“Emergency” rule changes to Article 10 approved, may be made permanent 

WATERTOWN – Without fanfare or public discourse, “emergency” changes were made to the Article 10 post-certification rules for energy projects when the state Board on Electric Generation Siting and the Environment met on Thursday.

By changing the definitions of a project “revision” and “modification” to no longer include reference to moving turbines, access roads or transmission lines within a 500-foot radius of their originally approved locations, hearings will only be required if a change causes a “significantly negative” environmental impact.

That impact is defined by terms in the Department of Environmental Conservation’s State Environmental Quality Review Act, or SEQRA, according to the new language in the Article 10 rule.

The original definitions deemed moves of those project features within the 500-foot radius as project revisions, a qualification that triggered a formal hearing process.

Otherwise, the new rules will ensure a decision on whether a change is a simple modification or a revision within 14 days to avoid delays.

The new rules also have energy companies mapping wetlands within 100 feet, instead of 500 feet, of areas to be disturbed by their project’s construction. This is a distance that is in line with DEC standards, the change order states.

“Without these minor changes, the economics of projects will continue to be jeopardized in a manner that could increase costs to New York ratepayers,” the news release on the Siting Board’s decision said. However, it did not indicate why rates would change if these renewable energy projects are not constructed.

According to the order unanimously approved by board members, the rule alterations were designed to help wind farm companies move into the construction phase more quickly, especially with federal tax rebates requiring project construction to begin before Dec. 31 for the rebates to be given.

The production tax credit gives qualifying projects 1.5 cents per kilowatt hour of energy generated annually for 10 years after the facility begins service, while the investment tax credit is a one-time capital investment credit that gives companies 18 percent of capital expenditures from the time the equipment goes into service, according to the federal energy website www.energy.gov.

Representatives of Invenergy’s Number Three Wind Farm have been expressing concerns about the delays created by meeting strict conditions to the Certificate of Environmental Compatibility and Public Need on their tax credit since the certificate was awarded on Nov. 12.

According to Marguerite Wells, senior manager of renewable development for Number Three, the rule changes aren’t likely to help construction begin on Number Three this year, but they will order the turbines which can take a year to arrive.

“We’re going to try, but it’s still tough to know how long the process will take,” Ms. Wells said, “Much of today’s rulings are helpful to younger projects.”

Invenergy has two of the three wind projects that will likely complete the Article 10 process this year and receive the environmental certificate. Avangrid Renewables owns the third.

When asked if the rule changes arose from Number Three’s concerns, James Denn, spokesman for the Department of Public Service that administers the Article 10 process, said the two were “unrelated.”

Of the five projects that have already completed Article 10 with the certificate to prove it, the first being Cassadaga Wind in 2018, none have begun construction.

Construction delays have “already jeopardized completion of one renewable energy project and can potentially discourage many more,” the rule-change order said. However, it is not clear exactly which project is being referenced.

In subsequent documents, the example was given of a situation in which Cassadaga submitted position changes for lines and the substation by 500 and 700 feet, respectively, which triggered a hearing process despite providing documentation that the changes would have a positive environmental impact.

The hearing process and approval took four months, according to the information in the document, causing the company to miss the fall construction season.

There was no indication in the documents how frequently hearings have been triggered because of changes. However, a number of scenarios that cause the situation were, including, as in the example, the siting “getting ahead of” National Grid.

By creating these rules on an “emergency” basis, the board itself was able to expedite the standard rule change process.

In addition to the pending expiration of federal tax credits, the board cited “time-sensitive financing commitments” and “construction milestones needed to preserve grid interconnection rights” as reasons for the urgency.

Ninety-day emergency rules can only be made, according to the State Administrative Procedure Act, if “immediate adoption of a rule is necessary for the preservation of the public health, safety or general welfare.”

The Siting Board said the situation is an emergency because without the changes the state’s goals to reduce greenhouse gases with renewable energy projects would be impeded, and those goals “are vital to the protection of public health and welfare.”

Documents were sent to the Department of State and filed on the public record site by the Siting Board to make the emergency law permanent.

Although Mr. Denn had stated on Thursday afternoon that the public could comment on the changes for the next 60 days and those comments would be taken into consideration, the lawmaking documents held different information.

“Because… the existing provisions as applied may cause certificated renewable energy projects to be abandoned, the public interest warrants that the definition should be modified immediately and should not await the minimum 60-day public comment period prescribed,” the document said.

About six people have made comments or posted documents disputing the legitimacy of the rule changes specifically, but also wind projects and the Article 10 process more generally.

The board may also have to complete the public hearing process normally followed for rule changes that aren’t required for an emergency purpose to make the law permanent.

The rule changes will apply to all electric generation projects that will go through the Article 10 process.

To read the entire rule change order and to make a comment, go to http://wdt.me/baL4KA.