(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. § 71 7a 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 department of
agriculture, food and markets and *[by certified mail shall
be given]* 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), 21
8c, and 21 8(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)(l) 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 upon site preparation for or
construction of an electric transmission facility contained
in this section, pending full review under this section.
(2) A person seeking a waiver under this subsection shall
file a petition with the board. 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; and
(C) 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.
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