News

New Article X for Electric Generation in New York State

August 2011

On August 4, 2011, Governor Andrew Cuomo signed the Power NY Act of 2011 to reauthorize and modernize Article X of the Public Service Law. Article X addresses the siting and permitting of electric generation facilities and seeks to expedite the licensing process to encourage investment in clean power plants in New York State. An earlier version of Article X expired almost a decade ago and all power plant applications have since been subject to a variety of state and local siting laws, including the New York State Environmental Quality Review Act.

The revised Article X lowers the threshold of energy generation projects under the jurisdiction of the Public Service Commission from the previous Article’s threshold of 80 to 25MW.

The revised Article X retains the authority to override local laws or ordinances, adopt rules and regulations concerning the facility certification procedure and revoke or suspend a facility’s certification as they deem fit. Relevant local municipalities and residents within a five-mile radius of the facility can participate in the application process using the intervenor fund, which is to be paid by the applicant based on its facility’s proposed generating capacity, to hire consultants, experts, and lawyers.

The decision period on new applications is 12 months from the time of the submission of a complete application. Applicants must first file a preliminary scoping statement detailing the proposed facility and its setting with an evaluation of any potential environmental and health impacts resulting from its construction and operation including bat and avian studies for wind projects; an extensive discussion of environmental justice issues; and a cumulative impact analysis of air quality within a half-mile of the facility. If the siting board determines that the facility would have a significant disproportionate impact, the applicant must offset or minimize that impact.

There will be a six-month permitting process for existing major facilities seeking to modify or build a new, adjacent facility, the stipulation being that there must be a decrease in the potential rate of emissions for the modified or combined facility, a decrease in the total annual actual emissions, installation of a cooling system that withdraws water comparable to or less than a closed cycle plant, and a lower heat rate than the existing plant which would show it was producing electricity more efficiently.

The Public Service Commission is currently drafting these new regulations with the New York State Department of Environmental Conservation but until they are issued, new generating facilities with more than 25 megawatts of capacity will continue to be regulated under the State Environmental Quality Review Act. If you have any questions regarding the revised Article X or would like to discuss its applicability to your existing or proposed facility, please contact Chris Rein at (401) 434-5560 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Visit the ESS website at www.essgroup.com for more information on ESS Energy Facility Development Services.