Public Law, Chapter 661, Part B, 123rd Legislature, Second Regular Session

Chapter 661 S.P. 908 - L.D. 2283

PART B

Sec. B-1. 38 MRSA §341-D, sub-§2, as enacted by PL 1989, c. 890, Pt. A, §13 and affected by §40, is amended to read:

2. Permit and license applications. The Except as otherwise provided in this subsection, the board shall decide each application for approval of permits and licenses that in its judgment:

A. Involves a policy, rule or law that the board has not previously interpreted;

B. Involves important policy questions that the board has not resolved;

C. Involves important policy questions or interpretations of a rule or law that require reexamination; or

D. Have Has generated substantial public interest.

The board shall assume jurisdiction over applications referred to it under section 344, subsection 2-A, when it finds that the criteria of this subsection have been met.

The board may vote to assume jurisdiction of an application if it finds that one or more of the criteria in this subsection have been met.

Any interested party may request the board to assume jurisdiction of an application.

The board may not assume jurisdiction over an application for an expedited wind energy development as defined in Title 35-A, section 3451, subsection 4 or for a certification pursuant to Title 35-A, section 3456.

Sec. B-2. 38 MRSA §341-D, sub-§4, ¶B, as enacted by PL 1989, c. 890, Pt. A, §13 and affected by §40, is amended to read:

B. License or permit decisions made by the commissioner that the board votes to review within 30 days of the next regularly scheduled board meeting following written notification to the board of the commissioner's decision. The Except as provided in paragraph D, the procedures for review are the same as provided under paragraph A; and

Sec. B-3. 38 MRSA §341-D, sub-§4, ¶C, as enacted by PL 1989, c. 890, Pt. A, §13 and affected by §40, is amended to read:

C. License or permit decisions appealed to the board under another law. Unless the law provides otherwise, the standard of review is the same as provided under paragraph A . ; and

Sec. B-4. 38 MRSA §341-D, sub-§4, ¶D is enacted to read:

D. License or permit decisions regarding an expedited wind energy development as defined in Title 35-A, section 3451, subsection 4. In reviewing an appeal of a license or permit decision by the commissioner on an application for an expedited wind energy development, the board shall base its decision on the administrative record of the department, including the record of any adjudicatory hearing held by the department, and any supplemental information allowed by the board using the standards contained in subsection 5 for supplementation of the record. The board may remand the decision to the department for further proceedings if appropriate. The chair of the Public Utilities Commission or the chair's designee shall serve as a nonvoting member of the board and is entitled to fully participate but is not required to attend hearings when the board considers an appeal pursuant to this paragraph. The chair's participation on the board pursuant to this paragraph does not affect the ability of the Public Utilities Commission to submit information to the department for inclusion in the record of any proceeding before the department.

Sec. B-5. 38 MRSA §344, sub-§2-A, ¶A, as enacted by PL 1989, c. 890, Pt. A, §22 and affected by §40, is amended to read:

A. The Except as otherwise provided in this paragraph, the commissioner shall decide as expeditiously as possible if an application meets one or more of the criteria set forth in section 341-D, subsection 2 and shall request that the board assume jurisdiction of that application. If at any subsequent time during the review of an application the commissioner decides that the application falls under section 341-D, subsection 2, the commissioner shall request that the board assume jurisdiction of the application.

(1) The commissioner may not request the board to assume jurisdiction of an application for any permit or other approval required for an expedited wind energy development, as defined in Title 35-A, section 3451, subsection 4, or a certification pursuant to Title 35-A, section 3456. Except as provided in subparagraph (2), the commissioner shall issue a decision on an application for an expedited wind energy development within 185 days of the date on which the department accepts the application as complete pursuant to this section or within 270 days of the department's acceptance of the application if the commissioner holds a hearing on the application pursuant to section 345-A, subsection 1-A.

(2) The expedited review periods of 185 days and 270 days specified in subparagraph (1) do not apply to the associated facilities, as defined in Title 35-A, section 3451, subsection 1, of the development if the commissioner determines that an expedited review time is unreasonable due to the size, location, potential impacts, multiple agency jurisdiction or complexity of that portion of the development. If an expedited review period does not apply, a review period specified pursuant to section 344-B applies.

The commissioner may stop the processing time with the consent of the applicant for a period of time agreeable to the commissioner and the applicant.

Sec. B-6. 38 MRSA §344-A, first ¶, as enacted by PL 1991, c. 471, is amended to read:

The commissioner may enter into agreements with individuals, partnerships, firms and corporations outside the department, referred throughout this section as "outside reviewers," to review applications or portions of applications submitted to the department. The commissioner has sole authority to determine the applications or portions of applications to be reviewed by outside reviewers and to determine which outside reviewer is to perform the review. When selecting an outside reviewer, all other factors being equal, the commissioner shall give preference to an outside reviewer who is a public or quasi-public entity, such as state agencies, the University of Maine System or the soil and water conservation districts. The Except for an agreement for outside review regarding review of an application for a wind energy development as defined in Title 35-A, section 3451, subsection 11 or a certification pursuant to Title 35-A, section 3456, the commissioner may enter into an agreement with an outside reviewer only with the consent of the applicant and only if the applicant agrees in writing to pay all costs associated with the outside review.

Sec. B-7. 38 MRSA §346, sub-§1, as affected by PL 1989, c. 890, Pt. A, §40 and amended by Pt. B, §4, is further amended to read:

1. Appeal to Superior Court. Except as provided in section 347-A, subsection 3 or 4, any person aggrieved by any order or decision of the board or commissioner may appeal to the Superior Court. These appeals to the Superior Court shall must be taken in accordance with Title 5, chapter 375, subchapter VII 7.

Sec. B-8. 38 MRSA §346, sub-§4 is enacted to read:

4. Appeal of decision regarding an expedited wind energy development. A person aggrieved by an order or decision of the board or commissioner regarding an application for an expedited wind energy development, as defined in Title 35-A, section 3451, subsection 4, may appeal to the Supreme Judicial Court sitting as the law court. These appeals to the law court must be taken in the manner provided in Title 5, chapter 375, subchapter 7.

Sec. B-9. 38 MRSA §352, sub-§3, as amended by PL 2001, c. 212, §2, is further amended to read:

3. Maximum fee. The commissioner shall set the actual fees and shall publish a schedule of all fees by November 1st of each year. If the commissioner determines that a particular application, by virtue of its size, uniqueness, complexity or other relevant factors, is likely to require significantly more costs than those listed on Table I, the commissioner may designate that application as subject to special fees. A Through August 31, 2009, a special fee may not exceed $250,000. Beginning September 1, 2009, a special fee may not exceed $75,000. Such a designation must be made at, or prior to, the time the application is accepted as complete and may not be based solely on the likelihood of extensive public controversy. All department staff who have worked on the review of the application , including, but not limited to, preapplication consultations, shall submit quarterly reports to the commissioner detailing the time spent on the application and all expenses attributable to the application , including the costs of any appeals filed by the applicant and, after taking into consideration the interest of fairness and equity, any other appeals if the commissioner finds it in the public interest to do so. The costs associated with assistance to the board on an appeal before the board may be separately charged. The processing fee for that application must be the actual cost to the department. The applicant must be billed quarterly and all fees paid prior to receipt of the permit. Nothing in this section limits the commissioner's authority to enter into an agreement with an applicant for payment of costs in excess of the maximum special fee established in this subsection.

Sec. B-10. 38 MRSA §480-D, sub-§1, as enacted by PL 1987, c. 809, §2, is amended to read:

1. Existing uses. The activity will not unreasonably interfere with existing scenic, aesthetic, recreational or navigational uses.

In making a determination under this subsection regarding an expedited wind energy development, as defined in Title 35-A, section 3451, subsection 4, the department shall consider the development's effects on scenic character and existing uses related to scenic character in accordance with Title 35-A, section 3452.

Sec. B-11. 38 MRSA §484, sub-§3, ¶G is enacted to read:

G. In making a determination under this subsection regarding an expedited wind energy development, as defined in Title 35-A, section 3451, subsection 4, the department shall consider the development's effects on scenic character and existing uses related to scenic character in accordance with Title 35-A, section 3452.

Sec. B-12. 38 MRSA §484, sub-§10 is enacted to read:

10. Special provisions; grid-scale wind energy development. In the case of a grid-scale wind energy development, the proposed generating facilities, as defined in Title 35-A, section 3451, subsection 5:

A. Will be designed and sited to avoid unreasonable adverse shadow flicker effects;

B. Will be constructed with setbacks adequate to protect public safety. In making a finding pursuant to this paragraph, the department shall consider the recommendation of a professional, licensed civil engineer as well as any applicable setback recommended by a manufacturer of the generating facilities; and

C. Will provide significant tangible benefits as determined pursuant to Title 35-A, section 3454, if the development is an expedited wind energy development.

The Department of Labor, the Executive Department, State Planning Office and the Public Utilities Commission shall provide review comments if requested by the primary siting authority.

For purposes of this subsection, "grid-scale wind energy development," "primary siting authority," "significant tangible benefits" and "expedited wind energy development" have the same meanings as in Title 35-A, section 3451.

Sec. B-13. Submission requirements. No later than September 1, 2008, the Department of Environmental Protection and the Maine Land Use Regulation Commission shall, jointly and to the extent not already addressed in existing agency guidance, specify the submission requirements for the following matters for applications for wind energy development, including, but not limited to, expedited wind energy development as defined in the Maine Revised Statutes, Title 35-A, section 3451, subsection 4, in accordance with the recommendations of the February 2008 final report of the Governor's Task Force on Wind Power Development in Maine created by Executive Order issued on May 8, 2007, and the provisions of this Act, as applicable:

1. Effects on scenic character and existing uses related to scenic character;

2. Tangible benefits, including postconstruction reporting of tangible benefits realized;

3. Noise and shadow flicker effects;

4. Effects on avian and bat species;

5. Public safety-related setbacks; and

6. Decommissioning plans, including demonstration of current and future financial capacity that would be unaffected by the applicant’s future financial condition to fully fund any necessary decommissioning costs commensurate with the project’s scale, location and other relevant considerations, including, but not limited to, those associated with site restoration and turbine removal.

Implementation of this section does not require rulemaking under Title 5, chapter 375.

Public Laws

123rd Legislature

Second Regular Session

Chapter 661

S.P. 908 - L.D. 2283