New York Codes, Rules and Regulations › Title 19 - DEPARTMENT OF STATE › Chapter XVIII - Office of Renewable Energy Siting › Part 900 - Office of Renewable Energy Siting › Subpart 900-1 › Section 900-1.2 - Definitions

Current through Register Vol. 46, No. 28, July 10, 2024
Whenever used in this Part, unless otherwise expressly
					 stated, the following terms shall have the meanings indicated below. The
					 definitions in this section are not intended to change any statutory or common
					 law meaning of these terms, but are merely plain language explanations of legal
					 terms used in this Part.
(a)
Adjudicatory hearing
means a hearing held pursuant to Section
				  94-c of the New York State Executive Law, this Part or Article 3 of the New
				  York State Administrative Procedure Act, where parties may present evidence on
				  issues of fact, and argument on issues of law and fact prior to the Executive
				  Director (as defined in subdivision (v) of this section) or their designee
				  rendering a decision on the merits, but shall not include public comment
				  hearings.
(b)
Administrative law judge
or
ALJ
means the
				  designated representative authorized by the Executive Director (as defined in
				  subdivision (v) of this section) to conduct hearings pursuant to this
				  Part.
(c)
Amicus
means a person who is not otherwise eligible for party status, but who is
				  allowed to introduce written argument upon one or more specific
				  issues.
(d)
APA
means the New York State Adirondack Park Agency.
(e)
Applicant
means a person
				  (as defined in subdivision (bf) of this section) filing appropriate
				  applications and supporting materials for the purpose of obtaining a siting
				  permit from the Office of Renewable Energy Siting.
(f)
Argument
means opinions
				  or viewpoints, as distinguished from evidence.
(g)
Certificate of
				  Completion
or
COC
shall have the same meaning as set
				  forth in 6 NYCRR Part 375.
(h)
Chief Executive Officer
means: for a county outside of a city,
				  the executive of a county elected or appointed on a county-wide basis or, if
				  there be none, the chairman of the board of supervisors of legislature; for a
				  city, the mayor; for a village, the mayor; and for a town, the supervisor; or
				  the highest elected or appointed official therein.
(i)
Commencement of commercial
				  operation
or
commercial operation date
is defined as
				  the date on which the major renewable energy facility (as defined in
				  subdivision (ag) of this section) as a whole first commences generating or
				  transmitting electricity for sale, excluding electricity generated or
				  transmitted during the period of on-site test operations and commissioning of
				  the facility.
(j)
Commencement of construction
means the beginning of unlimited
				  and continuous site clearing, site preparation and grading activity, but does
				  not include staging, limited tree-cutting activities related to testing or
				  surveying (such as geotechnical drilling and meteorological testing), together
				  with such testing, surveying, drilling and similar pre-construction activities
				  to determine the adequacy of the site for construction and the preparation of
				  application materials or compliance filings.
(k)
Community intervenor
means a potential community intervenor (as defined in subdivision (bh) of this
				  section) who has been granted party status pursuant to section
				  900-8.4 of this Part.
(l)
Complete application
or
completeness of an application
means an application for a
				  permit that is determined by the Office of Renewable Energy Siting, by issuance
				  of a notice of complete application, to be sufficient for the purpose of
				  preparing draft permit conditions, but which may need to be supplemented during
				  the course of review in order to enable the Office of Renewable Energy Siting
				  to make the findings and determinations required by law. Applications deemed
				  compliant with Section 164 of the New York State Public Service Law by the
				  Chair of the New York State Board on Electric Generation Siting and the
				  Environment shall be considered complete upon filing of a transfer application
				  (as defined in subdivision (bz) of this section) pursuant to this
				  Part.
(m)
CLCPA
				  targets
means the public policies established in the Climate
				  Leadership and Community Protection Act enacted in Chapter 106 of the Laws of
				  2019, including the requirement that a minimum of seventy percent of the
				  statewide electric generation be produced by renewable energy systems by two
				  thousand thirty, that by the year two thousand forty the statewide electrical
				  demand system will generate zero emissions and the procurement of at least nine
				  gigawatts of offshore wind electricity generation by two thousand thirty five,
				  six gigawatts of photovoltaic solar generation by two thousand twenty-five and
				  to support three gigawatts of statewide energy storage capacity by two thousand
				  thirty.
(n)
CPLR
means the New York State Civil Practice Law and Rules.
(o)
Delegated permit
means a
				  permit issued by the New York State Department of Environmental Conservation
				  which substitutes for a comparable permit required by federal law and is
				  recognized by the federal agency responsible for administering the federal
				  program.
(p)
Department of
				  State
or
Department
means the New York State
				  Department of State.
(q)
Disclosure
means the disclosure of facts, documents, or other
				  things that are known by or in the possession of a person and that are material
				  and necessary in the prosecution or defense of the proceeding regardless of the
				  burden of proof.
(r)
Draft
				  permit
means a document prepared by the Office of Renewable Energy
				  Siting which contains terms and conditions staff find necessary for a proposed
				  major renewable energy facility (as defined in subdivision (ag) of this
				  section) to meet all legal requirements associated with such a permit, but is
				  subject to modification as a result of public comments or an adjudicatory
				  hearing.
(s)
ECL
means the New York State Environmental Conservation Law.
(t)
Electronically stored
				  information
or
ESI
means any information that is
				  created, stored, or utilized with computer technology of any type. ESI
				  includes, but is not limited to, word-processing files, audio files, video
				  files, spreadsheets, images, emails and other electronic messaging information
				  that are stored electronically.
(u)
Environmental justice area
or
EJ area
means a
				  minority or low-income community that may bear a disproportionate share of the
				  negative environmental consequences resulting from the siting of a major
				  renewable energy facility.
(v)
Executive director
or
director
means the
				  Executive Director of the Office of Renewable Energy Siting.
(w)
Executive Law
or
EL
means the New York State Executive Law.
(x)
Evidence
means sworn or
				  affirmed testimony of witnesses, and physical objects, documents, records or
				  photographs that tend to prove or disprove the existence of an alleged
				  fact.
(y)
Hearsay
means a statement, other than one made by a sworn witness testifying at the
				  hearing, offered into evidence to prove the truth of the matter
				  asserted.
(z)
Host
				  Community Benefit
means a payment or other incentive for the benefit
				  of the host community, as determined by the Public Service Commission pursuant
				  to section eight of part JJJ of chapter 58 of the laws of two thousand twenty,
				  or such other payment or incentive as determined by the Office of Renewable
				  Energy Siting, or as subsequently agreed to between the applicant and the host
				  community.
(aa)
Interconnections
means off-site electric transmission lines
				  less than ten (10) miles in length, water supply lines, waste water lines,
				  communications lines, steam lines, stormwater drainage lines, and appurtenances
				  thereto, installed in New York State connecting to and servicing the site of a
				  major renewable generating facility, that are not subject to the Public Service
				  Commission's jurisdiction under Article VII of the New York State Public
				  Service Law, not including service lines designed and sized for household type
				  usage such as for bathrooms or ordinary telephones.
(ab)
Local agency account
means the account established by the Office of Renewable Energy Siting and
				  maintained by the New York State Energy Research and Development Authority
				  pursuant to Section 94-c  of the Executive Law for local agencies and potential
				  community intervenors which meet the eligibility and procedural requirements of
				  this Part to participate in public comment periods or hearings.
(ac)
Local agency
means any
				  local agency, board, district, commission or governing body, including
				  municipalities, and other political subdivision of the state.
(ad)
Low-income community
means a census block group, or contiguous area with multiple census block
				  groups, where 23.59 percent or more of the population have an annual income
				  that is less than the poverty threshold; except that the percentage population
				  and income threshold may be revised to reflect updated demographic
				  data.
(ae)
Major
				  amendment
means a change in a siting permit application likely to
				  result in any material increase in any identified adverse environmental
				  impacts, any significant adverse environmental impact not previously
				  identified, or any new site-specific standards and conditions.
(af)
Major modification
means a change to an existing permit standard or condition likely to result in
				  any material increase in any identified adverse environmental impact or any
				  significant adverse environmental impact not previously addressed by uniform or
				  site-specific standards or conditions or otherwise involves a substantial
				  change to an existing permit standard or condition.
(ag)
Major renewable energy
				  facility
or
facility
means any renewable energy
				  system, as such term is defined in Section 66(p) of the New York State Public
				  Service Law as added by Chapter 106 of the Laws of 2019, with a nameplate
				  generating capacity of twenty-five thousand kilowatts or more, and any
				  co-located system storing energy generated from such a renewable energy system
				  prior to delivering it to the bulk transmission system, including all
				  associated appurtenances to electric plants as defined under Section 2 of the
				  New York State Public Service Law, including electric transmission facilities
				  less than ten (10) miles in length in order to provide access to load and to
				  integrate such facilities into the state's bulk electrical transmission
				  system.
(ah)
Minor
				  amendment
means a change in an application or draft permit condition
				  that is not a major amendment.
(ai)
Minor modification
means a change in an existing permit
				  condition or an approved compliance filing that is not a major
				  modification.
(aj)
Minority
				  community
means a census block group, or contiguous area with multiple
				  census block groups, where the minority population is equal to or greater than
				  51.1 percent in an urban area or 33.8 percent in a rural area; except that the
				  specific percentages may be revised to reflect updated demographic
				  data.
(ak)
Minority
				  population
means a population that is identified or recognized by the
				  U.S. Census Bureau as Hispanic, African-American or Black, Asian and Pacific
				  Islander, or American Indian.
(al)
Motion
means a request for a ruling or an order.
(am) Municipality means a county, city, town
				  or village.
(an)
Nameplate
				  generating capacity
means, starting from the initial installation of a
				  major renewable energy facility, the maximum electrical generating output that
				  the facility is capable of production on a steady state basis and during
				  continuous operation (when not restricted by seasonal or other de-ratings) as
				  specified by the manufacture of the generating units.
(ao)
No further action
				  determination
means a written determination by the New York State
				  Department of Environmental Conservation that a parcel of real property has
				  been remediated to the applicable regulatory agency's satisfaction.
(ap)
Non-participating
				  property
means a parcel of real property owned by a person (as defined
				  in subdivision (bf) of this section) who has not executed an agreement with the
				  applicant related to the facility.
(aq)
NYSAGM
means the New
				  York State Department of Agriculture and Markets.
(ar)
NYSDEC
means the New
				  York State Department of Environmental Conservation.
(as)
NYSERDA
means the New
				  York State Energy Research and Development Authority.
(at) NYSDPS means the New York State
				  Department of Public Service.
(au)
NYSDOT
means the New York State Department of
				  Transportation.
(av)
NYSDOH
means the New York State Department of
				  Health.
(aw)
OPRHP
means the New York State Office of Parks, Recreation and Historic
				  Preservation.
(ax)
Office
or
ORES
means the Office of Renewable
				  Energy Siting within the Department of State and established pursuant to
				  Section 94-c  of the Executive Law.
(ay)
Office of hearings
means the office within the ORES principally responsible for conducting
				  adjudicatory hearings pursuant to this Part.
(az)
Office staff
means
				  those Office personnel participating in a hearing, but does not include the
				  Executive Director, or their designee, the ALJ or those personnel in the Office
				  of Hearings advising or consulting with the Executive Director, or their
				  designee, or the ALJ.
(ba)
Opt-in renewable energy facility
means a renewable energy
				  system, as such term is defined in Section 66(p) of the New York State Public
				  Service Law as added by Chapter 106 of the Laws of 2019, with a nameplate
				  capacity of at least twenty thousand kilowatts but less than twenty-five
				  thousand kilowatts, in which the applicant has elected to submit an application
				  for siting pursuant to this Part and for the purposes of this Part, shall be
				  considered a major renewable energy facility.
(bb)
Participating property
means a parcel of real property owned by a person who has executed a lease,
				  easement or other agreement with the applicant related to the
				  facility.
(bc)
PSL
means the New York State Public Service Law.
(bd)
Party
means any person
				  granted full party status or
amicus
status in the adjudicatory
				  portion of the hearing according to the procedures and standards set forth in
				  this Part but does not include the ALJ, the Office of Hearings, or the
				  Executive Director (or their designee).
(be)
Pending Article 10
				  facility
means a major renewable energy facility, which on or before
				  the effective date of Section 94-c  of the Executive Law, had submitted a draft
				  public involvement program plan to the New York State Board on Electric
				  Generation Siting and the Environment pursuant to Article 10 of the PSL and its
				  implementing regulations.
(bf)
Person
means any individual, public or private corporation,
				  public benefit corporation, limited liability company, multi-state authority,
				  political subdivision, government agency, department or bureau of the State,
				  federally/state recognized Indian Nation, municipality, industry partnership,
				  association, firm, trust, estate or any legal entity whatsoever.
(bg)
Plain language
means an
				  eighth-grade reading level or language which is easily understandable to the
				  lay public.
(bh)
Potential
				  community intervenor
means any person residing within a municipality
				  within which a major renewable electric generating facility is proposed or
				  residing outside the municipality within which the facility is proposed, but
				  within one (1) mile of a proposed solar facility (as defined in subdivision
				  (bu) of this section) or five (5) miles of a proposed wind facility (as defined
				  in subdivision (ca) of this section) or any non-profit organization that can
				  demonstrate a concrete and localized interest that may be affected by a
				  proposed facility and that such interest has a significant nexus to their
				  mission. For the purposes of this definition, the term "residing" shall include
				  any resident or owner of property within the geographical limitations described
				  above.
(bi)
Potential
				  party
means any person who has filed a petition for party status whose
				  petition has not received either final denial or acceptance.
(bj)
Project
means the
				  physical activity or undertaking for which a siting permit is required from the
				  Office.
(bk)
Project impact
				  area
means the geographic area or areas within which the proposed
				  undertaking may cause any change, beneficial or adverse, in the character or
				  use of an identified archaeological site, historic resource or cultural
				  property.
(bl)
Protective
				  order
means an order denying, limiting, conditioning or regulating the
				  use of material requested through disclosure.
(bm)
Public comment hearing
means the portion of the hearing process during which unsworn statements are
				  received from the host municipalities, the public and the parties.
(bn)
Public Service
				  Commission
or
PSC
means the New York State Public
				  Service Commission.
(bo)
Recommended decision and hearing report
means the ALJ's
				  summary of the proceeding, including the ALJ's findings of fact, conclusions of
				  law, and recommendations for the Executive Director's (or their designee)
				  consideration.
(bp)
Relevant
means tending to make the existence of any fact that
				  is of consequence to the determination of the proceeding more probable or less
				  probable.
(bq)
Repurposed
				  site
means an existing or abandoned commercial or industrial use
				  property, including without limitation, brownfields, landfills, dormant
				  electric generating or other previously disturbed location which, if
				  applicable, has been remediated to permit the siting of a major renewable
				  energy facility.
(br)
SAPA
means the New York State Administrative Procedure
				  Act.
(bs)
Service
means the delivery of a document to a person by authorized means and, where
				  applicable, the filing of a document with the ALJ, the Office of Hearings or
				  the Executive Director (or their designee).
(bt)
Siting permit
or
permit
means authorization to construct and operate a major
				  renewable energy facility issued by the Office pursuant to Section 94-c  of the
				  Executive Law and this Part.
(bu)
Solar facility
means a solar-powered major renewable energy
				  facility.
(bv)
Statement of
				  intent to deny
means a document prepared by Office staff which
				  identifies the reasons why the siting permit for the project may not be issued
				  as proposed or conditionally.
(bw)
Stipulation
means an agreement between two or more parties to
				  a proceeding, and entered into the hearing record, concerning one or more
				  issues of fact or law that are the subject of the proceeding.
(bx)
Study area
means the
				  area generally related to the nature of the technology and the setting of the
				  proposed site. Unless otherwise provided in this Part, in highly urbanized
				  areas, the study area is a minimum one (1)-mile radius from the property
				  boundaries of the facility site, interconnections and related facilities, and
				  for facilities with components spread across a rural landscape, the study area
				  shall at a minimum include the area within a radius of at least five (5) miles
				  from all generating facility components, interconnections and related
				  facilities.
(by)
Subpoena
means a legal document that requires a person to
				  appear at a hearing and testify, to produce documents or physical objects, or
				  both.
(bz)
Transfer
				  application
means an application submitted for a siting permit for an
				  opt-in renewable energy facility current undergoing an alternative permitting
				  process or a pending Article 10 facility.
(ca)
Wind facility
means a
				  land-based, wind-powered major renewable energy facility.