2023 -- H 5945
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LC002003
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S TATE OF RHODE IS LAND
IN GENERAL ASSEMBLY
JANUARY SESSION, A.D. 2023
____________
A N A C T
RELATING TO STATE AFFAIRS AND GOVERNMENT -- ENERGY FACILITY SITING
ACT
Introduced By: Representatives Place, and Newberry
Date Introduced: March 01, 2023
Referred To: House Municipal Government & Housing
It is enacted by the General Assembly as follows:
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
98-9.1, 42-98-10, 42-98-11 and 42-98-16 of the General Laws in Chapter 42-98 entitled "Energy 2
Facility Siting Act" are hereby amended to read as follows: 3
42-98-1. Legislative findings. 4
(a) The general assembly recognizes that reasonably priced, reliable sources of energy are 5
vital to the well-being and prosperity of the people of this state; that there are major issues of public 6
health and safety and impact upon the environment related to the technologies and energy sources 7
used in some facilities; that some energy facilities require a major commitment of funds and 8
resources and require many years to build that the decision to permit or deny their construction will 9
have long term impact on the economy of the state; that these decisions will affect the availability 10
and cost of the energy; and that the evaluation of proposals must recognize and consider the need 11
for these facilities in relation to the overall impact of the facilities upon public health and safety, 12
the environment and the economy of the state; 13
(b) The general assembly further finds that the authority to regulate many aspects of the 14
issues involved in the siting of major energy facilities currently exists in a variety of agencies within 15
the government of the state and the political subdivisions of the state; that there is overlapping 16
jurisdiction among several state agencies in the siting of energy facilities; and that there is the 17
potential for conflicting decisions being issued by the various agencies having authority over the 18
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different aspects of the siting of a major energy facility; 1
(c) The jurisdiction of each state agency should be defined, and the role of each agency in 2
energy siting should be delineated, to eliminate overlap and duplication and to insure that 3
expeditious decisions are made within a time frame to be determined by law; and that in addition 4
to the existing regulation, statewide and regional planning for energy resources and the assessment 5
of our state’s need for energy should be on-going activities within Rhode Island; 6
(d) There is need for a coordinated decision on any major energy facility; the technical 7
expertise for this evaluation is available within existing agencies involved with the siting process; 8
and 9
(e) There is a need for coordinating and expediting the review of each state agency and that 10
the authority and responsibility to perform that function should be established; and 11
(f) The general assembly recognizes that a host community for a proposed or existing major 12
generating facility is uniquely affected by the energy facility siting process. 13
42-98-2. Declaration of policy. 14
It shall be the policy of this state to assure that: 15
(1) The facilities required to meet the energy needs of this and succeeding generations of 16
Rhode Islanders are planned for, considered, and built in a timely and orderly fashion; 17
(2) Construction, operation, and/or alteration of major energy facilities shall only be 18
undertaken when those actions are justified by long term state and/or regional energy need 19
forecasts; 20
(3) The energy shall be produced at the least possible cost to the consumer consistent with 21
the objective of ensuring that the construction, operation, and decommissioning of the facility shall 22
produce the fewest possible adverse effects on the quality of the state’s environment; most 23
particularly, its land and its wildlife and resources, the health and safety of its citizens, the purity 24
of its air and water, its aquatic and marine life, and its esthetic and recreational value to the public; 25
(4) The licensure and regulatory authority of the state be consolidated in a single body, 26
which will render the final licensing decision concerning the siting, construction, operation and/or 27
alteration of major energy facilities; 28
(5) An energy facility planning process shall be created through which the statewide 29
planning program, in conjunction with the division of public utilities and carriers, will be 30
empowered to undertake evaluations and projections of long and short term energy needs, and any 31
other matters that are necessary to establish the state energy plans, goals, and policies. The state 32
planning council shall be authorized and empowered to adopt a long term plan assessing the state’s 33
future energy needs and the best strategy for meeting them, as part of the state guide plan by January 34
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1, 1991. 1
(6) The construction, operation and/or alteration of major energy facilities shall be 2
consistent with the state’s established energy plans, goals, and policy. 3
(7) Before approving the construction, operation and/or alteration of major energy 4
facilities, the board shall determine whether cost effective efficiency and conservation 5
opportunities provide an appropriate alternative to the proposed facility. 6
(8) The energy facilities siting board shall give priority to energy generation projects based 7
on the degree to which such projects meet, criteria including, but not limited to: 8
(i) Using renewable fuels, or natural gas, or coal processed by “clean coal technology” as 9
their primary fuel; 10
(ii) Maximizing efficiency; 11
(iii) Using low levels of high quality water; 12
(iv) Using existing energy-generation facilities and sites; 13
(v) Producing low levels of potentially harmful air emissions; 14
(vi) Producing low levels of wastewater discharge; 15
(vii) Producing low levels of waste into the solid waste stream; and 16
(viii) Having dual fuel capacity. 17
The board shall, within its rules and regulations, provide guidelines and definitions of 18
appropriate standards for the criteria designated in this subsection by January 1, 1991. 19
42-98-3. Definitions. 20
As used in this chapter: 21
(1) "Advisory agencies" means the agencies, councils, boards, departments, and officials 22
of state or political subdivisions of the state which, absent this chapter, would have statutory 23
authority to grant or deny a permit, license, variance, or assent, and which shall function at the 24
direction of the board for hearing an issue and rendering an advisory opinion thereon, including, 25
but not limited to, the public utilities commission, department of transportation, department of 26
environmental management, historical preservation and heritage commission, division of planning, 27
department of health, office of energy resources, municipal zoning board, municipal planning 28
board, municipal building inspector, and municipal tax assessor. 29
(a)(2) “Agency” means any agency, council, board, or commission of the state or political 30
subdivision of the state. 31
(b)(3) “Alteration” means a significant modification to a major energy facility, which, as 32
determined by the board, will result in a significant impact on the environment, or the public health, 33
safety, and welfare. Conversion from one type of fuel to another to biofuel shall not be considered 34
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to be an “alteration.” 1
(c)(4) “Board” for purposes of this chapter refers to the siting board. 2
(5) "Host community" means any municipality in the state in which all or the majority of 3
a major energy facility is or shall be located. For the purpose of defining "located", linear aspects 4
of a major energy facility that transit through multiple municipalities, to include electric 5
transmission lines as used in this section and pipelines as used in this section shall not be considered 6
in determining where "the majority" of a major energy facility is or shall be located. 7
(6) For purpose of this chapter, there shall be two (2) types of "major energy facilities": 8
(i) "Major generating facility" means facilities for the generation of electricity designed or 9
capable of operating at a gross capacity of forty megawatts (40mw) or more. 10
(d)(ii) “Major energy non-generating facility” means: 11
(A) Facilities facilities for the extraction, production, conversion, and processing of coal; 12
facilities for the generation of electricity designed or capable of operating at a gross capacity of 13
forty (40) megawatts or more; 14
(B) Electric transmission lines of sixty-nine (69) Kv or over; 15
(C) Facilities facilities for the conversion, gasification, treatment, transfer, or storage of 16
liquefied natural and liquefied petroleum gases, except natural gas pipelines that have a maximum 17
allowable operating pressure (MOAP) of two hundred pounds per square inch gauge (200 psig) or 18
less; 19
(D) Facilities facilities for the processing, enrichment, storage, or disposal of nuclear fuels 20
or nuclear byproducts; 21
(E) Facilities facilities for the refining of oil, gas, or other petroleum products; facilities of 22
ten (10) megawatts or greater capacity for the generation of electricity by water power, and 23
(F) Facilities facilities associated with the transfer of oil, gas, gasoline, and coal via 24
pipeline; any energy facility project of the Rhode Island economic development corporation; the 25
board may promulgate regulations to further define “major energy facility” to the extent further 26
definition is required to carry out the purpose of this chapter, provided that any waste to energy 27
facility shall not be deemed a major energy facility for the purposes of this chapter. 28
(e) “Clean coal technology” means one of the technologies developed in the clean coal 29
technology program of the United States Department of Energy, and shown to produce emissions 30
levels substantially equal to those of natural gas fired power plants. 31
42-98-5. Board established. 32
(a) There is established the siting board which shall be a part of state government. 33
(1) The siting board shall consist of three (3) five (5) members, as follows: the chairperson 34
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of the public utilities commission, or designee, who shall serve as chairperson of the siting board; 1
the director of the department of environmental management, or designee; and the associate 2
director of administration for planning, or designee; the secretary of commerce, or designee; and a 3
public member appointed in accordance with § 42-98-5.1. Any member of the board who recuses 4
him or herself shall designate his or her own successor from his or her respective agency. 5
(2) Any member of the board, other than a public member, may select their own designee 6
from their respective agency who shall serve until a final determination is made in the proceeding 7
for which they were designated. 8
(b) Each member of the board, including designees, shall take an oath to administer the 9
duties of office faithfully and impartially and that oath shall be filed in the office of the secretary 10
of state. 11
(c) The members of the board shall serve without compensation, but shall be reimbursed 12
for their actual expenses necessarily incurred in the performance of their duties. The board may 13
engage any consultants or expert witnesses that it deems necessary to implement its statutory 14
responsibilities; provided, however, that to the maximum extent possible, board staff be drawn 15
from existing state agencies. The board shall select a coordinator to be responsible for the 16
publication and distribution of all official minutes, reports, and documents and to further serve as 17
director of the board staff, which shall be located at the division of public utilities and common 18
carriers. The coordinator, under the direction of the chairperson, shall coordinate and expedite the 19
work of the various agencies to ensure that decisions are made within the time frame established 20
by this chapter. The board may appoint hearing officers to conduct hearings in accordance with § 21
42-98-5.2. Any individual designated as board staff shall be bound to comply with the ex parte 22
provisions of § 42-35-13. 23
(d) A quorum shall consist of a majority of the board. A majority vote of the board shall be 24
required for all actions, including licensing decisions; provided, however, one member of the board 25
may conduct any hearings the board is authorized to conduct pursuant to this chapter. 26
(e) The board shall maintain and grant free access to records and reports in its files to 27
members of the public during normal working hours and shall permit copies of those records and 28
reports to be made by interested members of the public at their expense; provided, however, that 29
the board shall not permit disclosure, other than to another government agency for the sole purpose 30
of rendering an advisory opinion, of any information obtained by or submitted to the board pursuant 31
to the provisions of this chapter, upon a showing, satisfactory to the board, that the information is 32
entitled to protection as trade secrets or as privileged, confidential, or proprietary information. No 33
other governmental agency shall disclose any trade secrets or privileged, confidential, or 34
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proprietary information. 1
42-98-7. Powers and duties. 2
(a)(1) The siting board is the licensing and permitting authority for all licenses, permits, 3
assents, or variances which, under any statute of the state or ordinance of any political subdivision 4
of the state, would be required for siting, construction or alteration of a major energy facility in the 5
state. 6
(2) Any agency, board, council, or commission of the state or political subdivision of the 7
state which, absent this chapter, would be required to issue a permit, license, assent, or variance in 8
order for the siting, construction, or alteration of a major energy facility to proceed, shall sit and 9
function at the direction of the siting board. These agencies shall follow the procedures established 10
by statute, ordinance, and/or regulation provided for determining the permit, license, assent, or 11
variance, but, instead of issuing the permit, license, assent, or variance, shall forward its findings 12
from the proceeding, together with the record supporting the findings and a recommendation for 13
final action, to the siting board. 14
(3) Notwithstanding any provision in this chapter to the contrary, in those instances in 15
which the department of environmental management exercises a permitting or licensing function 16
under the delegated authority of federal law, including, but not limited to, the Federal Clean Water 17
Act (33 U.S.C. § 1251 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et 18
seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), and those state laws and regulations which 19
implement those federal laws, the department of environmental management shall be the licensing 20
and permitting authority. Moreover, the authority to issue licenses and permits delegated to the 21
department of environmental management pursuant to chapter 1 of title 2 and to the coastal 22
resources management council pursuant to chapter 23 of title 46, shall remain with those agencies, 23
but in all other respects the department of environmental management and the coastal resources 24
management council shall follow the procedures set forth in this chapter. 25
(b) The siting board is authorized and empowered to summon and examine witnesses and 26
to compel the production and examination of papers, books, accounts, documents, records, 27
certificates, and other legal evidence that may be necessary for the determination of its jurisdiction 28
and decision of any question before, or the discharge of any duty required by law of, the board. 29
(c) The siting board is empowered to issue any orders, rules, or regulations as may be 30
required to effectuate the purposes of this chapter. The board shall review its rules and regulations 31
from time to time and shall modify, amend or repeal any rules or regulations as may be required to 32
effectuate the purposes of this chapter. 33
(d) The siting board shall, by regulation, determine the standards for intervention. Each 34
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host community shall be granted intervenor status as of right. 1
(e) The siting board’s proceedings shall in all respects comply with the requirements of the 2
Administrative Procedures Act, chapter 35 of this title, except where otherwise explicitly provided. 3
42-98-8. Applications — Contents — Acceptance for filing. 4
(a) The rules and regulations promulgated by the board pursuant to § 42-98-7(c) shall 5
prescribe the form and contents of applications under this chapter. The applications shall contain 6
at least the following, where applicable: 7
(1) Identification of the proposed owner(s) of the facility, including identification of all 8
affiliates of the proposed owners, as the term is defined in § 39-3-27. 9
(2) Detailed description of the proposed facility, including its function and operating 10
characteristics, and complete plans as to all structures, including underground construction and 11
transmission facilities, underground or aerial, associated with the proposed facility. 12
The complete plans shall be the basis for determining jurisdiction under the energy facility 13
siting act and shall be the plans submitted to all advisory agencies whose permit is required under 14
the law. 15
(3) A detailed description and analysis of the impact of the proposed facility on its physical 16
and social environment together with a detailed description of all environmental characteristics of 17
the proposed site, including, but not limited to, the types of fuels and waste products used, stored, 18
and produced by the facility, and a summary of all studies prepared and relied upon in connection 19
therewith. 20
Where applicable these descriptions and analysis shall include a review of current 21
independent, scientific research pertaining to electric and magnetic fields (EMF). The review shall 22
provide data assessing potential health risks associated with EMF exposure. For the purposes of 23
this chapter “prudent avoidance” shall refer to measures to be implemented in order to protect the 24
public from EMF exposure. 25
(4) All studies and forecasts, complete with the information, data, methodology, and 26
assumptions on which they are based, on which the applicant intends to rely in showing the need 27
for the proposed facility under the statewide master construction plan submitted annually. 28
(5) Complete detail as to the estimated construction cost of the proposed facility, the 29
projected maintenance and operation costs, estimated costs to the community such as safety and 30
public health issues, storm damage and power outages, estimated costs to businesses and 31
homeowners due to power outages, the estimated unit cost of energy to be produced by the proposed 32
facility, and expected methods of financing the facility. 33
(6) A complete life-cycle management plan for the proposed facility, including measures 34
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for protecting the public health and safety and the environment during the facility’s normal and off-1
normal operations, including, but not limited to, plans for the handling and disposal of wastes from 2
the facility, and plans for the decommissioning of the facility at the end of its useful life. 3
(7) A study of alternatives to the proposed facility, including alternatives as to energy 4
sources, methods of energy production, and sites for the facility, together with reasons for the 5
applicant’s rejection of these alternatives. The study shall include estimates of facility cost and unit 6
energy costs of alternatives considered. 7
(8) A detailed description of the short-term and long-term economic impacts associated 8
with constructing and operating the proposed project. 9
(b) Each application shall be reviewed prior to docketing. The board shall conduct a 10
preliminary review to determine whether the application contains each item as required by 11
subsection (a) of this section. Within thirty (30) days of the filing of an applicant application under 12
this chapter, the board shall notify the applicant whether the application is in the form and addresses 13
the matters that are required by this section and the rules and regulations as are promulgated 14
pursuant to § 42-98-7. An application meeting these requirements shall then be docketed. Any 15
application deemed to be deficient shall be returned to the applicant, together with a concise and 16
explicit statement of the application’s deficiencies. Within fifteen (15) days of the resubmission of 17
an application following a rejection for deficiency, the board shall either docket the application 18
together with specification of continuing deficiencies noted by the board, if any, or shall issue a 19
decision rejecting the application due to continuing deficiencies. 20
42-98-9. Applications — Procedures for review — Preliminary hearing. 21
(a) Within sixty (60) days following the board’s docketing of an application the board shall, 22
on not less than forty-five (45) days’ notice to all agencies, subdivisions of the state, and the public, 23
convene a preliminary hearing on the application to determine the issues to be considered by the 24
board in evaluating the application, and to designate those agencies of state government and of 25
political subdivisions of the state which shall act at the direction of the board for the purpose of 26
rendering advisory opinions on these issues, and to determine petitions for intervention. 27
(b) The board shall consider as issues in every proceeding the ability of the proposed 28
facility to meet the requirements of the laws, rules, regulations, and ordinances under which, absent 29
this chapter, the applicant would be required to obtain a permit, license, variance, or assent. The 30
agency of state government or of a political subdivision of the state which, absent this chapter, 31
would have statutory authority to grant or deny the permit, license, variance, or assent, shall 32
function at the direction of the board for hearing the issue and rendering an advisory opinion 33
thereon. 34
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(c) The board shall may limit the scope of any agency’s investigation where it finds that 1
more than one agency has jurisdiction over a matter at issue in the licensing process. In these 2
instances, the board shall may determine which agency shall make the necessary findings on the 3
issue after giving proper consideration to the expertise and resources available to each of the 4
agencies involved. 5
(d) The public utilities commission shall conduct an investigation in which the division of 6
planning of the department of administration, the governor’s office of energy assistance resources 7
and the division of public utilities and carriers shall participate and render an advisory opinion as 8
to the need for the proposed facility. 9
(e) The statewide planning program within the department of administration shall conduct 10
an investigation and render an advisory opinion as to the socio-economic impact of the proposed 11
facility and its construction and consistency with the state guide plan. 12
(f) A decision of the board under this section shall be issued within thirty (30) days 13
following the conclusion of the preliminary hearing and in any event within forty-five (45) days of 14
the commencement of the hearing. 15
42-98-9.1. Public notice and hearings on construction projects in cities and towns 16
affected. 17
(a) Upon receiving a utility company application the board shall immediately notify, in 18
writing, the councils of the towns and cities affected by the construction. 19
(b)(1) The When the subject of the application is a major non-generating facility, the board 20
shall have at least one public hearing in each town or city affected the host community prior to 21
holding its own hearings and prior to taking final action on the application. All details of acceptance 22
for filing in § 42-98-8(a)(1) — (a)(6) shall be presented at town or city hearings for public comment. 23
When the subject of the application is a facility for the generation of electricity, or are new facilities 24
for the transmission of electricity, the town or city where the proposed facility would be located 25
may request funding from the applicant to perform studies of the local environmental effects of the 26
proposed facility. The expense of those studies shall not exceed the lesser of one hundred thousand 27
dollars ($100,000) or one-tenth percent (.1%) of the estimated capital cost of the proposed facility 28
located in such city or town. If the applicant contests the relevance of the requested study, or 29
believes it to be redundant with studies already performed, the applicant may request a ruling from 30
the board whether the study is necessary and reasonably expected to produce relevant information. 31
The board’s ruling shall be conclusive and final, and shall not be the basis for an interlocutory 32
appeal, injunction or otherwise delay the board’s processing of the application. 33
(2) When the subject of the application is a major generating facility, the board shall have 34
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at least three (3) public hearings in the host community prior to holding its own hearings and prior 1
to taking final action on the application. All details of acceptance for filing in § 42-98-8(a) shall be 2
presented at public hearings for public comment. The host community where the proposed 3
generating facility would be located may request funding from the applicant to perform studies of 4
the local environmental effects of the proposed facility. The expense of those studies shall not 5
exceed the greater of one hundred fifty thousand dollars ($150,000) or one-tenth percent (.1%) of 6
the estimated capital cost of the proposed facility, whichever is more. The applicant shall also pay 7
any and all fees and expenses reasonably incurred by the host community to fully participate in the 8
facility siting process and local review, including, but not limited to, fees and expenses for legal 9
counsel, expert evaluations, transcripts and other costs associated with the energy facility siting 10
process. If the applicant contests any fee or expense as unrelated or unreasonable, the applicant 11
may request a ruling from the board whether the fee or expense is related and reasonable. The 12
board's ruling shall be conclusive and final and shall not be the basis for an interlocutory appeal, 13
injunction or otherwise delay the board's processing of the application. 14
(c) The applicant shall notify the citizens in towns and cities affected thirty (30) days prior 15
to public meetings through local papers. 16
(d) The applicant shall notify abutting land the following property owners individually, in 17
writing, thirty (30) days prior to the hearings, by certified mail, postage prepaid.: 18
(1) For applications related to major non-generating facilities, applicants shall notify all 19
property owners whose property is located within three hundred feet (300’) from the limit of 20
disturbance of the proposed project or the centerline of a proposed linear project; provided, no 21
additional notice is required for sixty (60) and ninety (90) day notices of intent. 22
(2) For applications related to major generating facilities, applicants shall notify all 23
property owners whose property is located within two (2) miles from the proposed site boundaries. 24
(e) Public input shall be a part of the decision making process. 25
42-98-10. Agency procedures — Advisory opinion. 26
(a) Each agency of the state or political subdivision of the state designated under § 42-98-27
9 shall proceed to consider the issue or issues consigned to it for review. Each advisory agency 28
shall conclude its consideration and issue its advisory opinion not more than six (6) months 29
following its designation under § 42-98-9 and receipt of all application materials, or any lesser time 30
that the board may require, or the right to exercise the function shall be forfeited to the board. The 31
board may suspend an application proceeding where an applicant fails to provide requested relevant 32
information or materials to an advisory agency in a timely manner. 33
(b) Advisory opinions issued by agencies designated under § 42-98-9 shall not be 34
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considered as final decisions of the agencies making the opinions, and shall not be subject to 1
judicial review under § 42-35-15, or any other provision of the general laws. 2
(c) Advisory opinions issued by zoning boards of review, building inspectors, or any other 3
agency of a municipality designated under § 42-98-9 shall not be reviewable by the public utilities 4
commission under § 39-1-30. 5
(d) Failure or refusal of the applicant to provide requested information may be considered 6
as grounds for recommending denial. 7
(e) At the request of the siting board, the director of environmental management and the 8
coastal resources management council shall give priority to the review of permits for energy 9
facilities. 10
42-98-11. Final hearing — Standards — Decisions. 11
(a) Within forty-five (45) days after the final date for submission of advisory opinions 12
pursuant to § 42-98-10, the board shall convene the final hearing on the application. The purpose 13
of this the final hearing shall not be to rehear the evidence which was presented previously in 14
hearings before agencies designated under § 42-98-9, but rather to provide the applicant, 15
intervenors, the public, and all other parties in the proceeding, the opportunity to address in a single 16
forum, and from a consolidated, statewide prospective, the issues reviewed, and the 17
recommendations made in the proceedings before the agencies designated under § 42-98-9. The 18
board at this hearing may, at its discretion, allow the presentation of new evidence by any party as 19
to the issues considered by the agencies designated under § 42-98-9. The board may limit the 20
presentation of repetitive or cumulative evidence. The final hearing shall proceed on not less than 21
thirty (30) days’ notice to the parties and the public, shall be concluded not more than sixty (60) 22
days following its initiation, and shall be conducted expeditiously. 23
(b) The board shall issue a decision granting a license only upon finding that the applicant 24
has shown that: 25
(1) Construction of the proposed facility is necessary to meet the needs of the state and/or 26
region for energy of the type to be produced by the proposed facility. 27
(2) The proposed facility is cost-justified, and can be expected to produce energy at the 28
lowest reasonable cost to the consumer consistent with the objective of ensuring that the 29
construction and operation of the proposed facility will be accomplished in compliance with all of 30
the requirements of the laws, rules, regulations, and ordinances, under which, absent this chapter, 31
a permit, license, variance, or assent would be required, or that consideration of the public health, 32
safety, welfare, security and need for the proposed facility justifies a waiver of some part of the 33
requirements when compliance cannot be assured. 34
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(3) The proposed facility will not cause unacceptable harm to the environment and will 1
enhance the socio-economic fabric of the state. 2
(c) For multiple applications related to a single project, the board shall consider the 3
cumulative impacts of the related applications. 4
(c)(d) Within sixty (60) days of the conclusion of the final hearing the board shall issue its 5
final decision on the application. A decision in favor of the application shall constitute a granting 6
of all permits, licenses, variances, or assents, which under any law, rule, regulation, or ordinance 7
of the state or of a political subdivision thereof which would, absent this chapter, be required for 8
the proposed facility. The decision may be issued requiring any modification or alteration of the 9
proposed facility, and may be issued on any condition the board deems warranted by the record, 10
and may be issued conditional upon the applicant’s receipt of permits required by federal law. The 11
board’s decision shall explicitly address each of the advisory opinions received from agencies, and 12
the board’s reasons for accepting, rejecting, or modifying, in whole or in part, any of those advisory 13
opinions. The board shall, within ten (10) days of granting a license, with or without conditions, 14
deliver the decision to the governor, the speaker of the Rhode Island house of representatives, and 15
the president of the Rhode Island senate. 16
42-98-16. Violations. 17
(a) Failure to comply with any promulgated board rule, regulation, requirement or 18
procedure for the licensing of energy facilities shall constitute grounds for suspension or dismissal, 19
with or without prejudice in its discretion, of licensing proceedings, provided that the applicant 20
shall have a reasonable opportunity to show cause for and remedy the lack of compliance. 21
(b) Failure to comply with any provision, condition or limitation contained in a board 22
license to site, build, or alter a major energy facility and/or failure to comply with a board cease 23
and desist order and/or a board order to remedy a non-complying action shall be grounds for 24
suspension or revocation of the license, and/or shall be punishable by a fine of not more than twenty 25
thousand dollars ($20,000). Each day of continuing noncompliance shall be considered a separate 26
violation and so punished. 27
(c) The board may require the licensee to maintain those records as are reasonable and 28
necessary to monitor compliance with license provisions, and shall have the authority to enter onto 29
the property of licensees to investigate complaints of noncompliance and to perform routine 30
inspections. 31
(d) The board may designate officials or staff of any state agencies as its agents for the 32
purposes of investigating complaints, performing routine maintenance functions and issuing 33
written cease and desist orders. 34
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(e) Nothing in this chapter shall preclude a host community from enforcing municipal 1
ordinances, levying fines, or pursuing any other legally available enforcement remedies, unless 2
such ordinances are in direct conflict with a certificate or license issued by the board. 3
SECTION 2. Chapter 42-98 of the General Laws entitled "Energy Facility Siting Act" is 4
hereby amended by adding thereto the following sections: 5
42-98-5.1. Public members. 6
(a) A public member shall be appointed to the board by the governor with the advice and 7
consent of the senate for a term of two (2) years. 8
(b) A public member shall be a member of the general public. 9
(c) A public member shall not hold another state or local office and shall not receive nor 10
have received within the previous five (5) years any income directly or indirectly from an electric, 11
gas, or oil company or from an energy facility developer. 12
(d) If a public member recuses or withdraws from a proceeding for any reason, a substitute 13
member shall be appointed in accordance with this section. 14
42-98-5.2. Hearing officers. 15
(a) The board may appoint a hearing officer to conduct hearings related to a major non-16
generating facility. Hearing officers shall not be appointed to conduct hearings related to a major 17
generating facility. 18
(b) A hearing officer shall be an attorney licensed to practice law in this state with 19
experience in regulatory matters dealing with energy production and/or transmission. 20
(c) A hearing officer shall be reasonably compensated by the board for their services to the 21
board, either through contract or, if the hearing officer is a state employee, through a transfer to the 22
state agency or department by whom the attorney is normally employed. 23
(d) Following the completion of the hearing, the hearing officer shall file their findings and 24
recommended decision in writing with the board. Upon review of the findings and 25
recommendations, the board may accept, reject, or modify, in whole or in part, the hearing officer’s 26
findings and recommended decision. Subsequent to the board's review and formal decision, the 27
provider may submit a written brief to the board if the energy provider has a negative impact due 28
to the hearing officer's findings. The hearing officer’s findings and recommended decision shall 29
become effective and shall have the same force and effect as a decision of the board. If the board 30
rejects or modifies the hearing officer’s findings or recommended decision, then the board shall 31
decide the matter independently and issue an order of the board with its findings and decision. 32
(e) No hearing officer shall be assigned to a hearing relating to a project or proposed project 33
by an applicant from whom they have directly or indirectly received compensation in the last five 34
LC002003 - Page 14 of 15
(5) years. 1
(f) The board shall establish within two (2) months of the effective date of this section and 2
maintain, at least on a biennial basis, a list of qualified hearing officers, the number of which the 3
board shall set and select as needed. 4
(g) The list shall be composed with an equal number of officers with primary professional 5
experience as advocates for government and an equal number of officers with primary professional 6
experience as advocates for the private sector. 7
SECTION 3. This act shall take effect upon passage. 8
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LC002003 - Page 15 of 15
EXPLANATION
BY THE LEGISLATIVE COUNCIL
OF
A N A C T
RELATING TO STATE AFFAIRS AND GOVERNMENT -- ENERGY FACILITY SITING
ACT
***
This act would recognize that a host community for a proposed or existing major generating 1
facility is uniquely affected by the facility siting process. The act would also increase the 2
membership of the siting board from three (3) to five (5) members and would mandate inclusion 3
and participation of the host community of the facility as well as the public in the affected cities 4
and towns. This act would spell out requirements for hearing officers and public members of the 5
board. 6
This act would take effect upon passage. 7
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