§ 23-1719 — Non-conforming facilities; conformance to safety criteria; moratorium

§ 23-1719. Non-conforming facilities; conformance to safety criteria;\n moratorium.\n The legislature finds that existing facilities have been constructed\nand are in the process of being used which by reason of their\nconstruction in residential areas or in dangerous proximity to\ncontiguous populations, or otherwise, are in violation of the terms of\nthis act, and, having been constructed before its enactment, have not\nbeen approved in accordance with the procedures herein required. Taking\ninto account the needs of the service areas involved, the substantial\ncapital investment of the utilities therein, and the changes in\ncorporate plans that compliance with this title will entail, as against\nthe hazards posed to surrounding and contiguous areas and their\npopulations by the potential mishandling or accidental discharge of\nliquefied natural or petroleum gas in its cryogenic state, the following\nprocedure is established to conform existing facilities to the safety\ncriteria herein prescribed, or, in the alternative, to reexamine the\nnecessity of their use in current locations, and to require alternative\nsiting.\n 1. Effective on passage hereof, and until regulations pursuant to\nsection 23-1709 are adopted and filed, no liquefied natural or petroleum\ngas facility may be constructed, reconstructed, enlarged in storage\ncapacity, or, if constructed but unused, put into actual use and\noperation in this state, and no environmental safety permit pursuant to\nsection 23-1707 of this title shall be issued for such facility.\n 2. With regard to any non-conforming liquefied natural or petroleum\ngas storage or conversion facility in actual use and operation on\nSeptember first, nineteen hundred seventy-six, the following special\nprocedures shall apply:\n a. On or before September first, nineteen hundred seventy-six, or the\nthirtieth day after the effective date of this title, whichever shall be\nlater, the department shall notify any such non-conforming facility of\nthe provisions of this section and of this title, and shall advise it of\nthe procedures to be followed hereunder in terms of conformance to\nsafety criteria or alternative siting.\n b. Within thirty days after this title shall become effective, such\nnon-conforming facility shall give the initial notice required under\nsubdivision two of section 23-1717, specifying by geographical\ndescription the municipality or municipalities, or parts thereof, within\nthe state within which it is handling or otherwise using liquefied\nnatural or petroleum gas, with the nature of such use, storage,\ntransportation, or conversion, with the amounts thereof in each\nlocation, on a monthly and annual basis, with any projected increase or\ndecrease in the use or handling thereof at such location or locations\nwithin the state on a five year basis from date of report.\n c. Within sixty days thereafter, the department shall complete the\nconsultation and report required by subdivisions three and four of\nsection 23-1717, and the notification required by the first sentence of\nsubdivision five of that section. Thereafter, further proceedings under\nsubdivision five shall be integrated with the hearing hereinafter\ndirected to be had with regard to the non-conforming facility; and the\nimplementation of the balance of section 23-1717, with regard to\ntraining and qualification of municipal fire department personnel, shall\nbe effected in accordance with the determination of the department with\nregard to the non-conforming facility.\n d. Within one hundred and eighty days after this title shall become\neffective, a public hearing or hearings shall be held in the area or\nareas in which the non-conforming facility or facilities are located.\nSuch hearing or hearings shall be held on sixty days' notice and as\notherwise provided in subdivisions two and three of section 23-1711.\nNotice shall be given by the facility or facilities in accordance with\nsubdivision three thereof, and public participation shall be afforded by\nappropriate location and scheduling, and the opportunity to submit oral\nor written statements for the record.\n e. In the adjudicatory phase of the hearing or hearings, evidence may\nbe received relating to the criteria set forth in section 23-1709 as\nthey relate to the non-conforming facility, and with regard to the\ncapability of municipal fire department personnel to control and\nextinguish fire resulting from mishandling and accidental release of\nliquefied natural and petroleum gas during its storage, transportation,\nor conversion. At the time of the notice of hearing the department shall\nmake public its report under paragraph c of subdivision two of this\nsection, together with all information secured by it with respect to the\ntraining and qualification of the municipal fire department or\ndepartments and their personnel to control or extinguish fires related\nto the use of the non-conforming facility, and additional oral testimony\nby the municipal fire department or departments with respect thereto\nshall be required at the hearing.\n 3. Upon the basis of the record the department shall render a\ndecision, (a) permitting the facility to continue at the location, under\nsuch terms, conditions, or modification of procedures as the department\nmay deem appropriate; or (b) directing discontinuance of the facility\nupon a showing of alternate means of meeting the service needs currently\nsatisfied thereby, or upon a showing that the service needs currently\nsatisfied thereby are not sufficient to outweigh the public interest in\nsafety within the terms of section 23-1711. Location within a\nresidential area or in dangerous proximity to contiguous populations\nshall not, in and of themselves, be determinative with respect to the\ndepartment determination, but shall be considered along with the other\nfactors set forth in section 23-1709 as criteria for siting, and the\ninformation elicited before and at the hearing with respect to the\ntraining and qualification of municipal fire department personnel to\ncontrol or extinguish fires related to the facility under subdivision\ntwo of this section, in determining whether or not to permit\ncontinuation of the facility at the existing location. In the event it\nis determined to permit continuation of the facility, it shall be under\nsuch limitations in terms of time and conditions as will permit the\ndepartment currently to review the status of the facility, and to\nintegrate its continued operation with the regulation of other\nfacilities and activities subject to this title to be certified under\nsections 23-1707 and 23-1713. In the event it is determined to direct\ndiscontinuance of the facility, it may be effected over the course of a\nphase-out period not to exceed three years from the date of\ndetermination, in order to arrange for alternate facilities or other\nmeans of meeting approved service needs of the area currently served by\nthe facility. In connection with the foregoing, it shall be appropriate\nat the hearing or hearings provided under this section to receive\nevidence with regard to capital investment in any such non-conforming\nfacility, the extent of amortization and of tax writeoff thereof,\nadaptability for alternate use, availability of alternate siting or\nmeans of meeting demonstrated and approved service needs of the area.\nWith regard thereto, it shall be appropriate to solicit information and\nrecommendations from the public service commission with respect to\nconsumer needs and the meeting thereof in economical fashion consistent\nwith the requirements of this title, and from the state energy office,\nif established, with regard to state energy policy. The cost of the\nhearing and of allocated departmental overhead shall be assessed against\nthe non-conforming facility pursuant to subdivisions two and three of\nsection 23-1715. It is anticipated that any hearing or hearings held\nunder this section with regard to non-conforming facilities will also\nrelate to the function of the department in adopting regulations\nestablishing criteria for the siting of liquefied natural and petroleum\ngas facilities, and such shall also be considered in the allocation of\nexpense with regard to hearing or hearings held under this section.\n