Updated: December 12, 2000

Environmental Reviews for Major Electric Generating Facilities Under Article X of the New York State Public Service Law

This is a brief description of how the New York City Department of Environmental Protection (DEP) and other agencies may participate in the environmental review of proposed major electric generating facilities, which may be located within the City and have a capacity of 80 megawatts or more, under Article X of the New York State Public Service Law. Following this description is a link to the Web site of the New York State Public Service Commission's Consumer Guide to the Certification Review Process for Major Electric Generating Facilities under Article X of the New York State Public Service Law for Applications Filed after December 1, 1999.

Article X of the Public Service Law sets forth a unified and expedited review process in New York State for consideration of any application to construct and operate an electric generating facility with a capacity of 80 megawatts or more. Any applicant is required to meet Article X requirements in order to obtain a Certificate of Environmental Compatibility and Public Need before constructing such a facility.

Article X supersedes local air permitting. The only regulatory authority DEP retains for such projects will be issuance of Industrial Discharge Permits, since the Department implements federal law through that program. Any application filed under Article X will ultimately be ruled on by the New York State Board on Electric Generation Siting and the Environment (Siting Board).

The process allows all relevant parties to sign "stipulations" with the applicant. These are written agreements among the applicant, various State agencies, and other stakeholders establishing the scope of environmental impact studies and other information that must be provided in the project application to satisfy the minimum requirements of Article X of the Public Service Law and implementing regulations.

All Article X applicants are required to:

• serve copies of their preliminary scoping statements, proposed stipulations, and applications on the members of the Siting Board, interested state agencies, municipalities, members of the State Legislature, local libraries, and other interested persons and organizations;

• offer the public a reasonable opportunity to file comments on the stipulations before they are signed; and

• publish notice of the filing of preliminary scoping statements, stipulations, and applications.

Ultimately, the Chairman of the Siting Board will determine whether an application is in compliance with Article X within 60 days after its filing. A presiding examiner from the Department of Public Service and an associate examiner from the Department of Environmental Conservation will be appointed to jointly conduct hearings to receive public comment and to review evidence. Dates will be set for public hearings after all portions of the application are judged to be in compliance. After the public hearings are concluded, the presiding examiner will issue a written recommended decision, analyzing each issue in the case. The associate examiner may also issue a report.

In parallel with the Article X certification process, the State Department of Environmental Conservation reviews applications (submitted as part of an Article X application) for permits involving the discharge of water pollutants and the emission of air pollutants. The State Department of Environmental Conservation must provide such permits to the Siting Board before the Siting Board decides to grant a certificate.

Article X specifies that the applicant and certain State agencies are parties in a case. The State Departments of Agriculture and Markets, Environmental Conservation, Economic Development, Health, and Public Service, and the New York State Energy Research and Development Authority normally become active parties. Within 45 days of the date on which the filing of an application is noticed to the public, any person or municipality residing within the five-mile-radius of a proposed facility may become a party to the proceeding by sending written notice to the Department of Public Service. Any person or organization residing outside of the five-mile-radius of a proposed project may also request party status, but must include a reason for the request. Obtaining party status enables a person to submit testimony, to cross-examine witnesses of other parties, and to file briefs in the case.

The City has decided that it will seek active party status for applications within City limits under the Article X process. DEP will review impact analysis materials associated with these proposals, in particular, those technical reports related to prediction of air quality impacts. DEP has already informed applicants that they should perform cumulative air quality impact analyses in order to demonstrate whether or not emissions from a specific proposal, when combined with the emissions from existing large sources and other planned sources in a neighborhood, would interact to adversely affect the health of surrounding communities. These analyses will be closely scrutinized and DEP will participate in the Article X process, in coordination with other involved agencies, as required, in order to ensure that health and safety issues are adequately addressed.