Bill Summary for S 366 (2017-2018)

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Summary date: 

Mar 23 2017

Bill Information:

View NCGA Bill Details2017-2018 Session
Senate Bill 366 (Public) Filed Thursday, March 23, 2017
AN ACT TO MINIMIZE INTERFERENCE WITH MILITARY OPERATIONS, ENVIRONMENTAL DEGRADATION, REDUCTION OF PROPERTY RIGHTS, AND HARMS TO PUBLIC HEALTH, SAFETY, AND WELFARE RESULTING FROM THE SITING AND OPERATION OF INDUSTRIAL WIND ENERGY FACILITIES.
Intro. by Cook, Sanderson, Brock.

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Bill summary

Amends Article 21C of GS Chapter 143 as follows. Renames the Article as Permitting and Control of Industrial Wind Energy Facilities (currently Permitting of Wind Energy Facilities).

Adds the terms site, infrasound, and major WEF stakeholders. Also adds the term WEF and defines the term to mean a wind energy facility or a wind energy facility expansion. Makes conforming changes throughout the Article to replace "wind energy facility" and "wind energy facility expansion" with "WEF." Amends the definitions for major military installation, wind energy facility, and wind energy facility expansion. Adds the Harvey Point Defense Testing Activity Facility to the definition of major military installation. Defines wind energy facility (WEF) to mean parcels of land containing one or more industrial-sized turbines rated at one megawatt or more, along with accessory buildings, transmission facilities, and any other equipment necessary for the operation of the WEF. Clarifies that the Article only applies to a WEF located onshore, and that an expansion of an existing WEF is considered a WEF unless the expansion reduces the total footprint of the WEF and does not include any new land that was not previously a part of the WEF site. Defines wind energy facility expansion to mean any activity that adds additional turbines, modifies the size or rating of any existing turbines, or changes the footprint of the WEF over what was initially permitted. 

Amends the requirements for a permit preapplication site evaluation meeting set out in GS 143-215.117. Requires the preapplication site evaluation meeting to be used by the participants for four specified purposes detailed in subsection (a) (currently, permitted but not required) along with the materials described in subsection (b). Amends the purposes set out in subsection (a) for the preapplication site evaluation meeting and adds a fourth purpose. Amends the first purpose, providing that in conducting a preliminary evaluation of the site, one purpose is determining if the proposed WEF can: (1) pose risk to civil air navigation, including aerial spraying or firefighting, or military navigation routes, air traffic control areas, military training routes, special-use air space, radar, or other military operations; (2) pose serious risk to natural resources and uses within five miles of the proposed WEF, including risks to species, their habitats, decreased groundwater recharge, increased stormwater discharge, or increased turbidity and sedimentation in streams impacted by the WEF; or (3) pose serious risks to health, safety, and welfare of citizens residing within two miles of the proposed WEF. Amends the third purpose, providing that in conducting a preliminary evaluation of the site, one purpose is to identify areas where proposed construction or expansion activities pose minimal risk to natural resources and uses, including groundwater and avian, bat, and endangered or threatened species. Adds a fourth purpose, providing that in conducting a preliminary evaluation of the site, one purpose is to identify areas where proposed construction or expansion activities pose minimal risk to the health, safety, and welfare of proximate residents. 

Amends the requirements of the permit preapplication package set forth in subsection (b) of GS 143-215.117. Requires the preapplication package to include nine specifications in both printed and digital format. Provides that verifiable trade secrets are not subject to disclosure in the preapplication package. Amends the required contents of the package and now requires the preapplication to include: (1) a narrative description of the WEF including the type and maximum physical dimensions of wind turbines to be constructed, the total capacity of the WEF, and a description of any ancillary facilities; (2) a US Geological Survey topographic map showing the approximate location of the proposed WEF and the anticipated locations of the WEF's turbines; (3) a description of any known potential impacts of the proposed WEF on civil air navigation, including aerial spraying or firefighting, or military air navigation routes, air traffic control areas, military training routes, special-use air space, radar, or any other potentially affected military operations; (4) a description of any known potential adverse impacts of the proposed WEF on natural and agricultural resources, including groundwater, crop production, and animals; (5) a description of any known potentially adverse impacts of the proposed WEF on the health, safety, and welfare of proximate residents and visitors; (6) a list and status of the federal, State, and local agencies from which approvals will be obtained and the name of those approvals required to authorize the construction, operation, or expansion of the proposed WEF; (7) a schedule showing the anticipated dates for commencement of construction, testing, and commercial operation of the proposed WEF; (8) an operation and maintenance plan that includes routine emergency checks for structural integrity, repairs, and rust prevention; (9) the URL of a website created by the applicant with information about the WEF, providing the full text of all documents submitted to any agency that are considered public records, listing the titles or general description of all documents submitted to any agency that are considered proprietary and confidential, listing the name and address of all leaseholders, providing an opportunity for regional citizens to make publicly shown comments on the proposed WEF, and providing that the proposed WEF has been advertised in a locally circulated newspaper.

Makes changes to the requirement to provide written notice, including an invitation to participate in the permit preapplication evaluation meeting, to interested parties no less than 21 days prior to the date of the permit preapplication site evaluation meeting by referring to major WEF stakeholders instead of listing stakeholders, as the term is now defined in GS 143-215.115(6). Major WEF stakeholders is now defined to mean the NC Utilities Commission; the NC Department of Health and Human Services; the NC Department of Commerce; the NC Department of Transportation; the US Army Corps of Engineers; the US Fish and Wildlife Service; the US National Park Service; the NC Wildlife Resources Commission; the commanding officer, or the commanding officer's designee, of any potentially affected major military installation; the NC Military Affairs Commission; the county commission and governing body of each municipality in the county in which the WEF is proposed to be located; and any other stakeholders that the Department of Environmental Quality (DEQ) deems relevant. 

Adds new requirement for DEQ to prepare detailed minutes or make an audio recording of the preapplication evaluation meeting. Establishes that the minutes or recording is an official part of the permit application package.

Amends the provisions concerning the scoping meeting between the applicant and DEQ set out in GS 143-215.118. Establishes that the location of the scoping meeting is in a county where the WEF is proposed to be located. Makes a conforming change concerning the required written notice of the scoping meeting, including an invitation to participate, to interested parties to refer to major WEF stakeholders instead of listing the parties. Adds new requirement for the scoping meeting to be advertised in accordance with open meetings laws and for the meeting to be open to the public. Adds new requirement for DEQ to prepare detailed minutes or make an audio recording of the meeting. Establishes that the minutes or recording is an official part of the permit application package.

Amends the permit application requirements for an applicant applying for a WEF set out in GS 143-215.119. Requires the permit application to include 22 specified items in both printed and digital format. Amends and adds to the permit application requirements to now require: (1) a narrative description of the proposed WEF; (2) a map showing the location of the proposed WEF that identifies the specific location, height, and rating of each anticipated turbine, and other buildings, roads, and equipment that are a part of the WEF; (3) a copy of a deed, purchase agreement, or lease agreement demonstrating the applicant's right to construct, expand, or develop a WEF; (4) the name and address of all property owners within two miles of the perimeter of the WEF (adding that the applicant must notify each and include the information set out in subdivisions (1) and (2) described above); (5) the applicant's NC Utilities Commission Certificate of Public Convenience and Necessity; (6) a description of military air navigation routes, air traffic control areas, military training routes, special-use air space, aerial spraying activities, potential aerial firefighting activity, radar, or other civilian or military operations that can be affected by construction or operation of the proposed WEF; (7) a description of any potential adverse impact on military operations, military readiness, or the lives of military personnel and any rectifying actions agreed to by the applicant; (8) documentation that the applicant has completed a review by the Department of Defense Siting Clearinghouse of the proposed WEF, including an unredacted copy of the agreement and unredacted copies of all correspondences; (9) a list of documentation submitted by the applicant to the FAA and approvals or determinations issued by the FAA; (10) a study of the possible human health impacts of the proposed WEF conducted by independent experts if there are residential properties within two miles of the proposed WEF, as specified; (11) a study of the local and regional economic impacts of the proposed WEF conducted by independent experts, as specified; (12) a plan of action to be taken to deactivate the WEF and to protect the public from harm due to WEF component liberation, and during natural weather conditions and disasters; (13) an environmental assessment of the potential adverse impacts of the proposed WEF on ecosystems conducted by independent experts, as specified; (14) a study of the proposed WEF's potential impact on views or other aspects of any State or national park, wilderness area, significant natural heritage area, or other public lands or private conservation lands that are in the viewshed of the proposed WEF, conducted by independent experts; (15) a study of the potential hydro-geological impacts of the proposed WEF on natural resources, water bodies, flowing water sources, wetlands, groundwater, aquifers, and private wells within two miles of the perimeter of the WEF, conducted by independent experts as specified; (16) documentation for the applicant's proposed property value guarantee for all residential properties within two miles of the perimeter of the WEF, as specified; (17) an incident response plan that ensures that local emergency responders have the necessary equipment and training to effectively handle emergencies as specified; (18) a plan regarding action to be taken to decommission the WEF consistent with GS 143-215.119B (enacted by this act); (19) the Power Purchase Agreement; (20) an explanation of how the proposed WEF would be consistent with the criteria in GS 143-215.122 (as amended by this act); (21) the application fee; and (22) other data or information DEQ may reasonably require.

Provides that verifiable trade secrets and verifiable confidential business information are not subject to disclosure. Sets the application fee to be $100 per rated faceplate megawatt of the full proposed WEF (currently, $3,500 flat application fee). Changes the notice requirements to now require DEQ to provide notice of receipt of a completed permit application to major WEF stakeholders within 15 business days of receipt (currently, within 10 business days). Amends and adds to the required contents of the notice of receipt to now include: (1) a copy of the map showing the location of the WEF as specified; (2) a written request to the commanding officers of all major military installations, or their designees, and the Military Affairs Commission for technical information related to adverse impact to the installation's operation, training, or mission as specified; (3) a written request to the board of commissioners and governing body of each municipality within two miles of where the WEF will be located for information related to potential adverse impacts of the WEF on local governments, local business, local property values, and local ecosystems; and (4) a written request to the Department of Health and Human Services for information related to potential adverse human health impacts to citizens within two miles of the WEF. Further, directs DEQ to provide a copy of permit application material filed pursuant to the above described permit application requirements to the major WEF stakeholders and any other parties DEQ deems relevant within 10 days of receipt of the permit application material as well as any supplements, changes, or amendments. Amends the public hearing and comment requirements to require DEQ to give written notice to the NC Attorney General's Office and all major WEF stakeholders of a scheduled WEF public hearing within 30 days prior to the scheduled hearing. Adds new requirement for DEQ to create and maintain a record of comments made at any public hearings under GS 143-215.117.

Enacts GS 143-215.119A, requiring all turbines in a WEF to maintain a setback from the property line of any residential or residentially zoned parcels outside the perimeter of the WEF. Establishes the setback to be the greater of one mile or 10 times the maximum height of the turbine's blade tip. Requires a turbine in a WEF to maintain a minimum setback of at least two and one-half times the maximum height of the turbine's blade tip from any residential structure within the WEF. Requires a turbine in a WEF to maintain a minimum setback of at least two and one-half times the maximum height of the turbine's blade tip from the perimeter of the WEF and the right-of-way of any roadway maintained by the State or a municipality. Prohibits a turbine in an offshore WEF from being sited within 24 miles of the nearest shore. Includes setbacks specific to military operations, including prohibiting a turbine in a WEF from being sited within 30 miles of a major military installation as that term is defined in GS 143-215.115 as amended.

Enacts GS 143-215.119B, establishing that the permit applicant or permit holder for a WEF is responsible for proper decommissioning of any turbine following no electricity generation for six consecutive months, for any reason, unless DEQ grants a one-time three-month extension. Requires the property to be returned to its original condition within one year following the six-month period of no electricity generation of the one-time three-month extension. Details what decommissioning includes. Establishes that the permit applicant or permit holder is responsible for properly disposing of each piece of equipment used in the WEF upon decommissioning. Provides that DEQ will hire experts to determine the cost for WEF decommissioning, setting the cost to be at least $100,000 per turbine, without considering possible scrap values. Establishes that a permit holder must maintain financial assurance to continue to hold a permit under the Article, and must provide any documentation DEQ requests to establish the permit holder continues to maintain the required financial assurance, as well as notify DEQ of any significant changes, as specified. Details requirements for a permit applicant or permit holder to establish financial assurance, as specified, that will ensure sufficient funding is available even if the applicant or permit holder becomes insolvent or ceases to reside, be incorporated, do business, or maintain assets in the State. Makes confirming change to delete GS 143-215.121 (financial assurance requirements).

Amends GS 143-215.120, which provides criteria for permit approval by DEQ. Amends and adds to the criteria to direct DEQ to approve a permit application unless: (1) construction or operation of the WEF would be inconsistent with or violate rules adopted by DEQ or any other provision of law; (2) operation of the proposed WEF would likely create unacceptable interference with civilian air navigation, including aerial spraying or firefighting activities, or any type of civilian or military radar systems; (3) construction or operation of the proposed WEF would encroach upon or would have a significant impact on the mission, training, or operation of any major military installation, or put lives of military personnel in jeopardy, based on a conclusion of the Military Affairs Commission (MAC) or consulted military personnel; (4) operation of the proposed WEF would either create noise levels exceeding 35 decibels (dbA) Lmax for more than five consecutive minutes, as measured from the property line of any adjacent parcel or possibly cause serious health, safety, or welfare complications to citizens in the region, based upon the level determined by the Department of Health and Human Services to adequately protect proximate residents or visitors from infrasound; (5) operation of the proposed WEF would likely be a net economic liability to the host communities based upon the conclusions of the NC Department of Commerce; (6) construction or operation of the WEF would have a significant adverse impact on domestic animals, livestock, or wildlife; (7) construction or operation of the proposed WEF would result in significant adverse impacts to ecological systems, natural resources, wilderness areas, wildlife reserves, wildlife refuges, preserves, flyways, bodies of water, groundwater, wetlands, environmental management areas, national or State parks or forests, segments of the natural and scenic rivers system, and locations that provide habitat for threatened or endangered species; (8) construction or operation of the proposed WEF would result in significant adverse impacts to recreation areas, cultural locations, historic venues of more than local significance, archaeological sites, or cemeteries; (9) operation of the proposed WEF would have a significant adverse impact on views or other aspects of any State or national park, wilderness area, significant natural heritage area, or other public lands or private conservation lands; (10) the applicant has not agreed to an adequate property value guarantee; (11) the applicant has not submitted an acceptable incident response plan; (12) the applicant has failed to establish an acceptable decommissioning plan in accordance with GS 143-215.119B as enacted; (13) the applicant has not submitted a bona fide power purchase agreement; (14) a permit would be denied under any criteria in GS 113A-119A (likely intends GS 113A-120, grant or denial of permits); (15) construction would be prohibited under GS Chapter 113A, Article 14 (the Mountain Ridge Protection Act); or (16) the applicant is not in full compliance with all applicable federal, State, or local permit requirements, licenses, or approvals, including any local zoning laws.

Deletes the exception to the requirement that DEQ must make a final decision on a completed permit application within 90 days of its receipt, which allowed DEQ to not meet that deadline if it has not received a Determination of No Hazard to Air Navigation from the FAA. Provides that the applicant should (currently, may) treat failure of DEQ to act within the time period as a denial of the permit. Deletes the existing provisions concerning required and permitted conditions DEQ can include in permits to now require DEQ to include as a condition of a permit for a proposed WEF a requirement that the applicant satisfactorily resolve all adverse impacts. Establishes that the permit is good for two years from the date of approval. Prohibits any extension. Requires one turbine to be erected and operating for the permit to stay in force. Clarifies that the permit is not authority to build. Provides that a conditional use permit or special use permit process under local zoning law cannot start until 15 days after the permit has been granted. Requires a permit holder to cease operation of all turbines in violation of any permit condition within one day of being notified by any governmental agency, and prohibits the turbines from resuming operation until the terms of the violation are fully corrected to the satisfaction of the notifying agency. Clarifies that the more stringent of any conflicts between the Article's provisions and any local regulations governs.

Enacts GS 143-215.120A, detailing the responsibilities of the owner of any permitted WEF concerning any construction-related damage to all real or personal property, public or private.

Amends GS 143-215.122, setting out an applicant's monitoring and reporting requirements, to require the applicant to annually submit copies to DEQ of all post-construction monitoring, such as reports on ambient noise levels, groundwater testing, ground water levels in the surficial aquifer, hydraulic head measurements in lower confined aquifers, property value guarantee claims, and the impacts on humans or wildlife within five miles of the WEF. Also requires the applicant to annually submit copies to DEQ of any post-construction monitoring or reports required by the major WEF stakeholders or any other government agency. Adds that the applicant must annually submit copies to DEQ of any post-construction monitoring or reports on any impacts on military operations. 

Amends GS 143-215.123, requiring DEQ to consult with major military installation representatives and MAC (currently does not include consulting with MAC) to review information as previously specified. Clarifies that the information DEQ is required to provide to permit applicants, upon request, only includes information DEQ is aware of. Requires DEQ to provide information on other potentially affected military or civilian operations to permit applicants as requested (currently, does not include potentially affected civilian operations).

Amends GS 143-215.126 to require (currently, permits) the DEQ Secretary to impose an administrative penalty on a person who constructs a WEF without obtaining a permit under this Article or who constructs or operates a WEF in violation of its permit terms and conditions. Establishes that the penalty is to be no less than $1,000 per day but not exceeding $10,000 a day (currently, no minimum provided).

Enacts GS 143-215.127, requiring any person who owns, operates, or controls a WEF to maintain (1) commercial general liability insurance, covering personal injuries, death, and property damage of $10 million per occurrence, with a total of $20 million coverage aggregate, which must specifically include the affected counties and municipalities and their officers, councils, employees, committee members, attorneys, agents, and consultants as additional named insureds and (2) umbrella coverage of $50 million. Requires the insurance policies to be issued by an agent or representative of an insurance company licensed to do business in this State, and to contain an endorsement obligating the insurance company to furnish DEQ with at least 30 days' prior written notice in advance of cancellation. Requires the permit holder to deliver a copy of each of the policies or certificates representing the insurance in the required amount no more than 15 days after the grant of the permit and before construction begins. Establishes strict liability for any person who owns, operates, or controls a WEF for damages to persons or property, public or private, caused by the construction, maintenance, operation, decommissioning, disassembly, or demolition of that WEF. Also establishes joint and several liability for an action to be filed against any one or more persons having control over the WEF or the activity that caused or contributed to the damages. Establishes immunity from liability for damages proven by a preponderance of the evidence to have been caused as specified, including an act or omission by the federal government or the State or its political subdivisions. Clarifies that the statute does not deprive a claimant from electing to pursue any other cause of action for damages or injunctive relief under statutory or common law. Makes a conforming deletion of GS 143-215.121.

Enacts GS 143-215.128, requiring all permits issued under the Article to contain an indemnification provision applicable to the governing bodies for the WEF and requiring the permit applicant to indemnify the governing bodies as specified at all times. Requires reasonable attorneys' fees, consultants' fees, and expert witness fees to be included in the costs recoverable by a governing body under the indemnification required by the statute. 

Makes other clarifying, technical, and organizational changes to the Article. 

Applies to all wind energy facilities filing a permit application under Article 21C of GS Chapter 143, as amended by the act, on or after the date the act becomes law.