445-RICR-00-00-1
445-RICR-00-00-1. Energy Facility Siting Board Rules of Practice and Procedure (version Amendment, 11/28/2018 to 01/04/2022)
1.1 Authority
These rules and regulations
are promulgated pursuant to R.I. Gen. Laws § 42-98-7(c).
1.2 Energy Facility Siting Board
A. Meetings shall be conducted
pursuant to the provisions of the Rhode Island Open Meetings Act.,
R.I. Gen. Laws § 42-46-1 et seq .
B. Hearings shall be conducted
pursuant to the provisions of the Energy Facility Siting Act, R.I.
Gen. Laws § 42-98-1 et seq ., and the Administrative
Procedures Act, R.I. Gen. Laws § 42-35-1 et seq .
C. Public Information -
Requests for information may be addressed to the Coordinator, Energy
Facility Siting Board, 89 Jefferson Boulevard, Warwick, R.I. 02888.
Public records are available for public inspection and copying at the
offices of the Board from 8:45 to 4:00 p.m. on regular business days.
The Board’s website is http://www.ripuc.org/efsb/index.html .
1.3 Definitions
A. As used in these rules,
except as otherwise required by the context:
1. "Act" means the
Energy Facility Siting Act, R.I. Gen. Laws § 42-98-1 et seq.
as amended.
2. "Advisory opinion"
means the written opinion of a designated agency regarding issues by
the Board for consideration by the designated agency. "Advisory
opinion" shall also mean the written opinions as to need and
socioeconomic impact that are rendered by the Statewide Planning
Program, the Governor's Office of Energy Resources and Division for
each major energy facility.
3. "Agency" means
any agency, council, board or commission of the state of political
subdivision of the state.
4. "Alteration"
means a significant modification to a major energy facility which, as
determined by the Board, will result in a significant impact on the
environment or the public health, safety and welfare. Conversion
from one fuel to another shall not be considered an "alteration".
Maintenance, repair or replacement of poles or transmission
components by an electric utility to maintain the integrity of its
transmission system shall not constitute an alteration, provided that
such construction does not increase the normal carrying capacity of
the transmission line. The construction, modification or relocation
of a power line of 69 kV or more which are less than 1000 feet in
length shall not be treated as an alteration; however, any additional
extension shall constitute an alteration. The construction of a new
power line which is more than 1,000 but less than 6000 feet in length
or the modification or relocation of an existing power line shall not
be an alteration unless the Board determines that the project may
result in a significant impact on the environment or the public
health, safety and welfare. As used herein “modification”
includes reconductoring and rebuilding an existing power line.
5. "Applicant" means
the person or persons making an application, or an application, or on
whose behalf an application is made, to site, construct or alter a
major energy facility in Rhode Island.
6. "Board" means the
Energy Facility Siting Board.
7. "Board license"
means any license issued by the Board to site, construct or alter a
major energy facility.
8. "Chairperson"
means the Chairperson of the Energy Facility Siting Board.
9. "Coordinator"
means the duly appointed Coordinator of the Board or the designee of
the Coordinator.
10. "CRMC" means the
Coastal Resources Management Council.
11. "DEM" means the
Department of Environmental Management.
12. "Designated agency"
means an agency designated by the Board pursuant to R.I. Gen. Laws §
42-98-9 as an agency which shall act at the direction of the Board
for the purpose of rendering advisory opinions.
13. "Division" means
the Division of Public Utilities and Carriers.
14. "Intervenor"
means a person who intervenes in a pending matter or proceeding by
statutory right, by right established by these Rules of Practice and
Procedure or by order of the Board.
15. "License" means
all licenses, permits, assents, variances, special exception and
approvals of any kind which under any state statute or ordinance of
any political subdivision of the state, would be required for siting,
construction or alteration of a major energy facility in the State of
Rhode Island.
16. "Major energy
facility" means any facility for the extraction, production,
conversion and processing of coal; any facility for the generation of
electricity capable of operating at a gross capacity of 40 megawatts
or more; any transmission line with a design rating of 69 kV or over;
facilities for the conversion, gasification, treatment, transfer or
storage of liquefied natural and liquefied petroleum gases; any
facility for the processing, enrichment, storage or disposal of
nuclear fuels and nuclear byproducts; any facility for the refining
of oil, gas or other petroleum products; any facility of 10 megawatts
or greater capacity for the generation of electricity by water power;
any facility associated with the transfer of oil, gas or coal via
pipeline and any energy facility project of the Rhode Island Port
Authority and Economic Development Corporation.
17. "Party" means
the applicant and any person or agency who has, pursuant to these
rules or Board order, intervened in Board proceedings.
18. "Person" means
any individual, partnership, corporation, association, governmental
subdivision, or public or private organization of any character.
19. "Post licensing
permits" means all state and local permits, inspections and
approvals required for the construction or occupancy of a facility
including, without limiting the generality of the foregoing, all
building, construction, electrical, plumbing and occupancy permits
and inspections.
1.4 Appearances and Practice
Before the Board
1.4.1 Appearances
A. All parties to a
proceeding shall be represented by an attorney, unless otherwise
ordered by the Board for good cause shown. Participants, other than
parties, may appear in any proceeding in person or by an attorney.
B. Any person testifying of
making a statement before the Board or the presiding officer may, but
shall not be required to be, accompanied, represented, and advised by
an attorney.
C. All persons appearing
before the Board or the presiding officer must conform to the
standards of ethical conduct required of practitioners before the
courts of Rhode Island.
D. Any person appearing
before or transacting business with the Board in a representative
capacity may be required by the Board or the presiding officer to
file evidence of his authority to act in such a capacity.
1.4.2 Suspension
A. After hearing, the Board
may disqualify and deny, temporarily or permanently, the privilege of
appearing or practicing before it in any way to any person who is
found:
1. not to possess the
requisite qualification to represent others, or
2. to have engaged in
unethical or improper professional conduct, or
3. otherwise not to be
qualified.
B. Contumacious conduct at any
hearing before the Board or a presiding officer shall be ground for
exclusion of any person from such hearing and for summary suspension
for the duration of the hearing by the Board or the presiding
officer.
1.4.3 Ex Parte
Communications
Ex parte
communications shall be governed by R.I. Gen. Laws § 42-35-13.
1.5 Filing Requirements
A. Filing - The filing of all
applications for a license to site, construct or alter a major energy
facility in Rhode Island shall be made with the Coordinator.
B. Contents - The
application shall conform with all requirements of this Part.
C. Other Filings - All other
documents of any kind filed with the Board by any party regarding an
application to site, construct or alter a major energy facility in
Rhode Island shall be filed with the Coordinator and shall state the
name and address and telephone number of the party filing the
document.
D. Certification - Any party
filing documents with the Coordinator shall also file a copy of the
document with each party. The filing shall contain a signed
certification that a copy of the document was mailed postage prepaid
to all parties.
E. Number of Copies - The
original and seven (7) copies of applications and documents shall be
filed with the Coordinator.
1.6 Applications
A. Statement - All
applications shall be in writing and shall clearly state the nature
of the activity for which a Board license is sought and a factual and
legal basis for the Board's authority to grant a Board license.
B. Contents - An application
shall include the following:
1. The exact legal name of the
applicant, if the applicant is a corporation, trust, association or
other organized group, the state or territory under the laws of which
the applicant was created or organized, the location of the
applicant's principal place of business, and the names of all states
where the applicant is authorized to do business.
2. The name, title and post
office address of one person to whom correspondence or communication
in regard to the application is to be addressed. The Board will
serve, where required, all notices, orders and other papers upon the
person so named and such service shall be deemed to be service upon
the applicant.
3. Identification of the
proposed owner(s) of the facility, including identification of all
affiliates of the proposed owners, as such term is defined in R.I.
Gen. Laws § 39-3-27.
4. A detailed description of
the proposed facility including its function and operating
characteristics, and complete plans as to all structures, including,
where applicable, underground construction, transmission facilities,
cooling systems, pollution control systems and fuel storage
facilities associated with the proposed location for the project.
5. Site plan for each proposed
location for the project.
6. The total land area
involved.
7. Project cost.
8. Proposed dates for
beginning of construction, completion of construction and
commencement of service.
9. Where applicable, estimated
number of facility employees.
10. Proposed financing for
construction and operation of the facility.
11. Where applicable, required
support facilities, e.g. road, gas, electric, water, telephone, and
an analysis of the availability of the facilities and/or resources to
the project.
12. A detailed description and
analysis of the impact, including cumulative impact for facilities
other than transmission lines, of the proposed facility on the
physical and social environment on and off site, together with a
detailed description of all environmental characteristics of the
proposed site and a summary of all studies prepared and relied upon
in connection therewith. In the case of transmission facilities,
such description and analysis shall include a review of the current
independent scientific research pertaining to electromagnetic fields
(EMF) and shall provide data on the anticipated levels of EMF
exposure and potential health risks associated with this exposure.
13. All studies and forecasts,
complete with information, data, methodology and assumptions of which
they are based, on which the applicant intends to rely in showing the
need for the proposed facility under the statewide master
construction plan submitted annually.
14. Complete detail as to the
estimated construction costs of the proposed facility, the projected
maintenance and operation costs, the estimated unit cost of energy to
be produced by the proposed facility, where applicable, and the
expected methods of financing the facility. For transmission lines,
the applicant shall also provide estimated costs to the community
such as safety and public health issues, storm damage and power
outages, and estimated costs to businesses and homeowners due to
power outages.
15. A complete life-cycle
management plan for the proposed facility, including measures for
protecting the public health and safety and the environment during
the facility's operations, including plans for the handling and
disposal of wastes from the facility at the end of its useful life.
16. A study of the
alternatives to the proposed facility, including alternatives as to
energy sources, methods of energy production and transmission and
sites for the facility, together with the reasons for the applicant's
rejection of such alternatives. The study shall include estimates of
facility costs and unit energy costs of alternatives considered.
17. Identification of Federal
agencies which may exercise licensing authority over any aspect of
the facility.
18. Identification of state
and local government agencies which may exercise licensing authority
over any aspect of the facility or which could exercise licensing
authority over any aspect of the facility absent the Act.
19. Identification of foreign
governmental agencies which must issue licenses that may affect any
aspect of the facility.
20. All pertinent information
regarding filings for licenses made with federal, state, local
foreign governmental agencies including the nature of the license
sought, copies of the applicable statutes or regulations, and copies
of all documents filed in compliance with 42 U.S.C. §§ 4321
through 4370h, the date of filing and the expected date of decision.
C. Notice of Intent to
Construct or Relocate Power Lines of Less Than 1000 Feet - In the
case of the construction or relocation of a power line of less than
1000 feet with a capacity of 69 kV or more, a notice of intent to
construct such facility shall be filed with the Board and the
councils of any town or city affected by said construction at least
60 days before commencing construction. The notice shall include the
following:
1. Identification of the
proposed owner(s) of the facility including identification of all
affiliates of the proposed owners as that term is defined in R.I.
Gen. Laws § 39-3-27.
2. Detailed description of the
proposed facility including its length, route, function and operating
characteristics, and complete plans as to all structures associated
with the proposed facilities.
3. A statement of reasons why
the filing party believes that such project does not constitute a
major energy facility nor the alteration of a major energy facility.
D. The council of any town
or city affected, and any other intervenor, may elect to file an
objection with the Board within thirty days following the filing of
the Notice of Intent to Construct and Relocate Power Lines of Less
than 1000 feet.
E. The Board shall act upon
the notice, and any objection filed thereto, no later than forty-five
days following the filing of the Notice of Intent to Construct. The
utility, the council of any town or city affected by said
construction, or any other intervenor may appeal the Board's action
to the Rhode Island Supreme Court in accordance with R.I. Gen. Laws §
42-98-12.
F. Notice of Intent to
Construct a Power Line of More Than 1000 Feet but Less Than 6000 Feet
or to Modify or Relocate a Power Line - In the case of the
construction of a power line of more than 1000 feet but less than
6000 feet in length with a capacity of 69 kV or more or the
modification or relocation of a power line with a capacity of 69 kV
or more, a notice of intent for such project shall be filed with the
Board and the council of any town or city affected by said
construction at least 90 days before commencing construction. The
notice shall include the following:
1. Identification of the
owner(s) of the facility including identification of all affiliates
of the proposed owners as that term is defined in R.I. Gen. Laws §
39-3-27.
2. Detailed description of the
proposed facility including its length, route, function and operating
characteristics, and complete plans as to all structures associated
with the proposed facilities.
3. Detailed description and
analysis of the impact of the project on the physical and social
environment. The applicant shall also provide a review of the
current independent scientific research pertaining to electromagnetic
fields (“EMF”) and shall provide data on the anticipated
levels of EMF exposure and potential health risks associated with
this exposure. To the extent the proposed project will have only
negligible impact on any particular resource in the natural and
social environment the applicant may so state and need not provide a
detailed analysis of the baseline conditions for that resource.
4. All studies and forecasts
which demonstrate the need for the proposed facility under the
statewide master construction plan submitted annually.
5. A statement of reasons why
the filing party believes that such project does not constitute a
major energy facility or the alteration of a major energy facility.
G. The Board shall hold a
public hearing in one or more of the cities or towns affected by an
application under § 1.16(F) of this Part, upon such public
notice as the Board shall determine.
H. Following such public
hearing(s) and within sixty (60) days of the filing, the Board shall
determine whether the project may result in a significant impact on
the environment or the public health, safety and welfare and
therefore shall be treated as an alteration. If the Board determines
to treat the proposal as an alteration, it shall docket the
application immediately and shall schedule a preliminary hearing for
the project under § 1.7(H) of this Part. In its decision to
treat a project as an alteration, the Board may limit the issues
which it will consider in the proceedings on the project.
I. Form - To the extent
possible all documents shall be bound and shall be submitted on 8 1/2
inch by 11 inch standard size paper.
J. Additional Information -
The Board may at any time require the applicant, or the party
responsible for filing a notice of intent as described above, to file
additional information.
1.7 Docketing
A. Return of Application -
An application that does not meet the requirements of the Act and
this Part shall not be docketed and shall be returned to the
Applicant together with a concise and explicit written statement of
the application’s deficiencies. Such statement shall be
forwarded to the Board.
B. Resubmission of
Application - A resubmission of an application initially returned
pursuant to § 1.7(A) of this Part shall be docketed within
fifteen (15) days of the filing of the resubmission. The Coordinator
shall send written notice of the docketing date to the Board and the
Applicant together with specification of any continuing deficiencies.
1.8 Notice
A. Notice Required - The
Board shall give, or shall require any party to give, notice of the
commencement of a scheduled hearing in any pending matter to all
parties and to such other persons as the Board designates. After
commencement, a hearing may by adjourned to a subsequent day upon
oral notice to those present at the time of adjournment.
B. Form of Notice - Notice
shall be by first class mail or personal service unless otherwise
specified by the Board and shall be published in The Providence
Journal-Bulletin and another newspaper of general circulation in the
area in which the proposed facility is to be located. Nothing
herein, however, shall limit the power of the Board to order notice
by other means, including but not limited to notice by publication or
notice in periodic bills sent to utility customers.
C. Contents of Notice -
Notice shall include:
1. A statement of the time,
place and nature of the hearing,
2. A statement of the legal
authority and jurisdiction under which the hearing is held;
3. A reference to the
particular sections of any statutes and rules involved and;
4. A short and plain statement
of the matters involved. If at the time notice is given the Board or
the party giving notice is unable to state the matters in detail
which are to be the subject of the hearing, the initial notice may be
limited to a statement of the issues involved and a detailed
statement may be furnished at a later time.
D. Length of Notice - Notice
of a preliminary hearing shall be given at least forty-five (45) days
prior to the beginning of the preliminary hearing. Notice of a final
hearing shall be given at least thirty (30) days prior to the
beginning of the final hearing. Notice of other hearings at which
testimony and evidence shall be taken shall be given at least ten
(10) days prior to the beginning of the hearing.
E. Address - Unless written
notice to the contrary has been received by the Board, notices shall
be sufficient if mailed or delivered to each party at the address
designated by the party on the application, the notice to intervene
or the motion to intervene.
F. Notice - Upon receiving an
application, the Board shall immediately notify in writing the
councils of the towns and cities affected by said construction.
G. The board shall have at
least one public hearing in each town or city affected prior to
holding its own hearings and prior to taking final action on any
application. All details of acceptance for filing in R.I. Gen. Laws
§ 42-98-8(1) through (6) shall be presented at the town or city
hearing for public comment.
H. Prior to the public
hearing, the applicant shall give thirty days' public notice, through
local newspapers, to the citizens in affected towns and cities.
I. Prior to the public
hearing, the applicant shall give thirty days' individual notice, in
writing, by certified mail, postage prepaid, to abutting land owners.
1.9 Preliminary Hearing
A. Purpose - After the
docketing of an application the board shall convene a preliminary
hearing to determine the issues to be considered by the Board in
evaluating application, to designate those agencies which shall act
at the direction of the Board for the purpose of rendering advisory
opinions, and to identify those licenses required by the facility
which are under the direct control of the Department of Environmental
Management (DEM) and Coastal Resources Management Council (CRMC).
B. Notice - Public notice of
the date on which the preliminary hearing shall begin shall be
published within fifteen (15) days of the docketing of the
application. Preliminary hearings shall begin not sooner than
forty-five (45) days after publication of the public notice and not
later than sixty (60) days after the docketing of the application.
C. Testimony - Within the
discretion of the Board, testimony and evidence at the preliminary
hearing may be limited to the identification of issues only.
Presentation of substantive testimony and evidence regarding any
issue may be limited to agency proceedings for the rendering of
advisory opinions of the Board's final hearing.
D. Preliminary Decision/Time -
The Board shall render a preliminary decision within thirty (30) days
of the conclusion of the preliminary hearing, but not later than
forty-five (45) days after the beginning of the preliminary hearing.
E. Preliminary
Decision/Contents
1. Mandatory Issues - The
Board shall consider the ability of the proposed facility to meet the
requirements of the laws, rules, regulations and ordinances under
which, absent the Act, the applicant would be required to obtain a
license.
2. Discretionary Issues - The
Board shall separately identity all issues of any type which in its
discretion it finds should be considered in the Board's final
hearing.
3. DEM and Coastal Resources
Management Council Licenses - The Board shall separately identify all
licenses which the applicant will have to obtain and over which DEM
and the CRMC retain primary authority pursuant to R.I. Gen. Laws §
42-98-7(a).
4. Designation of Agencies
and Issues - The Board shall designate each agency which shall act at
the discretion of the Board for the purpose of rendering advisory
opinions and the Board shall separately identify all licenses and
other issues on which such agencies must render advisory opinions.
5. Advisory Opinions/Time -
The Board shall clearly state the time in which designated agencies
and the Public Utilities Commission and the Statewide Planning
Program must render advisory opinions. In no event shall an agency
render the advisory opinion more than six months after issuance of
the Board's preliminary decision.
6. DEM and CRMC Proceedings -
The Board may request in its preliminary decision or by separate
communication that DEM and CRMC give priority to licenses for energy
facilities over which DEM or CRMC exercise licensing authority
pursuant to delegated authority of federal law, state laws and
regulations which implement such federal law or pursuant to R.I. Gen.
Laws Chapters 2-1 et seq. and 46-23 et seq.
F. Later Designation of
Agencies and Issues - The Board may at any time after the preliminary
decision designate in writing additional agencies to render advisory
opinions and additional issues to be considered by agencies or the
Board.
G. Service - The Coordinator
shall serve by certified mail, return receipt, a true and complete
copy of the preliminary decision on the applicant, all parties to the
preliminary hearing and the Chairperson, Director or Chief Executive
Officer of designated agencies, the Commissioner of the Office of
Energy Resources and any other agency or person designated by the
Board.
H. Expedited Hearings - in the
case on an application which covers only electric transmission lines,
the applicant may file a request for an expedited hearing with its
application. Such request shall include a draft preliminary order
and shall be provided by the applicant to all intervenors. If the
Board grants an expedited hearing, it shall provide in the notice of
hearing that all intervenors and parties seeking to intervene shall
file written comments on the applicant's draft preliminary order not
less than ten days prior to the hearing.
1.10 Intervention
A. Participation in a
proceeding as an intervenor may be initiated as follows:
1. By the filing of a notice
of intervention by CRMC, DEM, the city or town in which the proposed
facility is to be located or designated agencies.
2. By order of the Board upon
a motion to intervene
B. Who May Intervene -
Subject to the provisions of this Part, any person claiming a right
to intervene or an interest of such nature that intervention is
necessary or appropriate may intervene in any proceeding before the
Board. Such right or interest may be:
1. A right conferred by
statute.
2. An interest which may be
directly affected and which is not adequately represented by existing
parties and as to which petitioners may be bound by the Board's
action in the proceeding.
3. Any other interest of such
nature that petitioner's participation may be in the public interest.
C. Form and Contents of
Motion to Intervene - A motion to intervene shall set out clearly and
concisely facts from which the nature of the movant's alleged right
or interest can be determined, the grounds of the proposed
intervention, and the position of the movant in the proceeding.
D. Filing and Service of
Motions to Intervene
1. A motion to intervene or
notice of intervention in a preliminary hearing or a final hearing
shall be filed not less than twenty (20) days before the date on
which preliminary or final hearing begins.
2. A notice to intervene in a
preliminary hearing or an order granting intervention in a
preliminary hearing shall confer intervenor status in the final
hearing without additional notice of intervention or motion.
3. For good cause shown the
Board may authorize the filing of a late notice of intervention or
motion to intervene.
4. Intervention in Board
hearings shall in no way affect the right of any party to intervene
in proceedings and hearings conducted by DEM, CRMC and designated
agencies.
5. Service of a notice of
intervention or motion to intervene shall be made in accordance with
§ 1.17 of this Part.
1.11 Advisory Opinions
A. Advisory Opinion - Each
designated agency shall render its advisory opinion, to the extent
possible, pursuant to procedures that would be followed absent Board
designation of the agency. Where necessary an agency shall modify
its procedures to conform to the requirements of the Act, these Rules
of Practice and Procedure and the preliminary decision of the Board.
B. Limitation of Agency
Investigation - The Board shall limit the scope of any designated
agency's investigation of any issue to be considered by the Board
when it finds that more than one agency has jurisdiction over the
issue in the hearing process. Such limitation shall be expressly
stated in writing, shall identify the agency which shall address the
issue in its advisory opinion and shall be based on the Board's
consideration of the relative expertise and resources of the agencies
having concurrent jurisdiction and any other pertinent matter.
C. Form of Advisory Opinion -
A designated agency's advisory opinion shall conform with the Rhode
Island Administrative Procedures Act requirements regarding Decisions
and Orders. The advisory opinion shall be clearly identified as an
advisory opinion issued to the Board for consideration at the Board's
final hearing.
D. Time - An advisory opinion
shall be rendered not more than six (6) months following the Board's
designation of the agency or within such lesser time as the Board may
in writing require.
E. Forfeiture - A designated
agency's right to issue an advisory opinion shall be forfeited to the
Board if the designated agency does not render an advisory opinion
within the time limits established above.
1.12 Final Hearings
A. Purpose - After the time in
which advisory opinions must be submitted, the Board shall convene a
final hearing which shall provide the applicant, intervenors, the
public and all other parties the opportunity to address in a single
forum and from a consolidated statewide perspective, the issued
reviewed and the recommendations made in the proceedings before
designated agencies and DEM and CRMC.
B. Notice - Public notice of
the date on which the final hearing shall begin shall be published
within fifteen (15) days of the date on which advisory opinions must
be submitted. Final hearings must commence not later than forty-five
(45) days after the date on which advisory opinions must be
submitted.
C. Testimony & Evidence -
Not later than ten (10) days before the commencement date for the
final hearing, each party shall file with the Coordinator all direct
testimony in writing and copies of all documents and other evidence
that the party proposes to introduce at the final hearing. Except
for good cause shown, the Board will not receive direct testimony,
documents or other evidence that has not been prefiled as required
above. The Board may limit the presentation of repetitive or
cumulative evidence and, except for good cause shown, shall not
rehear evidence which was presented previously in proceedings before
designated agencies and DEM and CRMC.
D. Participation of the
Parties in Agency Proceedings
1. Notwithstanding the
provisions of this Part, parties shall have the obligation to present
all relevant testimony and evidence and to fully participate in
designated agency proceedings held pursuant to a preliminary decision
of the Board and in DEM and CRMC proceedings regarding licenses for
energy facilities which are exercised pursuant to delegated authority
of federal law, pursuant to state law and regulations which implement
such federal or state laws.
2. The Board may limit or
prohibit the presentation of testimony and evidence regarding issues
addressed in a designated agency's advisory opinion or in a DEM or
CRMC proceeding regarding licenses for energy facilities. The Board
shall consider the relevance of such testimony or evidence to the
advisory opinion and grant or denial of a Board license, whether the
testimony or evidence could have been presented by the party at the
designated agency, DEM of CRMC proceeding, whether the rights
participants in the designated agency, DEM or CRMC will be prejudiced
by receipt of the testimony or evidence and any other factor deemed
relevant by the Board.
E. Cross Examination - The
legal counsel of each party only shall be allowed to cross examine
each witness testifying before the Board, unless otherwise ordered by
the Board for good cause shown.
F. Rebuttal Testimony -
Rebuttal testimony may be allowed at the discretion of the Board
subject to filing requirements set by the Board as to time, form and
issues.
G. Board Witness -
Notwithstanding the requirements for prefiled written direct
testimony the board shall have the right to call and examine any
witness at any time which may assist the Board in rendering its final
decision.
H. Public Comment - The Board
shall allow comment by the public subject to such scheduling and
length restrictions as the Board deems necessary and reasonable.
I. Time - Presentation and
receipt of testimony and evidence shall be concluded not more than
sixty (60) days after the initial hearing date.
J. Briefs - The Board may
require the submission of Briefs regarding issues to be addressed by
the Board.
1.13 Final Decision
A. Time - The Board shall
issue its Final Decision not later than one hundred twenty (120) days
after the commencement of final hearings or not later than sixty (60)
days after all testimony and evidence has been received, whichever
time period is shorter.
B. Form - The Final Decision
shall conform to the Rhode Island Administrative Procedures Act
requirements regarding Decisions and Orders.
C. Findings - The Board shall
make specific findings regarding and shall grant a Board License only
upon a finding that the applicant has shown that:
1. Construction of the
proposed facility is necessary to meet the needs of the state and/or
region for energy of the type to be produced by the produced
facility,
2. The proposed facility is
cost-justified,
3. The proposed facility can
be expected to produce energy at the lowest reasonable cost to the
consumer consistent with the objective of ensuring that the
construction and operation of the proposed facility will be
accomplished in compliance with all of the requirements of the laws,
rules, regulations, and ordinances, under which, absent the Act, a
license would be required, or that consideration of the public
health, safety, welfare, security and need for the proposed facility
justifies a waiver or some part of such requirements when compliance
therewith cannot be assured,
4. The proposed facility will
not cause unacceptable harm to the environment, and
5. The proposed facility will
enhance the socioeconomic fabric of the state.
D. Effect - The grant of a
Board License in favor of the application shall constitute a granting
of all licenses which would, absent the Act, be required for the
facility except for building, construction and occupancy permits for
which final designs will not be executed until after the final
decision is issued, and for other state or local licenses that may,
by their nature, be applied for and/or received after a Board License
is granted. The Final Decision of the Board shall specifically
identify all such licenses that have been granted pursuant to the
Board License.
E. Conditions and
Modifications - As a precondition for the grant of a Board License,
the Board may require any modification or alteration to the proposed
facility and may place conditions on the grant of the Board License.
A Board license may be issued conditionally upon the applicant's
receipt of federal licenses.
1.14 Post Licensure Proceedings
A. Post Licensing Permits
1. Generally - An applicant
must apply for and receive all applicable permits over which the
Board has authority and which would be required absent the Act. Such
permits are not deemed granted by the Board License. The Board
retains final permitting authority for such permits under the Act and
considers action by local or state officials or agency on such
applications to be advisory opinions.
2. Meeting Mandated - After
applying for local building permits, the Applicant shall arrange for
and attend a meeting with the issuing authority and representative of
the State Building Code Commission to assure that the issuing
authority can arrange for any assistance it may need in reviewing the
final design drawings and plans for the applicant's energy facility.
Such assistance will be made available, if needed, by the State
Building Code Commission. The Coordinator shall be given notice of
such meeting.
3. Filing of Advisory Opinions
- After an advisory opinion is issued on an application for any post
licensing permit by the state or local official or agency having
authority over such permit, the applicant shall file the advisory
opinion with the Board. If the applicant is aggrieved by the
advisory opinion, it may file a statement with the Board expressing
its disagreement and explaining the reasons therefore. If a local or
state official or agency fails to process an application for a post
licensing permit within a reasonable period of time, the applicant
may file a statement of that fact with the Board along with any other
pertinent information concerning the failure to process.
4. Statement of Disagreement
with an Advisory Opinion - A statement of disagreement or failure to
process under § 1.14(A)(3) of this Part shall be filed with the
Board in compliance with § 1.5 of this Part. The Board may
schedule a hearing to consider any such statement under § 1.9 of
this Part. The Board may delegate an existing agency or authority
with appropriate expertise to investigate such matters and to testify
at a hearing.
5. Granting of Building
Permits by Board - The filing of an Advisory Opinion on a post
licensing permit by the applicant under § 1.14(A)(3) of this
Part constitutes a granting by the Board of that permit unless said
advisory opinion does not recommend that the Board grant the permit,
or unless said advisory opinion is accompanied by a Statement of
Disagreement under §§ 1.14(A)(3) and (4) of this Part. If a
disagreement exists, the Board will, after consideration of the
filing or after a hearing under these rules, issue an order. Such
order may grant such building permit or may accept the advisory
opinion without change. The Board may also alter or modify an
advisory opinion after consideration of the filing or after hearing
in any way it deems necessary, before granting such permit(s).
B. Oversight of Construction
and Start-Up of Facility
1. Consultants to Board -
During the construction period, the period of plant start-up, and a
reporting period to follow, the Board may hire such consultants, or
may delegate an existing agency or authority with appropriate
expertise as it deems necessary, to visit the plant and plant site to
determine if construction, construction practices, operation or
operational practices are in compliance with the terms of the Board's
license. Specifically the Board's consultant shall be responsible
for aspects of the Board's license that are not overseen or monitored
by existing state or local agencies. The applicant shall pay any and
all reasonably incurred fees of such consultants. The Board shall
provide a copy of the executed contract between the Board and the
consultant to the applicant. The applicant may object to the
reasonableness of the contract, including reasons therefore, in
writing to the Board within 30 days. The Board shall consider such
objection and respond to the applicant within 30 days of receipt of
the objection. Fees paid to consultants under this section shall be
limited to $20,000 unless an amount in excess of $20,000 is agreed
upon by the applicant and the Board.
2. Consultant Reporting
Requirements - Said consultants shall report to the Board
periodically as the Board sees fit but at least on a monthly basis.
If a consultant finds the applicant in noncompliance with the terms
of the Board's license, he or she shall report to the Board
immediately.
3. Verbal Cease and Desist
Order - The Chairperson, or in his or her absence, any member of the
Board, may issue a verbal cease and desist order to an applicant to
halt any aspect of construction or operation of the plant if there is
reasonable cause to believe that irreversible damage to the
environment will result from an act by the applicant or his agent of
noncompliance with the terms of the Board's license. Such order may
be rescinded by the issuing Board member or a majority of the Board
if the problem is corrected. Any verbal cease and desist order must
be followed by a written cease and desist order by the Board in
compliance with § 1.15(B)(2) of this Part as soon as possible,
but no later than the next business day following the verbal cease
and desist order.
4. Report of Applicant After
Start-Up - Following successful start-up of the Energy Facility, the
applicant shall file a final report to the Board stating that the
facility has been constructed in compliance with the terms of the
Board's license. Such report should note any exceptions or instances
of noncompliance. The Board's consultant shall review the report and
file his or her comments to the Board.
5. Board Consideration - The
Board will meet in open session to consider the final report if it
considers a meeting necessary. The Board may accept the final report
with or without such a meeting, or alternatively, may issue a "show
cause" order under § 1.15(B)(3) of this Part.
6. Noncompliance - Failure of
the applicant to comply with this section shall be considered a
failure to comply with the Board license to site under §
1.15(B)(1) of this Part.
1.15 Suspension of Proceedings and
Suspension or Revocation of Board License
A. Board Proceedings
1. Generally - Failure of the
applicant to comply with any duly promulgated board rule, regulation,
requirement or procedure for the licensing of energy facilities or
failure to pay lawfully assessed expenses shall constitute grounds
for suspension of licensing proceedings.
2. Suspension Hearings - Prior
to the suspension of licensing proceedings the Board shall issue a
written "Show Cause" order setting a date on which the
applicant must appear before the Board to show cause why the
licensing proceedings should not be suspended. The "Show Cause"
shall specifically state the alleged non-compliance. A "Show
Cause" hearing shall be scheduled not later than ten (10) days
and not sooner than forty-eight (48) hours after the issuance of a
"Show Cause" Order.
3. Suspension Order - After a
"Show Cause" Hearing, the Board may in writing at any time
without additional hearing or prior notice suspend licensing
proceedings if the noncompliance addressed at the "Show Cause"
Hearing is not rectified.
4. Tolling - Suspension shall
toll the Act's time limits for beginning and completing hearings and
for rendering decisions.
5. Cancellation of Suspension
- The Board may in writing at any time cancel a suspension of Board
proceedings if the noncompliance has been rectified or is no longer
of consequence to the parties and the Board.
6. Time Limits - After a
suspension is canceled, counting of the statutory time limits for
beginning and completing hearings and for rendering decisions shall
resume at the point in which the suspension occurred or, if the Board
finds it necessary to the orderly conduct of the proceedings, at the
beginning of any statutory time period.
7. Initiation - The Board may
issue a "Show Cause" Order at the request of a party or on
the Board's own motion.
8. Noncompliance Order -
Nothing in this section shall limit the authority of the Board to
issue orders to remedy noncompliance with these rules, a Board
License, licenses, the Act or orders of the Board.
B. Board License
1. Generally - Failure of the
applicant to comply with any provision, condition or limitation
contained in a Board License to site, construct, or alter a major
energy facility, failure to comply with a Cease and Desist order
issued by the Board, failure to pay lawfully assessed expenses, or
failure to comply with a Board order to remedy a noncomplying action
shall be grounds for suspension or revocation of a Board License.
2. Cease and Desist Order -
The Board may issue in writing a "Cease and Desist" Order
to rectify noncompliance with the Act, a Board License, or rule or
order of the Board at any time with or without prior hearing upon
motion of any party or on the Board's own motion. If a "Cease
and Desist order" is issued without prior hearing, the applicant
may within five (5) days of receipt of the "Cease and Desist
Order" request a hearing at which the applicant and any other
party may present testimony and evidence to show that the "Cease
and Desist Order" should, or should not, be dissolved.
3. Suspension or Revocation
Hearing and Order - Prior to the suspension or revocation of a Board
License the Board shall issue a written "Show Cause" order
setting a date on which the applicant must appear before the Board to
show cause why the Board License should not be suspended or revoked.
The content of a "Show Cause" order and the procedure for a
"Show Cause" hearing shall follow the requirements set out
in § 1.15(A) of this Part.
4. Canceling of Suspension -
The Board may in writing at any time cancel suspension of a Board
License if the grounds for the suspension have been rectified. A
revocation may not be canceled.
1.16 Judicial Review
A. Preliminary Decision and
Advisory Opinions - The preliminary decision of the Board and
advisory opinions of designated agencies are interlocutory decisions
for which judicial review is not available until the Board issues its
Final Decision.
B. Final Decision, Judicial
Review - Judicial review of a Board decision is governed by R.I. Gen.
Laws § 42-98-12.
C. Judicial Review of Rules -
The validity or applicability of any rule of the Board may be
determined in an action for declaratory judgment in the Superior
Court of Providence County, when it is alleged that the rule, or is
threatened application, interferes with or impairs, or threatens to
interfere with or impair, the legal rights and privileges of the
plaintiff. The Board shall be made a party to the action.
1.17 Motions
A. General - Other than oral
motions made during a hearing, any application to the Board to take
any action or to enter any order after commencement of a proceeding
or after commencement of an investigation by the Board shall be made
in writing, shall be filed with the Coordinator, shall state
specifically the grounds therefor, shall set forth the action or
order sought, and shall be served upon all person entitled thereto by
these rules.
B. Delay of Proceeding -
Except as otherwise directed by the Board, the filing of a motion,
either prior to or during any proceeding, and any action thereon,
shall not delay the conduct of such proceeding.
C. Objections - Any party
objecting to a written motion filed pursuant to this rule shall
within five (5) days of the service of the motion, file an objection
thereto in writing setting forth in detail the grounds for the
objection. The time for filing objections may be varied by order of
the Board.
1.18 Time
A. Computation of Time -
Except as otherwise provided by law, in computing any period of time
prescribed or allowed by any rule, regulation, or order of the Board,
or by any applicable statute, the day of the act, event, or default
from or after which the designated period of time begins to run shall
not be included, but the last day of the period so computed shall be
included, unless it is a Saturday, Sunday, or a legal holiday in
Rhode Island, in which event the period shall run until the end of
the next day which is not a Saturday, Sunday, or a holiday.
B. Extension of Time -
Except as otherwise provided, whenever by any rule, regulation, or
order of the Board, or any notice given thereunder, an act is
required or allowed to be done at or within a specified time, the
time fixed or the period of time prescribed may, for good cause, be
extended upon motion made before expiration of the period originally
prescribed or as previously extended, and upon motion made after the
expiration of the specified period, the act may be permitted to be
done, where reasonable grounds are shown for the failure to act.
C. Continuances - Except as
otherwise provided by the Act, the Board may, for good cause at any
time, with or without motion, continue or adjourn any hearing. A
hearing before the Board shall begin at the time and place fixed in
an order or a notice, but thereafter may be adjourned from time to
time or from place to place by the Board.
D. Requests for Time
Extensions - Except as otherwise provided by law, requests for
extensions of time in which to perform any act required or allowed to
be done at or within as specified time by any rule, regulation, or
order of the Board, shall be by motion in writing, timely filed with
the Board, stating the facts on which the application rests, except
that during the course of a hearing in a proceeding, such requests
may be made by oral motion. Written motions filed under this section
shall conform to the requirements of § 1.17 of this Part.
1.19 Formal Requirements as to
Applications, Petitions, Motions and Other Papers Filed in
Proceedings.
A. Title - All papers filed
with the Board in any proceeding shall clearly show the docket
designation and title of the proceeding before the Board. The
initial application or petition filed shall also show, in the title,
the names of all persons in whose behalf the filing is made. If more
than one person is involved, a single name only need by included in
the title of subsequent papers filed.
B. Signature - Except as may
be otherwise required by the Board, the original copy of each
application, petition, protest, motion, objection, brief, rate
schedule, notice, report, statement and other paper or amendment
thereto, shall be signed by the party in interest, or by its
attorney, as required by these rules, and shall show the office,
address and telephone number of the same. All other copies filed
shall be fully conformed thereto.
C. Effect of Signature - The
signature of the person, officer or attorney on any paper filed with
the Board constitutes a certification by such individual that he or
she has read the paper being subscribed and filed, and knows the
contents thereof, that if executed in any representative capacity,
the matter has been subscribed and executed in the capacity specified
upon the pleading or matter filed with full power and authority to so
do, that the contents are true as stated, except as to matters and
things, if any stated on information and belief, and that those
matters and things are believed to be true.
1.20 Service
A. Service Upon Parties - A
copy of all pleadings and other documents filed in any proceeding
governed by these rules shall be served upon all other parties. If a
party appears after the original documents have been filed, a copy of
all papers previously filed shall be furnished to such person if the
person so requests. Service shall also be effected on any other
person designated to receive service by the Board, member of the
Board, or the Coordinator.
B. Manner of Service - Unless
otherwise ordered by the Board, service under these rules shall be
made upon a party or participant or upon his or her attorney, if an
appearance has been entered, by first class mail postage prepaid or
by hand-delivery to his or her place of business.
C. Date of Service - The date
of service shall be the day when the matter served is deposited in
the mail, or is delivered in person, as the case may be. In
computing the time from such date, the provisions of § 1.18 of
this Part shall apply.
D. Certificate of Service -
There shall accompany and be attached to the original of each paper
filed with the Board in a proceeding, when service is required to be
made, a certification of service.
1.21 Assessment of Expenses
A. Responsibility - An
applicant shall be charged with and shall pay the expenses reasonably
incurred by the Board and Designated Agencies for hearing and
investigation relating to the applicant's application.
B. Payment - The Board in its
discretion may require prepayment of such expenses or a portion of
such expenses. The amount of prepayment shall be based on the
Board's best estimate of expenses to be incurred for stenographers,
engineers, chemists, accountants, legal counsel, expert witnesses,
travel and materials for the hearing or investigation. Payment shall
be made by the applicant within thirty (30) days after the rendition
of the bill.
C. Deposit of Prepayment -
Monies prepaid shall be deposited in an interest-bearing account and
shall be drawn on as needed by the Board or the Coordinator to
satisfy expenses actually incurred.
D. Accounting of Prepayment -
A complete accounting of monies prepaid by the applicant and charges
made against prepayments shall be kept by the Coordinator and shall
be available to the applicant upon request.
E. Return of Prepayment -
Any monies prepaid and not expended shall be promptly returned to the
applicant with appropriate interest after the end of Board
proceedings after there has been an accounting of all Board and
Designated Agency expenses.
1.22 Pre-Hearing Procedure
A. Generally
1. At any time subsequent to
the filing of an application, the Board, on its own motion or at the
request of any party, may hold a prehearing conference, for the
purpose of determining a date for the close of discovery, simplifying
issues, considering admissions of fact and documents, limiting the
number of expert witnesses, scheduling the filing of exhibits,
testimony, and briefs, scheduling public hearings and such other
matters as the Board shall deem appropriate.
2. At or before a pre-hearing
conference, the Board may order a party to file copies of exhibits,
names and addresses of all witnesses it intends to call in its direct
case, together with a short statement of the purposes of each exhibit
and of the testimony of each witness. After the entry of such an
order, a party shall not be permitted, except in the discretion of
the Board, to introduce into evidence in its direct case exhibits
which are not filed in accordance with the order.
3. At the conference the Board
may also designate a date before which it requires any party in
interest to specify what items shown by filed exhibits are conceded.
Further proof of such conceded items will not be required.
1.23 Hearings
A. Generally
1. Except as permitted or
required by law, all hearings shall be public. The Board may,
however, limit the number of spectators and participants to the
extent that safety and good order require. The Board may also eject
or bar the admission of any person who disrupts or threatens to
disrupt a public hearing.
2. All hearings shall be held
at the offices of the Board, unless by statute or order of the Board
a different place is designated.
3. The hearing shall be
conducted by a presiding officer who shall be the Chairperson or a
Board member appointed by the Chairperson. The presiding officer,
any Board member, or the Coordinator may administer oaths and
affirmations, and the presiding officer shall make all decisions
regarding the admission or exclusion of evidence or any other
procedural matters which may arise in the course of the hearing.
4. Parties shall have the
right of presentation of evidence, cross-examination, objection,
motion and argument. The Board and, Board counsel may examine
witnesses and require additional testimony.
5. The Board or the presiding
officer may limit appropriately the number of expert witnesses that
may be heard upon any issue.
6. At any stage of the hearing
the Board or the presiding officer may call for further evidence upon
any issue, and require such evidence to be presented by the party or
parties concerned, either at that hearing or adjournments thereof.
At the hearing, the Board or the presiding officer may, if deemed
advisable, authorize any participant to file specific documentary
evidence as part of the record within a fixed time, expiring not less
than ten (10) days before the date fixed for filing and serving
briefs.
B. Testimony
1. All direct testimony may be
presented orally or in writing. Unless otherwise directed by the
presiding officer, written testimony when properly authenticated by
the witness under oath, may be transcribed into the record or
admitted as an exhibit.
2. Written testimony shall be
prepared in question and answer form, shall contain a statement of
the qualifications of the witness, shall be signed under oath, and
shall be accompanied by any exhibits to which it relates. Such
written testimony shall be subject to the same rules of admissibility
and cross-examination of the sponsoring witness as if it were
presented orally.
3. Cross-examination of the
witness presenting such written testimony shall proceed at the
hearing at which it is authenticated if, not less than ten (10) days
prior to the hearing, service of the written testimony has been made
upon each party of record, unless the presiding officer or the Board
directs otherwise.
C. Objections - When
objections to the admission or exclusion of evidence before the Board
or the presiding officer are made, the grounds relied upon shall be
stated briefly. Formal exception to adverse rulings of the Board are
not necessary.
D. Hearing Record
1. Hearings shall be
stenographically reported by the official reported of the Board, and
a transcript of the hearing shall be a part of the record. Such
transcript shall include a verbatim report of the hearing; nothing
shall be omitted therefrom except as is directed on the record by the
Board or the presiding officer.
2. The record in a proceeding
shall close after the filing of briefs by the parties and thereafter
there shall not be received in evidence or considered as part of the
record any document, letter or other evidence submitted except as
provided in § 1.23(A)(6) of this Part, or changes in the
transcript as provided in § 1.24(B) of this Part.
1.24 Copies of Transcripts
A. Availability in Public
Hearings - The Board will cause to be made a stenographic or
electronic record of all public hearings and such transcripts thereof
as it requires for its own purposes. Persons desiring a transcript
may obtain the same from the official reporter upon payment of the
fees fixed therefor.
B. Transcript Corrections -
Corrections in the official transcript may be made only to make it
conform to the evidence presented at the hearing. Transcript
corrections agreed to by opposing attorneys may be incorporated into
the record, if and when approved by the presiding officer, at any
time during the hearing, or after the close of evidence, but not more
than ten (10) days from the date of receipt of the transcript. The
presiding officer may call for the submission of proposed corrections
and may make disposition thereof at appropriate times during the
course of the proceeding.
1.25 Witnesses
A. Oral Examination -
witnesses shall be examined orally unless the testimony is taken by
deposition as provided in § 1.27 of this Part or the facts are
stipulated or the testimony is submitted in prepared written form as
provided in § 1.23(B) of this Part. Witnesses whose testimony is
to be taken shall be sworn, or shall affirm, before their testimony
shall be deemed evidence in the proceeding or any questions are put
to them.
B. Expert Witnesses -
Witnesses subpoenaed by the Board shall be paid the same fees and
mileage as are paid for like services in the courts of Rhode Island.
Witnesses subpoenaed at the instance of a party shall be paid the
same fees by the party at whose instance the witness is subpoenaed
and the Board before issuing any subpoenas as provided in § 1.26
of this Part, may require a deposit of an amount adequate to cover
the fees and mileage involved.
1.26 Subpoenas
A. Issuance - Subpoenas for
the attendance of witnesses or for the production of documentary
evidence, unless directed by the Board upon its own motion, will
issue only upon motion in writing to the Board or the presiding
officer, except that during sessions of a hearing in a proceeding,
such motion may be made orally on the record before the Board or
presiding officer, who is hereby given authority to determine the
relevancy and materiality of the evidence sought and to issue such
subpoenas in accordance with such determination. Such written motion
shall be verified and shall specify as nearly as may be possible the
general relevance, materiality, and scope of the testimony or
documentary evidence sought, including, as to documentary evidence,
specification as nearly as may be of the documents desired and the
facts to be proven by them in sufficient detail to indicate the
materiality and relevance of such documents.
B. Service and Return -
Service shall be made by a Rhode Island sheriff, his deputy or other
disinterested party designated by the Board or the presiding officer.
If service of subpoena is made by a Rhode Island sheriff or his
deputy, such service shall be evidenced by his return thereof; if
made by another person, such person shall make affidavit thereof,
describing the manner in which service is made, and shall return such
affidavit on or with the original subpoena. In case of failure to
make service, the reasons for the failure shall be stated on the
original subpoena. In making service, a copy of the subpoena shall
be exhibited to and left with the person to be services. The
original subpoena, bearing or accompanied by the authorized return,
affidavit, or statement, shall be returned forthwith to the
Coordinator, or if so directed on the subpoena, to the presiding
officer before whom the person named in the subpoena is required to
appear.
C. Fees of Witnesses -
Witnesses who are subpoenaed shall be paid fees as provided in §
1.25 of this Part.
1.27 Deposition and Data Requests
A. Depositions
1. For good cause shown, the
testimony of any witness may be taken by deposition, upon application
by motion of any party in a proceeding pending before the Board, at
any time before the hearing is closed.
2. The motion shall state the
name and address of the proposed deponent, the subject matter to
which the deponent is expected to testify, the reasons why the
deponent cannot appear before the Board to testify in person, and the
date, time and place of the proposed deposition. objection to the
motion, if any, shall be made in accordance with § 1.17(C) of
this Part.
3. If authorized, the
deposition shall proceed in the same manner and pursuant to the same
procedures as govern depositions in the Superior Court of the State
of Rhode Island.
B. Data Requests
1. In any proceeding pending
before the Board, the Board and any party may request such data,
studies, workpapers, reports, and information as are reasonable,
relevant to the proceeding and are permitted by these rules and/or
statute.
2. Data requests shall be in
writing, shall be directed to the party or its attorney, and shall
specify in as much detail as possible the material requested. Any
requested material or portion thereof to which objection is not made
as set forth below shall be produced for the requesting party as soon
as practicable and in no event later than fifteen (15) days after
service of the request, unless the time for production is otherwise
shortened or extended by agreement or order.
3. Objection to a data request
in whole or in part on the ground that the request is unreasonable
and/or the material is not relevant or not permitted or required by
law shall be made by motion filed as soon as practicable and in no
event later than five (5) days after service of the request. The
motion shall include the portions of the data request objected to and
shall set forth in detail the basis for the objection. Objections to
such motion shall be filed in compliance with § 1.17(C) of this
Part. The Board shall thereupon determine by order the validity of
the request and shall establish a date for compliance. The relevancy
of such a request shall be determined under the standards established
for such determinations under Rule 26 of the Superior Court Rules of
Civil Procedure.
4. The failure of a party to
comply with a data request or a Board order related thereto may, at
the discretion of the Board, be grounds for striking any testimony
offered by the nonresponding party related to such request.
1.28 Stipulations
A. Presentation and Effect -
The parties may stipulate as to any relevant matters of fact or the
authenticity of any relevant documents. Such stipulations may be
received in evidence at a hearing, and when so received in evidence
at a hearing, shall be binding on the parties with respect to the
matters therein stipulated.
B. Form, Style and Service -
Stipulation shall conform to the applicable requirements of §§
1.19 and 1.20 of this Part, except stipulations made orally on the
record during hearings.
1.29 Rules of Evidence - Official
Notice
A. Rules of Evidence - In all
proceedings wherein evidence is taken, irrelevant, immaterial or
unduly repetitious evidence shall be excluded. While the rules of
evidence as applied in civil cases in the Superior Courts of this
state shall be followed to the extent practicable, the Board shall
not be bound by technical evidentiary rules, and, when necessary to
ascertain facts not reasonable susceptible of proof under the rules,
evidence not otherwise admissible may be submitted, unless precluded
by statute, if it is of a type commonly relied upon by reasonably
prudent men in the conduct of their affairs. The rules of privilege
recognized by law shall apply. Objections to evidentiary offers may
be made and shall be noted in the record. Subject to these
requirements, when a hearing will be expedited and the interests of
the parties will not be prejudiced substantially, any part of the
evidence may be received in written form.
B. Exhibits Copies - In all
cases wherein evidence is taken, documentary evidence may be received
in the form of copies or excerpts, if the original is not readily
available. Upon request, parties shall be given an opportunity to
compare the copy with the original.
C. Administrative Notice - In
all proceedings wherein evidence is taken, notice may be taken of
judicially cognizable facts. In addition, notice may be taken of
generally recognized technical or scientific facts within the Board's
specialized knowledge, but parties shall be notified either before or
during the hearing, or be reference in preliminary reports or
otherwise, of the material noticed, including any report or data
required by law or regulation to be filed with the Board and they
shall be afforded an opportunity to contest the material so noticed.
The Board's experience, technical competence, and specialized
knowledge may be utilized in the evaluation of evidence.
1.30 Briefs, Oral Arguments, and
Proposed Findings and Orders
A. Briefs and Memoranda of
Law
1. Unless waived by the
parties with the consent of the Board or the presiding officer,
whether oral argument be heard or not, at the close of the taking of
the testimony in each proceeding, or at such other time during the
proceeding as the Board shall deem appropriate, the Board or the
presiding officer shall fix the time for the filing and service of
briefs or memoranda of law, giving due regard to the nature of the
proceeding, the magnitude of the record, and the complexity or
importance of the issues involved and shall fix the order in which
such briefs shall be filed. The first or initial brief shall be
filed by the party or parties upon whom rests the burden of proof,
except that the Board or the presiding officer, when its judgment the
circumstances or exigencies require, may direct that briefs or
memoranda shall be filed simultaneously. The party upon whom rests
the burden of proof shall have the right to file a reply brief.
2. Briefs should contain:
a. a concise statement of the
case,
b. an abstract of the
evidence relied upon by the party filing, preferably assembled by
subjects, with references to the pages of the record or exhibits
where the evidence appears, and
c. proposed findings of fact
and conclusions, together with the reasons and authorities therefor,
separately stated.
B. Exhibits should not be
reproduced in the brief, but may, if desired, be reproduced in the
appendix to the brief. Any analysis of exhibits relied on should be
included in the part of the brief containing the abstract of evidence
under the subjects to which they pertain. Every brief of more than
twenty (20) pages shall contain a subject index, with page
references, and a list of all cases cited, alphabetically arranged,
with references to the pages where the citations appear. All briefs
shall be as concise as possible and shall in all other aspects
conform to the requirements of §§ 1.19 and 1.20 of this
Part.
C. Briefs not filed and served
on or before the dates fixed therefor shall not be accepted for
filing, except by special permission of the Board or the presiding
officer. All briefs shall be accompanied by a certificate showing
service upon all parties or their attorneys who appeared at the
hearing or on brief, and except where filing of a different number is
permitted or directed by the Board or presiding officer, seven (7)
copies of each brief shall be furnished for the use of the Board.
D. Oral Argument - When, in
the opinion of the Board or the presiding officer, time permits and
the nature of the proceedings, the complexity or importance of the
issues of fact or law involved, and the public interest warrant, the
presiding officer may, either of his own motion or at the request of
a party at or before the close of the taking of testimony, allow and
fix a time for the presentation of oral argument, imposing such
limits or time on the argument as deemed appropriate in the
proceeding. Such argument shall be transcribed and bound with the
transcript of the testimony.
1.31 Reopening Proceedings
A. By Parties
1. Except as provided in §
1.31(A)(3) of this Part, at any time after the conclusion of a
hearing in a proceeding, but before issuance of a decision, any party
to the proceeding may, for good cause shown, move to reopen the
proceedings for the purpose of taking additional evidence. Copies of
such motion shall be served upon all participants or their attorneys
of record, and shall set forth clearly the facts claimed to
constitute grounds requiring reopening of the proceedings, including
material changes of fact or law alleged to have occurred since the
conclusion of the hearing, and shall in all other respects conform to
the applicable requirements of §§ 1.17 through 1.20 of this
Part.
2. Within ten (10) days
following the service of such motion, or such shorter or longer time
as the Board or the presiding officer may order, any other party to
the proceedings may file an objection thereto, and in default thereof
shall be deemed to have waived any objections to the granting of such
petition.
3. The Board will not consider
any motion to reopen filed within ten (10) days before the expiration
of the time in which the Board must issue a Final or Preliminary
Decision.
B. By the Board - At any time
prior to the filing of a decision, after notice to the parties and
opportunity to be heard, the Board may reopen the proceeding for the
receipt of additional evidence on its own motion, if the Board has
reason to believe that conditions of fact or of law have so changed
as to require, or that the public interest requires, the reopening of
such proceeding.
1.32 Relief from Order
A. Clerical Mistakes -
Clerical mistakes in orders or other parts of the record and errors
therein arising from oversight or omission may be corrected by the
Board at any time on its own initiative, or on motion of any party
and after such notice as the Board orders. During the pendency of an
appeal, such mistakes may be so corrected before the appeal is
docketed in the Supreme Court and thereafter while the appeal is
pending may be so corrected with leave of the Supreme Court.
B. Mistake, Inadvertence,
Excusable Neglect, Newly Discovered Evidence, Fraud, Other - On
motion and upon such terms as are just, the Board may relieve a party
from a final order or proceeding for the following reasons:
1. Mistake, inadvertence,
surprise, or excusable neglect,
2. Newly discovered evidence,
which by due diligence could not have been discovered in time to move
to reopen the proceedings under § 1.31 of this Part.
3. Fraud, misrepresentation,
or other misconduct of an adverse party,
4. The order is void.
5. A prior order on which
the order is based has been reversed or otherwise vacated, or it is
no longer equitable that the order should have prospective
application, or
6. Any other reason
justifying release from the operation of the order
C. A motion shall be made
within a reasonable time not more than one (1) year after the order
is entered. A motion under § 1.32(B) of this Part does not
affect the finality of an order or suspend its operation. This rule
does not limit the power of the Board to entertain an independent
action to relieve a party form an order or to set aside an order for
fraud upon the Board.
1.33 Petitions
A. General - Petitions for
relief under any statute or other authority designated to the Board
shall be in writing, shall state clearly and concisely the
petitioner's grounds of interest in the subject matter, the facts
relied upon, and the relief sought, and shall cite by appropriate
reference the statutory provision or other authority relied upon for
relief. Seven (7) copies shall be filed with the original.
B. Petitions for Issuance,
Amendment, or Repeal of Rules
1. A petition for the
issuance, amendment or repeal of a rule by the Board shall, in
addition to the requirements of § 1.33(A) of this Part above,
set forth the specific rule, amendment or repeal requested, and state
in detail with citations to appropriate references, the reasons for
the requested action. Seven (7) copies shall be filed with the
original.
2. Upon submission of such a
petition, the Board will within thirty (30) days, either deny the
petition in writing or initiate rule-making procedures in accordance
with R.I. Gen. Laws § 42-35-8 shall set forth the rule or
statutory provision in question and shall state in detail, with
appropriate citations, whether the rule or provisions should or
should not apply.
1.34 Severability
If any provision of the
Regulation is held to be invalid, such invalidity shall not affect
the provisions or the applications thereof not specifically held
invalid.
1.35 Statewide Master Construction
Plan
Each entity intending to
construct a major energy facility in the state must file annually
with the Board a "statewide master construction plan"
consisting of a brief and concise description of any major energy
facilities which the filing party proposes to construct in the
succeeding two years. This plan shall be filed within ninety days of
the adoption of these regulations and on each subsequent December 1
for the following year, unless the Board grants leave to file at a
later date. The plan may be amended during the year to add proposed
major energy facilities when plans for construction of new facilities
arise that were not known or not likely at the time the plan was
filed for such year.
1.36 Transmission Line Licensing
The Board intends to expedite
the licensing process for transmission lines and reserves the right
to shorten the time limits provided in these regulations, subject to
the constraints provided in applicable law.