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Text of Title 30
Vermont Statutes
Annotated Section 248
§
248. New gas and electric purchases, investments, and facilities;
certificate of public good
(a)(1) No company, as defined in section 201 of this title,
may:
(A) in any way purchase electric capacity or energy from outside
the state, for a period exceeding five years, that represents
more than one percent of its historic peak demand, or
(B) invest in an electric generation or transmission facility
located outside this state unless the public service board
first finds that the same will promote the general good of
the state and issues a certificate to that effect.
(2) Except for the replacement of existing facilities with
equivalent facilities in the usual course of business, and
except for electric generation facilities that are operated
solely for on-site electricity consumption by the owner of
those facilities:
(A) no company, as defined in section 201 of this title, and
no person, as defined in 10 V.S.A. § 6001(14), may begin
site preparation for or construction of an electric generation
facility or electric transmission facility within the state
which is designed for immediate or eventual operation at any
voltage, and
(B) no such company may exercise the right of eminent domain
in connection with site preparation for or construction of
any such transmission or generation facility, unless the public
service board first finds that the same will promote the general
good of the state and issues a certificate to that effect.
(3) No company, as defined in section 201 of this title, and
no person, as defined in 10 V.S.A. § 6001(14), may in
any way begin site preparation for or commence construction
of any natural gas facility, except for the replacement of
existing facilities with equivalent facilities in the usual
course of business, unless the public service board first
finds that the same will promote the general good of the state
and issues a certificate to that effect pursuant to this section.
(A) For the purposes of this section, the term "natural
gas facility" shall mean any natural gas transmission
line, storage facility, manufactured-gas facility, or other
structure incident to any of the above. For purposes of this
section, a "natural gas transmission line" shall
include any feeder main or any pipeline facility constructed
to deliver natural gas in Vermont directly from a natural
gas pipeline facility that has been certified pursuant to
the Natural Gas Act, 15 U.S.C. § 717a et seq.
(B) For the purposes of this section, the term "company"
shall not include a "natural gas company" (including
a "person which will be a natural gas company upon completion
of any proposed construction or extension of facilities"),
within the meaning of the Natural Gas Act, 15 U.S.C. §
717a, et seq., provided however, that the term "company"
shall include any "natural gas company" to the extent
it proposes to construct in Vermont a natural gas facility
that is not solely subject to federal jurisdiction under the
Natural Gas Act.
(C) The public service board shall have the authority to,
and may in its discretion, conduct a proceeding, as set forth
in subsection (h) of this section, with respect to a natural
gas facility proposed to be constructed in Vermont by a "natural
gas company," for the purpose of developing an opinion
in connection with federal certification or other federal
approval proceedings.
(4)(A) With respect to a facility located in the state, the
public service board shall hold a nontechnical public hearing
on each petition for such finding and certificate in at least
one county in which any portion of the construction of the
facility is proposed to be located.
(B) The public service board shall hold technical hearings
at locations which it selects.
(C) At the time of filing its application with the board,
copies shall be given by the petitioner to the attorney general
and the department of public service, and, with respect to
facilities within the state, the department of health, agency
of natural resources, historic preservation division, scenery
preservation council, state planning office, agency of transportation,
the agency of agriculture, food and markets and to the chairperson
or director of the municipal and regional planning commissions
and the municipal legislative body for each town and city
in which the proposed facility will be located.
(D) Notice of the public hearing shall be published in a newspaper
of general circulation in the county or counties in which
the proposed facility will be located two weeks successively,
the last publication to be at least 12 days before the day
appointed for the hearing.
(E) The agency of natural resources shall appear as a party
in any proceedings held under this subsection, shall provide
evidence and recommendations concerning any findings to be
made under subdivision (b)(5) of this section, and may provide
evidence and recommendations concerning any other matters
to be determined by the board in such a proceeding.
(b) Before the public service board issues a certificate of
public good as required under subsection (a) of this section,
it shall find that the purchase, investment or construction:
(1) with respect to an in-state facility, will not unduly
interfere with the orderly development of the region with
due consideration having been given to the recommendations
of the municipal and regional planning commissions, the recommendations
of the municipal legislative bodies, and the land conservation
measures contained in the plan of any affected municipality.
However, with respect to a natural gas transmission line subject
to board review, the line shall be in conformance with any
applicable provisions concerning such lines contained in the
duly adopted regional plan; and, in addition, upon application
of any party, the board shall condition any certificate of
public good for a natural gas transmission line issued under
this section so as to prohibit service connections that would
not be in conformance with the adopted municipal plan in any
municipality in which the line is located;
(2) is required to meet the need for present and future demand
for service which could not otherwise be provided in a more
cost effective manner through energy conservation programs
and measures and energy-efficiency and load management measures,
including but not limited to those developed pursuant to the
provisions of sections 209(d), 218c, and 218(b) of this title;
(3) will not adversely affect system stability and reliability;
(4) will result in an economic benefit to the state and its
residents;
(5) with respect to an in-state facility, will not have an
undue adverse effect on esthetics, historic sites, air and
water purity, the natural environment and the public health
and safety, with due consideration having been given to the
criteria specified in 10 V.S.A. § 1424a(d) and §
6086(a)(1) through (8) and (9)(K);
(6) with respect to purchases, investments, or construction
by a company, is consistent with the principles for resource
selection expressed in that company's approved least cost
integrated plan;
(7) except as to a natural gas facility that is not part of
or incidental to an electric generating facility, is in compliance
with the electric energy plan approved by the department under
section 202 of this title, or that there exists good cause
to permit the proposed action;
(8) does not involve a facility affecting or located on any
segment of the waters of the state that has been designated
as outstanding resource waters by the water resources board,
except that with respect to a natural gas or electric transmission
facility, the facility does not have an undue adverse effect
on those outstanding resource waters;
(9) with respect to a waste to energy facility, is included
in a solid waste management plan adopted pursuant to 24 V.S.A.
§ 2202a, which is consistent with the state solid waste
management plan; and
(10) except as to a natural gas facility that is not part
of or incidental to an electric generating facility, can be
served economically by existing or planned transmission facilities
without undue adverse effect on Vermont utilities or customers.
(c) In the case of a municipal plant or department formed
under local charter or chapter 79 of this title or a cooperative
formed under chapter 81 of this title, any proposed investment,
construction or contract which is subject to this section
shall be approved by a majority of the voters of a municipality
or the members of a cooperative voting upon the question at
a duly warned annual or special meeting to be held for that
purpose. The municipal department or cooperative shall provide
to the voters or members, as the case may be, written assessment
of the risks and benefits of the proposed investment, construction
or contract which were identified by the public service board
in the certificate issued under this section. The municipal
department or cooperative also may provide to the voters an
assessment of any other risks and benefits.
(d) Nothing in this section shall be construed to prohibit
a company from executing a letter of intent or entering into
a contract before the issuance of a certificate of public
good under this section, provided that the company's obligations
under that letter of intent or contract are made subject to
compliance with the requirements of this section.
(e) Before a certificate of public good is issued for the
construction of a nuclear fission plant within the state the
public service board shall obtain the approval of the general
assembly and the assembly's determination that the construction
of the proposed facility will promote the general welfare.
The public service board shall advise the general assembly
of any petition submitted under this section for the construction
of a nuclear fission plant within this state, by written notice
delivered to the speaker of the house of representatives and
to the president of the senate. The department of public service
shall submit recommendations relating to the proposed plant,
and shall make available to the general assembly all relevant
material. The requirements of this subsection shall be in
addition to the findings set forth in subsection (b) of this
section.
(f) However, plans for the construction of such a facility
within the state must be submitted by the petitioner to the
municipal and regional planning commissions no less than 45
days prior to application for a certificate of public good
under this section, unless the municipal and regional planning
commissions shall waive such requirement. Such municipal or
regional planning commission may hold a public hearing on
the proposed plans. Such commissions shall make recommendations,
if any, to the public service board and to the petitioner
at least 7 days prior to filing of the petition with the public
service board.
(g) However, notwithstanding the above, plans involving the
relocation of an existing transmission line within the state
must be submitted to the municipal and regional planning commissions
no less than 21 days prior to application for a certificate
of public good under this section.
(h) The position of the state of Vermont in federal certification
or other approval proceedings for natural gas facilities shall
be developed in accordance with this subsection.
(1) A natural gas facility requiring federal approval shall
apply to the public service board for an opinion under this
section (on or before the date on which the facility applies
for such federal approval in the case of a facility that has
not applied for federal approval before January 16, 1988).
Any opinion issued under this subsection shall be developed
based upon the criteria established in subsection (b) of this
section.
(2) If the board conducts proceedings under this subsection,
the department shall give due consideration to the board's
opinion as to facilities of a natural gas company, and that
opinion shall guide the position taken before federal agencies
by the state of Vermont, acting through the department of
public service under section 215 of this title.
(3) If the board conducts proceedings under this subsection,
it may consolidate them, solely for purposes of creating a
common record, with any related proceedings conducted under
subdivision (a)(3) of this section.
(i)(1) No company, as defined in sections 201 and 203 of this
title:
(A) may invest in a gas-production facility located outside
this state, or
(B) may execute a contract for the purchase of gas from outside
the state, for resale to firm-tariff customers, that
(i) is for a period exceeding five years, or
(ii) represents more than ten percent of that company's peak
demand for resale to firm-tariff customers,
without approval by the board, after giving notice of such
investment, or filing a copy of that contract, with the board
and the department at least 30 days prior to the proposed
effective date of that contract or investment.
(2) The department and the board shall consider within 30
days whether to investigate the proposed investment or contract.
(3) The board, upon its own motion, or upon the recommendation
of the department, may determine to initiate an investigation.
If the board does not initiate an investigation within such
30 day period, the contract or investment shall be deemed
to be approved. If the board determines to initiate an investigation,
it shall give notice of that decision to the company proposing
the investment or contract, the department, and such other
persons as the board determines are appropriate. The board
shall conclude its investigation within 120 days of issuance
of its notice of investigation, or within such shorter period
as it deems appropriate. If the board fails to issue a decision
within that 120 day period, the contract or investment shall
be deemed to be approved. The board may hold informal, public
or technical hearings on the proposed investment or contract.
(4) Nothing in this subsection shall prohibit a company from
negotiating or adjusting periodically the price of other terms
of supply through a supplement to such a contract, provided
that the supplement falls within the terms specified in such
a contract, as approved. The board's authority to investigate
such adjustments under other authorities of this title shall
not be impaired. Such a company shall file with the department
and the board a copy of any such supplement to the contract
or other documentation that states any terms that have been
renegotiated or adjusted by the company at least 30 days prior
to the effective date of the renegotiated or adjusted price
or other terms.
(5) Nothing in this subsection shall be construed to prohibit
a gas company from executing a development contract, a contract
for design and engineering, a contract to seek regulatory
approvals for a gas-production facility, or a letter of intent
for such purchase of gas that makes the company's obligations
under that letter of intent subject to the requirements of
this subsection, prior to the filing with the board and department
of such notice or proposed contract or pending any investigation
under this subsection.
(j)(1) The board may, subject to such conditions as it may
otherwise lawfully impose, issue a certificate of public good
in accordance with the provisions of this subsection and without
the notice and hearings otherwise required by this chapter
if the board finds that:
(A) approval is sought for construction of facilities described
in subdivision (a)(2) or (3) of this section;
(B) such facilities will be of limited size and scope;
(C) the petition does not raise a significant issue with respect
to the substantive criteria of this section; and
(D) the public interest is satisfied by the procedures authorized
by this subsection.
(2) Any party seeking to proceed under the procedures authorized
by this subsection shall file a proposed certificate of public
good and proposed findings of fact with its petition. The
board shall give written notice of the proposed certificate
to the parties specified in subdivision (a)(4)(C) of this
section, to any public interest organization that has in writing
requested notice of applications to proceed under this subsection
and to any other person found by the board to have a substantial
interest in the matter. Such notice shall be published on
two occasions at least one week apart. Such notice shall request
comment within 21 days of the last publication on the question
of whether the petition raises a significant issue with respect
to the substantive criteria of this section. If the board
finds that the petition raises a significant issue with respect
to the substantive criteria of this section, the board shall
hear evidence on any such issue.
(k)(1) Notwithstanding any other provisions of this section,
the board may waive, for a specified and limited time, the
prohibitions contained in this section upon site preparation
for or construction of an electric transmission facility or
a generation facility necessary to assure the stability or
reliability of the electric system or a natural gas facility,
pending full review under this section.
(2) A person seeking a waiver under this subsection shall
file a petition with the board and shall provide copies to
the department of public service and the agency of natural
resources. Upon receiving the petition, the board shall conduct
an expedited preliminary hearing, upon such notice to the
governmental bodies listed in subdivision (a)(4)(C) of this
section as the board may require.
(3) An order granting a waiver may include terms, conditions
and safeguards, including the posting of a bond or other security,
as the board deems proper, considering the scope and duration
of the requested waiver.
(4) A waiver shall be granted only upon a showing that:
(A) good cause exists because an emergency situation has occurred;
(B) the waiver is necessary to provide adequate and efficient
service or to preserve the property of the public service
company devoted to public use;
(C) measures will be taken, as the board deems appropriate,
to minimize significant adverse impacts under the criteria
specified in subdivisions (b)(5) and (8) of this section;
and
(D) taking into account any terms, conditions and safeguards
that the board may require, the waiver will promote the general
good of the state.
(5) Upon the expiration of a waiver, if a certificate of public
good has not been issued under this section, the board shall
require the removal, relocation or alteration of the facilities
subject to the waiver, as it finds will best promote the general
good of the state.
( l ) Notwithstanding other provisions of this section, and
without limiting any existing authority of the governor, and
pursuant to subdivisions 9(10) and (11) of Title 20, when
the governor has proclaimed a state of emergency pursuant
to section 9 of Title 20, the governor, in consultation with
the chair of the public service board and the commissioner
of the department of public service or their designees may
waive the prohibitions contained in this section upon site
preparation for or construction of an electric transmission
facility or a generation facility necessary to assure the
stability or reliability of the electric system or a natural
gas facility. Waivers issued under this subsection shall be
subject to such conditions as are required by the governor,
and shall be valid for the duration of the declared emergency
plus 180 days, or such lesser overall term as determined by
the governor. Upon the expiration of a waiver under this subsection,
if a certificate of public good has not been issued under
this section, the board shall require the removal, relocation,
or alteration of the facilities, subject to the waiver, as
the board finds will best promote the general good of the
state. (Added 1969, No. 69, § 1, eff. April 18, 1969;
amended 1969, No. 207 (Adj. Sess.), § 12, eff. March
24, 1970; 1971, No. 208 (Adj. Sess.), eff. March 31, 1972;
1975, No. 23; 1977, No. 11, §§ 1, 2; 1979, No. 204
(Adj. Sess.), § 31, eff. Feb. 1, 1981; 1981, No. 111
(Adj. Sess.); 1983, No. 45; 1985, No. 48, § 1; 1987,
No. 65, § 1, eff. May 28, 1987; No. 67, § 14; 1987,
No. 273 (Adj. Sess.) § 1, eff. June 21, 1988; 1989, No.
256 (Adj. Sess.), § 10(a), eff. Jan. 1, 1991; 1991, No.
99, §§ 3, 4; 1991, No. 259 (Adj. Sess.), §§
6, 7; 1993, No. 21, § 10, eff. May 12, 1993; 1993, No.
159 (Adj.Sess.), § 1a, eff. May 19, 1994; 2003, No. 42,
§ 2, eff. May 27, 2003; 2003, No. 82 (Adj. Sess.), §§
2, 3.) |
