§ 21 — Standards, requirements and procedures governing the siting and permitting of small clean energy infrastructure facilities by local governments; permit application; appeal of decision of local entity

Massachusetts § 21

• Jurisdiction: Massachusetts
• Part I: ADMINISTRATION OF THE GOVERNMENT
• Title II: EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
• Ch. 25A: DIVISION OF ENERGY RESOURCES

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[ Text of section added by 2024, 239, Sec. 23 effective February 18, 2025.]Section 21. (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:"Anaerobic digestion facility'', a facility that: (i) generates electricity from a biogas produced by the accelerated biodegradation of organic materials under controlled anaerobic conditions; and (ii) has been determined by the department, in coordination with the department of environmental protection, to qualify under department of energy resources regulations as a Class I renewable energy generating source under section 11F."Local government'', a municipality or regional agency, including, but not limited to, the Cape Cod commission, established by chapter 716 of the acts of 1989, and the Martha's Vineyard Commission, established by chapter 831 of the acts of 1977, that has permitting authority over small clean energy infrastructure facilities."Small clean energy generation facility'', energy generation infrastructure with a nameplate capacity of less than 25 megawatts that is an anaerobic digestion facility, solar facility or wind facility, including any ancillary structure that is an integral part of the operation of the small clean energy generation facility or, following a rulemaking by the department in consultation with the energy facilities siting board in which the facility type is added to the regulatory definition of a small clean energy generation facility, any other type of generation facility that produces no greenhouse gas emissions or other pollutant emissions known to have negative health impacts; provided, however, that the nameplate capacity for solar facilities shall be calculated in direct current."Small clean energy infrastructure facility'', a small clean energy generation facility, small clean energy storage facility or small clean transmission and distribution infrastructure facility."Small clean energy storage facility'', an energy storage system as defined in section 1 of chapter 164 with a rated capacity of less than 100 megawatt hours, including any ancillary structure that is an integral part of the operation of the small clean energy storage facility."Small clean transmission and distribution infrastructure facility'', electric transmission and distribution infrastructure and related ancillary infrastructure, including: (i) electric transmission line reconductoring or rebuilding projects; (ii) new or substantially altered electric transmission lines located in an existing transmission corridor that are not more than 10 miles long, including any ancillary structure that is an integral part of the operation of the transmission line; (iii) new or substantially altered electric transmission lines located in a new transmission corridor that are not more than 1 mile long, including any ancillary structure that is an integral part of the operation of the transmission line; (iv) any other electric transmission infrastructure, including standalone transmission substations and upgrades and any ancillary structure that is an integral part of the operation of the transmission line and that does not require zoning exemptions; and (v) electric distribution-level projects that meet a certain threshold, as determined by the department; provided, however, that the "small clean transmission and distribution infrastructure facility'' shall be: (A) designed, fully or in part, to directly interconnect or otherwise facilitate the interconnection of clean energy infrastructure to the electric grid; (B) designed to ensure electric grid reliability and stability; or (C) designed to help facilitate the electrification of the building and transportation sectors; and provided further, that a "small clean transmission and distribution infrastructure facility'' shall not include new transmission and distribution infrastructure facilities that solely interconnect new or existing generation powered by fossil fuels to the electric grid on or after January 1, 2026."Solar facility'', a ground mounted facility that uses sunlight to generate electricity."Wind facility'', an onshore or offshore facility that uses wind to generate electricity.(b) The department shall establish standards, requirements and procedures governing the siting and permitting of small clean energy infrastructure facilities by local governments that shall include: (i) uniform sets of public health, safety, environmental and other standards, including zoning criteria, that local governments shall require for the issuance of permits for small clean energy infrastructure facilities; (ii) a common standard application for small clean energy infrastructure facility project applicants submitting a permit application to local governments; (iii) uniform pre-filing requirements for small clean energy infrastructure facilities, which shall include specific requirements for public meetings and other forms of outreach that must occur in advance of an applicant submitting an application; (iv) standards for applying site suitability guidance developed by the executive office of energy and environmental affairs pursuant to section 30 of chapter 21A to evaluate the social and environmental impacts of proposed small clean energy generation facilities, small clean energy storage facilities and small clean transmission and distribution infrastructure facilities in new rights of way, which shall include a mitigation hierarchy to be applied during the permitting process to avoid or minimize or, if impacts cannot be avoided or minimized, mitigate negative impacts of siting on the environment, people and the commonwealth's goals and objectives for climate mitigation, resilience, biodiversity and protection of natural and working lands, to the extent practicable; (v) common conditions and requirements for a single permit consolidating all necessary local approvals to be issued for different types of small clean energy infrastructure facilities in the event that constructive approval is triggered through the non-issuance of a final decision by a local government pursuant to subsection (d); (vi) guidance for procedures and potential extensions of time should an applicant fail to respond to a request for information within a specified timeframe or proposes a significant revision to a proposed project; provided, however, that the department shall solicit public input in the development of such guidance; and (vii) responsible parties subject to enforcement actions, including in the event of sale of small clean energy infrastructure facilities after permitting. The department may promulgate rules and regulations allowing local governments to set fees for compensatory environmental mitigation for the restoration, establishment, enhancement or preservation of comparable environmental resources through funds paid to the local government or to a non-profit entity to be used at the election of an applicant to satisfy the standard of mitigation to the maximum extent practicable. Local governments acting in accordance with the standards established by the department for small clean energy generation facilities and small clean energy storage facilities pursuant to this subsection shall be considered to have acted consistent with the limitations on solar facility and small clean energy storage facility zoning under section 3 of chapter 40A. The department shall establish a transition or concurrency period for the effective date of any standards that it establishes.(c) The proponent of a small clean energy infrastructure facility may submit a consolidated small clean energy infrastructure facility permit application seeking a single permit consolidating all necessary local permits and approvals. To initiate the permitting of a small clean energy infrastructure facility, an applicant may elect to submit an application, with supporting information in the form developed by the department pursuant to subsection (b), for the local government to conduct a consolidated review pursuant to the criteria and standards set forth in subsection (b) and using the process set forth in subsection (d). Local governments shall determine whether such consolidated small clean energy infrastructure facility permit application is complete not later than 30 days of receipt. If an application is deemed incomplete, the applicant shall have 30 days, and any additional time as determined by the local government, to cure any deficiencies before the application is rejected. In the event of a rejection of the application, the local government shall provide a detailed reasoning for the rejection.(d)(1) Local governments shall issue a single, final decision on a consolidated small clean energy infrastructure facility permit application submitted pursuant to subsection (c), including all decisions necessary for a project to proceed with construction within 12 months of the receipt of a complete permit application; provided, however, that the permit shall not include any state permits that may be required to proceed with construction and operation of said facility. All local government authorities, boards, commissions, offices or other entities that may be required to issue a decision on 1 or more permits in response to the application for the small clean energy infrastructure facility may conduct reviews separately and concurrently. Such permits shall adhere to any requirements established by the department pursuant to subsection (b).(2) If a final decision is not issued within 12 months of the receipt of a complete permit application, a constructive approval permit shall be issued by the local government that includes the common conditions and requirements established by the department for the type of small clean energy infrastructure facility under review.(e) Individual decisions of local government authorities, boards, commissions, offices or other entities that would otherwise be required to issue 1 or more permits to the small clean energy infrastructure facility may not be appealed or reviewed independently. The only decision of a local government that is subject to further review is the single, final decision issued by the local government that includes all individual decisions necessary for a project to proceed with construction, exclusive of any state permits that may be required, which shall be reviewable by a de novo adjudication of the permit application by the director of the energy facilities siting division of the department of public utilities, as provided in subsection (f).(f) Within 30 days of the single, final decision on a consolidated permit application by a local government described in subsections (d) and (e), project proponents and other individuals or entities substantially and specifically affected by a proposed small clean energy infrastructure facility may file a petition to request in writing a de novo adjudication of the permit application by the director of the facilities siting division pursuant to section 69W of chapter 164 following permit issuance, including constructive approval permits issued pursuant to subsection (d), or denials by a local government.(g) If a local government lacks the resources, capacity or staffing to review a small clean energy infrastructure facility permit application within 12 months, it may, not later than 60 days after receipt of such application or at any time thereafter with the consent of the applicant, request in writing a de novo adjudication of such application by the director pursuant to section 69W of chapter 164.(h) The department shall promulgate regulations to implement this section in consultation with the Massachusetts Municipal Association, Inc., the department of public utilities, the department of environmental protection, the department of fish and game, the department of conservation and recreation, the department of agricultural resources, an office within the executive office of energy and environmental affairs designated by the secretary of energy and environmental affairs for review of compliance with the Massachusetts environmental policy act, the office of environmental justice and equity, the executive office of health and human services, the executive office of housing and livable communities and the executive office of public safety and security.(i) Nothing in subsections (c) to (g), inclusive, shall apply to a comprehensive permit pursuant to sections 20 to 23, inclusive, of chapter 40B. For the purpose of this section, the procedures and standards for filing and review of an application for a comprehensive permit that includes a small clean energy infrastructure facility shall be in accordance with said sections 20 to 23, inclusive, of said chapter 40B.(j) The department of energy resources shall, on a quarterly basis, determine whether more than 50 per cent of applications for small clean energy infrastructure facilities processed in the preceding 24-month period throughout the commonwealth have been constructively approved. If more than 50 per cent of applications have been so approved, the department of energy resources, the department of public utilities and the office of environmental justice and equity shall, within 6 months of the conclusion of the 24-month period, analyze and report on the cause of the high rate of constructive approvals by local governments and make recommendations to local governments, the general court and the governor on how to reduce the number of constructive approvals and increase the number of decisions reached by means other than constructive approval.(k) A consolidated small clean energy infrastructure permit application submitted pursuant to this section shall include the following certification and disclosure requirements:(i) documentation reflecting the applicant's demonstrated commitment to workforce or economic development within the commonwealth;(ii) a statement of intent concerning efforts that the applicant and its contractors and subcontractors will make to promote workforce or economic development through the project;(iii) documentation reflecting the applicant's demonstrated commitment to expand workforce diversity, equity and inclusion in its past projects within the commonwealth;(iv) documentation as to whether the applicant and its contractors and subcontractors participate in a state or federally certified apprenticeship program and the number of apprentices the apprenticeship program has trained to completion for each of the last 5 years;(v) a statement of intent concerning how or if the applicant and its contractors and subcontractors intend to utilize apprentices on the project, including whether each of its contractors and subcontractors on the project participates in a state or federally certified apprenticeship program;(vi) documentation relative to the applicant and its contractors and subcontractors regarding their history of compliance with chapters 149, 151, 151A, 151B and 152, 29 U.S.C. section 201, et seq. and applicable federal anti-discrimination laws;(vii) documentation that the applicant and its contractors and subcontractors are currently, and will remain, in compliance with chapters 149, 151, 151A, 151B, and 152, 29 U.S.C. section 201, et seq. and applicable federal anti-discrimination laws for the duration of the project;(viii) detailed plans for assuring labor harmony during all phases of the construction, reconstruction, renovation, development and operation of the project, including documentation of the applicant's history with picketing, work stoppages, boycotts or other economic actions against the applicant and a description or plan of how the applicant intends to prevent or address such actions;(ix) documentation relative to whether the applicant and its contractors have been found in violation of state or federal safety regulations in the previous 10 years.(l) The department may require a wage bond or other comparable form of insurance in an amount to be set by the department to ensure compliance with law, certifications or department obligations.(m) The department shall notify applicants that an applicant shall be disqualified from the project if the applicant has been debarred by the federal government or commonwealth for the entire term of the debarment.(n) An applicant shall, in a timely manner, provide documentation and certifications as required by law or otherwise directed by the department. Incomplete or inaccurate information may be grounds for disqualification, dismissal or other action deemed appropriate by the department.(o) The department shall give added weight to applicants that demonstrate compliance with the provisions of sections 26 to 27F, inclusive, of chapter 149, and have a history of participation with state or federally certified apprenticeship programs.