Section 6.02 - Initial Petition(1)Basis for Petition. Any electric, gas or oil company which proposes to construct or operate a facility may petition the Council for a Certificate of Environmental Impact and Public Need with respect to such facility. Such initial petition shall assert one or more of the grounds set forth in 980 CMR 6.02(2). No petition asserting grounds specified in 980 CMR 6.02(2)(a), 6.02(2)(c), 6.02(2)(d), 6.02(2)(e), and 6.02(2)(f) with respect to the action of a state or local agency shall be brought until a final decision has been rendered by the agency in question. No petition asserting such grounds with respect to an action of a local agency shall be brought until the petitioner has exhausted any appeal to a state agency provided by statute.
A petitioner complaining of the final decision of an agency shall prepare and provide a full record of such agency decision. Where adjudicatory proceedings have been conducted, the petitioner shall request that the agency issue findings of fact and conclusions of law and shall provide these to the council.
(2)Grounds for Petition.(a) The company may assert that it is prevented from building a subject facility because it cannot meet standards imposed by a state or local agency with commercially available equipment.(b) The company may assert that it is prevented from building a subject facility because the processing or granting by a state or local agency of any permit has been unduly delayed. In determining whether imdue delay has occurred, the Council may consider the amount of time normally required by the agency or similar agencies to resolve issues of similar complexity and importance, and whether the delay is due to the failure of the company to supply information to the agency necessary for processing or granting the permit. No petition shall be heard pursuant to this subsection until at least thirty (30) days after the company has notified the agency by certified mail that it intends to submit a petition to the Council.(c) The company may assert that it believes there are inconsistencies among resource use permits issued by state or local agencies. In reviewing the initial petition, the Council may determine whether the belief is reasonable.(d) The company may assert that it believes that a non-regulatory issue or condition has been raised or imposed by a state or local agency. A non-regulatory issue or condition relates to matters not within the statutory jurisdiction of the agency in question. In reviewing the initial petition, the Council may determine whether the belief of the company is reasonable.(e) The company may assert that a state or local agency has imposed a burdensome condition or limitation on any permit which has a substantial impact on the Council's responsibilities. The Council may consider a condition or limitation to be burdensome if the resulting cost would be out of proportion to the cost of the facility or to the benefits to be gained from the condition or Hmitation. The denial of a permit may constitute a burdensome condition or limitation.(f) The company may assert that a subject facility cannot be constructed due to disapproval, condition or denial by a local government. This subsection shall not apply to lands or interests therein, excluding public ways, owned or managed by any state agency or local government. This subsection shall not be construed to give the Council authority to override any zoning by-law in effect on the date when a notice of intention is filed as provided by 980 CMR 8.02(1).(3)Form of Initial Petition; Notice. An initial petition shall be an initial pleading in the form required by 980 CMR 1.03(4). The petition may include such attachments as the petitioning company deems usefiil. The petitioning company shall be required to give notice as provided in 980 CMR 1.03(2).(4)Action on the Initial Petition. Upon receipt of an initial petition, the Council or Chairman shall within seven days determine whether to hold a separate hearing on the grounds asserted in the petition or to accept an application pursuant to 980 CMR 6.03(1), and to defer decision on the merits of the grounds asserted in the initial petition until the hearing on the application. A separate hearing, if held, shall be an adjudicatory proceeding and shall be subject to 980 CMR 1.00. After determining pursuant to 980 CMR 6.00 that a separate hearing on grounds should be held, the Council shall immediately schedule a hearing to be held no more than 30 days after the date notice is given pursuant to 980 CMR 6.02(3). The Council shall render a decision no more than 14 days after the conclusion of the hearing. Should the Council determine that valid grounds do not exist, its ruling shall be immediately appealable.