PSC-15-12-00006-A Regulations Implementing Public Service Law Article 10 Governing Applications to Construct Major Electric Generating Facilities

8/1/12 N.Y. St. Reg. PSC-15-12-00006-A

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 31

August 01, 2012

RULE MAKING ACTIVITIES

PUBLIC SERVICE COMMISSION

NOTICE OF ADOPTION

 

I.D No. PSC-15-12-00006-A

Filing No. 729

Filing Date. Jul. 17, 2012

Effective Date. Aug. 01, 2012

Regulations Implementing Public Service Law Article 10 Governing Applications to Construct Major Electric Generating Facilities

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

Action taken:

Repeal of Parts 1000-1002 and addition of new Parts 1000-1002 to Title 16 NYCRR.

Statutory authority:

Public Service Law, sections 160(8), 161(1), (3), 163(1)(h), (2), (4)(b), 164(1), (2), (3), (4), (6)(b), 165(2), (4)(b), (5) and 167(1)(b) and (4)

Subject:

Regulations implementing Public Service Law article 10 governing applications to construct major electric generating facilities.

Purpose:

To establish review procedures and the content of applications.

Substance of final rule:

The New York State Board on Electric Generation Siting and the Environment has adopted Subchapter A (consisting of Parts 1000-1002) to 16 NYCRR Chapter X in order to implement Article 10 of the Public Service Law (PSL) with respect to the authorization of the construction and operation of major electric generating facilities, and has repealed existing Subchapter A (consisting of Parts 1000-1003) of 16 NYCRR Chapter X, which implemented former Article X. The adopted regulations implement provisions in Article 10 that were not in former Article X but, to the extent the experience gained in proceedings under former Article X remains relevant, the regulations take advantage of such experience by specifying in some detail the applicable procedures and requirements, while still allowing some flexibility in tailoring such requirements to specific cases.

Part 1000 contains sections on applicability, definitions, adoption of Public Service Commission procedures, public involvement, pre-application procedures, procedures regarding the filing, service and notice of applications, water quality and coastal certification procedures, procedures regarding discovery of additional information, documents and evidence, the fund to assist municipal and local parties in participating in Article 10 proceedings, amendment and dismissal of applications, acceptance, amendment, revocation, suspension and transfer of certificates and designation of counsel. Regarding public involvement, experience has demonstrated that active and adequate public involvement can be critical to the success of an Article 10 review process if it engages stakeholders early enough in the process so that stakeholder concerns can be considered in the design phase of the proposal when the applicant has the most flexibility as to its plans. Early and informative engagement of stakeholders also minimizes later delays in the review process. Well-conducted public involvement programs by applicants tend to minimize misunderstandings and conflicts in Article 10 proceedings whereas poorly-conducted public involvement programs by applicants tend to exacerbate differences and conflicts. In that regard, applicant public involvement programs, with DPS (Department of Public Service) Staff input, have been made a mandatory component of the Article 10 process. The regulations create a specific process for DPS Staff to provide input into the adequacy of an intended public involvement program without being overly burdensome as to time or iterations. Regarding pre-application procedures, in establishing deadlines, a balance has been struck between the time realistically needed to perform tasks and a desire to keep the process moving. It is difficult to gauge the need for and amount of time that will be needed to negotiate stipulations, but the regulation threads the most workable path through the various competing provisions of the statute. Applicants are encouraged to seek stipulations wherever possible based on DPS Staff experience that stipulations on the methodology and scope of studies creates efficiencies for all parties regardless of perspective. In keeping with the statute, private facility applicants may limit their description and evaluation of alternative locations to parcels owned by, or under option to, such private facility applicants or their affiliates, and private facility applicants may limit their description and evaluation of alternative sources to those that are feasible considering the objectives and capabilities of the sponsor. Review of case history under former Article X demonstrates that many applicants, in the early stages of their projects, tend to focus on electric system and environmental issues and fail to understand and fully consider key issues regarding, among other topics, state laws, local laws, real property rights, and the interplay between the siting statute and other required approvals. Such shortcomings ultimately lead to delays in the review process or the later identification of flaws in a proposal after applicants and the stakeholders have expended considerable time and resources on the review of a proposal. The regulations require applicants to address such issues as part of their preliminary planning and will hopefully lead to better proposals. The regulations also require a consideration of environmental justice issues at the earliest stage possible. They also require early consultation with the Department of Defense and other airport operators to encourage a dialog that will result in minimized conflicts between energy projects and aviation. In addition the regulations provide for funds to be made available to municipalities and local parties (during both the pre-application and post-application phases of proceedings) on an equitable basis in relation to the potential for such funding to make an affective contribution to the proceedings.

Part 1001 contains sections specifying general application requirements and exhibits concerning overview and public involvement, location of facilities, land use, electric system effects, wind, natural gas and nuclear power facilities, electric system production modeling, alternatives, consistency with energy planning objectives, preliminary design drawings, construction, real property, cost of facilities, public health and safety, pollution control facilities, air pollutant emissions, safety and security, noise and vibration, cultural resources, geology, seismology and soils, terrestrial ecology and wetlands, water resources and aquatic ecology, visual impacts, effects on transportation and communications, socioeconomic effects, environmental justice, site restoration and decommissioning, state and local laws and ordinances, other filings, electric, gas, water, wastewater and telecommunications interconnections, electric and magnetic fields, back-up fuel, and applications to modify or build adjacent to existing facilities. The goal of Part 1001 is to require enough information in applications to allow the board to make the findings and determinations required by PSL Section 168, recognizing that additional information will be provided as the record of the certification proceeding is developed and also that final construction-type details are unnecessary and costly to provide until after generating facilities are authorized.

Part 1002 contains general procedures and requirements regarding compliance filings, reporting and inspection. Detailed information to enable construction to proceed consistent with certificates is required after certificates are granted.

Final rule as compared with last published rule:

Nonsubstantive changes were made in Parts 1000 and 1001.

Text of rule may be obtained from:

Leann Ayer, Public Service Commission, 3 Empire State Plaza, Albany, New York 12223, [phone], email: [e-mail] An IRS employer ID no. or social security no. is required from firms or persons to be billed 25 cents per page. Please use tracking number found on last line of notice in requests.

Revised Regulatory Impact Statement

Nonsubstantive changes were made to the text in Parts 1000 and 1001 as summarized by section in greater detail below. They are all minor, non-substantive changes that accomplish the original objectives while responding to stakeholder concerns for minor enhancements, clarifications and technical corrections. The essential scope of the regulations and the projected costs to regulated persons of complying with the proposed regulations, and the estimated paperwork requirements, remain within the range estimated in the original Regulatory Impact Statement. None of the changes affect the statutory authority, legislative objectives, needs and benefits, local government mandates, duplication, federal standards or compliance schedule analyses in the original Regulatory Impact Statement. As to the alternative approaches analysis, the addition of an average noise scenario to the noise exhibit does not alter the original "worst case" noise analysis approach, but provides for additional information to broaden the record that was requested by stakeholders representing the interests of regulated persons that will be complying with the proposed regulations. The original Regulatory Impact Statement as published in the Notice of Proposed Rule Making remains valid, and does not need to be amended to reflect the changes made to the text of the regulation.

Summary of Changes in Text

Nonsubstantive changes were made to the text, as follows:

(a) Section 1000.2(x) and (ak): enhancements to the definitions of "Modification" and "Revision" to allow the shifting of ancillary access roads or electric collector lines when allowing the shifting of wind turbine sites.

(b) Section 1000.4(f): enhancement that public outreach must include consultations with operators of airports or heliports.

(c) Section 1000.5(l), (4) and (5); Section 1001.12(a); Section 1001.18(a), (b) and (c); Section 1001.21(r)(1); and Section 1001.39 (f): clarifications that the required statement, explanation, Quality Assurance and Control plan, safety and security plans, engineering assessment, and interconnection description may be "preliminary" in nature.

(d) Section 1000(b)(1): enhancement that notices published in languages other than English shall be published in newspapers, if any are available, serving the appropriate language community.

(e) Section 1000.8 (a) (5) and (6); Section 1001.17; Section 1001.22(i), (j), (k), (l), (m) and (n); and Section 1001.25(d)(4) and (5): minor technical language corrections regarding the electric system production modeling, air emissions, terrestrial ecology and wetlands, and effect on transportation exhibits.

(f) Section 1000.10(b)(2) and 1000.13(b): enhancements that instead of a flat fee of $75,000, the intervenor fee to be submitted with a revision to an application is to be in the amount equal to $1,000 for each 1,000 kilowatts of capacity of the proposed project, as amended, but no more than $75,000.00, except the presiding examiner may increase the level up to the maximum level of $75,000 if circumstances require a higher level.

(g) Section 1001.4(c): clarification that the proposed land use plans to be shown may be limited to plans that are "publicly known".

(h) Section 1001.5(n): enhancement that the required electric system effects showing include a consideration of compliance with all relevant applicable local reliability criteria, including any criteria regarding blackstart and fuel switching capabilities.

(i) Section 1001.18(h): enhancement that the preliminary safety response plan is to be provided to local emergency first responders for comment.

(j) Section 1001.19(c): modified to eliminate the requirement that prominent discrete (pure) tones, and amplitude modulated sound during construction be evaluated.

(k) Section 1001.19(f)(7), (8) and (9): enhancements to include average noise levels as an additional scenario in the noise analysis.

(l) Section 1001.22(a): clarification that the required identification and description of the type of plant communities present on adjacent properties based upon field observations and data collection is to be consistent with "access availability" to the adjacent properties.

(m) Section 1001.25(e) and (f): enhancements to the required analysis and evaluation of the impacts of the facility on airports to ensure that impacts on military use airspace are considered and to ensure the analysis is informed by consultations with operators of airports or heliports, the Department of Defense and the Federal Aviation Administration.

(n) Section 1001.26(a): modified to eliminate a two-mile radius limit on the identification of impacts on microwave transmission, Doppler/weather radar, air traffic control, armed forces and LORAN communications.

(o) Section 1001.26(f): clarifications enhancing what are meant by "radar systems" and "air traffic control" to include instrument systems, guidance, weather, and military operations including training.

(p) Section 1001.28(b)(3): correction to eliminate the words "or minimized" from the phrase "impacts cannot be avoided".

Revised Regulatory Flexibility Analysis

Nonsubstantive changes were made to the text in Parts 1000 and 1001 as summarized in the Statement as to why a revised Regulatory Impact Statement is not required. They are all minor, non-substantive changes that accomplish the original objectives while responding to stakeholder concerns for minor enhancements, clarifications and technical corrections. The essential scope of the regulation remains the same as described in the original Regulatory Flexibility Analysis. None of the changes affect the types and number of small businesses and local governments affected by the regulations, the compliance requirements, professional services, compliance costs, economic and technological feasibility needs, degree of minimization of adverse impacts, or the opportunities for participation of small businesses and local governments. While there is a change that modifies the amount of intervenor fee to be submitted with a revision to an application, the regulation provides that the presiding examiner may increase the level up to the maximum level of $75,000, the level originally proposed, if circumstances require a higher level. The original Regulatory Flexibility Analysis for Small Businesses and Local Governments as published in the Notice of Proposed Rule Making remains valid, and does not need to be amended to reflect the changes made to the text of the regulation.

Revised Rural Area Flexibility Analysis

Nonsubstantive changes were made to the text in Parts 1000 and 1001 as summarized in the Statement as to why a revised Regulatory Impact Statement is not required. They are all minor, non-substantive changes that accomplish the original objectives while responding to stakeholder concerns for minor enhancements, clarifications and technical corrections. The essential scope of the regulation remains the same as described in the original Rural Area Flexibility Analysis. None of the changes affect the types and number of rural areas affected by the regulations, the compliance requirements, professional services, compliance costs, degree of minimization of adverse impacts, or the opportunities for participation of rural communities. While there is a change that modifies the amount of intervenor fee to be submitted with a revision to an application, the regulation provides that the presiding examiner may increase the level up to the maximum level of $75,000, the level originally proposed, if circumstances require a higher level. The original Rural Area Flexibility Analysis as published in the Notice of Proposed Rule Making remains valid, and does not need to be amended to reflect the changes made to the text of the regulation.

Revised Job Impact Statement

Nonsubstantive changes were made to the text in Parts 1000 and 1001 as summarized in the Statement as to why a revised Regulatory Impact Statement is not required. They are all minor, non-substantive changes that accomplish the original objectives while responding to stakeholder concerns for minor enhancements, clarifications and technical corrections. The essential scope of the regulation remains the same as described in the original Job Impact Statement. None of the changes affect the indirect positive impact the regulation will have on employment opportunities for economic, engineering, and environmental consultants and lawyers employed to assist applicants and parties in administrative proceedings. The original Job Impact Statement as published in the Notice of Proposed Rule Making remains valid, and does not need to be amended to reflect the changes made to the text of the regulation.

Assessment of Public Comment

The Board on Electric Generation Siting and the Environment (Board) received comments from over 100 individuals and organizations. Overall, the comments were consistent with those received during an extensive stakeholder process conducted in early 2012 and few new significant alternatives were suggested. More detailed explanations of the proposals and a full assessment of the public comment with the Board's response is available in the "Memorandum and Resolution Adopting Article 10 Regulations" adopted by the Board in Case 12-F-0036 accessible at http://www.dps.ny.gov/SitingBoard/. The short summary provided below does not include a summary of comments on the statute that were not directed to the regulations, comments focusing on minor wording changes, or proposals that were clearly outside of the intended scheme of the regulations.

PART 1000

Definitions

Several wind development supporters request that the definition of "Modification" include, and the definition of "Revision" exclude, the shifting of an access road or electric collector line to a new location within a 500 foot radius of the original location in the manner allowed for the shifting of wind turbines. The Board agreed that the addition of access roads and electric collector lines to the allowance is a logical and practical extension of what was intended by the original allowance with respect to turbine placement, with the expectation that most such shifts will be motivated by decreasing adverse impacts.

Public Involvement

To promote the development of facilities, project advocates asserted that the public involvement plan should be merged with the preliminary scoping statement thereby eliminating any time between the two and any requirement for public involvement activities prior to submission of the preliminary scoping statement, or that timeframes should be optional or shortened. Many individuals and municipalities provided comments to the contrary asserting that the public should become involved in planning at the earliest possible time before scoping begins. Several members of the State Assembly urge that the regulations provide for meaningful outreach to stakeholders in environmental justice communities. The Board determined that no changes were warranted because it is important that public involvement activities begin as early as practicable before development plans are so far advanced that the developer feels it cannot be flexible or open to beneficial modifications.

Pre-Application Procedures

Advocates for wind energy and repowering projects sought further streamlining by reducing time allowances for public comment and intervenor funding processes; reducing public notice requirements; reducing pre-application information requirements; and providing for an early determination on the waiver of local laws. Many others argued that the time allowances for public comment and the public notice requirements should be broadened, not reduced, and that the scope of pre-application studies should be expanded. The Board determined that the timeframes provided are already the minimum necessary to conduct a workable process.

Fund for Municipal and Local Parties

Wind project advocates asserted that the requirement that the applicant submit an additional intervenor fee in the amount of $75,000 for amendments might be higher than the original fee for the entire application. The Board was persuaded that the fee that is paid at the time of submitting a revision to an application should logically not be higher than the fee paid initially and imposed a floor funding amount of $1,000 per megawatt for revisions to application, retaining the full discretion provided by the State Legislature to require up to $75,000 for a revision regardless of facility size in appropriate circumstances.

Evidence

Some wind project advocates asserted the standard for evidence should be "substantive and significant" while others asserted that the standard should be "relevant and material." Individuals and a State Senator urged that the regulations maintain the option that a party can force a hearing by showing there is a material and relevant issue, a provision that should be neither diluted nor eliminated. The Board explained that the "substantive and significant" standard is a special standard applied in certain Department of Environmental Conservation (DEC) proceedings and that the Article 10 statute does not support application of the "substantive and significant" standard.

PART 1001

Study Area

Many parties wanted the required "study area" to be either further limited in scope, or expanded significantly, depending on their perspective. The Board determined that its minimum five-mile study area for wind projects would minimize conflicts, and that it expects the pre-application stipulations process will be useful for other projects in defining study areas that relate to the nature of the technology involved and the setting of the proposed site.

Electric System Effects

The Board rejected claims that the required system reliability impact study from the NYISO will provide the basis for much of what is required to consider electric system effects, or to address deliverability in the sense that the Board has used that term in relation to estimating the effects of the proposed facility on emissions and the energy dispatch of existing must-run resources, such as wind, hydroelectric and nuclear facilities. It agreed that it would be a beneficial enhancement to require an identification and demonstration of the degree of compliance with all relevant applicable reliability criteria including that of the local interconnecting transmission utility that may have criteria regarding blackstart and fuel switching capabilities.

Safety and Security

In response to the comment of a county planning office, the Board noted that safety response plans ensure the safety and security of the local community, therefore, it made sense to add the requested requirement that the applicant consult with local first responders. The Board found no compelling reason to exempt wind developers from security consultations.

Wind Turbine Setbacks and Noise Limits

In response to many comments proposing minimum setbacks for wind turbines and maximum caps on noise levels, the Board decided to follow a case by case approach in the regulations.

Third Party Certification of Wind Turbines

In response to comments, the Board noted that the requirement is for a status report, not a mandate of final third party review and certification at the time of application.

Meteorological Analyses

Regarding competing comments about whether wind meteorological data must be disclosed, the Board noted that the language of the regulation requires submittal of an analysis of the data; it does not expressly mandate the raw data itself. Applicants can pursue their rights to limit public disclosure if the information qualifies for protection.

Property Value Guarantees

The Board declined to grant the request of several individuals that wind developers provide guarantees on the value of neighboring property in the form of insurance, cash payments, or buyouts if their wind projects cause property devaluation.

Low-Frequency Noise and Infrasound

A number of comments debated both sides of the issue whether C-weighted noise measurements should be required. Applicants must provide an analysis of whether the facility will produce significant levels of low frequency noise or infrasound, without specifically requiring the measurement and estimation of C-weighted/dBC sound levels, but do not preclude a case-by-case determination requiring the measurement and estimation of C-weighted/dBC sound levels in a proceeding in an appropriate circumstance.

Noise and Vibration

In response to comments, the Board agreed to eliminate an evaluation of pure tone and amplitude modulation for the construction period because it expects that construction noise will be managed by limits on construction hours. It also agreed to provide for average sound condition cases in addition to the already required ambient and worst case scenarios.

Electric System Production Modeling

Regarding competing comments about whether capacity factor and other production modeling data must be disclosed, the Board determined that the production information is necessary as an important input for the modeling used for simulation analyses that will inform the necessary statutory findings and determinations.

Cost of Facilities

Regarding competing comments about whether cost information must be disclosed, the Board determined that the cost information is necessary for analyses that will inform the necessary statutory findings and determinations. If the information qualifies for confidential treatment, the regulations provide a process for limiting public disclosure.

Back-Up Fuel

In response to objections to supplying pricing information, the Board determined that the regulation does not ask an applicant to reveal its fuel price, it only asks for an analysis of the impact of facility use of fuel oil on the supplies and prices of others.

Environmental Justice

The Board agreed with a public interest coalition recommendation that the words "or minimized" be removed from the language because if impacts are "minimized", by definition they are not fully avoided and there are residual impacts for which it may be appropriate to require an offset.

Terrestrial Ecology and Wetlands

In response to comments, the Board clarified that delineation techniques necessary for federal permitting require on-site sampling, therefore the rules will distinguish between delineation of wetlands on facility site properties within 500 feet of areas to be disturbed by construction, and identification of mapped or predicted wetlands on adjacent properties based on analysis of mapped and remotely-sensed data where access is not available.

Effect on Communications

As a result of consultations with the Department of Defense, the Board determined that proposed two-mile study area is technically insufficient for certain technologies, particularly radar, and that the scope of inquiry for those technologies should include all "affected sources".

Effect on Transportation

As a result of consultations with the Department of Defense regarding impacts of the facility on "airports", enhanced language was added to the regulations in substance merely requiring applicants to consult with airport operators in conducting their analysis and evaluation of the impacts of the facility on airports (and heliports) in the pre-application and application preparation phases. It is important that tall structures do not obstruct air traffic or unnecessarily interfere with radar and other communications used in flying.

Site Restoration and Decommissioning

In response to many comments about site restoration and decommissioning directed towards ensuring that wind turbines are dismantled and removed from the landscape at the end of their useful lives at the expense of the wind developers, and not the taxpayers, the Board determined that the regulations, as written, are adequate to address the site restoration and decommissioning issues raised on a case by case basis in Article 10 proceedings.

Local Laws and Ordinances

Many comments urge that local laws be earnestly addressed and upheld to the extent possible so as not to deprive the municipality of its ability to protect landowner rights and the health and safety of the community. A State Senator urged that the needs and desires of the community be taken into consideration when determining what is unduly burdensome. Several individuals assert that due to the level of disagreement within communities and the controversy involved regarding wind projects, the State should make these decisions. A number of wind power supporters urged that the standard for demonstrating the override of local laws should be low, and once the applicant has met a minimal standard, the burden to maintain local laws should shift to the municipality. They also assert that applicants should not have to demonstrate that they could not comply with local law via design changes or that any departures are the minimum necessary. Some assert that local governments should not be able to impact the review of an application by passing laws addressed towards the specific proposed project. Another asserts that the Board should retain authority to review and approve building code issues. The Board outlined the scheme mandated by the statute and determined that the regulations follow the statutory scheme. It also noted that it will have to consider local laws adopted after the submission of an application, on a case by case basis and that the function of administering building codes must be performed by a local or State agency qualified by the Secretary of State.

PART 1002

Part 1002 Procedures

In response to comments, the Board decided that it is not realistic to expect parties to review compliance filings and comment on them in less than the 21 day timeframe provided. It also determined that allowing for a comment period would defeat the purpose of having a minor change process to quickly process inconsequential changes.