Session Laws

Be it approved by the Senate and House of Representatives in General Court assembled, pursuant to Article LXXXVII of the Amendments to the Constitution, and by the authority of same, as follows:

SECTION l. Section 4 of chapter 25 of the General Laws, as appearing in the 1990 Official Edition, is hereby amended by inserting after the word "expedient" in line 8 the following words:- and may refer matters related to the need for, construction of, or siting of facilities, as defined in section sixty-nine G of chapter one hundred and sixty-four, as he deems appropriate to the energy facilities siting board in accordance with section sixty-nine H of chapter one hundred and sixty-four.

SECTION 2. Section l2M of said chapter 25, as appearing in the 1990 Official Edition, is hereby amended by striking out in line 69 the words "six hundred and twenty thousand" and inserting in place thereof the words:- one million and fifty thousand.

SECTION 3. Chapter 25 of the General Laws, as appearing in the 1990 Official Edition, is hereby further amended by adding after section l2M the following section:-

Section 12N. There is hereby established within the department, and under the general supervision and control of the commission, a facility siting division which shall be under the charge of a director appointed by the commission. This division, subject to such supervision and control, shall perform such functions as the commission may determine in relation to the administration, implementation, and enforcement of sections sixty-nine G through sixty-nine S, inclusive, of chapter one hundred and sixty-four imposed upon the department and the energy facilities siting board by said sections.

SECTION 4. Section 18 of said chapter 25, as appearing in the 1990 Official Edition, is hereby amended by inserting after line 38 the following paragraph:-

A schedule of filing fees shall be determined annually by the commissioner of administration under the provisions of section three B of chapter seven for the following: (a) petitions for certificates of environmental impact and public need; provided, however, that such filing fee for any municipal corporation empowered to operate a municipal lighting plant under the provisions of section thirty-five or thirty-six of chapter one hundred and sixty-four shall not exceed a maximum amount; (b) long-range forecasts - a total maximum amount annually from the electric companies with the fee for each applicant being determined by its proportion of the total kilowatt hour sales to ultimate customers in the commonwealth for the prior year, and a total maximum amount annually from the gas companies with the fee for each applicant being determined by its pro rata percentage of the firm gas revenues from sales to customers in the commonwealth for the prior year; and (c) notices of intention to construct an oil facility - a maximum amount per oil facility to be graduated in accordance with the expected capital investment in the facility. With respect to the fees for long-range forecasts, as provided in clause (b), the department shall apportion such fees on an estimated basis for the pending fiscal year among electric and gas companies, as defined in section sixty-nine G of chapter one hundred and sixty-four, and shall assess them on a fair and reasonable basis. In addition to said assessment amount, the assessment shall include amounts, credited to the General Fund, for fringe benefits costs, including group life and health insurance, retirement benefits, paid vacations and holidays, and sick leave, not to exceed fifteen percent of the amount attributable to personnel costs of said department subject to assessment under the provisions of this section. Such companies shall pay such assessments to the commonwealth within thirty days of receipt of notice thereof. The commission shall subsequently apportion actual fees among all such companies and shall make assessment adjustments for the same for any variation between estimated and actual fees on a fair and reasonable basis.

SECTION 5. Section 69G of chapter 164 of the General Laws, as appearing in the 1990 Official Edition, is hereby amended by striking out the definition of "Applicant" and inserting in place thereof the following definition:-

"Applicant", a person or persons who submits to the department or board a long-range plan, a petition to construct a facility, a petition for a certificate of environmental impact and public need, or a notice of intent to construct an oil facility, or any application, petition, or matter referred by the chairman of the department to the board pursuant to section sixty-nine H.

SECTION 6. Said section 69G of said chapter 164, as so appearing, is hereby further amended by inserting after the definition of "Applicant" the following definition:-

"Board", the energy facilities siting board established under the provisions of section sixty-nine H.

SECTION 7. Said section 69G of said chapter 164, as so appearing, is hereby further amended by striking out the definition of "Council".

SECTION 8. Said section 69G of said chapter 164, as so appearing, is hereby further amended by striking out the definition of "Long range forecast" and inserting in place thereof the following definition:-

"Long-range forecast", a plan filed with the department under the provisions of section sixty-nine I.

SECTION 9. Chapter 164 of the General Laws, as appearing in the 1990 Official Edition, is hereby further amended by striking out section 69H and inserting in place thereof the following new section:-

Section 69H. There is hereby established an energy facilities siting board within the department, but not under the supervision or control of the department. Said board shall implement the energy policies contained in sections sixty-nine H to sixty-nine Q, inclusive, to provide a necessary energy supply for the commonwealth with a minimum impact on the environment at the lowest possible cost.

The board shall be composed of the three commissioners of the department, the secretary of environmental affairs, the secretary of economic affairs, or their respective designees, and two public members to be appointed by the governor for terms of three years, one of whom shall be experienced in environmental or consumer matters and one of whom shall be experienced in matters relating to the development of energy facilities; provided that the board shall not include as a public member any person who receives, or has during the past two years received, a significant portion of his or her income directly or indirectly from the developer of an energy facility or an electric, gas or oil company. The public members shall serve on a part-time basis, receive one hundred dollars per diem of board service, and be reimbursed by the commonwealth for all reasonable expenses actually and necessarily incurred in the performance of official board duties. Upon the resignation of any public member, a successor shall be appointed in a like manner for the unexpired portion of the term. No person shall be appointed to serve more than two consecutive full terms.

The chairman of the department shall serve as the chairman of the board. In the event of the absence, recusal or disqualification of the chairman, the secretary of consumer affairs and business regulation shall appoint an acting chairman from the remaining members of the board. The board shall meet at such time and place as the chairman may designate or upon the request of three members. Four members shall constitute a quorum.

In carrying out its functions, the board shall cooperate with, and may obtain information and recommendations from every agency of the state government and of local government which may be concerned with any matter under the purview of the board. Each state or local government agency is directed to provide such information and recommendations as may be requested by the board. The board shall cooperate with other states and with the federal government or any agency thereof, as authorized under section sixty-nine Q and as otherwise authorized by law. The board may receive and expend such funds as are appropriated or as may be available to it from the funds of any other agency.

The board shall have powers and duties as follows:

(1) To adopt and publish rules and regulations consistent with the purposes of sections sixty-nine H to section sixty-nine Q, and to amend the same from time to time. This includes rules and regulations for the conduct of the board's public hearings under the provisions of sections sixty-nine H>, sixty-nine I, sixty-nine J and sixty-nine M.

(2) To accept petitions for certificates of environmental impact and public need on such forms as it may prescribe, consistent with the provisions of section sixty-nine L; to conduct preliminary investigations thereon and solicit information and recommendations relating thereto; to conduct public hearings in accordance with the provisions of sections sixty-nine M and sixty-nine N and to supervise the enforcement of the terms and conditions of certificates so issued; to approve or reject petitions to construct facilities and notices of intention to construct an oil facility in accordance with the provisions of section sixty-nine J; and to accept for review and approval or rejection any application, petition, or matter related to the need for, construction of, or siting of facilities referred by the chairman of the department pursuant to section four of chapter twenty-five; provided, however, that in reviewing such application, petition, or matter, the board shall apply department and board standards in a consistent manner.

(3) Where the applicant has petitioned the board with respect to a national pollutant discharge elimination system permit, the board shall be required to make a tentative determination as to the resolution of that petition, which determination shall be included in the public notice as required by section sixty-nine M.

SECTION 10. Section 69H> of said chapter 164, as appearing in the 1990 Official Edition, is hereby further amended by striking out in lines 24, 28, 36, 43, 47, 48, 53, 58, 70, 77, 78, 80, 84, 86, 90, 94, 95, 100, 114, 118 and 126 the word: "council" and inserting in place thereof, in each instance, the word:- board.

SECTION 11. Said section 69H> of said chapter 164, as so appearing, is hereby further amended by striking out, in line 25 the words "Said council" and inserting in place thereof the words:- The board.

SECTION 12. Section 69I of said chapter 164, as appearing in the 1990 Official Edition, is hereby amended by striking out the first paragraph and inserting in place thereof the following:-

Section 69I. The department shall approve or reject long-range plans; provided, however, that a long-range plan submitted in conjunction with a petition to construct a facility may be referred to the board for review and approval or rejection in accordance with section sixty-nine J. Every electric company shall, individually or jointly with others, file with the department a long-range forecast with respect to the electric power needs and requirements of its market area, taking into account wholesale bulk power sales or purchases or other cooperative arrangements with other electric companies, for the ensuing ten-year period. Such forecast shall be filed at least every two years.

Every gas company shall individually or jointly with others file with the department a long-range forecast with respect to the gas requirements of its market area, taking into account wholesale bulk gas sales or purchases or other cooperative arrangements with other gas companies, for the ensuing five-year period. Said forecast of gas requirements shall consist of the gas sendout necessary to serve projected firm customers, and the available supplies, for the ensuing five-year period. Such forecast shall be filed at least every two years.

As regional plans covering longer time periods are developed, they shall be filed with the department. Neither said department, the board, nor any other person shall, in taking any action pursuant to sections sixty-nine I through sixty-nine J be subject to any of the provisions of section sixty-one to sixty-two H, inclusive, of chapter thirty.

SECTION 13. Said section 69I of said chapter 164, as so appearing, is hereby further amended by striking out, in lines 26 and 49 the word "council" and inserting in place thereof, in each instance, the word:- department.

SECTION 14. Said section 69I of said chapter 164, as so appearing, is hereby further amended by striking out lines 55 through 113, and inserting in place thereof the following:-

The department or board shall conduct a public hearing on every long-range forecast within six months of the filing thereof. Such hearing shall be an adjudicatory proceeding under the provisions of chapter thirty A. The department or board shall within twelve months from the date of filing approve a long-range forecast if it meets the following requirements: all information relating to current activities, environmental impacts, facilities agreements and energy policies as adopted by the commonwealth is substantially accurate and complete; projections of the demand for electric power, or gas requirements and of the capacities for existing and proposed facilities are based on substantially accurate historical information and reasonable statistical projection methods and include an adequate consideration of conservation and load management; provided, however, that the department or board shall not require in any gas forecast or hearing conducted thereon the presentation of information relative to the demand for gas; projections relating to service area, facility use and pooling or sharing arrangements are consistent with such forecasts of other companies subject to this chapter as may have already been approved and reasonable projections of activities of other companies in the New England area; plans for the expansion and construction of the applicant's new facilities are consistent with current health, environmental protection, and resource use and development policies as adopted by the commonwealth; and are consistent with the policies stated in section sixty-nine H to provide a necessary energy supply for the commonwealth with a minimum impact on the environment at the lowest possible cost.

If the department or board determines the standards set forth above have not been met, it shall within twelve months of the date of filing reject in whole or in part the long-range forecast setting forth in writing its reasons for such rejections, or approve the long-range forecast subject to stated conditions. In event of rejection or conditioned approval, the applicant or individual company may within six months submit an amended forecast. A public hearing on the amended forecast shall be held on the same terms and conditions applicable to the original forecast.

The authority of the department and board to conduct public hearings under the provisions of this section may be delegated in whole or part to employees of the department. Pursuant to the rules of the department and board, employees of the department shall report back to the department or board with recommended decisions for final action thereon.

SECTION 15. Said chapter 164, as so appearing, is hereby amended by striking out section 69J and inserting in place thereof the following section:-

Section 69J. No applicant shall commence construction of a facility at a site unless a petition for approval of construction of that facility has been approved by the board and, in the case of an electric or gas company which is required to file a long-range forecast pursuant to section sixty-nine I, that facility is consistent with the most recently approved long-range forecast for that company. In addition, no state agency shall issue a construction permit for any such facility unless the petition to construct such facility has been approved by the board and the facility conforms with any such long-range forecast.

No oil company shall commence construction of an oil facility unless a notice of intention to construct an oil facility, filed in accordance with this section, has been approved by the board as provided for in this section. In addition no state agency shall issue a construction permit for an oil facility unless the board has approved a notice of intention to construct such facility. Approval of such notice of intention to construct an oil facility shall not be considered approval of construction permits by state agencies.

A petition to construct a facility shall include, in such form and detail as the board shall prescribe, the following information: a description of actions planned to be taken by the applicant to meet future needs or requirements, including, but not limited to, expansion, reduction or removal of existing facilities; construction or acquisition of additional facilities; a description of alternatives to planned action such as other methods of generating, manufacturing or storing, other site locations, other sources of electrical power or gas, including facilities which operate on solar or geothermal energy and wind or facilities which operate on the principle of cogeneration or hydrogeneration, and no additional electrical power or gas; a reduction of requirements through load management; and a description of the environmental impacts of each proposed facility. The board shall after public notice and a period for comment be empowered to issue and revise its own list of guidelines. A minimum of data shall be required by these guidelines from the applicant for review concerning land use impact, water resource impact, air quality impact, solid waste impact, radiation impact and noise impact.

The board shall conduct a public hearing on every petition to construct a facility or notice of intention to construct an oil facility within six months of the filing thereof. Such hearing shall be an adjudicatory proceeding under the provisions of chapter thirty A. In addition, a public hearing shall be held in each locality in which a facility would be located or in which an oil facility contained in a notice of intention to construct such facility is located, except that a public hearing shall not be required in a locality containing a proposed site if such a hearing has already been held in regard to that particular facility on that particular site in conjunction with a previously filed petition. The board shall within twelve months from the date of filing approve a petition to construct a facility or within twenty-four months from the date of filing a notice of intention to construct an oil facility for the refining of oil designed so that more than thirty-five per cent of its output could be gasoline or refined oil products lighter than gasoline, if it determines that it meets the following requirements: all information relating to current activities, environmental impacts, facilities agreements and energy policies as adopted by the commonwealth is substantially accurate and complete; projections of the demand for electric power, or gas requirements and of the capacities for existing and proposed facilities are based on substantially accurate historical information and reasonable statistical projection methods and include an adequate consideration of conservation and load management; provided, however, that the department or board shall not require in any gas forecast or hearing conducted thereon the presentation of information relative to the demand for gas; projections relating to service area, facility use and pooling or sharing arrangements are consistent with such forecasts of other companies subject to this chapter as may have already been approved and reasonable projections of activities of other companies in the New England area; plans for expansion and construction of the applicant's new facilities are consistent with current health, environmental protection, and resource use and development policies as adopted by the commonwealth; and are consistent with the policies stated in section sixty-nine H to provide a necessary energy supply for the commonwealth with a minimum impact on the environment at lowest possible cost; and in the case of a notice of intent to construct an oil facility, that all information regarding sources of supply for such facility and financial information regarding the applicant and its proposed facility are substantially accurate and complete; that it is satisfied as to the adequacy of the applicant's capital investment plans to complete its facility; the long term economic viability of the facility; the overall financial soundness of the applicant; in the case of an oil facility, the qualification and capability of the applicant in the transshipment, transportation, storage, refining and marketing of oil or refined oil products; that plans including buffer zones or alternatives thereto for the applicant's new facility are consistent with current health, environmental protection and resource use and development policies as adopted by the commonwealth.

If the board determines the standards set forth above have not been met, it shall within twelve months of the date of filing reject in whole or in part the petition, setting forth in writing its reasons for such rejections, or approve the petition subject to stated conditions. In the event of rejection or conditioned approval, the applicant may within six months submit an amended petition. A public hearing on the amended petition shall be held on the same terms and conditions applicable to the original petition.

Not later than one year prior to commencement of construction of an oil facility, or not later than two years prior to the commencement of construction of a facility for the refining of oil designed so that more than thirty-five per cent of its output could be gasoline or refined oil products lighter than gasoline, a notice of intention to construct such facility shall be filed with the board. Such notice shall include in such form and detail as the board shall reasonably prescribe, in addition to a detailed description of the proposed facility and site, the following information for the region expected to be served by the oil facility:

(l) A description of the applicant's current activities involving the transshipment, transportation, storage, or refining of oil or refined oil products.

(2) A description of the applicant's qualification and capability in transshipment, transportation, storage, refining and marketing of oil or refined oil products.

(3) An analysis of the proposed facility including but not limited to the description of alternatives to the planned action, such as other site locations, other oil facilities, and no additional oil facilities; and a description of the environmental impact of the proposed facility, said description to include buffer zones and other measures to minimize damage to the environment. The board shall after public notice and a period for comment be empowered to issue and revise its own list of guidelines. A minimum of data shall be required by these guidelines from the applicant for review concerning land use impact, water resource impact, air quality impact, solid waste impact, radiation impact and noise impact.

(4) A description of proposed sources of supply of crude oil or refined oil products for the oil facility which is the subject of the notice; if such sources are persons not controlled by the applicant, certified copies of any contracts, letters of intent or any other understandings.

(5) A description of the capital investment plan proposed for such facility, and the overall financial soundness of the company and economic viability of the facility, including insurance coverage during construction and operation.

The authority of the board to conduct public hearings under the provisions of this section may be delegated in whole or in part to the employees of the department. Pursuant to the rules of the board, such employees shall report back to the board with recommended decisions for final action thereon.

SECTION 16. Section 69J> of said chapter 164, as appearing in the 1990 Official Edition, is hereby amended by striking out in line 2 the words "energy facilities siting council" and inserting in place thereof the following word:- department.

SECTION 17. Said section 69J> of said chapter 164, as so appearing, is hereby amended by striking out in lines 7, 11, l4, l6, 19, 24, 25, 26, 29, 34 and 41 the word "council" and inserting in place thereof, in each instance, the word:- department.

SECTION 18. Said section 69J> of said chapter 164, as so appearing, is hereby further amended by striking out in lines 46 and 49 the word "council's" and inserting in place thereof, in each instance, the words:- department's or board's.

SECTION 19. Said section 69J> of said chapter 164, as so appearing, is hereby further amended by striking out in line 50 the word "council" and inserting in place thereof the words:- department or board.

SECTION 20. Said section 69K of said chapter 164, as so appearing, is hereby further amended by striking out in lines 3, 4, 25, 32, 45, 58 and 64 the word: "council" and inserting in place thereof, in each instance, the word:- board.

SECTION 21. Said section 69K of said chapter 164, as so appearing, is hereby further amended by striking out in line 29 the word "council's" and inserting in place thereof the word:- board's.

SECTION 22. Said section 69K of said chapter 164, as so appearing, is hereby further amended in line 62 by inserting before the word "company" the word:- oil.

SECTION 23. Section 69L of said chapter 164, as appearing in the 1990 Official Edition, is hereby amended by striking out in lines 2 (in each instance), 16, 32, 35, 39, 41, 53, 55, 56, 59 and 63 the word "council" and inserting in place thereof, in each instance, the word:- board.

SECTION 24. Said section 69L of said chapter 164, as so appearing, is hereby further amended by striking out in lines 2, 44, 46, 47, 51, 55, 58 and 61 the word "application" and inserting in place thereof, in each instance, the word:- petition.

SECTION 25. Said section 69L of said chapter 164, as so appearing, is hereby further amended by striking out in line 10, the word "council" and inserting in place thereof the words:- board or department.

SECTION 26. Said section 69L of said chapter 164, as so appearing, is hereby further amended by inserting in line 9 after the word "plan" the following words:- , or petition for construction of a facility approved under the provisions of section sixty-nine J.

SECTION 27. Section 69M of said chapter 164, as appearing in the 1990 Official Edition, is hereby amended by striking out in lines 1, 12, 15, 17, 22, 26, 38, 39, 48, 72, 76-77 and 79 the word "application" and inserting in place thereof, in each instance, the word:- petition.

SECTION 28. Said section 69M of said chapter 164, as so appearing, is hereby further amended by striking out in lines 2, 9, 14, 16, 20, 37, 38, 50, 52 (in each instance), 54, 66 and 70 the word "council" and inserting in place thereof, in each instance, the word:- board.

SECTION 29. Said section 69M of said chapter 164, as so appearing, is hereby further amended by striking out in line 63 the word "applications" and inserting in place thereof the word:- petitions.

SECTION 30. Section 69N of said chapter 164, as appearing in the 1990 Official Edition, is hereby amended by striking out in lines 2 and 11 the word "application" and inserting in place thereof, in each instance, the word:- petition.

SECTION 31. Said section 69N of said chapter 164, as so appearing, is hereby further amended by striking out in lines 5, 10 and 12 the word: "council" and inserting in place thereof, in each instance, the word:- board.

SECTION 32. Said section 69N of said chapter 164, as so appearing, is hereby further amended by striking out, in lines 12 and 13 the word: "two-thirds" and inserting in place thereof, in each instance, the word:- majority.

SECTION 33. Section 69 O of said chapter 164, as appearing in the 1990 Official Edition, is hereby amended by striking out in lines 2, 3, 4 (in each instance), 5 and l0 the word "application" and inserting in place thereof, in each instance, the word:- petition.

SECTION 34. Said section 69 O of said chapter 164, as so appearing, is hereby further amended by striking out in lines 2, 6 (in each instance), 9 and 11 the word: "council" and inserting in place thereof, in each instance, the word:- board.

SECTION 35. Section 69P of said chapter 164, as appearing in the 1990 Official Edition, is hereby amended by striking out in lines 2, 4 and 8, the word "council" and inserting in place thereof, in each instance, the word:- board.

SECTION 36. Said section 69P of said chapter 164, as so appearing, is hereby further amended by striking out in lines 9 and 10-11, the word "council's" and inserting in place thereof, in each instance, the word:- board's.

SECTION 37. Section 69Q of said chapter 164, as appearing in the 1990 Official Edition, is hereby amended by striking out in lines l, 7, and 10 the word: "council" and inserting in place thereof, in each instance, the word:- board.

SECTION 38. Section 69R of said chapter 164, as appearing in the 1990 Official Edition, is hereby amended in line 1 by inserting after the word "company" the following words:- which is required to file a long-range forecast pursuant to section sixty-nine I.

SECTION 39. Said section 69R, as so appearing, is hereby further amended by striking out in lines 3-5 the words "the proposed long-range electric power or gas forecast submitted in accordance with section sixty-nine I" and inserting in place thereof the following words:- a petition submitted in accordance with section sixty-nine J.

SECTION 40. Section 69S of said chapter 164, as appearing in the 1990 Official Edition, is hereby amended by striking out in lines 1, 15, 16, 18, 21-22, 24 and 31 the word "council" and inserting in place thereof the word:- board.

SECTION 41. Said section 69S, as so appearing, is hereby further amended by striking out in line 30 the word "council's" and inserting in place thereof the word:- board's.

SECTION 42. Sections 161 and 326 of chapter 150 of the acts of 1990 are hereby repealed.

SECTION 43. Any petition pursuant to section sixty-nine I of chapter one hundred and sixty-four of the General Laws for approval of a long-range forecast or supplement thereto pending on the effective date of this act shall be deemed to constitute a petition to the department of public utilities, and any petition to construct a facility pending before the council on the effective date of this act shall be deemed to constitute a petition to the energy facilities siting board pursuant to section sixty-nine J of chapter one hundred and sixty-four.

SECTION 44. Notwithstanding the provisions of any general or special law to the contrary, the department of public utilities is authorized and directed to determine, after receiving advice from an advisory committee appointed by the secretary of consumer affairs and business regulation and consisting of three representatives of investor-owned electric utilities; one representative of the independent power production industry; one consumer representative and one representative of energy conservation providers, the proportionate share of the operation of the integrated resource management section of the department that should be collected from fees to be paid by entities which are not assessed under section twelve M of chapter twenty-five of the General Laws and which are participating in the integrated resource management process.

A fee of not more than one hundred dollars shall be set for each resource proposal, including but not limited to conservation, load management and electricity supplies, submitted to an electric company as part of a request for proposals solicited pursuant to the integrated resource management process. Additional fees shall be collected from those entities whose proposed contracts with utility companies to provide energy resources and conservation services have been submitted for approval pursuant to the integrated resource management regulations. The appropriate level of said additional fees shall be determined by the department after notice and public hearing and after receiving advice from said advisory committee. All of said fees shall be collected by said department and shall be deposited in the assessment account established to provide operating funds for said section. The department shall provide for a biennial audit of all accounts of the department by the state auditor and include a copy of said audit in their report to the governor and to the energy advisory board, established under section two A of said chapter twenty-five.

Any such fees, and any funds unexpended in the assessment account in any fiscal year for the purpose for which said assessment was made, shall be credited against the assessment to be made the following fiscal year and the assessment in the following year shall be reduced by such unexpended amount; provided that the department shall not expend from the assessment account more than one million and fifty thousand dollars in any single fiscal year. Assessments made herein may be credited to the normal operating costs of each company.

For each program, permit or contract application for which a fee is established pursuant to regulations promulgated relative to the integrated resource management program, the department shall establish by regulation a schedule for timely action by the department on such program, permit or contract applications.

To the extent that such approvals of programs, permits or contract applications are delayed for any company because of the failure of the department to complete its review pursuant to the schedule set forth in said regulations, the integrated resource management assessment against the affected utility company in the following fiscal year shall be reduced by fifteen percent; and said fifteen percent shall increase by five percentage points for each two week period, if such delay continues, up to a maximum of fifteen percentage points beyond said fifteen percent; provided that if such delay is requested by an electric utility, caused by an electric company's failure to fulfill the requirements of the integrated resource management regulations in a timely and responsive manner, occasioned by circumstances beyond the control of the department, or the delay in such final approval is the subject of an agreement by the parties to the proceeding, then no such percentage reduction shall be required. This section shall not apply to adjudicatory hearings conducted by the department under sections sixty-nine J or ninety-four of chapter one hundred and sixty-four of the General Laws.

SECTION 45. All employees of the energy facilities siting council transferred by this act to the department of public utilities, who immediately prior to the effective date of this act, either hold permanent appointment in positions classified under chapter thirty-one of the General Laws or have tenure in their positions by reason of section nine A of chapter thirty of the General Laws, are hereby transferred to the department of public utilities, every such transfer to be without impairment of civil service status, seniority, retirement or other rights of the employee and without interruption of service within the meaning of chapter thirty-one or said section nine A and without reduction in compensation or salary grade notwithstanding any change in title or duties resulting from such transfer, subject to the provisions of chapter thirty-one and the rules and regulations adopted thereunder; provided, however, that the position of executive director of such council shall become a managerial position at the department.

All employees of such council who, immediately prior to said effective date, neither hold permanent appointment in such positions nor have such tenure, are hereby transferred to the department of public utilities, every such transfer to be without impairment of seniority, retirement or other rights of such employees, and without interruption of services within the meaning of section nine A of chapter thirty and without reduction in compensation or salary grade, notwithstanding any change in title or duties resulting from such transfer.

Nothing in this section shall be construed to confer upon any employee any rights not held immediately prior to the effective date of this act or to prohibit any reduction of salary or grade, transfer, reassignment, suspension, discharge, layoff or abolition of position not prohibited prior to said effective date.

SECTION 46. All petitions, hearings and other proceedings duly brought before, and all prosecutions and legal and other proceedings duly begun by the energy facilities siting council which are pending immediately prior to the effective date of this act, shall continue unabated and remain in force notwithstanding the passage of this act, and shall thereafter be completed before or by the energy facilities siting board or the department of public utilities, as the case may be.

All orders, rules and regulations duly made, and all licenses, permits, certificates and approvals duly granted, and all legal and decisional precedents established by such council which are pending immediately prior to the effective date of this act, shall continue in force and the provisions thereof shall thereafter be enforced, until superseded, revised, rescinded or cancelled in accordance with law by such board or department, as the case may be.

All questions regarding the identification of such petitions, hearings, prosecutions, proceedings, orders, rules, regulations, licenses, permits, certificates and approvals, and of the agencies to which the completion of enforcement thereof is so transferred, shall be determined by the chairman of the department of public utilities.

SECTION 47. All books, papers, records, property, documents, equipment, lands, interests in land, buildings, facilities and other property, both personal and real, which immediately prior to the effective date of this act are in the custody of the energy facilities siting council, are hereby transferred to the energy facilities siting board or the department of public utilities.

All questions regarding the identification of such property and of the agencies to which custody thereof is transferred shall be determined by the chairman of the department of public utilities.

SECTION 48. All duly existing contracts, memoranda of understanding, leases and obligations of the energy facilities siting council which are in force immediately prior to the effective date of this act, shall thereafter be performed by the energy facilities siting board or the department of public utilities, as the case may be. No existing right or remedy of any character shall be lost, impaired or affected by the provisions of this act.

SECTION 49. All monies heretofore appropriated for the energy facilities siting council remaining unexpended on the effective date of this act are hereby transferred to the energy facilities siting board or the department of public utilities, in accordance with sections sixty-nine G through sixty-nine Q of chapter one hundred and sixty-four of the General Laws, and shall be available for expenditure by such board or department for the purposes for which such funds were originally appropriated.

All questions regarding the identification of such monies and of the agencies to which they are so transferred shall be determined by the chairman of the department of public utilities.

SECTION 50. Wherever the name of the energy facilities siting council appears in any general or special law, or in any order, rule, regulation or other document, such name shall mean and shall be construed as referring to the energy facilities siting board or the department of public utilities, as the case may be, in accordance with sections sixty-nine G through sixty-nine Q of chapter one hundred and sixty-four of the General Laws.

SECTION 51. The regulations of the energy facilities siting council as codified in 980 Code of Massachusetts Regulations, sections one through eleven, shall remain in full force and effect until such time as the energy facilities siting board amends such regulations or adopts new regulations pursuant to section sixty-nine H of chapter one hundred and sixty-four of the General Laws.

SECTION 52. Wherever in any special or general law or in any rule or regulation there is provided a right of appeal to the energy facilities siting council, a right of appeal to the energy facilities siting board or to the department of public utilities, as the case may be, shall exist; and such appeal shall be made pursuant to the provisions of any applicable law, rule or regulation or amendments thereto or, in the absence of such applicable law, rule or regulation, pursuant to chapter thirty A of the General Laws.

SECTION 53. All functions, rights, obligations, powers, duties and statutory provisions which, prior to the effective date of this act, were assigned to, or exercised by, the energy facilities siting council shall continue to be exercised and performed by, and to be assigned to, the energy facilities siting board or the department of public utilities, as the case may be, except as such powers, duties or other statutory provisions are modified by this act.

SECTION 54. This act shall not apply to any matter over which any agency, department or instrumentality of the federal government has exclusive jurisdiction.

SECTION 55. This act shall take effect on September first, nineteen hundred and ninety-two.

SECTION 56. If any provision of this act, or the application to any person or circumstance, shall be declared invalid under the constitution of the commonwealth or of the United States, such invalidity shall not affect the validity of the remaining provisions of this act. `t+99