Improves evaluation process by valuing aesthetic benefits and makes appropriation to quantify benefits of undergrounding; requires independent preparation of EIS; establishes intervenors programs and appropriates funds for PUC web page for consumers; requires use of ADR prior to hearing; establishes a conversion program and establishes fund to pay for program; establishes one-call system to locate underground facilities.
HOUSE OF REPRESENTATIVES
TWENTY-FIRST LEGISLATURE, 2001
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO UTILITY LINES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds there is increasing community interest in the placement of existing and proposed overhead utility facilities underground for a variety of reasons, including the desire to preserve, protect, and enhance the visual environment and scenic resources for residents and visitors.
The legislative reference bureau was requested by Senate Concurrent Resolution No. 30, Regular Session of 1999, to conduct a policy and issue study concerning the undergrounding of overhead utility facilities. In conducting the study, the bureau consulted with the utilities, the public utility commission, the consumer advocate, environmental organizations, and community members. After specifically reviewing topics such as the type of line, location, benefits of undergrounding, costs, public sentiment, technological issues and legal matters, and studying how other jurisdictions have handled the issue of undergrounding utility lines, the bureau proposed several suggestions for legislation.
The purpose of this Act is to implement the legislative reference bureau's recommendations for evaluating whether utility lines should be underground and the conversion of existing overhead to underground lines. This Act incorporates alternative approaches in the areas of valuation and conversion where the bureau recommended these subjects be addressed, but did not recommend one alternative over the other. This Act:
(1) Improves the evaluation process by requiring the determination of the need for a project by the public utilities commission prior to acceptance of a conservation district use application;
(2) Sets standards in regard to the value of benefits by establishing in the law that aesthetic benefits of the natural landscape are valued, and, alternately, makes an appropriation to quantify the benefits of underground utility lines;
(3) Establishes an independent review by requiring the independent preparation of environmental impact statements required by regulated utilities;
(4) Encourages consumer participation and open communication by directing the public utilities commission to establish an intervenors program and a one-call system to identify the location of underground utilities, and appropriating funds to establish a world wide web page that educates and informs consumers about the activities, processes, and procedures of the public utilities commission;
(5) Directs the public utilities commission to establish a program to convert overhead utility lines to underground and to establish and administer a fund to pay for the program; and
(6) Addresses safety issues of existing and future underground lines by establishing a one-call system to identify the location of underground facilities.
PART I. PROCESSES
SECTION 2. Chapter 269, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§269- Authorization of need; conservation district use permits. Whenever a regulated utility proposes a capital project within the boundaries of the conservation district for which an environmental impact statement is required under chapter 343, the commission shall issue an order authorizing or denying the need and scope of the project prior to the acceptance of a completed application for a conservation district use permit by the department of land and natural resources under section 183C-6."
SECTION 3. Section 183C-6, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) The department shall render a decision on a completed application for a permit within one-hundred-eighty days of its acceptance by the department. In the case of a public utility proposing a capital project within the boundaries of the conservation district for which an environmental impact statement is required pursuant to chapter 343, no application shall be deemed to be complete until the department has received an order from the public utilities commission authorizing the need and scope of the proposed action pursuant to section 269- . If within one-hundred-eighty days after acceptance of a completed application for a permit, the department shall fail to give notice, hold a hearing, and render a decision, the owner may automatically put the owner's land to the use or uses requested in the owner's application. When an environmental impact statement is required pursuant to chapter 343, or when a contested case hearing is requested pursuant to chapter 91, the one-hundred-eighty days may be extended an additional ninety days at the request of the applicant. Any request for additional extensions shall be subject to the approval of the board."
PART II. VALUING INTANGIBLES
SECTION 4. Chapter 269, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§269- Value of benefits. It is the policy of the State with regard to the placement of utility lines to value the aesthetic benefit of the natural landscape in residential and conservation zoned districts above all else."
SECTION 5. Section 269-27.6, Hawaii Revised Statutes, requires the evaluation of whether a benefit of underground high-voltage utility lines exists that outweighs the costs of placing the system underground. This Act appropriates funds to enable the consumer advocate to quantify the benefits accurately and include the measurement of externalities.
SECTION 6. There is appropriated out of the general revenues of the State of Hawaii the sum of $500,000, or so much thereof as may be necessary for fiscal year 2001-2002, to develop measures to quantify the benefits of underground high-voltage utility lines including the measurement of externalities associated with underground lines. The sum appropriated shall be expended by the division of consumer advocacy of the department of commerce and consumer affairs for the purposes of this Act.
PART III. INDEPENDENT REVIEW
SECTION 7. Section 343-5, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:
"(c) Whenever an applicant proposes an action specified by subsection (a) which requires approval of an agency, and which is not a specific type of action declared exempt under section 343-6, the agency receiving the request for approval shall prepare an environmental assessment of such proposed action at the earliest practicable time to determine whether an environmental impact statement shall be required. For environmental assessments for which a finding of no significant impact is anticipated, a draft environmental assessment shall be made available for public review and comment for a period of thirty days. The office shall inform the public of the availability of the draft environmental assessment for public review and comments pursuant to section 343-3. The applicant shall respond in writing to comments received during the review and the agency shall prepare a final environmental assessment to determine whether an environmental impact statement shall be required. A statement shall be required if the agency finds that the proposed action may have a significant effect on the environment. The agency shall file notice of such determination with the office which, in turn, shall publish the agency's determination for the public's information pursuant to section 343-3. The draft and final statements, if required, shall be prepared by [
the applicant,] either:
(1) The applicant, who shall file these statements with the office[
(2) If the applicant is a regulated utility under chapter 269, by a qualified environmental consultant retained under contract by the office in accordance with the competitive sealed bidding or the competitive sealed proposals source selection methods established under sections 103D-302 and 103D-303, respectively. No prospective consultant who is in any way affiliated with the applicant, or who has ever received remuneration in the past from the applicant for services rendered, shall be allowed to submit bids for the preparation of a statement under this subsection. The applicant shall reimburse the office for all contractual as well as reasonable administrative costs incurred by the office as a result of negotiating the contract immediately upon the ascertainment of the contract amount by the office.
The draft statement shall be made available for public review and comments through the office for a period of forty-five days. The office shall inform the public of the availability of the draft statement for public review and comments pursuant to section 343-3. The applicant shall respond in writing to comments received during the review and shall submit a request to the office to begin the competitive process of selecting a consultant, as required under this subsection, to prepare a final statement. The office, when requested by the applicant or agency, may make a recommendation as to the acceptability of the final statement. The authority to accept a final statement shall rest with the agency receiving the request for approval. Acceptance of a required final statement shall be a condition precedent to approval of the request and commencement of proposed action. Upon acceptance or nonacceptance of the final statement, the agency shall file notice of such determination with the office. The office, in turn, shall publish the determination of acceptance or nonacceptance of the final statement pursuant to section 343-3. The agency receiving the request, within thirty days of receipt of the final statement, shall notify the applicant and the office of the acceptance or nonacceptance of the final statement. The final statement shall be deemed to be accepted if the agency fails to accept or not accept the final statement within thirty days after receipt of the final statement; provided that the thirty-day period may be extended at the request of the applicant for a period not to exceed fifteen days.
In any acceptance or nonacceptance, the agency shall provide the applicant with the specific findings and reasons for its determination. An applicant, within sixty days after nonacceptance of a final statement by an agency, may appeal the nonacceptance to the environmental council, which, within thirty days of receipt of the appeal, shall notify the applicant of the council's determination. In any affirmation or reversal of an appealed nonacceptance, the council shall provide the applicant and agency with specific findings and reasons for its determination. The agency shall abide by the council's decision."
PART IV. PARTICIPATION AND OPEN COMMUNICATION
SECTION 8. Chapter 269, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§269- Intervenor program. The commission shall establish an intervenor program that assists consumers who have significant information to contribute to hearings and other proceedings before the commission that is outside the scope of the functions of the consumer advocate. The intervenor program shall include procedural assistance and financial compensation for consumer costs including reasonable consultant and attorney's fees. The commission shall adopt rules under chapter 91 for the implementation of and to establish standards for the intervenor program."
SECTION 9. There is appropriated out of the general revenues of the State of Hawaii the sum of $ , or so much thereof as may be necessary for fiscal year 2001-2002, to the public utilities commission to create and maintain an information and communication resource accessible through the world wide web.
SECTION 10. The sum appropriated shall be expended by the public utilities commission for the purposes of this Act.
PART V. CONVERSION
SECTION 11. Chapter 269, Hawaii Revised Statutes, is
amended by adding three new sections to be appropriately designated and to read as follows:
"§269-A Conversion program. The commission shall establish a conversion program that allows for the systematic conversion of overhead utility lines to underground lines. The conversion program shall:
(1) Authorize each county to determine underground zones by ordinance;
(2) Require any utility that transports or distributes services across utility lines and cables to contribute to the funding of the program provided that annual contributions from the utilities shall not exceed two per cent of annual gross revenues; and
(3) Establish criteria that allocates funding to each county for its underground conversion zones.
The commission shall adopt rules according to chapter 91 for the implementation of and to establish standards for the conversion program.
§269-B Underground conversion fund. (a) There is established in the state treasury the underground conversion fund, which shall be administered by the commission. The following revenues shall be deposited into the fund:
(1) Legislative appropriations;
(2) Voluntary contributions including any contributions paid along with state income tax due or amounts paid in excess of a utility bill that is part of a "round-up" program; and
(3) Contributions by a utility by order of the commission.
(b) All moneys from the fund shall be used for the conversion of overhead utility lines to underground facilities. The conversion of overhead utility lines includes the planning, design, and construction of the new facilities and the removal of the old overhead facilities.
(c) The commission shall establish criteria allocating funds to counties that determine undergrounding zones through special improvement districts by ordinance.
(d) The commission shall adopt rules according to chapter 91 to carry out the administration of the fund.
§269-C Allocation of revenues to underground conversion fund. (a) The commission shall establish an annual allocation of revenues from each utility company having above ground facilities. The allocation shall be deposited into the underground conversion fund established in section 269-A. Revenues allocated annually to the fund by each utility shall not exceed two per cent of the annual gross revenues of the utility.
(b) The commission shall allow the utilities to collect voluntary contributions by consumers for deposit into the fund through a "round-up" program. A round-up program is a program in which consumers may choose to round their utility bill up to the nearest dollar. The difference between the actual bill and the rounded amount is deposited into the underground conversion fund. The round-up program shall be administered by the utility. All funds collected by a utility in a round-up program shall be deposited monthly into the underground conversion fund. Any funds collected by a utility through a round-up program shall be excluded in determining the annual gross revenue of the utility."
SECTION 12. Chapter 235, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§235- Voluntary contributions to the underground conversion fund. The director shall allow for taxpayers to designate and pay a voluntary contribution to the underground conversion fund on their annual income tax return. The voluntary contribution shall be added to the final income tax due or subtracted from any refund due and may be allocated to the underground conversion fund, if applicable."
PART VI. SAFETY
SECTION 13. Chapter 269, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§269- One-call system. (a) The commission shall establish or authorize an independent entity to establish and maintain a one-call system to identify the location of underground facilities before January 1, 2001. All owners of underground facilities shall subscribe to the service.
(b) Before commencing any excavation, an excavator shall provide notice of the scheduled commencement of excavation to the one-call system. All underground facilities shall be identified through the one-number locator service. The notice shall be communicated to the one-call system not less than two business days or more than ten business days before the scheduled date for commencement of excavation, unless otherwise agreed by the parties.
Upon receipt of the notice provided for in this section, the excavator shall obtain reasonably accurate information as to locatable underground facilities by surface-marking the location of the facilities. Excavators shall have the right to receive compensation from the owner of the underground facility for costs incurred if the owner of the underground facility does not locate its facilities in accordance with this section. The owner of the underground facility shall have the right to receive compensation for costs incurred in responding to excavation notices given less than two business days prior to the excavation from the excavator.
Emergency excavations shall be exempt from the time requirements for notification provided in this section.
If the excavator, while performing the contract, discovers underground facilities that are not identified, the excavator shall cease excavating in the vicinity of the facility and immediately notify the one-number locator service.
(c) Unless the context clearly requires otherwise, as used in this section:
"Business day" means any day other than Saturday, Sunday, or a legal state or federal holiday.
"Emergency" means any condition constituting a clear and present danger to life or property, or a customer service outage.
"Excavation" means any operation in which earth, rock, or other material on or below the ground is moved or otherwise displaced by any means, except the tilling of soil less than twelve inches in depth for agricultural purposes, or road and ditch maintenance that does not change the original road grade or ditch flowline.
"Excavator" means any person who engages directly in excavation.
"Marking" means the use of stakes, paint, or other clearly identifiable materials to show the field location of underground facilities, in accordance with the current color code standard of the American public works association. Markings shall include identification letters indicating the specific type of the underground facility.
"One-number locator service" means a service through which a person can notify utilities and request field-marking of underground facilities.
"Reasonably accurate" means location within twenty-four inches of the outside dimensions of both sides of an underground facility.
"Underground facility" means any item buried or placed below ground for use in connection with the storage or conveyance of water, sewage, electronic, telephonic or telegraphic communications, cablevision, electric energy, petroleum products, gas, gaseous vapors, hazardous liquids, or other substances and including but not limited to pipes, sewers, conduits, cables, valves, lines, wires, manholes, attachments, and those parts of poles or anchors below ground.
(d) The commission may adopt rules pursuant to chapter 91 to implement this section."
SECTION 14. In codifying the new sections added by part V of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in the new sections designated in this Act.
SECTION 15. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 16. This Act shall take effect upon its approval.