2004 Minnesota Statutes

     216B.243 Certificate of need for large energy facility. 

    Subdivision 1.    Assessment of need criteria.  The 
 commission shall, pursuant to chapter 14 and sections 216C.05 to 
 216C.30 and this section, adopt assessment of need criteria to 
 be used in the determination of need for large energy facilities 
 pursuant to this section. 

    Subd. 2.    Certificate required.  No large energy 
 facility shall be sited or constructed in Minnesota without the 
 issuance of a certificate of need by the commission pursuant to 
 sections 216C.05 to 216C.30 and this section and consistent with 
 the criteria for assessment of need. 

    Subd. 3.    Showing required for construction.  No 
 proposed large energy facility shall be certified for 
 construction unless the applicant can show that demand for 
 electricity cannot be met more cost effectively through energy 
 conservation and load-management measures and unless the 
 applicant has otherwise justified its need.  In assessing need, 
 the commission shall evaluate: 

    (1) the accuracy of the long-range energy demand forecasts 
 on which the necessity for the facility is based; 

    (2) the effect of existing or possible energy conservation 
 programs under sections 216C.05 to 216C.30 and this section or 
 other federal or state legislation on long-term energy demand; 

    (3) the relationship of the proposed facility to overall 
 state energy needs, as described in the most recent state energy 
 policy and conservation report prepared under section 216C.18; 

    (4) promotional activities that may have given rise to the 
 demand for this facility; 

    (5) benefits of this facility, including its uses to 
 protect or enhance environmental quality, and to increase 
 reliability of energy supply in Minnesota and the region; 

    (6) possible alternatives for satisfying the energy demand 
 or transmission needs including but not limited to potential for 
 increased efficiency and upgrading of existing energy generation 
 and transmission facilities, load-management programs, and 
 distributed generation; 

    (7) the policies, rules, and regulations of other state and 
 federal agencies and local governments; and 

    (8) any feasible combination of energy conservation 
 improvements, required under section 216B.241, that can (i) 
 replace part or all of the energy to be provided by the proposed 
 facility, and (ii) compete with it economically. 

    Subd. 3a.    Use of renewable resource.  The commission 
 may not issue a certificate of need under this section for a 
 large energy facility that generates electric power by means of 
 a nonrenewable energy source, or that transmits electric power 
 generated by means of a nonrenewable energy source, unless the 
 applicant for the certificate has demonstrated to the 
 commission's satisfaction that it has explored the possibility 
 of generating power by means of renewable energy sources and has 
 demonstrated that the alternative selected is less expensive 
 (including environmental costs) than power generated by a 
 renewable energy source.  For purposes of this subdivision, 
 "renewable energy source" includes hydro, wind, solar, and 
 geothermal energy and the use of trees or other vegetation as 
 fuel. 

    Subd. 3b.    Nuclear power plant; new construction 
 prohibited; relicensing.  (a) The commission may not issue a 
 certificate of need for the construction of a new 
 nuclear-powered electric generating plant. 

    (b) Any certificate of need for additional storage of spent 
 nuclear fuel for a facility seeking a license extension shall 
 address the impacts of continued operations over the period for 
 which approval is sought. 

    Subd. 4.    Application for certificate; hearing.  Any 
 person proposing to construct a large energy facility shall 
 apply for a certificate of need prior to applying for a site or 
 route permit under sections 116C.51 to 116C.69 or construction 
 of the facility.  The application shall be on forms and in a 
 manner established by the commission.  In reviewing each 
 application the commission shall hold at least one public 
 hearing pursuant to chapter 14.  The public hearing shall be 
 held at a location and hour reasonably calculated to be 
 convenient for the public.  An objective of the public hearing 
 shall be to obtain public opinion on the necessity of granting a 
 certificate of need.  The commission shall designate a 
 commission employee whose duty shall be to facilitate citizen 
 participation in the hearing process.  If the commission and the 
 Environmental Quality Board determine that a joint hearing on 
 siting and need under this subdivision and section 116C.57, 
 subdivision 2d, is feasible, more efficient, and may further the 
 public interest, a joint hearing under those subdivisions may be 
 held. 

    Subd. 5.    Approval, denial, or modification.  Within 
 six months of the submission of an application, the commission 
 shall approve or deny a certificate of need for the facility.  
 Approval or denial of the certificate shall be accompanied by a 
 statement of the reasons for the decision.  Issuance of the 
 certificate may be made contingent upon modifications required 
 by the commission. 

    Subd. 6.    Application fees; rules.  Any application 
 for a certificate of need shall be accompanied by the fee 
 required pursuant to this subdivision.  The maximum fee shall be 
 $50,000, except for an application for an electric power 
 generating plant as defined in section 216B.2421, subdivision 2, 
 clause (1), or a high-voltage transmission line as defined in 
 section 216B.2421, subdivision 2, clause (2), for which the 
 maximum fee shall be $100,000.  The commission may require an 
 additional fee to recover the costs of any rehearing.  The fee 
 for a rehearing shall not be greater than the actual cost of the 
 rehearing or the maximum fee specified above, whichever is 
 less.  The commission shall establish by rule pursuant to 
 chapter 14 and sections 216C.05 to 216C.30 and this section, a 
 schedule of fees based on the output or capacity of the facility 
 and the difficulty of assessment of need.  Money collected in 
 this manner shall be credited to the general fund of the state 
 treasury. 

    Subd. 7.    Participation by other agency or political 
 subdivision.  Other state agencies authorized to issue permits 
 for siting, construction or operation of large energy 
 facilities, and those state agencies authorized to participate 
 in matters before the commission involving utility rates and 
 adequacy of utility services, shall present their position 
 regarding need and participate in the public hearing process 
 prior to the issuance or denial of a certificate of need.  
 Issuance or denial of certificates of need shall be the sole and 
 exclusive prerogative of the commission and these determinations 
 and certificates shall be binding upon other state departments 
 and agencies, regional, county, and local governments and 
 special purpose government districts except as provided in 
 sections 116C.01 to 116C.08 and 116D.04, subdivision 9. 

    Subd. 8.    Exemptions.  This section does not apply to: 

    (1) cogeneration or small power production facilities as 
 defined in the Federal Power Act, United States Code, title 16, 
 section 796, paragraph (17), subparagraph (A), and paragraph 
 (18), subparagraph (A), and having a combined capacity at a 
 single site of less than 80,000 kilowatts or to plants or 
 facilities for the production of ethanol or fuel alcohol nor in 
 any case where the commission shall determine after being 
 advised by the attorney general that its application has been 
 preempted by federal law; 

    (2) a high-voltage transmission line proposed primarily to 
 distribute electricity to serve the demand of a single customer 
 at a single location, unless the applicant opts to request that 
 the commission determine need under this section or section 
 216B.2425; 

    (3) the upgrade to a higher voltage of an existing 
 transmission line that serves the demand of a single customer 
 that primarily uses existing rights-of-way, unless the applicant 
 opts to request that the commission determine need under this 
 section or section 216B.2425; 

    (4) a high-voltage transmission line of one mile or less 
 required to connect a new or upgraded substation to an existing, 
 new, or upgraded high-voltage transmission line; 

    (5) conversion of the fuel source of an existing electric 
 generating plant to using natural gas; or 

    (6) modification of an existing electric generating plant 
 to increase efficiency, as long as the capacity of the plant is 
 not increased more than ten percent or more than 100 megawatts, 
 whichever is greater.  

    HIST: 1974 c 307 s 13; 1975 c 170 s 3,4; 1977 c 381 s 19; 
 Ex1979 c 2 s 32; 1980 c 579 s 10,11; 1980 c 614 s 123; 1981 c 
 356 s 159,248; 1982 c 424 s 130; 1982 c 561 s 2; 1983 c 289 s 
 46,115 subd 2; 1984 c 558 art 4 s 10; 1984 c 655 art 1 s 22,23; 
 1985 c 304 s 1; 1987 c 312 art 1 s 10 subd 1; 1991 c 235 art 4 s 
 1; art 6 s 2; 1994 c 641 art 2 s 2; 2001 c 212 art 7 s 31-33; 
 2002 c 398 s 4; 1Sp2003 c 11 art 1 s 4