2023 -- H 5945

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LC002003

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     STATE OF RHODE ISLAND

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-

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.

     As used in this chapter:

     (1) "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)(2) “Agency” means any agency, council, board, or commission of the state or political

subdivision of the state.

     (b)(3) “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

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to be an “alteration.”

     (c)(4) “Board” for purposes of this chapter refers to the siting board.

     (5) "Host community" means any municipality in the state in which all or the majority of

a major energy facility is or shall be located. For the purpose of defining "located", linear aspects

of a major energy facility that transit through multiple municipalities, to include electric

transmission lines as used in this section and pipelines as used in this section shall not be considered

in determining where "the majority" of a major energy facility is or shall be located.

     (6) For purpose of this chapter, there shall be two (2) types of "major energy facilities":

     (i) "Major generating facility" means facilities for the generation of electricity designed or

capable of operating at a gross capacity of forty megawatts (40mw) or more.

     (d)(ii) “Major energy non-generating facility” means:

     (A) 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;

     (B) Electric transmission lines of sixty-nine (69) Kv or over;

     (C) Facilities facilities for the conversion, gasification, treatment, transfer, or storage of

liquefied natural and liquefied petroleum gases, except natural gas pipelines that have a maximum

allowable operating pressure (MOAP) of two hundred pounds per square inch gauge (200 psig) or

less;

     (D) Facilities facilities for the processing, enrichment, storage, or disposal of nuclear fuels

or nuclear byproducts;

     (E) 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

     (F) Facilities facilities associated with the transfer of oil, gas, gasoline, 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

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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 secretary of commerce, or designee; and a

public member appointed in accordance with § 42-98-5.1. 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, other than a public member, may select their own designee

from their respective agency 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 §

42-98-5.2. 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

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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.

     (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

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host community shall be granted intervenor status as of right.

     (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.

     (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 the proposed facility.

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

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

the law.

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

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

the proposed site, including, but not limited to, the types of fuels and waste products used, stored,

and produced by the facility, and a summary of all studies prepared and relied upon in connection

therewith.

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

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

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

this chapter “prudent avoidance” shall refer to measures to be implemented in order to protect the

public from EMF exposure.

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

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

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

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

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

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

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

facility, and expected methods of financing the facility.

     (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 normal and off-

normal operations, including, but not limited to, plans for the handling and disposal of wastes from

the facility, and plans for the decommissioning of the facility at the end of its useful life.

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

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

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

energy costs of alternatives considered.

     (8) A detailed description of the short-term and long-term economic impacts associated

with constructing and operating the proposed project.

     (b) Each application shall be reviewed prior to docketing. The board shall conduct a

preliminary review to determine whether the application contains each item as required by

subsection (a) of this section. Within thirty (30) days of the filing of an applicant application under

this chapter, the board shall notify the applicant whether the application is in the form and addresses

the matters that are required by this section and the rules and regulations as are promulgated

pursuant to § 42-98-7. An application meeting these requirements shall then be docketed. Any

application deemed to be deficient shall be returned to the applicant, together with a concise and

explicit statement of the application’s deficiencies. Within fifteen (15) days of the resubmission of

an application following a rejection for deficiency, the board shall either docket the application

together with specification of continuing deficiencies noted by the board, if any, or shall issue a

decision rejecting the application due to continuing deficiencies.

     42-98-9. Applications — Procedures for review — Preliminary hearing.

     (a) Within sixty (60) days following the board’s docketing of an application the board shall,

on not less than forty-five (45) days’ notice to all agencies, subdivisions of the state, and the public,

convene a preliminary hearing on the application to determine the issues to be considered by the

board in evaluating the application, and to designate those agencies of state government and of

political subdivisions of the state which shall act at the direction of the board for the purpose of

rendering advisory opinions on these issues, and to determine petitions for intervention.

     (b) The board shall consider as issues in every proceeding the ability of the proposed

facility to meet the requirements of the laws, rules, regulations, and ordinances under which, absent

this chapter, the applicant would be required to obtain a permit, license, variance, or assent. The

agency of state government or of a political subdivision of the state which, absent this chapter,

would have statutory authority to grant or deny the permit, license, variance, or assent, shall

function at the direction of the board for hearing the issue and rendering an advisory opinion

thereon.

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     (c) The board shall may limit the scope of any agency’s investigation where it finds that

more than one agency has jurisdiction over a matter at issue in the licensing process. In these

instances, the board shall may determine which agency shall make the necessary findings on the

issue after giving proper consideration to the expertise and resources available to each of the

agencies involved.

     (d) The public utilities commission shall conduct an investigation in which the division of

planning of the department of administration, the governor’s office of energy assistance resources

and the division of public utilities and carriers shall participate and render an advisory opinion as

to the need for the proposed facility.

     (e) The statewide planning program within the department of administration shall conduct

an investigation and render an advisory opinion as to the socio-economic impact of the proposed

facility and its construction and consistency with the state guide plan.

     (f) A decision of the board under this section shall be issued within thirty (30) days

following the conclusion of the preliminary hearing and in any event within forty-five (45) days of

the commencement of the hearing.

     42-98-9.1. Public notice and hearings on construction projects in cities and towns

affected.

     (a) Upon receiving a utility company application the board shall immediately notify, in

writing, the councils of the towns and cities affected by the construction.

     (b)(1) The When the subject of the application is a major non-generating facility, the board

shall have at least one public hearing in each town or city affected the host community prior to

holding its own hearings and prior to taking final action on the application. All details of acceptance

for filing in § 42-98-8(a)(1) — (a)(6) shall be presented at town or city hearings for public comment.

When the subject of the application is a facility for the generation of electricity, or are new facilities

for the transmission of electricity, the town or city where the proposed facility would be located

may request funding from the applicant to perform studies of the local environmental effects of the

proposed facility. The expense of those studies shall not exceed the lesser of one hundred thousand

dollars ($100,000) or one-tenth percent (.1%) of the estimated capital cost of the proposed facility

located in such city or town. If the applicant contests the relevance of the requested study, or

believes it to be redundant with studies already performed, the applicant may request a ruling from

the board whether the study is necessary and reasonably expected to produce relevant information.

The board’s ruling shall be conclusive and final, and shall not be the basis for an interlocutory

appeal, injunction or otherwise delay the board’s processing of the application.

     (2) When the subject of the application is a major generating facility, the board shall have

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at least three (3) public hearings in the host community prior to holding its own hearings and prior

to taking final action on the application. All details of acceptance for filing in § 42-98-8(a) shall be

presented at public hearings for public comment. The host community where the proposed

generating facility would be located may request funding from the applicant to perform studies of

the local environmental effects of the proposed facility. The expense of those studies shall not

exceed the greater of one hundred fifty thousand dollars ($150,000) or one-tenth percent (.1%) of

the estimated capital cost of the proposed facility, whichever is more. The applicant shall also pay

any and all fees and expenses reasonably incurred by the host community to fully participate in the

facility siting process and local review, including, but not limited to, fees and expenses for legal

counsel, expert evaluations, transcripts and other costs associated with the energy facility siting

process. If the applicant contests any fee or expense as unrelated or unreasonable, the applicant

may request a ruling from the board whether the fee or expense is related and reasonable. The

board's ruling shall be conclusive and final and shall not be the basis for an interlocutory appeal,

injunction or otherwise delay the board's processing of the application.

     (c) The applicant shall notify the citizens in towns and cities affected thirty (30) days prior

to public meetings through local papers.

     (d) The applicant shall notify abutting land the following property owners individually, in

writing, thirty (30) days prior to the hearings, by certified mail, postage prepaid.:

     (1) For applications related to major non-generating facilities, applicants shall notify all

property owners whose property is located within three hundred feet (300’) from the limit of

disturbance of the proposed project or the centerline of a proposed linear project; provided, no

additional notice is required for sixty (60) and ninety (90) day notices of intent.

     (2) For applications related to major generating facilities, applicants shall notify all

property owners whose property is located within two (2) miles from the proposed site boundaries.

     (e) Public input shall be a part of the decision making process.

     42-98-10. Agency procedures — Advisory opinion.

     (a) Each agency of the state or political subdivision of the state designated under § 42-98-

9 shall proceed to consider the issue or issues consigned to it for review. Each advisory agency

shall conclude its consideration and issue its advisory opinion not more than six (6) months

following its designation under § 42-98-9 and receipt of all application materials, or any lesser time

that the board may require, or the right to exercise the function shall be forfeited to the board. The

board may suspend an application proceeding where an applicant fails to provide requested relevant

information or materials to an advisory agency in a timely manner.

     (b) Advisory opinions issued by agencies designated under § 42-98-9 shall not be

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considered as final decisions of the agencies making the opinions, and shall not be subject to

judicial review under § 42-35-15, or any other provision of the general laws.

     (c) Advisory opinions issued by zoning boards of review, building inspectors, or any other

agency of a municipality designated under § 42-98-9 shall not be reviewable by the public utilities

commission under § 39-1-30.

     (d) Failure or refusal of the applicant to provide requested information may be considered

as grounds for recommending denial.

     (e) At the request of the siting board, the director of environmental management and the

coastal resources management council shall give priority to the review of permits for energy

facilities.

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

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

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

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

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

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

forum, and from a consolidated, statewide prospective, the issues reviewed, and the

recommendations made in the proceedings before the agencies designated under § 42-98-9. The

board at this hearing may, at its discretion, allow the presentation of new evidence by any party as

to the issues considered by the agencies designated under § 42-98-9. The board may limit the

presentation of repetitive or cumulative evidence. The final hearing shall proceed on not less than

thirty (30) days’ notice to the parties and the public, shall be concluded not more than sixty (60)

days following its initiation, and shall be conducted expeditiously.

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

has shown that:

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

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

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

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

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

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

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

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

requirements when compliance cannot be assured.

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

enhance the socio-economic fabric of the state.

     (c) For multiple applications related to a single project, the board shall consider the

cumulative impacts of the related applications.

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

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

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

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

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

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

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

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

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

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

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

the president of the Rhode Island senate.

     42-98-16. Violations.

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

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

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

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

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

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

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

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

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

violation and so punished.

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

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

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

inspections.

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

purposes of investigating complaints, performing routine maintenance functions and issuing

written cease and desist orders.

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     (e) Nothing in this chapter shall preclude a host community from enforcing municipal

ordinances, levying fines, or pursuing any other legally available enforcement remedies, unless

such ordinances are in direct conflict with a certificate or license issued by the board.

     SECTION 2. Chapter 42-98 of the General Laws entitled "Energy Facility Siting Act" is

hereby amended by adding thereto the following sections:

     42-98-5.1. Public members.

     (a) A public member shall be appointed to the board by the governor with the advice and

consent of the senate for a term of two (2) years.

     (b) A public member shall be a member of the general public.

     (c) A public member shall not hold another state or local office and shall not receive nor

have received within the previous five (5) years any income directly or indirectly from an electric,

gas, or oil company or from an energy facility developer.

     (d) If a public member recuses or withdraws from a proceeding for any reason, a substitute

member shall be appointed in accordance with this section.

     42-98-5.2. Hearing officers.

     (a) The board may appoint a hearing officer to conduct hearings related to a major non-

generating facility. Hearing officers shall not be appointed to conduct hearings related to a major

generating facility.

     (b) A hearing officer shall be an attorney licensed to practice law in this state with

experience in regulatory matters dealing with energy production and/or transmission.

     (c) A hearing officer shall be reasonably compensated by the board for their services to the

board, either through contract or, if the hearing officer is a state employee, through a transfer to the

state agency or department by whom the attorney is normally employed.

     (d) Following the completion of the hearing, the hearing officer shall file their findings and

recommended decision in writing with the board. Upon review of the findings and

recommendations, the board may accept, reject, or modify, in whole or in part, the hearing officer’s

findings and recommended decision. Subsequent to the board's review and formal decision, the

provider may submit a written brief to the board if the energy provider has a negative impact due

to the hearing officer's findings. The hearing officer’s findings and recommended decision shall

become effective and shall have the same force and effect as a decision of the board. If the board

rejects or modifies the hearing officer’s findings or recommended decision, then the board shall

decide the matter independently and issue an order of the board with its findings and decision.

     (e) No hearing officer shall be assigned to a hearing relating to a project or proposed project

by an applicant from whom they have directly or indirectly received compensation in the last five

LC002003 - Page 13 of 15

(5) years.

     (f) The board shall establish within two (2) months of the effective date of this section and

maintain, at least on a biennial basis, a list of qualified hearing officers, the number of which the

board shall set and select as needed.

     (g) The list shall be composed with an equal number of officers with primary professional

experience as advocates for government and an equal number of officers with primary professional

experience as advocates for the private sector.

     SECTION 3. 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

***

     This act would recognize that a host community for a proposed or existing major generating

facility is uniquely affected by the facility siting process. The act would also increase the

membership of the siting board from three (3) to five (5) members and would mandate inclusion

and participation of the host community of the facility as well as the public in the affected cities

and towns. This act would spell out requirements for hearing officers and public members of the

board.

     This act would take effect upon passage.

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