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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"?
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?
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?
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?
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"?
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?
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?
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?
A. Applicants are required to identify significant non-English speaking populations and to address the need for non-English communication and participation in their Public Involvement Program plan.
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?
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?
A. A notice of availability of the funds will be issued providing a schedule and related information describing how interested members of the public may apply for pre-application funds. Requests for pre-application funds shall be submitted to the presiding examiner not later than 30 days after the issuance of the notice of availability by filing the request with the Secretary and submitting a copy to the presiding examiner and to the other parties to the proceeding. An initial pre-application meeting to consider fund requests shall be convened within no less than 45 days but no more than 60 days of the filing of a preliminary scoping statement. At any pre-application meeting that may be held to consider fund requests, intervenors should be prepared to discuss their funding applications and the award of funds. Intervenors are encouraged to consider the consolidation of requests with similar funding proposals of other intervenors.
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?
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?
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?
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?
Q. Who are the parties that may be permitted to join?
A. Such other persons or entities as the Siting Board may at any time deem appropriate, who may participate in all subsequent stages of the proceeding.
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?
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?
HEARING PROCEDURES - CONDUCT OF THE HEARING
Q. Who conducts the hearings?
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?
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?
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.