Section 5.401 Purpose
and Applicability
This rule establishes minimum filing
requirements for petitions to construct electric generation, electric
transmission, and natural gas facilities pursuant to
30
V.S.A. §
248. In addition, the
rule clarifies certain facets of the Section
248
review process. This rule is not intended to supplant any of the
requirements of Section
248.
Unless specifically stated, this rule does not supplant any
requirements of other Public Utility Commission ("Commission") Rules
and Procedures. Unless specifically stated, the requirements of this
rule do not apply to petitions filed under sub sections
248(j)
or
248(k).
The requirements of this rule do not apply to petitions for net
metering systems filed under Commission Rule 5.100.
Section 5.402 Filing Requirements
(A) Submission to Local and
Regional Bodies. Prior to filing the petition with the Commission,
the petitioner shall submit plans for construction to affected
municipal and regional planning commissions, and municipal
legislative bodies. This submission shall be made at least 45 days
prior to filing the petition with the Commission, except that the
submission shall be made at least 21 days prior to such filing if the
proposed project consists solely of the relocation of transmission
facilities. This notice shall include a reference to the Commission's
"Guide to the Vermont Public Utility Commission's Section
248
Process," available on the Commission's website. At this time,
petitioner shall inform the municipal and regional planning
commissions of the requirement in Section
248(f)
that "Such commissions shall make recommendations, if any, to the
Public Utility Commission and to the petitioner at least 7 days prior
to filing of the petition with the Public Utility Commission" and of
the opportunity for those commissions to provide revised
recommendations pursuant to Commission Rule 5.402(A)(1)(b), below.
Petitioner must inform the municipal and regional planning
commissions of its intended filing date. Any of the entities entitled
to receive notice under this section may waive the 45-day notice
requirement.
(1) In its review of
the proposed project under Section
248(b)(1),
the Commission will give due consideration to any recommendations
filed by municipal and regional planning commissions at least seven
days prior to the intended filing date and any revised
recommendations filed within 45 days after the date that the petition
is filed with the Commission pursuant to Commission Rule 5.402(A)(2)
below.
(2) Affected
municipal and regional planning commissions may provide revised
recommendations within 45 days of the date on which petitioner has
filed a petition with the Commission if the petition contains new or
more detailed information that was not previously included in the
petitioner's filing with the municipal and regional planning
commissions pursuant to Section
248(f).
(3) Recommendations made to the
Commission pursuant to Section
248(f),
or the lack of such recommendations, shall not preclude municipal and
regional planning commissions from presenting evidence during
technical hearings if granted party status.
(4) The plans for construction
submitted under this subsection must include sufficient information
to understand the overall proposed project, including but not limited
to: identification and analysis of aesthetic impact; project plans in
as much detail as the petitioner reasonably can provide (including a
schematic); a description of how equipment and materials will be
transported to the site; and plans which indicate the approximate
location of all proposed new infrastructure (e.g., transmission,
substation, roads, etc.) relative to the existing conditions. With
the construction plans, the petitioner shall include a description of
its evaluation of alternatives to the proposed project and the
reasons why those alternatives were rejected.
(B) Notice to Adjoining Landowners.
Petitioner must provide notice of the proposed project to each
adjoining property owner at the time that the petition is filed with
the Commission.
(1) This notice
shall include, at a minimum, a reference to the Commission's "Guide
to the Vermont Public Utility Commission's Section
248
Process," available on the Commission's website, a general
description of the type and approximate location of the facilities
and upgrades proposed, a statement that a petition for approval is
being filed with the Commission, and an identification of the
locations at which project plans and the petition can be viewed and
the hours during which those documents may be viewed. Such locations
shall include at least the offices of the petitioner, the municipal
and regional planning commissions, and the Commission.
(2) For purposes of this rule,
"adjoining property owner" means a person who owns land in fee
simple, if that land:
(a) With
respect to a transmission line, will be crossed by the right-of-way
for that line, shares a property boundary with such right-of-way, or
would share a boundary with the right-of-way but for the presence of
an intervening river, stream, public highway, or railroad line which
shares a boundary with the right-of-way; or
(b) With respect to a generation
facility, substation, or other transmission facility not part of a
transmission line, shares a property boundary with the tract of land
on which that facility or substation is located or is adjacent to
that tract of land and the two properties are separated only by a
river, stream, railroad line or public highway.
(3) Petitioner must use good faith
efforts to notify adjoining property owners. Unless otherwise shown,
good faith efforts shall mean utilizing the certified grand list as
it existed no more than 60 days prior to the date notice is provided
to identify adjoining property owners. Petitioner shall include a
statement with the petition that it has complied with this provision
and include in the statement the date the grand list was certified.
No defect in the provision of notice to adjoining property owners
under this rule shall invalidate an action by the Commission on a
petition for a certificate of public good under
30
V.S.A. §
248.
(C) Filing Contents.
(1) The petition must include
sufficient information for the Commission to evaluate the proposed
project. This should include, as appropriate:
(a) A U.S. Geological Survey
topographic map showing the location of the proposed
project.
(b) An aerial
photograph of the proposed project site that clearly marks existing
structures and significant natural and man-made features when
available, or an equivalent computer-generated image that provides
similar detail.
(c) A
site plan that includes:
(i)
proposed improvements;
(ii) existing topography at the
site and proposed changes in grading;
(iii) existing significant natural
and man-made features (including but not limited to water bodies,
wetlands, tree lines, buildings, and roads);
(iv) a cross-section of the
site;
(v) color
photographs of the project site; and
(vi) proposed measures to mitigate
impacts of the proposed project.
(d) Prefiled evidence (testimony
and exhibits) that explains how the proposed project complies with
each of the separate criteria of
30
V.S.A. §
248(b); including
the criteria specified in of
10 V.S.A. §
1424a(d) and
10 V.S.A. §
6086(a)(1) through (8) and (9)(K), incorporated through Section
248(b)(5).
(e) An index, organized according
to the criteria of
30
V.S.A. §
248(b), that
identifies with specificity the prefiled evidence that addresses each
criterion, including the incorporated criteria of Section
248(b)(5).
(2)
[Repealed.]
(3)
Petitioners are encouraged to provide plans with the petition at a
design level of detail. A petitioner seeking conceptual approval,
followed by post-certification review of final designs, shall include
in its petition a request for such approval and provide supporting
evidence to show that the cost of the petitioner's submitting design
details with the petition would outweigh the benefits of such
submission, including but not limited to the evaluation of
site-specific impacts, accuracy in the findings to be made by the
Commission, and finality of the Commission's decision on the
petition. In approving or denying such a request for conceptual
approval, the Commission may consider additional factors that it
deems relevant.
(4) Upon
filing of any petition under
30
V.S.A. §
248 and before
issuing formal notice or otherwise initiating proceedings on such a
petition, the Commission may, in its discretion, determine that the
petition is not complete or does not sufficiently address the
requirements of Section
248
or this rule, including providing information to support positive
findings on all of the criteria of Section
248(b).
The Commission shall notify the affected petitioner of any such
determination and shall include a statement of the deficiencies in
such notice. Any petition that is the subject of such a determination
shall be deemed not filed, and no proceedings thereon shall be
initiated, until the Commission determines that the petitioner has
taken sufficient steps to remedy the deficiencies set forth by the
Commission.
(a) Unless the
Commission determines otherwise, a petition that is deemed not filed
does not invalidate the notice provided under the requirements of
30
V.S.A. §
248 and this
Rule.
(b) The
Commission's acceptance of a petition under this provision or
initiation of proceedings under
30
V.S.A. §
248 shall not
constitute a determination that the petitioner has met its burden of
proof or burden of production.
(D) Related Improvements. The
Petition must address and provide sufficient evidence on all
improvements, temporary or permanent, that are reasonably related to
facilities for which a certificate of public good is required under
30
V.S.A. §
248.
(E) Filing Format. In addition to
the filing requirements of Commission Rule 2.204, the petition and
accompanying prefiled testimony and exhibits must be filed with the
Commission in an electronic format, suitable for web
posting.
(F) Filings
Under Section
248(j).
(1) An application filed pursuant
to Section
248(j)
must be complete at the time it is filed. If a petitioner intends to
rely on a permit from other regulatory agencies or a study to
demonstrate compliance with the requirements of Section
248(b),
rather than providing evidence to satisfy such criteria, such studies
and permits must be included with the petition.
(2) Sub sections 5.402(C), with the
exception of 5.402(C)(1)(e), 5.402(C)(3), and 5.402(E), shall apply
to all petitions filed under Section
248(j).
(3) Petitioners need not provide
notice to adjoining property owners. However, petitioners shall
include with the petition the names and addresses of all adjoining
property owners. Petitioner must use good faith efforts to identify
adjoining landowners. Unless otherwise shown, good faith efforts
shall mean utilizing the certified grand list as it existed no more
than 60 days prior to the date notice is provided to identify
adjoining landowners. Petitioner shall include a statement with the
petition that it has complied with this provision and include in the
statement the date the grand list was certified.
(a) Petitioners do not need to
include the names and addresses of adjoining property owners if the
proposed project consists of reconductoring within an existing
right-of-way, provided that the height of any new structure required
for the reconductoring is not more than 10 feet higher than the
structure being replaced. If any pole height increases by more than
10 feet, petitioner shall provide the names and addresses of the
property owners who adjoin the right-of-way at the immediate location
of such pole.
Section 5.403 Filing Requirements
for Petitions to Construct Wind Generation Facilities
(A) Definition. For purposes of
this section, "wind generation facility" means a generation facility
that utilizes wind to produce electricity.
(B) Requirements. In addition to
the requirements of this rule, petitions to construct wind generation
facilities must meet the following requirements:
(1) For petitions involving wind
generating facilities, notice must be provided to all municipal
planning commissions, municipal governments, and regional planning
commissions for all towns wholly or partially within a radius of a
minimum of ten miles of each proposed turbine.
(2) In addressing the impact of the
proposed project on orderly development, the petitioner must include
an assessment of the impact on all towns within this ten-mile
radius.
(3) The petition
must include a view-shed analysis that includes an analysis of
aesthetic impacts for a ten-mile radius from the proposed project
site.
(C)
Non-applicability. This section does not apply to net metered wind
systems pursuant to
30 V.S.A. §
219a or wind measurement
towers.
Section
5.404 Requirements Pertaining to Certain Criteria
(A) Section
248(b)(2)
Need. For petitions to construct or modify transmission facilities in
a national interest electric transmission corridor designated by the
federal Secretary of Energy under
16
U.S.C. §
824p(a),
petitioners must, as part of its demonstration on need, specifically
address the interstate benefits expected to be achieved by the
proposed project.
(B)
Section
248(b)(6)
Integrated Resource Plans. Any petition from an investor-owned
utility, municipal electric department, or cooperative electric
utility which does not have an approved integrated resource plan
pursuant to
30 V.S.A. §
218c must provide evidence that its
proposed project complies with principles of integrated resource
planning, as defined in
30 V.S.A. §
218c, including consideration of
environmental effects.
(C) Section
248(b)(7)
Consistency with Electric Energy Plan. Except for petitions
concerning natural gas facilities that are not part of or reasonably
related to an electric generation facility, the petitioner must
provide evidence that specifically demonstrates compliance with the
electric energy plan approved by the Department of Public Service
under
30 V.S.A. §
202, applying the relevant portions
of that plan to the facts of the proposed project. If the petitioner
seeks a determination that good cause exists to permit the proposed
action notwithstanding inconsistency with that plan, the petitioner
must request such a determination and provide evidence demonstrating
the existence of such good cause.
Section 5.405 Site Visits
The
Commission may conduct one or more site visits to view the location
of the proposed project. The purpose of the site visit shall be to
assist the Commission and the parties in understanding the proposed
project and the issues that the proposed project may present. The
site visit will typically include a discussion of the following
matters: a description of the proposed project and its location(s); a
viewing of the existing conditions at the location(s) of the proposed
project; and an explanation of how the existing conditions would be
altered by the proposed project. The site visit may also include
identification of relevant landscape features, discussion of how such
landscape features have affected or potentially should affect the
project design and location, identification of and visits to
potential alternative locations for the proposed project, and any
other relevant matters for which a first-hand viewing of the site(s)
may assist in understanding the issues before the Commission.
Observations and facts from the site visit shall not be considered as
evidence unless the Commission, on its own motion or on the request
of a party, specifically enters them into the evidentiary
record.
Section
5.406 Public Hearings
The Commission will typically
hold one public hearing on a petition filed under Section
248,
except that it typically will not hold a public hearing on a petition
processed under Section
248(j).
If the Commission is requested and there is sufficient reason, the
Commission will hold one or more additional public hearings. Also,
the Commission on its own motion may hold one or more additional
public hearings. With respect to petitions filed under Section
248(j),
the Commission may in its discretion determine to hold one or more
public hearings upon request or on its motion.
Section 5.407 Substantial Change
Prior to Decision on a Petition
If the petitioner makes a
substantial change to the proposed project after the petition has
been filed with the Commission, the petitioner is required to provide
notice of this change to all parties and entities entitled to notice
under this Rule and Section
248,
including any newly affected adjoining property owners, as defined by
this rule. For the purpose of this subsection, a substantial change
is one that has the potential for significant impact with respect to
any of the criteria of Section
248(b)
or on the general good of the state under Section
248(a).
Section 5.408 Amendments
to Projects Approved under Section 248
An amendment to a
certificate of public good for construction of generation or
transmission facilities, issued under
30
V.S.A. §
248, shall be
required for a substantial change in the approved proposal. For the
purpose of this subsection, a substantial change is a change in the
approved proposal that has the potential for significant impact with
respect to any of the criteria of Section
248(b)
or on the general good of the state under Section
248(a).
Section 5.409 Costs of
Section 248 Projects
Where a Vermont utility is the petitioner,
or the costs of a project or a portion thereof are eligible to be
recovered from ratepayers, the petitioner shall regularly monitor and
update the estimated capital costs of any project it has proposed for
or received approval under Section
248.
When the estimated capital costs of such a project increase by 20
percent, and the increase is at least $ 25,000, or such other amount
as the Commission may order in a given proceeding or prescribe in a
Procedure, prior cost estimates submitted by the petitioner to the
Commission, the petitioner shall notify the Commission and parties of
the new capital cost estimates for the project and the reasons for
the increase. This requirement to monitor, update, and report shall
continue until construction of the project has been completed.
Section 5.410
Waiver
For good cause, the Commission may waive any of the
requirements of this Rule.
