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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"?
A. An electric generating facility is deemed to be "major" if it has the capacity to generate 25,000 kilowatts (25 megawatts) or more of electricity. The 25 megawatt threshold is roughly equivalent to the average electric power needs of 30,000 households in New York State.
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?
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?
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?
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?
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?
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?
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?
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?
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?
A. If the pre-application preliminary scoping statement
is substantially modified or revised, the Siting Board may require an additional pre-application intervenor fee in an amount not to exceed $25,000.
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?
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?
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?
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?
A. Applicants are assessed an intervenor fee equal to $1,000 for each 1,000 kilowatts (1 megawatt) of generating capacity of the subject facility, but no more than $400,000. For example, for a 100 megawatt facility, the application phase intervenor fee would be $100,000 (100 x $1000). In addition, for facilities that will require storage or disposal of fuel waste byproduct, an additional intervenor fee will be assessed at the application phase of $500.00 for each 1,000 kilowatts (1 megawatt) of capacity, but no more than an additional $50,000.00.
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?
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?
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"?
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"?
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?
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?
A. The Siting Board must consider: (a) the state of available technology; (b) the nature and economics of reasonable alternatives; (c) environmental impacts found pursuant to subdivision two of this section; (d) the impact of 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; (e) the consistency of the construction and operation of the facility with the energy policies and long-range energy planning objectives and strategies contained in the most recent state energy plan; (f) the impact on community character and whether the facility would affect communities that are disproportionately impacted by cumulative levels of pollutants; and (g) such additional social, economic, visual or other aesthetic, environmental and other considerations deemed pertinent by the Siting Board.
COMPLIANCE AND ENFORCEMENT
Q. Who is in charge of compliance and enforcement matters regarding a Certificate that has been issued?