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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"?
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?
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?
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"?
Q. In what stages of the Article 10 process is it appropriate to conduct public involvement activities?
Q. How is public involvement conducted?
A. At the earliest stage of the Article 10 process, applicants are required to prepare and begin implementing a Public Involvement Program. In addition, to ensure that the public and interested parties are fully assisted and advised in participating in the Article 10 process,
an Office of Public Information Coordinator has been created within the New York State Department of Public Service.
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?
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?
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?
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?
PRE-APPLICATION PROCEDURES - Fund for Municipal & LOCAL PARTIES
Q. What is the fund for municipal and local parties?
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?
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?
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?
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?
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?
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?
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"?
A. "Discovery" is a pre-trial process used by parties to obtain facts and information about the case from other parties. The most common discovery device is the written interrogatory, but oral depositions and other devices are also available. Any party to a proceeding is subject to the discovery process.
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?
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?
COMPLIANCE AND ENFORCEMENT
Q. Who is in charge of compliance and enforcement matters regarding a Certificate that has been issued?