NY Enacts Power Plant Siting Law – Preempts Local Zoning for Covered Facilities

 The “Power NY Act of 2011” was enacted on August 4, 2011.  Among the provisions of this new law is the reauthorization of the long sunset Public Service Law Article X for the purposes of streamlining the State decision-making process with respect to the siting of new major electric generating facilities defined as having a generating capacity of 25 mega watts or more, as well as modified or repowered facilities up to 25 MW (this is an increase in jurisdiction for the state siting board which before only had jurisdiction for projects of 80 MW or more), additionally, the law covers solid waste burning facilities (the old Article X did not). Like its predecessor, the law grants to a State Siting Board, exclusive authority to certify power plants and it preempts local laws that would otherwise prevent or delay new power plant construction, including zoning. The new law provides for a pre-application and hearings process before the 7-member siting board which consists of state agency officials (PSC, DEC, NYSERDA, DED and DOH) and two ad hoc members that reside in the community and are appointed by the Legislature based on recommendations from local officials. The application must contain, among other things, information related to the facility’s environmental setting, potential environmental, health, and safety impacts, including a cumulative impact analysis of air quality based on projected emissions from the proposed facility, a comprehensive demographic, economic and physical description of the community within which the facility is to be located, an evaluation of reasonable alternative locations for the proposed facility, and measures to minimize significant environmental impacts. The applicant must also provide funds to support intervenor participation in the siting process both at the pre- application and hearings phases of the proceeding. There is an environmental justice component to the new law which requires that the preliminary scoping statement be written in “plain language,” in English and in “any other language spoken . . . by a significant portion of the population in the community.”  Additionally, the preliminary statement prepared by the applicant must describe the “range of potential environmental and health impacts of each pollutant..,” requiring greater disclosure than had previously been required. Furthermore, the new law specifically requires DEC to promulgate rules and regulations for an “analysis of environmental justice issues.”  In accordance with these rules and regulations, applicants must submit an evaluation of “significant and adverse disproportionate environmental impacts” of the facility.

Following receipt of the application, the Board has 60-days determine whether the application is complete, and must provide notice of completeness to the applicant, each municipality where the facility will be located, each member of the Board, and several State agencies and officials, including the Attorney General. Within a reasonable time thereafter, the Board must hold a public hearing to specify the issues and obtain stipulations as to matters not in dispute. The new Article X allows several parties to participate in the siting proceeding before, a hearing examiner as of right, including the department of environmental conservation, department of economic development, department of health, a the municipality wherein the plant would be located, members of communities that live within the vicinity of the proposed facility site, and non-profit organizations formed in whole or in part to promote conservation, the environment, or consumer interest, or that represent commercial or industrial groups.

The Board will then make the final decision based upon the record of the presiding hearing examiner. The Board may not issue a certificate for the construction or operation of a major electric generating facility absent findings and determinations that, among other things, the facility will (i) beneficially add or substitute capacity in the State, (ii) minimize or avoid adverse environmental impacts, (iii) minimize or avoid adverse disproportionate impacts, and (iv) comply with all state and local laws and regulations unless such laws and regulations are found to be unreasonably burdensome with respect to the proposed project. The law also provides a process for rehearing of the Board decision and judicial review.  Unless otherwise agreed to by the applicant, the Board must issue a decision within one year after the application has been deemed complete. The law will become effective when the Department of Environmental Conservation (“DEC”) promulgates rules and regulations implementing the Act.

Chapter 388 of the NY Laws of 2011 – A.8510 (Cahill)/S.5844)