(click on the blue arrows
to expand a question and see the answer)
Expand all sections - Printer Friendly Page
Collapse all sections
Q. What is Article 10?
A. "Article 10" was enacted in 2011 to be a portion of the New York State Public Service Law. It is a general state law that is applicable in all of New York State. Article 10 empowers the New York State Board on Electric Generation Siting and the Environment (Siting Board) to issue Certificates of Environmental Compatibility and Public Need (certificate) authorizing the construction and operation of major electric generating facilities.
Q. What is meant by the term "siting"?
Q. What is meant by the term "major"?
Q. What is meant by the term "electric generating"?
Q. What is meant by the term "facility"?
Q. What is meant by the term "certificate"?
THE SITING BOARD
Q. What is the "Siting Board"?
Q. Who are the permanent members of the Siting Board?
Q. What is meant by the term "ad hoc"?
Q. Do ad hoc public members receive any compensation for their service on the Siting Board?
A. Yes. The ad hoc appointees shall receive the sum of two hundred dollars for each day in which they are actually engaged in the performance of their duties plus actual and necessary expenses incurred by them in the performance of such duties.
Q. What are the qualifications to be an ad hoc public member?
Q. How are the two ad hoc public members designated to serve on the Siting Board?
Q. How is the list of ad hoc public member candidates established?
Q. How is the list of candidates established in the City of New York?
Q. How is the list of candidates established in a town outside of any villages or in a city other than the City of New York?
Q. How is the list of candidates established in a village?
Q. How is the list of candidates established if the facility is to be built on parcels of land located in more than one municipality?
A. Candidates from each affected municipality will be nominated.
Q. What resources are available to assist the Siting Board?
TYPES OF GENERATING FACILITIES
Q. What types of electric generating facilities are likely to be proposed pursuant to the Article 10 process?
Q. Are electric generating facilities to be built by a power authority exempt from the Article 10 process?
A. No. There are three power authorities in New York State: the Power Authority of the State of New York (NYPA); the Green Island Power Authority; and the Long Island Power Authority (LIPA). The statute expressly provides that all three authorities are subject to the provisions of the Article 10 siting process for major electric generating facilities which they build or cause to be built.
Q. Are any electric generating facilities exempt from the Article 10 process?
A. Yes. The statute provides exemption for:
(a) electric generating facilities with a generating capacity of less than 25 megawatts;
(b) electric generating facilities for which the federal government has exclusive siting jurisdiction;
(c) electric generating facilities for which the federal government has concurrent siting jurisdiction and has exercised such jurisdiction to the exclusion of state regulation;
(d) normal repairs, replacements, modifications and improvements of a major electric generating facility, whenever built, which do not constitute a violation of any Article 10 certificate and which do not result in an increase in capacity of the facility of more than 25 megawatts;
(e) electric generating facilities of 200 megawatts or less constructed on lands dedicated to industrial uses where the electricity generated is used solely for industrial purposes on the premises;
(f) electric generating facilities for which an application was made on or before July 12, 2012 for a license, permit, certificate, consent or approval from any federal, state or local commission, agency, board or regulatory body; and.
(g) electric generating facilities under construction on July 12, 2012.
Q. If a facility is exempt from the Article 10 process, can the developer of the facility opt-in to the Article 10 process?
PRE-APPLICATION PROCEDURES - PUBLIC INVOLVEMENT
Q. What is meant by the term "public involvement"?
A. "Public involvement" is the process of enabling the public to participate in decisions that may affect public health, safety and the environment.
Q. In what stages of the Article 10 process is it appropriate to conduct public involvement activities?
Q. How is public involvement conducted?
Q. Is the public required to participate in the applicant's public involvement activities?
Q. What are the purposes of a Public Involvement Program?
Q. What are the elements of a Public Involvement Program plan?
Q. When does the Public Involvement Program plan have to be prepared?
Q. What happens if the Department of Public Service (DPS) finds the Public Involvement Program plan to be inadequate?
What happens if the applicant refuses to incorporate a DPS recommendation without an adequate explanation, or has an inadequate Public Involvement Program plan?
Q. How do people who do not speak English participate in public involvement?
Q. What is the function of the Office of Public Information Coordinator created within the Department of Public Service?
Q. What is the Department of Public Service?
Q. How can I contact the Office of Public Information Coordinator?
PRE-APPLICATION PROCEDURES - PRELIMINARY SCOPING STATEMENT
Q. What is a Preliminary Scoping Statement?
A. A preliminary scoping statement is a written document to inform the Siting Board, other public agencies and the public that the applicant is contemplating making an Article 10 application. It is prepared by an applicant after consulting with the public, affected agencies, and other stakeholders. The term "consulting" in this context means providing information to and effective opportunities for input from the public, affected agencies, and other stakeholders, concerning the proposal.
Q. When does the Preliminary Scoping Statement have to be filed?
Q. What kind of information must be included in a Preliminary Scoping Statement?
Q. What happens after the Preliminary Scoping Statement is filed?
PRE-APPLICATION PROCEDURES - Fund for Municipal & LOCAL PARTIES
Q. What is the fund for municipal and local parties?
A. Applicants are required at several stages in the Article 10 process to provide funds to be used to defray certain expenses incurred by municipal and local parties when participating in an Article 10 proceeding. These funds are known as "intervenor" funds collected by assessing an "intervenor" fee on the applicant.
Q: How does an applicant set up the fund?
Q. What is an "intervenor"?
A. "Intervenor" is the name used to refer to a party other than the applicant or the staff of the reviewing public agency that joins a case or proceeding as a third party for the protection of an interest.
Q. What is the amount of the intervenor fee assessed during the pre-application stage?
Q. What happens if after the pre-application intervenor fees have been used up, the applicant amends its preliminary scoping statement and more review is required?
Q. How does a qualified intervenor make a request for intervenor funds?
Q. When are pre-application intervenor funds awarded?
Q. Who is eligible for intervenor funds?
Q. What can pre-application intervenor funds be used for?
Q. On what basis will the funds be awarded?
PRE-APPLICATION PROCEDURES - STIPULATIONS
Q. What are stipulations?
Q. How is the stipulations process initiated?
A. So that all parties will have an opportunity to participate, the applicant may not commence consultations or seek agreements on proposed stipulations until the pre-application intervenor funds have been allocated by the presiding examiner. Within sixty days of the filing of a preliminary scoping statement, the presiding examiner will convene a meeting of interested parties in order to initiate the stipulation process.
The presiding examiner will also oversee the pre-application process and mediate any issue relating to any aspect of the preliminary scoping statement and the methodology and scope of any such studies or programs of study in order to attempt to resolve any questions that may arise.
Q. Do other parties and the public get an opportunity to participate in the stipulations process?
Q. What happens if a party does not agree that a stipulation entered into between the applicant and another party is adequate?
A. No party that is not a signatory to the stipulation is barred from timely raising objections to any aspect of the preliminary scoping statement and the methodology and scope of any stipulated studies or program of studies in any such stipulation. A party that is a signatory to the stipulation may not object to any aspect of the preliminary scoping statement and the methodology and scope of any stipulated studies or program of studies covered in any such stipulation, unless the applicant fails to comply with the stipulation.
APPLICATION PROCEDURES - SUBMISSION OF AN APPLICATION
Q. What happens when an Article 10 application is submitted?
A. Within sixty days of receipt, the Chairperson of the Siting Board determines whether the documents submitted comply with the requirements of the law, regulations and stipulations. The Department of Environmental Conservation also advises the Siting Board within the sixty day period whether the documents submitted contain sufficient information.
Q. What happens if the documents submitted are insufficient to comply with the requirements of the law, regulations and stipulations?
Q. What happens if the documents submitted are sufficient to comply with the requirements of the law, regulations and stipulations?
APPLICATION PROCEDURES - DESIGNATION OF PARTIES
Q. Who are the parties to an Article 10 proceeding?
Q. Who are the automatic statutory parties to an Article 10 proceeding?
Q. Who are the parties that have a right to be a party to an Article 10 proceeding merely by giving notice?
Q. Who are the parties that may be permitted to join?
Q. Where does a party file a notice of intent to be a party?
APPLICATION PROCEDURES - Fund for Municipal & LOCAL PARTIES
Q. What is the amount of the intervenor fee assessed when an application is filed?
Q. How does an applicant set up the fund?
A. Applicants supplying the requisite fee to set up the intervenor funding account for the application phase of the case must provide a check, made out to the NYS Department of Public Service, simultaneously with the filing of their Application.
The case number must be printed on the face of the check. The check must be delivered to the Director of the DPS Office of Finance and Budget, under cover of a letter stating the amount of the check and the Article 10 case name and number. The letter must be copied to the Secretary of the Siting Board for filing in the Article 10 case.
Q. What happens if after the application phase intervenor fees have been used up, the applicant amends its application and more review is required?
Q. How does a qualified intervenor make a request for intervenor funds?
A. A notice of availability of the funds will be issued providing a schedule and related information. The notice will describe how municipal and local parties may apply for intervenor funds. Requests must be submitted to the presiding examiner within 30 days after the issuance of the notice by filing the request with the Secretary and submitting a copy to the presiding examiner and to the other parties to the proceeding. At any pre-hearing conference that may be held to consider fund requests, the parties should be prepared to discuss their funding applications and the award of funds. Parties are encouraged to consider consolidating their requests with similar funding proposals made by other parties.
Q. Who is eligible for intervenor funds?
Q. What can application phase intervenor funds be used for?
Q. On what basis will the funds be awarded?
A. The presiding examiner will award funds on an equitable basis to municipal and local parties who will use them to contribute to a complete record leading to an informed decision as to the appropriateness of the site and the facility and will facilitate broad participation in the proceeding.
HEARING PROCEDURES - CONDUCT OF THE HEARING
Q. Who conducts the hearings?
Q. What kinds of hearings will be held?
Q. What are "public statement" hearings?
A. Public statement hearings are designed to obtain input from the general public. The format is designed for the taking of unsworn oral statements, although written statements ordinarily may also be submitted. Parties to the proceeding are not permitted to cross examine the persons making such statements.
Q. What is a "limited appearance"?
Q. What are "trial-type evidentiary" hearings?
Q. What is "discovery"?
Q. If the Siting Board does not personally conduct the hearings, how does it become informed of the proceedings?
SITING BOARD DECISIONS - TIMING OF THE DECISION
Q. Is there a deadline by which the Siting Board must make a final decision on an Article 10 application?
Q. What happens to the deadline if the application is amended during the Article 10 proceeding?
Q. Are there any other exceptions to the deadlines described above?
SITING BOARD DECISIONS - SUBSTANCE OF THE DECISION
Q. What options does the Siting Board have in making a decision on an Article 10 application?
A. The Siting Board can grant a certificate in the manner requested by the applicant, it can grant a certificate subject to modifications and or conditions, or it may deny the application. In rendering a decision on an application for a certificate, the Siting Board must issue a written opinion stating its reasons for the action taken.
Q. What substantive matters must be addressed in any Siting Board decision to grant an Article 10 certificate?
Q. What are the required statutory findings that must be made by the Siting Board?
A. The Siting Board must make explicit findings regarding the nature of the probable environmental impacts of the construction and operation of the facility, including the cumulative environmental impacts of the construction and operation of related facilities such as electric lines, gas lines, water supply lines, waste water or other sewage treatment facilities, communications and relay facilities, access roads, rail facilities, or steam lines, including impacts on: (a) ecology, air, ground and surface water, wildlife, and habitat;
(b) public health and safety; (c) cultural, historic, and recreational resources, including aesthetics and scenic values; and (d) transportation, communication, utilities and other infrastructure. Such findings shall include the cumulative impact of emissions on the local community including whether the construction and operation of the facility results in a significant and adverse disproportionate environmental impact, in accordance with regulations promulgated by the Department of Environmental Conservation regarding environmental justice issues.
Q. What are the required statutory determinations that must be made by the Siting Board?
A. The Siting Board must make explicit determinations that: (a) the facility is a beneficial addition to or substitution for the electric generation capacity of the state; (b) the construction and operation of the facility will serve the public interest; (c) the adverse environmental effects of the construction and operation of the facility will be minimized or avoided to the maximum extent practicable; (d) if the board finds that the facility results in or contributes to a significant and adverse disproportionate environmental impact in the community in which the facility would be located, the applicant will avoid, offset or minimize the impacts caused by the facility upon the local community for the duration that the certificate is issued to the maximum extent practicable using verifiable measures; (e) the facility is designed to operate in compliance with applicable state and local laws and regulations issued thereunder concerning, among other matters, the environment, public health and safety, all of which shall be binding upon the applicant, except that the Siting Board may elect not to apply, in whole or in part, any local ordinance, law, resolution or other action or any regulation issued thereunder or any local standard or requirement, including, but not limited to, those relating to the interconnection to and use of water, electric, sewer, telecommunication, fuel and steam lines in public rights of way, which would be otherwise applicable if it finds that, as applied to the proposed facility, such is unreasonably burdensome in view of the existing technology or the needs of or costs to ratepayers whether located inside or outside of such municipality. The Siting Board shall provide the municipality an opportunity to present evidence in support of such ordinance, law, resolution, regulation or other local action issued thereunder.
Q. What are the required statutory factors that must be considered by the Siting Board in making the required determinations?
A. The Siting Board must consider: (a) the state of available technology; (b) the nature and economics of reasonable alternatives; (c) environmental impacts found pursuant to subdivision two of this section; (d) the impact of construction and operation of related facilities, such as electric lines, gas lines, water supply lines, waste water or other sewage treatment facilities, communications and relay facilities, access roads, rail facilities, or steam lines; (e) the consistency of the construction and operation of the facility with the energy policies and long-range energy planning objectives and strategies contained in the most recent state energy plan; (f) the impact on community character and whether the facility would affect communities that are disproportionately impacted by cumulative levels of pollutants; and (g) such additional social, economic, visual or other aesthetic, environmental and other considerations deemed pertinent by the Siting Board.
COMPLIANCE AND ENFORCEMENT
Q. Who is in charge of compliance and enforcement matters regarding a Certificate that has been issued?