Section 23-1719. Non-conforming facilities; conformance to safety criteria; moratorium

The legislature finds that existing facilities have  been  constructed
  and  are  in  the  process  of  being  used  which  by  reason  of their
  construction  in  residential  areas  or  in  dangerous   proximity   to
  contiguous  populations,  or otherwise, are in violation of the terms of
  this act, and, having been constructed before its  enactment,  have  not
  been  approved in accordance with the procedures herein required. Taking
  into account the needs of the service areas  involved,  the  substantial
  capital  investment  of  the  utilities  therein,  and  the  changes  in
  corporate plans that compliance with this title will entail, as  against
  the  hazards  posed  to  surrounding  and  contiguous  areas  and  their
  populations by the potential  mishandling  or  accidental  discharge  of
  liquefied natural or petroleum gas in its cryogenic state, the following
  procedure  is  established  to conform existing facilities to the safety
  criteria herein prescribed, or, in the  alternative,  to  reexamine  the
  necessity  of their use in current locations, and to require alternative
  siting.
    1. Effective on passage hereof,  and  until  regulations  pursuant  to
  section 23-1709 are adopted and filed, no liquefied natural or petroleum
  gas  facility  may  be  constructed,  reconstructed, enlarged in storage
  capacity, or, if  constructed  but  unused,  put  into  actual  use  and
  operation  in this state, and no environmental safety permit pursuant to
  section 23-1707 of this title shall be issued for such facility.
    2. With regard to any non-conforming liquefied  natural  or  petroleum
  gas  storage  or  conversion  facility  in  actual  use and operation on
  September first, nineteen hundred  seventy-six,  the  following  special
  procedures shall apply:
    a.  On or before September first, nineteen hundred seventy-six, or the
  thirtieth day after the effective date of this title, whichever shall be
  later, the department shall notify any such non-conforming  facility  of
  the provisions of this section and of this title, and shall advise it of
  the  procedures  to  be  followed  hereunder  in terms of conformance to
  safety criteria or alternative siting.
    b. Within thirty days after this title shall  become  effective,  such
  non-conforming  facility  shall  give  the initial notice required under
  subdivision  two  of  section  23-1717,   specifying   by   geographical
  description the municipality or municipalities, or parts thereof, within
  the  state  within  which  it  is  handling or otherwise using liquefied
  natural or  petroleum  gas,  with  the  nature  of  such  use,  storage,
  transportation,   or  conversion,  with  the  amounts  thereof  in  each
  location, on a monthly and annual basis, with any projected increase  or
  decrease  in  the  use or handling thereof at such location or locations
  within the state on a five year basis from date of report.
    c. Within sixty days thereafter, the  department  shall  complete  the
  consultation  and  report  required  by  subdivisions  three and four of
  section 23-1717, and the notification required by the first sentence  of
  subdivision  five of that section. Thereafter, further proceedings under
  subdivision five  shall  be  integrated  with  the  hearing  hereinafter
  directed  to  be had with regard to the non-conforming facility; and the
  implementation of  the  balance  of  section  23-1717,  with  regard  to
  training and qualification of municipal fire department personnel, shall
  be  effected in accordance with the determination of the department with
  regard to the non-conforming facility.
    d. Within one hundred and eighty days after this  title  shall  become
  effective,  a  public  hearing  or hearings shall be held in the area or
  areas in which the non-conforming facility or  facilities  are  located.
  Such  hearing  or  hearings  shall  be held on sixty days' notice and as

  otherwise provided in subdivisions two and  three  of  section  23-1711.
  Notice  shall  be given by the facility or facilities in accordance with
  subdivision three thereof, and public participation shall be afforded by
  appropriate  location and scheduling, and the opportunity to submit oral
  or written statements for the record.
    e. In the adjudicatory phase of the hearing or hearings, evidence  may
  be  received  relating  to  the criteria set forth in section 23-1709 as
  they relate to the non-conforming  facility,  and  with  regard  to  the
  capability  of  municipal  fire  department  personnel  to  control  and
  extinguish fire resulting from mishandling  and  accidental  release  of
  liquefied  natural and petroleum gas during its storage, transportation,
  or conversion. At the time of the notice of hearing the department shall
  make public its report under paragraph c  of  subdivision  two  of  this
  section, together with all information secured by it with respect to the
  training   and   qualification  of  the  municipal  fire  department  or
  departments and their personnel to control or extinguish  fires  related
  to the use of the non-conforming facility, and additional oral testimony
  by  the  municipal  fire  department or departments with respect thereto
  shall be required at the hearing.
    3. Upon the  basis  of  the  record  the  department  shall  render  a
  decision, (a) permitting the facility to continue at the location, under
  such  terms, conditions, or modification of procedures as the department
  may deem appropriate; or (b) directing discontinuance  of  the  facility
  upon a showing of alternate means of meeting the service needs currently
  satisfied  thereby,  or  upon a showing that the service needs currently
  satisfied thereby are not sufficient to outweigh the public interest  in
  safety   within   the  terms  of  section  23-1711.  Location  within  a
  residential area or in dangerous  proximity  to  contiguous  populations
  shall  not,  in  and of themselves, be determinative with respect to the
  department determination, but shall be considered along with  the  other
  factors  set  forth  in  section 23-1709 as criteria for siting, and the
  information elicited before and at  the  hearing  with  respect  to  the
  training  and  qualification  of  municipal fire department personnel to
  control or extinguish fires related to the  facility  under  subdivision
  two   of   this  section,  in  determining  whether  or  not  to  permit
  continuation of the facility at the existing location. In the  event  it
  is  determined to permit continuation of the facility, it shall be under
  such limitations in terms of time and  conditions  as  will  permit  the
  department  currently  to  review  the  status  of  the facility, and to
  integrate  its  continued  operation  with  the  regulation   of   other
  facilities  and  activities  subject to this title to be certified under
  sections 23-1707 and 23-1713. In the event it is  determined  to  direct
  discontinuance  of the facility, it may be effected over the course of a
  phase-out  period  not  to  exceed  three  years  from   the   date   of
  determination,  in  order  to  arrange for alternate facilities or other
  means of meeting approved service needs of the area currently served  by
  the  facility. In connection with the foregoing, it shall be appropriate
  at the hearing or  hearings  provided  under  this  section  to  receive
  evidence  with  regard  to capital investment in any such non-conforming
  facility, the extent  of  amortization  and  of  tax  writeoff  thereof,
  adaptability  for  alternate  use,  availability  of alternate siting or
  means of meeting demonstrated and approved service needs  of  the  area.
  With  regard thereto, it shall be appropriate to solicit information and
  recommendations from the  public  service  commission  with  respect  to
  consumer  needs and the meeting thereof in economical fashion consistent
  with the requirements of this title, and from the state  energy  office,
  if  established,  with  regard  to  state energy policy. The cost of the
  hearing and of allocated departmental overhead shall be assessed against

  the non-conforming facility pursuant to subdivisions two  and  three  of
  section  23-1715.  It  is  anticipated that any hearing or hearings held
  under this section with regard to non-conforming  facilities  will  also
  relate  to  the  function  of  the  department  in  adopting regulations
  establishing criteria for the siting of liquefied natural and  petroleum
  gas  facilities,  and such shall also be considered in the allocation of
  expense with regard to hearing or hearings held under this section.