N.Y. Public Service Law § 163: Pre-application procedures

§ 163. Pre-application procedures. 1. Any person proposing to submit

an application for a certificate shall file with the board a preliminary

scoping statement containing a brief discussion, on the basis of

available information, of the following items:

(a) description of the proposed facility and its environmental

setting;

(b) potential environmental and health impacts resulting from the

construction and operation of the proposed facility;

(c) proposed studies or program of studies designed to evaluate

potential environmental and health impacts, including, for proposed

wind-powered facilities, proposed studies during pre-construction

activities and a proposed period of post-construction operations

monitoring for potential impacts to avian and bat species;

(d) measures proposed to minimize environmental impacts; and

(e) where the proposed facility intends 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; and

(f) reasonable alternatives to the facility that may be required by

paragraph (i) of subdivision one of section one hundred sixty-four of

this article;

(g) identification of all other state and federal permits,

certifications, or other authorizations needed for construction,

operation or maintenance of the proposed facility; and

(h) any other information that may be relevant or that the board may

require.

2. Such person shall serve copies of the preliminary scoping statement

on persons enumerated in paragraph (a) of subdivision two of section one

hundred sixty-four of this article and provide notice of such statement

as provided in paragraph (b) of such subdivision in plain language, in

English and in any other language spoken as determined by the board by a

significant portion of the population in the community, that describes

the proposed facility and its location, the range of potential

environmental and health impacts of each pollutant, the application and

review process, and a contact person, with phone number and address,

from whom information will be available as the application proceeds.

3. To facilitate the pre-application and application processes and

enable citizens to participate in decisions that affect their health and

safety and the environment, the department and such person shall provide

opportunities for citizen involvement. Such opportunities shall

encourage consultation with the public early in the pre-application and

application processes, especially before any parties enter a stipulation

pursuant to subdivision five of this section. The primary goals of the

citizen participation process shall be to facilitate communication

between the applicant and interested or affected persons. The process

shall foster the active involvement of the interested or affected

persons.

4. (a) Each pre-application preliminary scoping statement shall be

accompanied by a fee in an amount equal to three hundred fifty dollars

for each thousand kilowatts of generating capacity of the subject

facility, but no more than two hundred thousand dollars, to be deposited

in the intervenor account established pursuant to section

ninety-seven-kkkk of the state finance law, to be disbursed at the

hearing examiner's direction to defray pre-application expenses incurred

by municipal and local parties (except for a municipality submitting the

pre-application scoping statement) for expert witness, consultant,

administrative and legal fees. If at any time subsequent to the filing

of the pre-application the pre-application is substantially modified or

revised, the board may require an additional pre-application intervenor

fee in an amount not to exceed twenty-five thousand dollars. No fees

made available under this paragraph shall be used for judicial review or

litigation. Any moneys remaining in the intervenor account upon the

submission of an application for a certificate shall be made available

to intervenors according to paragraph (a) of subdivision six of section

one hundred sixty-four of this article.

(b) Pre-application disbursements from the intervenor account shall be

made in accordance with rules and regulations established pursuant to

paragraph (b) of subdivision six of section one hundred sixty-four of

this article which rules shall provide for an expedited pre-application

disbursement schedule to assure early and meaningful public involvement,

with at least one-half of pre-application intervenor funds becoming

available through an application process to commence within sixty days

of the filing of a pre-application preliminary scoping statement.

5. After meeting the requirements of subdivisions one through three of

this section, and after pre-application intervenor funds have been

allocated by the pre-hearing examiner pursuant to paragraph (b) of

subdivision four of this section, such person may consult and seek

agreement with any interested person, including, but not limited to, the

staff of the department, the department of environmental conservation

and the department of health, as appropriate, as to any aspect of the

preliminary scoping statement and any study or program of studies made

or to be made to support such application. The staff of the department,

the department of environmental conservation, the department of health,

the person proposing to file an application, and any other interested

person may enter into a stipulation setting forth an agreement on any

aspect of the preliminary scoping statement and the studies or program

of studies to be conducted. Any such person proposing to submit an

application for a certificate shall serve a copy of the proposed

stipulation upon all persons enumerated in paragraph (a) of subdivision

two of section one hundred sixty-four of this article, provide notice of

such stipulation to those persons identified in paragraph (b) of such

subdivision, and afford the public a reasonable opportunity to submit

comments on the stipulation before it is executed by the interested

parties. Nothing in this section, however, shall bar any party to a

hearing on an application, other than any party to a pre-application

stipulation, from timely raising objections to any aspect of the

preliminary scoping statement and the methodology and scope of any

stipulated studies or program of studies in any such agreement. In order

to attempt to resolve any questions that may arise as a result of such

consultation, the department shall designate a hearing examiner who

shall oversee the pre-application process and mediate any issue relating

to any aspect of the preliminary scoping statement and the methodology

and scope of any such studies or programs of study. Upon completion of

the notice provisions provided in this section, such hearing examiner

shall, within sixty days of the filing of a preliminary scoping

statement, convene a meeting of interested parties in order to initiate

the stipulation process.