(click on the blue arrows
to expand a question and see the answer)
Expand all sections - Printer Friendly Page
Collapse all sections
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?
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?
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?
TYPES OF GENERATING FACILITIES
Q. What types of electric generating facilities are likely to be proposed pursuant to the Article 10 process?
A. Based on recent market trends in New York State, the types of electric generating facilities most likely to be proposed pursuant to the Article 10 process are natural gas-fired facilities and wind-power facilities. But it is possible that other types of generating facilities will be proposed. The Summer 2012 installed generating capacity of power plants in the New York Control Area is 38,902 MWs, type classified as follows: Gas with Oil Back-up 36.9%; Gas 15.7%; Nuclear 13.5%; Hydro 11.0%; Oil 8.5%; Coal 6.1%; Pumped Storage Hydro 3.6%, Wind 3.5%; Refuse 0.7%; Biomass (Wood) 0.1%; Solar 0.1%, and Other 0.2%.
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?
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?
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?
Q. What is an "intervenor"?
A. "Intervenor" is the name used to refer to a party other than the applicant or the staff of the reviewing public agency that joins a case or proceeding as a third party for the protection of an interest.
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?
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?
A. So that all parties will have an opportunity to participate, the applicant may not commence consultations or seek agreements on proposed stipulations until the pre-application intervenor funds have been allocated by the presiding examiner. Within sixty days of the filing of a preliminary scoping statement, the presiding examiner will convene a meeting of interested parties in order to initiate the stipulation process.
The presiding examiner will also oversee the pre-application process and mediate any issue relating to any aspect of the preliminary scoping statement and the methodology and scope of any such studies or programs of study in order to attempt to resolve any questions that may arise.
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?
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?
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?
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?
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?
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?
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?
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?
A. If during the proceeding there is a material and substantial amendment to the application, the deadlines may be extended by no more than 6 months to consider such amendment, unless the deadline is waived by the applicant.
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?
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.