Bill H.3215

HOUSE DOCKET, NO. 2650 FILED ON: 1/19/2023

HOUSE . . . . . . . . . . . . . . . No. 3215

By Representative Roy of Franklin, a petition (accompanied by bill, House, No. 3215) of Jeffrey N. Roy for legislation to expedite permitting for electric decarbonization infrastructure projects. Telecommunications, Utilities and Energy.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act to expedite permitting for electric decarbonization infrastructure projects.

Whereas, The deferred operation of this act would tend to defeat its purpose, which is to expedite state permitting for electric utility infrastructure projects that contribute to decarbonization of the electric sector in the commonwealth to combat climate change, it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience., therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

The General Laws are hereby amended by inserting after chapter 21O the following chapter 21P:

CHAPTER 21P: EXPEDITED PERMITTING FOR ELECTRIC DECARBONIZATION INFRASTRUCTURE PROJECTS

SECTION 1. Title.

This chapter shall be known and may be cited as the “Expedited Permitting for Electric Decarbonization Infrastructure Projects Act”.

SECTION 2. Purpose.

It is the purpose of this chapter to consolidate and expedite the state review and permitting processes for electric utility infrastructure projects that contribute to decarbonization and to provide a single forum in which the electric decarbonization infrastructure permitting office created by this chapter may undertake coordinated, timely, and standardized reviews of such projects to facilitate achievement of the commonwealth’s climate change, renewable energy and emissions reduction goals while protecting the environmental resources of the commonwealth.

SECTION 3. Definitions.

As used in this chapter the following words shall, unless the context clearly requires otherwise, have the following meanings:

(1)“Agency”, an agency, department, board, commission or authority of the commonwealth, and any authority of any municipality which is specifically created as an authority under special or general law.

(2)“Applicant”, an electric company that applies for a consolidated permit pursuant to this chapter.

(3)“Best management practices”, broadly accepted industry practices that have been determined by the office pursuant to this chapter to be the most effective and practical means of avoiding, minimizing, or mitigating adverse environmental impacts caused by electric decarbonization infrastructure projects similar to the qualifying project.

(4)“Consolidated permit”, a permit issued by the office pursuant to this chapter 21P and the rules and regulations promulgated by the office.

(5)“Department”, the department of environmental protection.

(6)“Director”, the director of the office.

(7)“Distributed generation”, means as defined section 1 of Chapter 164.

(8)“Distribution”, means as defined in section 1 of Chapter 164.

(9)“Distributed energy resources”, means as defined in section 1 of Chapter 164.

(10)“Electric company”, means as defined in section 1of Chapter 164.

(11)“Electric decarbonization infrastructure project”, means electric sector infrastructure projects that: (i) improve grid reliability, communications, and resiliency; (ii) enable increased, timely adoption of and interconnection to renewable energy and distributed energy resources; (iii) promote energy storage and electrification technologies necessary to decarbonize the environment and economy; (iv) prepare for future, climate-driven impacts on the transmission and distribution systems; (v) accommodate increased transportation electrification, increased building electrification, and other potential future demands on distribution, interconnection and, where applicable, transmission systems; or (vi) otherwise facilitate or expand the commonwealth’s capacity to realize its statewide greenhouse gas requirements and goals.

(12)“Electric-sector modernization plan”, a plan required by and approved pursuant to section 92B of Chapter 164 of the General Laws.

(13)“Energy storage system”, means as defined in section 1 of Chapter 164.

(14)“Executive office”, the executive office of energy and environmental affairs.

(15)“Generation facility”, means as defined in section 1 of Chapter 164.

(16)“Host community”, any municipality within whose jurisdictional boundaries a qualifying project is proposed.

(17)“Municipality”, a city, town, or other political subdivision of the commonwealth.

(18)“Non-renewable energy”, means as defined in section 1 of Chapter 164.

(19)“Office”, the electric decarbonization infrastructure permitting office created by this chapter.

(20)“Permittee”, an electric company that has received a consolidated permit pursuant to this chapter.

(21)“Qualifying project”, an electric decarbonization infrastructure project that:

(i)is listed in an electric-sector modernization plan approved by the department of public utilities pursuant to section 92B of Chapter 164;

(ii)will interconnect distributed generation, distributed energy resources or energy storage system facilities to the distribution system on the utility side of the point of interconnection and is not otherwise included in an electric-sector modernization plan;

(iii)is a transmission system upgrade to support (i) or (ii) above; or

(iv)is not otherwise included above.

(22)“Renewable energy”, means as defined in section 1 of Chapter 164.

(23)“Secretary”, the secretary of the executive office.

(24)“Standard conditions”, permit conditions designed to avoid, minimize, or mitigate potential adverse environmental impacts from the siting, design, construction, and operation of electric decarbonization infrastructure projects, which are codified in the office’s regulations and shall be applicable to all projects that receive a consolidated permit pursuant to this chapter 21P.

(25)“Special conditions”, permit conditions deemed necessary by the office to avoid, minimize, mitigate, or offset any potential significant site-specific adverse environmental impacts that may be caused or contributed to by the siting, design, construction, or operation of a qualifying project and are unable to be addressed by standard conditions and best management practices.

(26)“Transmission”, means as defined in section 1 of Chapter 164.

SECTION 4. Establishment of Office; Authority.

(a)No later than 90 days after the enactment of this chapter, the secretary shall establish the office, consisting of a director appointed by the secretary and such staff as are necessary to undertake the duties of the office under this chapter.

(b)The office shall exercise its authority by and through the director. The director and staff shall collectively have expertise in electric sector decarbonization, permitting requirements for electric infrastructure projects, technical and engineering expertise in electric decarbonization infrastructure projects, and such other areas as are necessary to carry out the purposes of this chapter.

SECTION 5. Funding of the Office.

(a)The office shall establish fees for any review of an application for a consolidated permit under this chapter or a violation of this chapter or regulation promulgated hereunder. Such fees shall be set such that they are reasonably expected to cover such reviews and the costs of salaries, services, equipment or other expenses that are incurred by the office including the salaries of the director and all staff, during such review.

(b)There shall be established and set up on the books of the commonwealth a separate fund. The office shall be the trustee of the fund and shall expend monies to finance operational activities of the office. The fund shall be credited any appropriations, bond proceeds or other monies authorized by the general court and specifically designated to be credited thereto, application fees for permits issued under this chapter and such additional funds as are subject to the direction and control of the office. All available monies in the fund that are unexpended at the end of each fiscal year shall not revert to the General Fund and shall be available for expenditure in the subsequent fiscal year. The office shall record all expenditures made by the office on the Massachusetts management and accounting reporting system according to regulations established by the state comptroller.

(c)The office shall, for the purposes of compliance with state finance law, operate as a state agency as defined in section 1 of chapter 29 and shall be subject to the provisions applicable to agencies under the control of the governor including, but not limited to, chapters 7, 7A, 10 and 29; provided, however, that the comptroller may identify any additional instructions or actions necessary for the office to manage fiscal operations in the state accounting system and meet statewide and other governmental accounting and audit standards. Unless otherwise exempted by law or the applicable central service agency, the office shall participate in any other available commonwealth central services including, but not limited, to the state payroll system under section 31 of said chapter 29 and may purchase other goods and services provided by state agencies in accordance with comptroller provisions. The comptroller may chargeback the office for the transition and ongoing costs for participation in the state accounting and payroll systems and may retain and expend such costs without further appropriation for the purposes of this section. The office shall be subject to section 5D of chapter 29 and subsection (f) of section 6B of chapter 29.

(d)In addition to the foregoing, the office shall annually seek funding from state appropriations to fund a dedicated reviewer at the Massachusetts Historical Commission who shall conduct reviews of qualifying projects pursuant to section 106 of the National Historic Preservation Act, when applicable.

SECTION 6. Office Responsibilities; Objectives.

(a)The office shall be charged with:

(i)developing and promulgating rules and regulations to implement this chapter, including by codifying standard conditions that shall apply uniformly to permitted qualifying projects, including, without limitation, by adopting by reference such standard conditions as have been developed by other agencies;

(ii)adopting best management practices that may be incorporated by reference into consolidated permits issued under this chapter, including, without limitation, best management practices that have been developed by an electric company and incorporated into their permits before the enactment of this chapter, and applicable best management practices utilized by agencies in permitting similar electric decarbonization infrastructure projects prior to the enactment of this chapter;

(iii)receiving, reviewing, and promptly acting upon applications for qualifying projects in accordance with this chapter and the rules and regulations promulgated by the office;

(iv)issuing, approving and, as necessary, transferring consolidated permits;

(v)monitoring projects permitted pursuant to this chapter and enforcing compliance with all terms and conditions therein; and

(vi)conducting public hearings, inter-agency consultations, and other procedures incident to the permitting process that are necessary to effectuate this chapter’s purposes.

(b)The office shall, within one year of the enactment of this chapter, promulgate regulations which:

(i)establish the consolidated permit application form and application fee for qualifying projects;

(ii)codify the consolidated permit application process and timeline for qualifying projects;

(iii)establish classes of electric decarbonization infrastructure projects based on common features, including structure and typical environmental impacts;

(iv)codify standard conditions that shall apply uniformly to each class of electric decarbonization infrastructure project;

(v)develop and incorporate in the consolidated permit, by reference, best management practices for each class of electric decarbonization infrastructure project;

(vi)establish criteria for the review of special conditions proposed for inclusion in the consolidated permit;

(vii)establish an in lieu fee program for compensatory mitigation;

(viii)establish a process and timeline for the review of requests for the modification of consolidated permits previously granted;

(ix)establish a protocol for monitoring and compliance enforcement, including any applicable penalties for noncompliance; and

(x)establish such additional rules and procedures as necessary to implement and effectuate this chapter.

(c)In developing standard conditions which shall apply uniformly to qualifying projects within each class of electric decarbonization infrastructure project, the office shall consult with electric companies, municipalities, the department, the executive office, the department of public utilities, the energy facilities siting board, and other relevant state agencies with applicable subject matter expertise.

(d)Prior to the adoption of standard conditions for inclusion in the regulations and consolidated permit, the office shall hold a public hearing to solicit comments from the public.

(e)The director shall ensure that the office’s activity pursuant to this chapter provides for and is consistent with the objectives enumerated in this subsection. The director shall also ensure that all standard conditions and best management practices, as uniformly applied to each class of electric decarbonization infrastructure projects, advance:

(i)safety;

(ii)protection of the environment;

(iii)electric sector decarbonization;

(iv)minimization or mitigation of land use impacts; (v)advancement of environmental justice; and

(vi)minimization or mitigation of impacts on the ratepayers of the commonwealth.

SECTION 7. Consolidated Permits; Transfer and Modification.

(a)Upon approving a qualifying project, the office shall issue a consolidated permit to the applicant which encompasses all state and local authorizations necessary for electric decarbonization infrastructure siting, construction, upgrades, and operation.

(b)The consolidated permit shall be enforceable by the office in the manner provided in Section 13 and any applicable rules and regulations promulgated pursuant to this chapter. All standard conditions, special conditions, and best management practices identified in a consolidated permit shall constitute enforceable provisions of the consolidated permit.

(c)The director shall have sole and final discretion over the terms and conditions of the permit, including standard conditions, special conditions, and best management practices; provided, however, the director shall comply with subsection 6(e) of this chapter in selecting applicable standard conditions, special conditions, and best management practices.

(d)A consolidated permit issued by the office may be transferred or assigned, subject to the prior written approval of the office, to an electric company that agrees to comply with the terms, limitations, and conditions contained in said permit.

SECTION 8. Standard Conditions and Best Management Practices.

(a)The standard conditions established pursuant to this chapter shall be designed to avoid, minimize, or mitigate, to the maximum extent practicable, any potential significant adverse environmental impacts caused or contributed to by the siting, design, construction, upgrades to, or operation of qualifying projects. Such uniform standard conditions shall apply to those environmental impacts the office determines are common to each class of electric decarbonization infrastructure projects.

(b)The office shall promulgate regulations establishing an in lieu fee program for compensatory mitigation that effectuates the restoration, establishment, enhancement or preservation of comparable environmental resources through funds paid to a government or non-profit entity. The in lieu fee program may be used at the election of the applicant to satisfy the standard of mitigation to the maximum extent practicable and advance the objectives enumerated in subsection 6(e) of this chapter only to the extent that the office finds that avoidance and minimization are not practicable.

(c)The office shall develop and incorporate by reference in consolidated permits issued pursuant to this chapter best management practices based on best management practices that have been developed by an electric company and incorporated into their permits before the enactment of this chapter; as well as any applicable best management practices adopted by agencies in permitting similar electric decarbonization infrastructure projects prior to the enactment of this chapter. Such best management practices shall become enforceable terms of the consolidated permit when incorporated by reference therein.

(d)All standard conditions and best management practices shall, as applied to each qualifying project, conform to or advance the objectives enumerated in subsection 6(e) of this chapter.

SECTION 9. Applicability; Preemption.

(a)An electric company may, in lieu of seeking other permits or approvals as are required by the commonwealth, any department, commission, board or subdivision thereof, and any city or town, request that the office issue a consolidated permit for an electric decarbonization infrastructure project in accordance with this chapter. Any such project for which a consolidated permit is issued shall thereafter be built, maintained, upgraded, or operated except in conformity with the terms, standard conditions, and special conditions, if any, contained in the consolidated permit.

(b)The office shall have exclusive authority over qualifying projects. No city or town shall have authority over any qualifying project nor shall any city or town enact any bylaw, ordinance, or regulation with respect to qualifying projects.

(c)Notwithstanding any other provision of law, no other state agency, department, or authority, nor any municipality or agency thereof, may, except as expressly authorized under this chapter or the rules and regulations promulgated under this chapter, require any approval, consent, permit, certificate, contract, agreement, memorandum of understanding, or other condition for the development, design, construction, upgrades to, or operation of qualifying projects for which a consolidated permit has been granted in accordance with this chapter. This chapter shall supersede and replace all permitting and authorization requirements for qualifying projects required by the commonwealth, any department, commission, board or subdivision thereof, and any city or town.

(d)Nothing in this chapter shall exempt any qualifying project granted a consolidated permit from compliance with all applicable federal laws and regulations.

(e)This section shall not apply to:

(i)normal repairs, maintenance, replacements, non-material modifications and non- material improvements of electric sector infrastructure, whenever built, which are performed in the ordinary course of business and which do not constitute a violation of any applicable existing permit, including but not limited to projects otherwise exempt under Section 40 of Chapter 131 of the General Laws, Chapter 91 of the General Laws, or Section 61 of Chapter 30 of the General Laws; or

(ii)projects in or over the territorial sea of the commonwealth; or

(iii) generation facilities.

SECTION 10. Application Review Process; Permit Issuance.

(a)Applicants shall initiate the application process for a consolidated permit by submitting a single application in such form and detail as the office shall prescribe in its regulations promulgated pursuant to this chapter. Applications shall include, at a minimum the following information, in addition to any other information the office may require:

(i)a cover sheet listing all substantive local and state permits and authorizations that the applicant would have otherwise been required to obtain prior to commencing the electric decarbonization infrastructure project;

(ii)a description of the proposed project;

(iii)an explanation of why the applicant’s project should be considered a qualifying project pursuant to this chapter;

(iv)proof of consultation with the host community with respect to the project and its potential impacts;

(v)documentation that all Massachusetts Environmental Policy Act requirements for advance notification to environmental justice populations, as defined in section 62 of chapter 30, have been met by the applicant, in accordance with Massachusetts Environmental Policy Act regulations;

(vi)an outreach plan for engagement with environmental justice populations, in accordance with Massachusetts Environmental Policy Act regulations;

(vii)documentation of compliance with any other pre-application substantive or procedural requirements of the Massachusetts Environmental Policy Act and its regulations; and

(viii)an application fee in the amount specified by the office in its regulations promulgated pursuant to this chapter.

(b)Within thirty days of receiving an application, the office shall determine whether the proposed electric decarbonization infrastructure project is a qualifying project. If the project does not qualify, the director shall deny the consolidated permit and issue a written explanation of its determination to the applicant within thirty days of receiving the application. Within fifteen days of receiving notice that an application for a consolidated permit has been denied, an applicant may request reconsideration by the secretary. The secretary shall review the application and office’s determination and may issue a superseding determination that the project qualifies within fifteen days of receiving the request for reconsideration. Applicants may elect to have a pre-application meeting with the office to determine the eligibility of proposed electric decarbonization infrastructure projects.

(c)If the office confirms that the applicant’s proposed project is a qualifying project, the office shall, within thirty days of receiving an application, publish public notice of availability of the application. Concurrently with the publication of notice of availability of an application, the office shall forward the application to all state and local agencies that would otherwise have jurisdiction over any authorization required for the proposed project.

(d)Upon receiving notification of availability of an application for a consolidated permit from the office, such state agencies shall review the proposed electric decarbonization infrastructure project and identify potential significant site-specific adverse environmental impacts, if any, that may be caused or contributed to by the siting, design, construction, or operation of the project which are unable to be addressed by standard conditions and best management practices. Each agency may, but shall not be required to, propose special conditions that avoid, minimize, or mitigate, to the maximum extent practicable, such impacts, and shall submit a letter containing its recommendations to the office within the public comment period.

(e)A sixty day public comment period shall commence on the date of publication of notice of availability of an application. The office may require a site visit if a site visit is requested by any local or state agency or public commenter within the first thirty days of the public comment period.

(f)The office may consult with any agency recommending special conditions during the public comment period. At the request of the office, an agency may provide support to the office within the scope of their respective statutory expertise, provided, however, that the director shall have sole discretion over which special conditions to include, if any, in the final permit.

(g)A public hearing shall be held by the office if the electric decarbonization infrastructure project is proposed within one to five miles of an environmental justice population, as required in regulations promulgated pursuant to the Massachusetts Environmental Policy Act, or if requested by twenty-five or more residents of the commonwealth within thirty days of public notice. All hearings conducted pursuant to this chapter shall conform to the procedures established by the office in its regulations promulgated pursuant to this chapter. All hearings initiated under this section or pursuant to rules or regulations promulgated pursuant to this section may be conducted by the director or any person to whom the director shall delegate the power and authority to conduct such hearings or proceedings in the name of the office at any time and place.

(h)Within thirty days of closure of the public comment period, the office may request information from the applicant that is necessary to identify appropriate standard conditions and best management practices, and to assess any agency recommendations for special conditions. The applicant shall respond to the office’s request for information within thirty days. Failure to respond within thirty days may result in a proportional delay in the office’s period for issuing a decision on the application.

(i)No later than six months from the date of public notice, the office shall issue a consolidated permit either approving or approving with special conditions a qualifying project. The consolidated permit shall specify the state and local permits and authorizations that are encompassed therein and identify enforceable standard conditions and best management practices for the project, except that if a qualifying project is approved with special conditions, such special conditions shall replace or supplement standard conditions and best management practices, as stipulated in the consolidated permit. If the office fails to issue a consolidated permit for a qualifying project within six months of the date of public notice, the permit will be deemed approved and subject to all standard conditions and best management practices identified for electric decarbonization infrastructure projects of that class in the office’s regulations promulgated pursuant to this chapter; subject to such delays caused by the applicant’s failure to timely comply with the agency’s request for information, per subsection 10(h).

(j)The office shall conform to the objectives enumerated in subsection 6(e) of this chapter in reviewing an application and selecting applicable standard conditions, special conditions, and best management practices.

SECTION 11. Expedited Appeals Process.

(a)Any person aggrieved by the issuance or denial of a consolidated permit or other final decision of the office may seek judicial review of such decision as provided in this section.

(b)For purposes of this section, “person aggrieved” shall mean: (i) an applicant for a consolidated permit, or (ii) any other person who timely filed comments during the review of a consolidated permit and who can demonstrate substantial adverse impact from the issuance or denial of a consolidated permit unique from any such impacts on the general public.

(c)Appeals shall be limited to those filed within thirty days of permit issuance or denial, or other final decision of the office.

(d)The Supreme Judicial Court, or, at the discretion of the Court, a single justice thereof, shall have jurisdiction over appeals pursuant to this section and shall have the power to grant such relief as it deems just and proper, and to make and enter an order enforcing, modifying and enforcing as so modified, remanding for further specific findings, or setting aside in whole or in part such decision of the office. The jurisdiction of the Supreme Judicial Court shall be exclusive and its judgment and order shall be final. All such proceedings shall be heard and determined by the court as expeditiously as possible and with lawful precedence over all other matters.

(e)The appeal shall be heard on the record and upon briefs to the court in the same manner as appeals heard pursuant to sections 14 through 16 of Chapter 30A of the General Laws. The findings of fact on which such decision is based shall be conclusive if supported by substantial evidence on the record considered as a whole and matters of judicial notice set forth in the opinion. The grounds for and scope of review of the court shall be limited to whether the decision and action of the office is:

(i)in conformity with the constitution, laws and regulations of the commonwealth and the United States;

(ii)supported by substantial evidence in the record and matters of judicial notice properly considered and applied in the opinion;

(iii) within the office’s statutory jurisdiction or authority;

(iv)made in accordance with procedures set forth in this chapter or established by rule or regulation pursuant to this chapter;

(v) arbitrary, capricious or an abuse of discretion; and

(vi)made pursuant to a process that afforded meaningful involvement of citizens affected by the facility regardless of age, race, color, national origin and income.

SECTION 12. Monitoring and Enforcement; Permit Suspension and Revocation.

(a)The office is authorized to monitor the construction and operation of qualifying projects

to ensure compliance with all terms and conditions, including standard conditions, special conditions, and best management practices, set forth in a consolidated permit issued for such project.

(b)The office is authorized to take such actions as may be necessary in its discretion to enforce compliance with all terms and conditions, including standard conditions, special conditions, and best management practices, set forth in the consolidated permit, in accordance with its rules and regulations promulgated pursuant to this chapter; provided, however, that the office must first issue a detailed notice of the noncompliance to the permittee and allow the permittee fifteen days to cure the noncompliance.

Name:	District/Address:	Date Added:
Jeffrey N. Roy	10th Norfolk	1/19/2023
Kristin E. Kassner	2nd Essex	4/6/2023
James C. Arena-DeRosa	8th Middlesex	6/8/2023
Priscila S. Sousa	6th Middlesex	7/11/2023
Tommy Vitolo	15th Norfolk	1/26/2024