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General Laws

Section 69J1/4. No applicant shall commence construction of a generating facility unless a petition for approval of construction of that generating facility has been approved by the board. In addition, no state agency of the commonwealth shall issue a construction permit for any such generating facility unless the petition to construct such generating facility has been approved by the board pursuant to this section.

To streamline its review of petitions to construct generating facilities which have state of the art environmental performance characteristics, the board periodically shall conduct a rulemaking to establish a technology performance standard generating facilities emissions, including, but not limited to, emissions of sulfur dioxide, nitrogen oxides, particulate matter, fine particulates, carbon monoxide, volatile organic compounds, and heavy metals. As to each such pollutant, the performance standard shall reflect the best available control technology or the lowest achievable emissions rate, whichever would be applicable in the commonwealth for such pollutant that year. The performance standard shall also reflect the best available and most efficient technology to control and reduce water withdrawals. Such standard shall reflect emission rates that are achievable by state of the art fossil fuel generating and control technologies, as demonstrated by air permits for construction that have been issued by the department of environmental protection. The technology performance standard shall be used solely to determine whether a petition to construct a generating facility shall include information regarding other fossil fuel generation technologies. The promulgation or application of this standard shall not in any way supersede or impair the authority of the department of environmental protection with respect to these or other facilities.

A petition to construct a generating facility shall include, in such form and detail as the board shall from time to time prescribe, the following information: (i) a description of the proposed generating facility, including any ancillary structures and related facilities; (ii) a description of the environmental impacts and the costs associated with the mitigation, control, or reduction of the environmental impacts of the proposed generating facility; (iii) a description of the project development and site selection process used in choosing the design and location of the proposed generating facility; (iv) either (a) evidence that the expected emissions from the facility meet the technology performance standard in effect at the time of filing, or (b) a description of the environmental impacts, costs, and reliability of other fossil fuel generating technologies, and an explanation of why the proposed technology was chosen; and (v) any other information necessary to demonstrate that the generating facility meets the requirements for approval specified in this section.

The board shall, after public notice and a period for comment, be authorized to issue and revise its own list of guidelines. Sufficient data shall be required from the applicant by these guidelines to enable the board to review the local and regional land use impact, local and regional cumulative health impact, water resource impact, wetlands impact, air quality impact, solid waste impact, radiation impact, visual impact, and noise impact of the proposed generating facility; provided, however, that these guidelines shall not require any data related to the necessity or cost of the proposed generating facility, except for data related to the costs associated with the mitigation, control, or reduction of the environmental impacts of the proposed generating facility, and, if the proposed facility does not meet the technology performance standard in effect at the time of filing, data related to the costs, including costs associated with the mitigation, control, or reduction of environmental impacts, of other fossil fuel generating technologies. Within 60 days of the filing of a petition to construct a generating facility, the board shall conduct a public hearing in each locality in which the generating facility would be located. In addition, the board shall, within 180 days of the filing thereof, conduct public evidentiary hearings on every petition to construct a generating facility. Such evidentiary hearings shall be adjudicatory proceedings under the provisions of chapter 30A.

The board shall, within one year from the date of filing, approve a petition to construct a generating facility if the board determines that the petition meets the following requirements: (i) the description of the proposed generating facility and its environmental impacts are substantially accurate and complete; (ii) the description of the site selection process used is accurate; and (iii) the plans for the construction of the proposed generating facility are consistent with current health and environmental protection policies of the commonwealth and with such energy policies as are adopted by the commonwealth for the specific purpose of guiding the decisions of the board; (iv) such plans minimize the environmental impacts consistent with the minimization of costs associated with the mitigation, control, and reduction of the environmental impacts of the proposed generating facility; and (v) if the petitioner was required to provide information on other fossil fuel generating technologies, the construction of the proposed generating facility on balance contributes to a reliable, low-cost, diverse, regional energy supply with minimal environmental impacts. Nothing in this chapter shall be construed as requiring the board to make findings regarding the need for, the cost of, or alternative sites for a generating facility; provided, however, that the board may, at its discretion, evaluate a noticed alternative site for a generating facility if the applicant requests such an evaluation, or if such an evaluation is an efficient method of administering an alternative site review required by another state or local agency. In addition, nothing in this chapter shall be construed as requiring the board to make findings regarding alternative generating technologies for a proposed generating facility whose expected emissions meet the technology performance standard in effect at the time of filing.

If the board determines that the standards set forth above have not been met, it shall, within one year of the date of filing, either reject, in whole or in part, the petition, setting forth in writing its reasons for such rejection, or approve the petition subject to stated conditions. In the event of rejection or conditional approval, the applicant may, within 180 days, submit an amended petition. Public and evidentiary hearings on the amended petition shall be held on the same terms and conditions applicable to the original petition.

Upon fulfilling the requirements of this section, a generating facility shall be deemed to contribute to a reliable energy supply for the commonwealth with a minimum impact on the environment at the lowest possible cost. If the board approves a petition to construct a generating facility, the approval shall have no bearing or precedent-setting effect upon any department proceeding regarding the recovery of costs associated with the generating facility or upon any proceeding conducted pursuant to section 94A of this chapter.

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