Current through Register Vol. 46, No. 12, March 20, 2024
(a) This
section applies to the required preliminary scoping statement and any
stipulation setting forth an agreement on any aspect of the preliminary scoping
statement and/or the methodology or scope of the studies or program of studies
to be conducted in support of the application. It provides for consultation
between the applicant, the public, affected agencies, and other
stakeholders.
(b) Applicants are
required to consult with the public, affected agencies, and other stakeholders
(providing information to and effective opportunities for input from the
public, affected agencies, and other stakeholders concerning the
proposal).
(c) No less than 90 days
before the date on which an applicant files an application, the applicant shall
file an electronic copy and 10 paper copies of a preliminary scoping statement
with the board by filing it with the secretary at the Albany, New York offices
of the DPS and shall serve copies specifying thereon the date on or about which
the preliminary scoping statement is to be filed, as follows:
(1) four paper copies on DEC at its central
office and three paper copies on each affected DEC regional office;
(2) two paper copies each on the Commissioner
of Health, the chair of the New York State Energy Research and Development
Authority, and the Commissioner of Economic Development;
(3) one paper copy each on the chief
executive officer of each municipality in which any portion of such facility is
to be located as proposed or in any alternative location listed;
(4) one paper copy each on Ag&Mkts, DOS,
the Attorney General, the Department of Transportation, and OPRHP;
(5) one paper copy each on a library serving
the district of each member of the State Legislature in whose district any
portion of the facility is to be located as proposed or in any alternative
location listed;
(6) one paper copy
on the APA if such facility or any portion thereof as proposed or in any
alternative location listed is located within the Adirondack park, as defined
in subdivision one of section 9-0101 of the ECL;
(7) one electronic copy on the public
information coordinator (for placement on the DPS website); and
(8) one paper copy on the chief executive
officer of any other agency or municipality that would (absent PSL article 10)
have approval authority with respect to any aspect of the proposed facility or
interconnections necessary to serve the proposed facility.
(d) No less than three days before the date
on which an applicant files a preliminary scoping statement, notice shall be
given by the applicant to all persons residing in each municipality in which
any portion of the facility is proposed to be located and in which any
alternative location identified is located, and each other municipality that
would (absent PSL article 10) have approval authority with respect to any
aspect of the proposed facility, interconnections or related facilities
necessary to serve the proposed facility. Notice shall be given by the
publication of a summary of the preliminary scoping statement in such newspaper
or newspapers, including local community and general circulation newspapers, as
will serve substantially to inform the public of such preliminary scoping
statement and proposal, in plain language, in English and in any other language
spoken according to the most recent United States census data available by
5,000 or more persons residing in any 5-digit ZIP code postal zone in which any
portion of such zone is located within the study area for the facility. The
notice and summary of the preliminary scoping statement shall describe:
(1) the proposed facility and its
location;
(2) the range of
potential environmental and health impacts of the construction and operation of
the facility and of each pollutant that will be emitted or discharged by the
facility;
(3) the application and
review process;
(4) the amount of
pre-application funds available for municipal and local parties; and
(5) shall designate a contact person, with
telephone number, e-mail address and mailing address, from whom information
will be available on a going-forward basis as well as contact information for
the public information coordinator and DPS website.
The notice and summary of the preliminary scoping statement
shall also include a statement advising the public how and where persons
wishing to receive all notices concerning the proposed facility can file a
request with the Secretary to subscribe to receive such notices, including but
not limited to notices regarding any proposed pre-application stipulations, and
explaining how to utilize the DPS website to access electronic documents
concerning the proposed facility.
(e) No less than three days before the date
on which an applicant files a preliminary scoping statement, the applicant
shall also serve a copy of the notice/summary of the preliminary scoping
statement upon:
(1) each member of the State
legislature in whose district any portion of such facility is proposed to be
located or in which any alternative location identified is located, or in which
any interconnections or related facilities necessary to serve the proposed
facility are proposed to be located;
(2) in New York City, upon the borough
president of any affected borough, and upon the community board of any affected
areas served by a community board; and
(3) persons who have filed a statement with
the secretary within the past 12 months that they wish to receive all such
notices concerning proposed or alternate facilities for a particular area or
municipality.
(f) The
filing of the preliminary scoping statement with the secretary shall be
accompanied by proof of:
(1) service of the
required copies of the preliminary scoping statement on the persons and
entities required to be served enumerated above;
(2) service of the required notice of
preliminary scoping statement on the persons and entities required to be served
enumerated above; and
(3) proof of
publication of the required notice of preliminary scoping statement.
(g) Within 21 days after the
filing of the preliminary scoping statement, any person, agency or municipality
may submit comments on the preliminary scoping statement by serving such
comments on the applicant and filing a copy with the secretary. Within 21 days
after the closing of the comment period, the applicant shall prepare a summary
of the material comments and its reply thereto, and file and serve its summary
of comments and its reply in the same manner as it files and serves the
preliminary scoping statement pursuant to subdivision (c) of this
section.
(h) Upon the filing of a
preliminary scoping statement, DPS shall designate a presiding examiner. DPS
may also designate additional hearing examiners to assist the presiding
examiner in all duties of the presiding examiner.
(i) The presiding examiner shall, among other
duties, mediate any issue(s) relating to any aspect of the preliminary scoping
statement and the methodology or scope of any study or program of studies
concerning which agreement has not been reached and receive any stipulation
setting forth any agreement that is reached. If the presiding examiner
determines that any language other than English not captured by subdivision (d)
of this section is spoken by a significant population of persons residing in
close proximity to the proposed facility, alternative locations,
interconnections and related facilities and that notice in such additional
languages is warranted under the circumstances, the presiding examiner may
require the applicant to publish the notice and summary of the preliminary
scoping statement in such additional languages. The presiding examiner shall,
within no less than 22 days but no more than 60 days of the filing of a
preliminary scoping statement, convene a meeting of interested parties in order
to initiate the stipulation process.
(j) After the presiding examiner has
determined that funds to assure early and effective public involvement have
been allocated to municipal and local parties, the applicant may commence
stipulations consultations and seek agreement by stipulation with any
interested person, agency or municipality including, but not limited to, the
staff of DPS, DEC, and DOH, as appropriate, as to any aspect of the preliminary
scoping statement and the methodology or scope of any study or program of
studies made or to be made to support the application. Before any such
stipulation is finalized:
(1) a copy of the
proposed stipulation shall be served by the applicant on the presiding examiner
and on the persons who participated in the stipulations consultation process,
and shall be filed and served by the applicant in the same manner as it files
and serves the preliminary scoping statement pursuant to subdivision (c) of
this section;
(2) the applicant
shall serve a copy of a notice it has prepared summarizing the contents of the
proposed stipulation upon:
(i) each member of
the State legislature in whose district any portion of such facility is
proposed to be located or in which any alternative location identified is
located, or in which any interconnections or related facilities necessary to
serve the proposed facility are proposed to be located; and
(ii) persons who have filed a statement with
the secretary within the past 12 months that they wish to receive all such
notices concerning facilities in the area in which any portion of such facility
is proposed to be located or in which any alternative location identified is
located, or in which any interconnections or related facilities necessary to
serve the proposed facility are proposed to be located;
(3) a copy of a proposed notice shall be
prepared by the applicant and served by the applicant on the presiding
examiner. Thereafter, the presiding examiner shall arrange for the public to be
given notice and afforded a reasonable opportunity to submit comments on the
stipulation before it may be executed by the interested parties.
(k) Any party that executed a
pre-application stipulation may not raise objections at the hearing as to the
methodology or scope of any study or program of studies performed in compliance
with such stipulation. Any other party may timely raise objections at the
hearing as to the methodology or scope of any study or program of studies
performed in compliance with such stipulation.
(l) The preliminary scoping statement shall
contain:
(1) as much information as is
reasonably available concerning the proposed facility, generally in the form
(though in less detail) that it will appear in the application;
(2) a preliminary scope of an environmental
impact analysis containing a brief discussion, on the basis of reasonably
available information, of the following items:
(i) a brief description of the proposed
facility and its environmental setting;
(ii) potentially significant adverse
environmental and health impacts resulting from the construction and operation
of the proposed facility including also an identification of particular aspects
of the environmental setting that may be affected, including any material
impacts or effects identified in consultations by the public, affected
agencies, and other stakeholders, and a responsive analysis by the applicant as
to those issues identified in consultations;
(iii) the extent and quality of information
needed for the application to adequately address and evaluate each potentially
significant adverse environmental and health impact, including existing and new
information where required, and the methodologies and procedures for obtaining
the new information;
(iv) for
proposed wind-powered facilities, proposed or on-going studies during
pre-construction activities and a proposed period of post- construction
operations monitoring for potential impacts to avian and bat species;
(v) a description of how the applicant
proposes to avoid adverse impacts to the environment and health;
(vi) for those adverse environmental and
health impacts that cannot be reasonably avoided, an identification of measures
proposed to mitigate such impacts;
(vii) where it is proposed to use petroleum
or other back-up fuel for generating electricity, a discussion and/or study of
the sufficiency of the proposed on-site fuel storage capacity and
supply;
(viii) a description and
evaluation of reasonable and available alternative locations for the proposed
facility, including a description of the comparative advantages and
disadvantages of the proposed and alternative locations, except that a private
facility applicant may limit its description and evaluation of alternative
locations to parcels owned by, or under option to, such private facility
applicant or its affiliates;
(ix)
if the proposed facility affects any land or water use or natural resource of
the coastal area and Federal authorization or funding is necessary, a
preliminary analysis of the consistency of the proposed facility with the
enforceable policies of the New York State Coastal Management Program or, where
the action is in an approved local waterfront revitalization program area, with
the local program;
(x) a statement
of the reasons why the primary proposed location and source, taking into
account the potentially significant and adverse environmental impacts, is best
suited, among the alternatives, including a "no action" alternative, to promote
public health and welfare, including the recreational and other concurrent uses
that the site may serve, except that a private facility applicant may limit its
description and evaluation of alternative locations to parcels owned by, or
under option to, such private facility applicant or its affiliates and its
description and evaluation of alternative sources to those that are reasonable
alternatives to the proposed facility that are feasible considering the
objectives and capabilities of the sponsor;
(xi) a preliminary identification of the
demographic, economic and physical attributes of the community in which the
facility is proposed to be located and in which any alternative location
identified is located, and a preliminary environmental justice evaluation of
significant and adverse disproportionate environmental impacts of the proposed
facility and any alternative facility identified that would result from
construction and operation considering, among other things, the cumulative
impact of existing sources of emissions of air pollutants and the projected
emission of air pollutants from the proposed or alternative facility in a
manner that is in accordance with any requirements for the contents of an
article 10 preliminary scoping statement contained in 6 NYCRR Part 487
promulgated by the DEC for the analysis of environmental justice issues;
and
(xii) an identification of any
other material issues raised by the public and affected agencies during any
consultation and the response of the applicant to those issues;
(3) an identification of all other
State and Federal permits, certifications, or other authorizations needed for
construction, operation or maintenance of the proposed facility;
(4) a list and description of all State laws
and regulations issued thereunder applicable to the construction, operation or
maintenance of the proposed facility and a preliminary statement demonstrating
an ability to comply;
(5) a list
and description of all local laws, and regulations issued thereunder,
applicable to the construction, operation, or maintenance of the proposed
facility and a statement either providing a preliminary assessment of an
ability to comply or indicating specific provisions that the applicant will be
requesting the board to elect not to apply, in whole or in part, and a
preliminary explanation as to why the board should elect not to apply the
specific provisions as unreasonably burdensome in view of the existing
technology or the needs of or costs to ratepayers whether located inside or
outside of such municipality;
(6) a
description of the applicant, its formation, status, structure, holdings,
affiliate relationships, powers (including whether it has or will seek to
obtain the power of eminent domain, either directly or indirectly), franchises
and consents;
(7) a description of
the applicant's property rights and interests or those it proposes to acquire
to all lands of the proposed facility and any private or public lands or
private or public streets, highways or rights-of-way crossed by any
interconnections necessary to serve the facility such as, but not limited to,
electric lines, gas lines, water supply lines, waste water or other sewage
treatment facilities, communications and relay facilities, access roads, rail
facilities, or steam lines; and
(8)
any other information that the applicant may deem to be relevant.
