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.
Last modified: February 3, 2019