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New York’s One-Stop Power Facility Siting Process Has Arrived

August 2012

New York’s “one-stop” approval process for new power generation facilities has finally arrived.  Last August, Governor Cuomo signed the “Power NY Act” into law which in part created Article 10 of the New York State Public Service Law (“PSL”) thereby establishing a streamlined process for the siting of electric generation facilities of at least 25 megawatts.  Before the new law took effect, Article 10 required the New York State Board on Electric Generation Siting and the Environment (“Board”) and the New York State Department of Environmental Conservation (“NYSDEC”) to promulgate regulations implementing Article 10.  Both agencies recently promulgated  the requisite regulations, and developers will now be able to take advantage of Article 10’s streamlined licensing process - a change from the current process of having to deal with various state and local laws to obtain required permits.

The “One-Stop” Siting Process

Article 10 establishes and vests power in the Board, consisting of five state agency officials and two ad hoc members who reside in the community in which the proposed facility is to be located.  Developers must obtain a Certificate of Environmental Compatibility and Public Need (“CECPN”) from the Board before any construction of a major electric generating facility can begin.  The Legislature enacted Article 10 “to ensure that state and local regulatory certification regarding the construction and operation of major electric generating facilities would be determined in a unified manner.”[1]  

The “one-stop” nature of the new process is strengthened by the fact that no other state agency or municipality may require any approval, consent, permit, certificate, or other condition for the construction or operation of a major electric generating facility that is subject to Article 10.  The Board also has the power to exempt proposed facilities subject to Article 10 from local laws and ordinances if the Board finds that the local law or ordinance is unreasonably burdensome in view of the existing technology or the needs of or costs to ratepayers. 

Additional details regarding the new Article 10 statute are contained in Cullen and Dykman’s September 2011 client advisory entitled New NYS Article 10 Powerplant Siting Statute.

The Board’s Article 10 Regulations

On July 17, 2012, by Memorandum and Resolution, the Board promulgated new regulations to implement Article 10.  The regulations establish the procedures for applications for CECPNs and other matters affecting the construction and operation of major electric generating facilities pursuant to Article 10.  The Board’s regulations replace Parts 1000 through 1003 of Title 16 of the New York Codes, Rules and Regulations (“NYCRR”) with new Parts 1000 through 1002.  The regulations became effective August 1, 2012.

Part 1000 addresses the general procedures for complying with Article 10 and includes sections concerning public involvement (1000.4); the pre-application procedure (1000.5); application filing and service (1000.6); publication and content of notices (1000.7); water quality and coastal certifications (1000.8); the fund for municipal and local party intervenors (1000.10); evidence and proof (1000.12); and other factors related to applications and CECPNs (1000.13-1000.17).

Part 1001 details the application content and lists forty-one potential exhibits to a CECPN application (1001.2-1001.41).  Applicants must submit all exhibits that are relevant to the proposed major electric generating facility technology and site.

Part 1002 sets forth the compliance filings designed to ensure that the applicant complies with the terms, conditions, limitations, or modifications of the construction and operation of the proposed facility.  (1002.1-1002.3).  Part 1002 also addresses reporting and inspections of major electric generating facilities (1002.4).

Summarized below are select sections of the Board’s regulations that may be of more interest to developers or others participating in an Article 10 proceeding.

NYSDEC’s Article 10 Regulations

NYSDEC also recently promulgated two regulations required under Article 10 that became effective July 12, 2012.  The first (6 NYCRR Part 251), establishes carbon dioxide emission limits for new major electric generating facilities with a nameplate capacity of 25 MW or more and for existing facilities that increase capacity 25 MW or more.  For existing facilities, the rule would apply only to the capacity increase, and not to the entire facility.

The following emission rate limits are required by the proposed rule:

The CO2 emission rate limits are measured on a 12-month rolling average basis and can be met by a facility using either an output based limit (MW generated), or an input based limit (annual Btu input).

The second rule (6 NYCRR Part 487), establishes procedures for conducting the requisite environmental justice (“EJ”) reviews for the siting of major energy projects.  The regulations are intended to enhance public participation and review of environmental impacts of proposed major electric generating facilities upon EJ communities and reduce disproportionate environmental impacts in overburdened communities.  

Section 487.6 sets forth the general requirements and procedures for completing an EJ analysis.  The applicant must initiate its EJ analysis as early as practicable in the pre-application process.  “If an EJ area is present within the impact study area for the proposed facility, the applicant must include in its preliminary scoping statement preliminary information about its proposed EJ analysis, including as much information as is reasonably available, similar in detail to the preliminary information the applicant is required to provide generally for its environmental impact assessment.  If an EJ area is present within the impact study area of any reasonable and available alternate location identified by the applicant, the applicant must also include preliminary information about its proposed EJ analysis for the alternate location.”[2]

Section 487.6 also outlines the items that the applicant must include in its final EJ analysis submitted with its application.  “If the applicant identifies any reasonable and available alternate locations to the proposed facility in its application, and the impact study area of any alternate location includes an EJ area, the applicant must complete a final EJ analysis for each such alternate location.”[3]  

Section 487.7 establishes the requirements for conducting the cumulative impact analysis of air quality required as part of the applicant’s final EJ analysis.  “This cumulative impact analysis is specifically geared to assessing EJ-specific impacts and is only required if the proposed facility is an air emission source and is likely to impact an EJ area.”[4]

“The EJ analysis must be written clearly and concisely in plain English and contain all relevant and material facts in sufficient detail to enable the Board to make explicit findings related to EJ issues.”[5]

If you have any questions or would like further information from Cullen and Dykman LLP concerning this topic, please contact any of the following attorneys: David T. Metcalfe at 516-357-3733 or by e-mail at dmetcalfe@cullenanddykman.com; Angela N. Cascione at 516-296-9102 or by e-mail at acascione@cullenanddykman.com; Brian T. FitzGerald at 518-788-9401 or by e-mail at bfitzgerald@cullenanddykman.com; or Gregory G. Nickson at 518-788-9440 or by e-mail at gnickson@cullenanddykman.com.



[1]       Case 12-F-0036 - In the Matter of the Rules and Regulations of the Board on Electric Generation Siting and the Environment, contain in 16 NYCRR, Chapter X, Certification of Major Electric Generating Facilities, Memorandum and Resolution Adopting Article 10 Regulations at 2 (July 17, 2012).

[2]       New York State Department of Environmental Conservation, Part 487 Regulatory Impact Statement, http://www.dec.ny.gov/regulations/79642.html (last accessed August 3, 2012).

[3]       Id.

[4]       Id.

[5]       Id.