§ 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.