On September 16, 2020, the Office of Renewable Energy Siting (“ORES”) issued proposed regulations and uniform standards and conditions (“USC”) for public comment under Section 94-c of the Executive Law. The proposed regulations are issued pursuant to direction in the Accelerated Renewable Energy Growth and Community Benefit Act that ORES promulgate rules to implement the Act and establish uniform standards and conditions for siting, designing, constructing and operating major renewable energy facilities. The proposed regulations are intended to streamline the regulatory review process for the siting of “major renewable energy facilities.” Below is a brief overview of the proposed process.

Applicability

The proposed regulations apply to major renewable energy facilities, which are defined to include systems with nameplate generating capacity larger than 25 megawatts from solar thermal, photovoltaics, on-land and offshore wind, hydroelectric, geothermal electric, geothermal ground source heat, tidal energy, wave energy, ocean thermal and fuel cells which do not utilize a fossil fuel resource in the process of generating electricity. This definition also includes co-located storage systems and electric transmission lines that are (i) less than 10 miles in length, (ii) less than 125 kV, and (iii) that are used to integrate a facility into the State’s bulk electric transmission grid. Excluded from the proposed regulations are certain facilities that are reviewed under federal jurisdiction, among other projects.

Covered projects must seek a permit through ORES for new construction or expansion. Additionally, projects already in the initial stages of the current Article 10 siting process and new projects sized between 20 and 25 megawatts may “opt-in” to the new process. Applicants are required to deposit a fee of $1,000 per 1,000 kilowatts of capacity in a local agency account and pay a $1,000 per 1,000 kilowatts capacity fee directly to ORES.

Pre-Application

The proposed regulations emphasize local government and community participation. At least 60 days before filing an application, an applicant must (1) conduct pre-application meetings with the chief executive officers of the municipalities where the proposed facility will be located, as well as with any local agencies identified by the chief executive officers; (2) conduct at least one meeting for community members who may be adversely impacted by the siting of the facility; and (3) publish a notice of intent to file an application. Applicants must also conduct wetland delineations, stream delineations, a wildlife characterization summary, and, where applicable, an archaeological/cultural resources study prior to submitting an application.

Applicants seeking a permit for a major renewable energy facility other than a solar or wind facility must consult with ORES at least one year prior to submitting an application to determine which exhibits ORES will require.

Application Requirements

There are 25 exhibits required under the new process—nearly halving the amount required under the current Article 10 process (41). In addition, an applicant may request site-specific conditions in lieu of any exhibit or USC should the applicant provide a satisfactory explanation for why such a condition is necessary. Applicants must also provide a website to disseminate information about the project to the public. Notice of the application must be published at least three days before the filing date.

Processing of Applications

Within 60 days of receiving the application, ORES must determine whether it is complete or incomplete. Applications remain incomplete until all requested items are received. If ORES fails to provide notice of its determination within the 60-day period, the application is deemed complete. Any request to amend the application must be done prior to the issuance of a notice of complete application.

Local agencies seeking funds from the local agency account must submit requests within 30 days of the application’s filing—and the ALJ must award such funds within 30 days of the request.

Expedited Hearing Process

ORES Issues Draft Permit Conditions or Statement of Intent to Deny

Once an application has been deemed complete, ORES has 60 days to publish draft permit conditions or a statement of intent to deny the application. ORES must also provide notice of a public comment hearing and issues-determination proceeding.  Following this notice, there will be a period of at least 60 days to file public comments and petitions for party status. Mandatory and prospective parties will have an opportunity to file papers concerning potential substantive and significant issues. During this time, municipalities, political subdivisions and notified agencies must also file a statement indicating whether the proposed facility is designed to be sited, constructed, and operated in compliance with the applicable local laws and regulations. Very limited discovery is available and motions and requests made at any time are part of the record. Parties have five days after a motion is served to provide a response.

Issues Determination Proceeding

Following receipt of written submissions for issues determinations and any responses, the ALJ will have 30 days to determine party status and judicable issues, rule on any legal issues, decide any pending motions, and summarize comments received. If the ALJ determines that there are no judicable issues, no adjudicatory hearing will be held and ORES will continue processing the application. Judicable issues include substantive and significant disputes between ORES staff and the applicant over a proposed term or condition of the draft siting permit, substantive and significant issues raised in public comments, matters cited by ORES staff as a basis to deny the siting permit that are contested by the applicant, and certain substantive and significant issues raised by potential parties.

Adjudicatory Hearing

If an adjudicatory hearing is necessary, full parties and amici may participate in the hearing. The applicant, ORES staff, state and local agencies consulted during the pre-application/application proceedings, as well as others granted party status, are full parties to the hearing. The ALJ has the discretion to determine and adjust the order of events and presentation of evidence. Any ALJ ruling may be appealed to the Executive Director after the completion of all testimony as part of a party’s final brief or by notice of appeal.

The ALJ’s Recommended Decision and Hearing Report

Within 45 days after the close of the record, the ALJ must issue a recommended decision and hearing report to the Executive Director and the parties. All parties have 14 days after receipt of the recommended decision and hearing report to submit a written summary and assessment of public comments on issues not addressed in the decision. The parties may also stipulate to certain issues, thereby removing them from further consideration in the proceeding. If an executed stipulation resolves all issues, the ALJ shall close the proceeding and remand to ORES Staff to continue processing the application.

Final Decision

Within 30 days after receiving all comments on the recommended decision and hearing report, the Executive Director must issue a final decision.

Final Determination on the Application

ORES must make its final determination on the application within one year from the time it deems the application complete.  For major renewable energy facilities where the proposed site is deemed a “repurposed site,” ORES must make its final determination within six months.

Compliance Filings, Modifications, and Transfers

Once an applicant has received a permit, it must submit various pre-construction and post-construction compliance filings.  Within 60 days of receipt of a compliance filing, ORES must inform the permittee whether the filing has been approved. A permittee may apply to modify an existing permit, and may transfer a permit to a person who agrees to comply with the terms, limitations, or conditions contained in the permit—with approval from ORES.

Enforcement

The New York State Department of Public Service (“NYSDPS”) and the Public Service Commission have the authority to monitor, administer and enforce compliance with the permit. ORES and NYSDPS have the authority to issue stop-work orders.

Uniform Standards and Conditions

The Act requires ORES to adopt comprehensive USCs universally applicable to the siting, design, construction, and operation of each type of major renewable energy facility, taking into consideration common issues for particular classes or categories of facility. The USCs would take the place of “certificate conditions” that would ordinarily complement the issuance of a Certificate of Environmental Compatibility and Public Need within the current Article 10 context. The USCs are intended to put developers on notice of conditions applicable to the facility that are deemed necessary to avoid, minimize, or mitigate significant adverse environmental impacts. The proposed USCs regulate the construction, design, operation, maintenance, and decommissioning of the facility, and cover matters including:

• Construction and Design: Among other conditions, these include (i) allowed construction schedules, (ii) environmental monitoring and pre-construction meeting requirements, (iii) natural gas pipeline protection, (iv) facility fencing, (v) air emissions during construction (from generators, dust, and vehicles), (vi) construction noise, (vii) visual mitigation strategies, (viii) water supply protection measures (addressing placement of facilities next to to water supplies), (ix) threatened and endangered species (requiring a net conservation benefit to any impacted threatened and endangered species), and (x) wetlands, waterbodies, agricultural resources, and cultural preservation.
• Operations and Maintenance: Establishing noise limits for wind facilities (a maximum noise limit of 45 dBA Leq [8-hour] at the outside of any non-participating residence, and 55 dBA Leq [8-hour] at the outside of any participating residence existing as of the issuance date of the siting permit), requiring compliance with New York Independent System Operator, Inc. and national, regional, and Statewide reliability rules and requirements, and addressing equipment replacements (e. repowering of facilities).
• Decommissioning: Requiring a letter of credit or other financial assurance approved by ORES to be held by the host municipality(ies) in an amount equal to the net decommissioning and site restoration estimate.

Public Comment on the Proposed Regulations

Before the proposed USCs are formally adopted, ORES must hold four public hearings throughout the State to solicit comment from local governments and the public. Currently, these are scheduled to be held towards the end of November 2020.  More information on the public hearings can be found here: https://ores.ny.gov/events 

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.