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19 NYCRR 900-1.1 - Purpose and applicability

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(a)The purpose of this Part is to establish procedural and substantive requirements for permit applications for

major renewable energy facilities (as defined in section 900-1.2[ag] of this Subpart) reviewed by the Office of Renewable Energy Siting and applies to applications for permits for the siting, design, construction, operation, compliance, enforcement and modification of such facilities pursuant to section 94-c of the New York State Executive Law.

(b)This Part shall not apply to the following:

(1)to a

major renewable energy facility (as defined in section 900-1.2[ag] of this Subpart), or any portion thereof, over which any Federal agency or department has exclusive siting jurisdiction, or has siting jurisdiction concurrent with that of the State and has exercised such jurisdiction to the exclusion of regulation of the facility by the State. However, nothing herein shall be construed to expand Federal jurisdiction;

(2)to normal repairs, maintenance, replacements, non-material modifications and improvements of a

major renewable energy facility (as defined in section 900-1.2[ag] of this Subpart), whenever built, which are performed in the ordinary course of business and which do not constitute a violation of any applicable existing permit, including permits issued pursuant to this Part;

(3)to a

major renewable energy facility (as defined in section 900-1.2[ag] of this Subpart) if, on or before the effective date of section 94-c of the New York State Executive Law, an application has been made or granted for a license, permit certificate, consent or approval from any Federal, State or local commission, agency, board or regulatory body, including the submission of a pre-application public involvement program plan under article 10 of the New York State Public Service Law, in which the location of the major renewable energy facility has been designated by the applicant, except where an applicant elects to be subject to this Part as authorized by Public Service Law sction 162;

(4)any

renewable energy system as such term is defined in section 66(p) of the New York State Public Service Law, with a nameplate capacity of less than 25,000 kilowatts, unless such system becomes an opt-in renewable energy facility (as defined in section 900-1.2[ba] of this Subpart); and

(5)any stand-alone battery energy storage system.

19 NYCRR 900-1.2 - Definitions

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19 NYCRR 900-1.3 - Pre-application procedures

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19 NYCRR 900-1.4 - General requirements for applications

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19 NYCRR 900-1.5 - Office of renewable energy siting review fee

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The office shall charge a fee to the applicant in order to recover the costs of reviewing and processing an application in an amount equal to $1,000 for each 1,000 kilowatts of capacity, which shall be due at the time of application filing.

19 NYCRR 900-1.6 - Filing, service and publication of an application

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19 NYCRR 900-2.1 - Filing instructions

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(a)Each application for a siting permit shall contain the exhibits described in this Subpart as relevant to the proposed facility technology and site and such additional information as the applicant may consider relevant or as may be required by the office. Exhibits that are not relevant to the particular facility’s technology or proposed location may be omitted from the application.

(b)Each exhibit shall contain a title page showing:

(1)the applicant's name;

(2)the title of the exhibit; and

(3)the proper designation of the exhibit.

(c)Each exhibit consisting of 10 or more pages of text shall contain a table of contents citing by page and section number or subdivision the elements or matters contained in the exhibit.

(d)In collecting, compiling and reporting data required for the application, the applicant shall establish a basis for a statistical comparison with data which shall subsequently be obtained under any program of post-permit monitoring.

(e)If the same information is required for more than one exhibit, it may be supplied in a single exhibit and cross-referenced in the other exhibit(s) where it is also required.

(f)If maps are requested, the applicant shall provide both hard copy and digital files, including appropriate GIS shapefiles and/or CAD, etc.

19 NYCRR 900-2.2 - Exhibit 1: General requirements

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Exhibit 1 shall contain:

(a)the name, address, telephone number, and e-mail address of the applicant;

(b)the address of the website established by the applicant to disseminate information to the public regarding the application;

(c)the name, address, telephone number, and e-mail address of a representative of the applicant that the public may contact for more information regarding the application;

(d)the name, business address, telephone number, and e-mail address of the principal officer of the applicant;

(e)if the applicant desires service of documents or other correspondence upon an agent, the name, business address, telephone number, and e-mail address of the agent;

(f)a brief explanation of the type of business entity that the applicant is, including its date and location of formation and the name and address of any parent entities; and

(g)if the facility is to be owned by a corporation, a certified copy of the charter of such corporation; if the facility is not to be owned by a corporation, a copy of the certificate or other documents of formation.

19 NYCRR 900-2.3 - Exhibit 2: Overview and public involvement

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Exhibit 2 shall contain:

(a)A brief description of the major components of the facility, including collection lines, transmission lines, interconnections, access roads and related facilities. A brief, clearly and concisely written overall analysis in plain language that assembles and presents relevant and material facts regarding the facility upon which the applicant proposes that the office make its decision. The analysis shall be analytical and not encyclopedic and shall specifically address each required finding, determination and consideration the office shall make or consider in its decision and explain why the applicant believes that the requested permit should be granted.

(b)A brief description of applicant’s local engagement and outreach efforts as required in section 900-1.3(a) and (b) of this Part.

19 NYCRR 900-2.4 - Exhibit 3: Location of facilities and surrounding land use

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Exhibit 3 shall contain:

(a)Latest- or recent-edition USGS maps (1:24,000 topographic edition, utilizing GIS mapping to the extent available), showing:

(1)the proposed location of the facility, including proposed electric collection and transmission lines and interconnections, as well as ancillary features located on the facility site such as roads, railroads, switchyards, energy storage or regulation facilities, substations and similar facilities;

(2)the proposed location of any off-site utility interconnections, including all electric transmission lines, communications lines, stormwater drainage lines, and appurtenances thereto, to be installed in New York State connecting to and servicing the site of the facility;

(3)the proposed limits of clearing and disturbance for construction of all facility components and ancillary features.

(b)Maps clearly showing the location of the facility and all ancillary features not located on the facility site in relation to municipal boundaries and taxing jurisdictions, at a scale sufficient to determine and demonstrate relation of facilities to those geographic and political features.

(c)Written descriptions explaining the relation of the location of the facility site, and all ancillary features not located on the facility site, to the affected municipalities and taxing jurisdictions.

(d)A map showing existing land uses within the study area.

(e)A map of any existing overhead and underground major facilities for electric, gas or telecommunications transmission within the study area and a summary of any consultations with owners of major facilities for electric, gas or telecommunications that may be impacted by the facility (crossing existing utilities or otherwise).

(f)A map of all properties upon which any component of a facility or ancillary feature would be located, and for wind facilities, all properties within 2,000 feet of such properties, and for solar projects, all properties within 1,000 feet, that shows the current land use, tax parcel number and owner of record of each property, and any publicly known proposed land use plans for any of these properties.

(g)A map of existing zoning districts and proposed zoning districts within the study area and a description of the permitted and the prohibited uses within each zone. For floating or overlay zones that are not specifically attributable to a specific mapped zoning district, describe the applicable substantive criteria that apply for establishment of the overlay zone.

(h)A statement as to whether any applicable local jurisdiction has an adopted comprehensive plan applicable to lands on which facility components or ancillary facilities are located and whether the proposed facility is consistent with such comprehensive plan. A copy of the plan shall be provided in the application, with an indication of plan sections applicable to the proposed uses.

(i)A map of all publicly known proposed land uses within the study area, as determined in consultation with State and local planning officials, from any public involvement process, or from other sources.

(j)Maps showing designated NYS coastal areas, inland waterways and local waterfront revitalization program areas (pursuant to 19 NYCRR Part 600,

et seq.

), groundwater management zones, designated agricultural districts, flood-prone areas, critical environmental areas designated pursuant to article 8 of the ECL, and coastal erosion hazard areas, that are located within the study area.

(k)Maps showing recreational and other land uses within the study area that might be affected by the sight or sound of the construction or operation of the facility, interconnections and related facilities, including wild, scenic and recreational river corridors, open space, and any known archaeological, geologic, historical or scenic area, park, designated wilderness, forest preserve lands, scenic vistas specifically identified in the Adirondack Park State Land Master Plan, NYS Parks, NYSDEC lands, conservation easement lands, Federal or State designated scenic byways, nature preserves, designated trails, and public-access fishing areas, major communication and utility uses and infrastructure, and institutional, community and municipal uses and facilities.

(l)A qualitative assessment of the compatibility of the facility, including any off-site staging and storage areas, with existing, proposed and allowed land uses, and local and regional land use plans, located within a one-mile radius of the facility site. The assessment shall identify the nearby land uses of particular concern to the community and shall address the land use impacts of the facility on residential areas, schools, civic facilities, recreational facilities, and commercial areas. The assessment and evaluation shall demonstrate that conflicts from facility-generated noise, traffic and visual impacts with current and planned uses have been minimized to the extent practicable.

(m)A qualitative assessment of the compatibility of proposed above-ground transmission lines, collection lines, and interconnections and related facilities with existing, potential, and proposed land uses within the study area.

(n)A qualitative assessment of the compatibility of proposed underground transmission lines, collection lines, interconnections and related facilities with existing, potential, and proposed land uses within 300 feet from the centerline of such interconnections or related facilities.

(o)For facilities at locations within NYS designated coastal areas, or in direct proximity of coastal areas or designated inland waterways, provide an analysis of conformance with relevant provisions of the New York State Coastal Management Program policies, and proposed or adopted Local Waterfront Revitalization Plans (pursuant to 19 NYCRR Part 600,

et seq.

). For facilities located within or adjacent to areas mapped by the National Oceanographic and Atmospheric Administration (NOAA), mapping of the proposed facility’s location on the most recent edition of NOAA navigation charts shall be provided.

(p)Aerial photographs of all properties within the study area of sufficient scale and detail to enable discrimination and identification of all natural and cultural features.

(q)Overlays on aerial photographs which clearly identify the facility site and any facility layout, interconnection route, the limits of proposed clearing or other changes to the topography, vegetation or human-made structures, and the location of access and maintenance routes.

(r)All aerial photographs shall reflect the current uses of the land. All aerial photographs shall indicate the source and the date photographs were taken.

(s)A description of community character in the area of the facility, an analysis of impacts of facility construction and operation on community character, and identification of avoidance or mitigation measures that will minimize adverse impacts on community character.

For the purposes of this exhibit, community character includes defining features and interactions of the natural, built and social environment, and how those features are used and appreciated in the community.

(t)For repurposed sites with a history of environmental contamination only:

(1)For a site that has not been remediated under the oversight of the NYSDEC:

(i)a copy of a phase 1 Environmental Site Assessment (ESA) and, if any recognized environmental conditions were identified, a phase 2 ESA; and

(ii)a determination by a qualified licensed professional engineer, on the basis of the phase I ESA and/or phase 2 ESA, that it is not anticipated that hazardous substances would be encountered during construction and/or operation of the facility.

(2)For a site that has been remediated under the oversight of the NYSDEC and received a certificate of completion or no further action from the NYSDEC:

(i)a copy of the applicable site management plan for the facility site and any deed or land use restrictions imposed; and

(ii)a certification by the applicant that it will implement and comply therewith.

(u)For a proposed facility where an oil, gas or mining solution well is known to exist within 500 feet of proposed areas to be disturbed within a proposed facility boundary (based on records maintained by the NYSDEC) or for any proposed facility located in NYSDEC regions 7, 8, or 9:

(1)A description of a survey, setting forth the date(s) the survey occurred, the company that conducted it and the methodology used. The purpose of the survey is to determine whether any NYSDEC-regulated wells are present within 500 feet of proposed areas to be disturbed, and if so, identification of the wells and type, if known. Unless another method was authorized by the office, the survey shall have been done by the use of magnetometers, including aerial platform magnetometers, that are able to locate wells including those lacking surface expressions and any discovered wells should be recorded in decimal degrees, NAD 83, with six decimal places of accuracy, and presented on the map identified in paragraph (2) of this subdivision.

(2)A map based on the survey required in paragraph (1) of this subdivision identifying the location of all wells and associated infrastructure (to the extent known), along with the facility boundaries, proposed areas to be disturbed, and proposed facility components. The map should also identify proposed setbacks from permanent structures and buildings of a minimum of 100 feet from identified well(s) and minimum 20 feet in width from nearest reasonable facility property access point to the well to permit inspections and other regulatory work as may be needed.

(3)An explanation if the applicant cannot meet the setback and access requirements referenced in paragraph (2) of this subdivision.

19 NYCRR 900-2.5 - Exhibit 4: Real property

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Exhibit 4 shall contain:

(a)A map of the facility site showing property boundaries with tax map sheet, block and lot numbers; the owner of record of all parcels included in the facility site and for all adjacent properties; easements, grants, deed restrictions, and related encumbrances on the parcels comprising the facility site; public and private roads on or adjoining or planned for use as access to the facility site; zoning and related designations applicable to the facility site and adjoining properties.

(b)A property/right-of-way map of all proposed transmission lines and interconnection facilities and off-property/right-of-way access drives and construction lay-down or preparation areas for such interconnections.

(c)A demonstration that the applicant has obtained title to or a leasehold interest in the facility site, including ingress and egress access to a public street, or is under binding contract or option to obtain such title or leasehold interest, or can obtain such title or leasehold interest. State whether the applicant is registered as a transportation corporation and plans to acquire necessary lands for generating or transmission line or other facility-related infrastructure pursuant to New York State Eminent Domain Procedure Law.

(d)A statement that the applicant has obtained, or can obtain (with commercially reasonable certainty), such deeds, easements, leases, licenses, or other real property rights or privileges as are necessary for all interconnections for the facility site.

(e)An identification of any improvement district extensions necessary for the facility and a demonstration that the applicant has obtained, or can obtain, such improvement district extensions.

19 NYCRR 900-2.6 - Exhibit 5: Design drawings

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(a)Drawings to be submitted pursuant to this section shall be prepared by or at the direction of a professional engineer, licensed and registered in New York State, whose name shall be clearly printed on the drawings.

(b)Wind facilities shall meet the setback requirements in Table 1 or manufacturer setbacks, whichever are more stringent. The setback distances shall be measured as a straight line from the centerline or mid-point of the wind turbine tower to the nearest point on the building foundation, property line or feature, as applicable. Compliance with such setbacks (based on the tallest wind turbine model under consideration) shall be shown in the general site plan drawings (or as stand-alone mapping) as required by subparagraph (f)(1)(ii) of this section.

Table 1: Setback Requirements for Wind Turbine Towers

Structure Type

Wind Turbine Towers setback*

Substation

1.5 times

Any Above-ground Bulk Electric System**

1.5 times

Gas Wells (unless waived by landowner and gas well operator)

1.1 times

Public Roads

1.1 times

Property Lines

1.1 times

Non-participating, non-residential Structures

1.5 times

Non-participating Residences

2 times

*1.0 times Wind Turbine Towers setback is equal to the Total Height of the Wind Facility (at the maximum blade tip height). **Operated at 100 kV or higher, and as defined by North American Electric Reliability Corporation Bulk Electric System Definition Reference Document Version 3, August 2018 (see section 900-15.1[e][1][i] of this Part).

(c)The applicant shall provide a table listing rated power, hub height, rotor diameter, and total height of each wind turbine model under consideration for the facility.

(d)Solar facilities shall meet the setback requirements set forth in Table 2. Compliance with such setbacks listed in Table 2 shall be shown in the general site plan drawings required by subparagraph (f)(1)(i) of this section. Fencing, collection lines, access roads and landscaping may occur within the setback.

Table 2: Setback Requirements for Solar Facility Components

Setback Type

Solar Facility Setback

Non-participating residential property lines

100 feet

Centerline of Public Roads

50 feet

Non-participating property lines (non-residential)

50 feet

Non-participating occupied residences

250 feet

(e)The maximum height of solar facilities, exclusive of electric collection, transmission or substation/switchyard components, shall not exceed 20 feet from finished grade. The height of arrays shall be measured from the highest natural grade below each solar panel to its maximum potential height.

(f)Exhibit 5 shall contain:

(1)Site plans of the proposed facility, including the following:

(i)For solar facilities, general site plan drawings (utilizing GIS mapping) of all facility components at a legible common engineering scale (using a scale ratio in feet of at least 1:200), 2 full-size hard copy sets (22″ x 34″ sheets) shall be provided with the application including the following proposed and existing features:

(a)solar panels, inverters, low-medium transformers, property lines, applicable setbacks of Table 2: Setback Requirements for Solar Facility Components and any applicable local setbacks;

(b)extents of proposed access road travel lanes (including indications of any existing access roads to be utilized) and any turn-around areas/temporary road improvements for component deliveries (may be included in site plans or as a stand-alone map set per the requirements of section 900-2.17 of this Subpart);

(c)electric cable collection line corridors (including an indication of permanent rights-of-way [ROW]) and the approximate locations of any proposed splice vaults; overhead and underground cable routes shall be differentiated; mapping shall identify any locations of proposed trenchless collection line installations, including the approximate lengths of such electric line routes, information can be included in site plans or provided as a stand-alone map set);

(d)the existing electric transmission line (which the facility will interconnect to) and any known existing utilities (including pipelines) and associated rights of way within the facility site;

(e)approximate limits of disturbance for all facility components (panels, access roads, electric line corridors, etc.);

(f)approximate clearing limits for all facility components (panels, access roads, buildings, electric lines, shading vegetation, etc.);

(g)extents of collection and interconnection stations and any applicable local setbacks;

(h)any proposed energy storage system(s) and any applicable local setbacks;

(i)site security features, including approximate location of perimeter fencing; and

(j)any berms, retaining walls, fences and other landscaping improvements (included in general site plans or provided as a stand-alone map set).

(ii)For wind facilities, general site plan drawings (utilizing GIS mapping) of all facility components at a reasonable legible engineering scale (using a scale ratio in feet of at least 1:200), 2 full-size hard copy sets (22" x 34" sheets) shall be provided with the application), including the following proposed and existing features:

(a)extents of proposed access roads (including an indication of any existing access roads to be utilized); turn-around areas/temporary road improvements for component deliveries or construction access (may be included in site plans or as a stand-alone map set per requirements of section 900-2.17 of this Subpart);

(b)extents of wind turbines (based on approximate dimensions of foundations) and crane pads;

(c)electric collection corridors (including an indication of permanent ROW) and the approximate location of any proposed splice vaults; overhead and underground cable routes shall be differentiated; mapping shall include an identification of proposed trenchless collection line installations, including the approximate lengths of such electric line routes, (this information can be included in site plans or provided as a stand-alone map set);

(d)collection substation outline and any applicable local setbacks;

(e)extents of the switchyard station and any applicable local setbacks;

(f)the existing electric transmission line (which the facility will interconnect to) and any known existing utilities (including pipelines) and associated ROW within the facility site;

(g)approximate limits of disturbance for all facility components (turbines, access roads, electric line corridors, etc.);

(h)approximate clearing limits for all facility components (turbines, access roads, buildings, electric lines, etc.);

(i)proposed wind turbines setbacks (based on the tallest wind turbine model under consideration), represented by radii (setback circles) offset from turbine locations, demonstrating compliance with manufacturers’ setbacks or those listed in Table 1 above, whichever is more stringent (setback circles can be included in general site plans or provided as a stand-alone map set); participating residences shall also be shown;

(j)any proposed energy storage system(s) and any applicable local setbacks;

(k)any proposed berms, retaining walls, fences and other landscaping improvements (included in general site plans or provided as a stand-alone map set); and

(l)permanent meteorological towers and any applicable local setbacks.

(2)All drawings listed below are to be drawn to scale, or to an exaggerated scale, as appropriate. All such drawings are to be created using computer graphics or computer-aided design software; hand-drawn sketches and drawings may not be used. The following details and plans shall be provided:

(i)Typical elevation drawings indicating the length, width, height, material of construction, color and finish of all buildings, structures, and fixed equipment to be provided for the following:

(a)wind turbine elevations, for each proposed wind turbine model under consideration, including maximum blade tip height and turbine blade specifications with descriptions of the blade installation process (turbine height and blade detail may be substituted with manufacturer sheets, if documentation includes the required detail);

(b)switchyard station(s) and interconnection facilities (including fencing, gates, and all station equipment); a general arrangement plan shall be included in the elevation drawing set showing elevation mark pointers (arrows) with reference to associated elevation views (including views of all components of the station);

(c)collection substation(s) (including fencing, gates, and all substation equipment); a general arrangement plan shall be included in the elevation drawing set showing elevation mark pointers (arrows) with reference to associated elevation views (including views of all components of the substation); and

(d)energy storage system(s) (including fencing, gates, and buildings); a general arrangement plan shall be included in the elevation drawing set showing elevation mark pointers (arrows) with reference to associated elevation views (including views of all components of the energy storage system).

(ii)Each proposed permanent point of access or access type shall include a typical installation plan view, cross section and side view with appropriate dimensions (temporary and permanent width[s]) and identification of materials to be used along with corresponding material thickness. Where existing accessways will be used, a description of proposed upgrades for facility construction shall be provided. Additionally, typical details of any other proposed access (

e.g.

, helicopter or barge placement) shall be provided.

(iii)Typical underground infrastructure section details including single and multiple circuit layouts with dimensions of proposed depth, trench width, level of cover, separation requirements between circuits, clearing width limits for construction and operation of the facility, limits of disturbance, required permanent ROW and a description of the cable installation process; typical details of any proposed splice vaults shall also be provided, including vault dimensions, level of cover, required trench length, width and depth, clearing width limits for construction and operation of the facility, and limits of disturbance.

(iv)Details for typical overhead electric transmission and collection lines, including a profile of the centerlines at an exaggerated vertical scale and typical elevation plans including height above grade and structure layouts.

(3)Site suitability report from the original equipment manufacturer showing that turbine model(s) are compatible with existing facility conditions (

i.e.

, site specific conditions).

(4)A list of engineering codes, standards, guidelines and practices that the applicant has or intends to conform with when planning, designing, constructing, operating and maintaining the wind turbines, solar arrays, electric collection system, substation, transmission line, inter-connection, energy storage systems (a summary of correspondence with local fire department representatives shall accompany proposals of such systems), and associated structures.

(5)Any manufacturer provided information regarding the design, safety and testing information for the turbines, solar panel, inverters, substations, transformers, and battery storage equipment to be installed during construction, or as related to any equipment installed during facility operation.

19 NYCRR 900-2.7 - Exhibit 6: Public health, safety and security

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19 NYCRR 900-2.8 - Exhibit 7: Noise and vibration

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19 NYCRR 900-2.9 - Exhibit 8: Visual impacts

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Exhibit 8 shall contain:

(a)A visual impact assessment (VIA) to determine the extent and assess the significance of facility visibility. The components of the VIA shall include identification of visually sensitive resources, viewshed mapping, confirmatory visual assessment fieldwork, visual simulations (photographic overlays), cumulative visual impact analysis, and proposed Visual Impacts Minimization and Mitigation Plan as outlined in subdivision (d) of this section. The VIA shall address the following issues:

(1)the character and visual quality of the existing landscape;

(2)the visibility of the facility, including visibility of facility operational characteristics, such as wind turbine lighting, glare from solar panel arrays;

(3)the visibility of all above-ground interconnections and roadways to be constructed within the facility as determined by the viewshed analysis;

(4)the appearance of the facility upon completion, including building/structure size, architectural design, facade colors and texture, and site lighting;

(5)the proposed facility lighting (including lumens, location and direction of lights for facility site and/or task use, and safety including worker safety and tall structure marking requirements) and similar features;

(6)representative views (photographic overlays) of the facility, including relevant front, side and rear views, indicating approximate elevations;

(7)the nature and degree of visual change resulting from construction of the facility and above-ground interconnections;

(8)the nature and degree of visual change resulting from operation of the facility and above-ground interconnections;

(9)an analysis and description of related operational effects of the facility such as visible plumes, shading, glare, and shadow flicker; and

(10)a description of all visual resources that would be affected by the facility.

(b)The viewshed analysis component of the VIA shall be conducted as follows:

(1)Viewshed maps depicting areas of facility visibility within two miles of a solar facility and five miles of a wind facility, as well as any potential visibility from specific significant visual resources beyond the specified study area, shall be prepared and presented on a 1:24,000 scale recent edition topographic base map. A line of sight profile shall also be done for resources of statewide concern located within the VIA study area. The viewshed maps shall provide an indication of areas of potential visibility based on topography and vegetation, the highest elevation of facility structures and distance zone (foreground, midground and background areas). The potential screening effects of vegetation shall also be shown. Visually-sensitive sites, cultural and historical resources, representative viewpoints, photograph locations, and public vantage points within the viewshed study area shall be included on the map(s) or an overlay. An overlay indicating landscape similarity zones shall be included.

(2)The VIA shall include a description of the methodology used to develop the viewshed maps, including software, baseline information, and sources of data.

(3)The viewshed mapping shall be used to determine the potential visibility from viewpoints to be analyzed (as indicated in the following paragraph (4) of this subdivision) and locations of viewer groups in the vicinity of the facility, as determined pursuant to the pre-application meeting(s) held pursuant to section 900-1.3(a) of this Part.

These shall include recreational areas, residential and business locations, historic properties (listed or eligible for listing on the State or National Register of Historic Places), and travelers (interstate and other highway users).

(4)In developing the application, the applicant shall confer with municipal planning representatives, the office, and where appropriate, OPRHP and/or APA in its selection of important or representative viewpoints. Viewpoint selection is based upon the following criteria:

(i)representative or typical views from unobstructed or direct line-of-sight views;

(ii)significance of viewpoints, designated scenic resources, areas or features, which features typically include, but are not limited to: landmark landscapes; wild, scenic or recreational rivers administered respectively by either the NYSDEC or the APA pursuant to ECL article 15 or Department of Interior pursuant to 16 USC section 1271; forest preserve lands; scenic vistas specifically identified in the Adirondack Park State land master plan; conservation easement lands; scenic byways designated by the Federal or State governments; scenic districts and scenic roads, designated by the Commissioner of Environmental Conservation pursuant to ECL article 49; scenic areas of statewide significance; State parks; sites listed or eligible for listing on the National or State Registers of Historic Places; areas covered by scenic easements, public parks or recreation areas; locally designated historic or scenic districts and scenic overlooks; and high-use public areas;

(iii)level of viewer exposure (

i.e.

, frequency of viewers or relative numbers, including residential areas, or high-volume roadways);

(iv)proposed land uses; and

(v)assessment of visual impacts pursuant to the requirements of adopted local laws or ordinances.

(c)Visual contrast evaluation.

(1)Photographic simulations of the facility shall be prepared from the representative viewpoints to demonstrate the post-construction appearance of the facility. Where vegetation screening is relied on for facility mitigation, leaf-off and leaf-on simulation shall be provided.

(2)Additional revised simulations illustrating mitigation shall be prepared for those observation points for which mitigation is proposed in the application.

(3)Each set of existing and simulated views of the facility shall be compared and rated and the results of the VIA shall be summarized. Documentation of the steps followed in the rating and assessment methodology shall be provided including results of rating impact panels and a description of the qualifications of the individuals serving on the panels. Where visual impacts from the facility are identified, contrast minimization and mitigation measures shall be identified, and the extent to which they effectively minimize such impact shall be discussed.

(d)Visual impacts minimization and mitigation plan.

The visual impacts minimization and mitigation plan shall include proposed minimization and mitigation alternatives based on an assessment of mitigation strategies, including screening (landscaping), architectural design, visual offsets, relocation or rearranging facility components, reduction of facility component profiles, alternative technologies, facility color and design, lighting options for work areas and safety requirements, and lighting options for FAA aviation hazard lighting. The facility design shall incorporate the following measures for the visual impacts minimization and mitigation plan:

(1)advertisements, conspicuous lettering, or logos identifying the facility owner, turbine manufacturer, solar module manufacturer, or any other supplier entity, other than warning and safety signs, shall not be allowed;

(2)the electrical collection system shall be located underground, to the extent practicable. Structures shall only be constructed overhead for portions where necessary based on engineering, construction, or environmental constraints;

(3)electric collection and transmission facilities design shall specify use of either wood poles or steel pole structures; steel poles shall be self-weathering (such as corten or equivalent) or other surface finish in dark brown or green color, non-glare finish;

(4)non-specular conductors shall be used for any overhead portions of the transmission line and the electric collection system; and

(5)for wind facilities, wind turbines, towers and blades shall be Federal Aviation Administration (FAA) approved white or off-white colors to avoid the need for daytime aviation hazard lighting, unless otherwise mandated by FAA, and non-reflective finishes shall be used on wind turbines to minimize reflected glare.

(6)Shadow flicker for wind facilities.

Shadow flicker shall be limited to 30 hours per year at any non-participating residence, subject to verification using shadow prediction and operational controls at appropriate wind turbines. The visual impacts minimization and mitigation plan shall include:

(i)analysis of a full year of hourly potential and realistic receptor-specific predicted flicker based on sunshine probabilities, operational projections, and facility design;

(ii)a protocol for monitoring operational conditions and potential flicker exposure at the wind turbine locations identified in the updated analysis, based on meteorological conditions;

(iii)details of the shadow detection and prevention technology that will be adopted for real-time meteorological monitoring and operational control of turbines;

(iv)schedule and protocol for temporary turbine shutdowns during periods that produce flicker to meet required shadow flicker limits; and

(v)shielding or blocking measures (such as landscape plantings and window treatments) may also be implemented at receptor locations that exceed the 30-hour annual limit, with approval by the resident receptor.

(7)Glare for solar facilities.

Solar panels shall have anti-reflective coatings and the visual impacts minimization and mitigation plan shall include an analysis using Sandia National Laboratories Solar Glare Hazard Analysis Tool (SGHAT) methodology or equivalent, that solar glare exposure at any non-participating residence, airport or public roadway will be avoided or minimized, and will not result in complaints, impede traffic movements or create safety hazards.

(8)Planting plans which shall include the facility substation; energy storage structures; and the POI switchyard; and for components of solar generating facilities as appropriate to facility setting.

(9)A lighting plan(s), which shall address:

(i)security lighting needs at substation and switchyard sites, and any exterior equipment storage yards;

(ii)plan and profile figures to demonstrate the lighting area needs and proposed lighting arrangement and illumination levels to provide safe working conditions at the collection substation site, and any exterior equipment storage yards or other locations;

(iii)exterior lighting design shall be limited to lighting required for health, safety, security, emergencies and operational purposes and shall be specified to avoid off-site lighting effects as follows:

(a)using task lighting as appropriate to perform specific tasks; limiting the maximum total outdoor lighting output based on the lowest allowable OSHA limits; task lighting fixtures shall be designed to be placed at the lowest practical height and directed to the ground and/or work areas to avoid being cast skyward or over long distances, incorporate shields and/or louvers where practicable, and capable of manual or auto-shut off switch activation rather than motion detection;

(b)requiring full cutoff fixtures, with no drop-down optical elements (that can spread illumination and create glare) for permanent exterior lighting, consistent with OSHA requirements and adopted local laws or ordinances, including development standards for exterior industrial lighting, manufacturer’s cut sheets of all proposed lighting fixtures shall be provided; and

(c)for wind facilities, lighting shall be installed on turbines for aviation hazard marking as specified by FAA. The applicant shall file a Notice for a Marking and Lighting Study of Aircraft Detection Lighting System(s) (ADLS) and dimmable lighting options with the FAA/Department of Defense (DOD) seeking a written determination approving the use of ADLS or other dimmable lighting option at the Project. If FAA/DOD determine that ADLS or dimmable lighting options are not appropriate for the project, or if the applicant determines installation of ADLS or dimmable lighting options are not technically feasible, the applicant shall consider other means of minimizing lighting effects, such as use of low-intensity lighting, and synchronization of lighting activation with adjoining wind farms.

19 NYCRR 900-2.10 - Exhibit 9: Cultural resources

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Exhibit 9 shall contain:

(a)A study of the impacts of the construction and operation of the facility, interconnections and related facilities on archeological/cultural resources within the project impact area, including:

(1)a summary of the nature of the probable impact on any archeological/cultural resources identified, addressing how those impacts shall be avoided or minimized;

(2)if required pursuant to section 900-1.3(h) of this Part, a phase IA archeological/cultural resources study for the proposed facility;

(3)if required pursuant to section 900-1.3(h) of this Part, a phase IB field study;

(4)if required by the phase I study results, as determined pursuant to section 900-1.3(h) of this Part, a phase II site evaluation study to assess the boundaries, integrity and significance of identified cultural resources;

(5)an unanticipated discovery plan that shall identify the actions to be taken in the unexpected event that resources of cultural, historical, or archaeological importance are encountered during the excavation process. This plan shall include a provision for work stoppage upon the discovery of possible archaeological or human remains and be prepared by a professional archaeologist in accordance with the New York Archaeological Council (NYAC) standards.

(b)A study of the impacts on historic resources within the project impact area, including the results of field inspections, a review of the statewide inventory of historic property, and consultation with local historic preservation groups and federal/state-recognized Indian Nations to identify sites or structures listed or eligible for listing in the State or National Register of Historic Places within the PIA, including an analysis of potential impact on any standing structures which appear to be at least 50 years old and potentially eligible for listing in the State or National Register of Historic Places, based on an assessment by a qualified individual.

19 NYCRR 900-2.11 - Exhibit 10: Geology, seismology and soils

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19 NYCRR 900-2.12 - Exhibit 11: Terrestrial ecology

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Exhibit 11 shall contain:

(a)An identification and description of the type of plant communities present on the facility site, and adjacent properties within 100 feet of areas to be disturbed by construction, including the interconnections, based upon field observations and data collection.

(b)An analysis of the temporary and permanent impact of the construction and operation of the facility and the interconnections on the vegetation identified, including a mapped depiction of the vegetation areas showing the areas to be removed or disturbed.

(c)An identification and evaluation of avoidance measures or, where impacts are unavoidable, minimization measures, including the use of alternative technologies, regarding vegetation impacts identified.

(d)A list of the species of mammals, birds, amphibians, terrestrial invertebrates, and reptiles that are likely to occur based on ecological communities present at, and bird and bat migration routes through, the facility, supplemented as necessary by site surveys, site observations and publicly available sources.

(e)An analysis of the impact of the construction and operation of the facility and interconnections on wildlife, wildlife habitats, and wildlife travel corridors, other than a NYS threatened or endangered species or species of special concern (which will be addressed pursuant to section 900-2.13 of this Subpart).

(f)An identification and evaluation of avoidance measures or, where impacts are unavoidable, minimization measures, including the use of alternative technologies, regarding impacts to wildlife and wildlife habitat.

19 NYCRR 900-2.13 - Exhibit 12: NYS threatened or endangered species

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Exhibit 12 shall contain:

(a)A wildlife site characterization report prepared pursuant to section 900-1.3(g)(1) of this Part.

(b)Any reports detailing the results of pre-application survey(s).

(c)A copy of the office’s determination pursuant to section 900-1.3(g)(7) of this Part as to the existence of occupied habitat at the facility site.

(d)If the office determined that there is confirmed or presumed occupied habitat at the site, an identification and evaluation of avoidance and minimization measures incorporated into the facility design, as well as any unavoidable potential impacts to NYS threatened or endangered species or species of special concern. Adverse impacts shall be summarized by species impacted and include an assessment of the acreage and/or an estimate number of individual members of each such species affected.

(e)For a facility to be determined to have only

de minimis impacts to NYS threatened or endangered grassland birds or their habitat, the applicant shall submit a demonstration that the facility has been designed to meet one or more of the following criteria, as applicable:

(1)the facility has been designed such that the only impacts would be to occupied habitat identified based on records greater than five years old from the time of the wildlife site characterization report, but for which the applicant conducted appropriate surveys as approved by the office that demonstrate that the species is not present at the facility site; or

(2)construction of the facility within each mapped area of listed bird occupied habitat (based on the documented area of species’ use prior to addition of buffers) will only impact grasslands less than 25 acres in size and will not include a recent (

i.e.

, less than 5 years) confirmed nesting or roosting location; or

(3)the facility has been designed such that the only impacts would be to occupied habitat identified for NYS threatened or endangered species for which the NYSDEC has issued a notice of adoption of regulations delisting or downlisting to special concern.

(f)For a facility that would adversely impact any NYS threatened or endangered species or their habitat, a copy of a Net Conservation Benefit Plan prepared in compliance with section 900-6.4(o) of this Part.

19 NYCRR 900-2.14 - Exhibit 13: Water resources and aquatic ecology

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19 NYCRR 900-2.15 - Exhibit 14: Wetlands

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19 NYCRR 900-2.16 - Exhibit 15: Agricultural resources

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19 NYCRR 900-2.17 - Exhibit 16: Effect on transportation

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19 NYCRR 900-2.18 - Exhibit 17: Consistency with energy planning objectives

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Exhibit 17 shall contain:

(a)a statement demonstrating the degree of consistency of the construction and operation of the facility with New York State energy policies, including CLCPA targets and long range energy planning objectives and strategies contained in the most recent State Energy Plan at the time of filing the application, including consideration of the information required by subdivisions (b) through (g) of this section;

(b)a description of the impact the facility would have on reliability in the State;

(c)a description of the impact the facility would have on fuel diversity in the State;

(d)a description of the impact the facility would have on regional requirements for capacity;

(e)a description of the impact the facility would have on electric transmission constraints;

(f)an analysis of the comparative advantages and disadvantages of reasonable and available alternative locations or properties identified for construction of the facility; and

(g)a statement of the reasons why the facility will promote public health and welfare, including minimizing the public health and environmental impacts related to climate change.

19 NYCRR 900-2.19 - Exhibit 18: Socioeconomic effects

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Exhibit 18 shall contain:

(a)An estimate of the average construction work force, by discipline, for each quarter, during the period of construction; and an estimate of the peak construction employment level.

(b)An estimate of the annual construction payroll, by trade, for each year of construction and an estimate of annual direct non-payroll expenditures likely to be made in the host municipality(ies) (materials, services, rentals, and similar categories) during the period of construction.

(c)An estimate of the number of jobs and the on-site payroll, by discipline, during a typical year once the facility is in operation, and an estimate of other expenditures likely to be made in the host municipality(ies) during a typical year of operation.

(d)An estimate of incremental school district operating and infrastructure costs due to the construction and operation of the facility, this estimate to be made after consultation with the affected school districts.

(e)An estimate of incremental municipal, public authority, or utility operating and infrastructure costs that will be incurred for police, fire, emergency, water, sewer, solid waste disposal, highway maintenance and other municipal, public authority, or utility services during the construction and operation the facility (this estimate to be made after consultation with the affected municipalities, public authorities, and utilities).

(f)An identification of all jurisdictions (including benefit assessment districts and user fee jurisdictions) that levy real property taxes or benefit assessments or user fees upon the facility site, its improvements and appurtenances and any entity from which payments in lieu of taxes will or may be negotiated.

(g)For each jurisdiction, a description of the host community benefits to be provided, including an estimate of the incremental amount of annual taxes (and payments in lieu of taxes, benefit charges and user charges) it is projected would be levied against the post-construction facility site, its improvements and appurtenances, payments to be made pursuant to a host community agreement or other project agreed to with the host community.

(h)For each jurisdiction, a comparison of the fiscal costs to the jurisdiction that are expected to result from the construction and operation of the facility to the expected tax revenues (and payments in lieu of taxes, benefit charge revenues and user charge revenues) generated by the facility.

(i)An analysis of whether all contingency plans to be implemented in response to the occurrence of a fire emergency or a hazardous substance incident can be fulfilled by existing local emergency response capacity, and in that regard identifying any specific equipment or training deficiencies in local emergency response capacity (this analysis to be made after consultation with the affected local emergency response organizations).

(j)A detailed statement indicating how the proposed facility and interconnections are consistent with each of the State smart growth public infrastructure criteria specified in ECL section 6-0107, or why compliance would be impracticable.

(k)A statement as to the host community benefit(s) to be provided by the applicant.

19 NYCRR 900-2.20 - Exhibit 19: Environmental justice

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Exhibit 19 shall contain:

(a)An identification and evaluation of significant and adverse disproportionate environmental impacts of the facility on an environmental justice (EJ) area, if any, resulting from its construction and operation, including any studies which were used in the evaluation and identifying the author and dates thereof. The evaluation shall be conducted consistent with the applicable requirements of 6 NYCRR Part 487.10. The impact study area for purposes of EJ analysis shall be:

(1)at a minimum, be within a one-half mile radius around the proposed facility; or

(2)a greater radius based on site-specific factors, including nature, scope and magnitude of the environmental impacts, the projected range of those impacts on various environmental resources, and the geography of the area surrounding the location of the proposed facility.

(b)Separately identified to the fullest extent possible and with sufficient detail, the nature and magnitude of all significant and adverse disproportionate environmental impacts of the facility resulting from its construction and operation required to be identified pursuant to subdivision (a) of this section, a description of:

(1)the specific measures the applicant proposes to take to avoid such impacts to the maximum extent practicable for the duration of the siting permit, including a description of the manner in which such impact avoidance measures will be verified and a statement of the cost of such measures;

(2)if such impacts cannot be avoided, measures the applicant proposes to take to minimize such impacts to the maximum extent practicable for the duration that the siting permit is granted, including a description of the manner in which such impact mitigation measures will be verified and a statement of the cost of such measures; and

(3)if such impacts cannot be avoided, the specific measures the applicant proposes to take to offset such impacts to the maximum extent practicable for the duration that the siting permit is in effect, including a description of the manner in which such impact offset measures will be verified and a statement of the cost of such measures.

(c)A qualitative and, where possible, quantitative analysis demonstrating that the scope of avoidance, mitigation and offset measures is appropriate given the scope of significant and adverse disproportionate environmental impacts of the facility resulting from its construction and operation.

(d)A summary of the applicant’s final EJ analysis, including the evaluation of any significant and adverse disproportionate environmental impacts in the impact study area. The statement shall provide a detailed explanation of the rationale for any conclusions made related to EJ issues and identify the individual studies and investigations relied upon in conducting each element of the EJ analysis. The applicant shall articulate the reasons why the proposed measures to avoid, minimize, or offset any disproportionate environmental impacts of the proposed facility will, to the maximum extent practicable, avoid, minimize or offset any identified significant and adverse disproportionate impacts, including a description of the manner in which such measures can be verified and a statement of the cost of such measures.

19 NYCRR 900-2.21 - Exhibit 20: Effect on communications

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19 NYCRR 900-2.22 - Exhibit 21: Electric system effects and interconnection

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19 NYCRR 900-2.23 - Exhibit 22: Electric and magnetic fields

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19 NYCRR 900-2.24 - Exhibit 23: Site Restoration and decommissioning

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Exhibit 23 shall contain:

(a)A decommissioning and site restoration plan for site restoration in the event the facility cannot be completed or after end of the useful life of the facility (to be identified) which shall, at a minimum, address the following:

(1)safety and the removal of hazardous conditions;

(2)environmental impacts;

(3)aesthetics;

(4)recycling;

(5)potential future uses for the site;

(6)funding; and

(7)schedule.

(b)For facilities to be located on lands owned by others, a description of all site restoration, decommissioning and security agreements between the applicant and landowner, municipality, or other entity, including provisions for turbines, foundations, and electrical collection, transmission, and interconnection facilities.

(c)A gross and net decommissioning and site restoration estimate, the latter including projected salvage value (including reference to the salvage value data source), with line items (and associated dollar amounts) for decommissioning of all facility components removed four feet below grade in agricultural land and three feet below grade in non-agricultural land and removal and restoration of access road locations, where appropriate, based on the facility layout. The gross cost estimates shall include a 15 percent contingency cost based on the overall decommissioning and site restoration estimate. The net amount shall be allocated between cities, towns, or villages based on the estimated cost associated with the removal and restoration of the facilities located in each city, town, or village.

19 NYCRR 900-2.25 - Exhibit 24: Local laws and ordinances

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Exhibit 24 shall contain:

(a)A list of all local ordinances, laws, resolutions, regulations, standards and other requirements applicable to the construction or operation of the facility, which includes interconnection electric transmission lines, that are of a substantive nature, together with a statement that the location of the facility as proposed conforms to all such local substantive requirements, except any that the applicant requests that the office elect not to apply. Copies of zoning, flood plain and similar maps, tables and/or documents shall be included in the exhibit when such are referenced in such local substantive requirements.

(b)A list of all local ordinances, laws, resolutions, regulations, standards and other requirements applicable to the interconnection to or use of water, sewer, and telecommunication lines in public rights of way that are of a substantive nature, together with a statement that the location of the facility as proposed conforms to all such local substantive requirements, except any that the applicant requests that the office elect not to apply.

(c)A list of all local substantive requirements identified pursuant to subdivision (a) or (b) of this section for which the applicant requests that the office elect to not apply to the facility. Pursuant to Executive Law section 94-c, the office may elect to not apply, in whole or in part, any local law or ordinance which would otherwise be applicable if it makes a finding that, as applied to the proposed facility, it is unreasonably burdensome in view of the CLCPA targets and the environmental benefits of the proposed facility. For each local substantive requirement identified by the applicant, a statement justifying the request shall be provided. The statement of justification shall show with facts and analysis the degree of burden caused by the requirement, why the burden should not reasonably be borne by the applicant, that the request cannot reasonably be obviated by design changes to the facility, that the request is the minimum necessary, and that the adverse impacts of granting the request shall be mitigated to the maximum extent practicable consistent with applicable requirements set forth in this Part. The statement shall include a demonstration:

(1)for requests grounded in the existing technology, that there are technological limitations (including governmentally imposed technological limitations) related to necessary facility component bulk, height, process or materials that make compliance by the applicant technically impossible, impractical or otherwise unreasonable;

(2)for requests grounded in factors of costs or economics (likely involving economic modeling), that the costs to consumers associated with applying the identified local substantive requirements would outweigh the benefits of applying such provisions; and

(3)for requests grounded in the needs of consumers, that the needs of consumers for the facility outweigh the impacts on the community that would result from refusal to apply the identified local substantive requirements.

(d)A summary table of all local substantive requirements identified pursuant to subdivisions (a) and (b) of this section in two columns listing the provisions in the first column, and a discussion or other showing demonstrating the degree of compliance with the substantive provisions in the second column.

(e)Identification of the city, town, village, county, or State agency qualified by the Secretary of State that shall review and approve the building plans, inspect the construction work, and certify compliance with the New York State Uniform Fire Prevention and Building Code, the Energy Conservation Construction Code of New York State, and the substantive provisions of any applicable local electrical, plumbing or building code. If no other arrangement can be made, the Department of State should be identified. The statement of identification shall include a description of the preliminary arrangement made between the applicant and the entity that shall perform the review, approval, inspection, and compliance certification, including arrangements made to pay for the costs thereof including the costs for any consultant services necessary due to the complex nature of such facilities. If the applicable city, town or village has adopted and incorporated the New York State Uniform Fire Prevention and Building Code for administration into its local electric, plumbing and building codes, the applicant may request that the office expressly authorize the exercise of the electric, plumbing and building permit application, inspection and certification processes by such city, town or village.

(f)An identification of the zoning designation or classification of all lands constituting the facility site and a statement of the language in the zoning ordinance or local law by which it is indicated that the facility is a permitted use at the facility site. If the language of the zoning ordinance or local law indicates that the facility is a permitted use at the facility site subject to the grant of a special exception, a statement of the criteria in the zoning ordinance or local law by which qualification for such a special exception is to be determined.

19 NYCRR 900-2.26 - Exhibit 25: Other permits and approvals

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Exhibit 25 shall contain:

(a)A list of any Federal or federally-delegated, or Federal or State recognized Indian Nation, permit, consent, approval or license that will be required for the construction or operation of the facility, which shall specify the date on which an application for any such approval was made or the estimated date on which it will be made. The applicant shall notify the office of any significant change in the status of each such application.

(b)A statement as to whether the applicant knows of others who have any pending applications or filings for any Federal or federally-delegated, Federal or State recognized Indian Nation, State or local permit, consent, approval or license which concerns the facility. If any such applications or filings are identified, the applicant shall indicate whether the granting of any such application or filing will have any effect on the grant or denial of a siting permit, and whether the grant or denial of a siting permit will have any effect upon the grant or denial of any such other application or filing. The applicant shall notify the office of any significant change in the status of each such application or filing.

19 NYCRR 900-3.1 - Transfer applications for opt-in renewable energy facilities

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(a)Applicants for opt-in renewable energy facilities shall provide the following:

(1)written notice to ORES at least 14 days in advance of filing;

(2)a copy of the written notice to the lead agency conducting the environmental impact review pursuant to the New York State Environmental Quality Review Act advising of the applicant’s election to be subject to Executive Law section 94-c;

(3)a completed transfer of application form;

(4)the exhibits set forth in Subpart 900-2 of this Part;

(5)copies of documentation identifying those matters and issues that have been identified and resolved in the alternate permitting process;

(6)any additional information that may be required in order to enable the office to make the findings and determinations required by law;

(7)the fee to be deposited in the local agency account in an amount equal to $1,000 for each 1,000 kilowatts of capacity, which may be adjusted from time to time by the office to account for inflation; and

(8)the ORES fee to recover the costs of reviewing and processing an application in an amount equal to $1,000 for each 1,000 kilowatts of capacity.

(b)For any matters and issues that have been identified and resolved in the alternate permitting proceeding, the siting permit will reflect such resolution and those provisions will not be the subject of any adjudicatory hearing conducted pursuant to Subpart 900-8 of this Part.

(c)The applicant shall comply with requirements for filing, service and publication of the application pursuant to section 900-1.6 of this Part.

19 NYCRR 900-3.2 - Transfer applications for pending article 10 facilities

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19 NYCRR 900-4.1 - Office of renewable energy siting action on applications

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(a)Applications shall be submitted to the office pursuant to section 900-1.6(a) of this Part for initiation of review and a determination of completeness. It is the responsibility of the applicant to ensure the office is notified of all address changes.

(b)The office reserves the right in its sole discretion to elect to inspect the site(s) and during an inspection, among other things, measurements may be made, physical characteristics of the site may be analyzed, including without limitation soils and vegetation, and photographs may be taken. Ordinarily, such site visit shall occur between 7:00 a.m. and 8:00 p.m. Monday through Friday. An applicant’s failure to allow access to the site can be grounds for, and may result in, a notice of incomplete application or statement of intent to deny.

(c)The office shall make its determination of completeness or incompleteness on or before 60 days of receipt of the application and provide notice of such determination to the applicant via electronic mail and regular mail.

(d)If the application is determined to be incomplete, the notice shall include a listing of all identified areas of incompleteness and a description of the specific deficiencies.

(e)Applications shall remain incomplete until all requested items are received by the office. A partial submission of the requested material shall not change the incomplete status. The office shall notify the applicant of the application status within 60 days of receipt of all requested material.

(f)Failure of the applicant to respond in writing to the office’s notice of incomplete application may result in the application being deemed withdrawn without prejudice pursuant to the following procedures:

(1)if the applicant fails to respond to a notice of incomplete application within three months, the office may send a follow-up notice of incomplete application requesting, by a reasonable date to be identified by the office, the necessary items for a complete application; and

(2)if the applicant fails to respond to such follow-up notice of incomplete application by the date identified by the office, the office may notify the applicant that the application is deemed withdrawn without prejudice.

(g)If the application is determined to be complete by the office, a notice of complete application shall be prepared, posted on the office’s website and served upon:

(1)the applicant, as directed in subdivision (c) of this section;

(2)the chief executive officer of each municipality in which any portion of the such proposed facility is to be located, via regular mail; and

(3)any person who has previously expressed in writing an interest in receiving such notification, via regular mail.

(h)If the office fails to provide notice of its determination of completeness or incompleteness within the time period set forth in subdivision (c) of this section, the application shall be deemed complete. Nothing in this section waives any applicable statutory requirements to obtain other permits that may be required, including, but not limited to, Federal and federally-delegated permits, or precludes the office from requesting additional information as set forth in this Part.

(i)Time frames and deadlines set forth in this Part are calculated in accordance with the General Construction Law, article 2, section 20, where day one is the day after a pertinent time-sensitive event, such as date of receipt or day of publication. Unless indicated otherwise, days are calculated as calendar days.

(j)Unless otherwise specified in this Part, the applicant and office may extend the time periods for a completeness determination or final determination on the application by mutual consent, provided that the time frame for final determination may only be extended for an additional 30 days.

19 NYCRR 900-5.1 - Local agency account

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19 NYCRR 900-6.1 - Facility authorization

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(a)Compliance.

The permittee shall implement any impact avoidance, minimization and/or mitigation measures identified in the exhibits, compliance filings and/or contained in a specific plan required under this Part 900, as approved by the office. If there is any discrepancy between an exhibit or compliance filing and a permit condition, the permittee shall comply with the permit condition and notify the office immediately for resolution.

(b)Property rights.

Issuance of a siting permit does not convey any rights or interests in public or private property. The permittee shall be responsible for obtaining all real property, rights-of-way (ROW), access rights and other interests or licenses in real property required for the construction and operation of the facility.

(c)Eminent domain.

Issuance of a siting permit to a permittee that is an entity in the nature of a merchant generator and not in the nature of a fully regulated public utility company with an obligation to serve customers does not constitute a finding of public need for any particular parcel of land such that a condemner would be entitled to an exemption from the provisions of article 2 of the New York State Eminent Domain Procedure Law (EDPL) pursuant to section 206 of the EDPL.

(d)Other permits and approvals.

Prior to the permittee’s commencement of construction, the permittee shall be responsible for obtaining all necessary federal and federally-delegated permits and any other approvals that may be required for the facility and which the office is not empowered to provide or has expressly authorized. In addition, the office expressly authorizes:

(1)the PSC to require approvals, consents, permits, other conditions for the construction or operation of the facility under PSL sections 68, 69, 70, and article VII, as applicable, with the understanding that the PSC will not duplicate any issue already addressed by the office and will instead only act on its police power functions related to the entity as described in the body of this siting permit;

(2)the NYSDOT to administer permits associated with oversize/overweight vehicles and deliveries, highway work permits, and associated use and occupancy approvals as needed to construct and operate the facility; and

(3)the pertinent agency to implement the New York State Uniform Fire Prevention and Building Code.

(e)Water quality certification.

Prior to commencing construction, the permittee shall request and obtain from the office a water quality certification pursuant to section 401 of the Clean Water Act, if required.

(f)Host community benefits.

The permittee shall provide host community benefits, such as payments in lieu of taxes (PILOTs), other payments pursuant to a host community agreement or other project(s) agreed to by the host community.

(g)Notice to proceed with construction.

The permittee and its contractors shall not commence construction until a “Notice to Proceed with Construction” has been issued by the office. Such notice will be issued promptly after all applicable pre-construction compliance filings have been filed by the permittee and approved by the office. The Notice will not be unreasonably withheld. The office may issue a conditional notice to proceed with site preparation for the removal of trees, stumps, shrubs and vegetation from the facility site as indicated on office-approved site clearing plans to clear the facility site for construction, as well as setting up and staging of the laydown yard(s), including bringing in equipment, prior to the submission of all pre-construction compliance filings.

(h)Expiration.

The siting permit will automatically expire if the facility does not achieve commencement of commercial operation within seven years from the date of issuance.

(i)Partial cancellation.

If the permittee decides not to commence construction of any portion of the facility, it shall so notify the office promptly after making such decision. Such decisions shall not require a modification to the siting permit unless the office determines that such change constitutes a major modification to the siting permit pursuant to section 900-11.1 of this Part.

(j)Deadline extensions.

The office may extend any deadlines established by the siting permit for good cause shown. Any request for an extension shall be in writing, include a justification for the extension, and be filed at least 14 business days prior to the applicable deadline.

(k)Office authority.

The permittee shall regard NYSDPS staff, authorized pursuant to PSL section 66(8), as the office’s representatives in the field. In the event of any emergency resulting from the specific construction or maintenance activities that violate, or may violate, the terms of the siting permit, compliance filings or any other supplemental filings, such NYSDPS staff may issue a stop work order for that location or activity pursuant to section 900-12.1 of this Part.

19 NYCRR 900-6.2 - Notifications

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19 NYCRR 900-6.3 - General requirements

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(a)Local laws.

The permittee shall construct and operate the facility in accordance with the substantive provisions of the applicable local laws as identified in section 900-2.25 of this Part, except for those provisions of local laws that the office determined to be unreasonably burdensome, as stated in the siting permit.

(b)Federal requirements.

The permittee shall construct and operate the facility in a manner that conforms to all applicable Federal and federally-delegated permits identified in section 900-2.26 of this Part. If relevant facility plans require modifications due to conditions of Federal permits, the final design drawings and all applicable compliance filings shall be revised accordingly and submitted for review and approval pursuant to section 900-11.1 of this Part.

(c)Traffic coordination.

The permittee shall coordinate with State, county, and local highway agencies to respond to and apply applicable traffic control measures to any locations that may experience any traffic flow or capacity issues.

19 NYCRR 900-6.4 - Facility construction and maintenance

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(a)Construction hours.

Construction and routine maintenance activities on the facility shall be limited to 7 a.m. to 8 p.m. Monday through Saturday and 8 a.m. to 8 p.m. on Sunday and national holidays, with the exception of construction and delivery activities, which may occur during extended hours beyond this schedule on an as-needed basis.

(1)Construction work hour limits apply to facility construction, maintenance, and to construction-related activities, including maintenance and repairs of construction equipment at outdoor locations, large vehicles idling for extended periods at roadside locations, and related disturbances. This condition shall not apply to vehicles used for transporting construction or maintenance workers, small equipment, and tools used at the facility site for construction or maintenance activities.

(2)If, due to safety or continuous operation requirements, construction activities are required to occur beyond the allowable work hours, the permittee shall notify the NYSDPS, the office, affected landowners and the municipalities. Such notice shall be given at least 24 hours in advance, unless such construction activities are required to address emergency situations threatening personal injury, property, or severe adverse environmental impact that arise less than 24 hours in advance. In such cases, as much advance notice as is practical shall be provided.

(b)Environmental and agricultural monitoring.

(1)The permittee shall hire an independent, third-party environmental monitor to oversee compliance with environmental commitments and siting permit requirements. The environmental monitor shall perform regular site inspections of construction work sites and, in consultation with the NYSDPS, issue regular reporting and compliance audits.

(2)The environmental monitor shall have stop work authority over all aspects of the facility. Any stop work orders shall be limited to affected areas of the facility. Copies of the reporting and compliance audits shall be provided to the host town(s) upon request.

(3)The permittee shall identify and provide qualifications and contact information for the independent, third-party environmental monitor to the NYSDPS, with a copy to the office.

(4)If the environmental monitor is not qualified, the permittee shall also retain an independent, third-party agriculture-specific environmental monitor as required in subdivision (s) of this Subpart.

(5)The permittee shall ensure that its environmental monitor and agricultural monitor are equipped with sufficient access to documentation, transportation, and communication equipment to effectively monitor the permittee’s contractor’s compliance with the provisions of the siting permit with respect to such permittee’s facility components and to applicable sections of the Public Service Law, Executive Law, Environmental Conservation Law, and Clean Water Act section 401 Water Quality Certification.

(c)Pre-construction meeting.

At least 14 days before the commencement of construction, the permittee shall hold a pre-construction meeting with staff of the office, NYSDPS, NYSDEC, NYSAGM, NYSDOT, municipal supervisors/mayors and highway departments, and county highway departments.

The balance of plant (BOP) construction contractor, the agricultural monitor and environmental monitor shall be required to attend the pre-construction meeting.

(1)An agenda, the location, and an attendee list shall be agreed upon between staff of the office and the NYSDPS and the permittee and distributed to the attendee list at least one week prior to the meeting.

(2)Maps showing designated travel routes, construction worker parking and access road locations and a general facility schedule shall be distributed to the attendee list at least one week prior to the meeting.

(3)The permittee shall supply draft minutes from this meeting to the attendee list for corrections or comments, and thereafter the permittee shall issue the finalized meeting minutes.

(4)If, for any reason, the BOP contractor cannot finish the construction of the facility, and one or more new BOP contractors are needed, there shall be another pre-construction meeting with the same format as outlined in this section.

(d)Construction reporting and inspections.

During facility construction, the permittee shall report construction status and support inspections as follows:

(1)Every two weeks, the permittee shall provide NYSDPS and office staff, and the host municipalities with a report summarizing the status of construction activities, and the schedule and locations of construction activities for the next two weeks.

(2)Prior to entry onto the facility site for on-site inspections, the permittee shall conduct a tailgate meeting to communicate required safety procedures and worksite hazards to site inspectors.

(3)The permittee shall accommodate reviews of any of the following during a monthly inspection and at other times as may be determined by NYSDPS staff:

(i)the status of compliance with siting permit conditions;

(ii)field reviews of the facility site;

(iii)actual or planned resolutions of complaints;

(iv)significant comments, concerns, or suggestions made by the public, municipalities, or other agencies and indicate how the permittee has responded to the public, local governments, or other agencies;

(v)the status of the facility in relation to the overall schedule established prior to the commencement of construction; and

(vi)other items the permittee, NYSDPS staff, or office staff consider appropriate.

(4)After every monthly inspection, the permittee shall provide the municipalities and agencies involved in the inspection with a written record of the results of the inspection, including resolution of issues and additional measures to be taken.

(e)Flagging.

At least two weeks before tree clearing or ground disturbing activities, the permittee shall stake or flag the planned limits of disturbance (LOD), the boundaries of any delineated NYS-regulated wetlands, waterbodies or streams in the LOD (as identified in the delineations prepared pursuant to sections 900-1.3[e] and [f] of this Part), and any known archeological sites identified in the approved cultural resources avoidance, minimization and mitigation plan required in section 900-10.2(g) of this Part, all on or off ROW access roads, limits of clearing and other areas needed for construction, including, but not limited to, turbine or solar array work areas, proposed infiltration areas for post-construction stormwater management, and laydown and storage areas. In addition, archeological sites shall be surrounded with construction fencing and a sign stating restricted access.

(f)Dig safely NY.

Prior to the commencement of construction, the permittee shall become a member of dig safely New York.

The permittee shall require all contractors, excavators, and operators associated with its facilities to comply with the requirements of the PSC’s regulations regarding the protection of underground facilities at 16 NYCRR Part 753.

(g)Natural gas pipeline cathodic protection.

The permittee shall contact all pipeline operators within the facility site and land owners, if necessary, on which facility components are to be located or whose property lines are within the zone of safe siting clearance, if any, and shall reach an agreement with each operator to provide that the facility’s collection and interconnection systems will not damage any identified pipeline’s cathodic protection system or produce damage to the pipeline, either with fault current or from a direct strike of lightning to the collection and interconnection systems, specifically addressing 16 NYCRR section 255.467 (external corrosion control; electrical isolation).

(h)Pole numbering.

The permittee shall comply with all requirements of the PSC’s regulations regarding identification and numbering of above ground utility poles at 16 NYCRR Part 217.

(i)Fencing.

All mechanical equipment, including any structure for storage of batteries, shall be enclosed by fencing of a minimum height of seven feet with a self-locking gate to prevent unauthorized access.

(j)Air emissions.

To minimize air emissions during construction, the permittee shall:

(1)prohibit contractors from leaving generators idling when electricity is not needed and from leaving diesel engines idling when equipment is not actively being used;

(2)implement dust control procedures to minimize the amount of dust generated by construction activities in a manner consistent with the standards and specifications for dust control, as outlined in the New York State

Standards and Specifications for Erosion and Sediment Control (see section 900-15.1[i][1][i] of this Part);

(3)Use construction equipment powered by electric motors where feasible, or by ultra-low sulfur diesel; and

(4)dispose or reuse cleared vegetation in such a way that that minimizes greenhouse gas emissions (

e.g.

, lumber production or composting).

(k)Construction noise.

To minimize noise impacts during construction, the permittee shall:

(1)maintain functioning mufflers on all transportation and construction machinery;

(2)respond to noise and vibration complaints according to the complaint resolution protocol approved by the office; and

(3)comply with all substantive provisions of all local laws regulating construction noise unless they are waived.

(l)Visual mitigation

(1)Wind facilities. The permittee shall implement the approved visual impacts minimization and mitigation plan required in section 900-2.9 of this Part, including the following:

(i)adoption of visual design features requirements;

(ii)visual contrast minimization and mitigation measures;

(iii)operational effects minimization measures, including shadow flicker minimization mitigation and other measures necessary to achieve a maximum of 30 hours annually at any non-participating residential receptor, subject to verification using shadow prediction and operational controls at appropriate wind turbines;

(iv)lighting plan; and

(v)screen planting plans.

(2)Solar facilities. The permittee shall implement the approved visual impacts minimization and mitigation plan as required in section 900-2.9 of this Part, including the following:

(i)visual contrast minimization and mitigation measures;

(ii)lighting plan;

(iii)solar glare mitigation requirements; and

(iv)screen planting plans.

(3)Screen planting plans. The permittee shall retain a qualified landscape architect, arborist, or ecologist to inspect the screen plantings for two years following installation to identify any plant material that did not survive, appears unhealthy, and/or otherwise needs to be replaced. The permittee shall remove and replace plantings that fail in materials, workmanship or growth within two years following the completion of installing the plantings.

(m)General environmental requirements

(1)Limits of disturbance (LOD). Construction shall not directly disturb areas outside the construction limits shown on the design drawings.

(2)Blasting. Blasting shall be designed and controlled to meet the limits for ground vibration set forth in United States Bureau of Mines Report of Investigation 8507 Figure B-1 (see section 900-15.1[k][1][i] of this Part) and air overpressure shall be under the limits set forth in the conclusion section in United States Bureau of Mines Report of Investigation 8485 (USBM RI 8507 and USBM RI 8485 (see section 900-15.1[k][1][ii] of this Part) to protect structures from damage.

(3)Karst. Blasting operations in locations where geotechnical investigations confirm the presence of subsurface karst features shall be limited or performed under specific procedures recommended for those locations by a geotechnical engineer licensed to practice in the State of New York.

(4)E&S materials. Permanent erosion control fabric or netting used to stabilize soils prior to establishment of vegetative cover or other permanent measures shall be 100 percent biodegradable natural product, excluding silt fence. Use of hay for erosion control or other construction-related purposes is prohibited to minimize the risk of introduction of invasive plant species.

(5)Spill kits. All construction vehicles and equipment shall be equipped with a spill kit. All equipment shall be inspected daily for leaks of petroleum, other fluids, or contaminants; equipment may only enter a stream channel if found to be free of any leakage. Any leaks shall be stopped and cleaned up immediately. Spillage of fuels, waste oils, other petroleum products or hazardous materials shall be reported to the NYSDEC’s spill hotline within two hours, in accordance with the NYSDEC

Spill Reporting and Initial Notification Requirements Technical Field Guidance (see section 900-15.1[i][1][iii] of this Part). The office and the NYSDPS shall also be notified of all reported spills in a timely manner

(6)Construction debris. Any debris or excess construction materials shall be removed to a facility duly authorized to receive such material. No burying of construction debris or excess construction materials is allowed.

(7)Clearing areas. Tree and vegetation clearing shall be limited to the minimum necessary for facility construction and operation, and as detailed on final construction plans.

(8)Clearing methods. When conducting clearing, the permittee shall:

(i)comply with the provisions of 6 NYCRR Part 192, Forest Insect and Disease Control, and ECL section 9-1303 and any quarantine orders issued thereunder;

(ii)not create a maximum wood chip depth greater than three inches, except for chip roads (if applicable), nor store or dispose wood chips in wetlands, within stream banks, delineated floodways, or active agricultural fields;

(iii)not dispose of vegetation or slash by burning anywhere or burying within a wetland or adjacent area; and

(iv)coordinate with landowners to salvage merchantable logs and fuel wood.

Where merchantable logs and fuel wood will not be removed from the facility site during clearing activities, final construction plans shall indicate locations of stockpiles to be established for removal from site or future landowner resource recovery.

(9)Invasive insects. To control the spread of invasive insects, the permittee shall provide training for clearing and construction crews to identify the Asian longhorn beetle and the emerald ash borer and other invasive insects of concern as a potential problem at the facility site. If these insects are found, they shall be reported to the NYSDEC as soon as practicable.

(n)Water supply protection

(1)For wind facilities:

(i)No wind turbine shall be located within 100 feet of an existing, active water supply well or water supply intake.

(ii)Blasting shall be prohibited within 500 feet of any known existing, active water supply well or water supply intake on a non-participating property.

(iii)The permittee shall engage a qualified third party to perform pre- and post-construction testing of the potability of water wells within the below specified distances of construction disturbance before commencement of construction and after completion of construction to ensure the wells are not impacted, provided the permittee is granted access by the property owner:

(a)collection lines or access roads within 100 feet of an existing, active water supply well on a non-participating property;

(b)blasting within 1,000 feet of an existing, active water supply well on a non-participating property; and

(c)horizontal directional drilling (HDD) operations within 500 feet of an existing, active water supply well on a non-participating property.

(iv)Should the third-party testing, as required by subparagraph (iii) of this paragraph, conclude that the water supplied by an existing, active water supply well met federal (see section 900-15.1[j][1][i] of this Part) and state standards for potable water (see 10 NYCRR Part 75, Appendix 75-c) prior to construction, but failed to meet such standards after construction as a result of facility activities, the permittee shall cause a new water well to be constructed, in consultation with the property owner, at least 100 feet from collection lines and access roads, and at least 500 feet from wind turbines, as practicable given siting constraints and landowner preferences. The results of such tests and reports shall be made available to the relevant municipalities upon request.

(2)For solar facilities:

(i)Pier and post driving activities, except for fence and utility poles, shall be prohibited within 100 feet of any existing, active drinking water supply well; use of earth screws is permitted.

(ii)If required, blasting shall be prohibited within 500 feet of any known existing, active water supply well or water supply intake on a non-participating property.

(iii)The permittee shall engage a qualified third party to perform pre- and post-construction testing of the potability of water wells within the below specified distances of construction disturbance before commencement of civil construction and after completion of construction to ensure the wells are not impacted, provided the permittee is granted access by the property owner:

(a)collection lines or access roads within 100 feet of an existing, active water supply well on a non-participating property;

(b)blasting within 1,000 feet of an existing, active water supply well on a non-participating property;

(c)pier or post installations within 200 feet of an existing, active water supply well on a non-participating property; and

(d)HDD operations within 500 feet of an existing, active water supply well on a non-participating property.

(iv)Should the third-party testing conclude that the water supplied by an existing, active water supply well met Federal (see section 900-15.1[j][1][i] of this Part) and State standards for potable water (see 10 NYCRR Part 75, Appendix 75-c) prior to construction, but failed to meet such standards post construction as a result of facility activities, the permittee shall cause a new water well to be constructed, in consultation with the property owner, at least 100 feet from collection lines and access roads, and at least 200 feet from all other facility components. The results of such tests and reports shall be made available to the relevant municipalities upon request.

(o)Threatened and endangered species.

(1)For facilities that would impact NYS threatened or endangered species other than NYS threatened or endangered grassland birds or their habitat, the permittee shall implement an approved net conservation benefit plan (NCBP) that shall include the following:

(i)a demonstration that the NCBP results in a positive benefit on each of the affected species;

(ii)detailed explanation of the net conservation benefit to the species based on the actual location and type of minimization measures to be taken for each of the affected species;

(iii)full source information supporting a determination as to the net conservation benefit for each of the affected species;

(iv)a consideration of potential minimization and mitigation measures for each of the affected species;

(v)a consideration of potential sites for mitigation measures for each of the affected species;

(vi)the identification and detailed description of the mitigation actions that will be undertaken by the permittee to achieve a net conservation benefit to the affected species, including, if applicable, payment of a required mitigation fee into the endangered and threatened species mitigation fund established pursuant to section 99(hh) of the New York State Finance Law; and

(vii)to the extent that physical mitigation will be performed, a letter or other indication of the permittee’s financial and technical capability and commitment to fund and execute such management, maintenance and monitoring for the life of the facility/term of the siting permit.

(2)For facilities determined pursuant to the procedures set forth in section 900-2.13(e)(2) of this Part to have

de minimis impacts to NYS threatened or endangered grassland birds:

(i)If an active nest is identified within the facility site prior to or during construction, and the facility results in adverse impacts to the nest or grasslands 25 acres or more in size that were previously (during pre-application) or newly (prior to or during construction) determined to be occupied habitat, then the permittee shall coordinate with the NYSDPS and the office to adjust the limits of disturbance and/or adjust the construction schedule to avoid work in the area until nesting has been completed or the permittee shall pay into the endangered and threatened species mitigation bank fund the required mitigation fee commensurate with the actual acreage taken.

(3)For facilities that will have more than a

de minimis impact on NYS threatened or endangered grassland birds, the permittee shall implement the following as part of the NCBP:

(i)The permittee shall implement environmental monitoring immediately prior to and during construction in the occupied habitat to search for NYS threatened or endangered species occurrence based on the species’ seasonal windows for presence.

(ii)If active nests of the NYS threatened or endangered species are found within the occupied habitat, then the permittee shall coordinate with the NYSDPS and the office to adjust the limits of disturbance and/or adjust the construction schedule to avoid work in the area until nesting has been completed.

(iii)To avoid direct impacts to NYS threatened or endangered grassland bird species, the following work windows apply for all ground disturbance and construction-related activities, including restoration and equipment/component staging, storage, and transportation, within occupied habitat:

(a)in NYS threatened or endangered grassland bird occupied breeding habitat, work shall be conducted only between August 16th and April 22nd;

(b)in NYS threatened or endangered grassland bird occupied wintering habitat, work shall be conducted only between April 1st and November 14th;

(c)in areas of the facility where both breeding and wintering occupied habitat occurs, work shall be conducted only between August 16th and November 14th, and between April 1st and 22nd.

(iv)If fields within identified occupied breeding habitat are planted with row crops (

e.g.

, corn, beans, or vegetables) in the farming season prior to the commencement of facility construction and such fields were historically used for row crops during at least one of the prior five years, these fields will not be subject to the construction timing restrictions set forth in clauses (iii)( a ) and ( c ) of this paragraph.

(v)If the permittee has identified construction activities that must occur between November 15th and March 31st in identified NYS threatened or endangered grassland bird occupied wintering habitat, or between April 23rd and August 15th in identified NYS threatened or endangered grassland bird occupied breeding habitat outside of row crop areas described above, the occupied habitat area(s) proposed for active construction shall be assessed by an on-site environmental monitor or biologist who shall conduct surveys for NYS threatened or endangered grassland bird species. The surveys shall occur weekly until construction activities have been completed in the occupied habitat area, unless otherwise agreed to by the office. If no NYS threatened or endangered grassland bird species are detected during the survey, the area shall be considered clear for seven days, when another survey shall be performed. If NYS threatened or endangered grassland bird species are detected, the permittee shall comply with paragraph (o)(7) of this subdivision.

(vi)All temporary disturbance or modification of established grassland vegetation communities that occurs as a result of facility construction, restoration, or maintenance activities shall be restored utilizing a native herbaceous seed mix or the pre-existing grassland vegetative conditions by re-grading and re-seeding with an appropriate native seed mix after disturbance activities are completed, unless returning to agricultural production or otherwise specified by the landowner. These temporarily disturbed or modified areas include all areas within the facility site that do not have impervious cover, such as temporary roads, material and equipment staging and storage areas, and electric line rights of way.

(vii)The permittee shall implement the avoidance and minimization measures identified in section 900-2.13 of this Part and the other conditions herein to minimize potential take of the species.

(viii)To the extent that the office has determined that the facility would result in impacts to grassland bird occupied habitat requiring mitigation, the permittee shall pay the required mitigation fee commensurate with the actual acreage of occupied habitat taken into the endangered and threatened species mitigation bank fund with the sole purpose to conserve habitat of similar or higher quality or otherwise achieve a net conservation benefit to the impacted species.

(ix)If the permittee proposes a NCBP involving permittee-implemented grassland bird habitat conservation in lieu of payment of a mitigation fee pursuant to subparagraph (viii) of this paragraph, the required mitigation ratio shall be 0.4 acres of mitigation for every acre of occupied grassland bird breeding habitat determined to be taken and 0.2 acres of mitigation for every acre of occupied grassland bird wintering habitat determined to be taken. These mitigation requirements are based upon multiplying impacts by the ratios described above and dividing impacts by five lifecycles of habitat succession (

e.g.

, a 30-year mitigation project term and 5-year timeframe in which unmanaged grassland would naturally succeed into scrub/shrub habitat, minus one lifecycle to provide a net conservation benefit).

(4)For facilities that will impact NYS threatened or endangered bat species, the permittee shall implement the following as part of the NCBP:

(i)No facility component shall be sited or located within 150 feet of any known northern long-eared bat maternity roost, within 500 feet of any known Indiana bat maternity roost, or 0.25 mile of any known northern long-eared bat or Indiana bat hibernaculum.

(ii)If at any time during the life of the facility, an active NYS threatened or endangered bat species maternity colony roost tree (or structure) is discovered within the facility site, the NYSDPS and the office shall be notified within 24 hours of discovery (during construction) and 48 hours of discovery (during operation), and the colony site shall be marked. A 500-foot radius around the colony shall be posted and avoided until notice to continue construction, ground clearing, grading, non-emergency maintenance or restoration activities, as applicable, at that site is granted by the NYSDPS or the office. A re-evaluation of the potential impacts of the project on listed bat species shall be provided to the NYSDPS and office.

(iii)Tree clearing limitations for northern long-eared bats:

(a)No tree clearing activities shall occur at any time within 150 feet of any known maternity roost or 0.25 mile of any known hibernaculum.

(b)All tree clearing activities (except for hazard tree removal to protect human life or property) occurring within 1.5 miles of a maternity roost site or 5 miles of a hibernaculum site, but not subject to clause (

a ) of this subparagraph, shall be conducted during the hibernation season (between November 1st and March 31st) without further restrictions unless otherwise approved by the office. This limitation does not include trees less than or equal to four inches in diameter at breast height (DBH).

(c)From April 1st to October 31st, the following restrictions shall be implemented for all tree clearing activities in the facility site, unless otherwise agreed by the office:

(1)The permittee shall leave uncut all snag and cavity trees, as defined under the NYSDEC program policy ONRDLF-2 retention on State forests, unless their removal is necessary for protection of human life and property. This restriction pertains to trees that are greater than or equal to four inches DBH. When necessary, snag or cavity trees may be removed after being cleared by an environmental monitor who shall conduct a survey for bats exiting the tree. This survey shall begin 30 minutes before sunset and continue until at least 1 hour after sunset or until it is otherwise too dark to see emerging bats. Unoccupied snag and cavity trees in the approved clearing area shall be removed within 48 hours of observation.

(2)If any bats are observed flying from a tree, or from a tree that has been cut, tree clearing activities within distances required in clause (

a ) of this subparagraph, depending on the potential species present, shall be suspended and the NYSDPS and the office shall be notified as soon as possible. The permittee shall have an environmental monitor present on site during all tree clearing activities. If any bat activity is noted, a stop work order will immediately be issued and shall remain in place until such time as the NYSDPS and the office have been consulted and authorize resumption of work.

(iv)Tree clearing limitations for Indiana bats:

(a)No tree clearing activities shall occur at any time within 500 feet of any known maternity roost or 0.25 mile of any known hibernaculum.

(b)All tree clearing activities (except for hazard tree removal to protect human life or property) occurring within 2.5 miles of a maternity roost site or hibernaculum site, but not subject to clause (

a ) of this subparagraph, shall be conducted during the hibernation season (between November 1st and March 31st), without further restrictions unless otherwise approved by the office. This limitation does not include trees less than or equal to 4 inches in DBH or locations above 300 meters in elevation.

(c)From April 1st to October 31st, tree clearing within 2.5 miles of a maternity roost site or hibernaculum site is limited to trees less than or equal to 4 inches in DBH or locations above 300 meters in elevation.

(d)Tree clearing may not reduce forest habitat below 35 percent of the landcover within 2.5 miles of the maternity roost site or hibernaculum site.

(v)To minimize impacts to bats from wind facilities, the permittee shall comply with the following requirements:

(a)Curtailment is required for all wind facilities from July 1st - October 1st when wind speeds are at or below 5.5 m/s and temperatures are at or above 10 degrees Celsius (50 degrees Fahrenheit) from 30 minutes before sunset to 30 minutes after sunrise. Curtailment shall be on an individual turbine basis and shall be determined by weather conditions as measured by each individual weather station on the turbine nacelle.

(b)The permittee shall submit a review of curtailment operations to the office as part of the post-construction bat mortality monitoring requirements set forth in the NCBP or every five years (or sooner if requested by the permittee). The review shall assess if changes in technology or knowledge of impacts to bats supports modification of the existing curtailment regime. Modifications to the existing curtailment regime that further decrease mortality may be proposed or negotiated. Any such modifications shall not be costlier than the existing curtailment regime, unless voluntarily supported by the permittee.

(5)For each applicable NCBP, the permittee shall pay the required mitigation fee into the endangered and threatened species mitigation bank fund commensurate with the anticipated number of individuals taken with the sole purpose to achieve a net conservation benefit to the impacted species.

(6)To avoid and minimize impacts to bald eagles, the permittee shall implement the following:

(i)If, at any time during construction and operation of the facility, an active bald eagle nest or roost is identified within the facility site, the NYSDPS and the office shall be notified within 48 hours of discovery and prior to any disturbance of the nest or immediate area. An area 0.25 mile for nests without a visual buffer and 660 feet in radius for nests with a visual buffer from the nest tree shall be posted and avoided to the maximum extent practicable until notice to continue construction at that site is granted by the NYSDPS and the office.

(ii)Tree removal is not allowed:

(a)within 660 feet from an active nest during breeding season (January 1st - September 30th);

(b)within 0.25 mile from an important winter roost during the wintering period (December 1st - March 31st); or

(c)of overstory trees within 330 feet of an active nest at any time.

(iii)Operational impacts from wind facilities. If at any time during the operation of the facility a bald eagle is injured or killed due to collision with project components, the permittee shall pay the required mitigation fee into the endangered and threatened species mitigation bank fund commensurate with number of eagles taken with the sole purpose to achieve a net conservation benefit to the impacted species.

(7)Record all observations of NYS threatened or endangered species. During construction and restoration of the facility and associated facilities, the permittee shall maintain a record of all observations of NYS threatened or endangered species as follows:

(i)Construction. During construction, the on-site environmental monitor shall be responsible for recording all occurrences of NYS threatened or endangered species within the facility site. All occurrences shall be reported in a biweekly monitoring report submitted to the NYSDPS, with a copy to the office, and such reports shall include the information described in subparagraph (iii) of this paragraph. If a NYS threatened or endangered bird species is demonstrating breeding behavior, it shall be reported to the NYSDPS and the office within 48 hours.

(ii)Restoration. After construction is complete, incidental observations of any NYS threatened or endangered species shall be documented and reported to the NYSDPS, with a copy to the office, in accordance with the reporting requirements in subparagraph (iii) of this paragraph.

(iii)Reporting requirements. All reports of NYS threatened or endangered species shall include the following information: species; number of individuals; age and sex of individuals (if known); observation date(s) and time(s); global positioning system (GPS) coordinates of each individual observed (if operation and maintenance staff do not have GPS available, the report shall include the nearest turbine number or solar panel array and cross roads location); behavior(s) observed; identification and contact information of the observer(s); and the nature of and distance to any facility construction, maintenance or restoration activity.

(8)Discovery of nests or dead or injured NYS threatened or endangered bird species:

(i)Excluding bald eagles, if an active nest of a Federal or NYS threatened or endangered bird species is discovered (by the permittee’s environmental monitor or other designated agents) within the facility site, the following actions shall be taken:

(a)the NYSDPS and the office shall be notified within 48 hours of discovery and prior to any further disturbance around the nest, roost, or area where the species were seen exhibiting any breeding or roosting behavior;

(b)an area at least 500 feet in radius around the active nest shall be posted and avoided until notice to continue construction, ground clearing, grading, maintenance or restoration activities are granted by the office; and

(c)the active nest(s) or nest tree(s) shall not be approached under any circumstances unless authorized by the office.

(ii)If any dead or injured Federal or NYS threatened or endangered bird species, or eggs or nests thereof, are discovered by the permittee’s on-site environmental monitor or other designated agent at any time during the life of the facility, the permittee shall immediately (within 24 hours) contact the NYSDEC and the United States Fish and Wildlife Service (USFWS) for federally-listed species, to arrange for recovery and transfer of the specimen(s).

The NYSDPS and the office shall also be notified. The following information pertaining to the find shall be recorded:

(a)species;

(b)age and sex of the individual(s), if known;

(c)date of discovery of the animal or nest;

(d)condition of the carcass, or state of the nest or live animal;

(e)GPS coordinates of the location(s) of discovery;

(f)name(s) and contact information of the person(s) involved with the incident(s) and find(s);

(g)weather conditions at the facility site for the previous 48 hours;

(h)photographs, including scale and of sufficient quality to allow for later identification of the animal or nest; and

(i)an explanation of how the mortality/injury/damage occurred, if known.

Electronic copies of each record, including photographs, shall be kept with the container holding the specimen(s) and given to the NYSDEC or the USFWS at the time of transfer. If the discovery is followed by a non-business day, the permittee shall ensure all the information listed above is properly documented and stored with the specimen(s). Unless otherwise directed by the NYSDEC or the USFWS, after all information has been collected in the field, the fatality specimen(s) shall be placed in a freezer, or in a cooler on ice until transported to a freezer, until it can be retrieved by the proper authorities.

(9)The provisions of this subdivision shall remain in effect for as long as the relevant species is listed as endangered or threatened in New York State.

(p)Wetlands, waterbodies, and streams.

The permittee shall implement the following procedures for construction within wetlands and adjacent areas subject to ECL article 24, and waterbodies and streams regulated pursuant to ECL article 15 (as identified in the delineations approved by the office pursuant to section 900-1.3[e] and [f] of this Part):

(1)Environmentally sensitive area (ESA) flagging. Prior to performing construction in an ESA, defined herein as any NYS-regulated wetlands, waterbodies or streams and associated adjacent areas identified in the delineations approved by the office pursuant to section 900-1.3(e) and (f) of this Part, the permittee shall mark the boundaries of the ESA with colored flagging, protected area signs, or erosion and sediment control measures specified by the SWPPP. As necessary to prevent access by motorized vehicles into ESAs where no construction is planned, the permittee shall install additional markers or signs stating, “No Equipment Access.”

(2)Equipment maintenance and refueling. Equipment storage, refueling, maintenance, and repair shall be conducted and safely contained more than 100 feet from all wetlands, waterbodies, and streams and stored at the end of each workday unless moving the equipment will cause additional environmental impact. Dewatering pumps operating within 100 feet of wetlands, waterbodies, or streams may be refueled in place and shall be within a secondary containment large enough to hold the pump and accommodate refueling. All mobile equipment, excluding dewatering pumps, shall be fueled in a location at least 100 feet from wetlands, waterbodies and streams unless moving the equipment will cause additional environmental impact.

(3)Fuel storage. Fuel or other chemical storage containers shall be appropriately contained and located at least 300 feet from wetlands, waterbodies, and streams.

(4)Clean fill. All fill shall consist of clean soil, sand and/or gravel that is free of the following substances: asphalt, slag, fly ash, demolition debris, broken concrete, garbage, household refuse, tires, woody materials, and metal objects.

Reasonable efforts shall be made to use fill materials that are visually free of invasive species based on onsite and source inspections. The introduction of materials toxic to aquatic life is expressly prohibited.

(5)Turbid water. Turbid water resulting from dewatering operations shall not be allowed to enter any wetland, waterbody, or stream. Water resulting from dewatering operations shall be discharged directly to settling basins, filter bags, or other approved device. All necessary measures shall be implemented to prevent any substantial visible contrast due to turbidity or sedimentation downstream of the work site.

(6)Truck washing. Washing of trucks and equipment shall occur 100 feet or more from an ESA, and waste concrete and water from such activities shall be controlled to avoid it flowing into a wetland or adjacent area, waterbody or stream. If runoff from such activities flows into any wetlands and adjacent areas subject to ECL article 24, or waterbodies and streams regulated pursuant to ECL article 15, the NYSDEC regional supervisor of natural resources shall be contacted within two hours.

(7)Concrete washouts. Concrete washouts and batch plants, or concrete from truck cleanout activity, any wash water from trucks, equipment, or tools, if done on site, shall be located and installed to minimize impacts to water resources. Locations should be at least 100 feet from any wetland, waterbody or stream, and located outside wetland adjacent areas to the maximum extent practicable. Disposal of waste concrete or wash water shall be at least 100 feet from any wetland, waterbody or stream.

(8)Use of horizontal direction drilling. Installation of underground collection lines across wetlands, waterbodies and streams shall be performed via HDD to the maximum extent practicable.

(9)Trenching. Open cut trenching in wetlands, waterbodies and streams shall be conducted in one continuous operation and shall not exceed the length that can be completed in one day.

(10)Inadvertent return flows. HDD under wetlands, waterbodies and streams shall be performed in accordance with the inadvertent return flow plan required pursuant to section 900-10.2(f)(5) of this Part.

(11)Discharge notice and response. The permittee shall notify the NYSDEC, the office and the NYSDPS within two hours if there is a discharge to an area regulated under articles 15 or 24 of the ECL resulting in a violation of New York water quality standards at 6 NYCRR section 703. The permittee shall immediately stop work until authorized to proceed by the office.

(q)Wetlands.

The permittee shall implement the following requirements for freshwater wetlands and adjacent areas subject to ECL article 24:

(1)Construction in wetlands and adjacent areas. All construction activities completed within wetlands and/or adjacent areas shall adhere to the following requirements:

(i)In breeding areas for NYS threatened or endangered amphibian species, construction should not occur during the peak amphibian breeding season (April 1st to June 15th) unless additional measures are implemented to prevent impacts or exclude species from the workspace, such as silt fences.

(ii)Work should be conducted during dry conditions without standing water or when the ground is frozen, where practicable.

(iii)Excavation, installation, and backfilling in wetlands shall be performed in one continuous operation.

(iv)Temporary construction matting shall be used as necessary to minimize disturbance to the wetland soil profile during all construction and maintenance activities.

All temporary construction matting shall be removed as soon as practicable but no later than four months following installation from the wetland and cleaned of any invasive species (seed, plant materials, insects, etc.) after construction/maintenance activities are completed and removal shall be verified with the on-site environmental monitor after construction. Matting shall be removed by equipment stationed on a mat or areas outside the wetland or adjacent area.

(v)In the event that construction results in an unanticipated alteration to the hydrology of a wetland (

i.e.

, lowering), the breach shall be immediately sealed, and no further activity shall take place until the NYSDPS and the office is notified and a remediation plan to restore the wetland and prevent future dewatering of the wetland has been approved.

(vi)Before trenching occurs, upland sections of the trench shall be backfilled or plugged to prevent drainage of possible turbid trench water from entering the wetland.

(vii)Trench breakers/plugs shall be used at the edges of wetlands as needed to prevent wetland draining during construction.

(viii)In wetland areas, the topsoil shall be removed and stored separate from subsoil. The top 12 inches of wetland topsoil shall be removed first and temporarily placed onto a geo-textile blanket.

(ix)Only the excavated wetland topsoil and subsoil shall be utilized as backfill, with the exception of clean bedding material for electrical collection lines and/or conduits, provided there is no change to the pre-construction contours upon restoration; and trench-breakers are used to prevent draining the wetland.

(x)Subsoil dug from the trench shall be sidecast on the opposite side of the trench on another geo-textile blanket running parallel to the trench, if necessary.

(xi)Trenches shall be backfilled with the wetland subsoil and the wetland topsoil shall be placed back on top. All excess materials shall be completely removed to upland areas more than 100 feet from the wetland and suitably stabilized.

(xii)When backfilling occurs, the subsoil shall be replaced as needed, and then covered with the topsoil, such that the restored topsoil is the same depth as prior to disturbance.

(xiii)All disturbed soils within wetlands and adjacent areas shall be seeded with an appropriate native wetland seed mix, shrubs, live stakes, or tree planting as site conditions and design allow, as appropriate for existing land uses. Straw mulch shall be maintained until the disturbed area is permanently stabilized. Hay shall not be used for mulching of wetlands or adjacent areas.

(xiv)In agricultural or farmed wetlands, crop covers consistent with existing agricultural uses shall be utilized in all areas of soil disturbance.

(xv)Installation of underground collection lines in wetlands shall be performed using the following methods:

(a)the permittee shall implement best management practices to minimize soil compaction;

(b)during excavation, all topsoil shall be stripped and segregated from subsoils. The permittee shall consolidate trenching areas to the maximum extent practicable to minimize impacts to agricultural soils;

(c)all reasonable efforts shall be made to backfill open trenches within the same workday if rain is predicted and as soon as practicable otherwise; and

(d)all excess materials shall be completely removed from wetlands to upland areas. Excess topsoil from agricultural areas shall be spread within the immediate agricultural areas within the approved LOD, or within other nearby areas that will still be used for agricultural production.

(2)Wetland restoration:

(i)Wetland restoration shall be completed according to the approved Wetland Restoration and Mitigation Plan submitted pursuant to section 900-10.2(f)(2) of this Part.

(ii)The permittee shall restore disturbed areas, ruts, and rills within of NYSDEC-regulated wetlands and adjacent areas to original grades and conditions with permanent native re-vegetation and erosion controls appropriate for those locations.

(iii)Restoration of temporary impacts to NYS-regulated wetlands and adjacent areas (as delineated pursuant to section 900-1.3[e] of this Part) to pre-construction contours shall be completed within 48 hours of final backfilling of the trench/excavated areas and restored to pre-construction contours as soon as practicable.

(iv)Immediately upon completion of grading, and as consistent with existing land use/land cover, the area shall be seeded with an appropriate native species mix for wetlands and upland areas adjacent to wetlands, except that adjacent areas may be reseeded differently at the request of the landowner.

(v)The permittee shall attain 80 percent vegetative cover across all disturbed soil areas by the end of the first full growing season following construction. Overall vegetative cover in restored areas shall be monitored for a minimum of five years. Post-construction monitoring shall continue until an 80 percent survivorship of native woody species or 85 percent absolute cover of native herbaceous species appropriate wetland indicator status has been reestablished over all portions of the replanted area, unless the invasive species baseline survey indicates a smaller percentage of survivorship or cover of appropriate native species exists prior to construction.

(3)Cut vegetation. Cut vegetation in wetlands, with the exception of invasive species, may be left in place (

i.e.

, drop and lop or piled in dry or seasonally saturated portions of wetlands and adjacent areas to create wildlife brush piles).

(4)Access roads through wetlands. Installation of access roads through wetlands shall be performed using the following methods:

(i)Temporary access roads shall use timber/construction matting that is completely removed after construction/maintenance activities are completed and removal shall be verified with the NYSDPS by the on-site environmental monitor after construction, or by the facility operator after maintenance work is completed.

(ii)Permanent access roads shall use a layer of geotextile fabric and a minimum of six inches of gravel shall be placed in the location of the wetland crossing after vegetation and topsoil is removed. Access roads shall be designed and constructed to adequately support the type and frequency of the anticipated vehicular traffic and include suitable culverting or other drainage infrastructure as needed to minimize the impact to wetland hydrology.

(5)Solar panel support installation. Installation and construction techniques shall minimize the disturbance of the wetland soil profiles (

e.g.

, the use of helical screws and driven H-pile with no backfilling for solar arrays sites in wetlands).

(6)Tree clearing. Tree clearing shall be minimized to the extent practicable in wetlands and adjacent areas.

(7)Fill placement. The placement of fill in wetlands shall be designed to maintain pre-construction surface water flows/conditions between remaining on- or off-site waters and to prevent draining of the wetland or permanent hydrologic alteration. This may require the use of culverts and/or other measures.

Construction activity and final design shall not restrict or impede the passage of normal or expected high flows.

(8)Concrete use. For activities involving the placement of concrete into regulated wetlands, watertight forms shall be used. The forms shall be dewatered prior to the placement of the concrete. The use of tremie-supplied concrete is allowed if it complies with NYS water quality standards.

(9)Stormwater setback. Any new stormwater management infrastructure shall be located outside of the wetland and adjacent area to the extent practicable.

(10)Mitigation. The permittee shall implement the approved wetland restoration and mitigation plan submitted pursuant to section 900-10.2(f)(2) of this Part.

(r)Work in NYS-protected waters.

The permittee shall implement the following:

(1)Dry conditions. In-stream work shall only occur in dry conditions, using appropriate water handling measures to isolate work areas and direct stream flow around the work area. Any waters accumulated in isolated work areas shall be discharged to an upland settling basin, field, or wooded area to provide for settling and filtering of solids and sediment before water is return to the stream. If measures fail to divert all flow around the work area, in-stream work shall stop until dewatering measures are functioning properly.

(2)In-water work windows. In-stream work shall be prohibited from September 15th through May 31st in cold water fisheries and March 15th through July 15th in warm water fisheries unless the permittee receives site-specific approval from the office.

(3)Stream channels. The restored stream channel shall be equal in width, depth, gradient, length and character to the pre-existing stream channel and tie in smoothly to the profile of the stream channel upstream and downstream of the disturbance. The planform of any permanent stream shall not be changed, unless dictated by restoration or mitigation objectives. All disturbed stream banks shall be mulched within 2 days of final grading, stabilized with 100 percent natural or biodegradable fiber matting, and seeded with an appropriate riparian seed mix.

(4)Felled trees in an ESA. Trees shall not be felled into an ESA stream or its stream bank. Snags which provide shelter in streams for fish shall not be disturbed unless they cause serious obstructions, scouring or erosion.

(5)Culvert repairs. If a culvert is blocked or crushed, or otherwise damaged by construction or maintenance activities, the permittee shall repair the culvert or replace it with alternative measures appropriate to maintaining proper drainage, embedment and aquatic connectivity.

(6)Access road crossings of streams. The creation, modification or improvement of any permanent road crossing of a NYS-protected waterbody shall meet the following requirements:

(i)new culvert pipes that the permittee is required to install shall be designed to safely pass the one percent annual chance storm event;

(ii)culvert pipes shall be embedded beneath the existing grade of the stream channel;

(iii)width of the structure shall be a minimum of one and a quarter times the width of the mean high-water channel, as practicable; and

(iv)the culvert slope shall remain consistent with the slope of the adjacent stream channel. For slopes greater than three percent, an open bottom culvert shall be used.

(7)Overhead lines across NYSDEC-protected streams. If construction of overhead power line crossings requires cutting of trees or shrubs within 50 feet of a NYS-protected waterbody:

(i)cut materials shall be left on the ground; and

(ii)stumps and root systems shall not be damaged to facilitate stump sprouting.

(8)Stream flows. During periods of work activity, flow immediately downstream of the work site shall equal flow immediately upstream of the work site. If measures fail to divert all flow around the work area, in-stream work shall stop until dewatering measures are functioning properly.

(9)No aquatic impediments. In-stream work, including the installation of structures and bed material, but excluding dewatering associated with dry trench crossings, shall not result in an impediment to aquatic organisms. All fish trapped within cofferdams shall be netted and returned, alive and unharmed, to the water outside the confines of the cofferdam, in the same stream.

(10)Drop height. Any in-stream structures placed in a stream shall not create a drop height greater than six inches.

(11)Restoration and mitigation. The permittee shall implement the approved stream restoration and mitigation plan submitted pursuant to section 900-10.2(f)(3) of this Part.

(s)Agricultural resources.

(1)In all instances in which the applicant for a solar facility proposes to permanently or temporarily impact active agricultural lands (

i.e.

, land in active agriculture production defined as active three of the last five years) within NYS agricultural land classified mineral soil groups 1 through 4, the permittee shall:

(i)construct the facility consistent with the NYSAGM

Guidelines for Solar Energy Projects-Construction Mitigation for Agricultural Lands , dated 10/18/2019 (see section 900-15.1[l][1][i] of this Part), to the maximum extent practicable; and

(ii)hire an independent, third-party agricultural monitor to oversee compliance with agricultural conditions and requirements, including the approved agricultural plan required pursuant to section 900-2.16(c) of this Part, the approved remediation plan required pursuant to section 900-2.16(d) of this Part and any approved co-utilization plan prepared according to section 900-2.16(e). The office, in consultation with the NYSAGM, shall verify and approve the qualifications required to fulfill the role of the agricultural monitor have been met. If the office, in consultation with the NYSAGM, agrees that the independent third-party monitor is qualified on agricultural issues, one monitor can act as both the general environmental monitor as well as the agricultural-specific environmental monitor.

(2)In all instances in which the applicant for a wind facility proposes to permanently or temporarily impact active agricultural lands (

i.e.

, land in active agriculture production defined as active three of the last five years) within NYS agricultural land classified mineral soil groups 1 through 4, the permittee shall:

(i)construct the facility consistent with the NYSAGM

Guidelines for Agricultural Mitigation for Wind Power Projects , revised 4/19/2018 (see section 900-15.1[l][1][ii] of this Part), to the maximum extent practicable; and

(ii)hire an independent, third-party agricultural monitor to oversee compliance with agricultural conditions and requirements, including the approved agricultural plan required pursuant to section 900-2.16(c) of this Part and the approved remediation plan required pursuant to section 900-2.16(d) of this Part. The office, in consultation with the NYSAGM, shall verify and approve the qualifications required to fulfill the role of the agricultural monitor have been met. If the office, in consultation with the NYSAGM, agrees that the independent third-party monitor is qualified on agricultural issues, one monitor can act as both the general environmental monitor as well as the agricultural-specific environmental monitor.

(t)Hazardous materials.

The permittee shall comply with the NYSDEC-approved site management plan for the facility site, or any portion thereof, if applicable.

(u)Cultural resources avoidance, minimization and mitigation plan.

The permittee shall implement the approved cultural resources avoidance, minimization and mitigation plan required in section 900-10.2(g) of this Part.

19 NYCRR 900-6.5 - Facility operation

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19 NYCRR 900-6.6 - Decommissioning

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(a)The permittee shall implement the approved decommissioning and site restoration plan as required by section 900-2.24 of this Part. The permittee shall adhere to all State laws and regulations in effect at the time of decommissioning regarding the disposal and recycling of components.

(b)The financial security regarding decommissioning and site restoration activities shall be in the form of a letter of credit (LOC) or other financial assurance approved by the office, and shall be established by the permittee to be held by each city, town, or village hosting facility components. The total amount of the financial security created for the cities, towns, or villages shall be equal to the net decommissioning and site restoration estimate; the net decommissioning and site restoration estimate is equal to the gross decommissioning and site restoration estimate (which is the overall decommissioning and site restoration estimate plus a 15 percent contingency cost) less the total projected salvage value of facility components; reference to salvage value data shall also be included in the decommissioning and site restoration plan required in section 900-2.24 of this Part. If the permittee and the host municipalities cannot come to an agreement as to the appropriate amount of financial security to be provided, the office shall make the final determination. The financial security shall remain active until the facility is fully decommissioned. The LOC shall be irrevocable and state on its face that it is expressly held by and for the sole benefit of the specific town, city, or village.

19 NYCRR 900-7.1 - Amendment of an application

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(a)Pending applications may only be amended prior to issuance of a notice of complete application. In addition, a major amendment to the application may only be filed with the express written permission of the office, as set forth in this section.

(b)Requests for permission to submit an amendment.

(1)An applicant wishing to amend a pending application shall submit a written request to the office, setting forth:

(i)the proposed change to the application;

(ii)a justification as to why such changes are required; and

(iii)an anticipated timeframe for resubmission.

(2)The office shall review the request and, within 15 days of receipt thereof, inform the permittee as to its determination as to whether such changes constitute a minor amendment to be processed by the office or a major amendment subject to subdivision (c) of this section.

(c)Submission of a major amendment to an application.

(1)An applicant shall submit only those application materials that reflect changes from the original submission, including a redlined version of the relevant materials.

(2)If the applicant proposes to increase the nameplate capacity of the facility, the applicant shall submit any additional required payment to the local agency account simultaneously with its request for a major amendment.

(3)The applicant shall publish notice of the major amendment, clearly identifying the changes from the original application and notice thereof, in accordance with section 900-1.6 of this Part.

(d)The time for the office to make its completeness determination on the original application shall be suspended while the ORES is reviewing a request to amend a pending application.

(e)All applicable statutory time frames for completeness determination, publication of draft permit conditions and final determination on the application shall run from the submission of a major amendment in accordance with subdivision (c) of this section.

19 NYCRR 900-8.1 - Publication of draft siting permit

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(a)No later than 60 days following the date upon which an application has been deemed complete, and following consultation with any relevant State agency or authority, the ORES shall publish on its website for public comment draft permit conditions prepared by the office or a statement of intent to deny.

(b)No later than 60 days following the date upon which an application has been deemed complete, a combined notice of availability of draft permit conditions or statement of intent to deny, public comment period and public comment hearing, and issues determination, as defined in section 900-8.2(d) of this Subpart, shall be published on the ORES website.

19 NYCRR 900-8.2 - Notice of hearing

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(a)When notice is required.

Unless otherwise provided by statute or regulation, the Office of Hearings shall publish notice of a public comment hearing (as set forth in section 900-8.1[b] of this Subpart) or adjudicatory hearing on the office’s website and provide notice to the applicant and to persons who have made written request to participate. The applicant shall provide for and bear the cost of publication of the notice in a newspaper having general circulation in the area within which the proposed project is located. The notice shall be published at least once, and not less than 21 days prior to the hearing date. These requirements are minimums and the assigned ALJ shall direct the applicant to provide additional notice or to provide the notice further in advance of the hearing where the ALJ finds it necessary to do so in order to adequately inform the potentially affected public about the hearing. Where the ALJ finds that a large segment of the potentially affected public has a principal language other than English, the ALJ shall direct the publication of the notice in a foreign language newspaper(s) serving such persons. Nothing herein shall authorize the ALJ to delay the commencement of the hearing beyond the deadlines established in this Part without the applicant's consent.

(b)Required contents of notice.

The notice shall be in the form specified by the office and shall contain the following information:

(1)the date of issuance of the notice of hearing, the date of the notice of complete application, and the date of publication of the draft siting permit conditions or statement of intent to deny;

(2)the date, time, location and purpose of the hearing and any pre-hearing conference, if scheduled. The location shall be in the town, village or city in which the project is located, as reasonably near the project site as practicable, depending upon the availability of suitable venues. However, another location may be selected based on the convenience of parties and witnesses at the discretion of the ALJ;

(3)the name and address of the applicant or permittee;

(4)that the application is seeking a siting permit, with citations to applicable section 94-c of the Executive Law and this Part;

(5)a description of the project;

(6)the accessibility and location for review of the available application materials, and the draft siting permit conditions or statement of intent to deny.

(c)Optional contents.

The notice may also specify the issues of concern to the ORES and the public.

(d)Combined notice of availability of draft permit conditions or statement of intent to deny, public comment period and public comment hearing, and issues determination.

In addition to the contents of a notice required by subdivisions (b) and (c) of this section, the combined notice shall contain the following information:

(1)the deadline and instructions for filing public comments on the draft permit conditions or statement of intent to deny by mail or at a public comment hearing, and of the provisions for their review. The period for filing public comments shall be a minimum of 60 days from the date of issuance of the combined notice;

(2)the date, time, and location of the public comment hearing scheduled pursuant to section 900-8.3(a) of this Subpart;

(3)notice of commencement of the issues determination procedure required by section 900-8.3(b) of this Subpart and instructions for filing a petition for party status pursuant to section 900-8.4 of this Subpart. The period for filing a petition for party status shall be a minimum of 60 days from the date of issuance of the combined notice; and

(4)the deadline and instructions to municipalities to file the statement of compliance with local laws and regulations required by section 900-8.4(d) of this Subpart.

(e)Service on specific persons.

Not less than 21 days prior to the hearing date, individual copies of the notice shall be sent to the chief executive officer of any municipality in which any part of the project is located, or municipality which may be adversely impacted by the project and such other persons as the office deems to have an interest in the application. The ALJ shall direct the applicant to provide notice further in advance of the hearing to those persons specified in this subdivision where the ALJ finds it necessary to do so in order to adequately inform them about the hearing. Nothing herein shall authorize the ALJ to delay the commencement of the hearing beyond the deadlines established in this Part without the applicant's consent.

19 NYCRR 900-8.3 - Public comment hearing and issues determination

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(a)Public comment hearing.

(1)Not less than 60 days from the date of issuance of the combined notice required by section 900-8.2(d) of this Subpart, a public comment hearing shall be convened to hear and receive the unsworn statements of parties and non-parties relating to the siting permit application. A stenographic transcript of such statements shall be made but shall not be part of the record of the hearing, as defined by section 900-8.11 of this Subpart.

(2)The ALJ may require that lengthy statements be submitted in writing and summarized for oral presentation.

(3)The statements made at the public comment hearing shall not constitute evidence, but may be used by the ALJ as a basis to inquire further of the parties and potential parties at the issues determination stage.

(b)Issues determination.

(1)In the combined notice required by section 900-8.2(d) of this Subpart, the mandatory parties identified in section 900-8.4(b) of this Subpart and any potential parties shall be provided with the opportunity to file papers concerning potential substantive and significant issues, which shall be determined in advance of the adjudicatory hearing. The issues determination procedure shall be conducted solely on papers, unless the ALJ, in their sole discretion, determines that oral argument is necessary to fully understand the issues proposed by the parties and potential parties. At the ALJ’s discretion, an issues determination may be revisited at any time prior to the issuance of a final decision in order to consider issues based on new information upon a showing that such information was not reasonably available at the time of the issues determination. Upon a demonstration that the public review period for the application prior to the issues determination was insufficient to allow potential parties to adequately prepare for the issues determination procedure, the ALJ may adjourn the issues determination, extend the time for written submittals or make some other fair and equitable provision to protect the rights of the potential parties.

(2)The purpose of the issues determination procedure is:

(i)to receive argument on whether party status should be granted to any petitioner;

(ii)to narrow or resolve disputed issues of fact without resort to taking testimony;

(iii)to receive argument on whether disputed issues of fact that are not resolved meet the standards for adjudicable issues set forth in subdivision (c) of this section;

(iv)to determine whether legal issues exist whose resolution is not dependent on facts that are in substantial dispute and, if so, to receive argument on the merits of those issues; and

(v)to decide any pending motions.

(3)The ALJ shall preside over the issues determination procedure. Participants shall include office staff, staff from other involved State agencies, the applicant, and any person who has filed a petition for party status pursuant to section 900-8.4(c) of this Subpart.

(4)Within 15 days after the close of the public comment period, the filing of petitions for party status, or the filing of a statement of compliance with local laws and regulations, whichever event occurs later:

(i)Office staff may file and serve a response to any petitions for party status, any statement of issues by applicant, and the statement of compliance with local laws and regulations.

(ii)The applicant may file and serve a response to any petition for party status or statement of compliance with local laws and regulations. In addition, the applicant shall file and serve on office staff a response to public comments received during the public comment period, including any supplemental information.

(5)In no event later than 30 days after the date of receipt of written submissions for issues determination and responses thereto, the ALJ shall:

(i)determine which persons will be granted party status;

(ii)determine which issues satisfy the requirements for being adjudicable issues as set forth in subdivision (c) of this section, and define those issues as precisely as possible;

(iii)rule on the merits of any legal issue where ruling does not depend on the resolution of disputed issues of fact;

(iv)decide any pending motions to the extent practicable; and

(v)summarize comments received on the application and draft permit conditions or intent to deny.

(c)Standards for adjudicable issues.

(1)Generally applicable rules. Subject to the limitations set forth in paragraphs (6) and (7) of this subdivision, an issue is adjudicable if:

(i)it relates to a substantive and significant dispute between office staff and the applicant over a proposed term or condition of the draft siting permit, including uniform standards and conditions;

(ii)public comments, including comments provided by a municipality, on a draft siting permit condition published by the office raise a substantive and significant issue;

(iii)it relates to a matter cited by office staff as a basis to deny the siting permit and is contested by the applicant; or

(iv)it is proposed by a potential party and is both substantive and significant.

(2)An issue is substantive if there is sufficient doubt about the applicant's ability to meet statutory or regulatory criteria applicable to the project, such that a reasonable person would require further inquiry. In determining whether such a demonstration has been made, the ALJ shall consider the proposed issue in light of the application and related documents, the standards and conditions, or siting permit, the statement of issues filed by the applicant, the content of any petitions filed for party status, the record of the issues determination and any subsequent written or oral arguments authorized by the ALJ.

(3)An issue is significant if it has the potential to result in the denial of a siting permit, a major modification to the proposed project or the imposition of significant permit conditions in addition to those proposed in the draft permit, including uniform standards and conditions.

(4)In situations where office staff has reviewed an application and finds that a component of the applicant's project, as proposed or as conditioned by the draft siting permit, conforms to all applicable requirements of statute and regulation, the burden of persuasion is on the potential party proposing any issue related to that component to demonstrate that it is both substantive and significant.

(5)If the ALJ determines that there are no adjudicable issues, the ALJ shall direct that no adjudicatory hearing be held and that office staff continue processing the application to issue the requested siting permit, including issuance of a written summary and assessment of public comments received during the public comment period on issues not otherwise addressed in the ALJ’s ruling.

(6)The completeness of an application, as defined in this Subpart, shall not be an issue for adjudication.

(7)ORES-initiated modifications. The only issues that may be adjudicated are those related to the basis for modification cited in the office’s notice to the permittee. Whenever such issues are proposed for adjudication, the determination to require adjudication shall be made according to the standards set forth in paragraph (1) of this subdivision.

19 NYCRR 900-8.4 - Hearing participation

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(a)Participation in the adjudicatory hearing may be as a full party or as

amicus , depending upon the demonstrated compliance with the criteria set forth in subdivisions (b) through (e) of this section. Non-parties who wish to have their comments recorded shall be permitted to submit oral or written comments during the public comment portion of the proceedings, or as otherwise provided by the ALJ, as set forth in this Subpart. Such public statements shall not constitute evidence in the adjudicatory hearing but may be used by the ALJ as a basis to inquire further of all parties and potential parties at the issues determination stage.

(b)Mandatory parties.

The applicant and assigned office staff are full parties to the proceeding. Other State and local agencies are full parties to the proceeding if they were consulted during the pre-application or application process, or if issues related to the jurisdiction or authority of those agencies are joined for adjudication in the rulings on issues provided for in section 900-8.3(c) of this Subpart.

(1)Applicant’s statement of issues: No later than the date set in the combined notice provided for in section 900-8.2(d) of this Subpart for the filing of petitions for party status, or an earlier date set in the exercise of the ALJ’s discretion, the applicant shall file and serve on office staff a statement of issues the applicant intends to raise with respect to any determination of the office. The applicant shall serve the statement of issues on persons filing petitions for party status within five days of such filing. The applicant’s statement of issues shall:

(i)identify an issue for adjudication which meets the criteria of section 900-8.3(c) of this Subpart; and

(ii)present an offer of proof specifying the witness(es), the nature of the evidence the applicant expects to present and the grounds upon which the assertion is made with respect to that issue.

(c)Other parties.

By the date set in the combined notice provided for in section 900-8.2(d) of this Subpart, a person desiring party status shall file a petition in writing which includes the requirements of either paragraphs (1) and (2) or paragraphs (1) and (3) of this subdivision.

(1)Required contents of petition for party status:

(i)identification of the proposed party together with the name(s), address, telephone number and email address of the person or persons who will act as representative of the party;

(ii)statement of the petitioner's interest related to the standards and conditions established by the ORES for the siting, design, operation, and construction of the project;

(iii)identification of any interest relating to statutes administered by other State agencies or the ORES relevant to the project;

(iv)statement as to whether the petition is for full party or

amicus status;

(v)identification of the precise grounds for opposition or support.

(2)Additional contents required for petitions for full party status:

(i)identification of an adjudicable issue(s) which meets the criteria set forth in section 900-8.3(c) of this Subpart; and

(ii)an offer of proof specifying the witness(es), the nature of the evidence the person expects to present and the grounds upon which the assertion is made with respect each issue identified.

(3)Additional contents required for petitions for

amicus status:

(i)identify the nature of the legal or policy issue(s) to be briefed which meets the criteria of section 900-8.3(c) of this Subpart; and

(ii)provide a statement explaining why the proposed party is in a special position with respect to that issue.

(4)Inadequate petition. If a potential party fails to file a petition in the form set forth in this subdivision, the ALJ may deny party status or may require additional information from the petitioner.

(5)Supplementation of petitions. Where the ALJ finds that a potential party did not have adequate time to prepare its petition for party status, the ALJ shall provide an opportunity for supplementation of the petition.

(d)Statement of compliance with local laws and regulations.

No later than the date set in the combined notice provided for in section 900-8.2(d) of this Subpart for the filing of petitions for party status, or an earlier date no less than 60 days from the issuance of the combined notice set in the exercise of the ALJ’s discretion, any municipality, political subdivision or an agency thereof that has received notice of the filing of an application shall file and serve on office staff and the applicant a statement indicating whether the proposed facility is designed to be sited, constructed and operated in compliance with applicable local laws and regulations, if any, concerning the environment, or public health and safety. The applicant shall serve the municipality’s statement on persons filing petitions for party status within five days of such filing. Any municipality, political subdivision or an agency thereof that proposes to adjudicate any issues related to a facility’s compliance with local laws and regulations shall file a petition for party status as provided for in subdivision (c) of this section, and shall include the statement of compliance with local law and regulation in the petition.

(e)Late filed petitions for party status.

(1)Petitions filed after the date set in the combined notice provided for in section 900-8.2(d) of this Subpart shall not be granted except under the limited circumstances outlined in paragraph (2) of this subdivision.

(2)In addition to the required contents of a petition for party status, a petition filed late shall include the following in order to receive any consideration:

(i)a demonstration that there is good cause for the late filing;

(ii)a demonstration that participation by the petitioner will not significantly delay the proceeding or unreasonably prejudice the other parties; and

(iii)a demonstration that participation will materially assist in the determination of adjudicable issues raised in the proceeding.

(f)Rulings on party status.

Rulings on party status shall be made by the ALJ after the deadline for receipt of petitions for party status and responses thereto and shall be set forth in the rulings on issues provided for in section 900-8.3(c) of this Subpart.

(1)Full party status. The ALJ's ruling of entitlement to full party status shall be based upon:

(i)a finding that the petitioner has filed an acceptable petition pursuant to paragraphs (c)(1) and (2) of this section;

(ii)a finding that the petitioner has raised a substantive and significant issue or that the petitioner can make a meaningful contribution to the record regarding a substantive and significant issue raised by another party; and

(iii)a demonstration of adequate interest related to the standards and conditions established by the ORES for the siting, design, operation, and construction of the project.

(2)Amicus status. The ALJ's ruling of entitlement to amicus status shall be based upon:

(i)a finding that the petitioner has filed an acceptable petition pursuant to paragraphs (c)(1) and (3) of this section;

(ii)a finding that the petitioner has identified a legal or policy issue which needs to be resolved by the hearing; and

(iii)a finding that the petitioner has a sufficient interest in the resolution of such issue and through expertise, special knowledge or unique perspective may contribute materially to the record on such issue.

(g)Rights of parties.

(1)A full party has the right to:

(i)engage in and conduct disclosure of any other party to the proceeding;

(ii)participate at the hearing in person or through an authorized representative;

(iii)present relevant evidence and cross-examine witnesses of other parties;

(iv)present argument on issues of law and fact;

(v)initiate motions, requests, briefs or other written material in connection with the hearing, and receive all correspondence to and from the ALJ and to and from all other parties which is circulated to the parties generally;

(vi)appeal adverse rulings of the ALJ; and

(vii)exercise any other right conferred on parties by this Part or the SAPA.

(2)A party with

amicus status has the right to file a brief and, at the discretion of the ALJ, present oral argument on the issue(s) identified in the ALJ's ruling on its party status but does not have any other rights of participation or submission.

(h)Loss of party status.

Upon determining that the party or its representative has failed to comply with the applicable laws, rules or directives of the ALJ and has substantially disrupted the hearing process or prejudiced the rights of another party to the proceeding, the ALJ may revoke the party status of the offending party.

19 NYCRR 900-8.5 - General rules of practice

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19 NYCRR 900-8.6 - Disclosure

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19 NYCRR 900-8.7 - Conduct of the adjudicatory hearing

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(a)Order of events.

The ALJ has discretion to determine and adjust the order of events and presentation of evidence, and to establish procedures to promote the conduct of a fair and efficient hearing. In general, the order of events at a hearing shall be as follows:

(1)Formal opening. The ALJ shall convene the hearing by opening the record, identifying the applications involved, and making appropriate procedural announcements.

(2)Noting appearances. The ALJ shall call the name of each person who has been granted status as a party.

(3)Opening statements. Prior to the commencement of the adjudicatory sessions, each party may, at its option, offer a brief opening statement of position on the application.

(4)Admission of evidence. The applicant shall present its direct case first and shall start by identifying all documents which constitute the application, any supplements to the application, and all supporting documents which are relevant to the issues to be adjudicated. A panel of witnesses may be used for presenting testimony or for cross-examination at the ALJ's discretion. Cross-examination shall be conducted by parties in a sequence to be established by the ALJ, which normally will be the sequence in which the parties will present their direct cases. The evidence shall be confined to that which is relevant to issues identified in the ALJ's written issues determination.

(5)Close of record. Closing statements of position will be dealt with in the same manner as opening statements. At the concluding session of the hearing, the ALJ shall determine whether to allow the submission of written post-hearing briefs. The hearing record shall be officially closed upon the receipt of the stenographic record by the ALJ, the receipt of additional technical data or other material agreed at the hearing to be made available after the hearing, or the submission of briefs and reply briefs, conclusions of law, memoranda, and exceptions, if any, by the various parties, whichever occurs last. The ALJ shall notify the applicant by certified mail, and all other parties by regular mail, immediately upon official closing of the hearing record.

(6)Where the ALJ permits the filing of briefs, the ALJ shall also determine page limits for said briefs and whether replies will be permitted and the schedule for filing. Simultaneous filing shall normally be required. A party shall give specific reference to the portions of the record, whether transcript or otherwise, relied upon in support of the respective statements of fact made throughout the brief. Briefs shall be considered only as argument and shall not refer to or contain any evidentiary material outside of the administrative record.

(b)The ALJ.

(1)In proceedings pursuant to this Part, the ALJ has power to:

(i)rule upon all motions and requests, including those that decide the ultimate merits of the case;

(ii)set the time and place of the hearing, recesses and adjournments;

(iii)administer oaths and affirmations;

(iv)issue subpoenas upon request of a party not represented by counsel admitted to practice in New York State. Subpoenas issued by the ALJ are regulated by the Civil Practice Law and Rules;

(v)upon the request of a party, quash and modify subpoenas except that in the case of a non-party witness the ALJ may quash or modify a subpoena regardless of whether or not a party has so requested;

(vi)summon and examine witnesses;

(vii)establish rules for and direct disclosure at the request of any party or upon the ALJ's own motion pursuant to the procedures set out in section 900-8.6 of this Subpart;

(viii)admit or exclude evidence including the exclusion of evidence on grounds of privilege or confidentiality;

(ix)hear and determine arguments on fact or law;

(x)preclude irrelevant, immaterial or unduly repetitious, tangential or speculative evidence, argument, examination or cross-examination;

(xi)direct the consolidation of parties with similar viewpoints and input;

(xii)limit the number of witnesses;

(xiii)utilize a panel of witnesses for purposes of direct testimony or cross-examination;

(xiv)allow oral argument, so long as it is recorded;

(xv)take any measures necessary for maintaining order and the efficient conduct of the proceeding;

(xvi)issue orders limiting the length of cross-examination, the form, length and content of motions and briefs and similar matters;

(xvii)order a site visit, on notice to all parties; and

(xviii)exercise any other authority available to ALJs under this Part or to presiding officers under SAPA article 3.

(2)Impartiality of the ALJ and motions for recusal.

(i)The ALJ shall conduct the proceeding in a fair and impartial manner.

(ii)An ALJ shall not be assigned to any proceeding in which the ALJ has a personal interest.

(iii)Any party may file with the ALJ a motion in conformance with section 900-8.5(c) of this Subpart, together with supporting affidavits, requesting that the ALJ be recused on the basis of personal bias or other good cause. Such motions shall be determined as part of the record of the proceeding.

(3)The designation of an ALJ as the executive director’s representative shall be in writing and filed in the Office of Hearings.

(c)Appearances.

(1)A party may appear in person or be represented by an attorney licensed in New York State or any other jurisdiction, or by a non-attorney chosen by the party. Any representative of a party who is other than an attorney licensed to practice in New York State shall disclose his or her qualifications to the party. All persons appearing before the ALJ shall conform to the standards of conduct required of attorneys appearing before the courts of the State of New York. Any person signing any papers submitted in or entering an appearance in any proceeding shall be considered to have agreed to conform to those standards. A failure to conform to those standards shall be grounds for exclusion from that and any later proceeding. Nothing in this paragraph authorizes a non-lawyer to engage in the practice of law.

(2)Any person appearing on behalf of a party in a representative capacity may be required by the ALJ to show and state on the record the person’s authority to act in such capacity and to file a notice of appearance with the ALJ.

(3)If there is a change or withdrawal of a party’s attorney or authorized representative, the party shall provide notice of the change or withdrawal to the ALJ and the attorneys or authorized representatives of all other parties, or, if a party appears without an attorney or authorized representative, to the party within 10 days of the change or withdrawal.

(d)Appeals of ALJ rulings.

(1)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 and appeal where no final brief is provided for. Where no final brief is provided for, the appellant shall file the notice of appeal and appeal within five days after service of the notice of the official closing of the hearing record.

(i)An ALJ ruling pursuant to section 900-8.3(c)(5) of this Subpart that finally resolves all issues in a proceeding may be appealed to the executive director by notice of appeal and appeal. The appellant shall file the notice of appeal and appeal within five days of the ALJ’s ruling.

(ii)The notice of appeal and appeal shall be served on all parties and filed with the executive director and the ALJ. All parties have five days after an appeal is served to serve and file a response to the appeal. Only the executive director shall determine whether further responsive pleadings after the responses will be allowed. The parties shall file one original and three copies of any papers filed pursuant to this paragraph.

(2)During the course of the proceeding, in conformance with section 900-8.5(e) of this Subpart, the following rulings may be appealed to the executive director on an expedited basis:

(i)any ruling in which the ALJ has denied a motion for recusal; and

(ii)any other ruling of the ALJ that does not finally resolve all issues in the proceeding, by seeking permission to file an expedited appeal upon a demonstration that the failure to decide such an appeal would be unduly prejudicial to one of the parties or would result in significant inefficiency in the hearing process. In all such cases, the executive director's determination to entertain the appeal on an expedited basis is discretionary.

(3)A motion for permission to file an expedited appeal shall demonstrate that the ruling in question falls within the criteria set forth in subparagraph (2)(ii) of this subdivision.

(4)The executive director may review any ruling of the ALJ on an expedited basis upon the executive director's determination or upon a determination by the ALJ that the ruling should be appealed.

(5)Whenever the executive director grants permission to file an expedited appeal, the parties shall be notified. The appellant shall be provided the opportunity to file a brief on appeal and the other parties shall be provided with the opportunity to file a response to the appeal.

(6)Failure to file an expedited appeal or the denial of permission to file an expedited appeal shall not preclude an appeal from the ruling to the executive director after the hearing.

(7)The hearing shall not be adjourned while an appeal or motion for permission to appeal is pending except by permission of the ALJ or the executive director.

19 NYCRR 900-8.8 - Evidence, burden of proof and standard of proof

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(a)Evidence.

(1)All evidence submitted shall be relevant and all rules of privilege shall be observed. However, other rules of evidence need not be strictly applied. Hearsay evidence may be admitted if it falls within one or more of the exceptions provided by CPLR article 45 or other law, or is shown to be reasonably reliable, relevant and probative.

(2)Although relevant, evidence may be excluded if its value as proof is substantially outweighed by a potential for unfair prejudice, confusion of the issues, undue delay, waste of time or needless presentation of repetitious or duplicative evidence.

(3)Where a part of a document is offered as evidence by one party, any party may offer the entire document as evidence.

(4)Each witness shall be sworn or make an affirmation before testifying. Opening, closing and other unsworn statements are not evidence but shall be considered as arguments bearing on evidence.

(5)The ALJ or the executive director may take official notice of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the office. When official notice is taken of a material fact not appearing in the evidence in the record and of which judicial notice could not be taken, every party shall be given notice thereof and, on timely request, be afforded an opportunity, prior to the final decision of the executive director, to dispute the fact or its materiality.

(b)Burden of proof.

(1)The applicant has the burden of proof to demonstrate that its proposal shall be in compliance with all applicable laws and regulations administered by the office.

(2)Where the office has initiated a permit modification, the office staff bears the burden of proof to show that the modification is supported by the preponderance of the evidence.

(3)Where an application is made for permit modification, the permittee has the burden of proof to demonstrate that the modified permitted activity is in compliance with all applicable laws and regulations administered by the office. A demonstration by the permittee that the there is no substantive change in the originally permitted activity, environmental conditions or applicable law and regulations constitutes a

prima facie case for the permittee.

(4)The burden of proof to sustain a motion shall be on the party making the motion.

(c)Standard of proof.

Whenever factual matters are involved, the party bearing the burden of proof shall sustain that burden by a preponderance of the evidence unless a higher standard has been established by statute or regulation. This subdivision does not modify or supplement the questions that may be raised in a proceeding brought pursuant to CPLR article 78.

19 NYCRR 900-8.9 - Ex parte rule

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(a)Except as provided below, an ALJ shall not directly or through a representative, communicate with any person in connection with any issue that relates in any way to the merits of the proceeding without providing notice and an opportunity for all parties to participate.

(b)An ALJ may consult on questions of law or procedures with supervisors or other staff in the Office of Hearings, provided that such supervisors or staff have not been engaged in investigative or prosecutorial functions in connection with the adjudicatory proceeding under consideration or a factually related adjudicatory proceeding.

(c)An ALJ and the chief ALJ may communicate with any person on ministerial matters, such as scheduling or the location of a hearing.

(d)Parties or their representatives shall not communicate with the ALJ, the chief ALJ or the executive director, or any person advising or consulting with any of them, in connection with any issue without providing proper notice to all the other parties.

19 NYCRR 900-8.10 - Payment of hearing costs

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(a)Within 30 days of the last day at which testimony is taken, the applicant shall pay for the cost of: physical accommodations, if not held in office or department facilities; publishing any required notices; and any necessary stenographic transcriptions. Except that, when a hearing is held pursuant to an office initiated modification, suspension or revocation, the office shall be responsible for the costs listed above.

(b)The ALJ may require that the applicant post a bond or other acceptable financial guarantee for the costs of the hearing. Such guarantee shall be provided to the office prior to commencing the hearing or the hearing shall be adjourned until the guarantee is made available.

(c)If the applicant has not paid the costs of the hearing referred to in subdivision (a) of this section by the date on which the final siting permit is issued, a requirement to submit such payment shall be included as a pre-construction requirement in the final siting permit.

19 NYCRR 900-8.11 - Record of the hearing

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(a)All proceedings at a hearing shall be stenographically reported. The ALJ may arrange for a certified reporter to produce a stenographic transcript of the hearing or may permit the applicant to make such arrangements. When a stenographic transcript is made, an original and two copies of the transcript shall be delivered to the ALJ at the expense of the applicant. At the ALJ's discretion, part or all of the transcripts may also be required in electronic or other form.

(b)The record of the hearing shall include the application (including any supplements to the application) and all notices (including the notice of hearing) and motions; conditions; any affidavit of publication of the notice of hearing; the transcript of the testimony taken at the hearing, the exhibits entered into evidence; any motions, appeals or petitions; any admissions, agreements or stipulations; a statement of matters officially noticed; offers of proof, objections thereto and rulings thereon; proposed findings; and the recommended decision and hearing report; and briefs as may have been filed including any comments on the recommended decision and hearing report filed pursuant to section 900-8.12 of this Subpart.

(c)As soon as the record becomes available, the ALJ shall assure that a complete and current copy of the record is placed in an accessible location for the parties' reference and/or copying.

19 NYCRR 900-8.12 - Final decision

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(a)Recommended decision and hearing report.

(1)The ALJ shall issue a recommended decision and hearing report to the executive director and the parties within 45 days after the close of the record. The report shall include findings of fact, conclusions of law and recommendations on all issues before the ALJ.

(2)All parties to the proceeding have 14 days after receipt of the recommended decision and hearing report to file comments with the executive director. The executive director has the sole discretion to authorize responses to comments and any further responsive filings.

(3)Office staff has 14 days after receipt of the recommended decision and hearing report to submit to the executive director a written summary and assessment of public comments received during the public comment period on issues not otherwise addressed in the recommended decision and hearing report.

(b)Stipulations.

A stipulation executed by all parties resolving any or all issues removes such issue(s) from further consideration in the proceeding. Within five days of the execution of a stipulation, the applicant shall serve a copy of the fully executed stipulation on all parties and file a copy of the fully executed stipulation with the ALJ. Upon receipt of an executed stipulation that resolves all issues in the proceeding, the ALJ shall close the proceeding and remand the matter to office staff to continue processing the application to issue the requested siting permit.

(c)Final decision.

The final decision of the executive director shall be issued within 30 days after receipt of all comments on the recommended decision and hearing report.

(d)Reopening the record.

At any time prior to issuing the final decision, the executive director or the ALJ may direct that the hearing record be reopened to consider significant new evidence.

19 NYCRR 900-9.1 - Final determination on applications

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(a)The office shall mail to the applicant and its representative, if applicable, a determination in the form of: a permit, including all applicable uniform standards and conditions and any site-specific conditions, or a statement that the permit applied for has been denied, with an explanation for the denial, as follows:

(1)within six months of the office deeming the application complete for major renewable energy facilities in which the proposed site is a repurposed site as defined by this Part; or

(2)Within one year of the office deeming the application complete for all other major renewable energy facilities.

(b)Upon mutual consent of the applicant and the office, the time periods set forth in subdivision (a) of this section may be extended up to an additional 30 days.

19 NYCRR 900-10.1 - Office decisions on compliance filings

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(a)Compliance filings required pursuant to section 900-10.2 of this Subpart shall be submitted to the office. The office shall review the filing and, within 60 days of receipt thereof, inform the permittee as to whether the compliance filing has been approved. The office shall not issue a notice to proceed with construction until each such filing is received and approved, as necessary.

(1)If the office determines that a compliance filing cannot be approved, it shall detail all deficiencies identified and any additional information that shall be provided by the permittee.

(2)The permittee shall resubmit the compliance filing within 60 days of receipt of a notice of deficiency. If the permittee believes it will take more than 60 days to address the deficiencies, it shall request an extension of the time to resubmit within 30 days of receipt of the notice of deficiency.

(3)The office shall review the revised filing and, within 60 days thereof, inform the permittee as to whether the revised filing has been approved.

(b)Compliance filings required pursuant to section 900-10.3 of this Subpart shall be submitted to the NYSDPS. The NYSDPS shall review the filing and, within 60 days of receipt thereof, inform the permittee whether the compliance filing has been approved.

(1)If the NYSDPS determines that a compliance filing cannot be approved, it shall detail all deficiencies identified and any additional information that shall be provided by the permittee.

(3)The NYSDPS shall review the revised filing and, within 60 days thereof, inform the permittee as to whether the revised filing has been approved.

19 NYCRR 900-10.2 - Pre-construction compliance filings

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(a)Copies of all Federal and federally-delegated permits and approvals required for construction and operation of the facility.

(b)Final decommissioning.

(1)Final decommissioning and site restoration plan, including a decommissioning and site restoration estimate (for site restoration and decommissioning of all proposed facility components removed four feet below grade in agricultural land and three feet below grade in non-agricultural land and removal and restoration of access road locations, where appropriate) and proof that the letter(s) of credit (or other financial assurance approved by the ORES) have been obtained in the decommissioning and site restoration estimate amount, as calculated pursuant to section 900-6.6(b) of this Part.

(2)Letter(s) of credit (or other financial assurance approved by the ORES) and copies of agreements between the permittee and the towns, cities, and villages, establishing a right for each municipality to draw on the letters of credit dedicated to its portion of the facility shall be provided to the Office of Renewable Energy Siting after one year of facility operation and updated every fifth year thereafter specifying changes (due to inflation or other cost increases) to the structure of the letters of credit (or other financial assurance approved by the ORES).

(c)Plans, profiles, and detail drawings.

(1)A statement shall be provided indicating that a professional engineer has reviewed facility details and attests to the accuracy of the final design as reflected in revised and initially filed (unaffected material) maps, site plans, profile figures, and environmental controls and construction details in accordance with sections 900-2.6 and 900-2.17 of this Part.

(2)Foundation drawings, including plan and sections details, to be used for wind turbines or solar facility installations; if multiple foundation designs are to be utilized for the facility, the foundation type at each location will be specified on foundation plans (listed in a table or indicated on corresponding site plans). Applicable criteria regarding foundation design and installation shall be listed and described in the drawings. Foundation drawings shall be stamped and signed by a professional engineer, licensed and registered in New York State.

(3)Copies of any agreements entered with the owners/operators of existing high-pressure gas pipelines regarding the protection of those facilities.

(d)Wind turbine certifications.

(1)A design verification, confirming that the wind turbines were designed in accordance with international electrotechnical commission (IEC) 61400-1:2019 (see section 900-15.1[b][1][i] of this Part).

(e)Construction management.

(1)A quality assurance and control plan, which shall include job titles and qualifications necessary, demonstrating how the permittee will monitor and assure conformance of facility design, engineering and installation, including general concrete testing procedures with a plan outlining the monitoring and testing of concrete procedures in conformance with and reference to all applicable codes and standards.

(2)A construction operations plan, which shall indicate all material lay-down areas, construction preparation areas, temporary concrete batch location, major excavation and soil storage areas, and construction equipment.

(3)A facility maintenance and management plan, which shall include plans, procedures and criteria specifically addressing the following topics:

(i)inspections, maintenance, and repairs of turbines, solar panels, inverters, and associated equipment, including conformance with manufacturer’s required maintenance schedules, safety inspections, and tower integrity; and

(ii)electric collection, transmission, and interconnect line inspections, maintenance, and repairs.

(4)A vegetation management plan, which shall include, at a minimum, the following:

(i)vegetation management practices for switchyard and substation yards and for transmission and interconnection facilities, including danger trees (trees that due to location and condition are a particular threat to fall on and damage electrical equipment) around transmission and interconnection facilities, specifications for clearances, inspection and treatment schedules, and environmental controls to avoid off-site effects;

(ii)vegetation management recommendations, based on on-site surveys of vegetation cover types and growth habits of undesirable vegetation species;

(iii)planting of native vegetation, based on on-site surveys of vegetation cover types and growth habits of undesirable vegetation species;

(iv)restoration of disturbed areas, ruts, and rills to original grades and conditions with permanent re-vegetation and erosion controls appropriate for those locations;

(v)all proposed chemical and mechanical techniques for managing undesirable vegetation. Herbicide use and limitations, specifications, and control measures shall be included;

(vi)substation fence-line clearances, and overhead wire security clearance zone specifications, indicating applicable safety, reliability and operational criteria;

(vii)inspection and target treatment schedules and exceptions;

(viii)standards and practices for inspection of facilities easements for erosion hazard, failure of drainage facilities, hazardous conditions after storm events or other incidents;

(ix)review and response procedures to avoid conflicts with future use encroachment or infrastructure development; and

(x)host landowner notification procedures.

(5)Facility communications plan, which shall include the permittee’s construction organizational structure, contact list, and protocol for communication between parties. The permittee shall provide to NYSDPS staff, office staff and the municipalities the names and contact information of all individuals responsible for facility oversight.

(6)Environmental monitoring plan, including names and qualifications of companies that will serve as environmental monitors (including agricultural monitor).

(7)A complaint management plan, which shall describe, at a minimum, the following:

(i)methods for registering a complaint, which shall include a phone number, email address, mailing address, and a form to report complaints;

(ii)notification to the public of the complaint procedures;

(iii)process for responding to and resolving complaints in a consistent, timely, and respectful manner;

(iv)logging and tracking of all complaints received and resolutions achieved, with records of the following for each complaint containing:

(a)the name and contact information of the person filing the complaint;

(b)location and owner of the property where the complaint originated;

(c)date and time of the underlying event causing the complaint;

(d)description of the complaint; and

(e)current status and description of measures taken to resolve complaint;

(v)reporting to the office and the NYSDPS any complaints not resolved within 30 days of receipt;

(vi)mediating complaints not resolved within 60 days; and

(vii)providing annual reports of complaint resolution tracking to the office staff and NYSDPS staff, which shall also be filed with the executive director of the office and secretary of the NYSDPS.

(8)A traffic control plan shall be in effect during facility construction, to ensure safety and minimize potential delays to local traffic during construction, which shall describe, at a minimum, the following:

(i)Maps and plans showing final haul routes developed in consultation with the host municipalities and NYS, county and municipal highway officials in coordination with the turbine manufacturer. Final haul routes shall be accurately depicted in drawings submitted with the traffic control plan.

(ii)Copies of all necessary transportation permits from the affected State, county, and municipal agencies for such equipment and/or materials on such route. Such permits shall include but not be limited to: highway work permits to work within the ROW, permits to exceed posted weight limits, highway utility permits to construct facilities within ROW, traffic signal permits to work within ROW, special haul permits for oversize/overweight vehicles, and divisible load overweight permits.

(iii)Copies of all necessary agreements with utility companies for raising or relocating overhead wires where necessary to accommodate the oversize/overweight delivery vehicles, if applicable.

(iv)A copy of all road use and restoration agreements, if any, between the permittee and landowners, municipalities, or other entities, regarding repair of local roads damaged by heavy equipment, construction or maintenance activities during construction and operation of the facility.

(f)Environmental.

(1)Proof that the required payment was made into the endangered and threatened species mitigation bank fund, if required.

(2)A copy of the wetland restoration and mitigation plan, if required.

(3)A copy of the stream restoration and mitigation plan, if required.

(4)A copy of the invasive species control and management plan (ISCMP), prepared in compliance with 6 NYCRR Part 575, which shall include the following information:

(i)baseline mapping of all invasive species within the facility area and for 100 feet beyond the facility’s limit of disturbance (LOD). The baseline mapping and data shall include the relative abundance and distribution of each invasive species prior to the commencement of any construction activities;

(ii)identification of specific control, removal, and disposal measures to be implemented for each identified and mapped invasive species/plant community during construction activities. The ISCMP shall include a detailed sequence and schedule for all mechanical and chemical control measures to be implemented during construction activities;

(iii)a detailed monitoring plan and specific sampling protocols for each identified and mapped invasive species/plant community within the facility area and for 100 feet beyond the LOD;

(iv)identification of specific control contingency measures to be implemented as part of the ISCMP for each identified and mapped invasive species for the duration of the facility adaptive management and monitoring period (

i.e.

, five years, unless extended). The ISCMP shall include a detailed sequence and schedule for all contingency mechanical and chemical control measures to be implemented during the monitoring period;

(v)specific contingency measures to be implemented (

i.e.

, regrading, re-planting of native species etc.) to achieve the final site restoration criteria (

i.e.

, 80 percent survivorship of appropriate native species reestablishment over all portions of the replanted areas, unless the baseline survey indicates a smaller percentage of appropriate species exists prior to construction);

(vi)details regarding the responsible party or parties designated to implement the ISCMP and what financial assurances exist to ensure successful monitoring and ISCMP implementation; and

(5)a copy of an inadvertent return flow plan containing the following requirements:

(i)erosion and sediment control shall be used at the point of HDD, so that drilling fluid shall not escape the drill site and enter NYS-regulated wetlands, waterbodies and streams (as delineated pursuant to section 900-1.3[e] and [f] of this Part). The disturbed area shall be restored to original grade and reseeded upon completion of HDD;

(ii)drilling fluid circulation shall be maintained to the extent practical;

(iii)if inadvertent returns occur in upland areas, the fluids shall be immediately contained and collected; and

(iv)if the amount of drilling fluids released is not enough to allow practical collection, the affected area shall be diluted with freshwater and allowed to dry and dissipate naturally.

(6)For wind facilities, a final geotechnical engineering report verifying subsurface conditions within the facility site, including the results of borings and/or test pits at each turbine location.

(g)A copy of a cultural resources avoidance, minimization and mitigation plan, providing:

(1)A demonstration that impacts of construction and operation of the facilities on cultural resources (including archeological sites and any stone landscape features, and historic resources) will be avoided or minimized to the extent practicable by selection the proposed facility’s location, design and/or implementation of identified mitigation measures.

(2)A cultural resources mitigation and offset plan, either as adopted by Federal permitting agency in subsequent National Historic Preservation Act (NHPA) section 106 review, or as required by the office, in consultation with New York State Historic Preservation Office (SHPO) in the event that the NHPA section 106 review does not require that the mitigation plan be implemented. Proof of mitigation funding awards for offset facility implementation to be provided within two years of the start of construction of the facility shall be included.

(h)Real property rights.

(1)A copy of all necessary titles to or leasehold interests in the facility, including ingress and egress access to public streets, and such deeds, easements, leases, licenses, or other real property rights or privileges as are necessary for all interconnections for the facility.

(2)Map of survey of facility site properties with property lines based on metes and bounds survey.

(3)Notarized memos or similar proof of agreement for any participating property whose owner has signed a participation agreement or other type of agreement addressing potential facility impacts (

e.g.

, noise, shadow flicker, setback, etc.).

(i)A copy of any interconnection agreements (IA).

(j)Documentation of all host community benefits to be provided by the permittee.

19 NYCRR 900-10.3 - Post-construction compliance filings

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(a)Any updated information regarding the design, safety and testing for the wind turbines, solar panel, inverters, substation, transformer, and battery storage equipment to be installed during construction as well as information regarding the design, safety, and testing for any equipment installed during facility operation as a replacement of failed or outdated equipment shall be filed within 14 days of completion of all final post-construction restoration.

(b)As-built plans in both hard and electronic copies shall be filed within nine months of the commencement of commercial operations of the facility and shall include the following:

(1)GIS shapefiles showing all components of the facility (wind turbine locations, solar panel array locations, electrical collection system, substation, buildings, access roads, met towers, point of interconnection, etc.);

(2)collection circuit layout map; and

(3)details for all facility component crossings of, and co-located installations of facility components with, existing pipelines: showing cover, separation distances, any protection measures installed, and locations of such crossings and co-located installations.

19 NYCRR 900-11.1 - Permit modifications requested by permittee

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(a)An application by the permittee to modify an existing permit including an approved compliance filing shall contain:

(1)a statement, including supporting information, setting forth the proposed permit or approved compliance filing modifications, identifying the existing condition(s) the permittee is requesting to be modified and whether the permittee considers such change to be a minor or major modification; and

(2)a statement that there are no outstanding permit violations at the facility.

(b)The office shall review the request and inform the permittee with 30 days as to its determination as to whether such changes constitute a minor modification to be processed by the office or a major modification subject to subdivision (c) of this section.

(c)Major modifications.

(1)A request for a major modification to an existing permit or an approved compliance filing shall be noticed, filed and served in the same manner as an application.

(2)A major modification to the permit or approved compliance filing may require the permittee to supplement the local agency account to the extent that the permittee is seeking to increase the base nameplate capacity of the facility.

(3)Major modifications shall be subject to a minimum 60 day public comment period in which comments regarding the proposed modification will be accepted by the office. In determining whether a major modification should be approved, the office shall only accept and consider comments with respect to the changes proposed by the permittee.

(4)The permittee shall provide a response to public comments within 15 days of close of the public comment period.

(5)Major modifications may be subject to an adjudicatory hearing pursuant to Subpart 900-8 of this Part. Such hearing would be limited to only those changes proposed by the permittee for which significant and substantive issues have been identified.

(6)The office shall mail to the permittee a decision in the form of a modified permit, revised compliance filing requirement, or a statement that the major permit modification applied for has been denied, with an explanation for the denial.

19 NYCRR 900-11.2 - Transfers of permit and pending applications

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(a)A permit in effect may only be transferred to a person, as defined by section 900-1.2(bf) of this Part, who agrees in writing to comply with the terms, limitations, or conditions contained in the permit, and upon the approval of the office.

(b)Applications for the transfer of permits in effect, or pending permit applications, to a different permittee or applicant, or to change the name of the permittee or applicant, shall be submitted to the office and shall contain:

(1)a statement of the reasons supporting the transfer;

(2)a statement showing the transferee is qualified to carry out the provisions of the permit or any pending permit application and requirements of this Part;

(3)a verification by all parties to the proposed transfer;

(4)if required by the office, a copy of the proposed transfer agreement; and

(5)name, address, telephone number and electronic mail address of an employee or representative of the permittee or applicant from whom further information may be obtained.

(c)Applications for transfer of permits in effect, or pending permit applications, should be submitted to the office at least 30 days prior to transfer, unless a different time period is authorized by the office.

(d)An application for a permit transfer shall not include or cause a significant change in the design or operation of the project as approved by the office in a siting permit issued pursuant to section 94-c of the Executive Law or as described in an application pending before the office.

(e)The new permittee, or applicant, shall satisfy any required financial obligations and insurance coverage prior to approval of a transfer of an issued permit or pending application.

(f)A new permittee, or applicant, may be subject to a record of compliance review before a decision on permit or application transfer is rendered by the office.

(g)Any noncompliance by the existing permittee, associated with a permit proposed to be transferred, shall be resolved to the office’s satisfaction prior to transfer of such permit.

19 NYCRR 900-11.3 - Relinquishments

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(a)A person may relinquish a permit by sending a written notification to the office. The notification shall:

(1)identify the permit to be relinquished by its permit number;

(2)state why the permit is being relinquished;

(3)describe how the provisions and conditions of the permit have been satisfied; and

(4)provide an explanation of any remaining actions required at the site or facility prior to terminating the permit.

(b)In reviewing a request to relinquish a permit, the office shall confirm whether or not permit provisions and conditions have been satisfied, including post-operational and decommissioning requirements as set forth in section 900-2.24 of this Part. The office shall provide written verification of its concurrence with permit relinquishment or provide reasons why the permit shall remain in effect.

19 NYCRR 900-11.4 - Permit modifications by the office

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(a)Permits may be modified or terminated on the basis of any of the following:

(1)materially false or inaccurate statements in the permit application, compliance filings or supporting papers;

(2)failure by the permittee to comply with any terms or conditions of the permit conditions, orders of the executive director, or any provisions of law or regulations related to the permitted activity;

(3)exceeding the scope of the project as described in the permit application; or

(4)newly discovered material information or a material change in environmental conditions, relevant technology or applicable law or regulations since the issuance of the existing permit.

(b)The office shall send a notice of intent to modify or terminate a permit to the permittee by certified mail return receipt requested or personal service and publish notice on the office’s website. The notice shall state the alleged facts or conduct which appear to warrant the intended action and shall state the effective date, contingent upon administrative appeals, of the modification.

(c)Within 15 days of mailing a notice of intent, the permittee may submit a written statement to the office, as directed, giving reasons why the permit should not be modified or terminated, requesting a hearing, or both. Failure by the permittee to timely submit a statement shall result in the office’s action becoming effective on the date specified in the notice of intent.

(d)Where the office proposes to modify or terminate a permit and the permittee requests a hearing on the proposed modification, the original permit conditions or permit status shall remain in effect until a decision is issued by the executive director pursuant to subdivision (f) of this section. At such time, the permit conditions or permit status supported by the executive director’s decision shall take effect.

(e)Within 15 days of receipt of the permittee’s statement, the office shall either:

(1)rescind or confirm the notice of intent to modify or terminate based on a review of the information provided by the permittee, if a statement without a request for a hearing is submitted; or

(2)notify the permittee that a hearing shall be held at a date and place to be established by the Office of Hearings, if a statement with a request for a hearing has been submitted. The provisions of Subpart 900-8 of this Part apply to hearings conducted pursuant to this section, except that the time periods provided for in section 900-8.1 of this Part shall be measured from date of receipt of the permittee’s request for a hearing.

(f)In the event such a hearing is held, the executive director shall, within 30 days of receipt of the complete record, issue a decision which:

(1)continues the permit in effect as originally issued; or

(2)modifies the permit; or

(3)terminates the permit.

(g)Notice of such decision, stating the findings and reasons therefor, shall be provided to the applicant pursuant to the procedures set forth in Subpart 900-9 of this Part.

19 NYCRR 900-12.1 - Enforcement

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(a)The NYSDPS or PSC shall have the authority to monitor, administer and enforce compliance with all terms and conditions set forth in an office-issued siting permit, including but not limited to, the authority set forth in sections 25, 26 and 68 of the Public Service Law and implementing regulations.

(b)Staff from the ORES and the NYSDPS shall have the authority -- in the absence of responsible permittee supervisory personnel, or in the presence of such personnel who, after consultation with ORES or NYSDPS staff, refuses to take appropriate action -- to issue a stop work order and direct the field crews to stop the specific potentially harmful activity immediately, in the event of any emergency resulting from the specific construction or maintenance activities that violate, or may violate, the terms of a siting permit issued by the office, compliance filings submitted pursuant to Subpart of 900-10 of this Part, or any other supplemental filings. Any stop work order shall be limited to the activity at issue and/or the affected areas of the facility.

(c)If responsible permittee personnel are not on site, ORES and/or NYSDPS staff shall immediately thereafter inform the permittee’s construction supervisor(s) and/or environmental monitor(s) of the action taken.

(d)A stop work order shall expire 24 hours after issuance, or earlier if the issue promoting the stop work order is resolved, unless confirmed by the executive director of the office or the commissioner of the PSC. ORES and/or NYSDPS staff shall give the permittee notice by electronic mail of any application to have a stop work order so confirmed. If a stop work order is confirmed, the permittee may seek reconsideration from the executive director of the office or the commissioner of the PSC.

(e)If the emergency prompting the issuance of a stop work order is resolved to the satisfaction of the office or the NYSDPS, the stop work order shall be lifted. If the emergency has not been satisfactorily resolved, the stop work order shall remain in effect.

(f)Stop work authority shall be exercised sparingly and with due regard to potential environmental impact, economic costs involved, possible impact on construction activities, and whether an applicable statute or regulation is violated. Before exercising such authority, ORES and/or NYSDPS staff shall consult wherever practicable with the permittee’s representative(s) possessing comparable authority. Within reasonable time constraints, all attempts will be made to address any issue and resolve any dispute in the field.

(g)Issuance of a stop work order shall not prevent the permittee nor the contractor from undertaking any safety-related activities as they deem necessary and appropriate under the circumstances.

(h)If ORES and/or NYSDPS staff determines that a significant threat exists such that protection of the public or the environment at a particular location requires the immediate implementation of specific measures, the respective staff may, in the absence of responsible permittee supervisory personnel, or in the presence of such personnel who refuse to take appropriate action, direct the permittee or the relevant contractors to implement the corrective measures identified in the approved siting permit or compliance filings.

All such directives shall follow the protocol established for communication between parties as set forth in the approved facility communications plan submitted pursuant to section 900-10.2(e)(5) of this Part. The field crews shall immediately comply with ORES and/or NYSDPS staff directives as provided through the communication protocol. ORES and/or NYSDPS staff shall immediately thereafter inform the permittee’s construction manager(s) and/or environmental monitor(s) of the action taken.

19 NYCRR 900-13.1 - Severability

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If any provision of this Part or its application to any person or circumstance is determined to be contrary to law by a court of competent jurisdiction, such determination does not affect or impair the validity of the other provisions of this Part or the application to other persons and circumstances.

19 NYCRR 900-14.1 - Effective date

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This Part applies to applications received by the office on or after the effective date of this Part.

19 NYCRR 900-15.1 - Material incorporated by reference

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19 NYCRR 900-15.2 - Office address

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The materials referenced above are available for public inspection and copying at the Office of Renewable Energy Siting, New York State Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231- 0001.

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