§ 69H — Energy facilities siting board

[ First to third paragraphs effective until February 18, 2025. For text effective February 18, 2025, see below.]Section 69H. There is hereby established an energy facilities siting board within the department, but not under the supervision or control of the department. Said board shall implement the provisions contained in sections 69H to 69Q, inclusive, so as to provide a reliable energy supply for the commonwealth with a minimum impact on the environment at the lowest possible cost. To accomplish this, the board shall review the need for, cost of, and environmental impacts of transmission lines, natural gas pipelines, facilities for the manufacture and storage of gas, and oil facilities; provided, however, that the board shall review only the environmental impacts of generating facilities, consistent with the commonwealth's policy of allowing market forces to determine the need for and cost of such facilities. Such reviews shall be conducted consistent with section 69J1/4 for generating facilities and with section 69J for all other facilities.The board shall be composed of the secretary of energy and environmental affairs, who shall serve as chairman, the secretary of economic development, the commissioner of the department of environmental protection, the commissioner of the division of energy resources, 2 commissioners of the commonwealth utilities commission, or the designees of any of the foregoing, and 3 public members to be appointed by the governor for a term coterminous with that of the governor, 1 of whom shall be experienced in environmental issues, 1 of whom shall be experienced in labor issues, and 1 of whom shall be experienced in energy issues. The board shall not include as a public member any person who receives, or who has received during the past two years a significant portion of his or her income directly or indirectly from the developer of an energy facility or an electric, gas or oil company. The public members shall serve on a part-time basis, receive $100 per diem of board service, and shall be reimbursed by the commonwealth for all reasonable expenses actually and necessarily incurred in the performance of official board duties. Upon the resignation of any public member, a successor shall be appointed in a like manner for the unexpired portion of the term. No person shall be appointed to serve more than two consecutive full terms.In the event of the absence, recusal or disqualification of the chairman, the commissioner of energy resources shall appoint an acting chairman from the remaining members of the board. The board shall meet at such time and place as the chairman may designate or upon the request of three members. Four members shall constitute a quorum.[ First to third paragraphs as amended by 2024, 239, Sec. 60 effective February 18, 2025. For text effective until February 18, 2025, see above.]There shall be an energy facilities siting board within the department, but not under the supervision or control of the department. The board shall implement the provisions contained in sections 69H to 69Q, inclusive, and sections 69S to 69W, inclusive, to: (i) provide a reliable, resilient and clean supply of energy consistent with the commonwealth's climate change and greenhouse gas reduction policies and requirements; (ii) ensure that large clean energy infrastructure facilities, small clean energy infrastructure facilities, facilities and oil facilities avoid or minimize or, if impacts cannot be avoided or minimized, mitigate environmental impacts and negative health impacts to the extent practicable; (iii) ensure that large clean energy infrastructure facilities, small clean energy infrastructure facilities, facilities and oil facilities are, to the extent practicable, in compliance with energy, environmental, land use, labor, economic justice, environmental justice and equity and public health and safety policies of the commonwealth, its subdivisions and its municipalities; and (iv) ensure large clean energy infrastructure facilities, small clean energy infrastructure facilities, facilities and oil facilities are constructed in a manner that avoids or minimizes costs. The board shall review: (A) the need for, cost of and environmental and public health impacts of transmission lines, natural gas pipelines, facilities for the manufacture and storage of gas, oil facilities, large clean transmission and distribution infrastructure facilities and small clean transmission and distribution infrastructure facilities; and (B) the environmental and public health impacts of generating facilities, large clean energy generation facilities, small clean energy generation facilities, large clean energy storage facilities and small clean energy storage facilities.Any determination made by the board shall describe the environmental and public health impacts, if any, of the large clean energy infrastructure facility, small clean energy infrastructure facility, facility or oil facility and shall include findings, including, but not be limited to, findings that: (i) efforts have been made to avoid or minimize or, if impacts cannot be avoided or minimized, mitigate environmental impacts; (ii) due consideration has been given to the findings and recommendations of local governments; (iii) in the case of large clean transmission and distribution infrastructure facilities, small clean transmission and distribution infrastructure facilities and natural gas pipelines, due consideration has been given to advanced conductors, advanced transmission technologies, grid enhancement technologies, non-wires or non-pipeline alternatives, the repair or retirement of pipelines and other alternatives in an effort to avoid or minimize expenditures; (iv) in the case of large clean transmission and distribution infrastructure facilities and small clean transmission and distribution infrastructure facilities, the infrastructure or project will increase the capacity of the system to interconnect large electricity customers, electric vehicle supply equipment, clean energy generation, clean energy storage or other clean energy generation sources that qualify under any clean energy standard regulation established by the department of environmental protection pursuant to subsection (d) of section 3 of chapter 21N or will facilitate the electrification of the building and transportation sectors; and (v) due consideration has been given to any cumulative burdens on host communities and efforts that must be taken to avoid or minimize or, if impacts cannot be avoided or minimized, efforts to mitigate such burdens. In considering and issuing a decision, the board shall also consider reasonably foreseeable climate change impacts, including additional greenhouse gas or other pollutant emissions known to have negative health impacts, predicted sea level rise, flooding and any other disproportionate adverse effects on a specific geographical area. Such reviews shall be conducted consistent with section 69J 1/4 for generating facilities, section 69T for large clean energy infrastructure facilities, sections 69U to 69W, inclusive, for small clean energy infrastructure facilities and section 69J for all other types of facilities.The board shall be composed of: the secretary of energy and environmental affairs or a designee, who shall serve as chair; the secretary of economic development or a designee; the commissioner of environmental protection or a designee; the commissioner of energy resources or a designee; the chair of the department of public utilities or a designee; the commissioner of fish and game or a designee; the commissioner of public health or a designee; and 4 public members to be appointed by the governor for a term coterminous with that of the governor, 1 of whom shall be a representative of the Massachusetts Association of Regional Planning Agencies, 1 of whom shall be a representative of the Massachusetts Municipal Association, Inc. with expertise in municipal permitting matters, 1 of whom shall be experienced in environmental justice issues or indigenous sovereignty and 1 of whom shall be experienced in labor issues; provided, however, that the public members shall not have received, within the 2 years immediately preceding appointment, a significant portion of their income directly or indirectly from the developer of an energy facility or an electric, gas or oil company. The public members shall serve on a part-time basis, receive $100 per diem of board service and be reimbursed by the commonwealth for all reasonable expenses actually and necessarily incurred in the performance of official board duties. Upon the resignation of any public member, a successor shall be appointed in a like manner for the unexpired portion of the term. Appointees shall serve for not more than 2 consecutive full terms.[ Paragraph inserted following third paragraph by 2024, 239, Sec. 60 effective February 18, 2025.]In the event of the absence, recusal or disqualification of the chair, the commissioner of energy resources shall appoint an acting chair from the remaining members of the board. The board shall meet at such time and place as the chair may designate or upon the request of 3 members. The board shall render a final decision on an application by a majority vote of the members in attendance at a meeting and 5 members shall constitute a quorum.In carrying out its functions, the board shall cooperate with, and may obtain information and recommendations from every agency of the state government and of local government which may be concerned with any matter under the purview of the board. Each state or local government agency is directed to provide such information and recommendations as may be requested by the board. The board shall cooperate with other states and with the federal government or any agency thereof, as authorized under section sixty-nine Q and as otherwise authorized by law. The board may receive and expend such funds as are appropriated or as may be available to it from the funds of any other agency.The board shall have powers and duties as follows:[ Clause (1) of fifth paragraph effective until February 18, 2025. For text effective February 18, 2025, see below.](1) To adopt and publish rules and regulations consistent with the purposes of sections sixty-nine H to section sixty-nine Q, and to amend the same from time to time. This includes rules and regulations for the conduct of the board's public hearings under the provisions of sections sixty-nine H1/2, sixty-nineI, sixty-nine J and sixty-nine M.[ Clause (1) of fifth paragraph as amended by 2024, 239, Sec. 61 effective February 18, 2025. For text effective until February 18, 2025, see above.](1) To adopt and publish rules and regulations consistent with the purposes of sections 69H to 69S, inclusive, and to amend the same from time to time, including, but not limited to, rules and regulations for the conduct of the board's public hearings under sections 69H 1/2, 69J, 69J 1/4, 69M and 69T to 69W, inclusive.(2) To accept petitions for certificates of environmental impact and public need on such forms as it may prescribe, consistent with the provisions of section sixty-nine L; to conduct preliminary investigations thereon and solicit information and recommendations relating thereto; to conduct public hearings in accordance with the provisions of sections sixty-nine M and sixty-nine N and to supervise the enforcement of the terms and conditions of certificates so issued; to approve or reject petitions to construct facilities and notices of intention to construct an oil facility in accordance with the provisions of section sixty-nine J; and to accept for review and approval or rejection any application, petition, or matter related to the need for, construction of, or siting of facilities referred by the chairman of the department pursuant to section four of chapter twenty-five; provided, however, that in reviewing such application, petition, or matter, the board shall apply department and board standards in a consistent manner.(3) Where the applicant has petitioned the board with respect to a national pollutant discharge elimination system permit, the board shall be required to make a tentative determination as to the resolution of that petition, which determination shall be included in the public notice as required by section sixty-nine M.(4) The board shall have the opportunity to issue orders with respect to any matter over which it has jurisdiction. Any applicant who violates any such order shall be subject to a civil penalty not to exceed $1000 for each violation for each day that the violation persists; provided, however, that the maximum civil penalty shall not exceed $200,000 for any related series of violations.[ Two paragraphs added by 2024, 239, Sec. 62 effective February 18, 2025.]In consultation with the office of environmental justice and equity and the Massachusetts environmental policy act office, the board shall promulgate regulations for cumulative impact analysis as part of its review of facilities, large clean energy infrastructure facilities and small clean energy infrastructure facilities; provided, however, that such regulations shall be informed by the cumulative impact analysis standards and guidelines issued pursuant to section 29 of chapter 21A.The board and any proponent or owner of a large clean energy infrastructure facility or small clean energy infrastructure facility shall not be subject to any provisions of sections 61 to 62L, inclusive, of chapter 30 in relation to an application or petition for a comprehensive permit or de novo adjudication filed under sections 69T to 69W, inclusive. This section shall apply to any state agency issuing, in relation to an application or petition under said sections 69T to 69V, inclusive, a federal permit that is delegated to that agency and determined by the board to be excluded from the definition of consolidated permit in section 69G.