980 CMR 8.01 - General Provisions

(1) Scope and Purpose. 980 CMR 8.00 establishes the procedures for the filing of Notices of Intention to Construct an Oil Facility for certain facilities expected to be valued at more than $5,000,000 and the requirements for the contents of such notices. The petitioner shall file an initial petition with the Council not later than two years prior to commencement of construction of a complex refinery, and not later than one year prior to construction of any other type of oil facility.

(2) Statutory Authoritv. 980 CMR 8.00 is promulgated pursuant to M.G.L. c. 164, §§ 69H - 69J.

(3) Definitions, hi 980 CMR 8.00, the definitions set forth in 980 CMR 2.03(3) and 8.01(3) apply, unless the context or subject matter requires a different interpretation.

Complex Refinery means a facility for the refining of oil designed so that more than 35% of its output at normal crude oil throughput rates could be gasoline or refined oil products lighter than gasoline.

Petition means a Notice of Intention to Construct an Oil Facility filed with the Council under the provisions of M.G.L. c. 164, §§ 691 and 69 J.

Petitioner means a person or group of persons proposing to construct a new oil facility.

Refining means the process of manufacturing fix)m crude oil or refined oil products, such products as gasoline, kerosene, naptha (including jet fiiel), middle distillate (including No. 2 fuel oil and jet fuel), liquid petroleum gas, refined lubricating oils, diesel fuel or residual fuel oils.

Transshipment means the transfer of oil or refined oil products:

(a) From one mode of transport (ship, truck, tank car, pipeline, etc.) to another mode of transport;

(b) From any mode of transport to storage from which the oil or refined oil products will be eventually transferred to a mode of transport; and

(c) From storage to any mode of transport. Transshipment shall not include transfer to storage facilities of ultimate consumers of oil or refined oil products.

(4) Application of 980 CMR 1.00 and 2.00 . The Rules set forth in 980 CMR 1.00 and 2.00 shall apply to 980 CMR 8.00 except to the extent that 980 CMR 1.00, 980 CMR 2.00 and 980 CMR 8.00 are in conflict, hi the event of a conflict, 980 CMR 1.00 shall prevail over 980 CMR 2.00 and 980 CMR 8.00 shall prevail over 980 CMR 1.00 and 2.00.

(5) General Principles and Practices.

(a) The Energy Facilities Siting Council is responsible for implementing the energy policies contained in M.G.L. c. 164, §§ 69H-S, to provide a necessary energy supply for the Commonwealth with a minimum impact on the environment at the lowest possible cost.

(b) In the event that a proposed oil facility is intended to serve directly or indirectly customers in any other state or country, the petitioner shall prepare two separate market forecasts: one for Massachusetts only and the second for the total marketing region likely to be served by the proposed oil facility.

(c) In the case of an oil facility proposed to be constructed by two or more oil companies, the companies may file a joint initial petition. If a joint petition is filed, there shall be a single filing fee and a combined hearing.

(d) Unless a petitioner is a public utility or governmental body, the Council shall not, in reviewing an initial petition, refuse to approve an initial petition because it believes that there are sufficient existing oil facilities or because it believes that construction of a new oil facility may have adverse effects upon competitors of the petitioner proposing the new facility.

(e) The following practices shall be followed when accurate historical data cannot be provided:

1. Historical data which cannot be provided shall be estimated.

2. Notation shall be made indicating which data were estimated.

3. A brief description of the estimation process used shall be included in the Notice of Intention.

(f) If a petitioner believes that 980 CMR 8.00 requires the submission of information which is a trade secret and which would be damaging if made public, the petitioner may seek a Council determination pursuant to the provisions of 980 CMR 4.00 that the item is exempt firom public access and entitled to Council protection. If the Council determines pursuant to 980 CMR 4.00 that certain information is not exempt from public access and if the petitioner withdraws the information, the petitioner may withhold the information and state that the information is confidential. In such event the petitioner shall provide as much material as possible without jeopardizing the confidential information, and shall state as fully as possible the reasons for withholding the information. If information is withheld, the Council may take such action as it deems appropriate, including approving the Notice of Intention, denjdng the Notice of Intention by reason of petitioner's failure to submit complete information, and approving the Notice of Intention subject to the condition that the information be provided to the Council at a subsequent date.

(g) Petitioners are encouraged to make informal contacts with the Council staff concerning proposed facilities prior to the filing of an initial petition pursuant to 980 CMR 8.02(1).

(h) A petitioner which intends to use a site for business purposes, which use does not require approval by the Covincil, and intends at some later date to construct an oil facility on the said site is encouraged but not required to file an initial petition with the Council concerning the proposed oil facility at the earliest possible time.

(i) In cases where an oil facility requires approval by the council as well as by other federal, state, or local agencies, the Coiincil shall encourage and otherwise promote the holding of joint hearings in order to facilitate governmental decision-making and to avoid duplication of effort, hi addition, the Council may avail itself of the particular expertise of other state agencies in technical or specialized areas during the course of such joint hearings to further expedite the approval process.

(6) Exemption of Facilities under Construction.

(a) No oil facility which is under construction prior to May 1, 1976, shall be subject to any requirement that a Notice of Intention to Construct an Oil Facility be approved by the Council, nor shall failure to file a Notice of hitention impair in any way the rights of the company constructing the facility to file an application for a Certificate with the Council in regard to the facility or to seek a license to construct, operate or maintain the facility from any local or other state agency.

(b) An oil facility shall be considered to be under construction if the erection or installation of major buildings or equipment has begun or if the sum of expenses already incurred for preparation work at the site and irreversible contractual commitments of funds for the purchase of equipment or construction supplies is valued in excess of $5,000,000.

(7) Filing Fees. Each petition shall be accompanied by payment of a fee as herein provided.

(a) For an oil refinery, the fee shall be $2.50 per rated barrel per day of throughput capacity, but in no event more than $400,000.

(b) For an oil storage or transshipment facility, the fee shall be $.025 per rated barrel of storage capacity, but in no event more than $400,000.

(c) For an oil terminal intended to handle water-borne shipments, the fee shall be $.25 per rated barrel per day of throughput capacity, but in no event more than $400,000.

(d) For an oil pipeline, the fee shall be $.50 per cubic foot of volume contained for that part of the line proposed for a new right of way, plus $.25 per cubic foot of volume contained for that part of the line proposed for an established right of way, but in no event more than $400,000.

Notes

980 CMR 8.01