980 CMR 8.02 - Procedures

(1) Initial Petition. An initial petition or application, as referred to in 980 CMR 8.02, shall consist of any Notice of Intention to Construct an Oil Facility filed with the Council pursuant to 980 CMR 8.00. The filing of such initial pleading shall be deemed to have commenced an adjudicatory proceeding.

(2) Title: Other Required Information. In addition to the information required by 980 CMR 8.02, every initial petition, so far as possible, shall contain the following:

(a) A title which indicates the nature of the proceeding and the complete name and address of the petitioner;

(b) The name and address of the officer of the petitioner to whom communications with respect to the initial petition should be addressed and, if the petitioner is represented by counsel, the name and address of such counsel;

(c) A reference to the statute pursuant to which the initial petition is filed (M.G. L. c. 164, § 691 or 69J); and

(d) A request that the Notice of Intention which is the subject of the initial petition be approved.

(3) Filing Dates.

(a) Any petitioner intending to construct an oil facility other than a complex refinery shall file an initial petition with the Council at least one year prior to the commencement of construction of the facility.

(b) A petitioner intending to construct a complex refinery shall file an initial petition with the Council at least two years prior to the commencement of construction of the facility.

(c) In the event that a petition is disapproved or approved subject to conditions, the petitioner or a successor in interest may file a new Notice of Intention at any time.

(4) Notice. Notice of filing a petition shall be given by the Council or the petitioner in the manner set forth in 980 CMR 1.03(2). Such notice shall, in addition, state that copies of the initial petition are available at the offices of the Coimcil and at a repository of documents chosen pursuant to 980 CMR 8.02(5) and that persons desiring more information should contact the Council.

(5) Repository of Documents. Each petitioner filing a petition shall place a copy of the petition in a repository of documents chosen pursuant to 980 CMR 2.03(4). For each proposed facility, the petitioner shall choose at least one repository to be located in a city or town in which the facility is proposed to be constructed or in a city or town adjacent thereto. The repository shall be chosen in order to provide convenient access to the initial petition to as many interested and affected persons as possible. The Council may in its discretion require that additional documents, date or transcripts be provided for such repository by the petitioner or any other party. Materials may be removed from a repository after the conclusion of all judicial appeals or the expiration of all time limits for judicial appeals.

(6) Adjudicatory Hearing. The Council shall commence an adjudicatory hearing on each petition within six months after the filing thereof.

(7) Informational Hearing. The Council shall conduct a pubUc hearing for informational purposes in each locality in which there is a site for a facility proposed in a petition. The informational hearing shall be held at least 14 days prior to the commencement of the adjudicatory hearing required by 980 CMR 8.02(6). The Council shall give such notice or require the company to give such notice as is necessary, to inform the public in the affected area of the time, place, and nature of the hearing. The Council may require the company proposing the site to present oral testimony at such an informational hearing as a necessaiy precondition of Council approval of the petition.

(8) Conduct of Adjudicatory Proceedings.

(a) The Council may in its discretion require at any time during an adjudicatory hearing subject to 980 CMR 8.00 that a company or other party produce such additional information, data, or evidence as the Council needs to render a decision.

(b) In reviewing any question presented concerning a proposed facility described pursuant to 980 CMR 8.00, the Council may in its discretion examine the question in great detail or examine the question in limited detail. The Council may base its determination of the level of detail upon such factors as the completeness of plans for and design of the facility, the adequacy or probable adequacy of subsequent review by local or other state agencies, the important of the question, and the wishes of the company, local and other state agencies, or other parties.

(9) Council Decisions.

(a) Within 24 months from the date of filing of an initial petition stating the intention to construct a complex refinery, or within 12 months from the date of filing an initial petition stating the intention to construct an oil facility other than a complex refinery, the Council shall render a decision approving the initial petition, approving it subject to stated conditions, or disapproving it. A majority vote shall be required to approve an initial petition. The Council may, among other actions, approve an initial petition but retain jurisdiction to review further the plans for a particular facility at a later time or approve an initial petition subject to approval of a particular facility by a local or other state agency at a later time. Conditional approval of an initial petition may, according to its terms, be deemed to satisfy the requirement of M.G. L. c. 164, § 691, that a site and facility conform to the most recently approved Notice of Intention to Construct an Oil Facility for purposes of permit proceedings before other agencies.

(b) The Council shall approve a petition if the Council determines that each of the following requirements has been met by the petitioner:

1. All information regarding sources of supply for the proposed facility and financial information regarding the petitioner and its proposed facility are substantially accurate and complete.

2. The petitioner's capital investment plans to complete its facility, the long-term economic viability of the facility, the overall financial soundness of the petitioner, and the petitioner's capability and experience involving the transshipment, transportation, storage, refining and marketing of oil and refined oil products are adequate.

3. All information relating to current activities, facilities agreements, enviroimiental and economic impact, and land use and development, is substantially accurate and complete.

4. The plans for expansion and construction of the proposed facility, including any buffer zones or alternatives thereto, are consistent with cunent health, environmental protection, and land and resource use and development policies as adopted by the Commonwealth.

5. The plans for expansion and construction of the proposed facility are consistent with the state policy of the Commonwealth to provide a necessary energy supply for the Commonwealth with a minimum impact on the environment at the lowest possible cost.

(c) A decision shall be set forth in writing with the reasons therefor included.

(10) Determination of Council Jurisdiction.

(a) Any company or other person may at any time petition the Council pursuant to this section for a determination whether an oil refinery, tank farm, terminal, or pipeline is within the definition of facility, is exempt from Council jurisdiction pursuant to 980 CMR 8.01(6), should be the subject of a Notice of Intention to Construct an Oil Facility, or may qualify for a Certificate pursuant to 980 CMR 6.00. The facility for which a determination of Council jurisdiction is sought may be proposed, existing or under construction.

(b) Should the Council decide to consider such a petition, its action shall be taken through an adjudicatory proceeding subject to all procedures set forth in 980 CMR 1.00.

(c) The petition shall state the name of the petitioner, the nature of the petition, and the determination of the Council sought by the petitioner.

(d) The petition shall be accompanied by such briefs, information, data, and written testimony as the petitioner may deem appropriate to support its request. The Council may during a hearing require such additional information, data and evidence as it in its discretion deems necessary.

(e) If a hearing is held, the Council shall within four months issue a decision on a petition stating fially the extent to which a proposed facility is subject to Council jurisdiction, stating that the proposed facility is within or without Council jurisdiction for a specific purpose, or deferring a determination of Council jurisdiction.

(f) The Council may consider a petition pursuant to 980 CMR 8.02(10) to determine whether a facility is within Council jurisdiction for purposes of a Notice of Intention to Construct an Oil Facility or Application for a Certificate at the same time that it reviews the Notice or Application. A company by submitting information to the Council pursuant to 980 CMR 6.00 or 7.00 does not waive the right to challenge Council jurisdiction.

(g) A determination by the Council pursuant to 980 CMR 8.02(10) that a proposed facility is not within the jurisdiction of the Council and need not be the subject of a Notice of Intention to Construct an Oil Facility shall be equivalent to a determination by the Council that the said facility and its site conform to the most recently approved Notice of Intention. Such a determination by the Council shall be sufficient but not necessary to satisfy the requirement of M.G. L. c. 164, § 691, that the Council approve a Notice of Intention to which the site and facility conform before any state agency may issue a construction permit.

(h) The existence of the procedures of 980 CMR 8.02 shall not be deemed to preclude any party from raising the question of Council jurisdiction during a proceeding concerning a Notice of Intention.

Notes

980 CMR 8.02