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Bar News - September 21, 2016

Environmental, Telecomm, Utilities & Energy Law: Rules and Staff Expand in Siting of NH Energy Facilities

Q&A with NH Site Evaluation Committee Administrator Pam Monroe
By Susan Geiger

Pam Monroe

The NH Site Evaluation Committee faces new challenges in processing and evaluating all of the detailed information that applicants are now required to submit under the new rules that govern authorization of energy infrastructure projects in the state. To assist with its administrative processes, the NHSEC has hired Attorney Pamela Monroe to fill the newly created position of NHSEC administrator. Monroe agreed to answer a few quick questions about her work and the new position.

What is your background and experience and how have they prepared you for your position as Administrator of the NH Site Evaluation Committee?
After I completed law school, I went to work at the Department of Environmental Services, Air Resources Division, and was employed there for 18 years as the Compliance Bureau Administrator. Many of the facilities that the Division regulates are energy generation facilities that are subject to both state and federal requirements. This experience familiarized me with understanding complex statutes and rules, the energy sector, and the importance of responding to the public in a timely and responsive manner.

What are some of the biggest challenges you’ve encountered so far in your role as NHSEC Administrator?
The sheer volume of applications filed shortly after I started in September of 2015, and the complexity of those projects, required me to learn a lot in a very short time. I also had to develop standard operating procedures and tracking mechanisms to ensure that nothing fell through the cracks.

What are the priorities for your office for the next year?

  1. Keeping the active dockets on track and following the rules and the statutory process that the Legislature has put in place;
  2. Ensuring that the public has access to information and that their questions are answered on a timely basis; and
  3. Getting out in the field to monitor the construction and operation of energy facilities that have been granted a certificate, to ensure compliance with the terms and conditions of the certificate.

Do you have any practice hints for attorneys and/or pro se parties who intend to participate in NHSEC proceedings?
Utilize me as a resource and don’t hesitate to contact me with any questions or concerns.

The New Hampshire Site Evaluation Committee (NHSEC), which is responsible for certificating the state’s energy infrastructure projects, has recently adopted new rules and hired an administrator to assist with the complex tasks of processing and reviewing applications for certificates of site and facility.

In December 2015, the NHSEC adopted new rules to implement legislative amendments to the state’s energy facility siting statute, RSA 162-H. Among the more substantive changes to the prior rules are the new requirements for application contents relating to the certification criteria contained in RSA 162-H:16, IV. These criteria include: the adequacy of an applicant’s financial, technical and managerial capability; whether the site and facility would have an unreasonable adverse effect on aesthetics, historic sites, air quality, water quality, the natural environment, and public health and safety; whether the site and facility would unduly interfere with the orderly development of the region; and whether issuing the certificate would serve the public interest.

The new application requirements are set out in over 11 pages of text. The old rules covering the same statutory criteria (except for the new public interest standard) comprised approximately three and a half pages and lacked specificity about the type of information, studies or reports an applicant was required to file regarding a project’s impacts. On these issues, the old rules simply provided that an application must include: a description in detail of the impact of the proposed facility on the environment for each site proposed; a description in detail of the applicant’s proposals for studying and solving environmental problems; and information regarding the effects of the facility on, and plan for mitigation of any effects for aesthetics; historic sites; air quality; water quality; natural environment; and public health and safety.

In contrast to the old rules, the new rules prescribe not only the type of information required for each of the statutory siting criterion, but also the way in which that information is to be obtained and evaluated by the applicant’s experts. The new rules regarding application information about a project’s impacts on aesthetics and public health and safety illustrate this point.

Under the new rules, an application must include a visual impact assessment prepared in a manner consistent with generally accepted professional standards. Among other things, the visual impact assessment must contain a computer-based visibility analysis to determine the area of the project’s potential visual impact and must also include photo-simulations from representative key observation points. The rules contain detailed specifications for the cameras to be used for the photographs, the conditions under which the photographs are to be taken, and what the photo-simulations must depict or omit (e.g. if feasible, they must avoid showing any utility poles, fences, walls, trees, shrubs, foliage, and other foreground objects and obstructions).

The visual impact assessment must also contain a map depicting the proposed facility’s location, components and cleared areas that would be visible from any scenic resources, based on both bare ground conditions using topographic screening only and on consideration of vegetative or other screening. The new rules require an applicant to describe how it identified and evaluated the scenic quality of the landscape and potential visual impacts, and to characterize potential visual impacts of the proposed facility as “high, medium or low” based on several factors.

The new rules relative to public health and safety information are also quite detailed. All energy facility applicants must include sound impact assessments and decommissioning plans prepared according to specifications outlined in the rules. They must also submit fire safety and emergency response plans. Wind energy facilities are also required to provide additional information such as: a shadow flicker assessment; description of planned setbacks and explanation of their adequacy; and an assessment of ice throw, blade shear and tower collapse risks, among other reports.

As a result of these and other new detailed application requirements, energy project developers face steep hurdles in compiling and presenting information to satisfy their burden of proving by a preponderance of the evidence that their facilities will meet the requirements of RSA 162-H:16, IV.

Susan Geiger

Susan S. Geiger is a shareholder and director of the Concord law firm of Orr & Reno. She is a former NH Public Utilities Commissioner and former member of the NH Site Evaluation Committee.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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