Bill Text: NC S366 | 2017-2018 | Regular Session | Amended
Bill Title: Responsible Wind Energy Implementation
Spectrum: Partisan Bill (Republican 4-0)
Status: (Introduced - Dead) 2017-03-27 - Ref To Com On Rules and Operations of the Senate [S366 Detail]
Download: North_Carolina-2017-S366-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2017
S 1
SENATE BILL 366*
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Short Title: Responsible Wind Energy Implementation. |
(Public) |
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Sponsors: |
Senators Cook, Sanderson, Brock (Primary Sponsors); and Rabin. |
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Referred to: |
Rules and Operations of the Senate |
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March 27, 2017
A BILL TO BE ENTITLED
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.
The General Assembly of North Carolina enacts:
SECTION 1. Article 21C of Chapter 143 of the General Statutes reads as rewritten:
"Article 21C.
"Permitting and Control of Industrial Wind Energy Facilities.
"§ 143‑215.115. Definitions.
In addition to the definitions set forth in G.S. 143‑212, the following definitions apply to this Article:
(1) "Major military installation" means Fort Bragg, Pope Army Airfield, Marine Corps Base Camp Lejeune, New River Marine Corps Air Station, Cherry Point Marine Corps Air Station, Military Ocean Terminal at Sunny Point, the United States Coast Guard Air Station at Elizabeth City, the Harvey Point Defense Testing Activity facility, Naval Support Activity Northwest, Air Route Surveillance Radar (ARSR‑4) at Fort Fisher, and Seymour Johnson Air Force Base, in its own right and as the responsible entity for the Dare County Bombing Range, and any facility located within the State that is subject to the installations' oversight and control.
(1a) "WEF" means a wind energy facility or a wind energy facility expansion.
(2) "Wind energy
facility" means the turbines, parcels of land containing one or
more industrial‑sized wind energy turbines rated at one megawatt or more,
along with accessory buildings, transmission facilities, and any other
equipment necessary for the operation of the facility that cumulatively,
with any other wind energy facility whose turbines are located within one‑half
mile of one another, have a rated capacity of one megawatt or more of energy.WEF.
Except as provided by G.S. 143‑215.119A(d), this Article applies
only to a WEF located onshore. For purposes of this Article, an expansion of an
existing WEF shall be considered a WEF unless the expansion (i) reduces the total
footprint of the WEF and (ii) does not include any new land that was not
previously part of the WEF site.
(3) "Wind energy facility
expansion" means any activity that (i) adds additional turbines, or
substantially(ii) modifies the size or rating of any existing turbines
or transmission facilities, including increasing the height of such equipment,
turbines, or (iii) changes the footprint of the WEF over that whichwhat
was initially permitted or (ii) increases the footprint of the wind
energy facility over that which was initially permitted.
(4) "Site" means all parcels that make up the WEF, including those which are not contiguous.
(5) "Infrasound" means low frequency sound not ordinarily hearable by humans, but which may still affect humans, even if unaware of its presence.
(6) "Major WEF stakeholders" means the North Carolina Utilities Commission; the North Carolina Department of Health and Human Services; the North Carolina Department of Commerce; the North Carolina Department of Transportation; the United States Army Corps of Engineers; the United States Fish and Wildlife Service; the United States National Park Service; the North Carolina Wildlife Resources Commission; the commanding officer, or the commanding officer's designee, of any potentially affected major military installation; the North Carolina 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 deems relevant.
"§ 143‑215.116. Permit to site wind energy
facilities.a WEF.
No person shall undertake
construction, operation, or expansion activities associated with a wind
energy facility WEF in this State without first obtaining a permit
from the Department.
"§ 143‑215.117. Permit preapplication site evaluation meeting; notice; preapplication package requirements.
(a) Permit Preapplication
Site Evaluation Meeting. – No less than 180 days prior to filing an application
for a permit to construct, operate, or expand a wind energy facility,WEF,
a person shall request a preapplication site evaluation meeting to be held
between the applicant and the Department. The permit preapplication site
evaluation meeting shall be held no less than 120 days prior to filing an
application for a permit to construct, operate, or expand a wind energy
facilityWEF and may shall be used by the participants
to:participants, together with the materials described in subsection (b)
of this section, to do the following:
(1) Conduct a preliminary
evaluation of the site or sites for the proposed wind energy facility
or wind energy facility expansion. WEF. The preliminary evaluation of
the proposed wind energy facility or proposed wind energy facility expansion shall
determine if the site or sites:proposed WEF may do any of the
following:
a. Pose serious risk
to civil air navigation navigation, including aerial spraying or
firefighting, or military air navigation routes, air traffic control areas,
military training routes, special‑use air space, radar, or other potentially
affected military operations.
b. Pose serious risk to
natural resources and uses, including uses within five miles of the
proposed WEF. This includes risk to species of concern or their habitats.habitats
and includes decreased groundwater recharge, increased stormwater discharge, or
increased turbidity and sedimentation in streams impacted by the WEF.
c. Pose serious risks to the health, safety, and welfare of citizens residing within two miles of the proposed WEF.
(2) Identify areas where proposed construction or expansion activities pose minimal risk of interference with civil air navigation or military air navigation routes, air traffic control areas, military training routes, special‑use air space, radar, or other potentially affected military operations.
(3) Identify areas where proposed construction or expansion activities pose minimal risk to natural resources and uses, including groundwater, and avian, bat, and endangered and threatened species.
(4) Identify areas where proposed construction or expansion activities pose minimal risk to the health, safety, and welfare of proximate residents.
(b) Permit Preapplication
Package. – No less than 45 days prior to the date of the permit preapplication
site evaluation meeting scheduled in accordance with subsection (a) of this
section, the applicant for a wind energy facility or wind energy facility
expansion WEF shall submit a preapplication package to the
Department. To the extent that any documents contain verifiable trade
secrets or confidential business information, those portions of the documents
shall not be subject to disclosure under the North Carolina Public Records Act.
The preapplication package shall include include, in both printed and
digital formats, all of the following:
(1) A narrative description
of the proposed wind energy facility or proposed wind energy facility
expansion, WEF, including (i) the approximate number, type,type
and height maximum physical dimensions of wind turbines to be
constructed; (ii) the total planned capacity of the facility; WEF; and
(iii) a description of any ancillary facilities.
(2) A United States
Geological Survey topographic map showing the approximate location of the
proposed wind energy facility or proposed wind energy facility expansion.WEF
and the anticipated location of the WEF's turbines.
(3) A description of any
known potential impacts of the proposed wind energy project location WEF
on civil air navigation 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. The applicant may use data made
available by the Department pursuant to G.S. 143‑215.123 to satisfy this
requirement.
(4) A description of species of concern, habitats
that support species of concern, critical areas of wildlife congregation, and
protected lands, as those species, habitats, and critical areas are referenced
in the March 23, 2012, United States Fish and Wildlife Service Land‑Based
Wind Energy Guidelines (OMB Control No. 1018‑0148) that are or believed
to be present at the site of the proposed wind energy facility or proposed wind
energy facility expansion. The applicant may use data made available by the
North Carolina Wildlife Resources Commission, the Department, or other
governmental agency to satisfy this requirement.
(4) A description of any known potential adverse impacts of the proposed WEF on natural and agricultural resources, including groundwater, crop production, and animals. For purposes of this subdivision, "animals" includes wildlife, livestock, and domestic animals, including bats, raptors, and endangered and threatened species.
(5) A description of any known potentially adverse impacts of the proposed WEF on the health, safety, and welfare of proximate residents and visitors.
(5)(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 in order to
authorize the construction, operation, or expansion of the proposed wind
energy facility.WEF.
(6)(7) A schedule
showing the anticipated dates for commencement of construction, testing, and
commercial operation of the proposed wind energy facility or proposed wind
energy facility expansion.WEF.
(8) An operation and maintenance plan that includes, at a minimum, routine and emergency checks for structural integrity, repairs, and rust prevention.
(9) The URL of a Web site created by the applicant with information about the proposed WEF which (i) provides the full text of all documents submitted by the applicant to any federal, State, or local government agency that are considered public records under State law; (ii) lists the titles, or a general description if the document has no title, of all documents submitted by the applicant to any federal, State, or local government agency that are considered proprietary and confidential under State law; (iii) lists the name and address of all leaseholders; (iv) provides an opportunity for regional citizens to make publically shown comments on the proposed WEF; and (v) has been advertised in a locally circulated newspaper.
(c) Notice to Interested
Parties. – No less than 21 days prior to the date of the permit preapplication
site evaluation meeting scheduled in accordance with subsection (a) of this
section, the Department shall provide written notice of the meeting to the
United States Army Corps of Engineers, the United States Fish and Wildlife
Service, the North Carolina Wildlife Resources Commission, the commanding
military officer or the commanding military officer's designee of any
potentially affected major military installation, and any other party that the
Department deems relevant. The notice shall include an invitation to
participate in the permit preapplication site evaluation meeting.meeting,
including an invitation to participate, to the major WEF stakeholders.
(d) The Department shall prepare detailed minutes or make an audio recording of the meeting, and the minutes or recording shall become an official part of the permit application package.
"§ 143‑215.118. Permit application scoping meeting and notice.
(a) Scoping Meeting. – No
less than 60 days prior to filing an application for a permit for a proposed wind
energy facility or proposed wind energy facility expansion, WEF, the
applicant shall request the scheduling of a scoping meeting between the applicant
and the Department. The scoping meeting shall be held no less than 30 days
prior to filing an application for a permit for a proposed wind energy
facility or proposed wind energy facility expansion. WEF. The
applicant and the Department shall review the permit for the proposed wind
energy facility or proposed facility expansion WEF at the scoping
meeting. The scoping meeting shall be held in a county where the WEF is
proposed to be located.
(b) Notice of Scoping
Meeting. – No less than 21 days prior to the scheduled permit application
scoping meeting with an applicant, the Department shall provide written notice
of the meeting to the commanding military officer of each major military
installation, or the commanding military officer's designee, the Federal
Aviation Administration, the North Carolina Wildlife Resources Commission, the
United States Fish and Wildlife Service, the board of commissioners for each
county and the governing body of each municipality in which the wind energy
facility or proposed wind energy facility expansion is proposed to be located,
and those local governments with jurisdictions over areas in which a major
military installation is locatedmajor WEF stakeholders. The notice
shall include an invitation to participate in the scoping meeting.
(c) The meeting shall be advertised pursuant to open meetings laws and shall be open to the public.
(d) The Department shall prepare detailed minutes or make an audio recording of the meeting, and the minutes or recording shall become an official part of the permit application package.
"§ 143‑215.119. Permit application requirements; fees; notice of receipt of completed permit; public hearing; public comment.
(a) Permit Requirements. – A
person applying for a permit for a proposed wind energy facility or proposed
wind energy facility expansionWEF shall include all of the following
in an application for the permit:permit in both printed and digital
format.
(1) A narrative description
of the proposed wind energy facility or proposed wind energy facility
expansion.WEF.
(2) A map showing the
location of the proposed wind energy facility or proposed wind energy
facility expansionWEF that identifies the specific location location,
height, and rating of each turbine.anticipated turbine, and all
other buildings, roads, and equipment that are a part of the WEF.
(3) A copy of a deed,
purchase agreement, lease agreement, or other legal instrument or
lease agreement demonstrating the applicant's right to construct,
expand, or otherwise develop a wind energy facilityWEF on all the
property.properties involved. For purposes of this subdivision, the lease
agreement means the original full lease agreement and does not mean the memorandum
of lease.
(4) Identification by name
Name and address of all property owners adjacent to the
proposed wind energy facility or proposed wind energy facility expansion. within
two miles of the perimeter of the WEF. The applicant shall notify every
property owner identified pursuant to this subdivision by registered or
certified mail or by any means authorized by G.S. 1A‑1, Rule 4, in a
form approved by the Department. The notice shall include all of the
following:the information required by subdivisions (1) and (2) of this
subsection.
a. The location of the proposed wind energy
facility or proposed wind energy facility expansion and the specific location
of each turbine proposed to be located within one‑half mile of the
boundary of the adjacent property owner.
b. A description of the proposed wind energy
facility or proposed wind energy facility expansion.
(4a) The applicant's North Carolina Utilities Commission Certificate of Public Convenience and Necessity.
(5) A description of civil
air navigation or 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 may be affected by the
construction or operation of the proposed wind energy facility or proposed
wind energy facility expansion.WEF.
(6) Documentation that
addressesA description of any potential adverse impact on on
(i) military operations and readiness as identified by the Department of
Defense Clearinghouse pursuant to Part 211 of Title 32 Code of Federal
Regulations (July 1, 2012 edition) operations, (ii) military readiness,
or (iii) the lives of military personnel, and any mitigation rectifying
actions agreed to by the applicant.
(7) Documentation that the
applicant has either (i) submitted Federal Aviation Administration Form 7460‑1
for the turbines associated with the proposed wind energy facility or proposed
wind energy facility expansion or (ii) initiated an informal completed a
review by the Department of Defense Siting Clearinghouse of the proposed wind
energy facility or proposed wind energy facility expansion. If the applicant
has submitted Federal Aviation Administration Form 7460‑1 in order to
fulfill the requirements of this subdivision, the applicant shall provide any
determination reached by the Federal Aviation Administration at the time
the application is submitted to the Department. If the Federal Aviation
Administration has not made a determination at the time the application is
submitted to the Department, the application shall include a description of the
status of the applicant's engagement with the Federal Aviation Administration
and the Department of Defense Siting Clearinghouse. WEF. This includes
an unredacted copy of the agreement negotiated through this process and
unredacted copies of all correspondences between the applicant and the
Department of Defense, including any Memoranda of Understanding. Nothing in
this subdivision is intended to prevent the redaction of federally classified
information.
(8) A study of the noise
impacts of the turbines to be associated with the proposed wind energy facility
or proposed wind energy facility expansion.A list of the documentation submitted
by the applicant to the Federal Aviation Administration associated with the
proposed WEF and any approvals or determinations issued by the Federal Aviation
Agency, including, but not limited to, the applicant's "No Hazard
Determination" documentation.
(9) A study on shadow
flicker impacts of the turbines to be associated with the proposed wind energy
facility or proposed wind energy facility expansion, unless the turbines will
be located in a sound or in offshore waters.
If there are residential properties within two miles of the proposed WEF, a
study of the possible human health impacts of the proposed WEF's turbines. This
study shall use established industry standards to thoroughly and objectively
assess the potential impacts of such concerns as infrasound; audible noise
vibrations; electromagnetic fields; shadow flicker; blade glint; ice throw; and
component liberation due to major storms, lightning, or other causes on humans
within two miles of the WEF. The study shall be conducted by independent
experts selected from a list of providers approved by the Department of Health
and Human Services and paid for by the applicant.
(10) A study of the impact
of the proposed wind energy facility or proposed wind energy facility expansion
on natural resources and uses, including avian, bat, and endangered and
threatened species.A study of the local
and regional economic impacts of the proposed WEF. This study shall thoroughly
and objectively assess the potential short‑term and long‑term
financial impacts, including, but not limited to, construction employment and
spending; property tax revenue; lease contracts; and impacts on tourism,
agricultural yields, home values, and health care costs. The study shall be
conducted by independent experts selected from a list of providers approved by
the Department of Commerce and paid for by the applicant.
(11) An explanation of how
the proposed wind energy facility or proposed wind energy facility expansion
would be consistent with the criteria in subsection (a) of G.S. 143‑215.120. A plan of action to be taken to deactivate the WEF, and
to protect the public from harm due to WEF component liberation, during
tornadoes, hurricanes, nor'easters, and other high wind conditions.
(12) The application fee
required by subsection (c) of this section.An environmental assessment of the potential adverse
impacts of the proposed WEF on ecosystems, including domestic animals,
livestock, or wildlife, with specific analysis targeted at bat, avian, and
endangered or threatened species, and including migratory flyways and
corridors. The study shall be conducted by independent experts selected from a
list of providers approved by the Department and paid for by the applicant.
(13) A plan regarding the
action to be taken upon the decommissioning and removal of the wind energy
facility. The plan shall include an estimate of the cost to decommission and
remove the wind energy facility. The plan shall also include the anticipated
life of the project, an estimate of the cost to decommission and remove the
wind energy facility, a description of the manner in which the facility will be
decommissioned, and a description of the expected condition of the site once
the wind energy facility has been decommissioned and removed. 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, as compiled by the NC Natural Heritage Program; or other
public lands or private conservation lands designated or dedicated due to their
high recreational values, if any of these are in the viewshed of the proposed
WEF. The study shall be conducted by independent experts selected from a list
of Department‑approved providers and paid for by the applicant.
(14) Other data or
information the Department may reasonably require.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. This study will include stormwater discharge
calculations, including calculations of stream bank erosion and stream bed
scour due to increased stormwater discharge. The study will include a United
States Geological Survey topographic map showing the placement of monitoring
wells for determining a decrease in the water table of the surficial aquifer,
and also a decrease in hydraulic head of the underlying confined aquifers due
to WEF construction‑related activities. The study shall be conducted by
independent experts selected from a list of Department‑approved providers
and paid for by the applicant.
(15) Documentation for the applicant's proposed property value guarantee (PVG) for all residential properties within two miles of the perimeter of the WEF. The specific terms and conditions of the PVG are the responsibility of each local governing body where the WEF is located. Such a PVG must effectively protect the property values of all residential property owners within two miles of the perimeter of the WEF.
(16) An incident response plan that ensures that local emergency responders have the necessary equipment and training to effectively handle emergencies such as oil spills, turbine fires, and turbine structural damage or collapse, including access to equipment needed for rescue of trapped personnel.
(17) A plan regarding the action to be taken to decommission the WEF. The plan shall be consistent with the terms and conditions specified in G.S. 143‑215.119B.
(18) The Power Purchase Agreement (PPA).
(19) An explanation of how the proposed WEF would be consistent with the criteria in subsection (a) of G.S. 143‑215.122.
(20) The application fee required by subsection (c) of this section.
(21) Other data or information the Department may reasonably require.
(b) Confidentiality of Trade Secrets and Business Information. – To the extent that any documents included in the permit application contain verifiable trade secrets or verifiable confidential business information, those portions of the documents shall not be subject to disclosure under the North Carolina Public Records Act.
(c) Fees. – An applicant for
a permit for a proposed wind energy facility or proposed wind energy
facility expansionWEF under this section shall submit with the
application required pursuant to subsection (a) of this section,section
an application fee of three thousand five one hundred dollars ($3,500).($100.00)
per rated faceplate megawatt of the full proposed WEF.
(d) Notice of Receipt of
Complete Permit Application. – Within 1015 business days of
receipt of a complete completed permit application for a proposed
wind energy facility or proposed wind energy facility expansionWEF
submitted pursuant to subsection (a) of this section, the Department shall
provide notice of the permit application to (i) the commanding military
officer of all major military installations, (ii) the commanding military
officer of any military installation located outside the State that is located
within 50 nautical miles of the location of the proposed wind energy facility
or proposed wind energy facility expansion, and (iii) the board of
commissioners for each county and the governing body of each municipality in
which the wind energy facility or wind energy facility expansion is proposed to
be located.major WEF stakeholders. The notice shall include:
(1) A copy of the map showing
the location of the proposed wind energy facility or proposed wind energy
facility expansionWEF that includes the specific locations of
wind turbines.locations, heights, and ratings of each wind turbine, and
all buildings and major equipment of the WEF, including transmission lines.
(2) A written request to the commanding
military officer of a major military installation or the commanding military
officer's designee,commanding officers of all major military installations,
or their designees, and the Military Affairs Commission for technical
information related to any adverse impact on the installation's operations,
training, or mission, including military air navigation routes, air traffic
control areas, military training routes, special‑use air space, radar radar,
or other military operations that may be affected.or lives of
military personnel that may be put at risk.
(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 proposed wind energy facility or proposed
wind energy facility expansion on local governments from the board of
commissioners for each county and the governing body of each municipality.WEF
on local governments, local businesses, local property values, and local
ecosystems.
(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.
(e) Provision of Permit
Application to Affected Entities. – Except as provided by G.S. 143‑215.124,
within Within 10 days of receipt of a written request from the
commanding military officer of any major military installation or the
commanding military officer's designee, the board of commissioners for any
county in which the site is proposed to be located or the governing body of any
municipality in which the site is proposed to be located, the Department shall
provide a copy of a permit application material filed pursuant to
subsection (a) of this section, the Department shall provide a copy of such
material, in addition to any supplements, changes, or amendments to the permit
application to the requesting commanding military officer or local government.amendments,
to the major WEF stakeholders and any other parties the Department deems
relevant.
(f) Public Hearing and
Comment. – The Department shall hold a public hearing in each county in which
the wind energy facility or wind energy facility expansionWEF is
proposed to be located within 75 days of receipt of a completed permit
application. The Department shall provide notice including the time and
location of the public hearing in a newspaper of general circulation in each
applicable county. The notice of public hearing shall be published for at least
two consecutive weeks beginning no less than 45 days prior to the scheduled
date of the hearing. The notice shall provide that any comments on the proposed
wind energy facility or proposed wind energy facility expansionWEF
should be submitted to the Department by a specified date, not less than 15
days from the date of the newspaper publication of the notice or 15 days after
distribution of the mailed notice, whichever is later. No less than 30 days
prior to the scheduled public hearing, the Department shall provide written
notice of the hearing to:
(1) The North Carolina Utilities Commission.
(2) The Office of the Attorney General of North
Carolina.
(3) The commanding military officer of any
potentially affected major military installation or the commanding military
officer's designee.
(4) The board of commissioners for each county and
the governing body of each municipality with jurisdictions over areas in which
a potentially affected major military installation is located. to the
North Carolina Attorney General's Office and all major WEF stakeholders. The
Department shall create and maintain a record of comments made at any public
hearings under this subsection.
"§ 143‑215.119A. Setback requirements.
(a) Turbines in a WEF shall maintain a setback from the property line of any residential or residentially zoned parcels outside the perimeter of the WEF. The setback shall be the greater of one mile or 10 times the maximum height of the turbine's blade tip.
(b) Turbines in a WEF shall maintain a minimum setback of at least two and one‑half the maximum height of the turbine's blade tip from any residential structure within the WEF.
(c) Turbines in a WEF shall 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.
(d) For an offshore WEF, no turbines shall be sited within 24 miles of the nearest shore.
(e) No turbines in a WEF shall be sited within 30 miles of a major military installation. No turbines in a WEF shall be sited within five miles of any low‑level military flight paths. If it is determined by the commanding officer of any major military installation, or the commanding officer's designee, or the Military Affairs Commission, that with these setbacks that the proposed WEF may result in an adverse impact upon the operation or readiness of a military installation or put the lives of military personnel at risk, the Department shall require a WEF setback in excess of the minimum setbacks required in this section. The increased setback distance shall be determined in a manner that minimizes the potential for encroachment upon the operational and readiness requirements of major military installations and minimizes the risk to the lives of military personnel.
"§ 143‑215.119B. Decommissioning and reclamation; recycling requirements; financial assurance requirements.
(a) The applicant for a permit or a permit holder for a WEF shall be responsible for proper decommissioning of any turbine following no electricity generation, for any reason, including permit revocation, for six consecutive months, unless a one‑time three month extension is granted by the Department. The property will be returned to its original condition no later than one year following the six month period or extension. Decommissioning shall include the complete removal, including any subterranean portions, of all buildings, foundations, cabling, electrical components, turbines, and any other associated facilities or structures, to the level of four feet below grade. Upon decommissioning, the applicant for a permit or a permit holder for a WEF shall be responsible for properly disposing of each piece of equipment used in the WEF.
(b) The Department will hire qualified experts to determine a reasonable, conservative cost for decommissioning the WEF, pursuant to subsection (a), which shall be at least one hundred thousand dollars ($100,000) per turbine. This projection will not consider possible scrap values of any WEF components.
(c) The applicant for a permit or a permit holder for a WEF shall establish financial assurance of a type set forth in subsection (e) of this section that will ensure that sufficient funds are available under this subsection, even if the applicant or permit holder becomes insolvent or ceases to reside, be incorporated, do business, or maintain assets in the State.
(d) In order to continue to hold a permit under this Article, a permit holder must maintain financial assurance and must provide any documentation requested by the Department to establish that the permit holder continues to maintain financial assurance. A permit holder shall notify the Department of any significant change in the (i) identity of any person or structure of the business entity of the permit holder, owner, or operator of the WEF or (ii) assets of the permit holder, owner, or operator of the WEF. The permit holder shall notify the Department 30 days prior to making such a change. A change shall be considered significant if it has the potential to affect the financial assurance of the permit holder, owner, or operator, or if it would result in a change in the identity of the permit holder, owner, or operator for purposes of either financial assurance or environmental compliance review. Based on its review of the proposed changes, the Department may require the permit holder to reestablish financial assurance, modify or revoke a permit, or require issuance of a new permit.
(e) To establish financial assurance under this section, the applicant may use insurance, financial tests, third‑party guarantees by persons who can pass the financial test, guarantees by corporate parents who can pass the financial test, irrevocable letters of credit, trusts, surety bonds, any other financial device, or any combination of the foregoing shown to provide protection equivalent to the financial protection that would be provided by insurance if insurance were the only mechanism used.
"§ 143‑215.120. Criteria for permit approval; time frame; permit conditions; other approvals required.
(a) Permit Approval. – The
Department shall approve an application for a permit for a proposed wind
energy facility or proposed wind energy facility expansion WEF unless
the Department finds any one or more of the following:
(1) Construction or operation
of the proposed wind energy facility or proposed wind energy facility
expansion WEF would be inconsistent with or violate rules adopted by
the Department or any other provision of law.
(1a) 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.
(2) Construction or operation
of the proposed wind energy facility or proposed wind energy facility
expansionWEF would encroach upon or would otherwise have a
significant adverse impact on the mission, training, or operations of any major
military installation or branch of military in North Carolina and result in a
detriment to continued military presence in the State. In its evaluation, the
Department may consider whether the proposed wind energy facility or proposed
wind energy facility expansion would cause interference with air navigation
routes, air traffic control areas, military training routes, or radar based on
information submitted by the applicant pursuant to subdivisions (5) and (6) of
subsection (a) of G.S. 143‑215.119, and any information received by the
Department pursuant to subdivision (2) of subsection (d) of G.S. 143‑215.119.major
military installation, or put the lives of military personnel in jeopardy,
based upon the conclusions of Military Affairs Commission or consulted military
personnel.
(3) Construction or
operation of the proposed wind energy facility or proposed wind energy facility
expansion would result in significant adverse impacts to ecological systems,
natural resources, cultural sites, recreation areas, or historic sites of more
than local significance; including national or State parks or forests,
wilderness areas, historic sites, recreation areas, segments of the natural and
scenic rivers system, wildlife refuges, preserves and management areas, areas
that provide habitat for threatened or endangered species, primary nursery
areas designated by the Marine Fisheries Commission and the Wildlife Resources
Commission, and critical fisheries habitat identified pursuant to the Coastal
Habitat Protection Plan. Operation of the proposed WEF would either (i)
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 (ii) 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.
(4) Construction or
operation of the proposed wind energy facility or proposed wind energy facility
expansion would have a significant adverse impact on fish or wildlife.Operation
of the proposed WEF would likely be a net economic liability to the host
communities based upon the conclusions of the North Carolina Department of
Commerce.
(5) Construction or
operation of the proposed wind energy facility or proposed wind energy facility
expansion would have a significant adverse impact on views from any State or
national park, wilderness area, significant natural heritage area as compiled
by the North Carolina Natural Heritage Program, or other public lands or
private conservation lands designated or dedicated due to their high
recreational values.Construction or operation of the WEF would have a
significant adverse impact on domestic animals, livestock, or wildlife.
(6) Construction or
operation of the proposed wind energy facility or proposed wind energy facility
expansion would obstruct major navigation channels or create a significant
obstacle to navigation in coastal waters, as determined by the United States
Army Corps of Engineers and the United States Coast Guard.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.
(7) A permit for a
proposed wind energy facility or proposed wind energy facility expansion would
be denied under any other criteria set out in G.S. 113A‑120.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.
(8) Construction of the
proposed wind energy facility or proposed wind energy facility expansion would
be prohibited under Article 14 of Chapter 113A of the General Statutes, the
Mountain Ridge Protection Act of 1983.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, as
compiled by the North Carolina Natural Heritage Program; or other public lands
or private conservation lands designated or dedicated due to their high
recreational values.
(9) The applicant is not
in compliance with all applicable federal, State, or local permit requirements,
licenses, or approvals, including local zoning requirements.The
applicant has not agreed to an adequate property value guarantee.
(10) The applicant has not submitted an acceptable incident response plan.
(11) The applicant has failed to establish an acceptable decommissioning plan in accordance with G.S. 143‑215.119B.
(12) The applicant has not submitted a bona fide power purchase agreement.
(13) A permit for a proposed WEF would be denied under any other criteria as set forth under G.S. 113A‑119A.
(14) Construction of the proposed WEF would be prohibited under the Mountain Ridge Protection Act of 1983, Article 14 of Chapter 113A of the General Statutes.
(15) The applicant is not in full compliance with all applicable federal, State, or local permit requirements, licenses, or approvals, including any local zoning laws.
(b) Permit Decision. – The
Department shall make a final decision on a permit application within 90 days
following receipt of a completed application, except that the Department
shall not be required to make a final decision until the Department has
received a written "Determination of No Hazard to Air Navigation"
issued by the Federal Aviation Administration pursuant to Subpart D of Part 77
of Title 14 of the Code of Federal Regulations (January 1, 2012 edition).application.
If the Department requests additional information following the receipt of a
completed application, the Department shall make a final decision on a permit
application within 30 days of receipt of the requested information. If the
Department determines that an application for a wind energy facility or a
wind energy facility expansionWEF fails to meet the requirements for
a permit under this section, the Department shall deny the application, and the
application shall be returned to the applicant accompanied by a written
statement of the reasons for the denial and any modifications to the permit
application that would make the application acceptable. If the Department fails
to act within the time period set forth in this subsection, the applicant mayshould
treat the failure to actthis as a denial of the permit and may
challenge the denial as provided under Chapter 150B of the General Statutes.
(c) Permit Conditions. – The
Department (i) may include as a condition of a permit for a proposed wind
energy facility or proposed wind energy facility expansion a requirement that
the permit holder mitigate any adverse impacts and (ii) shall include as a
condition of a permit for a proposed wind energy facility or proposed wind
energy facility expansion a requirement that the permit holder obtain a written
"Determination of No Hazard to Air Navigation" issued by the Federal
Aviation Administration pursuant to Subpart D of Part 77 of Title 14 of the
Code of Federal Regulations (January 1, 2012 edition) for the facility. No
permit for a wind energy facility or wind energy facility expansion shall
become effective until the Department has received and reviewed the
"Determination of No Hazard to Air Navigation" issued by the Federal
Aviation Administration for the facility. If the specific location of a turbine
authorized to be constructed pursuant to a "Determination of No Hazard to
Air Navigation" or the configuration of the wind energy facility varies
from the information submitted by the applicant upon which the Department has
made its permit decision, the Department may reevaluate the permit application
and require the applicant to submit any additional information the Department
deems necessary to approve or deny a permit for the facility as reconfigured.The Department shall include, as a condition of a permit
for a proposed WEF, a requirement that the applicant satisfactorily resolve all
adverse impacts. This permit is good for two years from approval date, and no
extension will be granted. At least one turbine shall be erected and operating
for this permit to stay in force. This permit is not an authority to build. A conditional
use permit or special use permit process under local zoning law shall not start
until 15 days after this permit has been granted.
(c1) Permit Compliance. – If during the WEF's operation any condition of this permit is violated, then the permit holder will cease operation of all turbines that are in violation within one day of being notified by any governmental agency. The turbines shall not resume operation until the terms of the violation are fully corrected, to the satisfaction of the notifying agency.
(d) Other Approvals Required.
– The issuance of a permit under this section shall not obviate the need for
the applicant to obtain any and all other applicable local, State, or federal
permits, licenses, or approvals. Furthermore, nothing in this Article shall
be interpreted to limit, as applicable, (i) the application of Article 7 of
Chapter 113A of the General Statutes to facilities permitted under this
section, including the permitting requirements of G.S. 113A‑118,
(ii) the ability of a city or county to plan for and regulate the siting of a wind
energy facilityWEF in accordance with land‑use regulations
authorized under Chapter 160A and Chapter 153A of the General Statutes, or
(iii) the applicable requirements of Chapter 62 of the General Statutes. If
there are any conflicts between this law and local regulations, the more
stringent of the two shall govern.
"§ 143‑215.120A. Construction related damage.
(a) The owner of any permitted WEF shall, to the extent practicable, repair or replace all real or personal property, public or private, damaged during the WEF construction. The applicant shall reimburse the Department of Transportation (DOT) for repairs and reconstruction to roads that are necessary due to the construction or decommissioning of the WEF. A qualified independent third party, agreed upon by DOT and the applicant, shall be hired to evaluate, document, and rate the road conditions prior to construction or decommissioning of the WEF, and again 30 days after the WEF is completed or removed.
(b) Any road damage during construction found by the third party to be caused by activities of the applicant or one or more of its subcontractors shall be repaired or reconstructed to the satisfaction of DOT or the county at the applicant's expense, prior to the final inspection. In addition, the applicant shall pay for all costs related to this third party pre‑inspection work prior to receipt of the final inspection.
(c) The surety for removal of a decommissioned WEF shall not be released until any road damage that is identified by this third party during and after decommissioning due to activities of the applicant or the applicant's contractors or subcontractors has been repaired or reconstructed to the satisfaction of the DOT or the county at the applicant's expense. In addition, the applicant shall pay for all costs related to work of this third party's inspection prior to receipt of the release of the surety per G.S. 143‑215.119B.
"§ 143‑215.121. Financial assurance requirements.
The applicant for a permit or a
permit holder for a wind energy facility shall establish financial assurance
that will ensure that sufficient funds are available for decommissioning of the
facility and reclamation of the property to its condition prior to commencement
of activities on the site, even if the applicant or permit holder becomes
insolvent or ceases to reside in, be incorporated, do business, or maintain
assets in the State. To establish sufficient availability of funds under this
section, the applicant for a permit or a permit holder for a wind energy
facility may use insurance, financial tests, third‑party guarantees by persons
who can pass the financial test, guarantees by corporate parents who can pass
the financial test, irrevocable letters of credit, trusts, surety bonds, or any
other financial device, or any combination of the foregoing, shown to provide
protection equivalent to the financial protection that would be provided by
insurance if insurance were the only mechanism used.
"§ 143‑215.122. Monitoring and reporting.
The applicant shall annually submit
copies to the Department of anyall 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, PVG claims, the impacts on humans or wildlife
in the location of and in the area proximate to the wind energy facility or
wind energy facility expansion and within five miles of the WEF. The
applicant shall annually submit copies to the Department of any impacts
on military operationspost‑construction monitoring or reports that
are required by the United States Fish and Wildlife Service, the North
Carolina Wildlife Resources Commission, the North Carolina Utilities
Commission, major WEF stakeholders or any other government agency.
The applicant shall also annually submit copies to the Department of any post‑construction
monitoring or reports on any impacts on military operations.
"§ 143‑215.123. Annual review of military presence.
The Department shall consult with representatives
of the major military installations major military installation
representatives and MAC to review information regarding military air
navigation routes, air traffic control areas, military training routes, special‑use
air space, radar, or other potentially affected military operations at least
once per year. The Department shall provide relevant information it
is aware of on civil air navigation or military air navigation routes, air
traffic control areas, military training routes, special‑use air space,
radar, or other potentially affected military or civilian operations to
permit applicants as requested.
…
"§ 143‑215.126. Civil penalties.
(a) The Secretary of
Environmental Quality mayshall impose an administrative penalty
on a person who constructs a wind energy facility or wind energy facility
expansionWEF without obtaining a permit under this Article or who
constructs or operates a wind energy facilityWEF in violation of
its permit terms and conditions. Each day of a continuing violation shall
constitute a separate violation. The penalty shall be no less than one
thousand dollars ($1,000) per day and shall not exceed ten thousand dollars
($10,000) per day.
(b) The Secretary of
Environmental Quality, irrespective of all other remedies at law, may institute
an action for injunctive relief against a person who constructs a wind
energy facilityWEF without first obtaining a permit under this
Article or who constructs or operates a wind energy facility or wind energy
facility expansionWEF in violation of its permit terms and
conditions.
"§ 143‑215.127. Liability.
(a) Any person who owns, operates, or controls a WEF shall maintain (i) commercial general liability insurance, covering personal injuries, death, and property damage of ten million dollars ($10,000,000) per occurrence, with a total of twenty million dollars ($20,000,000) coverage aggregate, which shall specifically include the affected counties and municipalities and their officers, councils, employees, committee members, attorneys, agents, and consultants as additional named insureds and (ii) umbrella coverage of fifty million dollars ($50,000,000).
(b) The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the State.
(c) The insurance policies shall contain an endorsement obligating the insurance company to furnish the Department with at least 30 days' prior written notice in advance of a cancellation.
(d) No more than 15 days after the grant of the permit and before construction is initiated, the permit holder shall deliver to the Department a copy of each of the policies or certificates representing the insurance in the required amounts.
(e) Any person who owns, operates, or controls a WEF shall be strictly liable, without regard to fault, for damages to persons or property, public or private, caused by the construction, maintenance, operation, decommissioning, disassembly, or demolition of that WEF.
(f) In order to provide maximum protection for the public interest, any actions brought pursuant to this section may be brought against any one or more of the persons having control over the WEF or the activity that caused or contributed to the damages. All such persons shall be jointly and severally liable, but ultimate liability as between the parties may be determined by common‑law principles.
(g) There shall be no liability under this section for a person otherwise liable who can establish by a preponderance of the evidence that the damage was caused by any of the following:
(1) An act of God.
(2) An act of war or sabotage.
(3) An act or omission by the federal government, or the State, or its political subdivisions.
(4) An act or omission by, or at the direction of, a law enforcement officer or fireman.
(5) An act or omission by a third party who is not an agent, employee, contractor, or subcontractor of the person who is liable under this section.
(h) Nothing in this section shall deprive a claimant from electing to pursue any other cause of action for damages or injunctive relief under statutory or common law.
"§ 143‑215.128. Indemnification.
(a) All permits issued under this Article shall contain an indemnification provision applicable to the governing bodies for the WEF. For purposes of this section, "governing bodies" shall mean the State, each county containing all or part of the WEF, and the governing bodies of all municipalities in each of those counties, and shall include their employees or agents.
(b) The WEF permit applicant shall at all times defend, indemnify, protect, save, hold harmless, and exempt the governing bodies from penalties, damages, costs, charges, or other expenses arising out of claims, suits, demands, causes of action, or award of damages at law or in equity, whether compensatory or punitive, which might arise out of, or are caused by, the placement, construction, erection, modification, location, equipment performance, use, operation, maintenance, repair, installation, replacement, removal, or restoration of the WEF, excepting, however, any portion of such claims, suits, demands, causes of action, or award of damages as may be attributable to the negligent or intentional acts or omissions of the governing bodies.
(c) Reasonable attorneys' fees, consultants' fees, and expert witness fees shall be included in those costs that are recoverable by the governing bodies under the indemnification required by this section."
SECTION 2. This act is effective when it becomes law and applies to all wind energy facilities filing a permit application under Article 21C of Chapter 143 of the General Statutes, as amended by this act on or after that date.
