A. 8696 2
S 160. DEFINITIONS. WHERE USED IN THIS ARTICLE, THE FOLLOWING TERMS,
UNLESS THE CONTEXT OTHERWISE REQUIRES, SHALL HAVE THE FOLLOWING MEAN-
INGS:
1. "MUNICIPALITY" MEANS A COUNTY, CITY, TOWN OR VILLAGE LOCATED IN
THIS STATE.
2. "MAJOR ELECTRIC GENERATING FACILITY" MEANS AN ELECTRIC GENERATING
FACILITY WITH A NAMEPLATE GENERATING CAPACITY OF THIRTY THOUSAND KILO-
WATTS OR MORE, INCLUDING INTERCONNECTION ELECTRIC TRANSMISSION LINES AND
FUEL GAS TRANSMISSION LINES THAT ARE NOT SUBJECT TO REVIEW UNDER ARTICLE
SEVEN OF THIS CHAPTER. FOR PURPOSES OF THIS ARTICLE, MAJOR ELECTRIC
GENERATING FACILITY SHALL INCLUDE ANY COMBINATION OF POWER PLANTS WHICH
EXCEEDS THIRTY THOUSAND KILOWATTS OF NAMEPLATE GENERATING CAPACITY,
BUILT OR CAUSED TO BE BUILT BY A SINGLE PERSON WITHIN A TWELVE MONTH
PERIOD.
3. "PERSON" MEANS ANY INDIVIDUAL, CORPORATION, PUBLIC BENEFIT CORPO-
RATION, POLITICAL SUBDIVISION, GOVERNMENTAL AGENCY, MUNICIPALITY, PART-
NERSHIP, CO-OPERATIVE ASSOCIATION, TRUST OR ESTATE.
4. "BOARD" MEANS THE NEW YORK STATE BOARD ON ELECTRIC GENERATION
SITING AND THE ENVIRONMENT, WHICH SHALL BE IN THE DEPARTMENT AND CONSIST
OF SEVEN PERSONS: THE CHAIR OF THE DEPARTMENT, WHO SHALL SERVE AS CHAIR
OF THE BOARD; THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION; THE
COMMISSIONER OF HEALTH; THE CHAIR OF THE NEW YORK STATE ENERGY RESEARCH
AND DEVELOPMENT AUTHORITY; THE COMMISSIONER OF ECONOMIC DEVELOPMENT AND
TWO AD HOC PUBLIC MEMBERS. ONE AD HOC PUBLIC MEMBER SHALL BE APPOINTED
BY THE CHIEF EXECUTIVE OFFICER REPRESENTING THE MUNICIPALITY IN WHICH
THE FACILITY IS PROPOSED, OR, IN THE CITY OF NEW YORK, BY THE CHAIR-
PERSON OF THE COMMUNITY BOARD OF THE COMMUNITY DISTRICT IN WHICH THE
FACILITY IS PROPOSED, AND WHICH MEMBER SHALL BE A RESIDENT OF SUCH MUNI-
CIPALITY OR SUCH COMMUNITY DISTRICT IN WHICH THE FACILITY IS PROPOSED.
THE SECOND AD HOC PUBLIC MEMBER SHALL BE APPOINTED BY THE CHIEF EXECU-
TIVE OFFICER OF THE COUNTY IN WHICH THE FACILITY IS PROPOSED, OR IN THE
CITY OF NEW YORK, BY THE BOROUGH PRESIDENT OF THE COUNTY IN WHICH THE
FACILITY IS PROPOSED, AND WHICH MEMBER SHALL BE A RESIDENT OF SUCH COUN-
TY OR SUCH BOROUGH. THE TERM OF THE AD HOC PUBLIC MEMBERS SHALL CONTIN-
UE UNTIL A FINAL DETERMINATION IS MADE IN THE PARTICULAR PROCEEDING FOR
WHICH THEY WERE APPOINTED.
5. "CERTIFICATE" MEANS A CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY
AND PUBLIC NEED AUTHORIZING THE CONSTRUCTION OF A MAJOR ELECTRIC GENER-
ATING FACILITY ISSUED BY THE BOARD PURSUANT TO THIS ARTICLE.
6. "NAMEPLATE" MEANS A MANUFACTURER'S DESIGNATION, GENERALLY AS
AFFIXED TO THE GENERATOR UNIT, WHICH STATES THE TOTAL OUTPUT OF SUCH
GENERATING FACILITY AS ORIGINALLY DESIGNED ACCORDING TO THE MANUFACTUR-
ER'S ORIGINAL DESIGN SPECIFICATIONS.
7. "PUBLIC INFORMATION COORDINATOR" MEANS AN OFFICE CREATED WITHIN THE
DEPARTMENT WHICH SHALL ASSIST AND ADVISE INTERESTED PARTIES AND MEMBERS
OF THE PUBLIC IN PARTICIPATING IN THE SITING AND CERTIFICATION OF MAJOR
ELECTRIC GENERATING FACILITIES. THE DUTIES OF THE PUBLIC INFORMATION
OFFICER SHALL INCLUDE, BUT NOT BE LIMITED TO: (A) IMPLEMENTING MEASURES
THAT ASSURE FULL AND ADEQUATE PUBLIC PARTICIPATION IN MATTERS BEFORE THE
BOARD; (B) RESPONDING TO INQUIRIES FROM THE PUBLIC FOR INFORMATION ON
HOW TO PARTICIPATE IN MATTERS BEFORE THE BOARD; (C) ASSISTING THE PUBLIC
IN REQUESTING RECORDS RELATING TO MATTERS BEFORE THE BOARD; (D) ENSURING
ALL INTERESTED PERSONS ARE PROVIDED WITH A REASONABLE OPPORTUNITY TO
PARTICIPATE AT PUBLIC MEETINGS RELATING TO MATTERS BEFORE THE BOARD; (E)
ENSURING THAT ALL NECESSARY OR REQUIRED DOCUMENTS ARE AVAILABLE FOR
PUBLIC ACCESS ON THE DEPARTMENT'S WEBSITE WITHIN ANY TIME PERIODS SPECI-
A. 8696 3
FIED WITHIN THIS ARTICLE; AND (F) ANY OTHER DUTIES AS MAY BE PRESCRIBED
BY THE BOARD, AFTER CONSULTATION WITH THE DEPARTMENT.
S 161. GENERAL PROVISIONS RELATING TO THE BOARD. UPON RECEIPT OF A
PRE-APPLICATION PRELIMINARY SCOPING STATEMENT UNDER THIS ARTICLE, THE
CHAIR SHALL PROMPTLY NOTIFY THE GOVERNOR; THE CHIEF EXECUTIVE OFFICER
REPRESENTING THE MUNICIPALITY IN WHICH THE FACILITY IS PROPOSED, OR, IN
THE CITY OF NEW YORK, THE CHAIRPERSON OF THE COMMUNITY BOARD OF THE
COMMUNITY DISTRICT IN WHICH THE FACILITY IS PROPOSED; AND THE CHIEF
EXECUTIVE OFFICER OF THE COUNTY IN WHICH THE FACILITY IS PROPOSED, OR IN
THE CITY OF NEW YORK, THE BOROUGH PRESIDENT OF THE COUNTY IN WHICH THE
FACILITY IS PROPOSED. WITHIN THIRTY DAYS OF SUCH NOTIFICATION THE CHIEF
EXECUTIVE OFFICERS SHALL APPOINT THE AD HOC PUBLIC MEMBERS. FOUR OF THE
SEVEN PERSONS ON THE BOARD SHALL CONSTITUTE A QUORUM FOR THE TRANSACTION
OF ANY BUSINESS OF THE BOARD, AND THE DECISION OF FOUR MEMBERS OF THE
BOARD SHALL CONSTITUTE ACTION OF THE BOARD. IN THE EVENT THAT ONE OR
BOTH OF THE AD HOC PUBLIC MEMBERS HAVE NOT BEEN APPOINTED WITHIN THIRTY
DAYS, A MAJORITY OF PERSONS NAMED TO THE BOARD SHALL CONSTITUTE A
QUORUM. THE BOARD, EXCLUSIVE OF THE AD HOC PUBLIC MEMBERS, SHALL HAVE
THE POWER TO ADOPT RULES AND REGULATIONS RELATING TO THE PROCEDURES TO
BE USED IN CERTIFYING FACILITIES UNDER THE PROVISIONS OF THIS ARTICLE,
SUBJECT TO PROCEDURES ESTABLISHED BY THE STATE ADMINISTRATIVE PROCEDURE
ACT, INCLUDING THE SUSPENSION OR REVOCATION THEREOF, AND SHALL FURTHER
HAVE THE POWER TO SEEK DELEGATION FROM THE FEDERAL GOVERNMENT PURSUANT
TO FEDERAL REGULATORY PROGRAMS APPLICABLE TO THE SITING OF MAJOR ELEC-
TRIC GENERATING FACILITIES. THE CHAIR, AFTER CONSULTATION WITH THE OTHER
MEMBERS OF THE BOARD EXCLUSIVE OF THE AD HOC PUBLIC MEMBERS, SHALL HAVE
EXCLUSIVE JURISDICTION TO ISSUE DECLARATORY RULINGS REGARDING THE APPLI-
CABILITY OF, OR ANY OTHER QUESTION UNDER, THIS ARTICLE AND RULES AND
REGULATIONS ADOPTED HEREUNDER. REGULATIONS ADOPTED BY THE BOARD MAY
PROVIDE FOR RENEWAL APPLICATIONS FOR POLLUTANT CONTROL PERMITS TO BE
SUBMITTED TO AND ACTED UPON BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVA-
TION FOLLOWING COMMERCIAL OPERATION OF A CERTIFIED FACILITY.
IN ADDITION TO THE REQUIREMENTS OF THE PUBLIC OFFICERS LAW, NO PERSON
SHALL BE ELIGIBLE TO BE AN APPOINTEE OF THE GOVERNOR TO THE BOARD WHO
HOLDS ANOTHER STATE OR LOCAL OFFICE. NO MEMBER OF THE BOARD MAY RETAIN
OR HOLD ANY OFFICIAL RELATION TO, OR ANY SECURITIES OF AN ELECTRIC UTIL-
ITY CORPORATION OPERATING OR PROPOSED FOR OPERATION IN THE STATE, ANY
AFFILIATE THEREOF OR ANY OTHER COMPANY, FIRM, PARTNERSHIP, CORPORATION,
ASSOCIATION OR JOINT-STOCK ASSOCIATION THAT MAY APPEAR BEFORE THE BOARD,
NOR SHALL EITHER OF THE APPOINTEES HAVE BEEN A DIRECTOR, OFFICER OR,
WITHIN THE PREVIOUS TEN YEARS, AN EMPLOYEE THEREOF. THE AD HOC PUBLIC
MEMBERS OF THE BOARD SHALL RECEIVE THE SUM OF TWO HUNDRED DOLLARS FOR
EACH DAY IN WHICH THEY ARE ACTUALLY ENGAGED IN THE PERFORMANCE OF THEIR
DUTIES HEREIN PLUS ACTUAL AND NECESSARY EXPENSES INCURRED BY THEM IN THE
PERFORMANCE OF SUCH DUTIES. THE CHAIR SHALL PROVIDE SUCH PERSONNEL,
HEARING EXAMINERS, SUBORDINATES, EMPLOYEES AND SUCH LEGAL, TECHNOLOG-
ICAL, SCIENTIFIC, ENGINEERING AND OTHER SERVICES AND SUCH MEETING ROOMS,
HEARING ROOMS AND OTHER FACILITIES AS MAY BE REQUIRED IN PROCEEDINGS
UNDER THIS ARTICLE. THE BOARD MAY PROVIDE FOR ITS OWN REPRESENTATION AND
APPEARANCE IN ALL ACTIONS AND PROCEEDINGS INVOLVING ANY QUESTION UNDER
THIS ARTICLE. THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION SHALL PROVIDE
ASSOCIATE HEARING EXAMINERS. EACH MEMBER OF THE BOARD OTHER THAN THE AD
HOC PUBLIC MEMBERS MAY DESIGNATE AN ALTERNATE TO SERVE INSTEAD OF THE
MEMBER WITH RESPECT TO ALL PROCEEDINGS PURSUANT TO THIS ARTICLE. SUCH
DESIGNATION SHALL BE IN WRITING AND FILED WITH THE CHAIR.
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S 162. BOARD CERTIFICATE. 1. NO PERSON SHALL COMMENCE THE PREPARATION
OF A SITE FOR, OR BEGIN THE CONSTRUCTION OF A MAJOR ELECTRIC GENERATING
FACILITY IN THE STATE, OR INCREASE THE CAPACITY OF AN EXISTING ELECTRIC
GENERATING FACILITY BY MORE THAN THIRTY THOUSAND KILOWATTS WITHOUT
HAVING FIRST OBTAINED A CERTIFICATE ISSUED WITH RESPECT TO SUCH FACILITY
BY THE BOARD. ANY SUCH FACILITY WITH RESPECT TO WHICH A CERTIFICATE IS
ISSUED SHALL NOT THEREAFTER BE BUILT, MAINTAINED OR OPERATED EXCEPT IN
CONFORMITY WITH SUCH CERTIFICATE AND ANY TERMS, LIMITATIONS OR CONDI-
TIONS CONTAINED THEREIN, PROVIDED THAT NOTHING HEREIN SHALL EXEMPT SUCH
FACILITY FROM COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS AND REGU-
LATIONS EXCEPT AS OTHERWISE PROVIDED IN THIS ARTICLE. LOCAL LAWS AND
REGULATIONS SHALL APPLY AS OF THE DATE OF THE FILING OF THE PRE-APPLICA-
TION PRELIMINARY SCOPING STATEMENT, EXCEPT TO THE EXTENT THAT ANY LOCAL
LAWS AND REGULATIONS ARE MODIFIED TO EFFECTUATE LAND USE PLANS OR
PROPOSALS INITIATED PRIOR TO THE DATE OF THE FILING OF THE PRE-APPLICA-
TION PRELIMINARY SCOPING STATEMENT. A CERTIFICATE FOR A MAJOR ELECTRIC
GENERATING FACILITY, OR AN INCREASE IN THE CAPACITY OF AN EXISTING ELEC-
TRIC GENERATING FACILITY BY MORE THAN THIRTY THOUSAND KILOWATTS, MAY BE
ISSUED ONLY PURSUANT TO THIS ARTICLE.
2. A CERTIFICATE MAY BE TRANSFERRED, SUBJECT TO THE APPROVAL OF THE
BOARD, TO A PERSON WHO AGREES TO COMPLY WITH THE TERMS, LIMITATIONS AND
CONDITIONS CONTAINED THEREIN.
3. A CERTIFICATE ISSUED UNDER THIS ARTICLE MAY BE AMENDED PURSUANT TO
THIS SECTION.
4. THIS ARTICLE SHALL NOT APPLY: (A) TO A MAJOR ELECTRIC GENERATING
FACILITY OVER WHICH ANY AGENCY OR DEPARTMENT OF THE FEDERAL GOVERNMENT
HAS EXCLUSIVE JURISDICTION, OR HAS JURISDICTION CONCURRENT WITH THAT OF
THE STATE AND HAS EXERCISED SUCH JURISDICTION TO THE EXCLUSION OF REGU-
LATION OF THE FACILITY BY THE STATE;
(B) TO NORMAL REPAIRS, REPLACEMENTS, MODIFICATIONS AND IMPROVEMENTS OF
A MAJOR ELECTRIC GENERATING FACILITY, WHENEVER BUILT, WHICH DO NOT
CONSTITUTE A VIOLATION OF ANY CERTIFICATE ISSUED UNDER THIS ARTICLE AND
WHICH DO NOT RESULT IN AN INCREASE IN CAPACITY OF THE FACILITY OF MORE
THAN THIRTY THOUSAND KILOWATTS;
(C) TO A MAJOR ELECTRIC GENERATING FACILITY (I) CONSTRUCTED ON LANDS
DEDICATED TO INDUSTRIAL USES, (II) THE OUTPUT OF WHICH SHALL BE USED
SOLELY FOR INDUSTRIAL PURPOSES, ON THE PREMISES, AND (III) THE GENERAT-
ING CAPACITY OF WHICH DOES NOT EXCEED TWO HUNDRED THOUSAND KILOWATTS; OR
(D) TO A MAJOR ELECTRIC GENERATING FACILITY IF, ON OR BEFORE THE
EFFECTIVE DATE OF THIS ARTICLE, AN APPLICATION HAS BEEN MADE FOR A
LICENSE, PERMIT, CERTIFICATE, CONSENT OR APPROVAL FROM ANY FEDERAL,
STATE OR LOCAL COMMISSION, AGENCY, BOARD OR REGULATORY BODY, IN WHICH
APPLICATION THE LOCATION OF THE MAJOR ELECTRIC GENERATING FACILITY HAS
BEEN DESIGNATED BY THE APPLICANT; OR IF THE FACILITY IS UNDER
CONSTRUCTION AT SUCH TIME.
5. ANY PERSON INTENDING TO CONSTRUCT A MAJOR ELECTRIC GENERATING
FACILITY EXCLUDED FROM THIS ARTICLE PURSUANT TO PARAGRAPH (B), (C), OR
(D) OF SUBDIVISION FOUR OF THIS SECTION MAY ELECT TO BECOME SUBJECT TO
THE PROVISIONS OF THIS ARTICLE BY DELIVERING NOTICE OF SUCH ELECTION TO
THE CHAIR OF THE BOARD. THIS ARTICLE SHALL THEREAFTER APPLY TO EACH
ELECTRIC GENERATING FACILITY IDENTIFIED IN SUCH NOTICE FROM THE DATE OF
ITS RECEIPT BY THE CHAIR OF THE BOARD. FOR THE PURPOSES OF THIS ARTICLE,
EACH SUCH FACILITY SHALL BE TREATED IN THE SAME MANNER AS A MAJOR ELEC-
TRIC GENERATING FACILITY AS DEFINED IN THIS ARTICLE.
S 163. PRE-APPLICATION PROCEDURES. 1. ANY PERSON PROPOSING TO SUBMIT
AN APPLICATION FOR A CERTIFICATE SHALL FILE WITH THE CHAIR OF THE BOARD
A. 8696 5
A PRELIMINARY SCOPING STATEMENT CONTAINING A BRIEF DISCUSSION, ON THE
BASIS OF AVAILABLE INFORMATION, OF THE FOLLOWING ITEMS:
(A) DESCRIPTION OF THE PROPOSED FACILITY AND ITS ENVIRONMENTAL
SETTING;
(B) POTENTIAL ENVIRONMENTAL AND HEALTH IMPACTS FROM THE INCREMENTAL
INCREASE IN POLLUTION RESULTING FROM THE CONSTRUCTION AND OPERATION OF
THE PROPOSED FACILITY;
(C) PROPOSED STUDIES OR PROGRAM OF STUDIES DESIGNED TO EVALUATE POTEN-
TIAL ENVIRONMENTAL AND HEALTH IMPACTS;
(D) MEASURES PROPOSED TO MINIMIZE ENVIRONMENTAL IMPACTS; AND
(E) WHERE THE PROPOSED FACILITY INTENDS TO USE PETROLEUM OR OTHER
BACK-UP FUEL FOR GENERATING ELECTRICITY, A DISCUSSION AND/OR STUDY OF
THE SUFFICIENCY OF THE PROPOSED ON-SITE FUEL STORAGE CAPACITY AND SUPPLY
INCLUDING AN ANALYSIS OF THE POTENTIAL IMPACT OF UTILIZING THE BACK-UP
FUEL UPON THE FUEL SUPPLY AND DELIVERY INDUSTRIES; AND
(F) ANY OTHER INFORMATION THAT MAY BE RELEVANT OR THAT THE BOARD MAY
REQUIRE.
2. SUCH PERSON SHALL SERVE COPIES OF THE PRELIMINARY SCOPING STATEMENT
ON PERSONS ENUMERATED IN PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION ONE
HUNDRED SIXTY-FOUR OF THIS ARTICLE AND PROVIDE NOTICE OF SUCH STATEMENT
AS PROVIDED IN PARAGRAPH (B) OF SUCH SUBDIVISION IN PLAIN LANGUAGE, IN
ENGLISH AND IN ANY OTHER LANGUAGE SPOKEN AS DETERMINED BY THE BOARD BY A
SIGNIFICANT PORTION OF THE POPULATION IN THE COMMUNITY, THAT DESCRIBES
THE PROPOSED FACILITY AND ITS LOCATION, THE RANGE OF POTENTIAL ENVIRON-
MENTAL AND HEALTH IMPACTS OF EACH POLLUTANT, THE APPLICATION AND REVIEW
PROCESS, AND A CONTACT PERSON, WITH PHONE NUMBER AND ADDRESS, FROM WHOM
INFORMATION WILL BE AVAILABLE AS THE APPLICATION PROCEEDS.
3. TO FACILITATE THE PRE-APPLICATION AND APPLICATION PROCESSES AND
ENABLE CITIZENS TO PARTICIPATE IN DECISIONS THAT AFFECT THEIR HEALTH AND
SAFETY AND THE ENVIRONMENT, THE DEPARTMENT AND SUCH PERSON SHALL PROVIDE
OPPORTUNITIES FOR CITIZEN INVOLVEMENT. SUCH OPPORTUNITIES SHALL ENCOUR-
AGE CONSULTATION WITH THE PUBLIC EARLY IN THE PRE-APPLICATION AND APPLI-
CATION PROCESSES, ESPECIALLY BEFORE ANY PARTIES ENTER A STIPULATION
PURSUANT TO SUBDIVISION FOUR OF THIS SECTION. THE PRIMARY GOALS OF THE
CITIZEN PARTICIPATION PROCESS SHALL BE TO FACILITATE COMMUNICATION
BETWEEN THE APPLICANT AND INTERESTED OR AFFECTED PERSONS. THE PROCESS
SHALL FOSTER THE ACTIVE INVOLVEMENT OF THE INTERESTED OR AFFECTED
PERSONS.
4. (A) EACH PRE-APPLICATION PRELIMINARY SCOPING STATEMENT SHALL BE
ACCOMPANIED BY A FEE IN AN AMOUNT EQUAL TO TWO HUNDRED FIFTY DOLLARS FOR
EACH THOUSAND KILOWATTS OF GENERATING CAPACITY OF THE SUBJECT FACILITY,
BUT NO MORE THAN ONE HUNDRED THOUSAND DOLLARS, TO BE DEPOSITED IN THE
INTERVENOR ACCOUNT ESTABLISHED PURSUANT TO SECTION NINETY-SEVEN-TT OF
THE STATE FINANCE LAW, TO BE DISBURSED AT THE HEARING EXAMINER'S DIREC-
TION TO DEFRAY PRE-APPLICATION EXPENSES INCURRED BY MUNICIPAL AND OTHER
INTERESTED PARTIES (EXCEPT FOR A MUNICIPALITY SUBMITTING THE PRE-APPLI-
CATION SCOPING STATEMENT) FOR EXPERT WITNESS, CONSULTANT, ADMINISTRATIVE
AND LEGAL FEES. IF AT ANY TIME SUBSEQUENT TO THE FILING OF THE PRE-AP-
PLICATION THE PRE-APPLICATION IS SUBSTANTIALLY MODIFIED OR REVISED, THE
BOARD MAY REQUIRE AN ADDITIONAL PRE-APPLICATION INTERVENOR FEE IN AN
AMOUNT NOT TO EXCEED TWENTY-FIVE THOUSAND DOLLARS. ANY MONEYS REMAINING
IN THE INTERVENOR ACCOUNT UPON THE SUBMISSION OF AN APPLICATION FOR A
CERTIFICATE SHALL BE MADE AVAILABLE TO INTERVENORS ACCORDING TO PARA-
GRAPH (A) OF SUBDIVISION SIX OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS
ARTICLE.
A. 8696 6
(B) PRE-APPLICATION DISBURSEMENTS FROM THE INTERVENOR ACCOUNT SHALL BE
MADE IN ACCORDANCE WITH RULES AND REGULATIONS ESTABLISHED PURSUANT TO
PARAGRAPH (B) OF SUBDIVISION SIX OF SECTION ONE HUNDRED SIXTY-FOUR OF
THIS ARTICLE WHICH RULES SHALL PROVIDE FOR AN EXPEDITED PRE-APPLICATION
DISBURSEMENT SCHEDULE TO ASSURE EARLY AND MEANINGFUL PUBLIC INVOLVEMENT,
WITH AT LEAST ONE-HALF OF PRE-APPLICATION INTERVENOR FUNDS BECOMING
AVAILABLE THROUGH AN APPLICATION PROCESS WITHIN SIXTY DAYS OF THE FILING
OF A PRE-APPLICATION PRELIMINARY SCOPING STATEMENT.
5. AFTER MEETING THE REQUIREMENTS OF SUBDIVISIONS ONE THROUGH THREE
OF THIS SECTION, AND AFTER PRE-APPLICATION INTERVENOR FUNDS HAVE BEEN
ALLOCATED BY THE PRE-HEARING EXAMINER PURSUANT TO PARAGRAPH (A) OF
SUBDIVISION FOUR OF THIS SECTION, SUCH PERSON MAY CONSULT AND SEEK
AGREEMENT WITH ANY INTERESTED PERSON, INCLUDING, BUT NOT LIMITED TO, THE
STAFF OF THE DEPARTMENT, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
AND THE DEPARTMENT OF HEALTH, AS APPROPRIATE, AS TO ANY ASPECT OF THE
PRELIMINARY SCOPING STATEMENT AND ANY STUDY OR PROGRAM OF STUDIES MADE
OR TO BE MADE TO SUPPORT SUCH APPLICATION. THE STAFF OF THE DEPARTMENT,
THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, THE DEPARTMENT OF HEALTH,
THE PERSON PROPOSING TO FILE AN APPLICATION, AND ANY OTHER INTERESTED
PERSON MAY ENTER INTO A STIPULATION SETTING FORTH AN AGREEMENT ON ANY
ASPECT OF THE PRELIMINARY SCOPING STATEMENT AND THE STUDIES OR PROGRAM
OF STUDIES TO BE CONDUCTED. ANY SUCH PERSON PROPOSING TO SUBMIT AN
APPLICATION FOR A CERTIFICATE SHALL SERVE A COPY OF THE PROPOSED STIPU-
LATION UPON ALL PERSONS ENUMERATED IN PARAGRAPH (A) OF SUBDIVISION TWO
OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, PROVIDE NOTICE OF
SUCH STIPULATION TO THOSE PERSONS IDENTIFIED IN PARAGRAPH (B) OF SUCH
SUBDIVISION, AND AFFORD THE PUBLIC A REASONABLE OPPORTUNITY TO SUBMIT
COMMENTS ON THE STIPULATION BEFORE IT IS EXECUTED BY THE INTERESTED
PARTIES. NOTHING IN THIS SECTION, HOWEVER, SHALL BAR ANY PARTY TO A
HEARING ON AN APPLICATION, OTHER THAN ANY PARTY TO A PRE-APPLICATION
STIPULATION, FROM TIMELY RAISING OBJECTIONS TO ANY ASPECT OF THE PRELIM-
INARY SCOPING STATEMENT AND THE METHODOLOGY AND SCOPE OF ANY STIPULATED
STUDIES OR PROGRAM OF STUDIES IN ANY SUCH AGREEMENT. IN ORDER TO ATTEMPT
TO RESOLVE ANY QUESTIONS THAT MAY ARISE AS A RESULT OF SUCH CONSULTA-
TION, THE DEPARTMENT SHALL DESIGNATE A HEARING EXAMINER WHO SHALL OVER-
SEE THE PRE-APPLICATION PROCESS AND MEDIATE ANY ISSUE RELATING TO ANY
ASPECT OF THE PRELIMINARY SCOPING STATEMENT AND THE METHODOLOGY AND
SCOPE OF ANY SUCH STUDIES OR PROGRAMS OF STUDY. UPON COMPLETION OF THE
NOTICE PROVISIONS PROVIDED IN THIS SECTION, SUCH HEARING EXAMINER SHALL,
WITHIN SIXTY DAYS OF THE FILING OF A PRELIMINARY SCOPING STATEMENT,
CONVENE A MEETING OF INTERESTED PARTIES IN ORDER TO INITIATE THE STIPU-
LATION PROCESS.
S 164. APPLICATION FOR A CERTIFICATE. 1. AN APPLICANT FOR A CERTIF-
ICATE SHALL FILE WITH THE CHAIR OF THE BOARD AN APPLICATION, IN SUCH
FORM AS THE BOARD MAY PRESCRIBE CONTAINING THE FOLLOWING INFORMATION AND
MATERIALS:
(A) A DESCRIPTION OF THE SITE AND A DESCRIPTION OF THE FACILITY TO BE
BUILT THEREON; INCLUDING AVAILABLE SITE INFORMATION, MAPS AND
DESCRIPTIONS, PRESENT AND PROPOSED DEVELOPMENT, SOURCE AND VOLUME OF
WATER REQUIRED FOR PLANT OPERATION AND COOLING, ANTICIPATED EMISSIONS TO
AIR, INCLUDING BUT NOT LIMITED TO PARTICULATE MATTER OF 2.5 MICRONS OR
SMALLER, FEDERAL CRITERIA POLLUTANTS AND TOXINS, INCLUDING MERCURY,
ANTICIPATED DISCHARGES TO WATER AND GROUNDWATER, POLLUTION CONTROL
EQUIPMENT, AND, AS APPROPRIATE, GEOLOGICAL, AESTHETIC, ECOLOGICAL,
TSUNAMI, SEISMIC, BIOLOGICAL, WATER SUPPLY, POPULATION AND LOAD CENTER
DATA;
A. 8696 7
(B) STUDIES, IDENTIFYING THE AUTHOR AND DATE THEREOF, WHICH HAVE BEEN
MADE OF THE EXPECTED ENVIRONMENTAL AND HEALTH IMPACTS AND SAFETY IMPLI-
CATIONS OF THE FACILITY, BOTH DURING ITS CONSTRUCTION AND ITS OPERATION,
WHICH STUDIES ARE SUFFICIENT TO IDENTIFY (I) THE ANTICIPATED GASEOUS,
LIQUID AND SOLID WASTES TO BE PRODUCED AT THE FACILITY INCLUDING THEIR
SOURCE, ANTICIPATED VOLUMES, COMPOSITION AND TEMPERATURE, AND SUCH OTHER
ATTRIBUTES AS THE BOARD MAY SPECIFY AND THE PROBABLE LEVEL OF NOISE
DURING CONSTRUCTION AND OPERATION OF THE FACILITY; (II) THE TREATMENT
PROCESSES TO REDUCE WASTES TO BE RELEASED TO THE ENVIRONMENT, THE MANNER
OF DISPOSAL FOR WASTES RETAINED AND MEASURES FOR NOISE ABATEMENT; (III)
THE ANTICIPATED VOLUMES OF WASTES TO BE RELEASED TO THE ENVIRONMENT
UNDER ANY OPERATING CONDITION OF THE FACILITY, INCLUDING SUCH METEORO-
LOGICAL, HYDROLOGICAL AND OTHER INFORMATION NEEDED TO SUPPORT SUCH ESTI-
MATES; (IV) CONCEPTUAL ARCHITECTURAL AND ENGINEERING PLANS INDICATING
COMPATIBILITY OF THE FACILITY WITH THE ENVIRONMENT; (V) HOW THE
CONSTRUCTION AND OPERATION OF THE FACILITY, INCLUDING TRANSPORTATION AND
DISPOSAL OF WASTES WOULD COMPLY WITH ENVIRONMENTAL HEALTH AND SAFETY
STANDARDS, REQUIREMENTS, REGULATIONS AND RULES UNDER STATE AND MUNICIPAL
LAWS, AND A STATEMENT WHY ANY VARIANCES OR EXCEPTIONS SHOULD BE GRANTED;
(VI) WATER WITHDRAWALS FROM AND DISCHARGES TO THE WATERSHED; (VII) A
DESCRIPTION OF THE FUEL INTERCONNECTION AND SUPPLY FOR THE PROJECT; AND
(VIII) AN ELECTRIC INTERCONNECTION STUDY, CONSISTING GENERALLY OF A
DESIGN STUDY AND A SYSTEM RELIABILITY IMPACT STUDY;
(C) A STATEMENT DEMONSTRATING THAT THE FACILITY WILL SATISFY ADDI-
TIONAL ELECTRIC CAPACITY OR OTHER ELECTRIC SYSTEM NEEDS, AND THAT THE
CONSTRUCTION OF THE FACILITY IS REASONABLY CONSISTENT WITH LONG-RANGE
ENERGY PLANNING OBJECTIVES AND STRATEGIES;
(D) SUCH EVIDENCE AS WILL ENABLE THE BOARD AND THE COMMISSIONER OF
ENVIRONMENTAL CONSERVATION TO EVALUATE THE FACILITY'S POLLUTION CONTROL
SYSTEMS AND TO REACH A DETERMINATION TO ISSUE THEREFOR, SUBJECT TO
APPROPRIATE CONDITIONS AND LIMITATIONS, PERMITS PURSUANT TO FEDERAL
RECOGNITION OF STATE AUTHORITY IN ACCORDANCE WITH THE FEDERAL CLEAN
WATER ACT, THE FEDERAL CLEAN AIR ACT AND THE FEDERAL RESOURCE CONSERVA-
TION AND RECOVERY ACT;
(E) WHERE THE PROPOSED FACILITY INTENDS TO USE PETROLEUM OR OTHER
BACK-UP FUEL FOR GENERATING ELECTRICITY, EVIDENCE AND AN EVALUATION ON
BOTH (I) THE ADEQUACY OF THE FACILITY'S ON-SITE BACK-UP FUEL STORAGE AND
SUPPLY, AND (II) THE POTENTIAL IMPACT THAT INTERRUPTION OF THE FACILI-
TY'S PRIMARY FUEL WILL HAVE UPON THE FUEL SUPPLY AND DISTRIBUTION INDUS-
TRIES;
(F) A PLAN FOR SECURITY OF THE PROPOSED FACILITY DURING CONSTRUCTION
AND OPERATION OF SUCH FACILITY AND THE MEASURES TO BE TAKEN TO ENSURE
THE SAFETY AND SECURITY OF THE LOCAL COMMUNITY, INCLUDING CONTINGENCY,
EMERGENCY RESPONSE AND EVACUATION CONTROL, TO BE REVIEWED BY THE BOARD
IN CONSULTATION WITH THE NEW YORK STATE EMERGENCY MANAGEMENT OFFICE; AND
(G) SUCH OTHER INFORMATION AS THE APPLICANT MAY CONSIDER RELEVANT OR
AS MAY BE REQUIRED BY THE BOARD. COPIES OF THE APPLICATION, INCLUDING
THE REQUIRED INFORMATION, SHALL BE FILED WITH THE BOARD AND SHALL BE
AVAILABLE FOR PUBLIC INSPECTION.
2. EACH APPLICATION SHALL BE ACCOMPANIED BY PROOF OF SERVICE, IN SUCH
MANNER AS THE BOARD SHALL PRESCRIBE, OF:
(A) A COPY OF SUCH APPLICATION ON (I) EACH MUNICIPALITY IN WHICH ANY
PORTION OF SUCH FACILITY IS TO BE LOCATED AS PROPOSED OR IN ANY ALTERNA-
TIVE LOCATION LISTED. SUCH COPY TO A MUNICIPALITY SHALL BE ADDRESSED TO
THE CHIEF EXECUTIVE OFFICER THEREOF AND SHALL SPECIFY THE DATE ON OR
ABOUT WHICH THE APPLICATION IS TO BE FILED;
A. 8696 8
(II) EACH MEMBER OF THE BOARD;
(III) THE DEPARTMENT OF AGRICULTURE AND MARKETS;
(IV) THE SECRETARY OF STATE;
(V) THE ATTORNEY GENERAL;
(VI) THE DEPARTMENT OF TRANSPORTATION;
(VII) THE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION;
(VIII) A LIBRARY SERVING THE DISTRICT OF EACH MEMBER OF THE STATE
LEGISLATURE IN WHOSE DISTRICT ANY PORTION OF THE FACILITY IS TO BE
LOCATED AS PROPOSED OR IN ANY ALTERNATIVE LOCATION LISTED;
(IX) IN THE EVENT THAT SUCH FACILITY OR ANY PORTION THEREOF AS
PROPOSED OR IN ANY ALTERNATIVE LOCATION LISTED IS LOCATED WITHIN THE
ADIRONDACK PARK, AS DEFINED IN SUBDIVISION ONE OF SECTION 9-0101 OF THE
ENVIRONMENTAL CONSERVATION LAW, THE ADIRONDACK PARK AGENCY; AND
(X) THE PUBLIC INFORMATION OFFICER FOR PLACEMENT ON THE WEBSITE OF THE
DEPARTMENT; AND
(B) A NOTICE OF SUCH APPLICATION ON (I) PERSONS RESIDING IN MUNICI-
PALITIES ENTITLED TO RECEIVE A COPY OF THE APPLICATION UNDER SUBPARA-
GRAPH (I) OF PARAGRAPH (A) OF THIS SUBDIVISION. SUCH NOTICE SHALL BE
GIVEN BY THE PUBLICATION OF A SUMMARY OF THE APPLICATION AND THE DATE ON
OR ABOUT WHICH IT WILL BE FILED, TO BE PUBLISHED UNDER REGULATIONS TO BE
PROMULGATED BY THE BOARD, IN SUCH FORM AND IN SUCH NEWSPAPER OR NEWSPA-
PERS, INCLUDING LOCAL COMMUNITY AND GENERAL CIRCULATION NEWSPAPERS, AS
WILL SERVE SUBSTANTIALLY TO INFORM THE PUBLIC OF SUCH APPLICATION, IN
PLAIN LANGUAGE, IN ENGLISH AND IN ANY OTHER LANGUAGE SPOKEN AS DETER-
MINED BY THE BOARD BY A SIGNIFICANT PORTION OF THE POPULATION IN THE
COMMUNITY, THAT DESCRIBES THE PROPOSED FACILITY AND ITS LOCATION, THE
RANGE OF POTENTIAL ENVIRONMENTAL AND HEALTH IMPACTS OF EACH POLLUTANT,
THE APPLICATION AND REVIEW PROCESS, AND A CONTACT PERSON, WITH PHONE
NUMBER AND ADDRESS, FROM WHOM INFORMATION WILL BE AVAILABLE AS THE
APPLICATION PROCEEDS;
(II) EACH MEMBER OF THE STATE LEGISLATURE IN WHOSE DISTRICT ANY
PORTION OF THE FACILITY IS TO BE LOCATED AS PROPOSED OR IN ANY ALTERNA-
TIVE LOCATION LISTED; AND
(III) PERSONS WHO HAVE FILED A STATEMENT WITH THE BOARD WITHIN THE
PAST TWELVE MONTHS THAT THEY WISH TO RECEIVE ALL SUCH NOTICES CONCERNING
FACILITIES IN THE AREA IN WHICH THE FACILITY IS TO BE LOCATED AS
PROPOSED OR IN ANY ALTERNATIVE LOCATION LISTED.
3. INADVERTENT FAILURE OF SERVICE ON ANY OF THE MUNICIPALITIES,
PERSONS, AGENCIES, BODIES OR COMMISSIONS NAMED IN SUBDIVISION TWO OF
THIS SECTION SHALL NOT BE JURISDICTIONAL AND MAY BE CURED PURSUANT TO
REGULATIONS OF THE BOARD DESIGNED TO AFFORD SUCH PERSONS ADEQUATE NOTICE
TO ENABLE THEM TO PARTICIPATE EFFECTIVELY IN THE PROCEEDING. IN ADDI-
TION, THE BOARD MAY, AFTER FILING, REQUIRE THE APPLICANT TO SERVE NOTICE
OF THE APPLICATION OR COPIES THEREOF OR BOTH UPON SUCH OTHER PERSONS AND
FILE PROOF THEREOF AS THE BOARD MAY DEEM APPROPRIATE.
4. THE BOARD SHALL PRESCRIBE THE FORM AND CONTENT OF AN APPLICATION
FOR AN AMENDMENT OF A CERTIFICATE TO BE ISSUED PURSUANT TO THIS ARTICLE.
NOTICE OF SUCH AN APPLICATION SHALL BE GIVEN AS SET FORTH IN SUBDIVISION
TWO OF THIS SECTION.
5. IF A REASONABLE ALTERNATIVE LOCATION OR A REASONABLE ALTERNATIVE
ENERGY SUPPLY SOURCE OR DEMAND REDUCING MEASURE NOT LISTED IN THE APPLI-
CATION IS PROPOSED IN THE CERTIFICATION PROCEEDING, NOTICE OF SUCH
PROPOSED ALTERNATIVE SHALL BE GIVEN AS SET FORTH IN SUBDIVISION TWO OF
THIS SECTION.
6. (A) EACH APPLICATION SHALL BE ACCOMPANIED BY A FEE IN AN AMOUNT (I)
EQUAL TO ONE THOUSAND DOLLARS FOR EACH THOUSAND KILOWATTS OF CAPACITY,
A. 8696 9
BUT NO MORE THAN FOUR HUNDRED THOUSAND DOLLARS, (II) AND FOR FACILITIES
THAT WILL REQUIRE SHORTAGE OR DISPOSAL OF FUEL WASTE BYPRODUCT AN ADDI-
TIONAL FEE OF FIVE HUNDRED DOLLARS FOR EACH THOUSAND KILOWATT OF CAPACI-
TY, BUT NO MORE THAN TWO HUNDRED THOUSAND DOLLARS SHALL BE DEPOSITED IN
THE INTERVENOR ACCOUNT, ESTABLISHED PURSUANT TO SECTION NINETY-SEVEN-TT
OF THE STATE FINANCE LAW, TO BE DISBURSED AT THE BOARD'S DIRECTION, TO
DEFRAY EXPENSES INCURRED BY MUNICIPAL AND OTHER LOCAL PARTIES TO THE
PROCEEDING (EXCEPT A MUNICIPALITY WHICH IS THE APPLICANT) FOR EXPERT
WITNESS, CONSULTANT, ADMINISTRATIVE AND LEGAL FEES, PROVIDED, HOWEVER,
SUCH EXPENSES SHALL NOT BE AVAILABLE FOR JUDICIAL REVIEW. IF AT ANY TIME
SUBSEQUENT TO THE FILING OF THE APPLICATION, THE APPLICATION IS AMENDED
IN A MANNER THAT WARRANTS SUBSTANTIAL ADDITIONAL SCRUTINY, THE BOARD MAY
REQUIRE AN ADDITIONAL INTERVENOR FEE IN AN AMOUNT NOT TO EXCEED ONE
HUNDRED TWENTY-FIVE THOUSAND DOLLARS. THE BOARD SHALL PROVIDE FOR TRAN-
SCRIPTS, THE REPRODUCTION AND SERVICE OF DOCUMENTS, AND THE PUBLICATION
OF REQUIRED NOTICES, FOR MUNICIPAL AND OTHER LOCAL PARTIES, IN ALL
APPROPRIATE LANGUAGES. ANY MONEYS REMAINING IN THE INTERVENOR ACCOUNT
AFTER THE BOARD'S JURISDICTION OVER AN APPLICATION HAS CEASED SHALL BE
RETURNED TO THE APPLICANT.
(B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE
BOARD SHALL PROVIDE BY RULES AND REGULATIONS FOR THE MANAGEMENT OF THE
INTERVENOR ACCOUNT AND FOR DISBURSEMENTS FROM THE ACCOUNT, WHICH RULES
AND REGULATIONS SHALL BE CONSISTENT WITH THE PURPOSE OF THIS SECTION TO
MAKE AVAILABLE TO MUNICIPAL PARTIES AT LEAST ONE-HALF OF THE AMOUNT OF
THE INTERVENOR ACCOUNT AND FOR USES SPECIFIED IN PARAGRAPH (A) OF THIS
SUBDIVISION. IN ADDITION, THE BOARD SHALL PROVIDE OTHER LOCAL PARTIES UP
TO ONE-HALF OF THE AMOUNT OF THE INTERVENOR ACCOUNT, PROVIDED, HOWEVER,
THAT THE BOARD SHALL ASSURE THAT THE PURPOSES FOR WHICH MONEYS IN THE
INTERVENOR ACCOUNT WILL BE EXPENDED WILL CONTRIBUTE TO AN INFORMED DECI-
SION AS TO THE APPROPRIATENESS OF THE SITE AND FACILITY AND ARE MADE
AVAILABLE ON AN EQUITABLE BASIS IN A MANNER WHICH FACILITATES BROAD
PUBLIC PARTICIPATION.
S 165. HEARING SCHEDULE. 1. AFTER THE RECEIPT OF AN APPLICATION FILED
PURSUANT TO SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, THE CHAIR OF
THE BOARD SHALL, WITHIN SIXTY DAYS OF SUCH RECEIPT, DETERMINE WHETHER
THE APPLICATION COMPLIES WITH SUCH SECTION AND UPON FINDING THAT THE
APPLICATION SO COMPLIES, FIX A DATE FOR THE COMMENCEMENT OF A PUBLIC
HEARING. UPON A DETERMINATION THAT AN APPLICATION COMPLIES WITH SECTION
ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE THE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION MAY INITIATE A REVIEW PURSUANT TO FEDERALLY DELEGATED OR
APPROVED ENVIRONMENTAL PERMITTING AUTHORITY. THE CHAIR OF THE BOARD MAY
REQUIRE THE FILING OF ANY ADDITIONAL INFORMATION NEEDED TO SUPPLEMENT AN
APPLICATION BEFORE OR DURING THE HEARINGS.
2. WITHIN A REASONABLE TIME AFTER THE DATE HAS BEEN FIXED BY THE CHAIR
FOR COMMENCEMENT OF A PUBLIC HEARING, THE PRESIDING EXAMINER SHALL HOLD
A PREHEARING CONFERENCE TO EXPEDITE THE ORDERLY CONDUCT AND DISPOSITION
OF THE HEARING, TO SPECIFY THE ISSUES, TO OBTAIN STIPULATIONS AS TO
MATTERS NOT DISPUTED, AND TO DEAL WITH SUCH OTHER MATTERS AS THE PRESID-
ING EXAMINER MAY DEEM PROPER. THEREAFTER, THE PRESIDING EXAMINER SHALL
ISSUE AN ORDER IDENTIFYING THE ISSUES TO BE ADDRESSED BY THE PARTIES
PROVIDED, HOWEVER, THAT NO SUCH ORDER SHALL PRECLUDE CONSIDERATION OF
ADDITIONAL ISSUES OR REQUESTS FOR ADDITIONAL SUBMISSIONS, DOCUMENTATION
OR TESTIMONY AT A HEARING WHICH WARRANT CONSIDERATION IN ORDER TO DEVEL-
OP AN ADEQUATE RECORD AS DETERMINED BY AN ORDER OF THE BOARD. THE
PRESIDING EXAMINER SHALL BE PERMITTED A REASONABLE TIME TO RESPOND TO
A. 8696 10
ANY AND ALL INTERLOCUTORY MOTIONS AND APPEALS, BUT IN NO CASE SHALL SUCH
TIME EXTEND BEYOND FORTY-FIVE DAYS.
3. ALL PARTIES SHALL BE PREPARED TO PROCEED IN AN EXPEDITIOUS MANNER
AT THE HEARING SO THAT IT MAY PROCEED REGULARLY UNTIL COMPLETION, EXCEPT
THAT HEARINGS SHALL BE OF SUFFICIENT DURATION TO PROVIDE ADEQUATE OPPOR-
TUNITY TO HEAR DIRECT EVIDENCE AND REBUTTAL EVIDENCE FROM RESIDENTS OF
THE AREA AFFECTED BY THE PROPOSED MAJOR ELECTRIC GENERATING FACILITY. TO
THE EXTENT PRACTICABLE, THE PLACE OF THE HEARING SHALL BE DESIGNATED BY
THE PRESIDING EXAMINER AT A LOCATION WITHIN TWO MILES OF THE PROPOSED
LOCATION OF THE FACILITY.
4. (A) EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SUBDIVISION,
PROCEEDINGS ON AN APPLICATION SHALL BE COMPLETED IN ALL RESPECTS IN A
MANNER CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL
PERMITTING AUTHORITY, INCLUDING A FINAL DECISION BY THE BOARD, WITHIN
TWELVE MONTHS FROM THE DATE OF A DETERMINATION BY THE CHAIR THAT AN
APPLICATION COMPLIES WITH SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTI-
CLE; PROVIDED, HOWEVER, THE BOARD MAY EXTEND THE DEADLINE IN EXTRAOR-
DINARY CIRCUMSTANCES BY NO MORE THAN SIX MONTHS IN ORDER TO GIVE CONSID-
ERATION TO SPECIFIC ISSUES NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE
BOARD MUST RENDER A FINAL DECISION ON THE APPLICATION BY THE AFOREMEN-
TIONED DEADLINES UNLESS SUCH DEADLINES ARE WAIVED BY THE APPLICANT. IF,
AT ANY TIME SUBSEQUENT TO THE COMMENCEMENT OF THE HEARING, THERE IS A
MATERIAL AND SUBSTANTIAL AMENDMENT TO THE APPLICATION, THE DEADLINES MAY
BE EXTENDED BY NO MORE THAN SIX MONTHS, UNLESS SUCH DEADLINE IS WAIVED
BY THE APPLICANT, TO CONSIDER SUCH AMENDMENT.
(B) PROCEEDINGS ON AN APPLICATION BY AN OWNER OF AN EXISTING MAJOR
ELECTRIC GENERATING FACILITY TO MODIFY SUCH EXISTING FACILITY OR SITE A
NEW MAJOR ELECTRIC GENERATING FACILITY ADJACENT OR CONTIGUOUS TO SUCH
EXISTING FACILITY, SHALL BE COMPLETED IN ALL RESPECTS IN A MANNER
CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL PERMITTING
AUTHORITY, INCLUDING A FINAL DECISION BY THE BOARD, WITHIN SIX MONTHS
FROM THE DATE OF A DETERMINATION BY THE CHAIR THAT SUCH APPLICATION
COMPLIES WITH SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, WHENEVER
SUCH APPLICATION DEMONSTRATES THAT THE OPERATION OF THE MODIFIED FACILI-
TY, OR OF THE EXISTING FACILITY AND NEW FACILITY IN COMBINATION, WOULD
RESULT IN: (I) A DECREASE OF NOT LESS THAN SEVENTY-FIVE PERCENT IN THE
RATE OF EMISSIONS OF EACH OF THE FOLLOWING ON A POUNDS PER MEGAWATT-HOUR
BASIS: (A) OXIDES OF NITROGEN, (B) OXIDES OF SULFUR, AND (C) PARTICULATE
MATTER. THE PERCENTAGE REDUCTIONS IN THE RATE OF SUCH EMISSIONS SHALL BE
CALCULATED BY COMPARING THE ANNUALIZED POTENTIAL TO EMIT OF THE EXISTING
FACILITY (EXPRESSED IN POUNDS PER MEGAWATT-HOUR) AT THE TIME THE APPLI-
CATION UNDER THIS ARTICLE IS FILED WITH THE CHAIR AND THE FUTURE ANNUAL-
IZED POTENTIAL TO EMIT OF THE MODIFIED FACILITY OR OF THE COMBINATION OF
THE EXISTING AND NEW FACILITY (EXPRESSED IN POUNDS PER MEGAWATT-HOUR AND
BASED UPON REASONABLY EXPECTED OPERATING CONDITIONS) PROPOSED IN THE
APPLICATION; AND (II) INSTALLATION OF AIR COOLED CONDENSERS OR INSTALLA-
TION OF EVAPORATIVE COOLING WATER INTAKE SYSTEMS OR SUCH OTHER TECHNOLO-
GIES FOR THE MODIFIED FACILITY OR FOR THE EXISTING AND NEW FACILITY THAT
WOULD BE DESIGNED TO WITHDRAW NO MORE THAN FIFTEEN GALLONS PER MINUTE
PER MEGAWATT OF TOTAL PLANT GENERATING CAPACITY FOR COMBINED CYCLE
COMBUSTION TURBINE TECHNOLOGY PLANTS, FROM A SOURCE WATER BODY FOR COOL-
ING PURPOSES. THE APPLICANT SHALL SUPPLY THE DETAILS OF THE ANALYSIS IN
THE APPLICATION AND SUCH SUPPORTING INFORMATION, AS MAY BE REQUESTED BY
THE BOARD OR, IN THE EXERCISE OF FEDERALLY DELEGATED OR APPROVED ENVI-
RONMENTAL PERMITTING AUTHORITY, THE DEPARTMENT OF ENVIRONMENTAL CONSER-
VATION, NECESSARY TO SHOW COMPLIANCE WITH THE REQUIREMENTS OF SUBPARA-
A. 8696 11
GRAPH (I) OF THIS PARAGRAPH. FOR FACILITIES OVER TWO HUNDRED THOUSAND
KILOWATTS WHICH HAVE NOT BEEN SELECTED PURSUANT TO AN APPROVED PROCURE-
MENT PROCESS THE BOARD MAY EXTEND THE DEADLINE IN EXTRAORDINARY CIRCUM-
STANCES BY NO MORE THAN THREE MONTHS IN ORDER TO GIVE CONSIDERATION TO
SPECIFIC ISSUES NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE BOARD SHALL
RENDER A FINAL DECISION ON THE APPLICATION BY THE AFOREMENTIONED DEAD-
LINES UNLESS SUCH DEADLINES ARE WAIVED BY THE APPLICANT. IF, AT ANY TIME
SUBSEQUENT TO THE COMMENCEMENT OF THE HEARING, THERE IS A MATERIAL AND
SUBSTANTIAL AMENDMENT TO THE APPLICATION, THE DEADLINES MAY BE EXTENDED
BY NO MORE THAN THREE MONTHS, UNLESS SUCH DEADLINE IS WAIVED BY THE
APPLICANT, TO CONSIDER SUCH AMENDMENT.
5. ON AN APPLICATION FOR AN AMENDMENT OF A CERTIFICATE PROPOSING A
CHANGE IN THE FACILITY LIKELY TO RESULT IN ANY MATERIAL INCREASE IN ANY
ENVIRONMENTAL IMPACT OF THE FACILITY OR A SUBSTANTIAL CHANGE IN THE
LOCATION OF ALL OR A PORTION OF SUCH FACILITY, A HEARING SHALL BE HELD
IN THE SAME MANNER AS A HEARING ON AN APPLICATION FOR A CERTIFICATE. THE
BOARD SHALL PROMULGATE RULES, REGULATIONS AND STANDARDS UNDER WHICH IT
SHALL DETERMINE WHETHER HEARINGS ARE REQUIRED UNDER THIS SUBDIVISION AND
SHALL MAKE SUCH DETERMINATIONS.
S 166. PARTIES TO A CERTIFICATION PROCEEDING. 1. THE PARTIES TO THE
CERTIFICATION PROCEEDINGS SHALL INCLUDE:
(A) THE APPLICANT;
(B) THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, WHICH SHALL IN ANY
SUCH PROCEEDING PRESENT EXPERT TESTIMONY AND INFORMATION INCLUDING:
(I) A CUMULATIVE IMPACTS ANALYSIS OF AIR QUALITY BASED ON EXISTING AND
PROJECTED EMISSIONS FROM EXISTING AND PROPOSED SOURCES LOCATED WITHIN
THE COUNTY IN WHICH THE FACILITY IS PROPOSED AND EACH COUNTY ADJACENT TO
SUCH COUNTY, OR WHERE SUCH FACILITY IS PROPOSED IN CITIES WITH A POPU-
LATION OF ONE MILLION OR GREATER, FOR AN AREA COMPRISING A FIVE-MILE
RADIUS FROM THE LOCATION OF THE PROPOSED FACILITY, THE COUNTY OF THE
PROPOSED FACILITY AND EACH COUNTY ADJACENT TO SUCH COUNTY, INCLUDING,
BUT NOT LIMITED TO, PARTICULATE MATTER OF 2.5 MICRONS OR SMALLER, FEDER-
AL CRITERIA POLLUTANTS AND TOXINS, INCLUDING MERCURY, AND FOR WHICH
CUMULATIVE IMPACTS THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION SHALL
PROMULGATE REGULATIONS WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS
SUBPARAGRAPH;
(II) A COMPREHENSIVE DEMOGRAPHIC, ECONOMIC AND PHYSICAL DESCRIPTION OF
THE COMMUNITY WITHIN WHICH THE FACILITY IS LOCATED, WITHIN A TWO-MILE
RADIUS OF THE LOCATION OF THE PROPOSED FACILITY, COMPARED AND CONTRASTED
WITH THE COUNTY IN WHICH THE FACILITY IS PROPOSED AND WITH NEIGHBORING
COMMUNITIES, INCLUDING RESIDENTIAL PATTERNS, POPULATION, RACIAL AND
ETHNIC CHARACTERISTICS, INCOME LEVELS, EMPLOYMENT, OPEN SPACE, EDUCA-
TIONAL, BUSINESS, AND PUBLIC HEALTH DATA, INCLUDING BUT NOT LIMITED TO
INCIDENTS OF RESPIRATORY AILMENTS, CANCER, AND INFANT MORTALITY, AND FOR
WHICH COMPREHENSIVE DESCRIPTION THE DEPARTMENT OF ENVIRONMENTAL CONSER-
VATION SHALL PROMULGATE REGULATIONS WITHIN SIX MONTHS OF THE EFFECTIVE
DATE OF THIS SUBPARAGRAPH;
(III) ANY OTHER POTENTIAL ENVIRONMENTAL IMPACTS OF THE PROPOSED FACIL-
ITY, AND, AS APPROPRIATE, ANY ALTERNATE FACILITY OR ENERGY SOURCE ON THE
ENVIRONMENT, AND WHETHER AND HOW SUCH FACILITY WOULD COMPLY WITH APPLI-
CABLE STATE AND FEDERAL ENVIRONMENTAL PROTECTION LAWS, STANDARDS, RULES
AND REGULATIONS;
(C) THE DEPARTMENT OF ECONOMIC DEVELOPMENT;
(D) THE DEPARTMENT OF HEALTH, WHICH SHALL CONSULT WITH THE DEPARTMENT
OF ENVIRONMENTAL CONSERVATION AND CONTRIBUTE TO THE DEVELOPMENT OF THE
A. 8696 12
ANALYSIS AND TESTIMONY CONCERNING ISSUES DESCRIBED IN SUBPARAGRAPH (II)
OF PARAGRAPH (B) OF THIS SUBDIVISION;
(E) THE DEPARTMENT OF AGRICULTURE AND MARKETS;
(F) THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY,
WHICH SHALL BE REQUIRED IN ANY SUCH PROCEEDING TO PRESENT EXPERT TESTI-
MONY AND INFORMATION CONSISTING OF:
(I) A COST-BASED ANALYSIS OF THE POTENTIAL IMPACT OF THE PROPOSED
FACILITY ON THE WHOLESALE GENERATION MARKETS, BOTH GENERALLY AND FOR THE
LOCATION-BASED MARKET IN WHICH THE FACILITY IS PROPOSED, AS WELL AS THE
POTENTIAL IMPACT OF THE PROPOSED FACILITY ON FUEL COSTS, IN COMPARISON
WITH THE COSTS FOR ACHIEVING AN EQUAL LEVEL OF CAPACITY THROUGH ALTERNA-
TIVE RESOURCES, INCLUDING RENEWABLE ENERGY RESOURCES AND ENERGY CONSER-
VATION AND EFFICIENCY PROGRAMS, AND
(II) A DISCUSSION OF THE CONTRIBUTION OR IMPAIRMENT OF THE PROPOSED
FACILITY TOWARDS MEETING THE ENUMERATED GOALS AS DISCUSSED IN THE MOST
RECENT STATE ENERGY PLAN, INCLUDING IMPACTS ON FUEL DIVERSITY, REGIONAL
REQUIREMENTS FOR CAPACITY, ELECTRIC TRANSMISSION AND FUEL DELIVERY
CONSTRAINTS AND OTHER ISSUES AS APPROPRIATE, INCLUDING THE COMPARATIVE
ADVANTAGES AND DISADVANTAGES OF REASONABLE ALTERNATE LOCATIONS OR PROP-
ERTIES IDENTIFIED FOR POWER PLANT CONSTRUCTION, AND A STATEMENT OF THE
REASONS WHY THE PROPOSED LOCATION AND SOURCE IS BEST SUITED, AMONG THE
ALTERNATIVES IDENTIFIED, TO PROMOTE PUBLIC HEALTH AND WELFARE;
(G) THE DEPARTMENT OF STATE, WHICH SHALL BE REQUIRED IN ANY SUCH
PROCEEDING TO PRESENT EXPERT TESTIMONY AND INFORMATION CONCERNING THE
COMPATIBILITY OF THE PROPOSED FACILITY WITH FEDERAL AND STATE COASTAL
ZONE MANAGEMENT LAWS, REGULATIONS AND POLICIES;
(H) THE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, WHICH
SHALL BE REQUIRED IN ANY SUCH PROCEEDING TO PRESENT EXPERT TESTIMONY AND
INFORMATION CONCERNING THE IMPACT OF THE PROPOSED FACILITY ON PARKLANDS
AND ARCHEOLOGICAL, HISTORICAL, CULTURAL AND RECREATIONAL RESOURCES;
(I) WHERE THE FACILITY OR ANY PORTION THEREOF OR OF ANY ALTERNATE IS
TO BE LOCATED WITHIN THE ADIRONDACK PARK, AS DEFINED IN SUBDIVISION ONE
OF SECTION 9-0101 OF THE ENVIRONMENTAL CONSERVATION LAW, THE ADIRONDACK
PARK AGENCY;
(J) A MUNICIPALITY ENTITLED TO RECEIVE A COPY OF THE APPLICATION UNDER
PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-FOUR OF
THIS ARTICLE, IF IT HAS FILED WITH THE BOARD A NOTICE OF INTENT TO BE A
PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN IN THE PUBLISHED
NOTICE AS THE DATE FOR THE FILING OF THE APPLICATION; ANY MUNICIPALITY
ENTITLED TO BE A PARTY HEREIN AND SEEKING TO ENFORCE ANY LOCAL ORDI-
NANCE, LAW, RESOLUTION OR OTHER ACTION OR REGULATION OTHERWISE APPLICA-
BLE SHALL PRESENT EVIDENCE IN SUPPORT THEREOF OR SHALL BE BARRED FROM
THE ENFORCEMENT THEREOF;
(K) ANY INDIVIDUAL RESIDENT IN A MUNICIPALITY ENTITLED TO RECEIVE A
COPY OF THE APPLICATION UNDER PARAGRAPH (A) OF SUBDIVISION TWO OF
SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE IF HE HAS FILED WITH THE
BOARD A NOTICE OF INTENT TO BE A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE
DATE GIVEN IN THE PUBLISHED NOTICE AS THE DATE FOR FILING OF THE APPLI-
CATION;
(1) ANY NON-PROFIT CORPORATION OR ASSOCIATION, FORMED IN WHOLE OR IN
PART TO PROMOTE CONSERVATION OR NATURAL BEAUTY, TO PROTECT THE ENVIRON-
MENT, PERSONAL HEALTH OR OTHER BIOLOGICAL VALUES, TO PRESERVE HISTORICAL
SITES, TO PROMOTE CONSUMER INTERESTS, TO REPRESENT COMMERCIAL AND INDUS-
TRIAL GROUPS OR TO PROMOTE THE ORDERLY DEVELOPMENT OF ANY AREA IN WHICH
THE FACILITY IS TO BE LOCATED, IF IT HAS FILED WITH THE BOARD A NOTICE
A. 8696 13
OF INTENT TO BECOME A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN
IN THE PUBLISHED NOTICE AS THE DATE FOR FILING OF THE APPLICATION;
(M) ANY OTHER MUNICIPALITY OR RESIDENT OF SUCH MUNICIPALITY LOCATED
WITHIN A FIVE MILE RADIUS OF SUCH PROPOSED FACILITY, IF IT OR THE RESI-
DENT HAS FILED WITH THE BOARD A NOTICE OF INTENT TO BECOME A PARTY,
WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN IN THE PUBLISHED NOTICE AS
THE DATE FOR FILING OF THE APPLICATION;
(N) ANY OTHER MUNICIPALITY OR RESIDENT OF SUCH MUNICIPALITY WHICH THE
BOARD IN ITS DISCRETION FINDS TO HAVE AN INTEREST IN THE PROCEEDING
BECAUSE OF THE POTENTIAL ENVIRONMENTAL EFFECTS ON SUCH MUNICIPALITY OR
PERSON, IF THE MUNICIPALITY OR PERSON HAS FILED WITH THE BOARD A NOTICE
OF INTENT TO BECOME A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN
IN THE PUBLISHED NOTICE AS THE DATE FOR FILING OF THE APPLICATION,
TOGETHER WITH AN EXPLANATION OF THE POTENTIAL ENVIRONMENTAL EFFECTS ON
SUCH MUNICIPALITY OR PERSON; AND
(O) SUCH OTHER PERSONS OR ENTITIES AS THE BOARD MAY AT ANY TIME DEEM
APPROPRIATE, WHO MAY PARTICIPATE IN ALL SUBSEQUENT STAGES OF THE
PROCEEDING.
2. THE DEPARTMENT SHALL DESIGNATE MEMBERS OF ITS STAFF WHO SHALL
PARTICIPATE AS A PARTY IN PROCEEDINGS UNDER THIS ARTICLE.
3. ANY PERSON MAY MAKE A LIMITED APPEARANCE IN THE PROCEEDING BY
FILING A STATEMENT OF HIS OR HER INTENT TO LIMIT HIS OR HER APPEARANCE
IN WRITING AT ANY TIME PRIOR TO THE COMMENCEMENT OF THE HEARING. ALL
PAPERS AND MATTERS FILED BY A PERSON MAKING A LIMITED APPEARANCE SHALL
BECOME PART OF THE RECORD. NO PERSON MAKING A LIMITED APPEARANCE SHALL
BE A PARTY OR SHALL HAVE THE RIGHT TO PRESENT ORAL TESTIMONY OR
CROSS-EXAMINE WITNESSES OR PARTIES.
4. THE BOARD MAY FOR GOOD CAUSE SHOWN, PERMIT A MUNICIPALITY OR OTHER
PERSON ENTITLED TO BECOME A PARTY UNDER SUBDIVISION ONE OF THIS SECTION,
BUT WHICH HAS FAILED TO FILE THE REQUISITE NOTICE OF INTENT WITHIN THE
TIME REQUIRED, TO BECOME A PARTY, AND TO PARTICIPATE IN ALL SUBSEQUENT
STAGES OF THE PROCEEDING.
S 167. CONDUCT OF HEARING. 1. (A) THE HEARING SHALL BE CONDUCTED IN AN
EXPEDITIOUS MANNER BY A PRESIDING EXAMINER APPOINTED BY THE DEPARTMENT.
AN ASSOCIATE HEARING EXAMINER SHALL BE APPOINTED BY THE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION PRIOR TO THE DATE SET FOR COMMENCEMENT OF THE
PUBLIC HEARING. THE ASSOCIATE EXAMINER SHALL ATTEND ALL HEARINGS AS
SCHEDULED BY THE PRESIDING EXAMINER AND SHALL ASSIST THE PRESIDING EXAM-
INER IN INQUIRING INTO AND CALLING FOR TESTIMONY CONCERNING RELEVANT AND
MATERIAL MATTERS. THE CONCLUSIONS AND RECOMMENDATIONS OF THE ASSOCIATE
EXAMINER SHALL BE INCORPORATED IN THE RECOMMENDED DECISION OF THE
PRESIDING EXAMINER, UNLESS THE ASSOCIATE EXAMINER PREFERS TO SUBMIT A
SEPARATE REPORT OF DISSENTING OR CONCURRING CONCLUSIONS AND RECOMMENDA-
TIONS. IN THE EVENT THAT THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION
ISSUES PERMITS PURSUANT TO FEDERALLY DELEGATED OR APPROVED AUTHORITY
UNDER THE FEDERAL CLEAN WATER ACT, THE FEDERAL CLEAN AIR ACT AND THE
FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT, THE RECORD IN THE
PROCEEDING AND THE ASSOCIATE EXAMINER'S CONCLUSIONS AND RECOMMENDATIONS
SHALL, INSOFAR AS IS CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED
ENVIRONMENTAL PERMITTING AUTHORITY, PROVIDE THE BASIS FOR THE DECISION
OF THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION WHETHER OR NOT TO
ISSUE SUCH PERMITS.
(B) THE TESTIMONY PRESENTED AT A HEARING MAY BE PRESENTED IN WRITING
OR ORALLY. THE BOARD MAY REQUIRE ANY STATE AGENCY TO PROVIDE EXPERT
TESTIMONY ON SPECIFIC SUBJECTS WHERE ITS PERSONNEL HAVE THE REQUISITE
EXPERTISE AND SUCH TESTIMONY IS CONSIDERED NECESSARY TO THE DEVELOPMENT
A. 8696 14
OF AN ADEQUATE RECORD. ALL TESTIMONY AND INFORMATION PRESENTED BY THE
APPLICANT, ANY STATE AGENCY OR OTHER PARTY SHALL BE SUBJECT TO DISCOVERY
AND CROSS-EXAMINATION. A RECORD SHALL BE MADE OF THE HEARING AND OF ALL
TESTIMONY TAKEN AND THE CROSS-EXAMINATIONS THEREON. THE RULES OF
EVIDENCE APPLICABLE TO PROCEEDINGS BEFORE A COURT SHALL NOT APPLY. THE
PRESIDING EXAMINER MAY PROVIDE FOR THE CONSOLIDATION OF THE REPRESEN-
TATION OF PARTIES, OTHER THAN GOVERNMENTAL BODIES OR AGENCIES, HAVING
SIMILAR INTERESTS. IN THE CASE OF SUCH A CONSOLIDATION, THE RIGHT TO
COUNSEL OF ITS OWN CHOOSING SHALL BE PRESERVED TO EACH PARTY TO THE
PROCEEDING PROVIDED THAT THE CONSOLIDATED GROUP MAY BE REQUIRED TO BE
HEARD THROUGH SUCH REASONABLE NUMBER OF COUNSEL AS THE PRESIDING EXAMIN-
ER SHALL DETERMINE. APPROPRIATE REGULATIONS SHALL BE ISSUED BY THE BOARD
TO PROVIDE FOR PREHEARING DISCOVERY PROCEDURES BY PARTIES TO A PROCEED-
ING, CONSOLIDATION OF THE REPRESENTATION OF PARTIES, THE EXCLUSION OF
IRRELEVANT, REPETITIVE, REDUNDANT OR IMMATERIAL EVIDENCE, AND THE REVIEW
OF RULINGS BY PRESIDING EXAMINERS.
2. A COPY OF THE RECORD INCLUDING, BUT NOT LIMITED TO, TESTIMONY,
BRIEFS, E-MAILS AND HEARING TESTIMONY SHALL BE MADE AVAILABLE BY THE
BOARD WITHIN THIRTY DAYS FOR EXAMINATION BY THE PUBLIC, AND SHALL BE
MADE AVAILABLE ON THE DEPARTMENT'S WEBSITE.
3. THE CHAIR OF THE BOARD MAY ENTER INTO AN AGREEMENT WITH AN AGENCY
OR DEPARTMENT OF THE UNITED STATES HAVING CONCURRENT JURISDICTION OVER
ALL OR PART OF THE LOCATION, CONSTRUCTION, OR OPERATION OF A MAJOR ELEC-
TRIC GENERATING FACILITY SUBJECT TO THIS ARTICLE WITH RESPECT TO PROVID-
ING FOR JOINT PROCEDURES AND A JOINT HEARING OF COMMON ISSUES ON A
COMBINED RECORD, PROVIDED THAT SUCH AGREEMENT SHALL NOT DIMINISH THE
RIGHTS ACCORDED TO ANY PARTY UNDER THIS ARTICLE.
4. THE PRESIDING EXAMINER SHALL ALLOW TESTIMONY TO BE RECEIVED ON
REASONABLE AND AVAILABLE ALTERNATE LOCATIONS FOR THE PROPOSED FACILITY,
ALTERNATE ENERGY SUPPLY SOURCES AND DEMAND-REDUCING MEASURES, PROVIDED
NOTICE OF THE INTENT TO SUBMIT SUCH TESTIMONY SHALL BE GIVEN WITHIN SUCH
PERIOD AS THE BOARD SHALL PRESCRIBE BY REGULATION, WHICH PERIOD SHALL BE
NOT LESS THAN THIRTY NOR MORE THAN SIXTY DAYS AFTER THE COMMENCEMENT OF
THE HEARING. NEVERTHELESS, IN ITS DISCRETION, THE BOARD MAY THEREAFTER
CAUSE TO BE CONSIDERED OTHER REASONABLE AND AVAILABLE LOCATIONS FOR THE
PROPOSED FACILITY, ALTERNATE ENERGY SUPPLY SOURCES AND, WHERE APPROPRI-
ATE, DEMAND-REDUCING MEASURES.
5. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION FOUR OF THIS SECTION,
THE BOARD MAY MAKE A PROMPT DETERMINATION ON THE SUFFICIENCY OF THE
APPLICANT'S CONSIDERATION AND EVALUATION OF REASONABLE ALTERNATIVES TO
ITS PROPOSED TYPE OF MAJOR ELECTRIC GENERATING FACILITY AND ITS PROPOSED
LOCATION FOR THAT FACILITY, AS REQUIRED PURSUANT TO PARAGRAPH (B) OF
SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE,
BEFORE RESOLUTION OF OTHER ISSUES PERTINENT TO A FINAL DETERMINATION ON
THE APPLICATION; PROVIDED, HOWEVER, THAT ALL INTERESTED PARTIES HAVE
REASONABLE OPPORTUNITY TO QUESTION AND PRESENT EVIDENCE IN SUPPORT OF OR
AGAINST THE MERITS OF THE APPLICANT'S CONSIDERATION AND EVALUATION OF
SUCH ALTERNATIVES, AS REQUIRED PURSUANT TO PARAGRAPH (B) OF SUBDIVISION
ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, SO THAT THE BOARD
IS ABLE TO DECIDE, IN THE FIRST INSTANCE, WHETHER THE APPLICANT'S
PROPOSAL IS PREFERABLE TO ALTERNATIVES.
S 168. BOARD DECISIONS. 1. THE BOARD SHALL MAKE THE FINAL DECISION ON
AN APPLICATION UNDER THIS ARTICLE FOR A CERTIFICATE OR AMENDMENT THERE-
OF, UPON THE RECORD MADE BEFORE THE PRESIDING EXAMINER, AFTER RECEIVING
BRIEFS AND EXCEPTIONS TO THE RECOMMENDED DECISION OF SUCH EXAMINER AND
TO THE REPORT OF THE ASSOCIATE EXAMINER, AND AFTER HEARING SUCH ORAL
A. 8696 15
ARGUMENT AS THE BOARD SHALL DETERMINE. EXCEPT FOR GOOD CAUSE SHOWN TO
THE SATISFACTION OF THE BOARD, A DETERMINATION UNDER SUBDIVISION FIVE OF
SECTION ONE HUNDRED SIXTY-SEVEN OF THIS ARTICLE THAT THE APPLICANT'S
PROPOSAL IS PREFERABLE TO ALTERNATIVES SHALL BE FINAL. SUCH A DETERMI-
NATION SHALL BE SUBJECT TO REHEARING AND REVIEW ONLY AFTER THE FINAL
DECISION ON AN APPLICATION IS RENDERED.
2. THE BOARD SHALL RENDER A DECISION UPON THE RECORD EITHER TO GRANT
OR DENY THE APPLICATION AS FILED OR TO CERTIFY THE FACILITY UPON SUCH
TERMS, CONDITIONS, LIMITATIONS OR MODIFICATIONS OF THE CONSTRUCTION OR
OPERATION OF THE FACILITY AS THE BOARD MAY DEEM APPROPRIATE. THE BOARD
SHALL ISSUE, WITH ITS DECISION, AN OPINION STATING IN FULL ITS REASONS
FOR ITS DECISION, INCLUDING A STATEMENT OF HOW THE DECISION IS CONSIST-
ENT WITH THE STATE ENERGY PLAN. THE BOARD SHALL ISSUE AN ORDER UPON THE
DECISION AND THE OPINION EMBODYING THE TERMS AND CONDITIONS THEREOF IN
FULL. FOLLOWING ANY REHEARING AND ANY JUDICIAL REVIEW OF THE BOARD'S
DECISION, THE BOARD'S JURISDICTION OVER AN APPLICATION SHALL CEASE,
PROVIDED, HOWEVER, THAT THE BOARD SHALL RETAIN JURISDICTION WITH RESPECT
TO THE AMENDMENT, SUSPENSION OR REVOCATION OF A CERTIFICATE. THE COMMIS-
SION SHALL MONITOR, ENFORCE AND ADMINISTER COMPLIANCE WITH ANY TERMS AND
CONDITIONS SET FORTH IN THE BOARD'S ORDER. THE BOARD MAY NOT GRANT A
CERTIFICATE FOR THE CONSTRUCTION OR OPERATION OF A MAJOR ELECTRIC GENER-
ATING FACILITY, EITHER AS PROPOSED OR AS MODIFIED BY THE BOARD, UNLESS
IT SHALL FIRST FIND AND DETERMINE:
(A) THAT THE FACILITY WILL SATISFY ADDITIONAL ELECTRIC CAPACITY NEEDS
OR OTHER ELECTRIC SYSTEM NEEDS, AND THAT THE CONSTRUCTION OF THE FACILI-
TY IS CONSISTENT WITH LONG-RANGE ENERGY PLANNING OBJECTIVES AND STRATE-
GIES, THE BOARD SHALL FIND AND DETERMINE THAT THE CONSTRUCTION OF THE
FACILITY IS REASONABLY CONSISTENT WITH THE POLICIES AND LONG-RANGE ENER-
GY PLANNING OBJECTIVES AND STRATEGIES CONTAINED IN THE MOST RECENT STATE
ENERGY PLAN, INCLUDING THAT THE ADDITIONAL ELECTRICITY PROVIDED BY THE
FACILITY AS PROPOSED IS NEEDED AND IS THE MOST EFFECTIVE OPTION FOR
RATEPAYERS, CONSIDERING REQUIRED CAPITAL INVESTMENT, COST, RATEPAYER
IMPACTS, SECURITY AND DIVERSITY OF FUEL SUPPLIES AND GENERATING MODES,
PROTECTION OF PUBLIC HEALTH AND SAFETY, ADVERSE AND BENEFICIAL ENVIRON-
MENTAL IMPACTS, CONSERVATION OF ENERGY AND ENERGY RESOURCES AND ANY
OTHER POLICY OBJECTIVES DEEMED APPROPRIATE, COMPARED TO ALL OTHER ALTER-
NATIVES, INCLUDING DEMAND REDUCTION OPTIONS, AND THAT THE LOCATION
PROPOSED FOR THE FACILITY IS IDENTIFIED AS A SUITABLE LOCATION FOR POWER
PLANT CONSTRUCTION;
(B) THE NATURE OF THE PROBABLE ENVIRONMENTAL IMPACTS, INCLUDING AN
EVALUATION OF THE PREDICTABLE ADVERSE AND BENEFICIAL IMPACTS ON THE
ENVIRONMENT AND ECOLOGY, PUBLIC HEALTH AND SAFETY, AESTHETICS, SCENIC,
HISTORIC AND RECREATIONAL VALUE, FOREST AND PARKS, AIR AND WATER QUALI-
TY, INCLUDING THE CUMULATIVE EFFECT OF AIR EMISSIONS FROM EXISTING AND
PROPOSED FACILITIES AND THE POTENTIAL FOR SIGNIFICANT DETERIORATION IN
LOCAL AIR QUALITY, WITH PARTICULAR ATTENTION TO FACILITIES LOCATED IN OR
NEAR AREAS DESIGNATED AS SEVERE NONATTAINMENT, FISH AND OTHER MARINE
LIFE AND WILDLIFE, OR LANDS INCLUDED IN THE STATE OPEN SPACE PLAN;
(C) THAT THE FACILITY (I) MINIMIZES ADVERSE ENVIRONMENTAL IMPACTS,
CONSIDERING THE STATE OF AVAILABLE TECHNOLOGY, THE NATURE AND ECONOMICS
OF SUCH REASONABLE ALTERNATIVES AS ARE REQUIRED TO BE EXAMINED PURSUANT
TO PARAGRAPH (F) OF SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-SIX OF
THIS ARTICLE, THE INTEREST OF THE STATE WITH RESPECT TO AESTHETICS,
PRESERVATION OF HISTORIC SITES, FOREST AND PARKS, FISH AND WILDLIFE,
VIABLE AGRICULTURAL LANDS, AND OTHER PERTINENT CONSIDERATIONS, (II) IS
COMPATIBLE WITH PUBLIC HEALTH AND SAFETY, (III) WILL NOT BE IN CONTRA-
A. 8696 16
VENTION OF WATER QUALITY STANDARDS OR BE INCONSISTENT WITH APPLICABLE
REGULATIONS OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, OR IN CASE
NO CLASSIFICATION HAS BEEN MADE OF THE RECEIVING WATERS ASSOCIATED WITH
THE FACILITY, WILL NOT DISCHARGE ANY EFFLUENT THAT WILL BE UNDULY INJU-
RIOUS TO THE PROPAGATION AND PROTECTION OF FISH AND WILDLIFE, THE INDUS-
TRIAL DEVELOPMENT OF THE STATE, AND PUBLIC HEALTH AND PUBLIC ENJOYMENT
OF THE RECEIVING WATERS, (IV) WILL NOT EMIT ANY POLLUTANTS TO THE AIR
THAT WILL BE IN CONTRAVENTION OF APPLICABLE AIR EMISSION CONTROL
REQUIREMENTS OR AIR QUALITY STANDARDS, (V) WILL CONTROL THE RUNOFF AND
LEACHATE FROM ANY SOLID WASTE DISPOSAL FACILITY, AND (VI) WILL CONTROL
THE DISPOSAL OF ANY HAZARDOUS WASTE;
(D) WHERE APPLICABLE, THAT THE FACILITY POSSESSES ADEQUATE ON-SITE
PETROLEUM OR OTHER BACK-UP FUEL SUPPLY AND STORAGE TO ACCOMMODATE AND
MEET THE SUPPLY NEEDS OF THE FACILITY DURING PERIODS OF INTERRUPTION OF
ITS PRIMARY FUEL WHILE NOT DISRUPTING OR NEGATIVELY IMPACTING THE FUEL
SUPPLY AND DISTRIBUTION INDUSTRIES;
(E) THAT THE FACILITY IS DESIGNED TO OPERATE IN COMPLIANCE WITH APPLI-
CABLE STATE AND LOCAL LAWS AND REGULATIONS ISSUED THEREUNDER CONCERNING,
AMONG OTHER MATTERS, THE ENVIRONMENT, PUBLIC HEALTH AND SAFETY, ALL OF
WHICH SHALL BE BINDING UPON THE APPLICANT, EXCEPT THAT THE BOARD MAY
REFUSE TO APPLY ANY LOCAL ORDINANCE, LAW, RESOLUTION OR OTHER ACTION OR
ANY REGULATION ISSUED THEREUNDER OR ANY LOCAL STANDARD OR REQUIREMENT
WHICH WOULD BE OTHERWISE APPLICABLE IF IT FINDS THAT AS APPLIED TO THE
PROPOSED FACILITY SUCH IS UNREASONABLY RESTRICTIVE IN VIEW OF THE EXIST-
ING TECHNOLOGY OR THE NEEDS OF OR COSTS TO RATEPAYERS WHETHER LOCATED
INSIDE OR OUTSIDE OF SUCH MUNICIPALITY. THE BOARD SHALL PROVIDE THE
MUNICIPALITY AN OPPORTUNITY TO PRESENT EVIDENCE IN SUPPORT OF SUCH ORDI-
NANCE, LAW, RESOLUTION, REGULATION OR OTHER LOCAL ACTION ISSUED THERE-
UNDER;
(F) THAT THE CONSTRUCTION AND OPERATION OF THE FACILITY IS IN THE
PUBLIC INTEREST, CONSIDERING THE ENVIRONMENTAL AND HEALTH IMPACTS OF THE
FACILITY AND REASONABLE ALTERNATIVES EXAMINED AS REQUIRED PURSUANT TO
PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF
THIS ARTICLE; AND
(G) THAT THE FACILITY BASED ON INFORMATION PRESENTED PURSUANT TO
SUBPARAGRAPHS (I) AND (II) OF PARAGRAPH (B) OF SUBDIVISION ONE OF
SECTION ONE HUNDRED SIXTY-SIX OF THIS ARTICLE, AS PROPOSED DOES NOT
PLACE OR INCREASE AN ADDITIONAL ENVIRONMENTAL OR HEALTH BURDEN ON A
COMMUNITY THAT HAS A SIGNIFICANT LEVEL OF EMISSIONS GENERATED WITHIN THE
COMMUNITY AS COMPARED WITH THE COUNTY AVERAGE.
3. A COPY OF THE BOARD'S DECISION AND OPINION SHALL BE SERVED ON EACH
PARTY PERSONALLY OR BY MAIL.
S 169. OPINION TO BE ISSUED WITH DECISION. IN RENDERING A DECISION ON
AN APPLICATION FOR A CERTIFICATE, THE BOARD SHALL ISSUE AN OPINION STAT-
ING ITS REASONS FOR THE ACTION TAKEN. IF THE BOARD HAS FOUND THAT ANY
LOCAL ORDINANCE, LAW, RESOLUTION, REGULATION OR OTHER ACTION ISSUED
THEREUNDER OR ANY OTHER LOCAL STANDARD OR REQUIREMENT WHICH WOULD BE
OTHERWISE APPLICABLE IS UNREASONABLY RESTRICTIVE PURSUANT TO PARAGRAPH
(E) OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTI-
CLE, IT SHALL STATE IN ITS OPINION THE REASONS THEREFOR.
S 170. REHEARING AND JUDICIAL REVIEW. 1. ANY PARTY AGGRIEVED BY THE
BOARD'S DECISION DENYING OR GRANTING A CERTIFICATE MAY APPLY TO THE
BOARD FOR A REHEARING WITHIN THIRTY DAYS AFTER ISSUANCE OF THE AGGRIEV-
ING DECISION. ANY SUCH APPLICATION SHALL BE CONSIDERED AND DECIDED BY
THE BOARD AND ANY REHEARING SHALL BE COMPLETED AND A DECISION RENDERED
THEREON WITHIN NINETY DAYS OF THE EXPIRATION OF THE PERIOD FOR FILING
A. 8696 17
REHEARING PETITIONS, PROVIDED HOWEVER THAT THE BOARD MAY EXTEND THE
DEADLINE BY NO MORE THAN NINETY DAYS WHERE A REHEARING IS REQUIRED IF
NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE APPLICANT MAY WAIVE SUCH
DEADLINE. THEREAFTER SUCH A PARTY MAY OBTAIN JUDICIAL REVIEW OF SUCH
DECISION AS PROVIDED IN THIS SECTION. A JUDICIAL PROCEEDING SHALL BE
BROUGHT IN THE APPELLATE DIVISION OF THE SUPREME COURT OF THE STATE OF
NEW YORK IN THE JUDICIAL DEPARTMENT EMBRACING THE COUNTY WHEREIN THE
FACILITY IS TO BE LOCATED OR, IF THE APPLICATION IS DENIED, THE COUNTY
WHEREIN THE APPLICANT HAS PROPOSED TO LOCATE THE FACILITY. SUCH PROCEED-
ING SHALL BE INITIATED BY THE FILING OF A PETITION IN SUCH COURT WITHIN
THIRTY DAYS AFTER THE ISSUANCE OF A FINAL DECISION BY THE BOARD UPON THE
APPLICATION FOR REHEARING TOGETHER WITH PROOF OF SERVICE OF A DEMAND ON
THE BOARD TO FILE WITH SAID COURT A COPY OF A WRITTEN TRANSCRIPT OF THE
RECORD OF THE PROCEEDING AND A COPY OF THE BOARD'S DECISION AND OPINION.
THE BOARD'S COPY OF SAID TRANSCRIPT, DECISION AND OPINION, SHALL BE
AVAILABLE AT ALL REASONABLE TIMES TO ALL PARTIES FOR EXAMINATION WITHOUT
COST. UPON RECEIPT OF SUCH PETITION AND DEMAND THE BOARD SHALL FORTH-
WITH DELIVER TO THE COURT A COPY OF THE RECORD AND A COPY OF THE BOARD'S
DECISION AND OPINION. THEREUPON, THE COURT SHALL HAVE JURISDICTION OF
THE PROCEEDING AND SHALL HAVE THE POWER TO GRANT SUCH RELIEF AS IT DEEMS
JUST AND PROPER, AND TO MAKE AND ENTER AN ORDER ENFORCING, MODIFYING AND
ENFORCING AS SO MODIFIED, REMANDING FOR FURTHER SPECIFIC EVIDENCE OR
FINDINGS OR SETTING ASIDE IN WHOLE OR IN PART SUCH DECISION. THE APPEAL
SHALL BE HEARD ON THE RECORD, WITHOUT REQUIREMENT OF REPRODUCTION, AND
UPON BRIEFS TO THE COURT. NO OBJECTION THAT HAS NOT BEEN URGED BY THE
PARTY IN HIS OR HER APPLICATION FOR REHEARING BEFORE THE BOARD SHALL BE
CONSIDERED BY THE COURT, UNLESS THE FAILURE OR NEGLECT TO URGE SUCH
OBJECTION SHALL BE EXCUSED BECAUSE OF EXTRAORDINARY CIRCUMSTANCES. THE
FINDINGS OF FACT ON WHICH SUCH DECISION IS BASED SHALL BE CONCLUSIVE IF
SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD CONSIDERED AS A WHOLE
AND MATTERS OF JUDICIAL NOTICE SET FORTH IN THE OPINION. THE JURISDIC-
TION OF THE APPELLATE DIVISION OF THE SUPREME COURT SHALL BE EXCLUSIVE
AND ITS JUDGMENT AND ORDER SHALL BE FINAL, SUBJECT TO REVIEW BY THE
COURT OF APPEALS IN THE SAME MANNER AND FORM AND WITH THE SAME EFFECT AS
PROVIDED FOR APPEALS IN A SPECIAL PROCEEDING. ALL SUCH PROCEEDINGS SHALL
BE HEARD AND DETERMINED BY THE APPELLATE DIVISION OF THE SUPREME COURT
AND BY THE COURT OF APPEALS AS EXPEDITIOUSLY AS POSSIBLE AND WITH LAWFUL
PRECEDENCE OVER ALL OTHER MATTERS.
2. THE GROUNDS FOR AND SCOPE OF REVIEW OF THE COURT SHALL BE LIMITED
TO WHETHER THE DECISION AND OPINION OF THE BOARD ARE:
(A) IN CONFORMITY WITH THE CONSTITUTION, LAWS AND REGULATIONS OF THE
STATE AND THE UNITED STATES;
(B) SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD AND MATTERS OF
JUDICIAL NOTICE PROPERLY CONSIDERED AND APPLIED IN THE OPINION;
(C) WITHIN THE BOARD'S STATUTORY JURISDICTION OR AUTHORITY;
(D) MADE IN ACCORDANCE WITH PROCEDURES SET FORTH IN THIS ARTICLE OR
ESTABLISHED BY RULE OR REGULATION PURSUANT TO THIS ARTICLE;
(E) ARBITRARY, CAPRICIOUS OR AN ABUSE OF DISCRETION; OR
(F) MADE TO ENSURE FAIR TREATMENT AND MEANINGFUL INVOLVEMENT OF ALL
PEOPLE REGARDLESS OF AGE, RACE, COLOR, NATIONAL ORIGIN AND INCOME.
3. EXCEPT AS HEREIN PROVIDED ARTICLE SEVENTY-EIGHT OF THE CIVIL PRAC-
TICE LAW AND RULES SHALL APPLY TO APPEALS TAKEN HEREUNDER.
S 171. JURISDICTION OF COURTS. EXCEPT AS EXPRESSLY SET FORTH IN
SECTION ONE HUNDRED SEVENTY OF THIS ARTICLE AND EXCEPT FOR REVIEW BY THE
COURT OF APPEALS OF A DECISION OF THE APPELLATE DIVISION OF THE SUPREME
COURT AS PROVIDED FOR THEREIN, NO COURT OF THIS STATE SHALL HAVE JURIS-
A. 8696 18
DICTION TO HEAR OR DETERMINE ANY MATTER, CASE OR CONTROVERSY CONCERNING
ANY MATTER WHICH WAS OR COULD HAVE BEEN DETERMINED IN A PROCEEDING UNDER
THIS ARTICLE OR TO STOP OR DELAY THE CONSTRUCTION OR OPERATION OF A
MAJOR ELECTRIC GENERATING FACILITY EXCEPT TO ENFORCE COMPLIANCE WITH
THIS ARTICLE OR THE TERMS AND CONDITIONS ISSUED THEREUNDER.
S 172. POWERS OF MUNICIPALITIES AND STATE AGENCIES. 1. NOTWITHSTAND-
ING ANY OTHER PROVISION OF LAW, NO STATE AGENCY, MUNICIPALITY OR ANY
AGENCY THEREOF MAY, EXCEPT AS EXPRESSLY AUTHORIZED UNDER THIS ARTICLE BY
THE BOARD, REQUIRE ANY APPROVAL, CONSENT, PERMIT, CERTIFICATE OR OTHER
CONDITION FOR THE CONSTRUCTION OR OPERATION OF A MAJOR ELECTRIC GENERAT-
ING FACILITY WITH RESPECT TO WHICH AN APPLICATION FOR A CERTIFICATE
HEREUNDER HAS BEEN FILED, OTHER THAN THOSE PROVIDED BY OTHERWISE APPLI-
CABLE STATE LAW FOR THE PROTECTION OF EMPLOYEES ENGAGED IN THE
CONSTRUCTION AND OPERATION OF SUCH FACILITY; PROVIDED, HOWEVER, THAT IN
THE CASE OF A MUNICIPALITY OR AN AGENCY THEREOF, SUCH MUNICIPALITY HAS
RECEIVED NOTICE OF THE FILING OF THE APPLICATION THEREFOR; AND PROVIDED
FURTHER, HOWEVER, THAT THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
SHALL BE THE PERMITTING AGENCY FOR PERMITS ISSUED PURSUANT TO FEDERALLY
DELEGATED OR APPROVED AUTHORITY UNDER THE FEDERAL CLEAN WATER ACT, THE
FEDERAL CLEAN AIR ACT AND THE FEDERAL RESOURCE CONSERVATION AND RECOVERY
ACT. IN ISSUING SUCH PERMITS, THE COMMISSIONER OF ENVIRONMENTAL CONSER-
VATION SHALL FOLLOW PROCEDURES ESTABLISHED IN THIS ARTICLE TO THE EXTENT
THAT THEY ARE CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED ENVIRON-
MENTAL PERMITTING AUTHORITY. THE COMMISSIONER OF ENVIRONMENTAL CONSERVA-
TION SHALL PROVIDE SUCH PERMITS TO THE BOARD PRIOR TO ITS DETERMINATION
WHETHER OR NOT TO ISSUE A CERTIFICATE. THE ISSUANCE BY THE DEPARTMENT
OF ENVIRONMENTAL CONSERVATION OF SUCH PERMITS SHALL IN NO WAY INTERFERE
WITH OR AFFECT THE REQUIRED REVIEW BY THE BOARD OF THE ANTICIPATED ENVI-
RONMENTAL AND HEALTH IMPACTS RELATING TO THE CONSTRUCTION AND OPERATION
OF THE FACILITY AS PROPOSED, OR ITS AUTHORITY TO DENY AN APPLICATION FOR
CERTIFICATION PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTI-
CLE, AND, IN THE EVENT OF SUCH A DENIAL, ANY SUCH PERMITS SHALL BE
DEEMED NULL AND VOID.
2. THE ADIRONDACK PARK AGENCY SHALL NOT HOLD PUBLIC HEARINGS FOR A
MAJOR ELECTRIC GENERATING FACILITY WITH RESPECT TO WHICH AN APPLICATION
HEREUNDER IS FILED, PROVIDED THAT SUCH AGENCY HAS RECEIVED NOTICE OF THE
FILING OF SUCH APPLICATION.
S 173. APPLICABILITY TO PUBLIC AUTHORITIES. FOR PURPOSES OF THIS ARTI-
CLE, THE POWER AUTHORITY OF THE STATE OF NEW YORK, THE GREEN ISLAND
POWER AUTHORITY AND THE LONG ISLAND POWER AUTHORITY SHALL BE REQUIRED TO
APPLY ALL PROVISIONS OF THIS ARTICLE FOR MAJOR ELECTRIC GENERATING
FACILITIES WHICH EITHER AUTHORITY BUILDS OR CAUSES TO BE BUILT. FOR
GENERATING FACILITIES WHICH ARE NOT MAJOR ELECTRIC GENERATING FACILI-
TIES, NEITHER AUTHORITY SHALL BE PERMITTED TO SERVE AS LEAD AGENCY FOR
PURPOSES OF ENVIRONMENTAL REVIEW PURSUANT TO THE PROVISIONS OF THE ENVI-
RONMENTAL CONSERVATION LAW.
S 2. Section 1014 of the public authorities law, as amended by chapter
446 of the laws of 1972, is amended to read as follows:
S 1014. Public service law not applicable to authority; inconsistent
provisions in other acts superseded. The rates, services and practices
relating to the generation, transmission, distribution and sale by the
authority, of power to be generated from the projects authorized by this
title shall not be subject to the provisions of the public service law
nor to regulation by, nor the jurisdiction of the department of public
service. Except to the extent article seven of the public service law
applies to the siting and operation of a major utility transmission
A. 8696 19
facility as defined therein, AND ARTICLE TEN OF THE PUBLIC SERVICE LAW
APPLIES TO THE SITING OF A MAJOR ELECTRIC GENERATING FACILITY AS DEFINED
THEREIN, and except to the extent section eighteen-a of such law
provides for assessment of the authority for certain costs relating
thereto, the provisions of the public service law and of the conserva-
tion law and every other law relating to the department of public
service or the public service commission or to the ENVIRONMENTAL conser-
vation department or to the functions, powers or duties assigned to the
division of water power and control by chapter six hundred nineteen[,]
of the laws of nineteen hundred twenty-six, shall so far as is necessary
to make this title effective in accordance with its terms and purposes
be deemed to be superseded, and wherever any provision of law shall be
found in conflict with the provisions of this title or inconsistent with
the purposes thereof, it shall be deemed to be superseded, modified or
repealed as the case may require.
S 3. Paragraph c of subdivision 8 of section 1020-c of the public
authorities law, as amended by chapter 7 of the laws of 1987, is amended
to read as follows:
c. Article seven of the public service law shall apply to the authori-
ty's siting and operation of a major transmission facility as therein
defined and article [eight] TEN of the public service law shall apply to
the authority's siting and operation of a major [steam] electric gener-
ating facility as therein defined.
S 4. Section 1020-s of the public authorities law, as added by chapter
517 of the laws of 1986, is amended to read as follows:
S 1020-s. Public service law generally not applicable to authority;
inconsistent provisions in certain other acts superseded. 1. The rates,
services and practices relating to the electricity generated by facili-
ties owned or operated by the authority shall not be subject to the
provisions of the public service law or to regulation by, or the juris-
diction of, the public service commission, except to the extent (a)
article seven of the public service law applies to the siting and opera-
tion of a major utility transmission facility as defined therein, (b)
article [eight] TEN of such law applies to the siting of a MAJOR ELEC-
TRIC generating facility as defined therein, and (c) section eighteen-a
of such law provides for assessment for certain costs, property or oper-
ations.
2. The issuance by the authority of its obligations to acquire the
securities or assets of LILCO shall be deemed not to be "state action"
within the meaning of the state environmental quality review act, and
such act shall not be applicable in any respect to such acquisition or
any action of the authority to effect such acquisition.
S 5. The state finance law is amended by adding a new section 97-tt to
read as follows:
S 97-TT. INTERVENOR ACCOUNT. 1. THERE IS HEREBY ESTABLISHED IN THE
JOINT CUSTODY OF THE STATE COMPTROLLER AND THE COMMISSIONER OF TAXATION
AND FINANCE AN ACCOUNT TO BE KNOWN AS THE INTERVENOR ACCOUNT.
2. SUCH ACCOUNT SHALL CONSIST OF ALL REVENUES RECEIVED FROM SITING
APPLICATION FEES FOR ELECTRIC GENERATING FACILITIES PURSUANT TO SECTIONS
ONE HUNDRED SIXTY-THREE AND ONE HUNDRED SIXTY-FOUR OF THE PUBLIC SERVICE
LAW.
3. MONEYS OF THE ACCOUNT, FOLLOWING APPROPRIATION BY THE LEGISLATURE,
MAY BE EXPENDED IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS ONE
HUNDRED SIXTY-THREE AND ONE HUNDRED SIXTY-FOUR OF THE PUBLIC SERVICE
LAW. MONEYS SHALL BE PAID OUT OF THE ACCOUNT ON THE AUDIT AND WARRANT OF
A. 8696 20
THE STATE COMPTROLLER ON VOUCHERS CERTIFIED OR APPROVED BY THE CHAIR OF
THE PUBLIC SERVICE COMMISSION.
S 6. The environmental conservation law is amended by adding a new
section 19-0312 to read as follows:
S 19-0312. POWER PLANT EMISSIONS AND PERFORMANCE STANDARDS.
1. DEFINITIONS. AS USED IN THIS SECTION:
A. "MERCURY" MEANS ELEMENTAL MERCURY AND ANY COMPOUND CONTAINING
MERCURY.
B. "MAJOR ELECTRIC GENERATING FACILITY" MEANS ANY ELECTRICITY GENERAT-
ING FACILITY WITH A NAMEPLATE CAPACITY OF THIRTY THOUSAND KILOWATTS OR
MORE.
C. "ANNUAL MERCURY EMISSIONS RATE" MEANS THE POUNDS OF MERCURY EMITTED
BY MAJOR ELECTRIC GENERATING FACILITIES IN A GIVEN CALENDAR YEAR DIVIDED
BY THE TOTAL MEGAWATTS GENERATED IN A CALENDAR YEAR, USING METHODOLOGY
SET FORTH IN PARAGRAPH F OF SUBDIVISION TWO OF THIS SECTION.
2. A. NO LATER THAN JANUARY FIRST, TWO THOUSAND TEN, THE COMMISSIONER
SHALL PROMULGATE RULES AND REGULATIONS SUCH THAT ALL SOURCES SUBJECT TO
THIS SECTION EMIT NO MORE THAN 1.5 POUNDS PER MEGAWATT HOUR OF TOTAL
NITROGEN OXIDE EMISSIONS BY MAY FIRST, TWO THOUSAND TEN.
B. NO LATER THAN JANUARY FIRST, TWO THOUSAND TEN, THE COMMISSIONER
SHALL PROMULGATE RULES AND REGULATIONS SUCH THAT ALL SOURCES SUBJECT TO
THIS SECTION EMIT NO MORE THAN THREE POUNDS PER MEGAWATT HOUR OF TOTAL
SULFUR DIOXIDE EMISSIONS BY JANUARY FIRST, TWO THOUSAND TWELVE.
C. NO LATER THAN JANUARY FIRST, TWO THOUSAND TEN, THE COMMISSIONER
SHALL PROMULGATE RULES AND REGULATIONS IMPLEMENTING REDUCTIONS IN EMIS-
SIONS OF CARBON DIOXIDE IN ACCORDANCE WITH THE PROVISIONS OF THIS
SECTION. THE COMMISSIONER SHALL DEVELOP A MECHANISM FOR AFFECTED SOURCES
TO COMPLY BASED ON AN EMISSIONS PERFORMANCE STANDARD EXPRESSED IN POUNDS
OF POLLUTANT EMITTED PER MEGAWATT HOUR GENERATED.
D. THE COMMISSIONER SHALL SET A PERMANENT CAP ON TOTAL EMISSIONS OF
CARBON DIOXIDE NO LATER THAN JANUARY FIRST, TWO THOUSAND TWELVE, THAT IS
SEVEN PERCENT LESS THAN THE TOTAL NINETEEN HUNDRED NINETY CARBON DIOXIDE
EMISSIONS FOR ALL SOURCES SUBJECT TO THIS SECTION.
E. THE COMMISSIONER MAY ESTABLISH OR EMPLOY AN EMISSIONS CREDIT TRAD-
ING MECHANISM TO FACILITATE COMPLIANCE WITH CARBON DIOXIDE REQUIREMENTS.
F. BY JANUARY FIRST, TWO THOUSAND TEN, THE COMMISSIONER SHALL PROMUL-
GATE RULES AND REGULATIONS THAT PROVIDE A METHODOLOGY FOR DETERMINING
THE ANNUAL MERCURY EMISSIONS RATE, MEASURED IN POUNDS PER MEGAWATT, FROM
MAJOR ELECTRIC GENERATING FACILITIES IN THIS STATE.
G. THE COMMISSIONER SHALL PROMULGATE, NO LATER THAN JANUARY FIRST, TWO
THOUSAND TEN, RULES AND REGULATIONS SUCH THAT NO MAJOR ELECTRIC GENERAT-
ING FACILITY EMIT NO MORE THAN TEN PERCENT OF THE MERCURY EMISSIONS
GENERATED IN NINETEEN HUNDRED NINETY-NINE, USING THE METHODOLOGY SET
FORTH IN PARAGRAPH F OF THIS SUBDIVISION, BY JANUARY FIRST, TWO THOUSAND
TWELVE.
3. THE EMISSION RATES, LIMITATIONS, AND PRACTICES REQUIRED BY THIS
SECTION SHALL NOT BE CONSTRUED TO SUPERSEDE MORE STRINGENT EMISSION
RATES, LIMITATIONS, AND PRACTICES THAT ARE APPLICABLE ON THE EFFECTIVE
DATE OF THIS SECTION OR MAY BECOME APPLICABLE AFTER SUCH EFFECTIVE DATE.
S 7. Severability. If any clause, sentence, paragraph, section or part
of this act shall be adjudged by any court of competent jurisdiction to
be invalid, such judgment shall not affect, impair or invalidate the
remainder thereof, but shall be confined in its operation to the clause,
sentence, paragraph, section or part thereof directly involved in the
controversy in which such judgment shall have been rendered.
A. 8696 21
S 8. This act shall take effect immediately and shall expire and be
deemed repealed December 31, 2020; and provided that nothing in this act
shall be construed to limit any administrative authority, with respect
to matters included in this act, which existed prior to the effective
date of this act.