The EFSB and DPU Siting review process is a legal proceeding, in which the burden is on the developer or utility company to demonstrate that the proposed project meets the requirements set forth in the statutes and regulations. During the proceeding, parties may present witnesses and evidence, ask written questions, examine each other's witnesses, and make arguments as to whether the evidence indicates that a proposed project should be approved, and if so, under what conditions.
The Siting Division acts as a fact finder, and, depending on the type of case, either the EFSB or the DPU Commission approves or rejects a proposed project based on the evidence developed during the proceeding. The process includes the following steps.
Public Comment Hearing
A case begins when an applicant files a petition under the relevant statute. The applicant is then instructed to distribute a Public Notice via the following methods:
- Publish a notice of its proposal to construct the project in at least two newspapers having a reasonable level of circulation within the community or region prior to the Public Comment Hearing;
- Mail notice to owners of all property within a certain distance of the boundaries of the proposed project; and
- Post the notice in the city or town halls of communities in which the proposed project would be located.
After the notice has been published, the Siting Division staff conducts one or more public hearings, generally in the city or town where the facility is proposed. The public hearing, held in the evening, provides those who attend with an opportunity to learn about the proposed project and its potential environmental impacts. It also allows staff to learn about the public's concerns. At the public hearing, the applicant presents an overview of the proposed facility. Public officials and the public then have an opportunity to ask questions and make comments about the proposal. The public hearing is recorded by a court reporter. Written comments are also welcome and given equal weight to in-person comments.
There are instances when a single project can consist of several cases with the EFSB and DPU jurisdictions. In most of these instances, the Chairman of the Department issues a Consolidation Order pursuant to G. L. c. 25, § 4, which directs the Siting Board to render a Decision in all related cases after conducting a single adjudicatory proceeding and developing a single evidentiary record. When cases are consolidated, Siting Board rules apply to the proceeding. 980 CMR 1.00 et seq.
Petition for Intervention
Persons or groups who wish to be involved in a Siting Division proceeding beyond providing public comments at the hearing may seek either to intervene as a party, or to participate as a limited participant. Intervention as a party is a more formal route of participation (compared to participating in the process as a limited participant) which presents one with an opportunity for extended involvement in the evidentiary proceeding and the right to appeal a final decision. The following is a comparison between the roles of intervenor and limited participant in Siting Division proceedings:
An Intervenor may:
- Issue information requests and receive responses;
- Present written testimony and witnesses;
- Cross-examine witnesses;
- File a brief; and
- Appeal an order or final decision.
A Limited Participant may:
- Receive copies of information requests and testimony in a proceeding;
- Receive copies of responses to information requests; and
- File a brief.
The developer or utility company responds to written questions (called "discovery") from the Siting Division staff and individuals or groups that have been permitted to intervene as a party. Intervenors may present expert testimony, if they wish to do so. They may also be requested to respond to discovery by the developer or utility company and the staff, and may be required to respond to discovery by other intervenors.
Witnesses are questioned under oath by Siting Division staff, the developer or utility company, and intervenors in a process that resembles a hearing in a court of law.
The developer, intervenors and, in some cases, limited participants provide written arguments as to why the evidence indicates that the proposed project should or should not be approved.
Issue Decision or Order
For proceedings under EFSB jurisdiction, the Siting Division staff issues a Tentative Decision approving or rejecting the project. The parties receive the Tentative Decision prior to the scheduled Siting Board meeting for review and comment. After the comment period, the Siting Board meets in public to vote on whether to accept the Tentative Decision. The Final Decision reflects any changes made at the Siting Board meeting.
For proceedings under DPU jurisdiction, the DPU Commissioners issue an Order approving or rejecting the project.