PSC-16-10-00010-P Amendment to 16 NYCRR Subpart 85-2

4/21/10 N.Y. St. Reg. PSC-16-10-00010-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 16

April 21, 2010

RULE MAKING ACTIVITIES

PUBLIC SERVICE COMMISSION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. PSC-16-10-00010-P

Amendment to 16 NYCRR Subpart 85-2

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

This is a consensus rule making to repeal section 85-2.4 and add new section 85-2.4; and amend section 85-2.9 of Title 16 NYCRR.

Statutory authority:

Public Service Law, sections 4(1), 20(1) and 122(5)(b)

Subject:

Amendment to 16 NYCRR Subpart 85-2.

Purpose:

To add provisions on intervener funding, delete an obsolete provision and correct a reference.

Text of proposed rule:

Chapter I RULES OF PROCEDURE

SUBCHAPTER G Certificates of Environmental Compatibility and Public Need

PART 85 General Procedures

SUBPART 85-2 Procedures with Respect to All Electric Transmission Lines and Fuel Gas Transmission Lines 10 or More Miles Long

§ 85-2.9 Filing and content of applications for electric transmission facilities in national interest electric transmission corridors.

An application seeking approval of an electric transmission facility in a national interest electric transmission corridor as designated by the Secretary of the U.S. Department of Energy pursuant to Section 216 of the Federal Power Act (16 U.S.C. Section 824p) is considered filed on a date set forth in a letter to the applicant from the secretary, namely, the date of receipt of the application and any supplemental information necessary to bring it into compliance with all the following requirements, except any such requirements where the commission has granted permission to submit unavailable information at a future specified date pursuant to Section 85-2.3(c) of this Subpart or which the commission has waived pursuant to Section [85-2.4] 3.3 of this [Subpart] Title:

§ 85-2.4 Fund for municipal and other parties.

(a) Each application that proposes an electric transmission facility of 125kV or more shall, at the time it is provided to the Secretary, be accompanied by a fee in the amount specified herein:

(1) if the proposed route for the facility is greater than 100.0 miles in length, $450,000;

(2) if the proposed route for the facility is greater than 50.0 and up to 100.0 miles in length, $350,000;

(3)if the proposed route for the facility would require a new right-of-way for 10.0% or more of its length and is from 10.0 to 50.0 miles long, $100,000; and

(4) if the proposed route for the facility would use an existing right-of-way for more than 90.0% of its length and is from 10.0 to 50.0 miles long, $50,000.

(b) Any municipality or other party (except an applicant) may request funds to defray expenses for expert witness, consultant, administrative and legal fees (other than in connection with judicial review). Requests for funds shall be submitted to the presiding officer not later than 15 days after the issuance of a notice of the initial prehearing conference, unless otherwise specified by the presiding officer.

(c) Subject to the availability of funds, the presiding officer may fix additional dates for submission of fund requests.

(d) Each request for funds shall be submitted to the presiding officer, with copies to the other parties to the proceeding, and contain:

(1) a statement of the number of persons and the nature of the interests the requesting party represents;

(2) a statement of the availability of funds from the resources of the requesting party and from other sources and of the efforts that have been made to obtain such funds;

(3) if the requesting party represents owners or occupants of real property, the location of such real property in relation to the route proposed for the facility and any alternative route specified as reasonable in the application;

(4) the amount of funds being sought;

(5) to the extent possible, the name and qualifications of each expert to be employed;

(6) if known, the name of any other party who may, or is intending to, employ such expert;

(7) a detailed statement of the services to be provided by expert witnesses, consultants or others (and the basis for the fees requested), specifying how such services will contribute to a complete record leading to an informed decision as to the appropriateness of the facility and route;

(8) a statement as to the result of any effort made to encourage the applicant to perform any proposed studies or evaluations and the reason it is believed that an independent study is necessary; and

(9) a copy of any contract or agreement or proposed contract or agreement with each expert witness, consultant or other person.

(e) At any conference held to consider fund requests, the presiding officer shall discuss the award of funds and encourage the consolidation of requests.

(f) Not later than 15 days after the close of the initial prehearing conference, the presiding officer shall make an initial award of funds, and from time to time thereafter may make additional awards of funds, in relation to the potential for such awards to make a contribution to a complete record leading to an informed decision as to the appropriateness of the facility and route.

(g) If after its filing the application is amended in a manner that warrants substantial additional scrutiny, the Commission may require the applicant to pay an additional intervenor fee in an amount not to exceed $125,000, and the presiding officer may make additional awards of funds, in relation to the potential for such awards to make a contribution to a complete record leading to an informed decision as to the appropriateness of the facility and route.

(h) The presiding officer shall ultimately award, on an equitable basis, at least 50% of the funds to municipalities and up to 50% to other parties whose requests comply with the provisions of subdivisions (b) and (d) of this section, so long as the funds will contribute to a complete record leading to an informed decision as to the appropriateness of the transmission facility and route and facilitate broad public participation in the proceeding.

(i) The fee submitted with each application, as well as any fee required to be submitted when an application is amended, shall be deposited in an intervenor account, established pursuant to Section 97-tt of the State Finance Law.

(j) On a quarterly basis, unless otherwise required by the presiding officer, any municipality or other party receiving an award of funds shall:

(1) provide an accounting of the monies that have been spent; and

(2) submit a report to the presiding officer showing:

(i) the results of any studies conducted using such funds;

(ii) whether the purpose for which the funds were awarded has been achieved;

(iii) if the purpose for which the funds were awarded has not been achieved, whether reasonable progress toward the goal for which the funds were awarded is being achieved and why further expenditures are warranted.

(k) Where it appears warranted, the presiding officer may incorporate the reports referred to in subdivision (j) of this section into the hearing record as public statements.

(l) Disbursements from the intervenor account to municipal and other parties shall be made by the Department of Public Service upon audit and warrant of the Comptroller of the State on vouchers approved by the Chairman or a designee. Before any funds may be disbursed to a municipality or other party, such party must enter into a local assistance contract with the Department of Public Service. Vouchers prepared pursuant to such local assistance contract must be submitted for payment not later than six months after any withdrawal of an application or the Commission's final decision on an application (including a decision on rehearing, if applicable). Any funds that have not been disbursed shall be returned to the applicant after the Commission's final decision on an application (including any decision on rehearing or on remand following a court order, if applicable) has been made. If an application has been withdrawn, any funds remaining shall be returned within a reasonable time.

Text of proposed rule and any required statements and analyses may be obtained by filing a Document Request Form (F-96) located on our website http://www.dps.state.ny.us/f96dir.htm. For questions, contact:

Leann Ayer, Public Service Commission, 3 Empire State Plaza, Albany, New York 12223-1350, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Jaclyn A. Brilling, Secretary, Public Service Commission, 3 Empire State Plaza, Albany, New York 12223-1350, [phone], email: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

Consensus Rule Making Determination

The proposed rule is considered to be a consensus rule because the changes are technical in nature and they are believed to be non-controversial since they will implement a detailed mandate contained in § 122(5). Therefore, no objections to the proposed amendments are anticipated.

Job Impact Statement

It is believed this rule will not have any impact on jobs and employment opportunities because it simply involves a change in the Commission’s rules and procedure regarding the environmental review of certain applications. The substance of the review remains unchanged.