Report Title:

Renewable energy council

 

Description:

Creates a state renewable energy facilitates siting council.

 


HOUSE OF REPRESENTATIVES

H.B. NO.

1309

TWENTY-FOURTH LEGISLATURE, 2007

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

relating to FORMATION OF A renewable energy FACILITIES SITING COUNCIL.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  In 2004, the legislature found that Hawaii was becoming increasingly dependent on imported oil and other fossil fuels, especially for electrical energy generation.  The legislature also recognized then that local public utility companies were steadily and significantly increasing their use of fossil fuels in order to keep up with consumer demands.  The legislature concluded that an increase in the use of fossil fuels was proportionate to an increase in green house gas emissions.  Consequently, the legislature amended the State's renewable portfolio standards by mandating, incrementally, that a percentage of net electricity sales be derived from renewable energy sources.  The ultimate goal that the legislature set for public utilities was to reach twenty per cent renewable resource use by the year 2020 for the State.

     Hawaii has an abundance of renewable energy resources that can and should be used as an alternative to fossil fuels.  However, problems continue to surface relating to where renewable energy producing facilities should be built, including the numerous and sometimes lengthy or duplicative permitting review processes.

     These obstacles can be reduced, while still ensuring a thorough review of each project and extensive opportunity for public input, by creating a state renewable energy facility siting council for renewable energy facilities.  It would be a one-stop review council, instrumental in assisting project developers to locate appropriate sites, streamlining permitting and other government- related actions, and significantly shortening the time it takes to complete these projects, while providing thorough review and ample and varied opportunities for public input.  The site certificate would serve as a consolidated state permit.  Therefore, if the siting council issues a site certificate, then other state and local government permits required for the project would be issued.  These other permits potentially include use permits for land use or environmental permits based on state regulations.  Issuing agencies would be bound by the site certificate.  Once a site certificate is issued, state agencies and local governments must issue their permits, subject only to conditions contained in the site certificate.

     In light of the significant objectives and mandates that the State has imposed on the local renewable energy industry, the State must also assist the industry by creating opportunities to achieve these objectives.  The creation of a renewable energy facilities siting council for renewable energy developments is one significant way the State can illustrate its commitment to lessening Hawaii's dependence on imported oil.

     In the interests of the public health and the welfare of the people of this State, it is the declared public policy of this State that the siting, construction, and operation of renewable energy facilities shall be accomplished in a manner consistent with protection of the public health and safety and in compliance with the energy policy and air, water, solid waste, land use, and other environmental protection policies of this State.  It is, therefore, the purpose of this Act, to the maximum extent permitted by the United States Constitution, to establish in cooperation with the federal government a comprehensive system for the siting, monitoring, and regulating of the location, construction, and operation of all renewable energy facilities in this State.

     This Act achieves this purpose by creating a state renewable energy facilities siting council.

     SECTION 2.  The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

SITING RENEWABLE ENERGY FACILITIES

§  -1  Definitions.  As used in this chapter:

     "Applicant" means any person who makes application for a site certificate in the manner provided for in this chapter.

     "Council" means the renewable energy facilities siting council.

     "Energy generation area" means an area within which the effects of two or more small generating plants may accumulate so the small generating plants have the effects of a magnitude similar to a single generating plant of at least one megawatt or more.

     "Facility" means a renewable energy facility together with any related or supporting facilities.

     "Local government" means any county within the State.

     "Project order" means the order, including any amendments, issued by the council in accordance with this chapter.

     "Public utility" means the same as in section 269-1.

     "Renewable energy facility" means any physical structure or change to an existing landscape that is used for the purpose of:

     (1)  Generating or producing energy utilizing the sources specified by section 269-91; or

     (2)  Producing the fuel sources specified by section 269-91, including biofuels.

     "Site" means a proposed location of a renewable energy facility, and its related or supporting facilities.

     "Site certificate" means the binding agreement between the State, local government, and the applicant, authorizing the applicant to construct and operate a renewable facility on an approved site, incorporating all conditions imposed by the council on the applicant.

     §  -2  Renewable energy facility siting council; appointment; confirmation; term; restrictions.  (a)  There is established a renewable energy facility siting council to be located within the department of budget and finance for administrative purposes, and consisting of nine members, who shall be appointed in the manner prescribed in section 26-34, except as otherwise provided in this section.  Two members shall be appointed from each of the counties and one member shall be appointed at large to comprise the nine-member council.  The mayors of each county shall provide the governor with three names from which the governor shall choose one member to be appointed from each county.  The governor shall designate a member to be chairperson of the council.  The members shall receive no compensation for their services on the council, but shall be reimbursed for actual expenses incurred in the performance of their duties.

     (b)  The term of office of each member is six years.  The terms of the members first appointed shall be as follows:  three members shall serve for two years, three members shall serve for four years, and three members shall serve for six years, as designated by the governor at the time of appointment.  Before the expiration of the term of a member, the governor shall appoint a successor whose term begins on July 1 next following.  Section 26-34 shall not apply insofar as it relates to the number of terms and consecutive number of years a member can serve on the council; provided that no member shall serve more than twelve consecutive years.  If there is a vacancy for any cause, the governor shall make an appointment to become immediately effective for the unexpired term.

     (c)  No member of the council shall be an employee, director, or retired employee or director of, or a consultant to, or have any pecuniary interest, other than an incidental interest which is disclosed and made a matter of public record at the time of the appointment to the council, in any corporation or utility operating a renewable energy facility in this state or in any manufacturer of related equipment.

     (d)  In appointing the members, the governor shall select persons who have experience in accounting, business, engineering, government, finance, law, land use, or other similar fields.

     §  -3  Member panels.  Each application for site certificate shall be reviewed by three members, as determined by the council, provided that two members shall be those who are appointed from the same county in which the proposed facility will be situated, and provided that the members from the same county in which the proposed facility will be situated are not otherwise recused or excused, pursuant to any rules adopted by the council.

     §  -4  Powers and duties; rules.  Notwithstanding any law to the contrary, except such laws that were established pursuant to authority delegated by the federal government, the council shall:

     (1)  Conduct and prepare, independently or in cooperation with others, studies, investigations, research, and programs relating to all aspects of site selection;

     (2)  In accordance with the applicable state law, adopt standards and rules to perform the functions vested by law in the council, including the adoption of standards and rules for the siting of renewable energy facilities, consistent with section 269-91, of a size of one megawatt or greater;

     (3)  In accordance with the applicable state law, adopt rules specifying all council fees and the expenses to be recovered by such fees;

     (4)  Encourage cooperation by the people, counties, industries, agriculture, and others, in performing the functions vested by law in the council;

     (5)  Advise, consult, and cooperate with other agencies of the State, local government, industries, other states, the federal government, and affected groups;

     (6)  Employ and at pleasure dismiss an executive administrator, who shall be exempt from chapter 76, and fix the executive administrator's compensation; and

     (7)  Appoint and employ clerks, administrative personnel, engineers, accountants, and environmental, cultural, or other assistants for the council as the council finds necessary for the performance of the council's functions and define their powers and duties.  Notwithstanding section 28-8.3, the council shall appoint one or more attorneys independent of the attorney general who shall act as attorneys for the council and define their powers and duties and fix their compensation.  The attorneys employed by the council shall be exempt from chapter 76.  Other employees may be appointed with or without regard to chapter 76 as may be needed by the council in accordance with chapter 76.

     §  -5  Adoption of rules.  All rules adopted by the council shall be adopted in the manner required by chapter 91.

     §  -6  Site certificate required; exceptions.  (a)  Except as provided in subsection (b), no facility shall be constructed or expanded unless a site certificate has been issued for the site thereof in the manner provided in this chapter.

     (b)  A site certificate is not required for a renewable energy facility for which no site certificate has been issued that, on July 1, 2007, had electric generating equipment in operation.

     (c)  Any person who proposes to construct or enlarge a renewable energy facility and who claims an exemption under subsection (b) from the requirement to obtain a site certificate shall request the council to determine whether the proposed facility qualifies for the claimed exemption.  The council shall make its determination within sixty days after the request for exemption is filed.  An appeal from the council's determination on a request for exemption shall lie, subject to chapter 602, in the manner provided for civil appeals from the circuit courts.  The record on review by the court shall be the record established in the council proceeding on the exemption.

     (d)  Notwithstanding subsection (a), a separate site certificate shall not be required for expansion within the site or within the energy generation area of a facility for which a site certificate has been issued, if the existing site certificate has been amended to authorize expansion.

     §  -7  Notice of intent to file application for site certificate; public notice; standards, application requirements, and study requirements; project order.  (a)  Each applicant for a site certificate shall submit to the council a notice of intent to file an application for a site certificate in a manner prescribed by the council.  The notice of intent shall provide information about the proposed site and the characteristics of the facility sufficient for the preparation of the council's project order.

     (b)  Each applicant for a site certificate shall cause public notice to be given within seven days of filing a notice of intent with the council.  The public notice shall provide a description of the proposed site and facility in sufficient detail to inform the public of the location and proposed use of the site, and shall be given not less than once in each of three consecutive weeks.  Any public notice provided in compliance with this subsection shall occur on the island on which the facility will be situated.  The public shall provide written comments within specified deadlines established by the council.

     (c)  Following review of the notice of intent and any written public comments received in response to the notice of intent, the council may hold a pre-application conference with the applicant and state agencies and local governments that have regulatory or advisory responsibility with respect to the facility.  The council may also hold a public hearing to gather public comment on an applicant's notice of intent.  After the pre-application conference, the council shall issue a project order identifying the applicable statutes, administrative rules, council standards, and local ordinances, as well as the application requirements and study requirements for the site certificate application.  A project order shall not constitute a final order.

     (d)  A project order issued under subsection (c) may be amended at any time by the council.

     §  -8  Application for site certificate; comment and recommendation.  (a)  Applications for site certificates shall be made to the council in a form prescribed by the council and accompanied by the fee required by the council.

     (b)  Copies of the notice of intent and of the application shall be sent for comment and recommendation within specified deadlines established by the council to the department of health, the commission on water resource management, the public utilities commission, the land use commission, the department of agriculture, the department of land and natural resources, the department of business, economic development, and tourism, the division of consumer advocacy, department of commerce and consumer affairs, any other state agency that has regulatory or advisory responsibility with respect to the facility, and any local government affected by the application.

     (c)  Any state agency or local government that is requested by the council to comment and make recommendations under this section shall respond to the council by the specified deadline.

     (d)  When the council determines an application is complete, the council shall notify the applicant and provide notice to the public.

     §  -9  Evaluation of site applications.  The council shall evaluate each site certificate application to determine compliance with the requirements set forth in the project order.  As part of its evaluation, the council may commission an independent study by an independent contractor, state agency, local government, or any other person, of any aspect of the proposed facility within its statutory authority to review.

     §  -10  Draft proposed order for hearing; issues raised; final order; expedited processing.  (a)  Based on its review of the application and the comments and recommendations on the application from state agencies and local governments, the council shall prepare and issue a draft proposed order on the application.

     (b)  Following issuance of the draft proposed order, the council shall hold one or more public hearings on the application for a site certificate on the island for which the facility is proposed and elsewhere, as the council considers necessary.  Notice of the hearing shall be published at least fifteen days before the hearing on the island for which the proposed facility will be situated.  The notice shall, at a minimum:

     (1)  Include a description of the facility and the facility's general location;

     (2)  Include the name of a council representative to contact and the telephone number where additional information may be obtained;

     (3)  State that copies of the application and draft proposed order are available for inspection at no cost and will be provided at a reasonable cost; and

     (4)  State that failure to raise an issue in person or in writing prior to the close of the record of the public hearing with sufficient specificity to afford the council an opportunity to respond to the issue precludes consideration of the issue in a contested case.

     (c)  Any issue that may be the basis for a contested case shall be raised not later than the close of the record at or following the final public hearing prior to issuance of the council's proposed order.  Such issues shall be raised with sufficient specificity to afford the council and the applicant an adequate opportunity to respond to each issue.  A statement of this requirement shall be made at the commencement of any public hearing on the application.

     (d)  After reviewing the application, the draft proposed order, and any testimony given at the public hearing, and after consulting with other agencies, the council shall issue a proposed order recommending approval or rejection of the application.  The council shall issue public notice of the proposed order that shall include notice of a contested case hearing specifying a deadline for requests to participate as a party or limited party and a date for the prehearing conference.

     (e)  Following the issuance of the proposed order, the council shall conduct a contested case hearing on the application for a site certificate in accordance with the applicable provisions of chapter 91 and any procedures adopted by the council.  The contested case hearing shall be conducted on the island on which the proposed facility will be situated.  The applicant shall be a party to the contested case.  The council may permit any other person to become a party to the contested case in support of or in opposition to the application only if the person appeared in person or submitted written testimony at the public hearing on the site certificate application, and upon application of any rules developed by the council identifying criteria for intervention.  Issues that may be the basis for a contested case hearing shall be limited to those raised on the record of the public hearing under subsection (c), unless:

     (1)  The council failed to follow the requirements of subsection (b) or (c); or

     (2)  The action recommended in the proposed order, including any recommended conditions of the approval, differs materially from that described in the draft proposed order, in which case only new issues related to such differences may be raised.

     (f)  If no person requests party status to challenge the council's proposed order, the contested case hearing shall be concluded.

     (g)  At the conclusion of the contested case hearing, the council shall issue a final order, either approving or rejecting the application based upon the standards adopted by the council and any additional statutes, rules, or local ordinances determined to be applicable to the facility by the project order, as amended.  The council shall make its decision by the affirmative vote of a majority of the members established pursuant to section ___-3 approving any application for a site certificate.  The council may amend or reject the proposed order, and shall provide an opportunity for the applicant and any other party to the contested case hearing to comment on material changes to the proposed order, including material changes to conditions of approval resulting from the council's review.  The council's order shall be considered a final order for purposes of appeal.

     (h)  Rejection or approval of an application, together with any conditions that may be attached to the certificate, shall be subject to judicial review as provided in chapter 602.

     (i)  The council shall either approve or reject an application for a site certificate:

     (1)  Within nine months after the filing of an application for a site certificate for a renewable energy facility; or

     (2)  Within six months after the filing of an application for a site certificate for a renewable energy facility, if the application is:

         (A)  To expand an existing industrial facility to include an energy facility; or

         (B)  To expand an existing energy facility to achieve a nominal electric generating capacity of between twenty-five and seventy-five megawatts.

     (j)  At the request of the applicant, the council may expedite processing of an application for a site certificate for a renewable energy facility with an average electric generating capacity of fewer than ten megawatts.  No notice of intent shall be required.  Following approval of a request for expedited review, the council shall issue a project order, which may be amended at any time.  The council shall either approve or reject an application for a site certificate within six months after the site certificate application is filed if there are no intervenors in the contested case conducted under subsection (e).  If there are intervenors in the contested case, the council shall either approve or reject an application within nine months after the site certificate application is filed.

     (k)  Failure of the council to comply with the deadlines set forth in subsection (i) or (j) shall not result in the automatic issuance or denial of a site certificate.

     (l)  The council shall specify in the site certificate a date by which construction of the facility shall begin.

     (m)  For a facility that is subject to and has been or will be reviewed by a federal agency under the National Environmental Policy Act, 42 U.S.C. section 4321, et seq., the council shall conduct its site certificate review, to the maximum extent feasible, in a manner that is consistent with and does not duplicate the review conducted by the federal agency or the agency to which the federal agency delegated its authority.  Such coordination shall include, but need not be limited to:

     (1)  Elimination of duplicative application, study, and reporting requirements;

     (2)  Council use of information generated and documents prepared for the federal agency review;

     (3)  Development with the federal agency and reliance on a joint record to address applicable council standards;

     (4)  Whenever feasible, joint hearings and issuance of a site certificate decision in a time frame consistent with the federal agency review; and

     (5)  To the extent consistent with applicable state standards, establishment of conditions in any site certificate that are consistent with the conditions established by the federal agency.

     §  -11  Energy facility site certificate; conditions; effect of issuance on state and local government agencies.  (a)  Upon approval, the site certificate or any amended site certificate with any conditions prescribed by the council shall be signed by the chairperson of the council and by the applicant.  The certificate or amended certificate shall authorize the applicant to construct, operate, and retire the facility subject to the conditions set forth in the site certificate or amended site certificate.  The duration of the site certificate or amended site certificate shall be the life of the facility, including project extensions.

     (b)  The site certificate or amended site certificate shall contain conditions to protect the public health and safety, to set the time for completion of construction, and to ensure compliance with any applicable standards, statutes, and rules.  The site certificate or amended site certificate shall require both parties to abide by county ordinances and state law and the rules of the council in effect on the date the site certificate or amended site certificate is signed, except that upon a clear showing of a significant threat to the public health, safety, or the environment that requires application of later-adopted laws or rules, the council may require compliance with such later-adopted laws or rules, after notice to the applicant and an opportunity for hearing.

     (c)  Subject to the conditions set forth in the site certificate or amended site certificate, any certificate or amended certificate signed by the chairperson of the council shall bind the State and all local governments in this State provided with notice of the application as to the approval of the site and the construction and operation of the facility.  After issuance of the site certificate or amended site certificate, any affected state agency or local government shall, upon submission by the applicant of the proper applications and payment of the proper fees, but without hearings or other proceedings, promptly issue the permits, licenses, and certificates addressed in the site certificate or amended site certificate, subject only to conditions set forth in the site certificate or amended site certificate.  After the site certificate or amended site certificate is issued, the only issue to be decided in an administrative or judicial review of a state agency or local government permit for which compliance with governing law was considered and determined in the site certificate or amended site certificate proceeding shall be whether the permit is consistent with the terms of the site certificate or amended site certificate.  Each state or local government agency that issues a permit, license, or certificate shall continue to exercise enforcement authority over the permit, license, or certificate.  If the requisite permits are not issued within forty-five days, they shall be deemed approved and issued.

     (d)  Nothing in this chapter shall be construed to preempt the jurisdiction of any state agency or local government over matters that are not included in and governed by the site certificate or amended site certificate.  Such matters include public utility regulation as set forth in chapters 269, 271, 271G, and 486J, employee health and safety, building code compliance, wage and hour or other labor regulations, local government fees and charges, or other design or operational issues that do not relate to siting the facility.

     §  -12  Rehearing on approval or rejection of application for site certificate or amendment; appeal; judicial review; stay of order.  (a)  Any party to a contested case proceeding may apply for rehearing within thirty days from the date the approval or rejection order is served.  The date of service shall be the date on which the council delivered or mailed its order of approval or rejection.  The application for rehearing shall set forth specifically the ground upon which the application is based.  No objection to the council's approval or rejection of an application for a site certificate or a site certificate amendment shall be considered on rehearing without good cause shown unless the basis for the objection is urged with reasonable specificity before the council in the site certificate or amended site certificate process.  Upon such application, the council shall have the power to grant or deny rehearing or to abrogate or modify its order without further hearing.  Unless the council acts upon the application for rehearing within thirty days after the application is filed, the application shall be considered denied.  The filing of an application for rehearing shall not, unless specifically ordered by the council, operate as a stay of the site certificate or amended site certificate for the facility.

     (b)  Any party to a contested case proceeding on a site certificate or amended site certificate application may appeal the council's approval or rejection of the site certificate or amended site certificate application.  Issues on appeal shall be limited to those raised by the parties to the contested case proceeding before the council.

     (c)  Jurisdiction for judicial review of the council's approval or rejection of an application for a site certificate or amended site certificate shall lie, subject to chapter 602, in the manner provided for civil appeals from the circuit courts.

     (d)  The filing of a petition for judicial review may not stay the order, except that a party to the contested case may apply to the court for a stay upon a showing that there is a colorable claim of error and that:

     (1)  The petitioner will suffer irreparable injury; or

     (2)  Construction of the renewable energy facility will result in irreparable harm to resources protected by applicable council standards or applicable agency or local government standards.

     (e)  If the court grants a stay pursuant to subsection (d), the court:

     (1)  May grant a stay in whole or in part.

     (2)  May impose other reasonable conditions on the stay.

     §  -13  Amendment of site certificate.  A site certificate may be amended with the approval of the council.  The council may establish by rule the type of amendment that may be considered in a contested case proceeding.  Judicial review of an amendment to a site certificate shall be as provided in this chapter.

     §  -14  Amendment of site certificate to demonstrate compliance with carbon dioxide emissions standard.  Any site certificate holder that is required by its site certificate or by law to demonstrate need for the facility shall demonstrate compliance with the carbon dioxide emissions standard applicable to the type of facility subject to the site certificate before beginning construction.  Such a demonstration shall be made as an amendment to the site certificate.  Notwithstanding any applicable state law or any council rule, if the site certificate holder proceeds, the council shall not conduct a contested case hearing on such amendment and the council's order shall not be subject to judicial review.

     §  -15  Renewable energy facility site certificate applications filed or under construction prior to July 1, 2007; conditions of site certificate.  (a)  Any applicant for a site certificate for an energy facility under construction prior to or on July 1, 2007, shall be deemed to have met all the requirements of this chapter relating to eligibility for a site certificate and a site certificate shall be issued by the council for any renewable energy facility under construction on July 1, 2007.

     (b)  Each applicant for a site certificate under this section shall pay the fees required by the council, if applicable, and shall execute a site certificate in which the applicant agrees to abide by any rules adopted by the council.

     §  -16  Fees.  (a)  All fees submitted to the council pursuant to this chapter shall be paid to the council, for deposit into the general fund of the State.

     (b)  Any person submitting a notice of intent, a request for exemption under this chapter, a request for an application for a site certificate, or a request to amend a site certificate, shall pay all expenses incurred by the council related to the review and decision of the council.  These expenses may include legal expenses, expenses incurred in processing and evaluating the application, issuing a final order or site certificate, commissioning an independent study by a contractor, state agency, or local government, and changes to the rules of the council that are specifically required and related to the particular site certificate.

     (c)  Every person submitting a notice of intent to file for a site certificate or a request for exemption shall submit the fee required under the fee schedule established by the council when the notice or request is submitted to the council.  To the extent possible, the full cost of the evaluation shall be paid from the fee paid under this subsection.  However, if costs of the evaluation exceed the fee, the person submitting the notice or request shall pay any excess costs shown in an itemized statement prepared by the council.  In no event shall the council incur evaluation expenses in excess of one hundred ten per cent of the fee initially paid unless the council provides prior notification to the applicant and a detailed projected budget the council believes necessary to complete the project.  If costs are less than the fee paid, the excess shall be refunded to the person submitting the notice or request.

     (d)  Before submitting a site certificate application, the applicant may request from the council an estimate of the costs expected to be incurred in processing the application.  The council shall inform the applicant of the fee amount and the expenses of the council that will be covered by such fees, and shall require the applicant to make periodic payments of such costs pursuant to a cost reimbursement agreement.  The cost reimbursement agreement shall provide for payment of twenty-five per cent of the estimated costs when the applicant submits the application.  If costs of the evaluation exceed the estimate, the applicant shall pay any excess costs shown in an itemized statement prepared by the council.  In no event shall the council incur evaluation expenses in excess of one hundred ten per cent of the fee initially estimated unless the council provided prior notification to the applicant and a detailed projected budget the council believes is necessary to complete the project.  If costs are less than the fee paid, the council shall refund the excess to the applicant.

     (e)  Any person who is delinquent in the payment of fees under subsections (b) to (d) shall be subject to the provisions of subsection (i).

     (f)  Subject to the provisions of this chapter, each holder of a certificate shall pay an annual fee, due every July 1 following issuance of a site certificate.  For each fiscal year, upon approval of the council's budget authorization by a regular session of the legislature, the council promptly shall enter an order establishing an annual fee based on the amount of revenues that the council estimates is needed to fund the cost of ensuring that the facility is being operated consistently with the terms and conditions of the site certificate and any order issued by the council.  In determining this cost, the council shall include both the actual direct cost to be incurred by the council to ensure that the facility is being operated consistently with the terms and conditions of the site certificate, any order issued by the council, and any applicable health or safety standards, and the general costs to be incurred by the council, to ensure that all certificated facilities are being operated consistently with the terms and conditions of the site certificates, any orders issued by the council, and any applicable health or safety standards that cannot be allocated to an individual, licensed facility.  Not more than thirty-five per cent of the annual fee charged each facility shall be for the recovery of these general costs.  The fees for direct costs shall reflect the size and complexity of the facility and its certificate conditions.

     (g)  Each holder of a site certificate executed after July 1 of any fiscal year shall pay a fee for the remaining portion of the year.  The amount of the fee shall be set at the cost of regulating the facility during the remaining portion of the year determined in the same manner as the annual fee.

     (h)  When the actual costs of regulation incurred by the council for the year, including that portion of the general regulation costs that have been allocated to a particular facility, are less than the annual fees for that facility, the unexpended balance shall be refunded to the site certificate holder.  When the actual regulation costs incurred by the council for the year, including that portion of the general regulation costs that have been allocated to a particular facility, are projected to exceed the annual fee for that facility, the council may issue an order revising the annual fee.

     (i)  Applicants or holders of a site certificate who fail to pay a fee provided under this chapter after it is due and payable shall pay, in addition to that fee, a penalty of two per cent of the fee per month for the period that the fee is past due.  The director of finance may bring an action to collect any unpaid fee or penalty in the name of the State in a court of competent jurisdiction.  The court may award reasonable attorneys' fees to the director if the director prevails in an action under this subsection.  The court may award reasonable attorneys’ fees to a defendant who prevails in an action under this subsection if the court determines that the director had no objectively reasonable basis for asserting a claim or no reasonable basis for appealing an adverse decision of the trial court.

     §  -17  Grounds for revocation or suspension of certificates.  A site certificate or an amended site certificate may be revoked or suspended:

     (1)  For failure to comply with the terms or conditions of the site certificate or amended site certificate; or

     (2)  For violation of the provisions of this chapter.

     §  -18  Justification of fees charged; judicial review.  (a)  All expenses incurred by the council that are charged to or allocated to the fee paid by an applicant or the holder of a site certificate shall be necessary, just, and reasonable.  Upon request, the council shall provide a detailed justification for all charges to the applicant or site certificate holder.  Not later than January 1 of each odd-numbered year, the council by order shall establish a schedule of fees that those persons submitting a notice of intent or a request for an exemption must submit at the time of submitting the notice of intent or request for exemption.  The fee schedule shall be designed to recover the council's actual costs of evaluating the notice of intent or request for exemption, subject to any applicable expenditure limitation in the council's budget.  Fees shall be based upon actual, historical costs incurred by the council to the extent historical costs are available.  The fees established by the schedule shall reflect the size and complexity of the project for which a notice of intent or request for exemption is submitted, whether the notice of intent or request for exemption is for a new or existing facility, and other appropriate variables having an effect on the expense of evaluation.

     (b)  If a dispute arises regarding the necessity or reasonableness of expenses charged to or allocated to the fee paid by an applicant or site certificate holder, the applicant or holder may seek judicial review for the amount of expenses charged or allocated in circuit court.  If the court establishes that any of the charges or allocations are unnecessary or unreasonable, the council shall refund the amount found to be unnecessary or unreasonable.  The applicant or holder shall not waive the right to judicial review by paying the portion of the fee or expense in dispute.

     §  -19  Local government advisory group; special advisory groups; compensation and expenses.  (a)  The council may designate as a special advisory group the governing body of any local government within whose jurisdiction the facility is proposed to be located.

     (b)  In addition to advisory groups required by subsection (a), the council may establish such special advisory groups as are considered necessary.  Such advisory groups shall include membership as determined by the council to represent interests and disciplines as needed to carry out the responsibility assigned to such advisory groups, which shall report findings, recommendations, and decisions to the council.

     (c)  Subject to applicable laws regulating travel and other expenses of state officers and employees, members of any advisory committee appointed under subsection (a) shall receive no compensation but may receive their actual and necessary travel and other expenses incurred in the performance of their official duties.

     §  -20  Energy facility siting, construction, operation and retirement standards; exemptions.  (a)  To the extent consistent with existing laws, rules, or ordinances governing the siting of renewable energy facilities, the council may adopt standards to facilitate the siting, construction, operation, and retirement of such facilities.  The standards may address the following subjects:

     (1)  The organizational, managerial, and technical expertise of the applicant to construct and operate the proposed facility;

     (2)  Areas designated for protection by the state or federal government, including but not limited to monuments, wilderness areas, wildlife refuges, scenic waterways, and similar areas;

     (3)  The financial ability and qualifications of the applicant;

     (4)  Effects of the facility, taking into account mitigation, on fish and wildlife, including threatened and endangered fish, wildlife, or plant species;

     (5)  Impacts of the facility on historic, cultural, or archaeological resources listed on, or determined by the state historic preservation officer to be eligible for listing on, the national register of historic places or the state register of historic properties;

     (6)  Protection of public health and safety, including necessary safety devices and procedures;

     (7)  Impacts of the facility on recreation, scenic, and aesthetic values;

     (8)  Reduction of solid waste and wastewater generation to the extent reasonably practicable;

     (9)  Ability of the communities in the affected area to provide sewers and sewage treatment, water, storm water drainage, solid waste management, housing, traffic safety, police and fire protection, health care, and schools;

    (10)  Soil protection; and

    (11)  For energy facilities that emit carbon dioxide, the impacts of those emissions on climate change.

     (b)  The council may adopt exemptions from any standard adopted under this section if the exemption is consistent with the State's energy policy.

     (c)  The council may issue a site certificate for a facility that does not meet one or more of the standards adopted under subsection (a) if the council determines that the overall public benefits of the facility outweigh the damage to the resources protected by the standards the facility does not meet.

     § -21  Consultation with other agencies.  (a)  In making a determination regarding compliance with statutes, rules, and ordinances administered by another agency where another agency has special expertise, consultation with the other agency shall occur during the notice of intent and site certificate application process.  Any permit application for which the permitting decision has been delegated by the federal government to a state agency other than the renewable energy facility siting council shall be reviewed, whenever feasible, simultaneously with the council's review of the site certificate application.  Any hearings required on such permit applications shall be consolidated, whenever feasible, with hearings under this chapter.

     (b)  Before resolving any conflicting conditions in site certificates or amended site certificates, the council shall notify and consult with the agencies and local governments responsible for administering the statutes, administrative rules, or substantive local criteria that result in the conflicting conditions regarding potential conflict resolution.

     §  -22  Cooperation of state governmental bodies; adoption of rules by state agencies on energy facility development.  (a)  Each state agency and local government in this State that is concerned with renewable energy facilities shall inform the council promptly of its activities and programs relating to renewable energy.

     (b)  Each state agency proposing to adopt, amend, or repeal a rule relating to renewable energy facility development first shall file a copy of its proposal with the council, which may order such changes as it considers necessary to conform to state policy."

     SECTION 3.  There is established in the state treasury a renewable energy facilities siting council special fund to be administered by the council.  The proceeds of the fund shall be used by the council for all expenses incurred in the administration of this chapter; provided that the expenditures of the council shall be in accordance with legislative appropriations.

     SECTION 4.  There is appropriated out of the general revenues of the State of Hawaii the sum of $1,000,000, or so much thereof as may be necessary for fiscal year 2007-2008, and the sum of $1,000,000, or so much thereof as may be necessary for fiscal year 2008-2009, for all expenses incurred in the administration of this chapter.  The sum appropriated shall be expended by the department of budget and finance for the purposes of this Act.

     SECTION 5.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

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BY REQUEST