives as to energy 4 |
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| 270 | 270 | | sources, methods of energy production, and sites for the facility, together with reasons for the 5 |
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| 271 | 271 | | applicant’s rejection of these alternatives. The study shall include estimates of facility cost and unit 6 |
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| 272 | 272 | | energy costs of alternatives considered. 7 |
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| 273 | 273 | | (8) A detailed description of the short-term and long-term economic impacts associated 8 |
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| 274 | 274 | | with constructing and operating the proposed project. 9 |
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| 275 | 275 | | (b) Each application shall be reviewed prior to docketing. The board shall conduct a 10 |
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| 276 | 276 | | preliminary review to determine whether the application contains each item as required by 11 |
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| 277 | 277 | | subsection (a) of this section. Within thirty (30) days of the filing of an applicant application under 12 |
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| 278 | 278 | | this chapter, the board shall notify the applicant whether the application is in the form and addresses 13 |
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| 279 | 279 | | the matters that are required by this section and the rules and regulations as are promulgated 14 |
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| 280 | 280 | | pursuant to § 42-98-7. An application meeting these requirements shall then be docketed. Any 15 |
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| 281 | 281 | | application deemed to be deficient shall be returned to the applicant, together with a concise and 16 |
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| 282 | 282 | | explicit statement of the application’s deficiencies. Within fifteen (15) days of the resubmission of 17 |
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| 283 | 283 | | an application following a rejection for deficiency, the board shall either docket the application 18 |
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| 284 | 284 | | together with specification of continuing deficiencies noted by the board, if any, or shall issue a 19 |
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| 285 | 285 | | decision rejecting the application due to continuing deficiencies. 20 |
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| 286 | 286 | | 42-98-9. Applications — Procedures for review — Preliminary hearing. 21 |
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| 287 | 287 | | (a) Within sixty (60) days following the board’s docketing of an application the board shall, 22 |
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| 288 | 288 | | on not less than forty-five (45) days’ notice to all agencies, subdivisions of the state, and the public, 23 |
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| 289 | 289 | | convene a preliminary hearing on the application to determine the issues to be considered by the 24 |
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| 290 | 290 | | board in evaluating the application, and to designate those agencies of state government and of 25 |
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| 291 | 291 | | political subdivisions of the state which shall act at the direction of the board for the purpose of 26 |
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| 292 | 292 | | rendering advisory opinions on these issues, and to determine petitions for intervention. 27 |
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| 293 | 293 | | (b) The board shall consider as issues in every proceeding the ability of the proposed 28 |
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| 294 | 294 | | facility to meet the requirements of the laws, rules, regulations, and ordinances under which, absent 29 |
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| 295 | 295 | | this chapter, the applicant would be required to obtain a permit, license, variance, or assent. The 30 |
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| 296 | 296 | | agency of state government or of a political subdivision of the state which, absent this chapter, 31 |
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| 297 | 297 | | would have statutory authority to grant or deny the permit, license, variance, or assent, shall 32 |
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| 298 | 298 | | function at the direction of the board for hearing the issue and rendering an advisory opinion 33 |
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| 299 | 299 | | thereon. 34 |
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| 300 | 300 | | |
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| 301 | 301 | | |
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| 302 | 302 | | LC002003 - Page 9 of 15 |
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| 303 | 303 | | (c) The board shall may limit the scope of any agency’s investigation where it finds that 1 |
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| 304 | 304 | | more than one agency has jurisdiction over a matter at issue in the licensing process. In these 2 |
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| 305 | 305 | | instances, the board shall may determine which agency shall make the necessary findings on the 3 |
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| 306 | 306 | | issue after giving proper consideration to the expertise and resources available to each of the 4 |
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| 307 | 307 | | agencies involved. 5 |
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| 308 | 308 | | (d) The public utilities commission shall conduct an investigation in which the division of 6 |
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| 309 | 309 | | planning of the department of administration, the governor’s office of energy assistance resources 7 |
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| 310 | 310 | | and the division of public utilities and carriers shall participate and render an advisory opinion as 8 |
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| 311 | 311 | | to the need for the proposed facility. 9 |
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| 312 | 312 | | (e) The statewide planning program within the department of administration shall conduct 10 |
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| 313 | 313 | | an investigation and render an advisory opinion as to the socio-economic impact of the proposed 11 |
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| 314 | 314 | | facility and its construction and consistency with the state guide plan. 12 |
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| 315 | 315 | | (f) A decision of the board under this section shall be issued within thirty (30) days 13 |
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| 316 | 316 | | following the conclusion of the preliminary hearing and in any event within forty-five (45) days of 14 |
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| 317 | 317 | | the commencement of the hearing. 15 |
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| 318 | 318 | | 42-98-9.1. Public notice and hearings on construction projects in cities and towns 16 |
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| 319 | 319 | | affected. 17 |
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| 320 | 320 | | (a) Upon receiving a utility company application the board shall immediately notify, in 18 |
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| 321 | 321 | | writing, the councils of the towns and cities affected by the construction. 19 |
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| 322 | 322 | | (b)(1) The When the subject of the application is a major non-generating facility, the board 20 |
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| 323 | 323 | | shall have at least one public hearing in each town or city affected the host community prior to 21 |
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| 324 | 324 | | holding its own hearings and prior to taking final action on the application. All details of acceptance 22 |
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| 325 | 325 | | for filing in § 42-98-8(a)(1) — (a)(6) shall be presented at town or city hearings for public comment. 23 |
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| 326 | 326 | | When the subject of the application is a facility for the generation of electricity, or are new facilities 24 |
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| 327 | 327 | | for the transmission of electricity, the town or city where the proposed facility would be located 25 |
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| 328 | 328 | | may request funding from the applicant to perform studies of the local environmental effects of the 26 |
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| 329 | 329 | | proposed facility. The expense of those studies shall not exceed the lesser of one hundred thousand 27 |
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| 330 | 330 | | dollars ($100,000) or one-tenth percent (.1%) of the estimated capital cost of the proposed facility 28 |
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| 331 | 331 | | located in such city or town. If the applicant contests the relevance of the requested study, or 29 |
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| 332 | 332 | | believes it to be redundant with studies already performed, the applicant may request a ruling from 30 |
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| 333 | 333 | | the board whether the study is necessary and reasonably expected to produce relevant information. 31 |
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| 334 | 334 | | The board’s ruling shall be conclusive and final, and shall not be the basis for an interlocutory 32 |
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| 335 | 335 | | appeal, injunction or otherwise delay the board’s processing of the application. 33 |
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| 336 | 336 | | (2) When the subject of the application is a major generating facility, the board shall have 34 |
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| 337 | 337 | | |
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| 338 | 338 | | |
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| 339 | 339 | | LC002003 - Page 10 of 15 |
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| 340 | 340 | | at least three (3) public hearings in the host community prior to holding its own hearings and prior 1 |
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| 341 | 341 | | to taking final action on the application. All details of acceptance for filing in § 42-98-8(a) shall be 2 |
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| 342 | 342 | | presented at public hearings for public comment. The host community where the proposed 3 |
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| 343 | 343 | | generating facility would be located may request funding from the applicant to perform studies of 4 |
|---|
| 344 | 344 | | the local environmental effects of the proposed facility. The expense of those studies shall not 5 |
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| 345 | 345 | | exceed the greater of one hundred fifty thousand dollars ($150,000) or one-tenth percent (.1%) of 6 |
|---|
| 346 | 346 | | the estimated capital cost of the proposed facility, whichever is more. The applicant shall also pay 7 |
|---|
| 347 | 347 | | any and all fees and expenses reasonably incurred by the host community to fully participate in the 8 |
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| 348 | 348 | | facility siting process and local review, including, but not limited to, fees and expenses for legal 9 |
|---|
| 349 | 349 | | counsel, expert evaluations, transcripts and other costs associated with the energy facility siting 10 |
|---|
| 350 | 350 | | process. If the applicant contests any fee or expense as unrelated or unreasonable, the applicant 11 |
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| 351 | 351 | | may request a ruling from the board whether the fee or expense is related and reasonable. The 12 |
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| 352 | 352 | | board's ruling shall be conclusive and final and shall not be the basis for an interlocutory appeal, 13 |
|---|
| 353 | 353 | | injunction or otherwise delay the board's processing of the application. 14 |
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| 354 | 354 | | (c) The applicant shall notify the citizens in towns and cities affected thirty (30) days prior 15 |
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| 355 | 355 | | to public meetings through local papers. 16 |
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| 356 | 356 | | (d) The applicant shall notify abutting land the following property owners individually, in 17 |
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| 357 | 357 | | writing, thirty (30) days prior to the hearings, by certified mail, postage prepaid.: 18 |
|---|
| 358 | 358 | | (1) For applications related to major non-generating facilities, applicants shall notify all 19 |
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| 359 | 359 | | property owners whose property is located within three hundred feet (300’) from the limit of 20 |
|---|
| 360 | 360 | | disturbance of the proposed project or the centerline of a proposed linear project; provided, no 21 |
|---|
| 361 | 361 | | additional notice is required for sixty (60) and ninety (90) day notices of intent. 22 |
|---|
| 362 | 362 | | (2) For applications related to major generating facilities, applicants shall notify all 23 |
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| 363 | 363 | | property owners whose property is located within two (2) miles from the proposed site boundaries. 24 |
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| 364 | 364 | | (e) Public input shall be a part of the decision making process. 25 |
|---|
| 365 | 365 | | 42-98-10. Agency procedures — Advisory opinion. 26 |
|---|
| 366 | 366 | | (a) Each agency of the state or political subdivision of the state designated under § 42-98-27 |
|---|
| 367 | 367 | | 9 shall proceed to consider the issue or issues consigned to it for review. Each advisory agency 28 |
|---|
| 368 | 368 | | shall conclude its consideration and issue its advisory opinion not more than six (6) months 29 |
|---|
| 369 | 369 | | following its designation under § 42-98-9 and receipt of all application materials, or any lesser time 30 |
|---|
| 370 | 370 | | that the board may require, or the right to exercise the function shall be forfeited to the board. The 31 |
|---|
| 371 | 371 | | board may suspend an application proceeding where an applicant fails to provide requested relevant 32 |
|---|
| 372 | 372 | | information or materials to an advisory agency in a timely manner. 33 |
|---|
| 373 | 373 | | (b) Advisory opinions issued by agencies designated under § 42-98-9 shall not be 34 |
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| 374 | 374 | | |
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| 375 | 375 | | |
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| 376 | 376 | | LC002003 - Page 11 of 15 |
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| 377 | 377 | | considered as final decisions of the agencies making the opinions, and shall not be subject to 1 |
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| 378 | 378 | | judicial review under § 42-35-15, or any other provision of the general laws. 2 |
|---|
| 379 | 379 | | (c) Advisory opinions issued by zoning boards of review, building inspectors, or any other 3 |
|---|
| 380 | 380 | | agency of a municipality designated under § 42-98-9 shall not be reviewable by the public utilities 4 |
|---|
| 381 | 381 | | commission under § 39-1-30. 5 |
|---|
| 382 | 382 | | (d) Failure or refusal of the applicant to provide requested information may be considered 6 |
|---|
| 383 | 383 | | as grounds for recommending denial. 7 |
|---|
| 384 | 384 | | (e) At the request of the siting board, the director of environmental management and the 8 |
|---|
| 385 | 385 | | coastal resources management council shall give priority to the review of permits for energy 9 |
|---|
| 386 | 386 | | facilities. 10 |
|---|
| 387 | 387 | | 42-98-11. Final hearing — Standards — Decisions. 11 |
|---|
| 388 | 388 | | (a) Within forty-five (45) days after the final date for submission of advisory opinions 12 |
|---|
| 389 | 389 | | pursuant to § 42-98-10, the board shall convene the final hearing on the application. The purpose 13 |
|---|
| 390 | 390 | | of this the final hearing shall not be to rehear the evidence which was presented previously in 14 |
|---|
| 391 | 391 | | hearings before agencies designated under § 42-98-9, but rather to provide the applicant, 15 |
|---|
| 392 | 392 | | intervenors, the public, and all other parties in the proceeding, the opportunity to address in a single 16 |
|---|
| 393 | 393 | | forum, and from a consolidated, statewide prospective, the issues reviewed, and the 17 |
|---|
| 394 | 394 | | recommendations made in the proceedings before the agencies designated under § 42-98-9. The 18 |
|---|
| 395 | 395 | | board at this hearing may, at its discretion, allow the presentation of new evidence by any party as 19 |
|---|
| 396 | 396 | | to the issues considered by the agencies designated under § 42-98-9. The board may limit the 20 |
|---|
| 397 | 397 | | presentation of repetitive or cumulative evidence. The final hearing shall proceed on not less than 21 |
|---|
| 398 | 398 | | thirty (30) days’ notice to the parties and the public, shall be concluded not more than sixty (60) 22 |
|---|
| 399 | 399 | | days following its initiation, and shall be conducted expeditiously. 23 |
|---|
| 400 | 400 | | (b) The board shall issue a decision granting a license only upon finding that the applicant 24 |
|---|
| 401 | 401 | | has shown that: 25 |
|---|
| 402 | 402 | | (1) Construction of the proposed facility is necessary to meet the needs of the state and/or 26 |
|---|
| 403 | 403 | | region for energy of the type to be produced by the proposed facility. 27 |
|---|
| 404 | 404 | | (2) The proposed facility is cost-justified, and can be expected to produce energy at the 28 |
|---|
| 405 | 405 | | lowest reasonable cost to the consumer consistent with the objective of ensuring that the 29 |
|---|
| 406 | 406 | | construction and operation of the proposed facility will be accomplished in compliance with all of 30 |
|---|
| 407 | 407 | | the requirements of the laws, rules, regulations, and ordinances, under which, absent this chapter, 31 |
|---|
| 408 | 408 | | a permit, license, variance, or assent would be required, or that consideration of the public health, 32 |
|---|
| 409 | 409 | | safety, welfare, security and need for the proposed facility justifies a waiver of some part of the 33 |
|---|
| 410 | 410 | | requirements when compliance cannot be assured. 34 |
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| 411 | 411 | | |
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| 412 | 412 | | |
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| 413 | 413 | | LC002003 - Page 12 of 15 |
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| 414 | 414 | | (3) The proposed facility will not cause unacceptable harm to the environment and will 1 |
|---|
| 415 | 415 | | enhance the socio-economic fabric of the state. 2 |
|---|
| 416 | 416 | | (c) For multiple applications related to a single project, the board shall consider the 3 |
|---|
| 417 | 417 | | cumulative impacts of the related applications. 4 |
|---|
| 418 | 418 | | (c)(d) Within sixty (60) days of the conclusion of the final hearing the board shall issue its 5 |
|---|
| 419 | 419 | | final decision on the application. A decision in favor of the application shall constitute a granting 6 |
|---|
| 420 | 420 | | of all permits, licenses, variances, or assents, which under any law, rule, regulation, or ordinance 7 |
|---|
| 421 | 421 | | of the state or of a political subdivision thereof which would, absent this chapter, be required for 8 |
|---|
| 422 | 422 | | the proposed facility. The decision may be issued requiring any modification or alteration of the 9 |
|---|
| 423 | 423 | | proposed facility, and may be issued on any condition the board deems warranted by the record, 10 |
|---|
| 424 | 424 | | and may be issued conditional upon the applicant’s receipt of permits required by federal law. The 11 |
|---|
| 425 | 425 | | board’s decision shall explicitly address each of the advisory opinions received from agencies, and 12 |
|---|
| 426 | 426 | | the board’s reasons for accepting, rejecting, or modifying, in whole or in part, any of those advisory 13 |
|---|
| 427 | 427 | | opinions. The board shall, within ten (10) days of granting a license, with or without conditions, 14 |
|---|
| 428 | 428 | | deliver the decision to the governor, the speaker of the Rhode Island house of representatives, and 15 |
|---|
| 429 | 429 | | the president of the Rhode Island senate. 16 |
|---|
| 430 | 430 | | 42-98-16. Violations. 17 |
|---|
| 431 | 431 | | (a) Failure to comply with any promulgated board rule, regulation, requirement or 18 |
|---|
| 432 | 432 | | procedure for the licensing of energy facilities shall constitute grounds for suspension or dismissal, 19 |
|---|
| 433 | 433 | | with or without prejudice in its discretion, of licensing proceedings, provided that the applicant 20 |
|---|
| 434 | 434 | | shall have a reasonable opportunity to show cause for and remedy the lack of compliance. 21 |
|---|
| 435 | 435 | | (b) Failure to comply with any provision, condition or limitation contained in a board 22 |
|---|
| 436 | 436 | | license to site, build, or alter a major energy facility and/or failure to comply with a board cease 23 |
|---|
| 437 | 437 | | and desist order and/or a board order to remedy a non-complying action shall be grounds for 24 |
|---|
| 438 | 438 | | suspension or revocation of the license, and/or shall be punishable by a fine of not more than twenty 25 |
|---|
| 439 | 439 | | thousand dollars ($20,000). Each day of continuing noncompliance shall be considered a separate 26 |
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| 440 | 440 | | violation and so punished. 27 |
|---|
| 441 | 441 | | (c) The board may require the licensee to maintain those records as are reasonable and 28 |
|---|
| 442 | 442 | | necessary to monitor compliance with license provisions, and shall have the authority to enter onto 29 |
|---|
| 443 | 443 | | the property of licensees to investigate complaints of noncompliance and to perform routine 30 |
|---|
| 444 | 444 | | inspections. 31 |
|---|
| 445 | 445 | | (d) The board may designate officials or staff of any state agencies as its agents for the 32 |
|---|
| 446 | 446 | | purposes of investigating complaints, performing routine maintenance functions and issuing 33 |
|---|
| 447 | 447 | | written cease and desist orders. 34 |
|---|
| 448 | 448 | | |
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| 449 | 449 | | |
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| 450 | 450 | | LC002003 - Page 13 of 15 |
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| 451 | 451 | | (e) Nothing in this chapter shall preclude a host community from enforcing municipal 1 |
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| 452 | 452 | | ordinances, levying fines, or pursuing any other legally available enforcement remedies, unless 2 |
|---|
| 453 | 453 | | such ordinances are in direct conflict with a certificate or license issued by the board. 3 |
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| 454 | 454 | | SECTION 2. Chapter 42-98 of the General Laws entitled "Energy Facility Siting Act" is 4 |
|---|
| 455 | 455 | | hereby amended by adding thereto the following sections: 5 |
|---|
| 456 | 456 | | 42-98-5.1. Public members. 6 |
|---|
| 457 | 457 | | (a) A public member shall be appointed to the board by the governor with the advice and 7 |
|---|
| 458 | 458 | | consent of the senate for a term of two (2) years. 8 |
|---|
| 459 | 459 | | (b) A public member shall be a member of the general public. 9 |
|---|
| 460 | 460 | | (c) A public member shall not hold another state or local office and shall not receive nor 10 |
|---|
| 461 | 461 | | have received within the previous five (5) years any income directly or indirectly from an electric, 11 |
|---|
| 462 | 462 | | gas, or oil company or from an energy facility developer. 12 |
|---|
| 463 | 463 | | (d) If a public member recuses or withdraws from a proceeding for any reason, a substitute 13 |
|---|
| 464 | 464 | | member shall be appointed in accordance with this section. 14 |
|---|
| 465 | 465 | | 42-98-5.2. Hearing officers. 15 |
|---|
| 466 | 466 | | (a) The board may appoint a hearing officer to conduct hearings related to a major non-16 |
|---|
| 467 | 467 | | generating facility. Hearing officers shall not be appointed to conduct hearings related to a major 17 |
|---|
| 468 | 468 | | generating facility. 18 |
|---|
| 469 | 469 | | (b) A hearing officer shall be an attorney licensed to practice law in this state with 19 |
|---|
| 470 | 470 | | experience in regulatory matters dealing with energy production and/or transmission. 20 |
|---|
| 471 | 471 | | (c) A hearing officer shall be reasonably compensated by the board for their services to the 21 |
|---|
| 472 | 472 | | board, either through contract or, if the hearing officer is a state employee, through a transfer to the 22 |
|---|
| 473 | 473 | | state agency or department by whom the attorney is normally employed. 23 |
|---|
| 474 | 474 | | (d) Following the completion of the hearing, the hearing officer shall file their findings and 24 |
|---|
| 475 | 475 | | recommended decision in writing with the board. Upon review of the findings and 25 |
|---|
| 476 | 476 | | recommendations, the board may accept, reject, or modify, in whole or in part, the hearing officer’s 26 |
|---|
| 477 | 477 | | findings and recommended decision. Subsequent to the board's review and formal decision, the 27 |
|---|
| 478 | 478 | | provider may submit a written brief to the board if the energy provider has a negative impact due 28 |
|---|
| 479 | 479 | | to the hearing officer's findings. The hearing officer’s findings and recommended decision shall 29 |
|---|
| 480 | 480 | | become effective and shall have the same force and effect as a decision of the board. If the board 30 |
|---|
| 481 | 481 | | rejects or modifies the hearing officer’s findings or recommended decision, then the board shall 31 |
|---|
| 482 | 482 | | decide the matter independently and issue an order of the board with its findings and decision. 32 |
|---|
| 483 | 483 | | (e) No hearing officer shall be assigned to a hearing relating to a project or proposed project 33 |
|---|
| 484 | 484 | | by an applicant from whom they have directly or indirectly received compensation in the last five 34 |
|---|
| 485 | 485 | | |
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| 486 | 486 | | |
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| 487 | 487 | | LC002003 - Page 14 of 15 |
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| 488 | 488 | | (5) years. 1 |
|---|
| 489 | 489 | | (f) The board shall establish within two (2) months of the effective date of this section and 2 |
|---|
| 490 | 490 | | maintain, at least on a biennial basis, a list of qualified hearing officers, the number of which the 3 |
|---|
| 491 | 491 | | board shall set and select as needed. 4 |
|---|
| 492 | 492 | | (g) The list shall be composed with an equal number of officers with primary professional 5 |
|---|
| 493 | 493 | | experience as advocates for government and an equal number of officers with primary professional 6 |
|---|
| 494 | 494 | | experience as advocates for the private sector. 7 |
|---|
| 495 | 495 | | SECTION 3. This act shall take effect upon passage. 8 |
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| 496 | 496 | | ======== |
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| 497 | 497 | | LC002003 |
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| 498 | 498 | | ======== |
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| 499 | 499 | | |
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| 500 | 500 | | |
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| 501 | 501 | | LC002003 - Page 15 of 15 |
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| 502 | 502 | | EXPLANATION |
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| 503 | 503 | | BY THE LEGISLATIVE COUNCIL |
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| 504 | 504 | | OF |
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| 505 | 505 | | A N A C T |
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| 506 | 506 | | RELATING TO STATE AFFAIRS AND GOVERNMENT -- ENERGY FACILITY SITING |
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| 507 | 507 | | ACT |
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| 508 | 508 | | *** |
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| 509 | 509 | | This act would recognize that a host community for a proposed or existing major generating 1 |
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| 510 | 510 | | facility is uniquely affected by the facility siting process. The act would also increase the 2 |
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| 511 | 511 | | membership of the siting board from three (3) to five (5) members and would mandate inclusion 3 |
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| 512 | 512 | | and participation of the host community of the facility as well as the public in the affected cities 4 |
|---|
| 513 | 513 | | and towns. This act would spell out requirements for hearing officers and public members of the 5 |
|---|
| 514 | 514 | | board. 6 |
|---|
| 515 | 515 | | This act would take effect upon passage. 7 |
|---|
| 516 | 516 | | ======== |
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| 517 | 517 | | LC002003 |
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| 518 | 518 | | ======== |
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