§ 163 — Pre-application procedures

New York § 163

• Jurisdiction: New York
• Law PBS: Public Service
• Art. 10: Siting of Major Electric Generating Facilities

Text

§ 163. Pre-application procedures. 1. Any person proposing to submit\nan application for a certificate shall file with the board a preliminary\nscoping statement containing a brief discussion, on the basis of\navailable information, of the following items:\n (a) description of the proposed facility and its environmental\nsetting;\n (b) potential environmental and health impacts resulting from the\nconstruction and operation of the proposed facility;\n (c) proposed studies or program of studies designed to evaluate\npotential environmental and health impacts, including, for proposed\nwind-powered facilities, proposed studies during pre-construction\nactivities and a proposed period of post-construction operations\nmonitoring for potential impacts to avian and bat species;\n (d) measures proposed to minimize environmental impacts; and\n (e) where the proposed facility intends to use petroleum or other\nback-up fuel for generating electricity, a discussion and/or study of\nthe sufficiency of the proposed on-site fuel storage capacity and\nsupply; and\n (f) reasonable alternatives to the facility that may be required by\nparagraph (i) of subdivision one of section one hundred sixty-four of\nthis article;\n (g) identification of all other state and federal permits,\ncertifications, or other authorizations needed for construction,\noperation or maintenance of the proposed facility; and\n (h) any other information that may be relevant or that the board may\nrequire.\n 2. Such person shall serve copies of the preliminary scoping statement\non persons enumerated in paragraph (a) of subdivision two of section one\nhundred sixty-four of this article and provide notice of such statement\nas provided in paragraph (b) of such subdivision in plain language, in\nEnglish and in any other language spoken as determined by the board by a\nsignificant portion of the population in the community, that describes\nthe proposed facility and its location, the range of potential\nenvironmental and health impacts of each pollutant, the application and\nreview process, and a contact person, with phone number and address,\nfrom whom information will be available as the application proceeds.\n 3. To facilitate the pre-application and application processes and\nenable citizens to participate in decisions that affect their health and\nsafety and the environment, the department and such person shall provide\nopportunities for citizen involvement. Such opportunities shall\nencourage consultation with the public early in the pre-application and\napplication processes, especially before any parties enter a stipulation\npursuant to subdivision five of this section. The primary goals of the\ncitizen participation process shall be to facilitate communication\nbetween the applicant and interested or affected persons. The process\nshall foster the active involvement of the interested or affected\npersons.\n 4. (a) Each pre-application preliminary scoping statement shall be\naccompanied by a fee in an amount equal to three hundred fifty dollars\nfor each thousand kilowatts of generating capacity of the subject\nfacility, but no more than two hundred thousand dollars, to be deposited\nin the intervenor account established pursuant to section\nninety-seven-kkkk of the state finance law, to be disbursed at the\nhearing examiner's direction to defray pre-application expenses incurred\nby municipal and local parties (except for a municipality submitting the\npre-application scoping statement) for expert witness, consultant,\nadministrative and legal fees. If at any time subsequent to the filing\nof the pre-application the pre-application is substantially modified or\nrevised, the board may require an additional pre-application intervenor\nfee in an amount not to exceed twenty-five thousand dollars. No fees\nmade available under this paragraph shall be used for judicial review or\nlitigation. Any moneys remaining in the intervenor account upon the\nsubmission of an application for a certificate shall be made available\nto intervenors according to paragraph (a) of subdivision six of section\none hundred sixty-four of this article.\n (b) Pre-application disbursements from the intervenor account shall be\nmade in accordance with rules and regulations established pursuant to\nparagraph (b) of subdivision six of section one hundred sixty-four of\nthis article which rules shall provide for an expedited pre-application\ndisbursement schedule to assure early and meaningful public involvement,\nwith at least one-half of pre-application intervenor funds becoming\navailable through an application process to commence within sixty days\nof the filing of a pre-application preliminary scoping statement.\n 5. After meeting the requirements of subdivisions one through three of\nthis section, and after pre-application intervenor funds have been\nallocated by the pre-hearing examiner pursuant to paragraph (b) of\nsubdivision four of this section, such person may consult and seek\nagreement with any interested person, including, but not limited to, the\nstaff of the department, the department of environmental conservation\nand the department of health, as appropriate, as to any aspect of the\npreliminary scoping statement and any study or program of studies made\nor to be made to support such application. The staff of the department,\nthe department of environmental conservation, the department of health,\nthe person proposing to file an application, and any other interested\nperson may enter into a stipulation setting forth an agreement on any\naspect of the preliminary scoping statement and the studies or program\nof studies to be conducted. Any such person proposing to submit an\napplication for a certificate shall serve a copy of the proposed\nstipulation upon all persons enumerated in paragraph (a) of subdivision\ntwo of section one hundred sixty-four of this article, provide notice of\nsuch stipulation to those persons identified in paragraph (b) of such\nsubdivision, and afford the public a reasonable opportunity to submit\ncomments on the stipulation before it is executed by the interested\nparties. Nothing in this section, however, shall bar any party to a\nhearing on an application, other than any party to a pre-application\nstipulation, from timely raising objections to any aspect of the\npreliminary scoping statement and the methodology and scope of any\nstipulated studies or program of studies in any such agreement. In order\nto attempt to resolve any questions that may arise as a result of such\nconsultation, the department shall designate a hearing examiner who\nshall oversee the pre-application process and mediate any issue relating\nto any aspect of the preliminary scoping statement and the methodology\nand scope of any such studies or programs of study. Upon completion of\nthe notice provisions provided in this section, such hearing examiner\nshall, within sixty days of the filing of a preliminary scoping\nstatement, convene a meeting of interested parties in order to initiate\nthe stipulation process.\n