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Article X: Siting a Power Plant

Before it can build its plant, TGE must win approval from the State in a licensing process know as Article X (ten). This process is overseen by the New York State Public Service Commission. Under State law, both TGE and the PSC must seek community input on the proposed project. It's up to all of us to understand and challenge the Article X process. Read on for an overview of the process!

Article X of the New York State Public Service Law establishes a review process for consideration of any application to build an electric generating facility with a capacity of 80 megawatts or more. An applicant must meet Article X requirements to obtain the Certificate of Environmental Compatibility and Public Need that is needed before construction of such a facility. The following is a summary of the Article X process.

The Siting Board
The New York State Board on Electric Generation Siting and the Environment (Siting Board) makes the decisions on Article X cases. The Siting Board is made up of seven members:

Five permanent Siting Board members (or their designees):

  • Chairman of the NYS Public Service Commission (also serves as Chairman of the Siting Board)
  • Commissioner of the NYS Department of Environmental Conservation
  • Commissioner of the NYS Department of Health,
  • Commissioner of the NYS Department of Economic Development
  • Development Chairman of the NYS Energy Research and Development Authority

And the Governor names two Siting Board members after the application is filed:

  • A resident from the judicial district in which a facility is proposed.
  • A resident from the county where a facility is proposed.

The Pre-Application Process
The pre-application process begins when the applicant files a preliminary scoping statement. In it the applicant describes the facility and proposes studies to evaluate potential environmental impacts. It may also include other information required by the Siting Board.

TGE filed its preliminary scoping statement on September 13, 2001.

Stipulations are written agreements among the applicant, various state agencies, and other stakeholders (such as the Task Force). Stipulations establish the scope of environmental impact studies and other information needed in the application. Negotiations on stipulations for the TGE project were carried out during the spring of 2002.

The Application
Once the environmental impact studies are complete, the application is filed. It must contain:

  • A description of the proposed facility and site including all applicable environmental characteristics;
  • Studies of impacts on air, water, visual resources, land use, noise levels, health, and other matters;
  • Proof that the proposed facility will meet state and federal health, safety and environmental regulations;
  • Applications for air and water permits; and
  • A complete report of the applicant’s public involvement program activities and its plans to encourage citizen participation.

TGE is expected to file their formal application in the winter of 2002-03.

The Certification Process

Once the application is filed, the Chairman of the Siting Board has 60 days to determine if it is complete. If it is, two examiners (a presiding examiner from the Department of Public Service and an associate examiner from the Department of Environmental Conservation) conduct public statement hearings, one or more pre-hearing conferences (at which "intervenor funding" requests are considered), and evidentiary hearings. The examiners review the briefs submitted by the both parties and issue recommendations to the Siting Board.

Intervenor Funds:
When it files its application, the applicant must submit a fee of $1,000 per megawatt of capacity, up to $300,000 (TGE will be paying the maximum amount). This is the intervenor fund, which is used by municipal and other local parties (such as the Task Force) to defray the expenses of expert witnesses and consultants. The presiding examiner decides how the fund will be distributed. At least fifty percent of the fund is designated for the use of municipalities.

DEC Permits:
In conjunction with the Article X process, the Department of Environmental Conservation (DEC) conducts its own, separate review process on applications for permits for the emission of air and water pollutants. The DEC holds a public issues conference, advises the Chairman of the Siting Board as to the completeness of the air and water applications, and is responsible for issuing a final permit to the Siting Board before the Board determines on the application.

The Siting Board Decision:
After reviewing the examiners' recommendations and reports, the Siting Board decides whether a Certificate should be granted. Generally, this decision is made within 14 months after the application is filed.

To grant a Certificate, the Siting Board must determine all of the following (as quoted from the DPS web site):

  1. Either: (a) Construction of the facility is reasonably consistent with the most recent State Energy Plan, or (b) The facility will be constructed and operated as part of the competitive electricity supply market.
  2. The nature of the probable environmental impacts based on an evaluation of impacts including cumulative air quality impacts;
  3. The facility minimizes adverse environmental impacts, given environmental and other pertinent considerations;
  4. The facility is compatible with public health and safety;
  5. The facility will not discharge or emit any pollutants in violation of existing requirements and standards;
  6. The facility will control the disposal of solid and hazardous wastes;
  7. The facility is designed to operate in compliance with state and local legal provisions, although the applicant may ask the Siting Board to refuse to apply any local legal provisions the applicant considered unreasonably restrictive; and
  8. The construction and operation of the facility is in the public interest.

With the help of our legal team, we can and must challenge the Article X process. Contact TGE and your elected representatives now and tell them our community is united to fight this power plant on every front!

References and Related Reading:

Department of Public Service
Article X Statute
Guide for Siting Power Plants in New York
Article X: Siting Process Flowchart
Summary Table of Pending Article X Applications
TGE Case Tracking System

Plus other supporting documents and information at the excellent GWAPP website.

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