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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"?
A. "Siting" is a process consisting of a series of steps conducted by a regulatory agency in determining whether to allow a facility to be located and operated on a site.
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"?
A. "Ad hoc" is a Latin term meaning "for this special purpose". Two ad hoc members will be appointed for the special purpose of providing a local voice in each proceeding conducted to consider specific individual applications for certificates. Each facility application will have its own associated ad hoc members.
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?
A. To be eligible to be an ad hoc public member, the person must:
(a) be eighteen years of age or older,
(b) be a citizen of the United States;
(c) be a resident of New York State;
(d) be a resident of the municipality in which the facility is proposed to be located (if such facility is proposed to be located within the City of New York, the person must also be a resident of the community district in which the facility is proposed to be located);
(e) not hold another state or local office; and
(f) not retain or hold any official relation to, or any securities of an electric utility corporation operating in the state or proposed for operation in the state, any affiliate thereof or any other company, firm, partnership, corporation, association or joint-stock association that may appear before the Siting Board, nor shall the person have been a director, officer or, within the previous ten years, an employee thereof.
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?
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?
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?
A. It is the Siting Board’s policy to encourage public participation in the review of the applicant’s proposal at the earliest opportunity so that public input can be considered.
Q. What are the purposes of a Public Involvement Program?
Q. What are the elements of a Public Involvement Program plan?
A. The Public Involvement Program plan must include: (a) consultation with the affected agencies and other stakeholders; (b) pre-application activities to encourage stakeholders to participate at the earliest opportunity; (c) activities designed to educate the public as to the specific proposal and the Article 10 review process, including the availability of funding for municipal and local parties; (d) the establishment of a website to disseminate information to the public; (e) notifications; and (f) activities designed to encourage participation by stakeholders in the certification and compliance process. In addition, an applicant is expected to communicate with the public early in the pre-application process through the use of various means such as media coverage, direct mailings, fliers or newsletters. This should be done before any agreements on project stipulations have been made between the applicant and interested parties. In addition, the applicant is expected to hold public meetings, offer presentations to individual groups and organizations, and establish a community presence. Establishing a local office, a toll-free telephone number, Internet website, or a community advisory group are among the actions an applicant may take to establish its presence in the community. An applicant should disseminate information about its proposed project at meetings, in mass mailings and through local media.
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?
A. The preliminary scoping statement must be filed no less than 90 days before the date on which the applicant files its application for an Article 10 certificate. In addition, at least three days before the preliminary scoping statement is filed, the applicant must publish a public notice and summary of the preliminary scoping statement in local newspapers in the affected area and serve a copy of the notice and summary upon public officials and all persons who requested to receive such notices.
Q. What kind of information must be included in a Preliminary Scoping Statement?
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?
Q. Who is eligible for intervenor funds?
Q. What can pre-application intervenor funds be used for?
A. The pre-application intervenor funds awarded can be used
to defray pre-application expenses incurred by municipal and local parties for expert witnesses, consultants, administrative costs (document preparation and duplications costs) and legal fees.
No intervenor funds may be used to pay for judicial review or litigation costs.
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?
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?
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?
A. Provided they file with the Siting Board a notice of intent to be a party, within 45 days after the date given in the published notice as the date for the filing of the application, the following parties have a right to be a party to an Article 10 proceeding merely by giving the required notice: (a) the affected municipality; (b) any individual resident of an affected municipality; (c) any non-profit corporation or association, formed in whole or in part to promote conservation or natural beauty, to protect the environment, personal health or other biological values, to preserve historical sites, to promote consumer interests, to represent commercial and industrial groups or to promote the orderly development of any area in which the facility is to be located; and (d) any other municipality or resident of such municipality located within a five mile radius of such proposed facility
(their notice of intent must include an explanation of the potential environmental effects on such municipality or person). In addition, the presiding officer may for good cause shown permit a municipality or other person to become a party and to participate in all subsequent stages of the proceeding.
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?
A. If the application amendment is deemed a revision requiring substantial additional scrutiny, the applicant will be assessed an additional intervenor fee equal to $1,000 for each 1,000 kilowatts of capacity of the proposed project, as amended, but no more than $75,000.00. The presiding examiner may increase the level of the additional intervenor fee up to the maximum level of $75,000 if the presiding examiner finds circumstances require a higher level of intervenor funding in order to ensure an adequate record.
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?
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?
A. A written transcript record is made of the hearings and of all testimony taken and the cross-examinations thereon. In addition, the presiding examiner will provide a summary of the proceedings in a recommended decision that will be presented to the Siting Board. The parties will also present legal briefs to the Siting Board with citations to the portions of the record they deem relevant to their positions.
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?
Q. What substantive matters must be addressed in any Siting Board decision to grant an Article 10 certificate?
A. The Siting Board is required to make certain statutory findings and determinations, and the required determinations can only be made after considering certain required factors.
Q. What are the required statutory findings that must be made by the Siting Board?
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?
COMPLIANCE AND ENFORCEMENT
Q. Who is in charge of compliance and enforcement matters regarding a Certificate that has been issued?
A. Following any rehearing and any judicial review of the decision, the Siting Board's jurisdiction over an application shall cease, provided, however, that the permanent board shall retain jurisdiction with respect to the amendment, suspension or revocation of a certificate. The Department of Public Service or the Public Service Commission shall monitor, enforce and administer compliance with any terms and conditions set forth in the Siting Board's order granting a certificate.