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Q. What is Article 10?
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"?
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?
Q. How is the list of ad hoc public member candidates established?
A. There is a different procedure depending on whether the facility is proposed to be located (a) in the City of New York; (b) in a town outside of any villages or in a city other than the City of New York; or (c) in a village.
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?
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?
Q. What are the purposes of a Public Involvement Program?
A. The purposes of a Public Involvement Plan include: (a) providing for an open exchange of information and ideas between the public and the applicant; (b) providing complete information on the application to the public; (c) providing timely notice to the public of important events; (d) providing meaningful public input to key decisions; (e) fostering the active, early and continuing involvement of interested or affected persons; (f) the solicitation of public comments, ideas, and local expertise; and (g) the identification of circumstances and impacts which may not have been known or anticipated by the applicant or government agencies.
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?
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?
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?
A. Applicants supplying the requisite fee to set up the intervenor funding account for the preliminary scoping phase of the case must provide a check, made out to the NYS Department of Public Service, simultaneously with the filing of their Preliminary Scoping Statement. 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 is an "intervenor"?
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?
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?
A. "Stipulations" are agreements among parties that concern matters before the Siting Board and are designed to simplify or shorten litigation and save costs. Any parties to the proceeding can enter into a stipulation setting forth an agreement on any aspect of the preliminary scoping statement and the scope of studies or program of studies to be conducted. It is often in the interests of applicants and other parties to agree in advance to the content and methodology for conducting studies that will be submitted as part of the application.
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?
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?
A. If the documents submitted are insufficient to comply with the requirements of the law, regulations and stipulations, the Chairperson of the Siting Board will issue a letter to the applicant advising of the deficiencies that must be corrected before the documents can be deemed a complying application.
The Chairperson of the Siting Board may also require the filing of any additional information needed to supplement an application before or during the hearings.
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?
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?
Q. What can application phase intervenor funds be used for?
A. The intervenor funds awarded can be used
to defray 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?
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?
A. It is expected that both public statement hearings and trial-type evidentiary hearings will be held. In addition, persons are permitted to make a limited appearance.
Q. What are "public statement" hearings?
Q. What is a "limited appearance"?
Any person may make a limited appearance in the proceeding by filing a statement of his or her intent to limit his or her appearance in writing at any time prior to the commencement of the hearing. All papers and matters filed by a person making a limited appearance shall become part of the record. No person making a limited appearance shall be a party or shall have the right to present testimony or cross-examine witnesses or parties.
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?
A. Yes. All proceedings on an application including a final decision by the Siting Board must be completed within 12 months from the date of a determination by the Chairperson that an application complies, except that the Siting Board may extend the deadline in extraordinary circumstances by no more than 6 months in order to give consideration to specific issues necessary to develop an adequate record. The board must render a final decision on the application by the aforementioned deadlines unless the deadlines are waived by the applicant.
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?
COMPLIANCE AND ENFORCEMENT
Q. Who is in charge of compliance and enforcement matters regarding a Certificate that has been issued?