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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?
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?
A. One is appointed by the President Pro Tem (Majority Leader) of the New York State Senate and one is appointed by the Speaker of the New York State Assembly from a list of candidates submitted to them. The list of candidates is to be submitted
within fifteen days of receipt of notification of the pre-application preliminary scoping statement.
In the event that the President Pro Tem of the Senate or the Speaker of the Assembly does not appoint one of the candidates within thirty days of receiving the list, the Governor shall appoint the ad hoc member(s) from the list of candidates. In the event that one or both of the ad hoc public members have not been appointed within forty-five days, a majority of persons named to the Siting Board shall constitute a quorum.
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?
A. If such facility is proposed to be located in a town outside of any villages or in a city other than the City of New York, the chief executive officer representing the municipality shall nominate four candidates and the chief executive officer representing the county shall nominate four candidates for consideration. The list of candidates is to be submitted to the President Pro Tem of the Senate or the Speaker of the Assembly within fifteen days of receipt of notification of the pre-application preliminary scoping statement.
Q. How is the list of candidates established in a village?
A. If such facility is proposed to be located in a village, the chief executive officer representing the town shall nominate four candidates, the chief executive officer representing the county shall nominate four candidates, and the chief executive officer representing the village shall nominate four candidates for consideration. The list of candidates is to be submitted to the President Pro Tem of the Senate or the Speaker of the Assembly within fifteen days of receipt of notification of the pre-application preliminary scoping statement.
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?
A. Based on recent market trends in New York State, the types of electric generating facilities most likely to be proposed pursuant to the Article 10 process are natural gas-fired facilities and wind-power facilities. But it is possible that other types of generating facilities will be proposed. The Summer 2012 installed generating capacity of power plants in the New York Control Area is 38,902 MWs, type classified as follows: Gas with Oil Back-up 36.9%; Gas 15.7%; Nuclear 13.5%; Hydro 11.0%; Oil 8.5%; Coal 6.1%; Pumped Storage Hydro 3.6%, Wind 3.5%; Refuse 0.7%; Biomass (Wood) 0.1%; Solar 0.1%, and Other 0.2%.
Q. Are electric generating facilities to be built by a power authority exempt from the Article 10 process?
Q. Are any electric generating facilities exempt from the Article 10 process?
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"?
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?
A. DPS has 30 days after the date of the applicant's submittal to make written comments on the adequacy of the Public Involvement Program plan. If deemed inadequate, DPS will make specific written recommendations as to what measures are necessary to make the Public Involvement Program plan adequate. Thereafter, the applicant has 30 days to consider the measures recommended by DPS and, in a final written Public Involvement Program plan filed with the Secretary, shall as to each specific measure either revise the Public Involvement Program plan to incorporate the DPS recommendation, or provide a written explanation as to why the applicant is not incorporating the DPS recommendation.
What happens if the applicant refuses to incorporate a DPS recommendation without an adequate explanation, or has an inadequate Public Involvement Program plan?
A. In such a situation, parties would be free to seek procedural and substantive remedies in the Article 10 process.
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?
Q. When does the Preliminary Scoping Statement have to be filed?
Q. What kind of information must be included in a Preliminary Scoping Statement?
A. The information that must be included falls into two major categories. The first category is a description of the proposed facility and its environmental setting. Among other things, the information provided must include the description of potential environmental and health impacts resulting from the construction and operation of the proposed facility; measures proposed to minimize environmental impacts; reasonable alternatives to the facility; and the identification of all other state and federal permits, certifications, or other authorizations needed for construction, operation or maintenance of the proposed facility. The second category is a description of the proposed studies or program of studies designed to evaluate potential environmental and health impacts that the applicant intends to include in its application for an Article 10 certificate. The description of the studies must include the extent and quality of information needed for the application to adequately address and evaluate each potentially significant adverse environmental and health impact, including existing and new information where required, and the methodologies and procedures for obtaining the new information. The preliminary scoping statement must also include an identification of any other material issues raised by the public and affected agencies during any consultation and the response of the applicant to those issues.
Q. What happens after the Preliminary Scoping Statement is filed?
A. Within 21 days after the filing of the preliminary scoping statement, any person, agency or municipality may submit comments on the preliminary scoping statement by serving such comments on the applicant and filing a copy with the secretary. Within 21 days after the closing of the comment period, the applicant shall prepare a summary of the material comments and its reply thereto, and file and serve its summary of comments and its reply in the same manner as it files and serves the preliminary scoping statement. Thereafter, it is expected that the applicant will work with interested parties to resolve any disagreements they may have about the sufficiency of the planned scope and methodology of studies to be included in the application.
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"?
Q. What is the amount of the intervenor fee assessed during the pre-application stage?
A. Applicants submitting a preliminary scoping statement are assessed an intervenor fee equal to $350 for each 1,000 kilowatts (1 megawatt) of generating capacity of the subject facility, but no more than $200,000. For example, for a 100 megawatt facility, the pre-application intervenor fee would be $35,000 (100 x $350).
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?
A. The presiding examiner will provide for an expedited pre-application funding disbursement schedule to assure early and meaningful public involvement. Following receipt of initial requests for pre-application funds, the presiding examiner shall expeditiously make an initial award of pre-application funds. Subject to the availability of funds, the presiding examiner may fix additional dates for submission of fund requests. Thereafter the presiding examiner may make additional awards of pre-application funds, in relation to the potential for such awards to make an effective contribution to review of the preliminary scoping statement.
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?
Q. Do other parties and the public get an opportunity to participate in the stipulations process?
A. Yes. Before a stipulation may be executed, notice of the proposed stipulation must be provided and the public and other parties must be afforded a reasonable opportunity to submit comments on the proposed stipulation before it is executed by the interested parties.
Q. What happens if a party does not agree that a stipulation entered into between the applicant and another party is adequate?
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?
A. There are three kinds of parties: (a) automatic statutory parties; (b) parties that have a right to be a party merely by giving notice; and (c) parties that may be permitted to join.
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?
A. A notice of intent to be a party must be filed with the Secretary to the Siting Board.
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?
Q. Who is eligible for intervenor funds?
A. All municipal and local parties to the proceeding are eligible for application phase intervenor funds. The presiding examiner shall reserve at least 50% of the application phase funds for potential awards to municipalities.
Q. What can application phase intervenor funds be used for?
Q. On what basis will the funds be awarded?
HEARING PROCEDURES - CONDUCT OF THE HEARING
Q. Who conducts the hearings?
A. The hearings will be conducted by a presiding examiner designated by the Department of Public Service. An associate examiner shall be designated by the Department of Environmental Conservation. The associate examiner will assist the presiding examiner in inquiring into and calling for testimony concerning relevant and material matters, and the conclusions and recommendations of the associate examiner will be incorporated in the recommended decision of the presiding examiner.
Q. What kinds of hearings will be held?
Q. What are "public statement" hearings?
Q. What is a "limited appearance"?
Q. What are "trial-type evidentiary" hearings?
A. Trial-type evidentiary hearings are designed to obtain sworn testimony from witnesses (usually expert witnesses) that are subject to cross examination by the parties to the proceeding. The format is designed like a trial and it is recommended that the participants be assisted by legal counsel, although the assistance of legal counsel is not mandatory. The usual practice is for written direct and rebuttal testimony and discovery to be circulated to the parties in advance so that the hearings can focus on the cross examination of witnesses.
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?
A. Yes, but only in an unusual circumstance. If the proceeding is on certain qualifying applications by an owner of an existing major electric generating facility to modify that facility or site a new major electric generating facility adjacent or contiguous to the existing facility, the deadlines are different such that the final decision by the Siting Board must be completed within 6 months, the extension permitted in extraordinary circumstances is 3 months, and the extension permitted to consider a material and substantial amendment to the application is 3 months, unless the deadlines are waived by the applicant.
SITING BOARD DECISIONS - SUBSTANCE OF THE DECISION
Q. What options does the Siting Board have in making a decision on an Article 10 application?
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?
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?