What is Article 10?
Article 10 is part of the New York State Public Service Law enacted in 2011. Article 10 empowers the NYS Board on Electric Generation Siting and Environment (Siting Board) to issue Certificates of Environmental Compatibility and Public Need authorizing the construction of major electric generation facilities.
“Siting” is the process consisting of the steps conducted by the regulatory agency in determining whether to allow a facility to be located and operate on a site. In the case of a wind-powered facility it includes wind turbines on towers, electric collection line, access roads, substations Meteorological towers and transmission lines.
There are five phases to the siting process:
- The Pre-Application
- The Application
- Administrative Hearings
- Siting Board Decision
The pre-Application phase is where we are now. The applicant is required to prepare and implement a Public Involvement Program (PIP). The PIP must be submitted in writing to the Department of Public Service at least 150 days before submitting a Preliminary Scoping Statement (PSS). Apex filed their PIP on October 30, 2014. The company filed a revised PIP on Dec. 31, 2014 and another revised PIP on Jan. 15, 2015.
How to monitor filings:
- Go to New York State Dept. of Public Service home page
- On the left click on search
- On the next page on the top click on search
- Scroll down to “Search by Case Number”
- Enter case # 14-F-0485
The site will have all of the filings, public comments and a party list.
- Consultation with affected agencies & other stakeholders
- Activities to encourage stakeholders to participate
- Activities to educate the public on the specific proposal and the Article 10 process
- Establish a website to disseminate information. (Lighthousewind.com)
Preliminary Scoping Statement (PSS)
PSS is a written document to inform the Siting Board, other public agencies and the public that the applicant is contemplating making an Article 10 application. It is prepared by the applicant after consulting with the public, affected agencies, and other stakeholders. “Consultation” means providing information to and getting effective input from the public, agencies, and other stakeholders. The PSS needs to be filed no less than 905 days before the application for Article 10 certification is filed. Filing of the PSS triggers the ad hoc process. Information included in the PSS falls into two categories:
contains a description of the proposed facility and its environmental setting. The information must include description of potential environmental & health impact resulting from construction and operation of the facility; measures proposed to minimize the environmental impact; alternatives to the facility and identification of all state & federal permits, certifications or authorizations needed to construct and operate the facility.
is a description of the proposed studies or program of studies designed to evaluate potential environmental and health impact that the applicant intends to include in the application. The PSS must also include an identification of any other material issues raised by the public. Within 21 days of the filing of the PSS any person may submit comments about the PSS.
Within 60 days of the receipt of the application the Chairperson of the Siting Board determines whether the document complies with the requirements of law, regulations and stipulations. The DEC also advises the Siting Board within the 60 day period that the document contains sufficient information. If approved, the Siting Board Chairperson will fix a date for public hearings.
The hearings will be conducted by a presiding examiner designated by the Department of Public Services and an assistant examiner designated by the DEC. Types of Hearings: Public statement Hearings, Trial-type evidentiary hearings.
The hearing examiner will hold a pre-hearing conference to identify interveners, award intervener funds, identify issues for the hearing, and establish a case schedule.
Who are the parties to an Article 10 Proceedings?
- Automatic statutory parties.
- Parties that have a right to be a party do so merely by giving notice. That can be any individual resident of an affected municipality providing 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 filing of the application.
Siting Board Decision
The Siting Board makes the final decision. It must be made within 12 months from the date of the determination by the Chairperson that the application is complete. The decision is based on the impact of construction & operation of the facility on:
- Ecology, air, ground and surface water, wildlife and habitat.
- Public health and safety.
- Cultural, historic &recreation resources including aesthetic and scenic value.
- Transportation, communication, utilities, and other infrastructure.
Note: The new law allows the Siting Board to disregard, in whole or in part, any local ordinance, law, resolution or other action or any regulation if it finds that, as applied to the proposed facility, such is unreasonably burdensome in view of existing technology or the needs of or costs to ratepayers. This includes zoning or planning restrictions enacted locally.
The legislation provides that no State agency, municipality, or any agency thereof may, except as expressly authorized by the Siting Board, require any approval, consent, permit, certificate or other condition for the construction or operation of the proposed facility.