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H.B. 127 Enrolled
AN ACT RELATING TO PUBLIC UTILITIES; PLACING CONDITIONS ON THE SITING OF
ELECTRICAL FACILITIES BY LOCAL GOVERNMENTS; REQUIRING LOCAL
GOVERNMENTS TO PAY FOR COSTS BEYOND STANDARD COSTS, INCLUDING
COSTS OF BURIED TRANSMISSION LINES, UNLESS THOSE COSTS ARE
COLLECTED FROM CONSUMERS PURSUANT TO AN ORDER OR RULE OF THE
PUBLIC SERVICE COMMISSION OR ARE APPORTIONED TO THE UTILITY
PURSUANT TO A DECISION OF THE ELECTRICAL FACILITY REVIEW BOARD;
CREATING THE ELECTRICAL FACILITY REVIEW BOARD TO RESOLVE
CERTAIN DISPUTES REGARDING THE SITING OF ELECTRICAL FACILITIES;
GRANTING RULEMAKING POWER TO THE BOARD; AND PROVIDING AN
EFFECTIVE DATE.
This act affects sections of Utah Code Annotated 1953 as follows:
ENACTS:
54-14-101, Utah Code Annotated 1953
54-14-102, Utah Code Annotated 1953
54-14-103, Utah Code Annotated 1953
54-14-104, Utah Code Annotated 1953
54-14-201, Utah Code Annotated 1953
54-14-202, Utah Code Annotated 1953
54-14-203, Utah Code Annotated 1953
54-14-204, Utah Code Annotated 1953
54-14-301, Utah Code Annotated 1953
54-14-302, Utah Code Annotated 1953
54-14-303, Utah Code Annotated 1953
54-14-304, Utah Code Annotated 1953
54-14-305, Utah Code Annotated 1953
54-14-306, Utah Code Annotated 1953
54-14-307, Utah Code Annotated 1953
54-14-308, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 54-14-101 is enacted to read:
54-14-101. Short title.
This chapter is known as the "Electrical Facility Review Board Act."
Section 2. Section 54-14-102 is enacted to read:
54-14-102. Legislative findings.
(1) The Legislature finds that the construction of transmission lines and substations by
electrical corporations that are public utilities under this title is a matter of statewide concern. The
construction of these facilities may affect the safety, reliability, adequacy, and efficiency of service
to customers in areas within the jurisdiction of more than a single local government. Excess costs
imposed by requirements of a local government for the construction of facilities may affect either
the rates and charges of the public utility to customers other than customers within the jurisdiction
of the local government or the financial viability of the public utility, unless the local government
pays for those excess costs.
(2) The Legislature finds that it is in the public interest to establish the Electrical Facility
Review Board to resolve issues regarding the construction and installation of transmission lines and
substations by any electrical corporation that is a public utility.
Section 3. Section 54-14-103 is enacted to read:
54-14-103. Definitions.
As used in this chapter:
(1) "Actual excess cost" means the difference in cost between the standard cost of a facility
and the actual cost of the facility, including any necessary right-of-way, as determined in accordance
with Section 54-14-203.
(2) "Board" means the Electrical Facility Review Board.
(3) "Commencement of construction of a facility" includes the ordering of materials
necessary to construct the facility.
(4) "Estimated excess cost" means any material difference in estimated cost between the
costs of a facility, including any necessary right-of-way, if constructed in accordance with the
requirements of a local government and the standard cost of the facility.
(5) "Facility" means a transmission line or a substation.
(6) "Local government" means a city or town as defined in Section 10-1-104 or a county.
If a facility is proposed to be located in more than one local government jurisdiction, "local
government" may refer to one or more of the local governments in whose jurisdiction the facility is
located.
(7) "Pay" includes, in reference to a local government paying the actual excess cost of a
facility, payment by:
(a) a special district created by the local government; or
(b) a private entity other than the public utility pursuant to a regulation or decision of the
local government.
(8) (a) "Standard cost" means the estimated cost of a facility, including any necessary
right-of-way, if constructed in accordance with:
(i) the public utility's normal practices; and
(ii) zoning, subdivision, and building code regulations of a local government, including
siting, setbacks, screening, and landscaping requirements:
(A) imposed on similar land uses in the same zone; and
(B) that do not impair the ability of the public utility to provide service to its customers in
a safe, reliable, adequate, and efficient manner.
(b) With respect to a transmission line, standard cost is the cost of any overhead line
constructed in accordance with the public utility's normal practices.
(9) (a) "Substation" means a separate space within which electric supply equipment is
located for the purpose of switching, regulating, transforming, or otherwise modifying the
characteristics of electricity, including:
(i) electrical equipment such as transformers, circuit breakers, voltage regulating equipment,
buses, switches, capacitor banks, reactors, protection and control equipment, and other related
equipment;
(ii) the site at which the equipment is located, any foundations, support structures, buildings,
or driveways necessary to locate, operate, and maintain the equipment at the site; and
(iii) the structure intended to restrict access to the equipment to qualified persons.
(b) "Substation" does not include a distribution pole-mounted or pad-mounted transformer
that is used for the final transformation of power to the voltage level utilized by the customer.
(10) "Transmission line" means an electrical line, including structures, equipment, plant, or
fixtures associated with the electrical line, operated at a nominal voltage of 34,000 volts or above.
Section 4. Section 54-14-104 is enacted to read:
54-14-104. Rules and procedures.
The board may, pursuant to Title 63, Chapter 46a, Utah Administrative Rulemaking Act,
adopt rules governing proceedings under this chapter consistent with this chapter and Title 63,
Chapter 46b, Administrative Procedures Act.
Section 5. Section 54-14-201 is enacted to read:
54-14-201. Conditions on siting of facilities by local governments -- Payment of actual
excess costs.
If otherwise authorized by law, a local government may require or condition the construction
of a facility in any manner if:
(1) the requirements or conditions do not impair the ability of the public utility to provide
safe, reliable, and adequate service to its customers; and
(2) the local government pays for the actual excess cost resulting from the requirements or
conditions, except:
(a) any actual excess costs that the public utility collects from its customers pursuant to an
order, rule, or regulation of the commission; or
(b) any portion of the actual excess costs that the board requires to be borne by the public
utility.
Section 6. Section 54-14-202 is enacted to read:
54-14-202. Public utility to provide standard cost and estimated excess cost.
If a local government is considering imposing requirements or conditions on construction
of a facility that may result in an estimated excess cost and requests the public utility to provide the
estimated excess cost, the public utility shall provide to the local government the standard cost of
the facility and the estimated excess cost of the facility if constructed in accordance with local
government requirements or conditions.
Section 7. Section 54-14-203 is enacted to read:
54-14-203. Actual excess cost.
(1) If a local government issues a permit, authorization, approval, exception, or waiver based
upon its agreement to pay for the actual excess cost of a facility, the local government shall within
30 days either accept the estimate of excess cost as the actual excess cost of a facility or request the
public utility to obtain competitive bids for the facility if constructed in accordance with the
requirements and conditions of the local government.
(2) If the local government requests the public utility to obtain competitive bids, the public
utility shall obtain competitive bids, and the actual excess cost of the facility shall be the difference
between the lowest bid acceptable to the public utility plus the public utility's contract administration
and oversight expense and the standard cost of the facility.
(3) Any dispute regarding specifications, lowest acceptable bid, or administration and
oversight expense shall be resolved by the board on an expedited basis.
Section 8. Section 54-14-204 is enacted to read:
54-14-204. Requirements or conditions on facility considered waived if local
government does not pay for actual excess cost 30 days before construction.
Any requirement or condition in any permit, authorization, approval, exception, or waiver
of a local government for a facility that imposes an actual excess cost shall be considered waived if
the local government does not pay the public utility for the actual excess cost, except any actual
excess costs specified in Subsection 54-14-201(2)(a) or (2)(b), within 30 days before the date
construction of the facility should commence in order to avoid a significant risk of impairment of
safe, reliable, and adequate service to customers of the public utility.
Section 9. Section 54-14-301 is enacted to read:
54-14-301. Creation, purpose, and composition of board.
(1) The Electrical Facility Review Board is created within the Department of Commerce to
resolve disputes between local governments and public utilities regarding the siting and construction
of electrical facilities as provided in this part.
(2) The board shall be composed of:
(a) the three members of the commission;
(b) an individual appointed by the governor from a list of nominees of the Utah League of
Cities and Towns; and
(c) an individual appointed by the governor from a list of nominees of the Utah Association
of Counties.
(3) The chair of the commission shall serve as chair of the board.
(4) Members of the commission shall serve as members of the board during their terms of
office as commissioners and until their successors on the commission have been appointed and taken
office.
(5) (a) Members of the board who are not commissioners:
(i) shall have four-year terms, except the initial term of the individual first appointed by the
governor from nominees of the Utah Association of Counties shall be two years;
(ii) may be appointed for one succeeding term; and
(iii) may continue to serve until their successor takes office.
(b) Vacancies in the board of members who are not commissioners shall be filled for the
unexpired term.
(6) Three members of the board shall constitute a quorum.
(7) A member of the board may be removed for cause by the governor.
(8) (a) (i) Members who are not state or local government employees shall receive no
compensation or benefits for their services, but may receive per diem and expenses incurred in the
performance of the member's official duties at the rates established by the Division of Finance under
Sections 63A-3-106 and 63A-3-107.
(ii) Members may decline to receive per diem and expenses for their service.
(b) (i) State government officer and employee members who do not receive salary, per diem,
or expenses from their agency for their service may receive per diem and expenses incurred in the
performance of their official duties from the board at the rates established by the Division of Finance
under Sections 63A-3-106 and 63A-3-107.
(ii) State government officer and employee members may decline to receive per diem and
expenses for their service.
(c) (i) Local government members who do not receive salary, per diem, or expenses from
their employer for their service on the board may receive per diem and expenses incurred in the
performance of their official duties at the rates established by the Division of Finance under Sections
63A-3-106 and 63A-3-107.
(ii) Local government members may decline to receive per diem and expenses for their
service.
Section 10. Section 54-14-302 is enacted to read:
54-14-302. Staff and support for board.
The Department of Commerce and the commission shall provide any staff, services, or
meeting rooms the board requires to perform its duties.
Section 11. Section 54-14-303 is enacted to read:
54-14-303. Actions or disputes for which board review may be sought.
A local government or public utility may seek review by the board, if:
(1) a local government has imposed requirements on the construction of a facility that result
in estimated excess costs without entering into an agreement with the public utility to pay for the
actual excess cost, except any actual excess costs specified in Subsection 54-14-201(2)(a) or (2)(b),
at least 30 days before the date construction of the facility should commence in order to avoid
significant risk of impairment of safe, reliable, and adequate service to customers of the public
utility;
(2) there is a dispute regarding:
(a) the estimated excess cost or standard cost of a facility;
(b) when construction of a facility should commence in order to avoid significant risk of
impairment of safe, reliable, and adequate service to customers of the public utility; or
(c) whether the public utility has sought a permit, authorization, approval, exception, or
waiver with respect to a facility sufficiently in advance of the date construction should commence,
based upon reasonably foreseeable conditions, to allow the local government reasonable time to pay
for any estimated excess cost;
(3) a local government has required construction of a facility in a manner that will not permit
the utility to provide service to its customers in a safe, reliable, adequate, or efficient manner;
(4) a local government has prohibited construction of a facility which is needed to provide
safe, reliable, adequate, and efficient service to the customers of the public utility;
(5) a local government has not made a final decision on the public utility's application for
a permit, authorization, approval, exception, or waiver with respect to a facility within 120 days of
the date the public utility applied to the local government for the permit, authorization, approval,
exception, or waiver;
(6) a facility is located or proposed to be located in more than one local government
jurisdiction and the decisions of the local governments regarding the facility are inconsistent; or
(7) a facility is proposed to be located within a local government jurisdiction to serve
customers exclusively outside the jurisdiction of the local government and there is a dispute
regarding the apportionment of the actual excess cost of the facility between the local government
and the public utility.
Section 12. Section 54-14-304 is enacted to read:
54-14-304. Initial hearing.
(1) The board shall convene an initial hearing within 40 days of the date review is initiated.
(2) At the initial hearing, the board shall determine how the review will take place, including
whether it will be conducted as a formal or informal adjudicative proceeding.
Section 13. Section 54-14-305 is enacted to read:
54-14-305. Written decisions of board.
(1) The board shall issue a written decision on the review expeditiously and, in any event,
not later than 140 days following the initial hearing.
(2) The written decision shall:
(a) specify whether the facility should be constructed and, if so, whether any requirements
or conditions imposed by the local government may not be imposed because they impair the ability
of the public utility to provide safe, reliable, and adequate service to its customers; and
(b) resolve any dispute regarding:
(i) the standard cost or estimated excess cost of the facility;
(ii) the date on which construction of the facility should commence in order to avoid a
significant risk of impairment of safe, reliable, and adequate service to customers of the public
utility;
(iii) whether the public utility has sought a permit, authorization, approval, exception, or
waiver with respect to a facility sufficiently in advance of the date construction should commence,
based upon reasonably foreseeable conditions, to allow the local government reasonable time to pay
for any estimated excess cost; or
(iv) apportionment of the actual excess cost of the facility between the local government and
the public utility pursuant to Subsection 54-14-303(7).
(3) If the board determines that a facility that a local government has prohibited should be
constructed, the written decision shall specify any general location parameters required to provide
safe, reliable, adequate, and efficient service to the customers of the public utility.
(4) The written decision shall leave to the local government any issue that does not affect
the provision of safe, reliable, adequate, and efficient service to customers of the public utility or that
does not involve an estimated excess cost.
(5) With respect to local government requirements or conditions that impose an estimated
excess cost but do not impair the provision of safe, reliable, and adequate service to the customers
of the public utility, the written decision shall leave each siting issue to the local government except
determination of the estimated excess cost and determination of when the construction of the facility
should commence.
(6) In determining when the construction of the facility should commence, the board shall
consider whether the public utility sought a permit, authorization, approval, exception, or waiver
from the local government in a timely manner based upon reasonably foreseeable conditions, and,
if the board determines that the public utility did not do so, it shall allow sufficient time for the local
government to pay any actual excess cost that may be imposed as a result of requirements or
conditions the local government has imposed that do not impair the provision of safe, reliable, and
adequate service to customers of the public utility.
Section 14. Section 54-14-306 is enacted to read:
54-14-306. Action required of local government following board decision.
(1) If the board decides that a facility permitted to be constructed by a local government is
subject to requirements or conditions that impose an estimated excess cost but do not impair the
provision of safe, reliable, and adequate service to customers of the public utility, the local
government shall, within 20 days following the decision of the board, determine whether it will
impose the requirement or conditions imposing an estimated excess cost or issue the permit,
authorization, approval, exception, or waiver without the requirements or conditions imposing an
estimated excess cost.
(2) If the board decides that a facility should be constructed that the local government has
prohibited, the local government shall, within 60 days following the decision of the board, issue the
permit, authorization, approval, exception, or waiver consistent with the decision of the board.
(3) The local government may impose requirements or conditions pursuant to its zoning,
subdivision, or building code regulations if:
(a) the requirements or conditions do not impair safe, reliable, and adequate service to the
customers of the utility; and
(b) the local government enters into an agreement with the public utility within the 20-day
time limit specified by Subsection (1) or the 60-day time limit specified by Subsection (2) to pay for
the actual excess cost to the public utility, except any actual excess costs specified in Subsection
54-14-201(2)(a) or (2)(b), at least 30 days before the date construction of the facility should
commence.
Section 15. Section 54-14-307 is enacted to read:
54-14-307. Stay of board's decision pending review or appeal.
(1) A petition for review, rehearing, or reconsideration or a petition for judicial review does
not stay or suspend the effectiveness of a written decision of the board.
(2) Any party seeking to stay the effectiveness of a decision of the board shall seek a stay
under Section 63-46b-18.
Section 16. Section 54-14-308 is enacted to read:
54-14-308. Judicial review in formal adjudicative proceedings.
The Court of Appeals has jurisdiction to review any decision of the board in a formal
adjudicative proceeding.
Section 17. Effective date.
This act takes effect on July 1, 1997.
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