Legislature Again Modifies Site Evaluation Statute, RSA 162-H

As it did in 2014, 2015 and 2017, the New Hampshire legislature has again modified RSA 162-H, the statute governing the New Hampshire Site Evaluation Committee (“SEC” or “Committee”), the body responsible for energy facility siting.  The new law adds more public members to the Committee and also requires all members to undergo intensive training annually.

The new statutory provision regarding the SEC’s public members requires the Governor, with the consent of the Executive Council, to appoint five (5) members of the public to serve on the Committee or Subcommittees.  Under current law, only two (2) public members serve on the Committee.  The new law requires that at the time of their appointment, two (2) of the public members must be designated as full Committee members, at least one of whom must be a member in good standing of the New Hampshire Bar Association.  All of the public members will constitute a pool from which the Committee Chairperson can randomly draw to serve on Subcommittees of the SEC or to serve in the event of the recusal or unavailability of a public member. The Chairperson may also publish an impartial methodology that the Chairperson must use to remove a public member from the pool for a particular draw based on criteria aimed at distributing workload among the public members.

The legislative history of the bill containing the 2018 amendments to RSA 162-H (Senate Bill 366), reveals that the rationale for creating the new pool of public SEC members is to facilitate the workings of the Committee to adequately address its responsibilities for the review and adjudication of complex applications.  In its report to the Senate on Senate Bill 366, the Senate Energy and Natural Resources Committee stated that the SEC operates with a limited pool of public members to serve on the full Committee and Subcommittees and that SB 366 will allow for a greater pool of public members to fill positions.

No changes were made to the statute which requires that in addition to the two (2) public members, the Committee is comprised of the following state officials:  The three (3) Public Utilities Commissioners, the Chairperson of which shall be Chairperson of the Committee; the Commissioner of the Department of Environmental Services who shall be Vice-Chairperson of the Committee; the Commissioner of the Department of Natural and Cultural Resources, the Director of the Division of Historical Resources, or their designees; and the Commissioners of the Departments of Transportation and Department of Business and Economic Affairs or their designees.

Another significant amendment to RSA 162-H is the new requirement that all SEC members annually complete an intensive training program on the provisions of the statute and the administrative rules adopted thereunder regarding the review and evaluation of applications for certificates of site and facility.  All new Committee members and any designee to a Subcommittee must complete the training program prior to serving on any Committee or Subcommittee proceeding.  This training is to be conducted by the New Hampshire Department of Justice.

About the Author: Susan Geiger

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