Bill Summary – FastDemocracy

-- S 2392
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     LC004510
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                       STATE               OF         RHODE                 ISLAND
                                           IN GENERAL ASSEMBLY
                                        JANUARY SESSION, A.D. 2022
                                              ____________
                                                  AN ACT
       RELATING TO STATE AFFAIRS AND GOVERNMENT -- ENERGY FACILITY SITING
                                      ACT
                Introduced By: Senators de la Cruz, Raptakis, DiPalma, and Paolino
                Date Introduced: February 15, 2022
                Referred To: Senate Judiciary
     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-
 98-9.1, 42-98-10, 42-98-11 and 42-98-16 of the General Laws in Chapter 42-98 entitled "Energy
 Facility Siting Act" are hereby amended to read as follows:
         42-98-1. Legislative findings.
         (a) The general assembly recognizes that reasonably priced, reliable sources of energy are
 vital to the well-being and prosperity of the people of this state; that there are major issues of public
 health and safety and impact upon the environment related to the technologies and energy sources
 used in some facilities; that some energy facilities require a major commitment of funds and
 resources and require many years to build that the decision to permit or deny their construction will
 have long term impact on the economy of the state; that these decisions will affect the availability
 and cost of the energy; and that the evaluation of proposals must recognize and consider the need
 for these facilities in relation to the overall impact of the facilities upon public health and safety,
 the environment and the economy of the state;
         (b) The general assembly further finds that the authority to regulate many aspects of the
 issues involved in the siting of major energy facilities currently exists in a variety of agencies within
 the government of the state and the political subdivisions of the state; that there is overlapping
 jurisdiction among several state agencies in the siting of energy facilities; and that there is the
 potential for conflicting decisions being issued by the various agencies having authority over the
 different aspects of the siting of a major energy facility;
         (c) The jurisdiction of each state agency should be defined, and the role of each agency in
 energy siting should be delineated, to eliminate overlap and duplication and to insure that
 expeditious decisions are made within a time frame to be determined by law; and that in addition
 to the existing regulation, statewide and regional planning for energy resources and the assessment
 of our state's need for energy should be on-going activities within Rhode Island;
         (d) There is need for a coordinated decision on any major energy facility; the technical
 expertise for this evaluation is available within existing agencies involved with the siting process;
 and
         (e) There is a need for coordinating and expediting the review of each state agency and that
 the authority and responsibility to perform that function should be established; and
         (f) The general assembly recognizes that a host community for a proposed or existing major
 generating facility is uniquely affected by the energy facility siting process.
         42-98-2. Declaration of policy.
         It shall be the policy of this state to assure that:
         (1) The facilities required to meet the energy needs of this and succeeding generations of
 Rhode Islanders are planned for, considered, and built in a timely and orderly fashion;
         (2) Construction, operation, and/or alteration of major energy facilities shall only be
 undertaken when those actions are justified by long term state and/or regional energy need
 forecasts;
         (3) The energy shall be produced at the least possible cost to the consumer consistent with
 the objective of ensuring that the construction, operation, and decommissioning of the facility shall
 produce the fewest possible adverse effects on the quality of the state's environment; most
 particularly, its land and its wildlife and resources, the health and safety of its citizens, the purity
 of its air and water, its aquatic and marine life, and its esthetic and recreational value to the public;
         (4) The licensure and regulatory authority of the state be consolidated in a single body,
 which will render the final licensing decision concerning the siting, construction, operation and/or
 alteration of major energy facilities;
         (5) An energy facility planning process shall be created through which the statewide
 planning program, in conjunction with the division of public utilities and carriers, will be
 empowered to undertake evaluations and projections of long and short term energy needs, and any
 other matters that are necessary to establish the state energy plans, goals, and policies. The state
 planning council shall be authorized and empowered to adopt a long term plan assessing the state's
 future energy needs and the best strategy for meeting them, as part of the state guide plan by January
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 1, 1991.
            (6) The construction, operation and/or alteration of major energy facilities shall be
 consistent with the state's established energy plans, goals, and policy.
            (7) Before approving the construction, operation and/or alteration of major energy
 facilities, the board shall determine whether cost effective efficiency and conservation
 opportunities provide an appropriate alternative to the proposed facility.
            (8) The energy facilities siting board shall give priority to energy generation projects based
 on the degree to which such projects meet, criteria including, but not limited to:
            (i) Using renewable fuels, or natural gas, or coal processed by "clean coal technology" as
 their primary fuel;
            (ii) Maximizing efficiency;
            (iii) Using low levels of high quality water;
            (iv) Using existing energy-generation facilities and sites;
            (v) Producing low levels of potentially harmful air emissions;
            (vi) Producing low levels of wastewater discharge;
            (vii) Producing low levels of waste into the solid waste stream; and
            (viii) Having dual fuel capacity.
            The board shall, within its rules and regulations, provide guidelines and definitions of
 appropriate standards for the criteria designated in this subsection by January 1, 1991.
            42-98-3. Definitions.
            (a) “Advisory agencies” means the agencies, councils, boards, departments, and officials
 of state or political subdivisions of the state which, absent this chapter, would have statutory
 authority to grant or deny a permit, license, variance, or assent, and which shall function at the
 direction of the board for hearing an issue and rendering an advisory opinion thereon, including,
 but not limited to, the public utilities commission, department of transportation, department of
 environmental management, historical preservation and heritage commission, division of planning,
 department of health, office of energy resources, municipal zoning board, municipal planning
 board, municipal building inspector, and municipal tax assessor.
            (a)(b) "Agency" means any agency, council, board, or commission of the state or political
 subdivision of the state.
            (b)(c) "Alteration" means a significant modification to a major energy facility, which, as
 determined by the board, will result in a significant impact on the environment, or the public health,
 safety, and welfare. Conversion from one type of fuel to another to biofuel shall not be considered
 to be an "alteration."
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         (c)(d) "Board" for purposes of this chapter refers to the siting board.
         (e) “Host community” means any municipality in the state in which all or the majority of
 a major energy facility is or shall be located.
         (f) For purpose of this chapter, there shall be two types of “major energy facilities”:
         (1) “Major generating facility” means facilities for the generation of electricity designed or
 capable of operating at a gross capacity of forty (40) megawatts or more.
         (d)(2) "Major energy non-generating facility " means:
         (i) Facilities facilities for the extraction, production, conversion, and processing of coal;
 facilities for the generation of electricity designed or capable of operating at a gross capacity of
 forty (40) megawatts or more;
         (ii) Electric transmission lines of sixty-nine (69) Kv or over;
         (iii) Facilities facilities for the conversion, gasification, treatment, transfer, or storage of
 liquefied natural and liquefied petroleum gases;
         (iv) Facilities facilities for the processing, enrichment, storage, or disposal of nuclear fuels
 or nuclear byproducts;
         (v) Facilities facilities for the refining of oil, gas, or other petroleum products; facilities of
 ten (10) megawatts or greater capacity for the generation of electricity by water power, ; and
         (vi) Facilities facilities associated with the transfer of oil, gas, and coal via pipeline; any
 energy facility project of the Rhode Island economic development corporation; the board may
 promulgate regulations to further define "major energy facility" to the extent further definition is
 required to carry out the purpose of this chapter, provided that any waste to energy facility shall
 not be deemed a major energy facility for the purposes of this chapter.
         (e) "Clean coal technology" means one of the technologies developed in the clean coal
 technology program of the United States Department of Energy, and shown to produce emissions
 levels substantially equal to those of natural gas fired power plants.
         42-98-5. Board established.
         (a) There is established the siting board which shall be a part of state government.
         (1) The siting board shall consist of three (3) five (5) members, as follows: the chairperson
 of the public utilities commission, or designee, who shall serve as chairperson of the siting board;
 the director of the department of environmental management or designee; and the associate director
 of administration for planning, or designee; the attorney general, or designee; and the secretary of
 commerce, or designee. Any member of the board who recuses him or herself shall designate his
 or her own successor from his or her respective agency.
         (2) Any member of the board may select their own designee from their respective agency
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 who shall serve until a final determination is made in the proceeding for which they were
 designated.
             (b) Each member of the board, including designees, shall take an oath to administer the
 duties of office faithfully and impartially and that oath shall be filed in the office of the secretary
 of state.
             (c) The members of the board shall serve without compensation, but shall be reimbursed
 for their actual expenses necessarily incurred in the performance of their duties. The board may
 engage any consultants or expert witnesses that it deems necessary to implement its statutory
 responsibilities; provided, however, that to the maximum extent possible, board staff be drawn
 from existing state agencies. The board shall select a coordinator to be responsible for the
 publication and distribution of all official minutes, reports, and documents and to further serve as
 director of the board staff, which shall be located at the division of public utilities and common
 carriers. The coordinator, under the direction of the chairperson, shall coordinate and expedite the
 work of the various agencies to ensure that decisions are made within the time frame established
 by this chapter. The board may appoint hearing officers to conduct hearings in accordance with §
 42-98-5.1. Any individual designated as board staff shall be bound to comply with the ex parte
 provisions of § 42-35-13.
             (d) A quorum shall consist of a majority of the board. A majority vote of the board shall be
 required for all actions, including licensing decisions; provided, however, one member of the board
 may conduct any hearings the board is authorized to conduct pursuant to this chapter.
             (e) The board shall maintain and grant free access to records and reports in its files to
 members of the public during normal working hours and shall permit copies of those records and
 reports to be made by interested members of the public at their expense; provided, however, that
 the board shall not permit disclosure, other than to another government agency for the sole purpose
 of rendering an advisory opinion, of any information obtained by or submitted to the board pursuant
 to the provisions of this chapter, upon a showing, satisfactory to the board, that the information is
 entitled to protection as trade secrets or as privileged, confidential, or proprietary information. No
 other governmental agency shall disclose any trade secrets or privileged, confidential, or
 proprietary information.
             42-98-7. Powers and duties.
             (a)(1) The siting board is the licensing and permitting authority for all licenses, permits,
 assents, or variances which, under any statute of the state or ordinance of any political subdivision
 of the state, would be required for siting, construction or alteration of a major energy facility in the
 state.
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         (2) Any agency, board, council, or commission of the state or political subdivision of the
 state which, absent this chapter, would be required to issue a permit, license, assent, or variance in
 order for the siting, construction, or alteration of a major energy facility to proceed, shall sit and
 function at the direction of the siting board. These agencies shall follow the procedures established
 by statute, ordinance, and/or regulation provided for determining the permit, license, assent, or
 variance, but, instead of issuing the permit, license, assent, or variance, shall forward its findings
 from the proceeding, together with the record supporting the findings and a recommendation for
 final action, to the siting board.
         (3) Notwithstanding any provision in this chapter to the contrary, in those instances in
 which the department of environmental management exercises a permitting or licensing function
 under the delegated authority of federal law, including, but not limited to, the Federal Clean Water
 Act (33 U.S.C. § 1251 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et
 seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), and those state laws and regulations which
 implement those federal laws, the department of environmental management shall be the licensing
 and permitting authority. Moreover, the authority to issue licenses and permits delegated to the
 department of environmental management pursuant to chapter 1 of title 2 and to the coastal
 resources management council pursuant to chapter 23 of title 46, shall remain with those agencies,
 but in all other respects the department of environmental management and the coastal resources
 management council shall follow the procedures set forth in this chapter.
         (b) The siting board is authorized and empowered to summon and examine witnesses and
 to compel the production and examination of papers, books, accounts, documents, records,
 certificates, and other legal evidence that may be necessary for the determination of its jurisdiction
 and decision of any question before, or the discharge of any duty required by law of, the board.
         (c) The siting board is empowered to issue any orders, rules, or regulations as may be
 required to effectuate the purposes of this chapter. The board shall review its rules and regulations
 from time to time and shall modify, amend or repeal any rules or regulations as may be required to
 effectuate the purposes of this chapter.
         (d) The siting board shall, by regulation, determine the standards for intervention. Each
 host community shall be granted intervenor status as of right.
         including, but not limited to, the types of fuels and waste products used, stored, and
 produced by the facility, (e) The siting board's proceedings shall in all respects comply with the
 requirements of the Administrative Procedures Act, chapter 35 of this title, except where otherwise
 explicitly provided.
         42-98-8. Applications -- Contents -- Acceptance for filing.
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         (a) The rules and regulations promulgated by the board pursuant to § 42-98-7(c) shall
 prescribe the form and contents of applications under this chapter. The applications shall contain
 at least the following, where applicable:
         (1) Identification of the proposed owner(s) of the facility, including identification of all
 affiliates of the proposed owners, as the term is defined in § 39-3-27.
         (2) Detailed description of the proposed facility, including its function and operating
 characteristics, and complete plans as to all structures, including underground construction and
 transmission facilities, underground or aerial, associated with