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Q. What is Article 10?
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"?
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?
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?
A. The Department of Public Service provides a presiding examiner and whatever legal, technological, scientific, engineering and other services that may be required. The Department of Environmental Conservation provides an associate examiner. The Secretary and the General Counsel to the Public Service Commission serve as Secretary and the General Counsel to 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?
Q. If a facility is exempt from the Article 10 process, can the developer of the facility opt-in to the Article 10 process?
A. Yes, if the facility is excluded because of exemptions (d), (e), (f) or (g) set forth above in the answer to the preceding question, the person intending to construct the major electric generating facility may elect to become subject to the provisions of 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?
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?
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?
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?
A. Applicants must submit proposed Public Involvement Program plans in writing to the Department of Public Service for review as to their adequacy at least 150 days prior to the submittal of any preliminary scoping statement. For good cause, applicants may request a reduction in the minimum number of days to less than 150.
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?
A. The Office of Public Information Coordinator assists the public and interested parties by: (a) implementing measures that assure public participation in matters before the Siting Board; (b) responding to inquiries from the public for information on how to participate; (c) assisting the public in requesting records; (d) ensuring all interested persons are provided with a reasonable opportunity to participate at public meetings; (e) ensuring that all necessary or required documents are available for public access on the Siting Board website; and (f) any other duties as may be prescribed by the Siting Board, after consultation with 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?
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?
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?
A. All municipal and local parties are eligible. The presiding examiner shall reserve at least 50% of the pre-application funds for potential awards to municipalities.
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?
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?
A. If the documents submitted are sufficient 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 that the documents submitted constitute a complying application. The Chairperson will also fix the date for the commencement of a public hearing and the Department of Environmental Conservation will initiate its review pursuant to federally delegated or approved environmental permitting authority or air and water permit applications. Within a reasonable time, the presiding examiner will hold a prehearing conference to expedite the orderly conduct and completion of the hearing, to specify the issues, to obtain stipulations as to matters not disputed, and to deal with other matters deemed appropriate. The presiding examiner will then issue an order identifying the issues to be addressed by the parties. Later in the proceeding there may also be a consideration of additional issues which warrant consideration in order to develop an adequate record.
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?
A. The applicant, staff of the Department of Public Service, the Department of Environmental Conservation, the Department of Economic Development, the Department of Health, the Department of Agriculture and Markets, the New York State Energy Research and Development Authority, the Department of State, the Office of Parks, Recreation and Historic Preservation, and in certain instances, the Adirondack Park Agency.
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?
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?
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?
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?
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?
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?