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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"?
A. A "certificate" is a legal document issued by the Siting Board to an applicant if the Siting Board determines that the applicant's proposal to construct and operate a major electric generating facility satisfies the statutory standards set forth in Article 10 of the Public Service Law. The certificate authorizes the applicant to construct and operate the proposed facility. The certificate must be in the form of a written decision and opinion, must include explicit findings and determinations required by the statute, and must state the reasons of the Siting Board for the action taken.
THE SITING BOARD
Q. What is the "Siting Board"?
Q. Who are the permanent members of the Siting Board?
A. The five permanent members of the Siting Board are the Chairman of the Department of Public Service who serves as chairperson of the Siting Board; the Commissioner of the Department of Environmental Conservation; the Commissioner of the Department of Health; the Chairperson of the New York State Energy Research and Development Authority; and the Commissioner of Economic Development. The permanent members may designate an alternate to serve instead of the member with respect to all proceedings provided that such designation is in writing and filed with the chairperson.
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?
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?
A. If such facility is proposed to be located in the City of New York, the chairperson of the community board, the borough president, and the mayor shall each 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 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?
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"?
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?
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?
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?
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?
A. The presiding examiner will award funds on an equitable basis to participants during the pre-application phase to be used to make an effective contribution to review of the preliminary scoping statement, and thereby provide early and effective public involvement.
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?
A. If the documents submitted are insufficient 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 of the deficiencies that must be corrected before the documents can be deemed a complying application.
The Chairperson of the Siting Board may also require the filing of any additional information needed to supplement an application before or during the hearings.
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?
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?
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?
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?
A. The Siting Board can grant a certificate in the manner requested by the applicant, it can grant a certificate subject to modifications and or conditions, or it may deny the application. In rendering a decision on an application for a certificate, the Siting Board must issue a written opinion stating its reasons for the action taken.
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?
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?