2023 -- S 0204
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LC000947
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S TATE OF RHODE IS L A N D
IN GENERAL ASSEMBLY
JANUARY SESSION, A.D. 2023
____________
A N A CT
RELATING TO STATE AFFAIRS AND GOVERNMENT-- ENERGY FACILITY SITING
ACT
Introduced By: Senators de la Cruz, F. Lombardi, DiPalma, Ciccone, E Morgan, and
Raptakis
Date Introduced: February 16, 2023
Referred To: Senate Environment & Agriculture
It is enacted by the General Assembly as follows:
1 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-
2 98-9.1, 42-98-10, 42-98-11 and 42-98-16 of the General Laws in Chapter 42-98 entitled "Energy
3 Facility Siting Act" are hereby amended to read as follows:
4 42-98-1. Legislative findings.
5 (a) The general assembly recognizes that reasonably priced, reliable sources of energy are
6 vital to the well-being and prosperity of the people of this state; that there are major issues of public
7 health and safety and impact upon the environment related to the technologies and energy sources
8 used in some facilities; that some energy facilities require a major commitment of funds and
9 resources and require many years to build that the decision to permit or deny their construction will
10 have long term impact on the economy of the state; that these decisions will affect the availability
11 and cost of the energy; and that the evaluation of proposals must recognize and consider the need
12 for these facilities in relation to the overall impact of the facilities upon public health and safety,
13 the environment and the economy of the state;
14 (b) The general assembly further finds that the authority to regulate many aspects of the
15 issues involved in the siting of major energy facilities currently exists in a variety of agencies within
16 the government of the state and the political subdivisions of the state; that there is overlapping
17 jurisdiction among several state agencies in the siting of energy facilities; and that there is the
18 potential for conflicting decisions being issued by the various agencies having authority over the
1 different aspects of the siting of a major energy facility;
2 (c) The jurisdiction of each state agency should be defined, and the role of each agency in
3 energy siting should be delineated, to eliminate overlap and duplication and to insure that
4 expeditious decisions are made within a time frame to be determined by law; and that in addition
5 to the existing regulation, statewide and regional planning for energy resources and the assessment
6 of our state’s need for energy should be on-going activities within Rhode Island;
7 (d) There is need for a coordinated decision on any major energy facility; the technical
8 expertise for this evaluation is available within existing agencies involved with the siting process;
9 and
10 (e) There is a need for coordinating and expediting the review of each state agency and that
11 the authority and responsibility to perform that function should be established.; and
12 (f) The general assembly recognizes that a host community for a proposed or existing major
13 generating facility is uniquely affected by the energy facility siting process.
14 42-98-2. Declaration of policy.
15 It shall be the policy of this state to assure that:
16 (1) The facilities required to meet the energy needs of this and succeeding generations of
17 Rhode Islanders are planned for, considered, and built in a timely and orderly fashion;
18 (2) Construction, operation, and/or alteration of major energy facilities shall only be
19 undertaken when those actions are justified by long term state and/or regional energy need
20 forecasts;
21 (3) The energy shall be produced at the least possible cost to the consumer consistent with
22 the objective of ensuring that the construction, operation, and decommissioning of the facility shall
23 produce the fewest possible adverse effects on the quality of the state’s environment; most
24 particularly, its land and its wildlife and resources, the health and safety of its citizens, the purity
25 of its air and water, its aquatic and marine life, and its esthetic and recreational value to the public;
26 (4) The licensure and regulatory authority of the state be consolidated in a single body,
27 which will render the final licensing decision concerning the siting, construction, operation and/or
28 alteration of major energy facilities;
29 (5) An energy facility planning process shall be created through which the statewide
30 planning program, in conjunction with the division of public utilities and carriers, will be
31 empowered to undertake evaluations and projections of long and short term energy needs, and any
32 other matters that are necessary to establish the state energy plans, goals, and policies. The state
33 planning council shall be authorized and empowered to adopt a long term plan assessing the state’s
34 future energy needs and the best strategy for meeting them, as part of the state guide plan by January
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1 1, 1991.
2 (6) The construction, operation and/or alteration of major energy facilities shall be
3 consistent with the state’s established energy plans, goals, and policy.
4 (7) Before approving the construction, operation and/or alteration of major energy
5 facilities, the board shall determine whether cost effective efficiency and conservation
6 opportunities provide an appropriate alternative to the proposed facility.
7 (8) The energy facilities siting board shall give priority to energy generation projects based
8 on the degree to which such projects meet, criteria including, but not limited to:
9 (i) Using renewable fuels, or natural gas, or coal processed by “clean coal technology” as
10 their primary fuel;
11 (ii) Maximizing efficiency;
12 (iii) Using low levels of high quality water;
13 (iv) Using existing energy-generation facilities and sites;
14 (v) Producing low levels of potentially harmful air emissions;
15 (vi) Producing low levels of wastewater discharge;
16 (vii) Producing low levels of waste into the solid waste stream; and
17 (viii) Having dual fuel capacity.
18 The board shall, within its rules and regulations, provide guidelines and definitions of
19 appropriate standards for the criteria designated in this subsection by January 1, 1991.
20 42-98-3. Definitions.
21 (a) “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)(b) “Agency” means any agency, council, board, or commission of the state or political
30 subdivision of the state.
31 (b)(c) “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 to be an “alteration.”
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1 (c)(d) “Board” for purposes of this chapter refers to the siting board.
2 (e) “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.
4 (f) For purposes of this chapter, there shall be two (2) types of “major energy facilities”:
5 (1) “Major generating facility” means facilities for the generation of electricity designed or
6 capable of operating at a gross capacity of forty megawatts (40MW) or more.
7 (2) "Major non-generating facility" means:
8 (i) Facilities for the extraction, production, conversion, and processing of coal;
9 (ii) Electric transmission lines of sixty-nine kilovolts (69KV) or over;
10 (iii) Facilities for the conversion, gasification, treatment, transfer, or storage of liquefied
11 natural and liquefied petroleum gases;
12 (iv) Facilities for processing, enrichment, storage, or disposal of nuclear fuels or nuclear
13 byproducts;
14 (v) Facilities for the refining of oil, gas, or other petroleum products; and
15 (v) Facilities associated with the transfer of oil, gas, and coal vial pipeline.
16 (d) “Major energy facility” means facilities for the extraction, production, conversion, and
17 processing of coal; facilities for the generation of electricity designed or capable of operating at a
18 gross capacity of forty (40) megawatts or more; transmission lines of sixty-nine (69) Kv or over;
19 facilities for the conversion, gasification, treatment, transfer, or storage of liquefied natural and
20 liquefied petroleum gases; facilities for the processing, enrichment, storage, or disposal of nuclear
21 fuels or nuclear byproducts; facilities for the refining of oil, gas, or other petroleum products;
22 facilities of ten (10) megawatts or greater capacity for the generation of electricity by water power,
23 and facilities associated with the transfer of oil, gas, and coal via pipeline; any energy facility
24 project of the Rhode Island economic development corporation; the board may promulgate
25 regulations to further define “major energy facility” to the extent further definition is required to
26 carry out the purpose of this chapter, provided that any waste to energy facility shall not be deemed
27 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 of the public utilities commission, or designee, who shall serve as chairperson of the siting board;
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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 the respective agency who shall serve until a final determination is made in the proceeding
7 for which they are 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 proprietary information.
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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 host community shall be granted intervenor status as of right.
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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 contai