March 11, 2020
New York

Official 60-day comment period on Article 10 “emergency” law changes underway

By Julie Abbass | Mar 11, 2020 |

LOWVILLE – Changes to the Article 10 process for energy projects were made “public” last week on the state Register, beginning the 60-day public comment period.

Information about the emergency rule changes made to the Article 10 process was published in the March 3 edition of the Register, the state’s official weekly publication listing all proposed law changes, serving as public notification created by the Department of State.

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.”

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 to rehear issues brought forward by Invenergy’s Number Three Wind Farm in the towns of Harrisburg and Lowville.

The Siting Board said at the time and repeats in the Register text that 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.”

The public notification of the emergency rule also serves to satisfy the requirements of making the rule change permanent.

The primary changes made are to the definitions of a project “revision” and “modification” to no longer include reference to changing the locations of turbines, access roads or transmission lines within a 500-foot radius of their originally approved locations.

Instead, the only changes that will trigger a hearing will be those that could cause a “significantly negative” environmental impact based upon the Department of Environmental Conservation’s State Environmental Quality Review Act, or SEQRA,

The changes also require energy companies to only map wetlands within 100 feet, instead of the original 500 feet, of areas to be disturbed by their project’s construction – a distance in-line with DEC standards according to the Register and change order.

Under the new rules, any modifications or revisions submitted by an energy company to the Siting Board must have a response within 14 days to avoid delays.

Although a completely new siting process was proposed by Gov. Andrew Cuomo as part of his executive budget last month, the Article 10 rule changes benefit those projects that have already received their Certificates of Environmental Compatibility and Public Need through the Article 10 process that wouldn’t gain time by exercising their right to change to the new process if it is ultimately approved in the budget by state legislators.

The Article 10 rule changes will apply to all electric generation projects that will go through the Article 10 process, although the information provided in the state Register refers primarily to renewable energy projects. It is not clear how this change will impact the siting of other types of energy projects and their “common practices” as it is only wind project issues noted in the text.

The comment period for the rule changes that were filed on Feb. 13 will end on May 3, 60 days after the March 3 publication date.

For questions or to share “views or arguments” should be submitted to the Public Service Commission Secretary Michelle L. Phillips by phone at 518-474-6530; email at; or by mail at 3 Empire State Plaza, Albany N.Y. 12223.

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