coaxny

Article X Overview

The Siting Board will have seven members:

Chair of the Public Service Commission

Commissioner of NYSDEC

Commissioner of Health

Chair of NYSERDA

Commissioner of Economic Development

two ad hoc members:

must reside in the municipality where the facilities will be located (there is a somewhat complicated nominating process for these two ad hoc members, but local elected officials will have the greatest voice in the selection of those members.)

THE PRE-APPLICATION PHASE

Step 1: Submission of a “Preliminary Scoping Statement” by the developer/applicant/sponsor

based on “available information”

contains a “brief discussion” that addresses the following:

 the proposed facility and its environmental setting

 potential environmental and health effects

 project sponsors proposal for the studies to evaluate potential environmental and health impacts

 measures proposed to mitigate potential impacts

 reasonable alternatives

 identification of all other required state and federal approvals

Step 2: Involve the Public

Department of Public Service (DPS) and the Project Sponsor must provide opportunity for early public involvement in the scoping process

Preliminary Scoping Statement must be widely distributed to agencies and public officials. Newspaper public notice is required.

Project sponsor must pay a fee to a pre-application intervenor account of $350/megawatt up to $200,000. This is in addition to an amount paid into the intervenor account later, following the pre-application phase, of up to $400,000 at the beginning of the application phase.

Step 3: Disbursement of pre-application intervenor account

Article X calls for regulations providing for an expedited pre-application disbursement schedule to assure early and meaningful public involvement.

A pre-hearing examiner will be assigned to the case; will oversee the disbursement of the pre-application intervenor fund.

The fund is available to “Local Parties.” Defined broadly as “persons residing in a community who may be affected” by the project.

Fund may be used to pay expert witnesses, consultants, lawyers (but not for litigation)

Step 4: Commencement of Consultation

Begins after Preliminary Scoping Document is

submitted

circulated

publicly noticed

and the pre-application intervenor account has been dispersed

Prehearing Examiner

Oversees the Consultation

“Mediates” issues related to the scope of the application

Must convene a meeting of interested parties to initiate the “Stipulation Process” within 60 days of the filing of the Preliminary Scoping Statement

Step 5: Development of Stipulations

Applicant consults with agencies and participating members of the public regarding methodologies and scope of studies… Should be as detailed and substantive as possible

Agreements are incorporated into a proposed stipulation (in a community where a project is broadly and strenuously opposed there may be few or no stipulations, and therefore no written agreement as to stipulations)

Step 6: Proposed stipulations are widely circulated to government agencies, public officials, and participating members of the public

Must give the public a “reasonable opportunity to give comments”

Thereafter, stipulation may be signed and is binding on signatories

PREEMTIVE EFFECT OF ARTICLE X

Except as set forth in Article X “no state agency, municipality or any agency thereof may… require any approval, consent, permit, certificate or other condition for the construction of a major electric generating facility.”

Major exception: NYSDEC permits under the Clean Air Act, Clean Water Act or the Resource Conservation and Recovery Act

NYSDEC is folded into the Article X process

Commissioner of NYSDEC sits on Siting Board

A NYSDEC hearing officer serves as an associate hearing examiner

Article X application and record must support issuance of any NYSDEC permits

NYSDEC permits must be issued before any final certificate can be granted by the Siting Board

Other state and local laws and regulations are enforced through Article X

Siting Board must find: that the facility is designed to operate in compliance with applicable state and local laws and regulations

EXCEPT those it finds “unduly burdensome”

(An applicant must ascertain if it can reasonably live with local ordinances that are likely to be upheld, i.e., will the upholding of certain local ordinances effectively kill the project”)