Senate Bill S2084

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2084

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 11, 2009
                               ___________

Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
  printed to be committed to the Committee on  Energy  and  Telecommuni-
  cations

AN  ACT  to amend the public service law, the environmental conservation
  law, the public authorities law and the state finance law, in relation
  to siting of major electric generating facilities

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The public service law is amended by adding a new article
10 to read as follows:
                               ARTICLE 10
             SITING OF MAJOR ELECTRIC GENERATING FACILITIES
SECTION 160.   DEFINITIONS.
        161.   GENERAL PROVISIONS RELATING TO THE BOARD.
        162.   BOARD CERTIFICATE.
        162-A. APPLICATIONS FOR SITING CERTAIN OTHER ELECTRIC GENERATING
                 FACILITIES.
        163.   PRE-APPLICATION PROCEDURES.
        163-A. REPOWERING PROJECTS.
        164.   APPLICATION FOR A CERTIFICATE.
        165.   HEARING SCHEDULE.
        166.   PARTIES TO A CERTIFICATION PROCEEDING.
        167.   CONDUCT OF HEARING.
        168.   BOARD DECISIONS.
        169.   OPINION TO BE ISSUED WITH DECISION.
        170.   REHEARING AND JUDICIAL REVIEW.
        171.   JURISDICTION OF COURTS.
        172.   POWERS OF MUNICIPALITIES AND STATE AGENCIES.
  S 160. DEFINITIONS. WHERE USED IN THIS ARTICLE, THE  FOLLOWING  TERMS,
UNLESS  THE  CONTEXT  OTHERWISE REQUIRES, SHALL HAVE THE FOLLOWING MEAN-
INGS:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02432-01-9
              

S. 2084                             2

  1. "MUNICIPALITY" MEANS A COUNTY, CITY, TOWN  OR  VILLAGE  LOCATED  IN
THIS STATE.
  2.  "MAJOR  ELECTRIC GENERATING FACILITY" MEANS AN ELECTRIC GENERATING
FACILITY THAT IS OPERATED AT A TOTAL NET GENERATING OUTPUT TO THE  ELEC-
TRIC  SYSTEM  OF  FIFTY  THOUSAND KILOWATTS OR MORE, INCLUDING INTERCON-
NECTION ELECTRIC TRANSMISSION LINES AND FUEL GAS TRANSMISSION LINES THAT
ARE NOT SUBJECT TO REVIEW UNDER ARTICLE SEVEN OF THIS CHAPTER.
  3. "PERSON"  MEANS  ANY  INDIVIDUAL,  CORPORATION,  LIMITED  LIABILITY
COMPANY, PUBLIC BENEFIT CORPORATION, POLITICAL SUBDIVISION, GOVERNMENTAL
AGENCY,  MUNICIPALITY,  PARTNERSHIP,  COOPERATIVE  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  CHAIRMAN OF THE DEPARTMENT, WHO SHALL SERVE AS
CHAIRPERSON OF THE BOARD; THE COMMISSIONER  OF  ENVIRONMENTAL  CONSERVA-
TION;  THE COMMISSIONER OF HEALTH, THE CHAIRPERSON OF THE NEW YORK STATE
ENERGY RESEARCH AND DEVELOPMENT AUTHORITY; THE COMMISSIONER OF  ECONOMIC
DEVELOPMENT AND TWO AD HOC PUBLIC MEMBERS APPOINTED BY THE GOVERNOR. ONE
AD  HOC  PUBLIC  MEMBER  SHALL BE A RESIDENT OF THE JUDICIAL DISTRICT IN
WHICH THE FACILITY AS PROPOSED IS TO BE LOCATED AND ONE  AD  HOC  PUBLIC
MEMBER  SHALL  BE  A  RESIDENT  OF  THE  COUNTY IN WHICH THE FACILITY AS
PROPOSED IS TO BE LOCATED. THE TERM OF THE AD HOC MEMBERS SHALL CONTINUE
UNTIL A FINAL DETERMINATION IS MADE IN  THE  PARTICULAR  PROCEEDING  FOR
WHICH  THEY WERE APPOINTED. WHERE THE FACILITY OR ANY PORTION THEREOF OR
ANY ALTERNATIVE PROPOSED TO BE LOCATED WITHIN A CITY WITH  A  POPULATION
OF  ONE  MILLION OR MORE, ONE OF THE AD HOC PUBLIC MEMBERS CITED IN THIS
SECTION SHALL BE APPOINTED BY THE GOVERNOR AND SHALL BE  A  RESIDENT  OF
THE  JUDICIAL  DISTRICT  IN WHICH THE FACILITY IS TO BE LOCATED, AND THE
OTHER AD HOC PUBLIC MEMBER CITED IN THIS SECTION SHALL BE  APPOINTED  BY
THE  GOVERNOR, IN CONSULTATION WITH THE BOROUGH PRESIDENT OF THE BOROUGH
IN WHICH THE FACILITY IS PROPOSED TO BE LOCATED AND SHALL BE A  RESIDENT
OF THE BOROUGH IN WHICH THE FACILITY IS PROPOSED TO BE LOCATED.
  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. "APPROVED PROCUREMENT PROCESS" MEANS ANY ELECTRIC CAPACITY PROCURE-
MENT PROCESS APPROVED BY THE COMMISSION AND SUBSEQUENT TO MAY FIRST, TWO
THOUSAND  FOUR, APPROVED BY THE COMMISSION AS REASONABLY CONSISTENT WITH
THE MOST RECENT STATE ENERGY PLAN ADOPTED PURSUANT TO FORMER ARTICLE SIX
OF THE ENERGY LAW.
  S 161. GENERAL PROVISIONS RELATING TO THE BOARD. 1. UPON RECEIPT OF AN
APPLICATION UNDER THIS ARTICLE, THE CHAIRPERSON  SHALL  PROMPTLY  NOTIFY
THE GOVERNOR. WITHIN THIRTY DAYS OF SUCH NOTIFICATION THE GOVERNOR SHALL
APPOINT THE AD HOC 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. THE BOARD, EXCLUSIVE OF THE AD HOC 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,
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 ELECTRIC
GENERATING FACILITIES. THE  CHAIRPERSON,  AFTER  CONSULTATION  WITH  THE
OTHER  MEMBERS  OF THE BOARD EXCLUSIVE OF THE AD HOC MEMBERS, SHALL HAVE
EXCLUSIVE JURISDICTION TO ISSUE DECLARATORY RULINGS REGARDING THE APPLI-
CABILITY OF, OR ANY OTHER QUESTION UNDER, THIS  ARTICLE  AND  RULES  AND

S. 2084                             3

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.
  2.  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 ELEC-
TRIC UTILITY CORPORATION OPERATING IN THE STATE OR PROPOSED  FOR  OPERA-
TION  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  APPOINTEES  OF  THE GOVERNOR SHALL RECEIVE THE SUM OF TWO
HUNDRED DOLLARS FOR EACH DAY IN WHICH THEY ARE ACTUALLY ENGAGED  IN  THE
PERFORMANCE  OF  THEIR  DUTIES  PURSUANT TO THIS ARTICLE PLUS ACTUAL AND
NECESSARY EXPENSES INCURRED BY THEM IN THE PERFORMANCE OF  SUCH  DUTIES.
THE  CHAIRPERSON SHALL PROVIDE SUCH PERSONNEL, HEARING EXAMINERS, SUBOR-
DINATES, EMPLOYEES AND SUCH LEGAL, TECHNOLOGICAL, SCIENTIFIC,  ENGINEER-
ING  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 APPOINTEES OF THE
GOVERNOR 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 CHAIRPERSON.
  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 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 CONDITIONS CONTAINED THEREIN, PROVIDED THAT
NOTHING IN THIS ARTICLE SHALL EXEMPT SUCH FACILITY FROM COMPLIANCE  WITH
STATE LAW AND REGULATIONS THEREUNDER SUBSEQUENTLY ADOPTED OR WITH MUNIC-
IPAL   LAWS   AND  REGULATIONS  THEREUNDER  NOT  INCONSISTENT  WITH  THE
PROVISIONS OF SUCH CERTIFICATE.  A  CERTIFICATE  FOR  A  MAJOR  ELECTRIC
GENERATING FACILITY 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  PURSUANT TO THIS ARTICLE MAY BE AMENDED AS
PROVIDED IN THIS ARTICLE.
  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  REGULATION 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 FIFTY THOUSAND KILOWATTS;

S. 2084                             4

  (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, IN 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 WHICH GENERATES ELECTRIC-
ITY FROM THE COMBUSTION OF SOLID WASTE OR FROM FUEL DERIVED  FROM  SOLID
WASTE.
  5.  ANY  PERSON  INTENDING  TO  CONSTRUCT  A MAJOR ELECTRIC GENERATING
FACILITY EXCLUDED FROM THIS ARTICLE PURSUANT TO PARAGRAPH (B) OR (C)  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
CHAIRPERSON  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 CHAIRPERSON OF THE BOARD. FOR THE PURPOSES OF THIS
ARTICLE, EACH SUCH FACILITY SHALL BE TREATED IN THE  SAME  MANNER  AS  A
MAJOR ELECTRIC GENERATING FACILITY AS DEFINED IN THIS ARTICLE.
  S  162-A.  APPLICATIONS  FOR  SITING CERTAIN OTHER ELECTRIC GENERATING
FACILITIES. APPLICATIONS FOR SITING ELECTRIC GENERATING FACILITIES  THAT
OPERATE AT A TOTAL NET GENERATING OUTPUT TO THE ELECTRIC SYSTEM OF 49.99
THOUSAND  KILOWATTS  OR  LESS, INCLUDING INTERCONNECTION ELECTRIC TRANS-
MISSION LINES AND FUEL GAS TRANSMISSION LINES THAT ARE  NOT  SUBJECT  TO
REVIEW  UNDER  ARTICLE  SEVEN  OF THIS CHAPTER, SHALL RECEIVE A POSITIVE
DECLARATION FROM THE COMMISSIONER OF  THE  DEPARTMENT  OF  ENVIRONMENTAL
CONSERVATION  AND SHALL BE SUBJECT TO FULL REVIEW UNDER ARTICLE EIGHT OF
THE ENVIRONMENTAL CONSERVATION LAW.
  S 163. PRE-APPLICATION PROCEDURES. 1. ANY PERSON PROPOSING  TO  SUBMIT
AN  APPLICATION FOR A CERTIFICATE SHALL FILE WITH THE CHAIRPERSON OF THE
BOARD 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) ANTICIPATED ENVIRONMENTAL AND HEALTH IMPACTS FROM THE CONSTRUCTION
AND/OR OPERATION OF THE PROPOSED FACILITY;
  (C) A PROPOSED STUDY OR PROGRAM OF STUDIES DESIGNED TO EVALUATE POTEN-
TIAL ENVIRONMENTAL IMPACTS AND ANALYZE POTENTIAL IMPACTS OF  PARTICULATE
MATTER  OF  2.5  MICRONS  OR GREATER ON THE GEOGRAPHIC AREA IN WHICH THE
FACILITY IS PROPOSED;
  (D) MEASURES PROPOSED TO MINIMIZE ENVIRONMENTAL IMPACTS;
  (E) REASONABLE ALTERNATIVES IF ANY TO THE PROPOSED FACILITY AS MAY  BE
REQUIRED  BY  PARAGRAPH  (B)  OF  SUBDIVISION ONE OF SECTION ONE HUNDRED
SIXTY-FOUR OF THIS ARTICLE;
  (F) IF THE FACILITY IS PROPOSED TO BE LOCATED IN THE COASTAL  AREA,  A
PRELIMINARY  ANALYSIS  OF  THE CONSISTENCY OF THE PROPOSED FACILITY WITH
THE APPLICABLE COASTAL POLICIES OF ARTICLE FORTY-TWO  OF  THE  EXECUTIVE
LAW,  OR  WHEN THE ACTION IS IN AN APPROVED LOCAL WATERFRONT REVITALIZA-
TION PROGRAM AREA, WITH THE LOCAL  PROGRAM.  IF  THE  PROPOSED  FACILITY
COULD  AFFECT  ANY  LAND OR WATER USE OR NATURAL RESOURCE OF THE COASTAL
AREA AND FEDERAL AUTHORIZATION IS NECESSARY, A PRELIMINARY  ANALYSIS  OF
THE  CONSISTENCY  OF THE PROPOSED FACILITY WITH THE ENFORCEABLE POLICIES
OF THE NEW YORK STATE COASTAL MANAGEMENT PROGRAM OR WHEN THE  ACTION  IS
IN  AN  APPROVED  LOCAL WATERFRONT REVITALIZATION PROGRAM AREA, WITH THE
LOCAL PROGRAM;
  (G) A DETERMINATION OF WHETHER THE PROPOSED FACILITY IS TO BE  LOCATED
IN  A POTENTIAL ENVIRONMENTAL JUSTICE AREA, AS DEFINED BY THE DEPARTMENT
OF ENVIRONMENTAL JUSTICE POLICY DIRECTIVE CP-29,  ENVIRONMENTAL  JUSTICE
AND PERMITTING; AND

S. 2084                             5

  (H)  ANY  OTHER INFORMATION THAT MAY BE RELEVANT OR THAT THE BOARD MAY
REQUIRE.
  2. EACH PRELIMINARY SCOPING STATEMENT SHALL BE ACCOMPANIED BY A FEE OF
FIFTY THOUSAND DOLLARS TO BE DEPOSITED IN THE INTERVENOR ACCOUNT, ESTAB-
LISHED PURSUANT TO SECTION NINETY-SEVEN-TT OF THE STATE FINANCE LAW, AND
SHALL  BE DISBURSED AT THE BOARD'S DIRECTION TO DEFRAY EXPENSES INCURRED
BY MUNICIPAL AND OTHER LOCAL, INTERESTED PERSONS (EXCEPT A  MUNICIPALITY
WHICH  IS  THE APPLICANT) FOR CONSULTANTS' FEES TO EVALUATE THE PRELIMI-
NARY SCOPING STATEMENT AND ANALYZE THE  METHODOLOGY  AND  SCOPE  OF  ANY
STUDY OR PROGRAM OF STUDIES TO BE UNDERTAKEN BY THE APPLICANT IN SUPPORT
OF  ITS  APPLICATION. SUCH FUNDS SHALL BE MADE AVAILABLE ON AN EQUITABLE
BASIS IN A MANNER WHICH FACILITATES BROAD PUBLIC  PARTICIPATION  IN  THE
PRE-APPLICATION  PROCESS.  ANY  UNUSED FUNDS SHALL BE MADE AVAILABLE AND
DISBURSED IN ACCORDANCE  WITH  THE  PROVISIONS  OF  SUBDIVISION  SIX  OF
SECTION  ONE  HUNDRED  SIXTY-FOUR  OF  THIS ARTICLE IF AN APPLICATION IS
FILED OR, IF THE PRELIMINARY SCOPING STATEMENT IS WITHDRAWN, RETURNED TO
THE APPLICANT. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRA-
RY, THE BOARD MAY PROVIDE BY RULES  AND  REGULATIONS  FOR  DISBURSEMENTS
FROM THE FUND FOR THE STATED PURPOSES.
  3. 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.
  4. TO FACILITATE  THE  APPLICATION  PROCESS  AND  ENABLE  CITIZENS  TO
PARTICIPATE  IN  DECISIONS  THAT  AFFECT THEIR HEALTH AND SAFETY AND THE
ENVIRONMENT, THE DEPARTMENT  SHALL  PROVIDE  OPPORTUNITIES  FOR  CITIZEN
INVOLVEMENT.  SUCH  OPPORTUNITIES  SHALL ENCOURAGE CONSULTATION WITH THE
PUBLIC EARLY IN THE APPLICATION PROCESS, ESPECIALLY BEFORE  ANY  PARTIES
ENTER  A  STIPULATION  PURSUANT TO SUBDIVISION FIVE OF THIS SECTION. THE
PRIMARY GOALS OF THE CITIZEN PARTICIPATION PROCESS SHALL BE  TO  FACILI-
TATE  COMMUNICATION  BETWEEN  THE  APPLICANT  AND INTERESTED OR AFFECTED
PERSONS. THE PROCESS SHALL FOSTER THE ACTIVE INVOLVEMENT OF  THE  INTER-
ESTED OR AFFECTED PERSONS.
  5.  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, THE DEPARTMENT OF STATE 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 STATE,
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 STIPULATION 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  PARA-
GRAPH (B) OF SUCH SUBDIVISION, AND AFFORD THE PUBLIC A REASONABLE OPPOR-
TUNITY  TO  SUBMIT  COMMENTS ON THE STIPULATION BEFORE IT IS EXECUTED BY
THE INTERESTED PARTIES. NOTHING IN THIS SUBDIVISION, 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  PRELIMINARY  SCOPING  STATEMENT AND THE METHODOLOGY AND
SCOPE OF ANY STIPULATED STUDIES OR PROGRAM OF STUDIES IN ANY SUCH AGREE-
MENT. IN ORDER TO ATTEMPT TO RESOLVE ANY QUESTIONS THAT MAY ARISE  AS  A

S. 2084                             6

RESULT  OF SUCH CONSULTATION, THE BOARD MAY DESIGNATE A HEARING EXAMINER
WHO SHALL 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.
  S  163-A.  REPOWERING  PROJECTS.  1. FOR PURPOSES OF THIS SECTION, THE
TERM "REPOWERING PROJECT" MEANS A  MAJOR  ELECTRIC  GENERATING  FACILITY
THAT  PROPOSES  TO ENTIRELY OR PARTIALLY REPLACE AN EXISTING MAJOR ELEC-
TRIC GENERATING FACILITY IN  SUBSTANTIALLY  THE  SAME  LOCATION  AS  THE
EXISTING FACILITY WHERE SUCH PROPOSED FACILITY:
  (A) RESULTS IN 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: (I) OXIDES OF NITROGEN, (II) OXIDES OF SULFUR, AND (III) PARTICU-
LATE  MATTER.  THE  PERCENTAGE  REDUCTION  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 APPLICATION UNDER THIS ARTICLE IS FILED WITH THE CHAIRPERSON AND THE
FUTURE  ANNUALIZED  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;
  (B) EMPLOYS AIR POLLUTION  CONTROL  TECHNOLOGY  CONSISTENT  WITH  THAT
NECESSARY  TO  MEET  BEST  AVAILABLE  CONTROL  TECHNOLOGY  STANDARDS  OR
ACHIEVES THE LOWEST ACHIEVABLE EMISSIONS RATE;
  (C) WHEN A COOLING WATER INTAKE  STRUCTURE  IS  PLANNED,  INCORPORATES
COOLING WATER INTAKE STRUCTURE TECHNOLOGY CONSISTENT WITH THE BEST TECH-
NOLOGY AVAILABLE STANDARDS APPLICABLE TO NEW COOLING WATER INTAKE STRUC-
TURES  (AS REFLECTED IN THE STATE POLLUTION DISCHARGE ELIMINATION SYSTEM
PERMIT ISSUED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION); AND
  (D) REPLACES EXISTING GENERATING  CAPACITY  WITH  GENERATING  CAPACITY
THAT HAS A LOWER HEAT RATE.
  2. ANY PERSON PROPOSING TO UNDERTAKE A REPOWERING PROJECT MAY ELECT TO
FOLLOW THE PROCEDURES SET FORTH IN THIS SECTION AS AN ALTERNATIVE TO THE
REQUIREMENTS  SET  FORTH  IN  SECTIONS  ONE  HUNDRED SIXTY-THREE AND ONE
HUNDRED SIXTY-FOUR OF THIS ARTICLE. SUCH  PERSON  SHALL  FILE  WITH  THE
CHAIRPERSON  OF  THE BOARD AN APPLICATION, IN A FORM TO BE DETERMINED BY
THE BOARD THAT CONTAINS, AT A MINIMUM,  THE  FOLLOWING  INFORMATION  AND
MATERIALS:
  (A)  A  DESCRIPTION  OF THE SITE, INCLUDING ITS ENVIRONMENTAL SETTING,
AND A DESCRIPTION OF THE REPOWERING PROJECT, INCLUDING, BUT NOT  LIMITED
TO, AVAILABLE SITE INFORMATION, MAPS, AND DESCRIPTIONS;
  (B)  ANALYSES  THAT HAVE BEEN MADE OF (I) THE ENVIRONMENTAL IMPACTS OF
THE EXISTING ELECTRIC GENERATING FACILITY; (II) CONCEPTUAL ARCHITECTURAL
AND ENGINEERING PLANS INDICATING COMPATIBILITY OF THE FACILITY WITH  THE
ENVIRONMENT;  AND (III) THE EXPECTED ENVIRONMENTAL IMPACTS OF THE REPOW-
ERING PROJECT, INCLUDING, BUT NOT LIMITED TO, THE  GENERATION  OF  SOLID
WASTES,  AIR  EMISSIONS  INCLUDING  PARTICULATE MATTER OF 2.5 MICRONS OR
GREATER, DISCHARGES INTO NAVIGABLE WATERS AND GROUNDWATER, IMPACTS  UPON
WETLANDS,  AND  VISUAL  IMPACTS,  THE  PROBABLE  LEVEL  OF  NOISE DURING
CONSTRUCTION AND OPERATION OF THE REPOWERING PROJECT, AND  ANY  MEASURES
FOR  CONTROL,  ABATEMENT, OR MITIGATION OF SUCH IMPACTS, AND THE COMPAT-
IBILITY OF THE REPOWERING  PROJECT  WITH  EXISTING  FEDERAL,  STATE  AND
MUNICIPAL ENVIRONMENTAL, HEALTH AND SAFETY STANDARDS;
  (C)  SUCH  EVIDENCE  AS  MAY  ENABLE THE COMMISSIONER OF ENVIRONMENTAL
CONSERVATION TO EVALUATE THE  REPOWERING  PROJECT'S  PROPOSED  POLLUTION
CONTROL  SYSTEMS  AND  TO  REACH A DETERMINATION AS TO WHETHER OR NOT TO
ISSUE, SUBJECT TO APPROPRIATE CONDITIONS AND LIMITATIONS, PERMITS PURSU-

S. 2084                             7

ANT TO FEDERAL RECOGNITION OF STATE AUTHORITY  IN  ACCORDANCE  WITH  THE
FEDERAL  CLEAN  WATER  ACT,  THE  FEDERAL  CLEAN AIR ACT AND THE FEDERAL
RESOURCE CONSERVATION AND RECOVERY ACT;
  (D) A STATEMENT AS TO HOW THE CONSTRUCTION AND OPERATION OF THE REPOW-
ERING  PROJECT,  INCLUDING TRANSPORTATION AND DISPOSAL OF WASTES, COMPLY
WITH ENVIRONMENTAL, HEALTH AND  SAFETY  STANDARDS,  REQUIREMENTS,  REGU-
LATIONS, AND RULES UNDER STATE AND MUNICIPAL LAWS, AND A STATEMENT AS TO
WHY ANY VARIANCES OR EXCEPTIONS MAY BE GRANTED;
  (E)  A  DESCRIPTION  OF  THE  FUEL  INTERCONNECTION AND SUPPLY FOR THE
PROJECT;
  (F) AN ELECTRIC  INTERCONNECTION  STUDY,  CONSISTING  GENERALLY  OF  A
DESIGN STUDY AND A SYSTEM RELIABILITY IMPACT STUDY;
  (G)  A  PLAN  FOR  SECURITY  OF  THE  REPOWERING  PROJECT  DURING  ITS
CONSTRUCTION AND OPERATION, TO BE REVIEWED BY THE BOARD IN  CONSULTATION
WITH THE OFFICE OF PUBLIC SECURITY; AND
  (H)  SUCH  OTHER INFORMATION AS THE APPLICANT MAY CONSIDER RELEVANT OR
AS MAY BE REQUIRED BY THE BOARD TO MAKE ITS FINDINGS PURSUANT TO SECTION
ONE HUNDRED SIXTY-EIGHT OF THIS  ARTICLE.  COPIES  OF  THE  APPLICATION,
INCLUDING  THE  REQUIRED  INFORMATION,  SHALL  BE  AVAILABLE  FOR PUBLIC
INSPECTION; PROVIDED, HOWEVER THAT THE  SECURITY  PLAN  REQUIRED  TO  BE
FILED PURSUANT TO PARAGRAPH (G) OF THIS SUBDIVISION SHALL BE KEPT CONFI-
DENTIAL,  SHALL  NOT  BE  AVAILABLE  FOR PUBLIC INSPECTION, AND PROVIDED
FURTHER THAT INFORMATION CONCERNING ELECTRIC AND NATURAL  GAS  INTERCON-
NECTIONS  BETWEEN  THE FACILITY AND THE ELECTRIC AND NATURAL GAS SYSTEMS
SHALL NOT BE PLACED IN PUBLIC LIBRARIES OR ON THE INTERNET, AND THAT THE
DEPARTMENT SHALL MAKE SUCH INFORMATION AVAILABLE FOR INSPECTION  AT  ITS
OFFICES  AND  SHALL  MAINTAIN  A LOGBOOK OF ALL THOSE WHO HAVE REQUESTED
ACCESS TO SUCH INFORMATION.
  3. THE APPLICATION SHALL BE ACCOMPANIED BY:
  (A) PROOF OF SERVICE, IN SUCH MANNER AS THE BOARD SHALL PRESCRIBE,  IN
ACCORDANCE  WITH  SUBDIVISION  TWO  OF SECTION ONE HUNDRED SIXTY-FOUR OF
THIS ARTICLE;
  (B) PROOF THAT THE APPLICANT HAS CONDUCTED PUBLIC OUTREACH WITHIN  THE
SIXTY  DAYS  PRECEDING  THE  FILING  OF THE APPLICATION, FOR PURPOSES OF
FACILITATING COMMUNICATION BETWEEN  THE  APPLICANT  AND  INTERESTED  AND
AFFECTED PARTIES AND ADVISING SUCH PARTIES ABOUT THE REPOWERING PROJECT;
AND
  (C) A FEE IN AN AMOUNT EQUAL TO ONE THOUSAND DOLLARS FOR EACH THOUSAND
KILOWATTS  OF  GENERATING CAPACITY IN EXCESS OF THE GENERATING OUTPUT OF
THE EXISTING FACILITY IN THOUSANDS OF KILOWATTS MULTIPLIED BY ONE  THOU-
SAND  DOLLARS, BUT IN NO EVENT SHALL SUCH FEE EXCEED THREE HUNDRED THOU-
SAND DOLLARS. SUCH FEE 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 IN ACCORDANCE  WITH  PARA-
GRAPH  (A)  OF SUBDIVISION SIX OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS
ARTICLE.
  4. FOLLOWING THE FILING OF AN APPLICATION PURSUANT TO SUBDIVISION  TWO
OF THIS SECTION, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION MAY INITI-
ATE  A  REVIEW PURSUANT TO FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL
PERMITTING AUTHORITY.
  5. WITHIN SIXTY DAYS OF RECEIPT OF AN APPLICATION  FILED  PURSUANT  TO
SUBDIVISION  TWO  OF  THIS  SECTION,  THE CHAIRPERSON OF THE BOARD SHALL
DETERMINE WHETHER OR NOT THE APPLICATION IS FOR A REPOWERING PROJECT, AS
DEFINED IN SUBDIVISION ONE OF THIS  SECTION,  AND  WHETHER  OR  NOT  THE
APPLICATION  COMPLIES WITH SUBDIVISION TWO OF THIS SECTION AND ANY REGU-
LATIONS PROMULGATED PURSUANT THERETO, AND SHALL, AFTER CONSULTATION WITH

S. 2084                             8

THE COMMISSIONER OF ENVIRONMENTAL  CONSERVATION,  RENDER  A  PRELIMINARY
DETERMINATION  AS  TO  WHETHER  OR NOT THE REPOWERING PROJECT MAY HAVE A
SIGNIFICANT ADVERSE ENVIRONMENTAL IMPACT. IN THE EVENT THAT  THE  CHAIR-
PERSON  OF THE BOARD DETERMINES EITHER THAT THE APPLICATION IS NOT FOR A
REPOWERING PROJECT OR THAT THE REPOWERING PROJECT MAY HAVE A SIGNIFICANT
ADVERSE ENVIRONMENTAL IMPACT, THE APPLICATION SHALL BE DEEMED TO SATISFY
THE REQUIREMENTS OF SUBDIVISION ONE OF SECTION ONE  HUNDRED  SIXTY-THREE
OF  THIS  ARTICLE  AND THE APPLICATION SHALL NO LONGER BE SUBJECT TO, OR
ELIGIBLE FOR, THE PROCEDURES SET FORTH IN THIS SECTION. THE  CHAIRPERSON
OF THE BOARD MAY REQUIRE THE FILING OF ANY ADDITIONAL INFORMATION NEEDED
TO  SUPPLEMENT  AN  APPLICATION.  IN THE EVENT OF A DETERMINATION THAT A
REPOWERING PROJECT IS NOT LIKELY TO HAVE A SIGNIFICANT ADVERSE  ENVIRON-
MENTAL  IMPACT, A PRELIMINARY DETERMINATION OF NON-SIGNIFICANCE SHALL BE
ISSUED. NOTICE OF ISSUANCE SHALL BE GIVEN  TO  PARTIES  TO  THE  CERTIF-
ICATION  PROCEEDING  PURSUANT  TO SUBDIVISION ONE OF SECTION ONE HUNDRED
SIXTY-SIX OF THIS ARTICLE AND SHALL ADDITIONALLY BE PUBLISHED ON THE WEB
SITE OF THE DEPARTMENT.
  6. SIMULTANEOUSLY WITH THE ISSUANCE OF A PRELIMINARY DETERMINATION  OF
SIGNIFICANCE,  THE  SECRETARY  OF  THE  BOARD  SHALL PROVIDE NOTICE OF A
PUBLIC HEARING TO ADDRESS DISBURSEMENT OF THE FEE PROVIDED FOR BY SUBDI-
VISION THREE OF THIS SECTION, WHICH HEARING SHALL BE HELD BY THE PRESID-
ING AND ASSOCIATE EXAMINERS, AND IN NO EVENT LATER THAN TWENTY-ONE  DAYS
FOLLOWING ISSUANCE OF THE PRELIMINARY DETERMINATION OF NON-SIGNIFICANCE.
  7.  INTERESTED  PARTIES  SHALL  HAVE NOT MORE THAN SIXTY DAYS FROM THE
DATE THE PRELIMINARY DETERMINATION OF SIGNIFICANCE  IS  ISSUED  TO  FILE
WRITTEN  COMMENTS  WITH  REGARD  TO  SUCH PRELIMINARY DETERMINATION. THE
PUBLIC COMMENT PERIOD SHALL INCLUDE A PUBLIC STATEMENT HEARING AT  WHICH
THE  PRESIDING  EXAMINER  AND  ASSOCIATE EXAMINER SHALL JOINTLY PRESIDE.
UPON THE CLOSE OF THE PUBLIC COMMENT  PERIOD,  IN  THE  EVENT  THAT  THE
PRESIDING  EXAMINER  DETERMINES  THAT  THERE  IS  AN  ISSUE OF FACT WITH
RESPECT TO THE APPLICABILITY OF ANY LOCAL  ORDINANCE,  LAW,  RESOLUTION,
STANDARD,  OR  OTHER ACTION, OR ANY REGULATION ISSUED THEREUNDER, OR ANY
LOCAL STANDARD OR REQUIREMENT THAT WOULD OTHERWISE BE APPLICABLE TO  THE
REPOWERING PROJECT, THE PRESIDING EXAMINER SHALL SCHEDULE AN EVIDENTIARY
HEARING ON SUCH ISSUE OF FACT.
  8.  WITHIN  THIRTY  DAYS OF THE CLOSE OF THE PUBLIC COMMENT PERIOD, OR
WITHIN TWENTY-ONE  DAYS  AFTER  THE  TERMINATION  OF  A  PUBLIC  HEARING
RESPECTING  THE  APPLICABILITY  OF  LOCAL  LAWS  HELD IN ACCORDANCE WITH
SUBDIVISION SEVEN OF THIS SECTION, WHICHEVER IS LATER,  THE  CHAIRPERSON
OF  THE BOARD, AFTER CONSULTATION WITH THE COMMISSIONER OF ENVIRONMENTAL
CONSERVATION SHALL RENDER A FINAL DETERMINATION AS TO WHETHER OR NOT THE
REPOWERING PROJECT MAY HAVE A SIGNIFICANT ADVERSE ENVIRONMENTAL  IMPACT.
UPON A DETERMINATION THAT THE REPOWERING PROJECT IS NOT LIKELY TO HAVE A
SIGNIFICANT  ADVERSE ENVIRONMENTAL IMPACT, THE CHAIRPERSON SHALL ISSUE A
FINAL DETERMINATION OF  NON-SIGNIFICANT  ENVIRONMENTAL  IMPACT.  IN  THE
EVENT  THAT THE CHAIRPERSON, AFTER CONSULTATION WITH THE COMMISSIONER OF
ENVIRONMENTAL CONSERVATION, DETERMINES THAT THE REPOWERING  PROJECT  MAY
HAVE A SIGNIFICANT ENVIRONMENTAL IMPACT, THE APPLICATION SHALL BE DEEMED
TO  SATISFY  THE  REQUIREMENTS OF SUBDIVISION ONE OF SECTION ONE HUNDRED
SIXTY-THREE OF THIS ARTICLE, BUT SHALL  NO  LONGER  BE  SUBJECT  TO,  OR
ELIGIBLE FOR, THE PROCEDURES SET FORTH IN THIS SECTION.
  9.  IN  THE  EVENT  THAT  THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
ISSUES PERMITS PURSUANT TO FEDERALLY DELEGATED  OR  APPROVED  PERMITTING
AUTHORITY  UNDER  THE FEDERAL CLEAN WATER ACT, THE FEDERAL CLEAN AIR ACT
AND THE FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT, THE COMMISSIONER
OF ENVIRONMENTAL CONSERVATION SHALL PROVIDE SUCH PERMITS TO  THE  CHAIR-

S. 2084                             9

PERSON  OF THE BOARD PRIOR TO THE DETERMINATION OF NON-SIGNIFICANCE. THE
CHAIRPERSON OF  THE  BOARD  SHALL  SUBMIT  THE  FINAL  DETERMINATION  OF
NON-SIGNIFICANCE TO THE BOARD, WHICH SHALL ISSUE A DECISION WITH RESPECT
TO  THE  APPLICATION  WITHIN  TWENTY-ONE  DAYS  AFTER SUCH SUBMISSION IN
ACCORDANCE WITH SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTICLE.
  S 164. APPLICATION FOR A CERTIFICATE. 1. AN APPLICANT  FOR  A  CERTIF-
ICATE  SHALL  FILE  WITH THE CHAIRPERSON OF THE BOARD AN APPLICATION, IN
SUCH FORM AS THE BOARD MAY PRESCRIBE CONTAINING THE  FOLLOWING  INFORMA-
TION 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,  AND  AS  APPROPRIATE,
GEOLOGICAL,  AESTHETIC,  ECOLOGICAL, TSUNAMI, SEISMIC, BIOLOGICAL, WATER
SUPPLY, POPULATION AND LOAD CENTER DATA;
  (B) A DESCRIPTION AND EVALUATION OF REASONABLE  ALTERNATIVE  LOCATIONS
TO  THE  PROPOSED  FACILITY, IF ANY, AND WITH RESPECT TO A FACILITY THAT
HAS NOT BEEN SELECTED PURSUANT TO AN  APPROVED  PROCUREMENT  PROCESS,  A
DESCRIPTION  AND  EVALUATION  OF  REASONABLE DEMAND ENERGY SUPPLY SOURCE
ALTERNATIVES AND, WHERE APPROPRIATE,  DEMAND-REDUCING  MEASURES  TO  THE
PROPOSED  FACILITY;  A  DESCRIPTION  OF  THE  COMPARATIVE ADVANTAGES AND
DISADVANTAGES AS APPROPRIATE; AND A STATEMENT OF  THE  REASONS  WHY  THE
PRIMARY  PROPOSED  LOCATION  AND SOURCE, AS APPROPRIATE, IS BEST SUITED,
AMONG THE ALTERNATIVES CONSIDERED, TO PROMOTE PUBLIC HEALTH AND WELFARE,
INCLUDING THE RECREATIONAL AND OTHER CONCURRENT USES WHICH THE SITE  MAY
SERVE, PROVIDED THAT THE INFORMATION REQUIRED PURSUANT TO THIS PARAGRAPH
SHALL  BE  NO  MORE  EXTENSIVE  THAN REQUIRED UNDER ARTICLE EIGHT OF THE
ENVIRONMENTAL CONSERVATION LAW;
  (C) STUDIES, IDENTIFYING THE AUTHOR AND DATE THEREOF, WHICH HAVE  BEEN
MADE  OF  THE  EXPECTED ENVIRONMENTAL IMPACT AND SAFETY OF THE FACILITY,
BOTH DURING ITS CONSTRUCTION AND ITS OPERATION, WHICH STUDIES ARE SUFFI-
CIENT 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  METEOROLOGICAL,  HYDROLOGICAL
AND  OTHER INFORMATION NEEDED TO SUPPORT SUCH ESTIMATES; (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  WITH-
DRAWALS  AND DISCHARGES; (VII) A DESCRIPTION OF THE FUEL INTERCONNECTION
AND SUPPLY FOR THE PROJECT; (VIII) AN  ELECTRIC  INTERCONNECTION  STUDY,
CONSISTING  GENERALLY  OF A DESIGN STUDY AND A SYSTEM RELIABILITY IMPACT
STUDY; (IX) THE EXPECTED EMISSIONS FROM THE PROPOSED FACILITY OF  PARTI-
CULATE  MATTER  OF  2.5  MICRONS  OR GREATER; (X) THE CUMULATIVE AIR AND
ENVIRONMENTAL IMPACTS OF THE PROPOSED FACILITY IN AGGREGATE WITH  EXIST-
ING  EMISSION  SOURCES  ON  THE GEOGRAPHIC AREA IN WHICH THE FACILITY IS
PROPOSED; AND (XI) IF THE FACILITY IS PROPOSED FOR A POTENTIAL  ENVIRON-
MENTAL  JUSTICE  AREA,  AS  DEFINED  IN  THE DEPARTMENT OF ENVIRONMENTAL

S. 2084                            10

CONSERVATION POLICY DIRECTIVE CP-29, ENVIRONMENTAL JUSTICE  AND  PERMIT-
TING, EXISTING EMISSION SOURCES THEREIN.
  (D)  EXCEPT WITH RESPECT TO A FACILITY THAT HAS BEEN SELECTED PURSUANT
TO AN APPROVED PROCUREMENT PROCESS, ESTIMATED COST INFORMATION,  INCLUD-
ING  PLANT  COSTS  BY ACCOUNT, ALL EXPENSES BY CATEGORIES INCLUDING FUEL
COSTS, PLANT SERVICE LIFE AND CAPACITY FACTOR AND TOTAL GENERATING  COST
PER  KILOWATT-HOUR,  INCLUDING  BOTH PLANT AND RELATED TRANSMISSION, AND
COMPARATIVE COSTS OF ALTERNATIVES CONSIDERED;
  (E) A STATEMENT (I) 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, PROVIDED HOWEVER, THAT SUBSE-
QUENT TO THE ADOPTION OF A STATE ENERGY PLAN PURSUANT TO FORMER  ARTICLE
SIX  OF  THE  ENERGY  LAW,  AN  APPLICANT  SHALL  DEMONSTRATE  THAT  THE
CONSTRUCTION OF THE FACILITY IS REASONABLY CONSISTENT  WITH  THE  ENERGY
POLICIES  AND  LONG-RANGE  ENERGY  PLANNING  OBJECTIVES  AND  STRATEGIES
CONTAINED IN THE MOST RECENT STATE ENERGY PLAN; OR (II) THAT THE FACILI-
TY WAS SELECTED PURSUANT TO AN APPROVED PROCUREMENT PROCESS;
  (F) SUCH EVIDENCE AS WILL ENABLE THE BOARD OR COMMISSIONER OF ENVIRON-
MENTAL 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 CONSERVATION AND RECOVERY
ACT;
  (G)  ANY  OTHER  INFORMATION  THAT  THE  BOARD  DEEMS  RELEVANT OR MAY
REQUIRE;
  (H) A PLAN FOR SECURITY OF THE PROPOSED FACILITY  DURING  CONSTRUCTION
AND  OPERATION OF SUCH FACILITY, TO BE REVIEWED BY THE BOARD, IN CONSUL-
TATION WITH THE NEW YORK STATE OFFICE OF PUBLIC SECURITY; AND
  (I) 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; PROVIDED, HOWEVER, THAT THE SECURITY
PLAN REQUIRED TO BE FILED PURSUANT TO PARAGRAPH (H) OF THIS  SUBDIVISION
SHALL  BE  KEPT  CONFIDENTIAL  AND  SHALL  NOT  BE  AVAILABLE FOR PUBLIC
INSPECTION, AND PROVIDED FURTHER THAT  INFORMATION  CONCERNING  ELECTRIC
AND  NATURAL  GAS INTERCONNECTIONS BETWEEN THE FACILITY AND THE ELECTRIC
AND NATURAL GAS SYSTEMS SHALL NOT BE PLACED IN PUBLIC  LIBRARIES  OR  ON
THE INTERNET, AND THAT THE DEPARTMENT SHALL MAKE SUCH INFORMATION AVAIL-
ABLE  FOR INSPECTION AT ITS OFFICES AND SHALL MAINTAIN A LOG BOOK OF ALL
THOSE WHO HAVE REQUESTED ACCESS TO SUCH INFORMATION.
  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;
  (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;

S. 2084                            11

  (VII) 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;
  (VIII)  IN  THE  EVENT  THAT  SUCH  FACILITY OR ANY PORTION THEREOF AS
PROPOSED OR IN ANY ALTERNATE  LOCATION  LISTED  IS  LOCATED  WITHIN  THE
ADIRONDACK  PARK,  AS  DESCRIBED IN SUBDIVISION ONE OF SECTION 9-0101 OF
THE ENVIRONMENTAL CONSERVATION LAW, THE ADIRONDACK PARK AGENCY; 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 AS WILL SERVE SUBSTANTIALLY TO INFORM THE PUBLIC OF  SUCH  APPLICA-
TION;
  (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 HEREUNDER. NOTICE OF SUCH
AN APPLICATION SHALL BE GIVEN AS SET FORTH IN SUBDIVISION  TWO  OF  THIS
SECTION.
  5. IF A REASONABLE ALTERNATIVE LOCATION OR, WITH RESPECT TO A FACILITY
THAT  HAS NOT BEEN SELECTED PURSUANT TO AN APPROVED PROCUREMENT PROCESS,
A REASONABLE ALTERNATIVE ENERGY SUPPLY SOURCE OR DEMAND REDUCING MEASURE
NOT LISTED IN THE APPLICATION IS PROPOSED IN THE CERTIFICATION  PROCEED-
ING,  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
EQUAL  TO ONE THOUSAND DOLLARS FOR EACH THOUSAND KILOWATTS OF GENERATING
CAPACITY OF THE SUBJECT FACILITY, BUT NO MORE THAN THREE  HUNDRED  THOU-
SAND  DOLLARS  WITH  SUCH  AMOUNT  TO  INCLUDE  THE  PRE-APPLICATION FEE
PROVIDED FOR IN SUBDIVISION TWO OF SECTION ONE  HUNDRED  SIXTY-THREE  OF
THIS  ARTICLE,  TO  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  MUNICI-
PALITY  WHICH IS THE APPLICANT) FOR EXPERT WITNESS, LEGAL AND CONSULTANT
FEES. 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 THOUSAND DOLLARS.   THE BOARD SHALL
PROVIDE FOR TRANSCRIPTS, THE REPRODUCTION AND SERVICE OF DOCUMENTS,  AND
THE  PUBLICATION  OF REQUIRED NOTICES, FOR MUNICIPAL PARTIES. ANY MONEYS

S. 2084                            12

REMAINING IN THE INTERVENOR FUND, AFTER THE BOARD HAS ISSUED  ITS  DECI-
SION  ON AN APPLICATION UNDER THIS ARTICLE AND THE TIME FOR APPLYING FOR
A REHEARING AND JUDICIAL REVIEW HAS EXPIRED, 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  FUND  AND  FOR  DISBURSEMENTS FROM THE FUND, 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  THIS
INTERVENOR FUND AND FOR USES SPECIFIED IN PARAGRAPH (A) OF THIS SUBDIVI-
SION.  IN  ADDITION,  THE  BOARD SHALL PROVIDE OTHER LOCAL PARTIES UP TO
ONE-HALF OF THE AMOUNT OF THE INTERVENOR FUND; PROVIDED,  HOWEVER,  THAT
THE  BOARD  SHALL  ASSURE  THAT  THE  PURPOSES  FOR  WHICH MONEYS IN THE
INTERVENOR FUND WILL BE EXPENDED WILL CONTRIBUTE TO AN INFORMED DECISION
AS TO THE APPROPRIATENESS OF THE SITE AND FACILITY AND ARE  MADE  AVAIL-
ABLE  ON  AN  EQUITABLE BASIS IN A MANNER WHICH FACILITATES BROAD PUBLIC
PARTICIPATION.
  7. AFTER PUBLIC NOTICE AND AN OPPORTUNITY TO COMMENT, THE BOARD  SHALL
PROMULGATE  SUCH  REGULATIONS  AS  MAY  BE  NECESSARY TO IMPLEMENT, WITH
RESPECT TO MAJOR ELECTRIC GENERATING FACILITIES, PERMIT PROGRAMS  ESTAB-
LISHED  PURSUANT  TO  REQUIREMENTS  OF  THE FEDERAL CLEAN WATER ACT, THE
FEDERAL CLEAN AIR ACT AND THE FEDERAL RESOURCE CONSERVATION AND RECOVERY
ACT. SUCH  REGULATIONS  SHALL  BE  CONSISTENT  WITH  ANY  STATE  PROGRAM
REQUIREMENTS  ESTABLISHED  BY THE UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY FOR STATE PARTICIPATION IN SUCH POLLUTANT CONTROL PERMIT PROGRAMS
AND SHALL INCLUDE PROCEDURES FOR EARLY  CONSIDERATION  AND  SUCH  PROMPT
DETERMINATION  AS  IS  FEASIBLE  OF  ISSUES  ARISING  UNDER  SUCH PERMIT
PROGRAMS.
  S 165. HEARING SCHEDULE. 1. AFTER THE RECEIPT OF AN APPLICATION  FILED
PURSUANT  TO  SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, THE CHAIR-
PERSON 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 APPLICANT SHALL  SUBMIT
TO  THE  DEPARTMENT  OF  STATE  COPIES  OF  THE APPLICATION, CONSISTENCY
CERTIFICATION AND NECESSARY DATA AND INFORMATION SUFFICIENT TO  INITIATE
A  REVIEW  PURSUANT  TO  THE FEDERAL COASTAL ZONE MANAGEMENT ACT AND ITS
REGULATIONS. THE CHAIRPERSON 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
CHAIRPERSON FOR COMMENCEMENT OF A PUBLIC HEARING, THE PRESIDING EXAMINER
SHALL  HOLD A PRE-HEARING CONFERENCE TO EXPEDITE THE ORDERLY CONDUCT AND
DISPOSITION OF THE HEARING, TO SPECIFY  THE  ISSUES,  TO  OBTAIN  STIPU-
LATIONS  AS TO MATTERS NOT DISPUTED, AND TO DEAL WITH SUCH OTHER MATTERS
AS THE PRESIDING 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 ISSUES WHICH WARRANT CONSIDERATION IN ORDER TO DEVELOP
AN ADEQUATE RECORD AS DETERMINED BY AN ORDER OF THE BOARD.
  3. ALL PARTIES SHALL BE PREPARED TO PROCEED IN AN  EXPEDITIOUS  MANNER
AT  THE  HEARING  SO THAT IT MAY PROCEED REGULARLY UNTIL COMPLETION. THE
PLACE OF THE HEARING SHALL BE  DESIGNATED  BY  THE  PRESIDING  EXAMINER.

S. 2084                            13

HEARINGS SHALL BE HELD OF SUFFICIENT DURATION TO PROVIDE ADEQUATE OPPOR-
TUNITY  TO  HEAR DIRECT EVIDENCE AND REBUTTAL EVIDENCE FROM RESIDENTS OF
THE AREA AFFECTED BY THE MAJOR ELECTRIC GENERATING FACILITY.
  4.  (A)  EXCEPT  AS  PROVIDED  IN  PARAGRAPH  (B) OF THIS SUBDIVISION,
PROCEEDINGS ON AN APPLICATION SHALL BE COMPLETED IN  ALL  RESPECT  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 CHAIRPERSON THAT
AN APPLICATION COMPLIES WITH SECTION  ONE  HUNDRED  SIXTY-FOUR  OF  THIS
ARTICLE;  PROVIDED,  HOWEVER,  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 SIX MONTHS IN ORDER  TO  GIVE  CONSIDERATION  TO
SPECIFIC  ISSUES NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE BOARD MUST
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 SIX MONTHS, UNLESS SUCH DEADLINE IS WAIVED BY THE APPLI-
CANT, 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 CHAIRPERSON THAT  SUCH  APPLICA-
TION COMPLIES WITH SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, WHEN-
EVER  SUCH  APPLICATION  DEMONSTRATES THAT THE OPERATION OF THE MODIFIED
FACILITY 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 MEGA-
WATT-HOUR BASIS: (A) OXIDES OF NITROGEN, (B) OXIDES OF  SULFUR  AND  (C)
PARTICULATE  MATTER OF 2.5 MICRONS OR GREATER. THE PERCENTAGE REDUCTIONS
IN THE RATE OF SUCH EMISSIONS SHALL BE CALCULATED BY COMPARING THE ANNU-
ALIZED POTENTIAL TO EMIT OF THE EXISTING FACILITY (EXPRESSED  IN  POUNDS
PER  MEGAWATT-HOUR)  AT  THE  TIME THE APPLICATION UNDER THIS ARTICLE IS
FILED WITH THE CHAIRPERSON AND THE FUTURE ANNUALIZED 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  REASON-
ABLY  EXPECTED  OPERATING  CONDITIONS)  PROPOSED IN THE APPLICATION; AND
(II) INSTALLATION OF AIR COOLED CONDENSERS OR INSTALLATION  OF  EVAPORA-
TIVE  COOLING  WATER  INTAKE  SYSTEMS OR SUCH OTHER TECHNOLOGIES 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 MEGA-
WATT OF TOTAL PLANT GENERATING CAPACITY FOR  COMBINED  CYCLE  COMBUSTION
TURBINE  TECHNOLOGY  PLANTS,  FROM  A  SOURCE  WATER  BODY  FOR  COOLING
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  ENVIRON-
MENTAL  PERMITTING  AUTHORITY, THE DEPARTMENT OF ENVIRONMENTAL CONSERVA-
TION, NECESSARY TO SHOW COMPLIANCE WITH THE REQUIREMENTS OF SUBPARAGRAPH
(I) OF THIS PARAGRAPH. FOR FACILITIES OVER TWO  HUNDRED  THOUSAND  KILO-
WATTS  WHICH  HAVE NOT BEEN SELECTED PURSUANT TO AN APPROVED PROCUREMENT
PROCESS THE BOARD MAY EXTEND THE DEADLINE IN EXTRAORDINARY CIRCUMSTANCES
BY NO MORE THAN THREE MONTHS IN ORDER TO GIVE CONSIDERATION TO  SPECIFIC

S. 2084                            14

ISSUES NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE BOARD SHALL RENDER A
FINAL DECISION ON THE APPLICATION BY THE AFOREMENTIONED 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  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 CONCERNING THE
POTENTIAL ENVIRONMENTAL IMPACTS OF THE PROPOSED FACILITY, AND, AS APPRO-
PRIATE, ANY ALTERNATE FACILITY OR ENERGY SOURCE ON THE ENVIRONMENT,  AND
WHETHER  AND  HOW  SUCH  FACILITY WOULD COMPLY WITH APPLICABLE STATE AND
FEDERAL ENVIRONMENTAL PROTECTION LAWS, STANDARDS, RULES AND REGULATIONS;
  (C) THE DEPARTMENT OF ECONOMIC DEVELOPMENT;
  (D) THE DEPARTMENT OF HEALTH;
  (E) THE DEPARTMENT OF AGRICULTURE AND MARKETS;
  (F) THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY;
  (G) THE DEPARTMENT OF STATE, WHICH SHALL  BE  AVAILABLE  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 AVAILABLE IN ANY SUCH PROCEEDING TO  PRESENT  EXPERT  TESTIMONY
AND INFORMATION CONCERNING THE IMPACTS OF THE PROPOSED FACILITY ON STATE
PARKLANDS  AND  ARCHEOLOGICAL,  HISTORICAL,  CULTURAL,  AND RECREATIONAL
RESOURCES UNDER THE SUPERVISION OF THE OFFICE;
  (I) WHERE THE FACILITY OR  ANY  PORTION  THEREOF  OR  ANY  ALTERNATIVE
PROPOSED TO BE LOCATED WITHIN A CITY WITH A POPULATION OF ONE MILLION OR
MORE, THE APPROPRIATE ENVIRONMENTAL PROTECTION AGENCY OF SUCH CITY;
  (J)  WHERE  THE FACILITY OR ANY PORTION THEREOF OR OF ANY ALTERNATE IS
TO BE LOCATED WITH THE ADIRONDACK PARK, AS DEFINED IN SUBDIVISION ONE OF
SECTION 9-0101 OF THE ENVIRONMENTAL  CONSERVATION  LAW,  THE  ADIRONDACK
PARK AGENCY;
  (K) 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;
  (L) 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 OR  SHE  HAS  FILED

S. 2084                            15

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 APPLICATION;
  (M)  ANY  NONPROFIT  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
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 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;
  (O)  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
  (P)  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 PROCEEDINGS.
  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

S. 2084                            16

PROCEEDING AND THE ASSOCIATE HEARING EXAMINER'S CONCLUSIONS  AND  RECOM-
MENDATIONS  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) WHEN THE FACILITY IS PROPOSED TO BE LOCATED IN A COASTAL AREA  AND
FEDERAL  AUTHORIZATION  IS REQUIRED, A COASTAL RESOURCE SPECIALIST SHALL
BE DESIGNATED BY THE DEPARTMENT OF STATE  PRIOR  TO  THE  DATE  SET  FOR
COMMENCEMENT  OF  THE  PUBLIC  HEARING.  THE COASTAL RESOURCE SPECIALIST
SHALL ATTEND ALL HEARINGS AS SCHEDULED BY THE  PRESIDING  AND  ASSOCIATE
EXAMINERS  AND  SHALL  ASSIST  THE  PRESIDING AND ASSOCIATE EXAMINERS IN
INQUIRING INTO AND CALLING FOR TESTIMONY CONCERNING RELEVANT AND MATERI-
AL MATTERS. IN THE EVENT THAT THE SECRETARY  OF  STATE  IS  REQUIRED  TO
RENDER  A CONSISTENCY DETERMINATION PURSUANT TO THE FEDERAL COASTAL ZONE
MANAGEMENT ACT, THE RECORD IN THE PROCEEDINGS SHALL PROVIDE  INFORMATION
ON  WHICH TO BASE THE DETERMINATION OF THE SECRETARY OF STATE WHETHER OR
NOT TO CONCUR WITH THE APPLICANT'S CERTIFICATION.
  (C) 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
OF AN ADEQUATE RECORD. 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 PRE-HEARING 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.
  (D)  WHEN  THE PROPOSED FACILITY IS TO BE LOCATED IN A POTENTIAL ENVI-
RONMENTAL JUSTICE AREA, AS DEFINED IN THE  DEPARTMENT  OF  ENVIRONMENTAL
CONSERVATION  POLICY  DIRECTIVE CP-29, ENVIRONMENTAL JUSTICE AND PERMIT-
TING, AN ENVIRONMENTAL JUSTICE SPECIALIST SHALL  BE  DESIGNATED  BY  THE
DEPARTMENT  OF  ENVIRONMENTAL  CONSERVATION  PRIOR  TO  THE DATE SET FOR
COMMENCEMENT OF THE PUBLIC HEARING. THE ENVIRONMENTAL JUSTICE SPECIALIST
SHALL ATTEND ALL HEARINGS AS SCHEDULED BY THE  PRESIDING  AND  ASSOCIATE
EXAMINERS  AND  SHALL  ASSIST  THE  PRESIDING AND ASSOCIATE EXAMINERS IN
INQUIRING INTO AND CALLING FOR TESTIMONY CONCERNING RELEVANT AND MATERI-
AL MATTERS.
  2. A COPY OF THE RECORD SHALL BE MADE AVAILABLE BY THE  BOARD  AT  ALL
REASONABLE TIMES FOR EXAMINATION BY THE PUBLIC.
  3.  THE  CHAIRPERSON  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
ELECTRIC  GENERATING  FACILITY  SUBJECT  TO THIS ARTICLE WITH RESPECT TO
PROVIDING 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, AND,  WITH  RESPECT  TO  A

S. 2084                            17

FACILITY  THAT HAS NOT BEEN SELECTED PURSUANT TO AN APPROVED PROCUREMENT
PROCESS,  ALTERNATE  ENERGY  SUPPLY  SOURCES  AND,  WHERE   APPROPRIATE,
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 AND, WITH RESPECT TO A FACILITY  THAT
HAS  NOT  BEEN  SELECTED  PURSUANT  TO  AN APPROVED PROCUREMENT PROCESS,
ALTERNATE ENERGY SUPPLY SOURCES AND, WHERE APPROPRIATE,  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
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. THE BOARD SHALL ISSUE AN ORDER UPON THE  DECISION  AND
THE OPINION EMBODYING THE TERMS AND CONDITIONS THEREOF IN FULL.  FOLLOW-
ING  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 EXCLUSIVE OF THE AD HOC MEMBERS, SHALL RETAIN JURISDIC-
TION WITH RESPECT TO  THE  AMENDMENT,  SUSPENSION  OR  REVOCATION  OF  A
CERTIFICATE.  THE  COMMISSION  SHALL  MONITOR,  ENFORCE  AND  ADMINISTER
COMPLIANCE WITH ANY TERMS AND CONDITIONS SET FORTH IN THE BOARD'S ORDER.
THE BOARD SHALL NOT GRANT A CERTIFICATE FOR THE CONSTRUCTION  OR  OPERA-
TION  OF  A MAJOR ELECTRIC GENERATING FACILITY, EITHER AS PROPOSED OR AS
MODIFIED BY THE BOARD, UNLESS IT SHALL FIRST FIND AND DETERMINE:
  (A)(I) THAT THE FACILITY WILL  SATISFY  ADDITIONAL  ELECTRIC  CAPACITY
NEEDS  OR  OTHER ELECTRIC SYSTEM NEEDS, AND THAT THE CONSTRUCTION OF THE
FACILITY IS CONSISTENT WITH LONG-RANGE ENERGY  PLANNING  OBJECTIVES  AND
STRATEGIES, PROVIDED HOWEVER, THAT SUBSEQUENT TO THE ADOPTION OF A STATE

S. 2084                            18

ENERGY  PLAN PURSUANT TO FORMER ARTICLE SIX OF THE ENERGY LAW, THE BOARD
SHALL FIND AND DETERMINE  THAT  THE  CONSTRUCTION  OF  THE  FACILITY  IS
REASONABLY  CONSISTENT  WITH THE POLICIES AND LONG-RANGE ENERGY PLANNING
OBJECTIVES  AND  STRATEGIES  CONTAINED  IN  THE MOST RECENT STATE ENERGY
PLAN; OR (II) THAT THE FACILITY WAS SELECTED  PURSUANT  TO  AN  APPROVED
PROCUREMENT PROCESS;
  (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  AIR  AND  ENVIRONMENTAL IMPACTS OF THE
PROPOSED FACILITY IN THE AGGREGATE WITH EXISTING EMISSION SOURCES ON THE
GEOGRAPHIC AREA IN WHICH THE FACILITY IS PROPOSED; AND THE POTENTIAL FOR
SIGNIFICANT DETERIORATION IN LOCAL AIR QUALITY FROM  PARTICULATE  MATTER
OF  2.5 MICRONS OR GREATER IN SIZE, WITH PARTICULAR ATTENTION TO FACILI-
TIES LOCATED IN AREAS DESIGNATED  AS  SEVERE  NON-ATTAINMENT,  FISH  AND
OTHER MARINE LIFE AND WILDLIFE;
  (C)  THAT THE FACILITY (I) MITIGATES TO THE EXTENT PRACTICABLE 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 (B) OF SUBDIVISION ONE OF SECTION
ONE HUNDRED SIXTY-FOUR 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 CONTRAVENTION OF WATER QUALITY STANDARDS OR BE INCONSIST-
ENT  WITH  APPLICABLE  REGULATIONS  OF  THE  DEPARTMENT OF ENVIRONMENTAL
CONSERVATION, OR IN CASE NO CLASSIFICATION HAS BEEN MADE OF THE  RECEIV-
ING WATERS ASSOCIATED WITH THE FACILITY, WILL NOT DISCHARGE ANY EFFLUENT
THAT  WILL BE UNDULY INJURIOUS TO THE PROPAGATION AND PROTECTION OF FISH
AND WILDLIFE, THE INDUSTRIAL 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) IF THE FACILITY IS PROPOSED TO BE LOCATED IN A COASTAL AREA,  THAT
THE  ACTION  IS CONSISTENT WITH APPLICABLE POLICIES SET FORTH IN ARTICLE
FORTY-TWO OF THE EXECUTIVE LAW, OR IF THE FACILITY  IS  PROPOSED  TO  BE
LOCATED IN A MUNICIPALITY WITH A LOCAL WATERFRONT REVITALIZATION PROGRAM
APPROVED BY THE SECRETARY OF STATE, THAT THE ACTION IS CONSISTENT TO THE
MAXIMUM  EXTENT  PRACTICABLE  WITH  THAT LOCAL WATERFRONT REVITALIZATION
PROGRAM;
  (E) THAT THE FACILITY IS DESIGNATED  TO  OPERATE  IN  COMPLIANCE  WITH
APPLICABLE  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 EXISTING TECHNOLOGY FOR THE NEEDS OF OR COSTS TO RATE PAYERS
WHETHER LOCATED INSIDE OR OUTSIDE OF SUCH MUNICIPALITY. THE BOARD  SHALL
PROVIDE  THE  MUNICIPALITY AN OPPORTUNITY TO PRESENT EVIDENCE IN SUPPORT
OF SUCH ORDINANCE, LAW, RESOLUTION, REGULATION  OR  OTHER  LOCAL  ACTION
ISSUED THEREUNDER; AND

S. 2084                            19

  (F)  THAT  THE  CONSTRUCTION  AND  OPERATION OF THE FACILITY IS IN THE
PUBLIC INTEREST, CONSIDERING THE ENVIRONMENTAL 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  ARTI-
CLE.
  3. THE BOARD MAY, EITHER AS A PART OF THE DECISION DESCRIBED IN SUBDI-
VISION  TWO  OF THIS SECTION OR AS A PART OF ANY DETERMINATION AS MAY BE
APPROPRIATELY MADE IN CONFORMANCE WITH REGULATIONS ADOPTED  PURSUANT  TO
SUBDIVISION  SEVEN  OF  SECTION  ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE,
ISSUE PERMITS PURSUANT TO FEDERAL  RECOGNITION  OF  STATE  AUTHORITY  IN
ACCORDANCE  WITH  FEDERAL CLEAN WATER ACT, THE FEDERAL CLEAN AIR ACT AND
THE FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT. SUCH  PERMITS  SHALL
BE  BASED  UPON  THE EVIDENCE OF RECORD WITH RESPECT TO THE CONSTRUCTION
AND OPERATION OF THE POLLUTION CONTROL SYSTEMS OF THE FACILITY AND SHALL
CONTAIN SUCH CONDITIONS AND LIMITATIONS AS THE BOARD SHALL  DEEM  APPRO-
PRIATE.  THE  ISSUANCE  OF SUCH PERMITS AS PART OF A DETERMINATION HERE-
UNDER SHALL NOT PREVENT THE BOARD, IF IT BE SO  DISPOSED,  FROM  DENYING
THE APPLICATION UNDER SUBDIVISION TWO OF THIS SECTION IN WHICH EVENT THE
PERMIT SHALL THENCEFORTH BE DEEMED TO BE OF NO FORCE OR EFFECT.
  4.  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
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 FORTHWITH
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

S. 2084                            20

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 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 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; OR
  (E) ARBITRARY, CAPRICIOUS OR AN ABUSE OF DISCRETION.
  3. EXCEPT AS PROVIDED IN THIS SECTION, ARTICLE  SEVENTY-EIGHT  OF  THE
CIVIL  PRACTICE  LAW  AND RULES SHALL APPLY TO APPEALS TAKEN PURSUANT TO
THIS ARTICLE.
  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-
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. NOTWITHSTANDING
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  STATE MAY MAKE CONSISTENCY
DETERMINATIONS PURSUANT TO THE FEDERAL COASTAL ZONE MANAGEMENT  ACT.  IN
ISSUING  SUCH DETERMINATIONS, THE SECRETARY OF STATE SHALL FOLLOW PROCE-
DURES ESTABLISHED IN THIS ARTICLE TO THE EXTENT THAT THEY ARE CONSISTENT
WITH THE FEDERAL COASTAL ZONE MANAGEMENT ACT AND ITS IMPLEMENTING  REGU-
LATION;  AND  PROVIDED FURTHER, HOWEVER, THAT THE DEPARTMENT OF ENVIRON-

S. 2084                            21

MENTAL CONSERVATION MAY ISSUE 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. IN ISSU-
ING  SUCH  PERMITS, THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION SHALL
FOLLOW PROCEDURES ESTABLISHED IN THIS ARTICLE TO THE  EXTENT  THAT  THEY
ARE  CONSISTENT  WITH  FEDERALLY  DELEGATED  OR  APPROVED  ENVIRONMENTAL
PERMITTING AUTHORITY. THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION AND
THE SECRETARY OF STATE SHALL PROVIDE SUCH PERMITS TO THE BOARD PRIOR  TO
ITS DETERMINATION WHETHER OR NOT TO ISSUE A CERTIFICATE.
  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  2.  The  opening  paragraph  and  paragraph (b) of subdivision 5 of
section 8-0111 of the environmental conservation law, as added by  chap-
ter 612 of the laws of 1975, are amended to read as follows:
  The  requirements of [subdivision two of section 8-0109 of] this arti-
cle shall not apply to:
  (b) Actions subject to the provisions requiring a certificate of envi-
ronmental compatibility and public need in articles  seven  [and  eight]
AND TEN AND FORMER ARTICLE EIGHT of the public service law; or
  S  3. Section 17-0701 of the environmental conservation law is amended
by adding a new subdivision 8 to read as follows:
  8. IN THE CASE OF A MAJOR ELECTRIC GENERATING FACILITY, AS DEFINED  IN
SECTION   ONE   HUNDRED  SIXTY  OF  THE  PUBLIC  SERVICE  LAW,  FOR  THE
CONSTRUCTION OR OPERATION OF WHICH A CERTIFICATE IS REQUIRED UNDER ARTI-
CLE TEN OF THE PUBLIC SERVICE LAW, SUCH CERTIFICATE SHALL  BE  DEEMED  A
PERMIT  UNDER  THIS  SECTION  IF  ISSUED  BY THE STATE BOARD ON ELECTRIC
GENERATION SITING AND THE ENVIRONMENT PURSUANT TO FEDERALLY DELEGATED OR
APPROVED ENVIRONMENTAL PERMIT AUTHORITY. NOTHING HEREIN SHALL LIMIT  THE
AUTHORITY OF THE DEPARTMENT OF HEALTH AND THIS DEPARTMENT TO MONITOR THE
ENVIRONMENTAL  AND  HEALTH  IMPACTS RESULTING FROM THE OPERATION OF SUCH
MAJOR ELECTRIC GENERATING FACILITY AND TO ENFORCE APPLICABLE  PROVISIONS
OF  THE  PUBLIC HEALTH LAW, THIS CHAPTER AND THE TERMS AND CONDITIONS OF
THE CERTIFICATE GOVERNING THE ENVIRONMENTAL AND HEALTH IMPACTS RESULTING
FROM SUCH OPERATION.
  S 4. Section 17-0823 of the environmental conservation law,  as  added
by chapter 801 of the laws of 1973, is amended to read as follows:
S 17-0823. Power plant siting.
  In  the case of a major steam electric generating facility, as defined
in section one  hundred  forty  of  the  public  service  law,  for  the
construction  or  operation  of  which  a  certificate is required under
FORMER article eight of [such] THE PUBLIC SERVICE law, OR A MAJOR  ELEC-
TRIC  GENERATING FACILITY AS DEFINED IN SECTION ONE HUNDRED SIXTY OF THE
PUBLIC SERVICE LAW, FOR THE CONSTRUCTION OR OPERATION OF WHICH A CERTIF-
ICATE IS REQUIRED UNDER ARTICLE TEN  OF  THE  PUBLIC  SERVICE  LAW,  [an
applicant  shall apply for and obtain such certificate in lieu of filing
an application and obtaining a permit under this article. Any  reference
in this article to a permit shall, in the case of such major steam elec-
tric  generating  facility,  be deemed for all purposes to refer to such
certificate, provided that nothing] SUCH CERTIFICATE SHALL BE  DEEMED  A
PERMIT  UNDER  THIS  SECTION  IF  ISSUED  BY THE STATE BOARD ON ELECTIVE
GENERATION SITING AND THE ENVIRONMENT PURSUANT TO FEDERALLY DELEGATED OR
APPROVED ENVIRONMENTAL PERMIT AUTHORITY. NOTHING herein shall limit  the
authority  of  the [departments] DEPARTMENT of health and [environmental
conservation] THE DEPARTMENT to monitor  the  environmental  and  health

S. 2084                            22

impacts resulting from the operation of such major steam electric gener-
ating  facility  OR  MAJOR  ELECTRIC  GENERATING FACILITY and to enforce
applicable provisions  of  the  public  health  LAW  and  [environmental
conservation  laws]  THIS  CHAPTER  and  the terms and conditions of the
certificate governing the environmental  and  health  impacts  resulting
from  such  operation.  In such case all powers, duties, obligations and
privileges conferred upon the department by this article  shall  devolve
upon  the  New  York  state  board on electric generation siting and the
environment. In considering the granting of permits,  such  board  shall
apply the provisions of this article and the Act.
  S  5.  Paragraph j of subdivision 2 of section 19-0305 of the environ-
mental conservation law, as amended by chapter 525 of the laws of  1981,
is amended to read as follows:
  j.  Consider  for approval or disapproval applications for permits and
certificates including plans or  specifications  for  air  contamination
sources and air cleaning installations or any part thereof submitted [to
him  pursuant  to]  CONSISTENT  WITH  the  rules  of the department, and
inspect the installation for compliance with  the  plans  or  specifica-
tions;  provided  that  in the case of a major steam electric generating
facility, as defined in [either] FORMER section one hundred forty of the
public service law, for which a  certificate  is  required  pursuant  to
[either] FORMER article eight of [such] THE PUBLIC SERVICE law, PURSUANT
TO  FEDERALLY  DELEGATED  OR APPROVED ENVIRONMENTAL PERMITTING AUTHORITY
such approval functions shall be performed by the state board  on  elec-
tric  generation siting and the environment, as defined in such law, and
such  inspection  functions  shall  be  performed  by  the  department[;
provided further that nothing].  NOTHING herein shall limit the authori-
ty  of the [departments] DEPARTMENT of health and [environmental conser-
vation] THE DEPARTMENT to monitor the environmental and  health  impacts
resulting  from  the  operation  of such major steam electric generating
facility and to enforce applicable provisions of the public  health  LAW
and [the environmental conservation laws] THIS CHAPTER and the terms and
conditions  of  the  certificate  governing the environmental and health
impacts resulting from such operation.
  S 6. Paragraph (e) of subdivision 3 of section 49-0307 of the environ-
mental conservation law, as added by chapter 292 of the laws of 1984, is
amended to read as follows:
  (e) where land subject to a conservation easement or  an  interest  in
such  land  is  required for a major utility transmission facility which
has received a certificate of  environmental  compatibility  and  public
need  pursuant to article seven of the public service law or is required
for a major steam electric generating  facility  which  has  received  a
certificate [or] OF environmental compatibility and public need pursuant
to article eight of the public service law, OR A MAJOR ELECTRIC GENERAT-
ING  FACILITY  WHICH HAS RECEIVED A CERTIFICATE OF ENVIRONMENTAL COMPAT-
IBILITY AND PUBLIC NEED PURSUANT TO ARTICLE TEN OF  THE  PUBLIC  SERVICE
LAW,  upon  the  filing  of  such certificate in a manner prescribed for
recording a conveyance of real property pursuant to section two  hundred
ninety-one of the real property law or any other applicable provision of
law,  provided  that such certificate contains a finding that the public
interest in the conservation and protection of  the  natural  resources,
open  spaces  and  scenic beauty of the Adirondack or Catskill parks has
been considered.
  S 7. Section 1014 of the public authorities law, as amended by chapter
446 of the laws of 1972, is amended to read as follows:

S. 2084                            23

  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
facility  as  defined therein, AND ARTICLE TEN OF THE PUBLIC SERVICE LAW
APPLIES TO SITING OF MAJOR ELECTRIC  GENERATING  FACILITIES  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 ENVIRON-
MENTAL conservation law and every other law relating to  the  department
of  public service or the public service commission or to the [conserva-
tion] department OF ENVIRONMENTAL  CONSERVATION  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 8. Subdivision 1 of section 1020-s of the public authorities law, as
added by chapter 517 of the laws of 1986, is amended to read as follows:
  1. The rates, services  and  practices  relating  to  the  electricity
generated  by facilities owned or operated by the authority shall not be
subject to the provisions of the public service law or to regulation by,
or the jurisdiction of, the public service  commission,  except  to  the
extent (a) article seven of the public service law applies to the siting
and operation of a major utility transmission facility as defined there-
in,  (b)  article  [eight]  TEN  of  such law applies to the siting of a
generating facility as defined therein, and (c)  section  eighteen-a  of
such  law  provides  for assessment for certain costs, property or oper-
ations.
  S 9. 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 SECTION
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 SECTION ONE HUNDRED
SIXTY-FOUR  OF  THE  PUBLIC SERVICE LAW. MONEYS SHALL BE PAID OUT OF THE
ACCOUNT ON THE AUDIT AND WARRANT OF THE STATE  COMPTROLLER  ON  VOUCHERS
CERTIFIED OR APPROVED BY THE CHAIR OF THE PUBLIC SERVICE COMMISSION.
  S  10.  Separability.  If  any clause, sentence, paragraph, section or
part of this act shall be adjudged by any court of  competent  jurisdic-
tion 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.

S. 2084                            24

  S 11. This act shall take effect immediately, 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.