94- 655 C.M.R. ch. 1, § II

Current through 2024-51, December 18, 2024

Section 655-1-II - ENERGY INFRASTRUCTURE PROCESS

A. GENERAL

1.Purpose

The purpose of this Rule is to comply with Maine Revised Statutes Title 35-A § 122 E nergy Infrastructure Corridors and to define a process for any proposal to use an energy infrastructure corridor.

2.Applicability

This Rule applies to any energy infrastructure proposal that is within the jurisdiction of the Panel as defined by Title 35-A M.R.S.A. §122.

3.Definitions

The following words and terms, when used in this Rule, shall have the following meanings, unless the context clearly indicates otherwise.

aConflict of interest: Situation where a person, because of other activities or relationships with other persons, gives, or may potentially give, any Proposer an unfair competitive advantage. As used in this definition, the term "person" includes both individuals and entities. Members are governed by the conflict of interest provisions of Title 5, section 18. If a member believes that a conflict of interest may require that member's abstention in a proceeding, unless the member in question decides to abstain, the question of the conflict of interest must be submitted to a vote of the members present, excluding the member in question.

bEnergy Infrastructure: Includes electric transmission and distribution facilities, natural gas transmission lines, carbon dioxide pipelines and other energy transport pipelines or conduits. "Energy infrastructure" does not include:

(1) Generation interconnection transmission facilities;

(2) Energy generation facilities; or

(3) Electric transmission and distribution facilities or energy transport pipelines that cross an energy infrastructure corridor or are within an energy infrastructure corridor for a distance of less than 5 miles.

cLOI: Letter of interest indicating intent to pursue a project involving the location of energy infrastructure within a designated statutory corridor(s).

dMemorandum of Understanding (MOU): A document describing an agreement between the Panel, the Proposer and the owner/controller of the corridor on the specifics of a Proposal, including the procedures for the Technical review which shall include the terms for reimbursements of reasonable costs incurred by the Panel in evaluation of the Proposal.

eOccupancy Agreement: A contractual relationship between the Panel, Owner and/or Controller of the corridor and the Proposer to occupy an area within an energy infrastructure corridor to construct, maintain and operate energy infrastructure for a specified period of time.

fPanel: The Interagency Review Panel as defined in 35-A M.R.S.A. §122, 1-B.

gPanel's Web Site or Web Site: The Panel's official web site is hosted by the Governor's Office of Energy Independence and Security and is available at the following address: http://www.maine.gov/oeis/irp/ .

hProposal: A formal application to develop, design, construct, operate and/or maintain energy infrastructure in a statutory corridor pursuant to the requirements in Section II(D)(3).

iProposer: Any entity, including any division or affiliate of the entity, that has submitted a LOI or Proposal in order to initiate or participate in a procurement for the development, design, construction, operation, or maintenance of energy infrastructure.

jState: State of Maine.

4.Criteria for Selection of Projects for Energy Infrastructure

a The Panel will approve an application only if the proposed project:

(1) Materially enhances or does not harm transmission opportunities for energy generation within the State;

(2) Is reasonably likely to reduce electric rates or other relevant energy prices or costs for residents and businesses within the State relative to the value of those rates, prices or costs but for the proposed energy infrastructure development or, if the deciding authority is unable to determine to its satisfaction the impact of the proposal on rates, prices or costs, the owner or operator of the proposed energy infrastructure agrees to pay annually an amount of money, determined by the deciding authority, to reduce rates, prices or costs over the life of the proposed energy infrastructure; and

(3) Is in the long-term public interest of the State, based on a consideration of the extent to which the project:

i. Materially enhances or does not harm transmission opportunities for energy generation within the State;

ii. Is reasonably likely to reduce electric rates or other relevant energy prices or costs for residents and businesses within the State relative to the expected value of those electric rates or other energy prices or costs but for the proposed energy infrastructure development;

iii. Increases long-term economic benefits for the State, including but not limited to direct financial benefits, employment opportunities and economic development;

iv. Ensures efficient use of the statutory corridor through collocation of energy infrastructure, collaboration between energy infrastructure developers, potential for enhancement of other priority state policies including integrated telecommunications and broadband infrastructure expansions, and the preservation of options for future uses;

v. Minimizes conflict with the public purposes for which the state-owned land or asset is owned and any management plans for the land or asset within the statutory corridor and, when necessary, mitigates unavoidable impacts;

vi. Limits and mitigates the effects of energy infrastructure on the landscape, including but not limited to using underground installation when economically and technically feasible;

vii. Increases the energy reliability, security and independence of the State; and

viii. Reduces the release of greenhouse gases.

B. FREEDOM OF INFORMATION, PROTECTION OF PROPRIETARY INFORMATION

1.Purpose

The purpose of this Section is to provide for free public access to all records of the Panel with certain exceptions. Exceptions shall be construed strictly and narrowly. The purpose of this Section is also to provide protection for proprietary information defined by 35-A M.R.S.A. §122 (F-1) and other protection provided for by law.

2.Scope

This rule applies to all records of the Panel including all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any member of the Panel in her or his official capacity.

3.Access to Information

aRight to Information

Any person shall be allowed access to any record of the Panel unless the record is protected by 1 M.R.S.A. §402(3) or 35-A M.R.S.A. §122(1-B)(G).

bProcedure

A person seeking access to records of the Panel should request access in person at the offices of the Panel maintained by the Office of Energy Independence and Security, 62 State House Station, 111 Sewall Street, Augusta, Maine 04333-0062, by telephone 207-624-7405, or by first class mail. Inspection shall be conducted within the offices of the Panel at a date and time during ordinary working hours reasonably scheduled by the Director of the Office of Energy Independence and Security.

No charge shall be made for inspection of records.

The Panel may require a person desiring copies of any record to pay in advance the actual cost of preparing such copies.

cExempt Information

(1)General Principles

Records that are exempt from disclosure as described in Section II(B)(3)(d) below shall not be made available to the public. Only that part of a record which comes within an exemption shall not be made available. Those parts of a record that are not exempt from disclosure shall be made available through the procedures of Section II(B)(3)(b), provided that the Panel may require a person seeking access to information to pay the actual cost of separating exempt from non-exempt information.

(2)Exemptions

Records shall not be made available to the public if they are within any of the enumerated exemptions in 1 M.R.S.A. §302(3), designated as proprietary information under 35-A M.R.S.A. Section122, or otherwise protected from disclosure under applicable law.

dTreatment of Records Claimed Proprietary

(1)General

A Proposer or any other person may assert that any records submitted to the Panel by that Proposer or person in connection with an application is either exempt from disclosure under one of the exceptions enumerated in 1 M.R.S.A. §402(3), or constitutes proprietary information as defined by 35-A M.R.S.A. §122(1) (F-1) and is protected from disclosure by 35-A M.R.S.A. §122(1-B)(G). The Proposer must mark such records with the phrase "CLAIMED PROPRIETARY" in a prominent location on each page of the document or on the outside of an instrument, such as a computer diskette. If a record is marked by an applicant as "CLAIMED PROPRIETARY" it does not necessarily mean that the record will be protected from disclosure, only that the Panel will follow the procedure below.

In the event the Panel receives a request to inspect or copy records marked by the provider of that information as Claimed Proprietary Information, the Chair will notify the provider of that information that such a request has been received. If the provider of that information wants the record to be protected from disclosure under Maine's Freedom of Access Act, then the provider of that information shall, within five business days of receiving the Chair's notice, provide the Panel with a confirmatory list of the records that it asserts are protected from disclosure under Title 1 M.R.S.A. §402(3)(A) or (3)(B) or 35-A M.R.S.A. §122(1-B)(G), and a brief statement of the Proposer's position. If the Panel determines that the law requires disclosure of the records, the Panel will not release the records for five business days in order to allow any party aggrieved by the decision to seek a court order barring disclosure.

4.Executive Session

a The Panel may conduct Executive Sessions for the purposes and subject to the procedures established in 1 M.R.S.A. Section405. The Panel may vote to allow others to attend the Executive Session, including, without limitation, staff, counsel, consultants, and advisors. If the purpose of an Executive Session is to discuss confidential information, the Panel may vote allow the provider of that information to attend the Executive Session.

C. VALUATION

1.Solicitation of Valuation Expert

a The Panel shall contract for the services of one or more valuation experts to assist the Panel in its duties. Any expert must meet the following criteria, or any team of valuation experts must in combination meet the criteria in entering into a contract or contracts for valuation services with the Panel:

(1) Have demonstrated experience in the valuation and evaluation of utility corridors or transportation corridors;

(2) Hold a professional designation from a nationally recognized Organization of appraisers;

(3) Be licensed in Maine as a certified general real property appraiser in accordance with Title 32, Section 14035 or hold a comparable license from another state; and

(4) Have demonstrated experience in the valuation and evaluation of energy infrastructure assets.

2.Required Considerations for Valuation

a Aspects of valuation that must be considered by an expert or team of valuation experts contracting with the Panel for valuation services shall include, but not be limited to the following:

(1) Costs avoided as a result of using a State or utility corridor including but not limited to costs of acquisition, lease or rental of private land;

(2) Costs of property taxes on private land;

(3) Costs of surveying, appraisal, environmental, engineering and other work necessary for use of private land;

(4) Costs of time and potential conflict regarding use of private land;

(5) The unique and limited nature of a State-owned land or asset; and

(6) All revenues or other financial benefits estimated reasonably to be generated by use of the State-owned land or asset.

3.Payment of Costs

a The costs for the services of a valuation expert or team of valuation experts hired by the Panel under this section must be paid by one or more Proposers. In the case of multiple Proposers each making partial use of a corridor subject to the Panel's jurisdiction, costs of valuation shall be allocated among Proposers in proportion to the amount of time spent by the experts on each potential developer's proposal, as determined by the Panel.

D. PROPOSALS

1.Solicitation Process

a The Panel will utilize an ongoing solicitation process for Energy Infrastructure proposals. An ongoing request for LOIs regarding proposals for projects involving the location of energy infrastructure within designated statutory corridors will be available on the Panel's Web Site. In addition, the Panel may, from time to time, issue other solicitations, whether general or specific in nature, by using any other means/media it considers appropriate.

2.Letter of Interest (LOI)

aPurpose

An LOI provides a conceptual proposal describing a project and the Proposer's intended use in sufficient detail to enable the Panel and the Proposer to determine the feasibility and availability of the statutory corridor for the proposed use. Detailed plans and specifications are not required at this point. To the greatest extent practicable, the LOI should contain no proprietary or other information that would be considered exempt from disclosure under Section II(B)(3)(c).

bContent

An LOI shall include the following information:

(1) Proposer's name, address, contact information, and background, including that of any existing or potential partners;

(2) A description of the proposed project including a conceptual design of the facility and an identification of known or anticipated interconnections with existing or planned transportation facilities that will be required if the project is approved;

(3) Proposed project start and end points (including coordinates in decimal degrees, WGS 1984), proposed route, and total length;

(4) A topographic map with a scale of 1:2,000, or other appropriate scale, that delineates the location of the proposed transportation facility;

(5) How independent access to the site will be provided by authorized persons, both during construction and subsequent maintenance operations;

(6) A preliminary list of local, state, or federal agency permits or approvals expected to be required in order to develop or operate the proposed project and a projected schedule for obtaining such permits or approvals;

(7) Date site is needed (timeframe);

(8) Anticipated length of construction (number of months);

(9) Plans for collocation with another carrier;

(10) Legal status of the Proposer and preliminary information concerning the Proposer's legal and financial capacity to carry out the proposal;

(11) A declaration as to whether the Proposer will also be the owner of the infrastructure to be installed, and information regarding the legal status of the owner if different from the Proposer;

(12) A brief analysis of the public benefits of the project and how the project meets the statutory project selection criteria;

(13) Diagram of the typical cross section of proposed facilities, including access and utilities, showing the potential impact it will have on the surrounding facilities; and,

(14) Any additional information that may help the Panel more fully understands the design, purpose, impact, and benefits of the project.

cSubmittal Requirements

(1)Review

The Panel will acknowledge receipt of an LOI at their next regularly scheduled meeting and may schedule a time for the Proposer to make a formal presentation to the Panel or return the proposal as incomplete and specify in writing the reasons it was returned.

The Panel shall request any additional information from the Proposer that may be necessary to determine if the proposal provides reasonable potential for long-term benefits to the State of Maine as required under Section II(A)(4)(a).

If the Panel finds that the LOI does not provide reasonable potential for long-term benefits to the State of Maine, the Proposer will be notified in writing of the finding as described in Section II(D)(5) and no further action will be required of the Panel.

Whenever these rules require or allow the filing of any paper or submission, that filing is complete upon receipt by the Panel.

3.Proposal requirements

aGeneral requirements. Proposal forms must be developed by the Panel and must require such information as the Panel deems necessary to make the necessary regulatory findings.

A proposal from a corporation must be submitted in the corporation's registered corporate name, and must include either a Certificate of Good Standing or a statement signed by a corporate officer affirming that the corporation is in good standing.

bInitial Fee

Prior to submittal of a detailed proposal, the Proposer shall pay an initial fee of $10,000 to the Panel. This fee is separate from, and will not be credited towards, any of the costs for which the Proposer is responsible under the terms of a future MOU. Upon receipt of the initial fee, the Panel will send the Proposer specific requirements for submitting a detailed Proposal.

4.Technical Review Phase

Upon finding that a proposal does provides reasonable potential to meet the technical requirements of the corridor owner/controller and to provide long-term benefits to the State of Maine, the Panel shall develop and enter into a Memorandum of Understanding (MOU) with the Proposer to conduct a "Technical Review". The signed MOU shall be posted on the Panel's Web Site and shall specify: the end date of the agreement, whether the proposal is known to be a competing proposal to any existing proposals pending before the Panel, and the terms of reimbursement by the Proposer for any reasonable costs incurred by the Panel to evaluate the proposal.

aPurpose

The purpose of the Technical Review Phase is to identify or address any of the following:

(1) Whether the proposal is likely to meet the requirements of Section II(A)(4)(a).

(2) The value of the land or assets proposed for use.

(3) The concerns or considerations of any state or federal entity having ownership or control over the proposed corridor. Examples would include MaineDOT, the Maine Turnpike Authority, and the Federal Highway Administration.

(4) The concerns or considerations of any state or federal entity having a regulatory role over any aspect of the proposal.

(5) Any other questions or concerns that the Panel may deem pertinent to a final decision and the development of a final Occupancy Agreement.

bDuration

The Technical Review Phase shall be in place for a minimum of three (3) months from the date the MOU is signed. However, the Panel may choose to extend this period as necessary to ensure that all of the above questions are adequately and thoroughly answered. During this period, the Panel may continue to consider additional LOIs and may also enter into multiple MOUs that may or may not conflict or compete with other proposals from either a physical location or market analysis standpoint.

cCancellation

If, at any point, the Panel determines that a proposal does not meet one or more of the requirements of Section II(A)(4)(a), cannot be reasonably located at the proposed location or the Proposer is found to be uncooperative in any manner, the Panel may end the MOU by notifying the Proposer of the reasons behind the decision and the amount of any outstanding expenses owed under the agreement. Similarly, if the Proposer determines that their proposal is no longer feasible or in their best interest, they may request to withdraw from the MOU and the Panel, upon such notice, shall notify any consultants, departments, and/or state agencies that may be working on aspects of the Technical Review to cease any further activity, and close out any necessary billing associated with the MOU. Upon payment of any outstanding expenses, the Panel shall formally release the Proposer from the MOU and shall post the release upon the Panel's Web Site.

dNegotiations

The Panel may elect to enter into negotiations with a single Proposer or competitive negotiations with multiple Proposers regarding the terms of the proposal, Occupancy Agreement with the selected Proposer or Proposers

eDecision Regarding Proposal

The Panel may approve a proposal upon finding that the proposal meets the requirements of Section II(A)(4)(a). Upon approval of a proposal, the Panel will issue a written decision as described in Section II(D)(5). Approval of the proposal shall be subject to execution of the Occupancy Agreement by the successful Proposer, and satisfaction of such other conditions as may be required by the Panel. The Panel shall notify the Proposers of the Panel's approval of the selected proposal and intent to award an Occupancy Agreement.

fAuthority to Reject

The Panel shall reject any proposal that fails to meet the requirements of Section II(A)(4)(a). The Panel may reject a proposal that meets the minimum requirements of Section II(A)(4)(a) if it finds that such rejection is likely to advance the policies of Title 35-A M.R.S.A. §122 more effectively than approving the proposal, for instance by reserving the corridor for a potentially more beneficial use.

5.Decisions

The Panel will issue a written decision with respect to any final decision approving or rejecting a proposal. A decision approving a proposal may set forth conditions for such approval. A decision either approving or rejecting a decision will set be in a manner sufficient to inform the applicant and the public of the basis of its findings. The decision will make findings of fact and conclusions of law with respect to the decision criteria set forth in 35-A M.R.S.A. §122(1-D) and Section II(A)(4)(a) of this rule.

6.Notice of appeal rights

Each decision approving or denying a proposal must be accompanied by a plain statement of the appropriate rights of administrative and judicial review and the time within which those rights must be exercised. Correspondence notifying the applicant of the Panel's denial must be made by certified mail, return receipt requested. Any person with standing may seek judicial review of a final Panel decision by filing a petition in Superior Court in accordance with 5 M.R.S.A. Section11001et seq. and M.R.Civ.P. 80C.

E. PUBLIC COMMENT

1.Public notice of proposals

Following receipt and initial review of all formal proposals and prior to negotiating a final Occupancy Agreement, the Panel shall post a summary of the proposal on the Panel's Web Site for public comment for a period of no less than two (2) weeks. All comments and the final responses of the Panel shall be posted on the Panel's Web Site. Such postings shall include notice of availability of this rule governing the review process for proposals.

2.Public comment on proposals

Written public comments on proposals are allowed during the course of processing the proposal. The Panel may establish a deadline for the submission of written comments by posting a notice on its Web Site.

3.Public Meetings

a The Panel will hold at least one non-testimonial public meeting on a proposal. Such meetings are not subject to the procedural requirements of the Maine Administrative Procedures Act, Title 5, Chapter 375, Subchapter IV. The purpose of non-testimonial public meetings is to allow any member of the public to appear and provide oral comment to the Panel on a pending Proposal.

b The costs associated with providing public notice of a meeting on an application shall be paid for by the Proposer. The meeting shall be conducted substantially as follows:

(1) The Proposer shall make a statement in support of the application, addressing the findings required to be made by the Panel in considering the application.

(2) Members of the public shall be given an opportunity to comment on the application.

c The Proposer shall be given an opportunity to respond to the comments presented. The Panel may ask questions of the Proposer and any party addressing the Panel, and may require additional information of the Proposer. The Panel may continue the meeting at its discretion to a later date or specify a period within which it will accept further information or comment.

4.Discretionary Public Hearings

aCriteria for holding public hearings. Public evidentiary hearings will be held at the discretion of the Panel. In determining whether to hold an evidentiary hearing, the Panel may consider the availability of administrative resources required for such a hearing, the degree of public interest in the proposal, and whether receiving sworn testimony and observing cross examination of witnesses would be helpful to its consideration of the proposal.

bConduct of public hearings. Any evidentiary hearings will be held in accordance with the Maine Administrative Procedure Act, Title 5, Chapter 375, Subchapter IV. When scheduling evidentiary hearings, the Panel shall also establish a date by which petitions for intervention must be submitted to the Panel.

F. OCCUPANCY AGREEMENT

Prior to developing and/or operating an energy infrastructure project, the Proposer approved by the Panel shall enter into an Occupancy Agreement with the owner/controller of the corridor. The Occupancy Agreement shall include the following to the extent applicable:

a Delivery of performance and payment bonds or other forms of performance security acceptable to the Panel in connection with the construction of or improvements to the energy corridor, in the forms and in amounts satisfactory to the Panel.

b Review and approval of plans and specifications for the Project by the Panel and responsible public entity if the plans and specifications conform to established standards of the Panel and responsible public entity.

c Inspection of construction or improvements to the project by the Panel and responsible public entity to ensure conformance with engineering standards acceptable to the Panel and responsible public entity.

d Maintenance of a policy or policies of public liability insurance certificates, which shall be provided to the responsible public entity, or maintenance of self-insurance, each in form and amount satisfactory to the Panel and responsible public entity and sufficient to ensure liability coverage to the public and employees of the facility and to enable the continued operation of the Project.

e Monitoring of the operations and maintenance practices of the private entity by the Panel and responsible public entity. The private entity shall take all actions as specified in the Comprehensive Agreement to ensure that the qualifying energy infrastructure project is properly operated and maintained.

f Reimbursement to be paid to the Panel and responsible public entity for services provided by the responsible public entity.

g Filing appropriate financial statements on a periodic basis.

h The date of termination of the agreement.

i User fees, lease payments, service payments, or the availability or other performance-related payments as may be established by agreement of the parties.

j A copy of any lease or service contract to be filed with the Panel and responsible public entity.

k Such other terms and conditions as the Panel may require.

94- 655 C.M.R. ch. 1, § II