2019 -- H 5666

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LC001825

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT - ENERGY FACILITY SITING

ACT

     

     Introduced By: Representatives Bennett, Chippendale, Tanzi, Shanley, and Kazarian

     Date Introduced: February 27, 2019

     Referred To: House Environment and Natural Resources

     It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 42-98-3, 42-98-8, 42-98-11 and 42-98-16 of the General Laws in

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Chapter 42-98 entitled "Energy Facility Siting Act" are hereby amended to read as follows:

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     42-98-3. Definitions.

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     (a) "Agency" means any agency, council, board, or commission of the state or political

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subdivision of the state.

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     (b) "Alteration" means a significant modification to a major energy facility, which, as

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determined by the board, will result in a significant impact on the environment, or the public

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health, safety, and welfare. Conversion from one type of fuel to another shall not be considered to

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be an "alteration."

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     (c) "Board" for purposes of this chapter refers to the siting board.

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     (e)(d) "Clean coal technology" means one of the technologies developed in the clean coal

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technology program of the United States Department of Energy, and shown to produce emissions

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levels substantially equal to those of natural gas fired power plants.

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     (e) "Fossil fuel facility" means an electricity generating facility that uses as its primary or

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secondary fuel, natural gas, coal, petroleum, any petroleum distillate, or any combination of those

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fuels.

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     (d)(f) "Major energy facility" means facilities for the extraction, production, conversion,

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and processing of coal; facilities for the generation of electricity designed or capable of operating

 

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at a gross capacity of forty (40) megawatts or more; transmission lines of sixty-nine (69) Kv or

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over; facilities for the conversion, gasification, treatment, transfer, or storage of liquefied natural

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and liquefied petroleum gases; facilities for the processing, enrichment, storage, or disposal of

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nuclear fuels or nuclear byproducts; facilities for the refining of oil, gas, or other petroleum

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products; facilities of ten (10) megawatts or greater capacity for the generation of electricity by

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water power, and facilities associated with the transfer of oil, gas, and coal via pipeline; any

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energy facility project of the Rhode Island economic development corporation; the board may

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promulgate regulations to further define "major energy facility" to the extent further definition is

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required to carry out the purpose of this chapter, provided that any waste to energy facility shall

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not be deemed a major energy facility for the purposes of this chapter.

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     (g) "Renewable energy facility" means an electricity generating unit located within the

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state and which is a renewable energy resource as defined in § 39-26-5.

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     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

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prescribe the form and contents of applications under this chapter. The applications shall contain

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at least the following, where applicable:

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     (1) Identification of the proposed owner(s) of the facility, including identification of all

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affiliates of the proposed owners, as the term is defined in § 39-3-27.

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     (2) Detailed description of the proposed facility, including its function and operating

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characteristics, and complete plans as to all structures, including underground construction and

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transmission facilities, underground or aerial, associated with the proposed facility.

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     In the case of a fossil fuel facility, a plan shall include provisions to construct or invest in

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one or more renewable energy facilities in conjunction with construction and operation of the

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proposed fossil fuel facility. The aggregate estimated cost or investment in one or more

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renewable energy facilities shall be equal to no less than twenty percent (20%) of the estimated

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cost of the fossil fuel facility.

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     The complete plans shall be the basis for determining jurisdiction under the energy

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facility siting act and shall be the plans submitted to all agencies whose permit is required under

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the law.

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     (3) A detailed description and analysis of the impact of the proposed facility on its

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physical and social environment together with a detailed description of all environmental

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characteristics of the proposed site, and a summary of all studies prepared and relied upon in

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connection therewith.

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     Where applicable these descriptions and analysis shall include a review of current

 

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independent, scientific research pertaining to electric and magnetic fields (EMF). The review

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shall provide data assessing potential health risks associated with EMF exposure. For the

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purposes of this chapter "prudent avoidance" shall refer to measures to be implemented in order

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to protect the public from EMF exposure.

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     (4) All studies and forecasts, complete with the information, data, methodology, and

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assumptions on which they are based, on which the applicant intends to rely in showing the need

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for the proposed facility under the statewide master construction plan submitted annually.

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     (5) Complete detail as to the estimated construction cost of the proposed facility, the

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projected maintenance and operation costs, estimated costs to the community such as safety and

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public health issues, storm damage and power outages, estimated costs to businesses and

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homeowners due to power outages, the estimated unit cost of energy to be produced by the

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proposed facility, and expected methods of financing the facility.

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     (6) A complete life-cycle management plan for the proposed facility, including measures

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for protecting the public health and safety and the environment during the facility's operations,

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including plans for the handling and disposal of wastes from the facility, and plans for the

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decommissioning of the facility at the end of its useful life.

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     (7) A study of alternatives to the proposed facility, including alternatives as to energy

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sources, methods of energy production, and sites for the facility, together with reasons for the

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applicant's rejection of these alternatives. The study shall include estimates of facility cost and

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unit energy costs of alternatives considered.

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     (b) Within thirty (30) days of the filing of an applicant under this chapter, the board shall

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notify the applicant whether the application is in the form and addresses the matters that are

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required by this section and the rules and regulations as are promulgated pursuant to § 42-98-7.

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An application meeting these requirements shall then be docketed. Any application deemed to be

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deficient shall be returned to the applicant, together with a concise and explicit statement of the

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application's deficiencies. Within fifteen (15) days of the resubmission of an application

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following a rejection for deficiency, the board shall docket the application together with

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specification of continuing deficiencies noted by the board, if any.

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     42-98-11. Final hearing -- Standards -- Decisions.

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     (a) Within forty-five (45) days after the final date for submission of advisory opinions

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pursuant to § 42-98-10, the board shall convene the final hearing on the application. The purpose

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of this hearing shall not be to rehear the evidence which was presented previously in hearings

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before agencies designated under § 42-98-9, but rather to provide the applicant, intervenors, the

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public, and all other parties in the proceeding, the opportunity to address in a single forum, and

 

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from a consolidated, statewide prospective, the issues reviewed, and the recommendations made

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in the proceedings before the agencies designated under § 42-98-9. The board at this hearing may,

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at its discretion, allow the presentation of new evidence by any party as to the issues considered

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by the agencies designated under § 42-98-9. The board may limit the presentation of repetitive or

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cumulative evidence. The hearing shall proceed on not less than thirty (30) days' notice to the

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parties and the public, shall be concluded not more than sixty (60) days following its initiation,

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and shall be conducted expeditiously.

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     (b) The board shall issue a decision granting a license only upon finding that the

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applicant has shown that:

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     (1) Construction of the proposed facility is necessary to meet the needs of the state and/or

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region for energy of the type to be produced by the proposed facility.

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     (2) The proposed facility is cost-justified, and can be expected to produce energy at the

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lowest reasonable cost to the consumer consistent with the objective of ensuring that the

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construction and operation of the proposed facility will be accomplished in compliance with all of

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the requirements of the laws, rules, regulations, and ordinances, under which, absent this chapter,

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a permit, license, variance, or assent would be required, or that consideration of the public health,

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safety, welfare, security and need for the proposed facility justifies a waiver of some part of the

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requirements when compliance cannot be assured.

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     (3) The proposed facility will not cause unacceptable harm to the environment and will

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enhance the socio-economic fabric of the state.

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     (4) In the case of an application for permitting of a fossil fuel facility, the applicant has

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complied with § 42-98-8. The board shall not approve the fossil fuel facility application unless

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and until:

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     (i) The applicant's plan for the construction of one or more renewable energy facilities, as

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the board in its discretion may modify, change, or amend, has been approved; or

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     (ii) The applicant has satisfied the renewable energy facilities investment of § 42-98-8; or

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     (iii) In lieu of building or investing in one or more renewable energy facilities, and at the

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applicant's sole election, the applicant may pay an amount equal to twenty-five percent (25%) of

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the actual cost of the fossil fuel facility into the renewable energy development fund as

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established by § 39-26-7. A payment equal to at least twelve and five-tenths percent (12.5%) of

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the estimated cost of the fossil fuel facility shall be made prior to the commencement of

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construction. The second payment equal to the remainder of twenty-five percent (25%) of the

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actual costs of the fossil fuel facility shall be paid within forty-five (45) days of the commercial

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operation date of the fossil fuel facility as determined by the independent system operator-New

 

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England or successor entity regulated by the Federal Energy Regulatory Commission.

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     (c) Within sixty (60) days of the conclusion of the final hearing the board shall issue its

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final decision on the application. A decision in favor of the application shall constitute a granting

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of all permits, licenses, variances, or assents, which under any law, rule, regulation, or ordinance

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of the state or of a political subdivision thereof which would, absent this chapter, be required for

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the proposed facility. The decision may be issued requiring any modification or alteration of the

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proposed facility, and may be issued on any condition the board deems warranted by the record,

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and may be issued conditional upon the applicant's receipt of permits required by federal law. The

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board's decision shall explicitly address each of the advisory opinions received from agencies,

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and the board's reasons for accepting, rejecting, or modifying, in whole or in part, any of those

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advisory opinions. The board shall, within ten (10) days of granting a license, with or without

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conditions, deliver the decision to the speaker of the Rhode Island house of representatives, and

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the president of the Rhode Island senate.

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     42-98-16. Violations.

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     (a) Failure to comply with any promulgated board rule, regulation, requirement or

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procedure for the licensing of energy facilities shall constitute grounds for suspension or

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dismissal, with or without prejudice in its discretion, of licensing proceedings, provided that the

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applicant shall have a reasonable opportunity to show cause for and remedy the lack of

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compliance.

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     (b) Failure to comply with any provision, condition or limitation contained in a board

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license to site, build, or alter a major energy facility and/or failure to comply with a board cease

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and desist order and/or a board order to remedy a non-complying action shall be grounds for

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suspension or revocation of the license, and/or shall be punishable by a fine of not more than

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twenty thousand dollars ($20,000). Each day of continuing noncompliance shall be considered a

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separate violation and so punished.

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     (c) The board may require the licensee to maintain those records as are reasonable and

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necessary to monitor compliance with license provisions, and shall have the authority to enter

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onto the property of licensees to investigate complaints of noncompliance and to perform routine

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inspections.

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     (d) The board shall revoke a fossil fuel facility license already granted, in the event of a

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willful failure of a licensee to comply with the construction or investment in renewable energy

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facilities, or, in the alternative, the failure to make payment to the renewable energy development

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fund pursuant to § 42-98-11. The applicant/licensee shall be provided notice and a hearing prior

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to revocation. The applicant/licensee shall be afforded a reasonable opportunity to cure a willful

 

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failure not to exceed one hundred eighty (180) days following notice and hearing before

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revocation of license.

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     (d)(e) The board may designate officials or staff of any state agencies as its agents for the

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purposes of investigating complaints, performing routine maintenance functions and issuing

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written cease and desist orders.

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     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT - ENERGY FACILITY SITING

ACT

***

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     This act would provide that applicants/licensees for fossil fuel electricity generating

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facilities invest in renewable energy facilities in conjunction with the fossil fuel facility

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construction.

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     This act would take effect upon passage.

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