Saturday, March 3, 2012

Enacted Article 10 Statute:

Power NY Act of 2011

On August 4, 2011, Governor Andrew M. Cuomo signed into law Chapter 388 of the Laws of 2011 that enacts Article 10 of the Public Service Law. The primary purpose of Article 10 is to provide for the siting review of new and repowered or modified Major Electric Generating Facilities in New York State by the Board on Electric Generation Siting and the Environment (Siting Board) in a unified proceeding instead of requiring a developer or owner of such a facility to apply for numerous state and local permits. A previous version of such a law expired on January 1, 2003. Key provisions of the law include:

1. Defines a major electric generating facility as facilities of 25 megawatts or more;

2. Requires environmental and public health impact analysis, studies regarding environmental justice and public safety, and consideration of local laws;

3. Directs applicants to provide funding for both the pre-application and application phases. It allows funding to be used to help intervenors (affected municipalities and other parties) hire experts to participate in the review of the application and for legal fees (but not for judicial challenges);

4. Requires a utility security plan reviewed by Homeland Security and, for New York City (NYC) plants, NYC's emergency management office;

5. Provides for appointment of ad hoc public members of the Siting Board from the municipality where the facility is proposed to be sited; and,

6. Requires a public information coordinator within the Department of Public Service (Department) to "assist and advise interested parties and members of the public" in participating in the siting process.

Chapter 388 of the Laws of 2011 can be accessed via the link below:


Other useful information on the enacted Article 10 statute: Peter McGowan, General Counsel, Department of Public Service, Presentation at ACE NY Conference

Working Draft of Article 10 Regulations for Stakeholder Review and Comment (NYSDPS, Dated: January 13, 2012):The working draft of the Article 10 regulations was developed using the old regulations for the former generating facility siting laws known as Article VIII and Article X of the Public Service Law; detailed stipulations parties had developed under the old Article X law that defined the scope and methodology of studies and analyses that would need to be in an application; and the experience of the Department of Public Service in reviewing requests for approval to site electric generating facilities.

Practitioners who had experience with the former Article X will recognize that the working draft borrows heavily in a generic fashion from the detailed stipulations that were developed under Article X. We hope that by incorporating the comprehensive generic parts of the stipulations into the draft regulations that all parties involved will be informed in advance of the types of studies and analysis that must be included in an application. We envision that parties will still execute stipulations, however, those stipulations will be more narrowly focused on the unique characteristics of the project and its location such that all participants will be able to use their time and resources more efficiently.

Staff from the Department of Public Service will begin receiving oral feedback on the working draft from stakeholders during the week of January 23, 2012. We ask that stakeholders familiarize themselves with the draft before commenting and in particular to try to focus their comments on specific provisions of the draft regulations. This is a working document. The drafting team will continue to improve the document during the stakeholder process. After all the stakeholders are heard from, the team drafting the regulations will consider the feedback and make revisions to the draft, as appropriate, and then present a final draft to the Siting Board for its consideration. When the Siting Board is satisfied with the draft, a Notice of Proposed Rulemaking, pursuant to the State Administrative Procedure Act, will then be published in the State Register and a formal written comment period will commence where everyone will have an opportunity for further input.

The individuals who signed up to participate as stakeholders represent a broad spectrum of interests and we greatly appreciate your cooperation and assistance. (NYPSC)

Working Draft of Article 10 Regulations 1-13-12.pdf


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