On July 10, 2012, the New York State Board on Electric Generation Siting and the Environment (“Siting Board”) approved regulations that will implement a centralized state siting process for power plants 25 MW or greater. The regulations are designed to consolidate the state and local permitting processes.
The Siting Board acted pursuant to a 2011 law that reinstated a centralized power plant siting process. The Power NY Act of 2011, signed into law on August 4, 2011, reestablished Article 10 of the New York Public Service Law. Article 10 of the Public Service Law governs the siting of major power plants in the state of New York. The original Article 10 was allowed to expire on January 1, 2003. Upon expiration, local municipalities had the ability to approve the siting of power plant construction projects, but applicants had to navigate a piecemeal process where utilities faced different permitting and timing requirements depending on the location of the facility.
With the reinstated Article 10, applicants are required to secure a Certificate of Environmental Compatibility and Public Need from the Siting Board through a streamlined and consolidated process. Article 10 and the new regulations also require that most power plant certifications be conducted within a year. The law enacted on August 4, 2011:
- Requires environmental and public health impact analyses, studies regarding environmental justice and public safety, and consideration of local laws;
- Directs applicants to provide funding for both the pre-application and application phases;
- Requires a utility security plan to be reviewed by Homeland Security, and requires such plan to be reviewed by New York City emergency management office if the plant is to be located in New York City;
- Provides for the appointment of ad hoc public members to the Siting Board from the municipality where the facility is proposed to be sited; and
- Requires a public information coordinator within the Department of Public Service to assist with participating in the siting process.
The new regulations approved on July 10 provide that in order to build or expand a power plant, the Siting Board must evaluate negative environmental and public health effects. The new regulations also set various emissions limits for plants that burn fossil fuels. Further, the new regulations grant wind facilities flexibility by providing the developers the ability to modify construction plans relating to sound and land use applications. New York is the only state to require environmental justice analysis in siting a major electric generating facility.