A. 7250 2
2. STAFF SERVICES SHALL BE PERFORMED BY PERSONNEL OF THE DEPARTMENT OF
PUBLIC SERVICE, THE DIVISION OF THE BUDGET, THE DEPARTMENT OF STATE, THE
DEPARTMENT OF HEALTH, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, THE
DEPARTMENT OF TRANSPORTATION, THE DEPARTMENT OF ECONOMIC DEVELOPMENT AND
THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, AS
DIRECTED BY THE BOARD. ASSISTANCE SHALL ALSO BE MADE AVAILABLE, AS
REQUESTED BY THE BOARD, FROM OTHER AGENCIES, DEPARTMENTS AND PUBLIC
AUTHORITIES OF THE STATE. THE BOARD MAY PROVIDE FOR ITS OWN REPRESEN-
TATION IN ALL ACTIONS OR PROCEEDINGS IN WHICH IT IS A PARTY.
3. THE BOARD SHALL HAVE THE POWERS:
(A) TO ADOPT A STATE ENERGY PLAN IN ACCORDANCE WITH THE PROVISIONS OF
THIS ARTICLE;
(B) TO ADOPT SUCH RULES AND REGULATIONS AS NECESSARY OR APPROPRIATE TO
IMPLEMENT THIS ARTICLE;
(C) TO ISSUE SUBPOENAS AND SUBPOENAS DUCES TECUM;
(D) TO AUTHORIZE ANY PERSON TO CONDUCT HEARINGS WHICH THE BOARD IS
AUTHORIZED TO CONDUCT, TO TAKE TESTIMONY WITH RESPECT TO THE SUBJECT OR
MATTER UNDER INVESTIGATION, AND TO REPORT THE TESTIMONY TO THE BOARD. IN
THE CONDUCT OF SUCH HEARINGS, ANY PERSON SO AUTHORIZED BY THE BOARD
SHALL HAVE ALL THE POWERS OF THE BOARD; AND
(E) TO UNDERTAKE ENERGY RELATED STUDIES AND ISSUE REPORTS AS THE BOARD
DEEMS APPROPRIATE.
S 6-104. STATE ENERGY PLAN. 1. THE BOARD SHALL ADOPT A STATE ENERGY
PLAN IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE.
2. THE STATE ENERGY PLAN SHALL INCLUDE:
(A) FORECASTS FOR A PERIOD OF TEN YEARS OF (I) DEMAND FOR ELECTRICITY,
NATURAL GAS, COAL AND PETROLEUM PRODUCTS, INCLUDING HEATING AND TRANS-
PORTATION FUELS, FOR THE SERVICE AREAS OF THE STATE'S MAJOR ELECTRIC AND
GAS UTILITIES AND/OR THE STATE AS A WHOLE, AS APPROPRIATE, TAKING INTO
ACCOUNT ENERGY CONSERVATION, LOAD MANAGEMENT AND OTHER DEMAND-REDUCING
MEASURES REASONABLY EXPECTED TO OCCUR;
(II) ENERGY SUPPLY REQUIREMENTS NEEDED TO SATISFY DEMAND FOR ELECTRIC-
ITY, NATURAL GAS, COAL AND PETROLEUM PRODUCTS, INCLUDING HEATING AND
TRANSPORTATION FUELS, FOR THE SERVICE AREAS OF THE STATE'S MAJOR ELEC-
TRIC AND GAS UTILITIES AND/OR FOR THE STATE AS A WHOLE, AS APPROPRIATE,
INCLUDING, WITH RESPECT TO ELECTRICITY, THE AMOUNT OF CAPACITY NEEDED TO
PROVIDE ADEQUATE RESERVE MARGINS;
(III) AN ASSESSMENT OF THE ABILITY OF THE EXISTING ENERGY SUPPLY
SOURCES AND THE EXISTING TRANSMISSION OR FUEL TRANSPORTATION SYSTEMS TO
SATISFY, TOGETHER WITH THOSE SOURCES OR SYSTEMS REASONABLY CERTAIN TO BE
AVAILABLE, SUCH ENERGY SUPPLY REQUIREMENTS;
(IV) ADDITIONAL ELECTRIC CAPACITY NEEDED TO MEET SUCH ENERGY SUPPLY
REQUIREMENTS THAT WILL NOT BE MET BY EXISTING SOURCES OF SUPPLY AND
THOSE REASONABLY CERTAIN TO BE AVAILABLE; AND
(V) ENERGY PRICES;
(B) IDENTIFICATION AND ANALYSIS OF THE COSTS, RISKS, BENEFITS AND
UNCERTAINTIES OF ENERGY SUPPLY SOURCE ALTERNATIVES, INCLUDING DEMAND-RE-
DUCING MEASURES, FOR SATISFYING ENERGY SUPPLY REQUIREMENTS WHICH ARE NOT
REASONABLY CERTAIN TO BE MET BY THE ENERGY SUPPLY SOURCES IDENTIFIED IN
SUBPARAGRAPH (III) OF PARAGRAPH (A) OF THIS SUBDIVISION, PROVIDED THAT
SUCH ANALYSIS SHALL INCLUDE THE FACTORS IDENTIFIED IN PARAGRAPH (D) OF
THIS SUBDIVISION;
(C) IDENTIFICATION AND ANALYSIS OF EMERGING TRENDS RELATED TO ENERGY
SUPPLY, PRICE AND DEMAND, INCLUDING TRENDS RELATED TO THE TRANSPORTATION
SECTOR;
A. 7250 3
(D) A STATEMENT OF ENERGY POLICIES AND LONG-RANGE ENERGY PLANNING
OBJECTIVES AND STRATEGIES APPROPRIATE TO ACHIEVE, AMONG OTHER THINGS,
THE LEAST COST INTEGRATION OF ENERGY SUPPLY SOURCES AND DEMAND-REDUCING
MEASURES FOR SATISFYING ENERGY SUPPLY REQUIREMENTS, GIVING DUE REGARD TO
SUCH FACTORS AS RATEPAYER IMPACTS, SECURITY AND DIVERSITY OF FUEL
SUPPLIES AND GENERATING MODES, PROTECTION OF PUBLIC HEALTH AND SAFETY,
ADVERSE AND BENEFICIAL ENVIRONMENTAL IMPACTS, CONSERVATION OF ENERGY AND
ENERGY RESOURCES, AND THE ABILITY OF THE STATE TO COMPETE ECONOMICALLY;
(E) RECOMMENDATIONS, AS APPROPRIATE AND DESIRABLE, FOR ADMINISTRATIVE
AND LEGISLATIVE ACTIONS TO IMPLEMENT SUCH POLICIES, OBJECTIVES AND STRA-
TEGIES;
(F) ANALYSIS OF THE PROBABLE IMPACT OF IMPLEMENTATION OF THE PLAN UPON
ECONOMIC DEVELOPMENT, HEALTH, SAFETY AND WELFARE, ENVIRONMENTAL QUALITY,
AND ENERGY COSTS FOR CONSUMERS, SPECIFICALLY LOW-INCOME CONSUMERS; AND
(G) SUCH ADDITIONAL INFORMATION AS THE BOARD DEEMS APPROPRIATE.
3. (A) THE STATE ENERGY PLAN SHALL PROVIDE GUIDANCE FOR ENERGY-RELATED
DECISIONS TO BE MADE BY THE PUBLIC AND PRIVATE SECTORS WITHIN THE STATE.
(B) ANY ENERGY-RELATED ACTION OR DECISION OF A STATE AGENCY, BOARD,
COMMISSION OR AUTHORITY SHALL BE REASONABLY CONSISTENT WITH THE FORE-
CASTS AND THE POLICIES AND LONG-RANGE ENERGY PLANNING OBJECTIVES AND
STRATEGIES CONTAINED IN THE PLAN, INCLUDING ITS MOST RECENT UPDATE;
PROVIDED, HOWEVER, THAT ANY SUCH ACTION OR DECISION WHICH IS NOT REASON-
ABLY CONSISTENT WITH THE PLAN SHALL BE DEEMED IN COMPLIANCE WITH THIS
SECTION, PROVIDED THAT SUCH ACTION OR DECISION INCLUDES A FINDING THAT
THE RELEVANT PROVISIONS OF THE PLAN ARE NO LONGER REASONABLE OR PROBABLE
BASED ON A MATERIAL AND SUBSTANTIAL CHANGE IN FACT OR CIRCUMSTANCE, AND
A STATEMENT EXPLAINING THE BASIS FOR SUCH FINDING.
(C) NO ACTION OR DECISION OF A STATE AGENCY, BOARD, COMMISSION OR
AUTHORITY THAT IS REQUIRED BY THIS SECTION TO BE REASONABLY CONSISTENT
WITH THE FORECASTS, POLICIES AND LONG-RANGE ENERGY PLANNING OBJECTIVES
AND STRATEGIES CONTAINED IN THE PLAN, INCLUDING ITS MOST RECENT UPDATE,
SHALL BE DEEMED BY A COURT OF LAW TO BE UNREASONABLY INCONSISTENT WITH
SUCH FORECASTS, POLICIES, OBJECTIVES AND STRATEGIES, UNDER THIS OR ANY
OTHER PROVISION OF LAW, UNLESS A DETERMINATION TO THIS EFFECT IS MADE BY
THE BOARD UPON ITS OWN INITIATIVE OR FOLLOWING THE REFERRAL OF THE ISSUE
TO THE BOARD BY A COURT AFTER THE COMMENCEMENT OF A PROCEEDING CHALLENG-
ING SUCH ACTION.
(D) NOTHING IN THIS SECTION SHALL LIMIT THE AUTHORITY OF ANY STATE
AGENCY, BOARD, COMMISSION OR AUTHORITY TO DENY AN APPLICATION TO
CONSTRUCT, OPERATE OR MODIFY AN ENERGY FACILITY ON ENVIRONMENTAL OR
PUBLIC HEALTH AND SAFETY GROUNDS.
(E) A STATE AGENCY, BOARD, COMMISSION OR AUTHORITY MAY TAKE OFFICIAL
NOTICE OF THE MOST RECENT FINAL STATE ENERGY PLAN ADOPTED BY THE BOARD
PRIOR TO ANY FINAL ENERGY-RELATED DECISION BY SUCH AGENCY, BOARD,
COMMISSION OR AUTHORITY.
S 6-106. CONDUCT OF THE STATE ENERGY PLANNING PROCEEDING. 1. BY MAY
FIRST, TWO THOUSAND ELEVEN, AND EVERY FOUR YEARS FOLLOWING THE ADOPTION
OF THE MOST RECENT PLAN, THE STATE ENERGY PLANNING BOARD SHALL ADOPT A
STATE ENERGY PLAN, WHICH ADDRESSES EACH ITEM IDENTIFIED IN SUBDIVISION
TWO OF SECTION 6-104 OF THIS ARTICLE PROVIDED, HOWEVER, THE BOARD MAY
ADOPT SUCH A PLAN MORE FREQUENTLY FOR GOOD CAUSE SHOWN.
2. THE BOARD SHALL CONDUCT A STATE ENERGY PLANNING PROCEEDING,
CONSISTENT WITH THE NEED TO DEVELOP THE PLAN IN A TIMELY MANNER, WHICH
SHALL PROVIDE FOR THE FOLLOWING AT A MINIMUM:
A. 7250 4
(A) THE FILING OF INFORMATION BY ENERGY MARKET PARTICIPANTS CONSISTENT
WITH RULES AND REGULATIONS PROMULGATED BY THE BOARD AND AS SPECIFIED IN
SUBDIVISION THREE OF THIS SECTION;
(B) THE PREPARATION AND ISSUANCE OF A DRAFT PLAN, SUBSEQUENT TO THE
FILING OF INFORMATION BY ENERGY MARKET PARTICIPANTS, WHICH SHALL ADDRESS
EACH ITEM IDENTIFIED IN SUBDIVISION TWO OF SECTION 6-104 OF THIS ARTI-
CLE;
(C) PUBLIC COMMENT HEARINGS, IN AT LEAST THREE GEOGRAPHIC LOCATIONS IN
THE STATE, AND AN OPPORTUNITY TO SUBMIT WRITTEN COMMENTS, SUBSEQUENT TO
THE ISSUANCE OF A DRAFT PLAN, TO OBTAIN VIEWS AND COMMENTS OF INTERESTED
PERSONS ON ANY ASPECT OF, OR ISSUE ADDRESSED IN, SUCH DRAFT PLAN;
(D) EVIDENTIARY HEARINGS, AT THE REQUEST OF ANY INTERESTED PERSON,
SUBSEQUENT TO THE ISSUANCE OF A DRAFT PLAN, ON THE ISSUES IDENTIFIED IN
PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION 6-104 OF THIS ARTICLE OR ON
THE FACTUAL BASIS FOR ANY OTHER ISSUE IDENTIFIED IN SUBDIVISION TWO OF
SECTION 6-104 OF THIS ARTICLE; AND
(E) SUBMISSION OF A NOTICE FOR ANY HEARING OR OPPORTUNITY FOR COMMENT
PROVIDED FOR PURSUANT TO THIS SUBDIVISION FOR PUBLICATION WITHIN THE
STATE REGISTER.
3. INFORMATION FILED BY ENERGY MARKET PARTICIPANTS SHALL INCLUDE THE
FOLLOWING:
(A) THE NEW YORK INDEPENDENT SYSTEM OPERATOR, OR ANY SUCCESSOR ORGAN-
IZATION, WITH THE COOPERATION OF THE PARTICIPANTS IN THE ELECTRICITY
MARKETS ADMINISTERED BY THE NEW YORK INDEPENDENT SYSTEM OPERATOR AND
ENTITIES OTHERWISE SUBJECT TO THIS ARTICLE, SHALL, CONSISTENT WITH THE
TARIFFS AND AGREEMENTS OF THE NEW YORK INDEPENDENT SYSTEM OPERATOR,
PREPARE AND SUBMIT A SINGLE COMPREHENSIVE LONG-RANGE PLAN FOR FUTURE
OPERATIONS, WHICH SHALL INCLUDE:
(I) A FORECAST OF ELECTRICITY DEMANDS OVER A PERIOD OF TEN YEARS,
INCLUDING ANNUAL IN-STATE ELECTRIC ENERGY SALES AND SUMMER AND WINTER
PEAK LOADS BY ZONE, AND TOTAL ANNUAL IN-STATE ELECTRIC ENERGY SALES AND
COINCIDENT PEAK LOAD ON A STATEWIDE BASIS, SPECIFICALLY IDENTIFYING THE
EXTENT TO WHICH ENERGY CONSERVATION, LOAD MANAGEMENT AND OTHER
DEMAND-REDUCING MEASURES, AND ELECTRIC ENERGY GENERATED BY COGENERATION,
SMALL HYDRO AND ALTERNATE ENERGY PRODUCTION FACILITIES CONSUMED ON SITE,
HAVE BEEN INCORPORATED WITHIN SUCH FORECAST;
(II) A FORECAST OF ELECTRICITY SUPPLY REQUIREMENTS OVER A PERIOD OF
TEN YEARS, STATEWIDE AND BY ZONE, AS THE NEW YORK INDEPENDENT SYSTEM
OPERATOR SHALL PRESCRIBE, SPECIFICALLY IDENTIFYING THE AMOUNT OF RESERVE
MARGINS REQUIRED FOR RELIABLE ELECTRIC SERVICE, THE AMOUNTS OF TRANS-
MISSION AND DISTRIBUTION LOSSES ASSUMED, AND THE AMOUNT OF OUT-OF-STATE
SALES COMMITMENTS;
(III) AN ASSESSMENT OF THE ABILITY OF EXISTING ELECTRICITY SUPPLY
SOURCES, AND DEMAND-REDUCING MEASURES, INCLUDING THOSE REASONABLY
CERTAIN TO BE AVAILABLE, THROUGH IMPLEMENTATION OF STRATEGIES, POLICIES
OR OBJECTIVES DEVELOPED BY THE NEW YORK INDEPENDENT SYSTEM OPERATOR, OR
OTHERWISE, TO SATISFY ELECTRICITY SUPPLY REQUIREMENTS, INCLUDING ELEC-
TRIC GENERATING FACILITIES WHICH CAN BE RETAINED IN SERVICE BEYOND THEIR
ORIGINAL DESIGN LIFE THROUGH ROUTINE MAINTENANCE AND REPAIRS;
(IV) AN INVENTORY OF (1) ALL EXISTING ELECTRIC GENERATING AND TRANS-
MISSION FACILITIES OWNED OR OPERATED BY PARTICIPANTS IN THE ELECTRICITY
MARKETS ADMINISTERED BY THE NEW YORK INDEPENDENT SYSTEM OPERATOR, AND
ENTITIES OTHERWISE SUBJECT TO THIS ARTICLE, (2) ELECTRIC GENERATING AND
TRANSMISSION FACILITIES UNDER CONSTRUCTION BY PARTICIPANTS IN THE ELEC-
TRICITY MARKETS ADMINISTERED BY THE NEW YORK INDEPENDENT SYSTEM OPERATOR
AND ENTITIES OTHERWISE SUBJECT TO THIS ARTICLE, INCLUDING THE DATES FOR
A. 7250 5
COMPLETION AND OPERATION, (3) THE ANTICIPATED RETIREMENT DATES FOR ELEC-
TRIC GENERATING FACILITIES CURRENTLY OWNED OR OPERATED BY PARTICIPANTS
IN THE ELECTRICITY MARKETS ADMINISTERED BY THE NEW YORK INDEPENDENT
SYSTEM OPERATOR, AND ENTITIES OTHERWISE SUBJECT TO THIS ARTICLE, (4)
LAND OWNED BY PARTICIPANTS IN THE ELECTRICITY MARKETS ADMINISTERED BY
THE NEW YORK INDEPENDENT SYSTEM OPERATOR, AND ENTITIES OTHERWISE SUBJECT
TO THIS ARTICLE, AND HELD FOR FUTURE USE AS SITES FOR ELECTRIC GENERAT-
ING FACILITIES, AND (5) ELECTRIC GENERATING FACILITIES OWNED, OPERATED,
OR PLANNED TO BE OWNED OR OPERATED, BY OTHERS, TO THE EXTENT INFORMATION
CONCERNING THE SAME IS KNOWN;
(V) RECOMMENDED SUPPLY ADDITIONS AND DEMAND-REDUCING MEASURES FOR
SATISFYING THE ELECTRICITY SUPPLY REQUIREMENTS, NOT REASONABLY CERTAIN
TO BE MET BY ELECTRICITY SUPPLY SOURCES IDENTIFIED IN SUBPARAGRAPH (III)
OF THIS PARAGRAPH, INCLUDING THE LIFE EXTENSION OF EXISTING ELECTRIC
GENERATING FACILITIES, AND REASONS THEREFOR;
(VI) A STATEMENT OF RESEARCH AND DEVELOPMENT PLANS, INCLUDING OBJEC-
TIVES AND PROGRAMS IN THE AREAS OF ENERGY CONSERVATION, LOAD MANAGEMENT,
ELECTRIC GENERATION AND TRANSMISSION, NEW ENERGY TECHNOLOGIES AND
POLLUTION ABATEMENT AND CONTROL, RECENT RESULTS OF SUCH PROGRAMS UNDER-
TAKEN OR FUNDED TO DATE, AND AN ASSESSMENT OF THE POTENTIAL IMPACTS OF
SUCH RESULTS;
(VII) A PROJECTION OF ESTIMATED ELECTRICITY PRICES TO CONSUMERS OVER
THE FORECAST PERIOD;
(VIII) A DESCRIPTION OF THE LOAD FORECASTING METHODOLOGY AND THE
ASSUMPTIONS AND DATA USED IN THE PREPARATION OF THE FORECASTS, SPECIF-
ICALLY INCLUDING PROJECTIONS OF DEMOGRAPHIC AND ECONOMIC ACTIVITY AND
SUCH OTHER FACTORS, STATEWIDE AND BY SERVICE AREA, WHICH MAY INFLUENCE
ELECTRICITY DEMAND, AND THE BASES FOR SUCH PROJECTIONS;
(IX) PROPOSED POLICIES, OBJECTIVES AND STRATEGIES FOR MEETING THE
STATE'S FUTURE ELECTRICITY NEEDS; AND
(X) SUCH ADDITIONAL INFORMATION AS THE BOARD MAY, BY REGULATION,
REQUIRE TO CARRY OUT THE PURPOSES OF THIS ARTICLE.
(B) THE MEMBERS OF THE NORTHEAST GAS ASSOCIATION OR ANY SUCCESSOR
ORGANIZATION SHALL PREPARE AND SUBMIT A SINGLE COMPREHENSIVE LONG-RANGE
PLAN FOR FUTURE OPERATIONS, WHICH SHALL INCLUDE:
(I) A FORECAST OVER A PERIOD OF TEN YEARS, STATEWIDE AND BY UTILITY
SERVICE AREA, OF ESTIMATED ANNUAL IN-STATE GAS SALES, WINTER SEASON
SALES AND PEAK DAY SALES BY APPROPRIATE END-USE CLASSIFICATIONS, SPECIF-
ICALLY IDENTIFYING THE EXTENT TO WHICH ENERGY CONSERVATION MEASURES AND
THE SALE OF GAS OWNED BY PERSONS OTHER THAN THE MEMBERS OF THE NORTHEAST
GAS ASSOCIATION OR ANY SUCCESSOR ORGANIZATION DIRECTLY TO END-USERS HAVE
BEEN INCORPORATED WITHIN SUCH FORECAST;
(II) A FORECAST OF GAS SUPPLY REQUIREMENTS OVER A PERIOD OF TEN YEARS,
STATEWIDE AND BY UTILITY SERVICE AREA, SPECIFICALLY IDENTIFYING THE
AMOUNTS OF GAS NEEDED TO MEET SEVERE WEATHER CONDITIONS, LOST AND UNAC-
COUNTED FOR GAS, OUT-OF-STATE SALES COMMITMENTS AND INTERNAL USE;
(III) AN ASSESSMENT OF THE ABILITY OF EXISTING GAS SUPPLY SOURCES, AND
THOSE REASONABLY CERTAIN TO BE AVAILABLE, TO SATISFY GAS SUPPLY REQUIRE-
MENTS;
(IV) AN INVENTORY OF (1) ALL EXISTING SUPPLY SOURCES, STORAGE FACILI-
TIES, AND TRANSMISSION FACILITIES WHICH ARE USED IN PROVIDING SERVICE
WITHIN THE STATE, (2) THE TRANSMISSION AND STORAGE FACILITIES UNDER
CONSTRUCTION WHICH WOULD BE USED IN PROVIDING SERVICE WITHIN THE STATE,
THEIR PROJECTED COSTS AND CAPACITIES, INCLUDING PEAKING CAPACITY, (3)
TRANSMISSION FACILITY ADDITIONS PROPOSED TO BE CONSTRUCTED BY MEMBERS OF
THE NORTHEAST GAS ASSOCIATION OR ANY SUCCESSOR ORGANIZATION, (4) TRANS-
A. 7250 6
MISSION FACILITIES OPERATED, OR PLANNED TO BE OPERATED, BY OTHERS, TO
THE EXTENT INFORMATION CONCERNING THE SAME IS KNOWN;
(V) RECOMMENDED SUPPLY ADDITIONS AND DEMAND-REDUCING MEASURES FOR
SATISFYING THE GAS SUPPLY REQUIREMENTS, NOT REASONABLY CERTAIN TO BE MET
BY GAS SUPPLY SOURCES IDENTIFIED IN SUBPARAGRAPH (III) OF THIS PARAGRAPH
AND THE REASONS THEREFOR;
(VI) A PROJECTION OF ESTIMATED GAS PRICES TO CONSUMERS OVER THE FORE-
CAST PERIOD;
(VII) A DESCRIPTION OF THE LOAD FORECASTING METHODOLOGY AND THE
ASSUMPTIONS AND DATA USED IN THE PREPARATION OF THE FORECASTS, SPECIF-
ICALLY INCLUDING PROJECTIONS OF DEMOGRAPHIC AND ECONOMIC ACTIVITY AND
SUCH OTHER FACTORS, STATEWIDE AND BY SERVICE AREA, WHICH MAY INFLUENCE
DEMAND FOR NATURAL GAS, AND THE BASES FOR SUCH PROJECTIONS;
(VIII) A STATEMENT OF RESEARCH AND DEVELOPMENT PLANS, INCLUDING OBJEC-
TIVES AND PROGRAMS IN THE AREAS OF ENERGY CONSERVATION AND NEW ENERGY
TECHNOLOGIES, RECENT RESULTS OF SUCH PROGRAMS UNDERTAKEN OR FUNDED TO
DATE, AND AN ASSESSMENT OF THE POTENTIAL IMPACTS OF SUCH RESULTS;
(IX) PROPOSED POLICIES, OBJECTIVES AND STRATEGIES FOR MEETING THE
STATE'S FUTURE GAS NEEDS; AND
(X) SUCH ADDITIONAL INFORMATION AS THE BOARD MAY, BY REGULATION,
REQUIRE TO CARRY OUT THE PURPOSES OF THIS ARTICLE.
(C) SUCH INFORMATION FROM PETROLEUM AND COAL MARKET PARTICIPANTS AS
THE BOARD MAY, BY REGULATION, REQUIRE TO CARRY OUT THE PURPOSES OF THIS
ARTICLE.
(D) EACH ELECTRIC UTILITY CORPORATION OWNING BOTH TRANSMISSION AND
DISTRIBUTION FACILITIES AND PROVIDING ELECTRIC CAPACITY AND ENERGY
SERVICES TO CUSTOMERS WHO DO NOT CHOOSE TO RECEIVE ELECTRIC CAPACITY AND
ENERGY SERVICES FROM ANOTHER PROVIDER, IN THE PROCUREMENT OF THOSE
REASONABLY AVAILABLE SUPPLY-SIDE AND DEMAND-SIDE RESOURCES THAT SERVE
THE PUBLIC INTEREST, TAKES INTO ACCOUNT SUCH FACTORS AS SYSTEM RELIABIL-
ITY, BILL IMPACTS, IMPACTS ON EFFICIENT WHOLESALE COMPETITIVE MARKETS,
ENVIRONMENTAL IMPACTS, EFFICIENT USE OF ENERGY RESOURCES, PRESERVATION
OR CREATION OF ECONOMIC OPPORTUNITIES AND GROWTH, FUEL AVAILABILITY AND
DIVERSITY, AND PUBLIC HEALTH AND WELFARE.
(I) EACH SUCH ELECTRIC CORPORATION SHALL PROVIDE A REPORT ANNUALLY TO
THE MEMBERS OF THE BOARD DESCRIBING ITS CURRENT ELECTRIC RESOURCE PORT-
FOLIO UTILIZED IN PROVIDING SERVICES TO ELECTRIC CUSTOMERS WITHIN ITS
SERVICE TERRITORY WHO DO NOT CHOOSE TO RECEIVE ELECTRIC CAPACITY AND
ENERGY SERVICE FROM ANOTHER PROVIDER. FOR THE PURPOSES OF THIS PARA-
GRAPH, "ELECTRIC RESOURCE PORTFOLIO" SHALL MEAN THE COMBINATION OF
SUPPLY-SIDE RESOURCES AND DEMAND-SIDE RESOURCES THAT TOGETHER PROVIDE
RELIABLE ELECTRIC CAPACITY AND ENERGY SERVICES TO ELECTRIC UTILITY
CORPORATION CUSTOMERS.
(II) FOR THE PURPOSES OF THIS PARAGRAPH, "SUPPLY-SIDE RESOURCES" SHALL
INCLUDE CAPACITY AND ENERGY DERIVED, DURING THE PERIOD COVERED BY THE
MOST RECENT ANNUAL ELECTRIC RESOURCE REPORT FILED PURSUANT TO SUBPARA-
GRAPH (I) OF THIS PARAGRAPH, FROM EXISTING POWER PLANTS, INCLUDING
RENEWABLE ENERGY RESOURCES AND DISTRIBUTED GENERATION RESOURCES, WHICH
DELIVER POWER TO THE TRANSMISSION AND/OR DISTRIBUTION SYSTEM.
(III) FOR THE PURPOSES OF THIS PARAGRAPH, "DEMAND-SIDE RESOURCES"
SHALL INCLUDE CAPACITY AND ENERGY DERIVED FROM, AMONG OTHER THINGS,
ENERGY EFFICIENCY, PUBLIC AWARENESS AND OUTREACH PLANS, AND LOAD MANAGE-
MENT EFFORTS THAT CAN BE MONITORED IN ACCORDANCE WITH PROCEDURES ESTAB-
LISHED BY THE NEW YORK INDEPENDENT SYSTEM OPERATOR OR ANY SUCCESSOR
ORGANIZATION.
A. 7250 7
4. ANY INFORMATION FILED BY AN ENERGY MARKET PARTICIPANT UNDER THIS
SECTION THAT IS CLAIMED TO BE CONFIDENTIAL SHALL BE TREATED IN ACCORD-
ANCE WITH REGULATIONS ADOPTED BY THE BOARD PERTAINING TO THE DETERMI-
NATION OF CONFIDENTIAL STATUS AND THE RETENTION OF CONFIDENTIAL RECORDS.
5. COPIES OF THE DRAFT PLAN, AND ALL NON-CONFIDENTIAL INFORMATION AND
COMMENTS FILED PURSUANT TO THIS SECTION, SHALL BE MADE AVAILABLE TO THE
PUBLIC FOR INSPECTION, PROVIDED SUCH INSPECTION IS CONSISTENT WITH ARTI-
CLE SIX OF THE PUBLIC OFFICERS LAW AND ARTICLE TWENTY-SIX OF THE EXECU-
TIVE LAW.
6. THE BOARD MAY AMEND THE STATE ENERGY PLAN, OR ASPECTS THEREOF, UPON
ITS OWN INITIATIVE OR UPON THE WRITTEN APPLICATION OF ANY INTERESTED
PERSON. IN CONNECTION WITH ANY SUCH AMENDMENT, THE BOARD MAY REQUIRE THE
FILING OF SUCH INFORMATION BY ENERGY MARKET PARTICIPANTS AS MAY BE
REQUIRED, CONSISTENT WITH REGULATION. PRIOR TO ADOPTING ANY PROPOSED
AMENDMENT TO AN ELEMENT OF THE PLAN IDENTIFIED IN PARAGRAPH (A) OF
SUBDIVISION TWO OF SECTION 6-104 OF THIS ARTICLE, THE BOARD SHALL HOLD
EVIDENTIARY HEARINGS, UPON THE WRITTEN APPLICATION OF AN INTERESTED
PARTY. IN ADDITION, UPON THE WRITTEN APPLICATION OF AN INTERESTED PARTY,
THE BOARD SHALL CONDUCT EVIDENTIARY HEARINGS ON THE FACTUAL BASIS FOR
ANY OTHER ISSUE IDENTIFIED IN SUBDIVISION TWO OF SECTION 6-104 OF THIS
ARTICLE. PRIOR TO ADOPTING A PROPOSED AMENDMENT TO ANY ELEMENT OF THE
PLAN, THE BOARD SHALL PREPARE AND PUBLISH IN THE STATE REGISTER NOTICE
OF ANY DRAFT AMENDMENT AND REASONS THEREFOR AND SHALL SOLICIT PUBLIC
COMMENTS THEREON. THE BOARD SHALL ADOPT AN AMENDMENT TO THE STATE ENERGY
PLAN, OR ASPECTS THEREOF, UPON A FINDING BY THE BOARD THAT THERE HAS
BEEN A MATERIAL AND SUBSTANTIAL CHANGE IN FACT OR CIRCUMSTANCE SINCE THE
MOST RECENT PLAN WAS ADOPTED. A DECISION OF THE BOARD THAT NO AMENDMENT
IS NECESSARY, TOGETHER WITH THE REASONS SUPPORTING SUCH DETERMINATION,
SHALL BE FINAL.
7. ANY PERSON WHO PARTICIPATED IN THE STATE ENERGY PLANNING PROCEEDING
OR ANY PERSON WHO SOUGHT AN AMENDMENT OF THE STATE ENERGY PLAN PURSUANT
TO SUBDIVISION SIX OF THIS SECTION, MAY OBTAIN, PURSUANT TO ARTICLE
SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES, JUDICIAL REVIEW OF
THE BOARD'S DECISION ADOPTING A PLAN, OR ANY AMENDMENT THERETO, OR OF
THE BOARD'S DECISION NOT TO AMEND SUCH PLAN PURSUANT TO SUBDIVISION SIX
OF THIS SECTION. ANY SUCH SPECIAL PROCEEDING SHALL BE BROUGHT IN THE
APPELLATE DIVISION OF THE SUPREME COURT OF THE STATE OF NEW YORK FOR THE
THIRD JUDICIAL DEPARTMENT. SUCH PROCEEDING SHALL BE INITIATED BY THE
FILING OF A PETITION IN SUCH COURT WITHIN THIRTY DAYS AFTER THE ISSUANCE
OF A DECISION BY THE BOARD. THE PROCEEDING SHALL HAVE A LAWFUL PREFER-
ENCE OVER ANY OTHER MATTER, SHALL BE HEARD ON AN EXPEDITED BASIS AND
SHALL BE COMPLETED IN ALL RESPECTS, INCLUDING ANY SUBSEQUENT APPEAL,
WITHIN ONE HUNDRED EIGHTY DAYS OF THE FILING OF THE PETITION. WHERE MORE
THAN ONE SUCH PETITION IS FILED, THE COURT MAY PROVIDE FOR CONSOLIDATION
OF THE PROCEEDINGS. NOTWITHSTANDING THE PROVISIONS OF ARTICLE SEVEN OR
TEN OF THE PUBLIC SERVICE LAW, THE PROCEDURE SET FORTH IN THIS SUBDIVI-
SION SHALL CONSTITUTE THE EXCLUSIVE MEANS FOR SEEKING JUDICIAL REVIEW OF
ANY ELEMENT OF THE PLAN.
8. PROCEEDINGS CONDUCTED PURSUANT TO THIS SECTION SHALL NOT BE CONSID-
ERED PART OF AN ADJUDICATORY PROCEEDING AS DEFINED IN SUBDIVISION THREE
OF SECTION ONE HUNDRED TWO OF THE STATE ADMINISTRATIVE PROCEDURE ACT, OR
PART OF A RULE MAKING PROCEEDING HELD UNDER SUBDIVISION ONE OF SECTION
TWO HUNDRED TWO OF THE STATE ADMINISTRATIVE PROCEDURE ACT.
S 2. The public service law is amended by adding a new section 66-i to
read as follows:
A. 7250 8
S 66-I. ELECTRIC CAPACITY PROCUREMENT. 1. ANY ELECTRIC UTILITY CORPO-
RATION, PRIOR TO ENTERING ELECTRIC CAPACITY PURCHASE CONTRACTS OR PRIOR
TO MAKING SUBSTANTIAL INVESTMENTS TO SATISFY ELECTRIC CAPACITY NEEDS,
INCLUDING INVESTMENTS IN NEW CONSTRUCTION, REPOWERING OR LIFE EXTENSION
OF ELECTRIC GENERATING FACILITIES, AND DEMAND-REDUCING MEASURES, SHOULD
CONSIDER REASONABLY AVAILABLE SOURCES AND SUPPLIERS OF ELECTRIC CAPACITY
AND DEMAND-REDUCING MEASURES, AND SHOULD SELECT THE SOURCE OR SOURCES
WHICH BEST SERVE THE PUBLIC INTEREST, TAKING INTO CONSIDERATION SUCH
FACTORS AS RATEPAYER IMPACTS, SYSTEM RELIABILITY, ENVIRONMENTAL IMPACTS,
CONSERVATION OF ENERGY RESOURCES, PRESERVATION OR CREATION OF ECONOMIC
OPPORTUNITIES, FUEL EFFICIENCY, FUEL AVAILABILITY AND DIVERSITY, AND
PUBLIC HEALTH AND WELFARE.
2. THE COMMISSION SHALL HAVE AUTHORITY TO REQUIRE EACH ELECTRIC CORPO-
RATION TO CONDUCT COMPETITIVE BIDDING AUCTIONS OR OTHER PROCUREMENT
PROGRAMS FOR THE PURPOSE OF SATISFYING ELECTRIC CAPACITY NEEDS FROM
REASONABLY AVAILABLE SOURCES AND SUPPLIERS OF ELECTRIC CAPACITY.
3. THE COMMISSION SHALL HAVE AUTHORITY TO PRESCRIBE GUIDELINES, RULES
AND REGULATIONS REGARDING THE PARTICIPATION OF UTILITY COMPANIES, THEIR
AFFILIATES, SUBSIDIARIES AND ANY OTHER CORPORATION OR PERSON IN COMPET-
ITIVE BIDDING AUCTIONS, OR REGARDING ANY OTHER METHOD OF ACQUIRING ELEC-
TRIC CAPACITY. ANY RULES, REGULATIONS, GUIDELINES AND DETERMINATIONS
ADOPTED OR ISSUED BY THE COMMISSION PERTAINING TO ACQUISITION OF ELEC-
TRIC CAPACITY SHALL BE CONSISTENT WITH THE POLICY STATED IN SUBDIVISION
ONE OF THIS SECTION, AND SUBSEQUENT TO MAY FIRST, TWO THOUSAND ELEVEN,
SHALL ALSO REQUIRE ACQUISITIONS OF ELECTRIC CAPACITY TO BE REASONABLY
CONSISTENT WITH THE FORECASTS, POLICIES AND LONG-RANGE PLANNING OBJEC-
TIVES AND STRATEGIES CONTAINED IN THE MOST RECENT FINAL STATE ENERGY
PLAN ADOPTED PURSUANT TO ARTICLE SIX OF THE ENERGY LAW, PROVIDED, HOWEV-
ER, THAT ANY DETERMINATION MADE BY THE COMMISSION UNDER THIS SECTION
THAT IS NOT REASONABLY CONSISTENT WITH THE PLAN SHALL BE DEEMED IN
COMPLIANCE WITH THIS SECTION, PROVIDED THAT SUCH DETERMINATION BY THE
COMMISSION INCLUDES A FINDING THAT THE ELEMENT OF THE PLAN IS NO LONGER
REASONABLE OR PROBABLE BASED ON A MATERIAL AND SUBSTANTIAL CHANGE IN
FACT OR CIRCUMSTANCE, AND A STATEMENT EXPLAINING THE BASIS FOR THIS
FINDING.
4. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE THE COMMIS-
SION TO ORDER THE USE OF A COMPETITIVE BIDDING AUCTION, OR TO PRECLUDE
THE COMMISSION FROM ALLOWING OR REQUIRING A CAPACITY ADDITION SET-ASIDE,
INCENTIVE RATES OR OTHER FORMS OF RATE TREATMENT, OR A SEPARATE AUCTION
OR PROGRAM, TO ENCOURAGE INVESTMENTS IN DEMAND-REDUCING MEASURES, RENEW-
ABLE ENERGY SOURCES, OR OTHER ENERGY SOURCES REASONABLY CONSISTENT WITH
THE STATE ENERGY PLAN.
S 3. The public service law is amended by adding a new article 10 to
read as follows:
ARTICLE 10
SITING OF ELECTRIC
GENERATING FACILITIES
SECTION 160. DEFINITIONS.
161. GENERAL PROVISIONS RELATING TO THE BOARD.
162. BOARD CERTIFICATE.
163. PRE-APPLICATION PROCEDURES.
163-A. REPOWERING PROJECTS AND NON-MAJOR ELECTRIC GENERATING
FACILITIES.
164. APPLICATION FOR A CERTIFICATE.
165. HEARING SCHEDULE.
A. 7250 9
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:
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 EIGHTY 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. "NON-MAJOR ELECTRIC GENERATING FACILITY" MEANS AN ELECTRIC GENERAT-
ING FACILITY THAT IS OPERATED AT A TOTAL NET GENERATING OUTPUT TO THE
ELECTRIC SYSTEM OF FIFTY THOUSAND KILOWATTS OR MORE, BUT LESS THAN
EIGHTY THOUSAND KILOWATTS, INCLUDING INTERCONNECTION ELECTRIC TRANS-
MISSION LINES AND FUEL GAS TRANSMISSION LINES THAT ARE NOT SUBJECT TO
REVIEW UNDER ARTICLE SEVEN OF THIS CHAPTER.
4. "PERSON" MEANS ANY INDIVIDUAL, CORPORATION, LIMITED LIABILITY
COMPANY, PUBLIC BENEFIT CORPORATION, POLITICAL SUBDIVISION, GOVERNMENTAL
AGENCY, MUNICIPALITY, PARTNERSHIP, CO-OPERATIVE ASSOCIATION, TRUST OR
ESTATE.
5. "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 CHAIRPERSON OF THE COMMISSION, 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. IN SELECTING THE AD HOC MEMBERS, THE GOVERNOR
MAY CONSIDER RECOMMENDATIONS FROM COMMUNITY-BASED ORGANIZATIONS AND
RESIDENTS FROM THE COUNTY, MUNICIPALITY AND/OR COMMUNITY IN WHICH THE
FACILITY IS PROPOSED 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, INCLUDING ANY REHEARING AND
ANY JUDICIAL REVIEW OF SUCH DECISION.
6. "REPOWERING PROJECT" MEANS A MAJOR OR NON-MAJOR ELECTRIC GENERATING
FACILITY THAT PROPOSES TO MODIFY OR ENTIRELY OR PARTIALLY REPLACE AN
EXISTING ELECTRIC GENERATING FACILITY, IN A MANNER BEYOND THE SCOPE OF
THE PROVISIONS OF PARAGRAPH (C) OF SUBDIVISION FOUR OF SECTION ONE
HUNDRED SIXTY-TWO OF THIS ARTICLE, IN SUBSTANTIALLY THE SAME LOCATION AS
THE EXISTING FACILITY OR TO SITE A NEW MAJOR OR NON-MAJOR ELECTRIC
GENERATING FACILITY ADJACENT OR CONTIGUOUS TO SUCH EXISTING FACILITY,
WHERE SUCH PROPOSED MODIFIED FACILITY OR EXISTING AND NEW FACILITY IN
COMBINATION:
(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-
A. 7250 10
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 OR IDENTIFIED 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 EMISSION RATE, CONSISTENT WITH REQUIRE-
MENTS OF APPLICABLE FEDERAL OR STATE LAW;
(C) WHEN A COOLING WATER INTAKE STRUCTURE IS PLANNED, INSTALLS AIR
COOLED CONDENSERS OR INSTALLS EVAPORATIVE COOLING WATER 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 MEGAWATT OF TOTAL PLANT GENERATING CAPACITY FOR COMBINED
CYCLE COMBUSTION TURBINE TECHNOLOGY PLANTS, FROM A SOURCE WATER BODY FOR
COOLING PURPOSES; AND
(D) REPLACES EXISTING GENERATING CAPACITY WITH GENERATING CAPACITY
THAT HAS A LOWER HEAT RATE.
7. "CERTIFICATE" MEANS A CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY
AND PUBLIC NEED AUTHORIZING THE CONSTRUCTION OF AN ELECTRIC GENERATING
FACILITY ISSUED BY THE BOARD PURSUANT TO THIS ARTICLE.
8. "APPROVED PROCUREMENT PROCESS" MEANS ANY ELECTRIC CAPACITY PROCURE-
MENT PROCESS APPROVED BY THE COMMISSION AS REASONABLY CONSISTENT WITH
THE MOST RECENT STATE ENERGY PLAN ADOPTED PURSUANT TO ARTICLE SIX OF THE
ENERGY LAW.
S 161. GENERAL PROVISIONS RELATING TO THE BOARD. 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 ARTI-
CLE, INCLUDING THE SUSPENSION OR REVOCATION THEREOF. 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 APPLICABILITY OF, OR ANY OTHER QUESTION UNDER,
THIS ARTICLE AND RULES AND REGULATIONS ADOPTED HEREUNDER AND TO GRANT
REQUESTS FOR EXTENSIONS OR AMENDMENTS TO CERTIFICATE TERMS AND CONDI-
TIONS, PROVIDED THAT NO PARTY TO THE PROCEEDING OPPOSES SUCH REQUEST FOR
EXTENSIONS OR AMENDMENTS WITHIN THIRTY DAYS OF THE FILING OF SUCH
REQUEST. REGULATIONS ADOPTED BY THE BOARD MAY PROVIDE FOR RENEWAL APPLI-
CATIONS FOR POLLUTANT CONTROL PERMITS TO BE SUBMITTED TO AND ACTED UPON
BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION 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 IN THE STATE 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
A. 7250 11
BEFORE THE BOARD, NOR SHALL EITHER OF THE APPOINTEES HAVE BEEN A DIREC-
TOR, OFFICER OR, WITHIN THE PREVIOUS TEN YEARS, AN EMPLOYEE THEREOF.
THE AD HOC 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 AND EMPLOYEES AND SUCH LEGAL, TECHNOLOGICAL, SCIENTIFIC, ENGI-
NEERING 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 APPOINTEES OF
THE GOVERNOR MAY DESIGNATE AN ALTERNATE TO SERVE INSTEAD OF THE MEMBER
WITH RESPECT TO ALL PROCEEDINGS PURSUANT TO THIS ARTICLE. SUCH DESIG-
NATION 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 OR NON-MAJOR ELEC-
TRIC GENERATING FACILITY OR REPOWERING PROJECT 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 CONDI-
TIONS CONTAINED THEREIN; PROVIDED THAT NOTHING IN THIS ARTICLE SHALL
EXEMPT SUCH FACILITY FROM COMPLIANCE WITH STATE LAW AND REGULATIONS
THEREUNDER, SUBSEQUENTLY ADOPTED OR WITH MUNICIPAL LAWS AND REGULATIONS
THEREUNDER, NOT INCONSISTENT WITH THE PROVISIONS OF SUCH CERTIFICATE. A
CERTIFICATE FOR A MAJOR OR NON-MAJOR ELECTRIC GENERATING FACILITY OR
REPOWERING PROJECT 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 AN ELECTRIC GENERATING FACILITY IF, ON OR BEFORE THE ONE
HUNDRED EIGHTIETH DAY AFTER 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 AN ELECTRIC GENER-
ATING FACILITY HAS BEEN DESIGNATED BY THE APPLICANT; OR IF THE FACILITY
IS UNDER CONSTRUCTION AT SUCH TIME;
(B) TO AN 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;
(C) TO REPAIRS, REPLACEMENTS, MODIFICATIONS AND IMPROVEMENTS OF AN
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;
(D) TO AN ELECTRIC GENERATING FACILITY (I) CONSTRUCTED ON LANDS DEDI-
CATED TO INDUSTRIAL USES, (II) THE OUTPUT OF WHICH SHALL BE USED SOLELY
A. 7250 12
FOR INDUSTRIAL PURPOSES, ON THE PREMISES, AND (III) THE GENERATING
CAPACITY OF WHICH DOES NOT EXCEED TWO HUNDRED THOUSAND KILOWATTS; OR
(E) TO AN ELECTRIC GENERATING FACILITY WHICH GENERATES ELECTRICITY
FROM THE COMBUSTION OF SOLID WASTE OR FROM FUEL DERIVED FROM SOLID
WASTE.
5. ANY PERSON INTENDING TO CONSTRUCT AN ELECTRIC GENERATING FACILITY
EXCLUDED FROM THIS ARTICLE PURSUANT TO PARAGRAPH (A), (C), (D) OR (E) 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 OR NON-MAJOR ELECTRIC GENERATING FACILITY OR REPOWERING PROJECT AS
APPROPRIATE AND 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 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) POTENTIAL ENVIRONMENTAL IMPACTS FROM THE CONSTRUCTION AND/OR OPER-
ATION OF THE PROPOSED FACILITY;
(C) A PRELIMINARY DESCRIPTION OF PREDICTABLE, SIGNIFICANT AND ADVERSE
DISPROPORTIONATE ENVIRONMENTAL IMPACTS, IF ANY, FROM THE CONSTRUCTION
AND/OR OPERATION OF THE PROPOSED FACILITY IN ACCORDANCE WITH REGULATIONS
PROMULGATED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION FOR THE
ANALYSIS OF ENVIRONMENTAL JUSTICE ISSUES;
(D) ANY PROPOSED STUDY OR PROGRAM OF STUDIES DESIGNED TO EVALUATE
POTENTIAL ENVIRONMENTAL IMPACTS, INCLUDING THE PREDICTABLE HEALTH
IMPACTS THEREOF;
(E) ANY MEASURES PROPOSED TO MITIGATE ENVIRONMENTAL IMPACTS, INCLUDING
THE PREDICTABLE HEALTH IMPACTS THEREOF;
(F) REASONABLE ALTERNATIVES TO THE PROPOSED FACILITY AS MAY BE
REQUIRED BY PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION ONE HUNDRED
SIXTY-FOUR OF THIS ARTICLE;
(G) 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; AND
(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, PROVIDED, HOWEVER, IN THE CASE OF A NON-MAJOR
ELECTRIC GENERATING FACILITY OR A REPOWERING PROJECT WHICH INCREASES THE
TOTAL NET GENERATING OUTPUT TO THE ELECTRIC SYSTEM BY LESS THAN EIGHTY
THOUSAND KILOWATTS, EACH SUCH STATEMENT SHALL BE ACCOMPANIED BY A FEE OF
TWENTY THOUSAND DOLLARS, TO BE DEPOSITED IN THE INTERVENOR ACCOUNT,
ESTABLISHED PURSUANT TO SECTION NINETY-SEVEN-TT OF THE STATE FINANCE
A. 7250 13
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 PRELIMINARY 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, SUCH FUNDS
SHALL BE RETURNED TO THE APPLICANT WITHIN FORTY-FIVE DAYS AFTER SUCH
WITHDRAWAL. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY,
THE BOARD MAY PROVIDE BY RULES AND REGULATIONS FOR DISBURSEMENTS FROM
THE ACCOUNT 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. SUCH NOTICE SHALL
INCLUDE THE AVAILABILITY OF FUNDS FOR ELIGIBLE PERSONS TO PARTICIPATE IN
THE PRE-APPLICATION PROCESS.
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, AND SHALL CONSULT WITH THE PUBLIC EARLY IN THE APPLICATION
PROCESS, ESPECIALLY BEFORE ANY PERSONS ENTER A STIPULATION PURSUANT TO
SUBDIVISION FIVE OF THIS SECTION. THE PRIMARY GOAL 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 INTERESTED 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, THE
DEPARTMENT OF HEALTH, AND THE OFFICE OF PARKS, RECREATION AND HISTORIC
PRESERVATION, AS APPROPRIATE, AS TO ANY ASPECT OF THE PRELIMINARY SCOP-
ING 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 OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, 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 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 PERSONS. NOTHING IN
THIS SUBDIVISION, HOWEVER, SHALL BAR ANY PARTY TO A HEARING ON AN APPLI-
CATION, 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 AGREEMENT. IN ORDER TO ATTEMPT TO RESOLVE
ANY QUESTIONS THAT MAY ARISE AS A RESULT OF SUCH CONSULTATION, THE
DEPARTMENT MAY DESIGNATE A HEARING EXAMINER WHO SHALL OVERSEE THE
A. 7250 14
PRE-APPLICATION PROCESS, INCLUDING THE DISBURSEMENT OF THE FUNDS
PROVIDED FOR IN SUBDIVISION TWO OF THIS SECTION, 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.
S 163-A. REPOWERING PROJECTS AND NON-MAJOR ELECTRIC GENERATING FACILI-
TIES. 1. ANY PERSON PROPOSING TO SITE A NON-MAJOR ELECTRIC GENERATING
FACILITY OR A REPOWERING PROJECT SHALL BE REQUIRED TO FOLLOW THE PROCE-
DURES SET FORTH IN THIS SECTION. ANY PERSON PROPOSING TO UNDERTAKE A
REPOWERING PROJECT OR TO SITE A NON-MAJOR ELECTRIC GENERATING FACILITY
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 FOLLOW-
ING INFORMATION AND MATERIALS:
(A) A DESCRIPTION OF THE SITE, INCLUDING ITS ENVIRONMENTAL SETTING,
AND A DESCRIPTION OF THE REPOWERING PROJECT OR PROPOSED NON-MAJOR ELEC-
TRIC GENERATING FACILITY, INCLUDING, BUT NOT LIMITED TO, AVAILABLE SITE
INFORMATION, MAPS, AND DESCRIPTIONS;
(B) ANALYSES THAT HAVE BEEN MADE (I) FOR REPOWERING PROJECTS, OF THE
EXPECTED ENVIRONMENTAL IMPACTS OF THE EXISTING ELECTRIC GENERATING
FACILITY; (II) OF CONCEPTUAL ARCHITECTURAL AND ENGINEERING PLANS INDI-
CATING COMPATIBILITY OF THE REPOWERING PROJECT OR PROPOSED NON-MAJOR
ELECTRIC GENERATING FACILITY WITH THE ENVIRONMENT; AND (III) OF THE
EXPECTED ENVIRONMENTAL IMPACTS OF THE REPOWERING PROJECT OR PROPOSED
NON-MAJOR ELECTRIC GENERATING FACILITY, INCLUDING, BUT NOT LIMITED TO,
THE GENERATION OF SOLID WASTES, AIR EMISSIONS, DISCHARGES INTO NAVIGABLE
WATERS AND GROUNDWATER, IMPACTS UPON WETLANDS, AND VISUAL IMPACTS, THE
PROBABLE LEVEL OF NOISE DURING CONSTRUCTION AND OPERATION OF THE REPOW-
ERING PROJECT OR PROPOSED NON-MAJOR ELECTRIC GENERATING FACILITY, AND
ANY MEASURES FOR CONTROL, ABATEMENT, OR MITIGATION OF SUCH IMPACTS, AND
THE COMPATIBILITY OF THE REPOWERING PROJECT OR PROPOSED NON-MAJOR ELEC-
TRIC GENERATING FACILITY WITH EXISTING FEDERAL, STATE AND MUNICIPAL
ENVIRONMENTAL, HEALTH AND SAFETY STANDARDS;
(C) ANALYSES THAT HAVE BEEN MADE OF THE CONSISTENCY WITH ANY APPLICA-
BLE REGULATIONS OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION REGARD-
ING ENVIRONMENTAL JUSTICE ISSUES, IF THE PROPOSED NON-MAJOR ELECTRIC
GENERATING FACILITY MAY HAVE PREDICTABLE SIGNIFICANT AND ADVERSE
DISPROPORTIONATE ENVIRONMENTAL IMPACTS FROM THE CONSTRUCTION AND/OR
OPERATION OF THE PROPOSED FACILITY IN ACCORDANCE WITH REGULATIONS
PROMULGATED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION;
(D) SUCH EVIDENCE AS MAY ENABLE THE COMMISSIONER OF ENVIRONMENTAL
CONSERVATION TO EVALUATE THE PROPOSED POLLUTION CONTROL SYSTEMS OF THE
REPOWERING PROJECT OR PROPOSED NON-MAJOR ELECTRIC GENERATING FACILITY
AND TO REACH A DETERMINATION AS TO WHETHER OR NOT TO ISSUE, 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) A STATEMENT AS TO HOW THE CONSTRUCTION AND OPERATION OF THE REPOW-
ERING PROJECT OR PROPOSED NON-MAJOR ELECTRIC GENERATING FACILITY,
INCLUDING TRANSPORTATION AND DISPOSAL OF WASTES, WILL COMPLY WITH ENVI-
RONMENTAL, HEALTH AND SAFETY REGULATIONS AND RULES UNDER STATE AND
MUNICIPAL LAWS, AND A STATEMENT AS TO WHY ANY VARIANCES OR EXCEPTIONS
MAY BE GRANTED;
(F) A DESCRIPTION OF THE FUEL INTERCONNECTION AND SUPPLY FOR THE
REPOWERING PROJECT OR PROPOSED NON-MAJOR ELECTRIC GENERATING FACILITY
AND AN ELECTRIC INTERCONNECTION STUDY, CONSISTING GENERALLY OF A DESIGN
STUDY AND A SYSTEM RELIABILITY IMPACT STUDY;
A. 7250 15
(G) A PLAN FOR SECURITY OF THE REPOWERING PROJECT OR PROPOSED NON-MA-
JOR ELECTRIC GENERATING FACILITY DURING ITS CONSTRUCTION AND OPERATION,
TO BE REVIEWED BY THE BOARD IN CONSULTATION WITH THE OFFICE OF HOMELAND
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 SUCH INSPECTION IS CONSISTENT WITH
ARTICLE SIX OF THE PUBLIC OFFICERS LAW AND ARTICLE TWENTY-SIX OF THE
EXECUTIVE LAW.
2. 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; AND
(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 PERSONS AND ADVISING SUCH PERSONS ABOUT THE REPOWERING PROJECT
OR PROPOSED NON-MAJOR ELECTRIC GENERATING FACILITY.
3. THE APPLICATION SHALL BE ACCOMPANIED BY A FEE TO BE DETERMINED
PURSUANT TO THE PROVISIONS OF THIS SUBDIVISION. FOR THE PURPOSES OF THIS
SUBDIVISION, "INCREASED NET GENERATING OUTPUT" SHALL BE DETERMINED USING
THE FOLLOWING FORMULA: THE NET GENERATING OUTPUT OF THE PROPOSED FACILI-
TY IN THOUSANDS OF KILOWATTS MINUS THE NET GENERATING OUTPUT OF THE
EXISTING FACILITY IN THOUSANDS OF KILOWATTS.
(A) FOR A REPOWERING PROJECT THAT RESULTS IN AN INCREASED NET GENERAT-
ING OUTPUT OF MORE THAN FIFTY THOUSAND KILOWATTS BUT LESS THAN EIGHTY
THOUSAND KILOWATTS, A FEE IN AN AMOUNT EQUAL TO FIVE HUNDRED DOLLARS FOR
EACH THOUSAND KILOWATTS OF INCREASED NET GENERATING OUTPUT, BUT A FEE NO
MORE THAN FORTY THOUSAND DOLLARS WITH SUCH AMOUNT TO INCLUDE THE PRE-
APPLICATION FEE PROVIDED FOR IN SUBDIVISION TWO OF SECTION ONE HUNDRED
SIXTY-THREE OF THIS ARTICLE.
(B) FOR A REPOWERING PROJECT THAT RESULTS IN AN INCREASED NET GENERAT-
ING OUTPUT OF EIGHTY THOUSAND KILOWATTS OR MORE, A FEE IN AN AMOUNT
EQUAL TO ONE THOUSAND DOLLARS FOR EACH THOUSAND KILOWATTS OF INCREASED
NET GENERATING OUTPUT, BUT A FEE NO MORE THAN THREE HUNDRED THOUSAND
DOLLARS WITH SUCH AMOUNT TO INCLUDE THE PRE-APPLICATION FEE PROVIDED FOR
IN SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-THREE OF THIS ARTICLE.
(C) FOR A NON-MAJOR ELECTRIC GENERATING FACILITY, A FEE IN AN AMOUNT
EQUAL TO FIVE HUNDRED DOLLARS FOR EACH THOUSAND KILOWATTS OF GENERATING
CAPACITY OF THE SUBJECT FACILITY, BUT A FEE NO MORE THAN FORTY THOUSAND
DOLLARS WITH SUCH AMOUNT TO INCLUDE THE PRE-APPLICATION FEE PROVIDED FOR
IN SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-THREE OF THIS ARTICLE.
4. 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 SUBDIVISION SIX OF
SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE. ANY MONEYS REMAINING IN
THE INTERVENOR ACCOUNT SHALL BE RETURNED TO THE APPLICANT WITHIN FORTY-
FIVE DAYS AFTER THE BOARD HAS ISSUED ITS DECISION ON AN APPLICATION
UNDER THIS ARTICLE AND THE TIME FOR APPLYING FOR A REHEARING AND JUDI-
CIAL REVIEW HAS EXPIRED.
5. 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.
A. 7250 16
6. WITHIN SIXTY DAYS OF RECEIPT OF AN APPLICATION FILED PURSUANT TO
SUBDIVISION ONE OF THIS SECTION, THE CHAIRPERSON OF THE BOARD SHALL
DETERMINE WHETHER OR NOT THE APPLICATION COMPLIES WITH SUBDIVISION TWO
OF THIS SECTION AND ANY REGULATIONS PROMULGATED PURSUANT THERETO. THE
CHAIRPERSON OF THE BOARD MAY REQUIRE THE FILING OF ANY ADDITIONAL INFOR-
MATION NEEDED TO SUPPLEMENT AN APPLICATION. IN THE EVENT THAT THE CHAIR-
PERSON OF THE BOARD DETERMINES THAT THE APPLICATION IS FOR A FACILITY
NOT ELIGIBLE TO BE SUBJECT TO THE REQUIREMENTS OF THIS SECTION, THE
APPLICATION SHALL NO LONGER BE SUBJECT TO, OR ELIGIBLE FOR, THE PROCE-
DURES SET FORTH IN THIS SECTION AND SHALL BE SUBJECT TO THE PROCEDURES
SET FORTH IN SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE. THE APPLI-
CATION FILED HEREUNDER MAY BE USED TO PREPARE AN APPLICATION UNDER
SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE. NOTICE OF COMPLIANCE
SHALL BE GIVEN TO PARTIES TO THE CERTIFICATION 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.
7. PARTIES AND INTERESTED PERSONS SHALL HAVE FORTY-FIVE DAYS FROM THE
DATE THE APPLICATION IS DEEMED COMPLIANT TO FILE WRITTEN COMMENTS WITH
REGARD TO SUCH APPLICATION. A PUBLIC STATEMENT HEARING SHALL BE HELD
WITHIN THE COMMENT PERIOD AT WHICH THE PRESIDING EXAMINER AND ASSOCIATE
EXAMINER SHALL JOINTLY PRESIDE. WITHIN SIXTY DAYS OF THE APPLICATION
BEING DEEMED COMPLIANT, THE PRESIDING EXAMINER, AFTER CONSULTATION WITH
THE ASSOCIATE EXAMINER, SHALL DETERMINE WHETHER THERE IS A RELEVANT AND
MATERIAL ISSUE OF FACT AND SHALL DETERMINE WHETHER OR NOT TO SCHEDULE AN
EVIDENTIARY HEARING ON SUCH ISSUE OF FACT. SUCH EVIDENTIARY HEARING, IF
APPLICABLE, SHALL BE CONDUCTED PURSUANT TO THE RELEVANT PROVISIONS OF
SECTIONS ONE HUNDRED SIXTY-FIVE AND ONE HUNDRED SIXTY-SEVEN OF THIS
ARTICLE, WHICH ARE NOT INCONSISTENT WITH THE PROVISIONS OF THIS SECTION.
8. WITHIN THIRTY DAYS OF THE CLOSE OF THE PUBLIC STATEMENT HEARING AND
ANY EVIDENTIARY HEARING, IF APPLICABLE, AND THE FILING OF ANY BRIEFS, IF
APPLICABLE, THE BOARD SHALL RENDER A FINAL DETERMINATION ON AN APPLICA-
TION UNDER THIS SECTION FOR A CERTIFICATE UPON THE RECORD MADE BEFORE
THE PRESIDING AND ASSOCIATE EXAMINERS AND PURSUANT TO THE REQUIREMENTS
OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTICLE.
THE BOARD MAY EXTEND THE DEADLINE IN EXTRAORDINARY CIRCUMSTANCES BY NO
MORE THAN THREE MONTHS IN ORDER TO GIVE CONSIDERATION TO SPECIFIC ISSUES
NECESSARY TO DEVELOP AN ADEQUATE RECORD. FOR REPOWERING PROJECTS INVOLV-
ING FACILITIES OVER TWO HUNDRED THOUSAND KILOWATTS WHICH HAVE NOT BEEN
SELECTED PURSUANT TO AN APPROVED PROCUREMENT PROCESS, THE BOARD MAY
EXTEND THE DEADLINE 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 DEADLINE, UNLESS SUCH DEADLINE IS WAIVED BY THE
APPLICANT. IF AT ANY TIME SUBSEQUENT TO THE COMMENCEMENT OF THE PUBLIC
STATEMENT HEARING OR EVIDENTIARY HEARING, IF APPLICABLE, THERE IS A
MATERIAL AND SUBSTANTIAL AMENDMENT TO THE APPLICATION, THE DEADLINE MAY
BE EXTENDED BY NO MORE THAN THREE MONTHS, UNLESS SUCH DEADLINE IS WAIVED
BY THE APPLICANT, TO CONSIDER SUCH AMENDMENT.
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 BOARD
PRIOR TO THE DETERMINATION OF WHETHER OR NOT TO ISSUE A CERTIFICATE.
S 164. APPLICATION FOR A CERTIFICATE. 1. AN APPLICANT FOR A CERTIF-
ICATE TO CONSTRUCT A MAJOR ELECTRIC GENERATING FACILITY SHALL FILE WITH
A. 7250 17
THE CHAIRPERSON 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, 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 ENERGY SUPPLY SOURCE ALTERNA-
TIVES AND, WHERE APPROPRIATE, DEMAND-REDUCING MEASURES TO THE PROPOSED
FACILITY; A DESCRIPTION OF THE COMPARATIVE ADVANTAGES AND DISADVANTAGES
OF EACH SUCH LOCATION, ENERGY SUPPLY SOURCES AND DEMAND-REDUCING MEAS-
URES, 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 ENVIRON-
MENTAL CONSERVATION LAW;
(C) STUDIES, IDENTIFYING THE AUTHOR AND DATE THEREOF, WHICH EVALUATE
PREDICTABLE, SIGNIFICANT AND ADVERSE DISPROPORTIONATE ENVIRONMENTAL
IMPACTS OF THE PROPOSED FACILITY, IF ANY, RESULTING FROM ITS
CONSTRUCTION AND OPERATION, IN ACCORDANCE WITH REGULATIONS PROMULGATED
BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION FOR THE ANALYSIS OF
ENVIRONMENTAL JUSTICE ISSUES;
(D) STUDIES, IDENTIFYING THE AUTHOR AND DATE THEREOF, WHICH HAVE BEEN
MADE OF THE EXPECTED ENVIRONMENTAL IMPACTS, INCLUDING THE PREDICTABLE
HEALTH IMPACTS THEREOF, AND OF THE SAFETY 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 OPERA-
TION 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 CONDI-
TION 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, PUBLIC HEALTH, SAFETY AND INFRASTRUCTURE
SECURITY REGULATIONS AND RULES UNDER STATE AND MUNICIPAL LAWS, AND A
STATEMENT WHY ANY VARIANCES OR EXCEPTIONS SHOULD BE GRANTED; (VI) WATER
WITHDRAWALS AND DISCHARGES; (VII) A DESCRIPTION OF THE FUEL INTERCON-
NECTION AND SUPPLY FOR THE PROJECT; AND (VIII) AN ELECTRIC INTERCON-
NECTION STUDY, CONSISTING GENERALLY OF A DESIGN STUDY AND A SYSTEM RELI-
ABILITY IMPACT STUDY;
(E) 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
A. 7250 18
PER KILOWATT-HOUR, INCLUDING BOTH PLANT AND RELATED TRANSMISSION, AND
COMPARATIVE COSTS OF ALTERNATIVES CONSIDERED;
(F) 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 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 FACILITY WAS SELECTED
PURSUANT TO AN APPROVED PROCUREMENT PROCESS;
(G) SUCH EVIDENCE AS WILL ENABLE THE COMMISSIONER OF ENVIRONMENTAL
CONSERVATION TO EVALUATE THE FACILITY'S POLLUTION CONTROL SYSTEMS AND TO
REACH A DETERMINATION TO ISSUE THEREFOR, SUBJECT TO APPROPRIATE CONDI-
TIONS 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;
(H) ANY OTHER INFORMATION THAT THE APPLICANT DEEMS RELEVANT OR THAT
THE BOARD MAY REQUIRE;
(I) 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 HOMELAND SECURITY; AND
(J) COPIES OF THE APPLICATION, INCLUDING THE REQUIRED INFORMATION,
SHALL BE FILED WITH THE BOARD AND SHALL BE AVAILABLE FOR PUBLIC
INSPECTION, PROVIDED, HOWEVER, THAT SUCH INSPECTION IS CONSISTENT WITH
ARTICLE SIX OF THE PUBLIC OFFICERS LAW AND ARTICLE TWENTY-SIX OF THE
EXECUTIVE LAW.
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 AND, ADDI-
TIONALLY, ANY COMMUNITY-BASED BOARD OR ORGANIZATION THAT HAS FILED A
STATEMENT WITH THE BOARD WITHIN THE PAST TWELVE MONTHS THAT IT WISHES TO
RECEIVE INFORMATION ON FACILITIES IN AREAS IN WHICH ANY PORTION OF SUCH
FACILITY IS TO BE LOCATED AS PROPOSED OR IN ANY ALTERNATIVE 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;
(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
(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
A. 7250 19
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 BY ITS PROPONENT
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. 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, TO DEFRAY EXPENSES
INCURRED BY MUNICIPAL AND OTHER LOCAL PARTIES TO THE PROCEEDING (EXCEPT
A MUNICIPALITY WHICH IS THE APPLICANT) FOR EXPERT WITNESS 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
REMAINING IN THE INTERVENOR ACCOUNT SHALL BE RETURNED TO THE APPLICANT
WITHIN FORTY-FIVE DAYS AFTER THE BOARD HAS ISSUED ITS DECISION ON AN
APPLICATION UNDER THIS ARTICLE AND THE TIME FOR APPLYING FOR A REHEARING
AND JUDICIAL REVIEW HAS EXPIRED.
(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,
A. 7250 20
THAT THE BOARD SHALL ENSURE 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-
PERSON OF THE BOARD SHALL, WITHIN SIXTY DAYS OF SUCH RECEIPT, DETERMINE
WHETHER THE APPLICATION COMPLIES WITH SUCH SECTION AND UPON A FINDING
THAT THE APPLICATION SO COMPLIES, FIX A DATE FOR THE COMMENCEMENT OF A
PUBLIC HEARING. THE CHAIRPERSON OF THE BOARD MAY REQUIRE THE FILING OF
ANY ADDITIONAL INFORMATION NEEDED TO SUPPLEMENT AN APPLICATION BEFORE OR
DURING THE HEARINGS. 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.
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 PREHEARING 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.
HEARINGS SHALL BE OF SUFFICIENT DURATION TO PROVIDE ADEQUATE OPPORTUNITY
TO HEAR DIRECT EVIDENCE AND REBUTTAL EVIDENCE FROM RESIDENTS OF THE AREA
AFFECTED BY THE PROPOSED ELECTRIC GENERATING FACILITY.
4. 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 CHAIRPERSON THAT
AN APPLICATION COMPLIES WITH SECTION ONE HUNDRED SIXTY-FOUR OF THIS
ARTICLE; PROVIDED, HOWEVER, THAT FOR FACILITIES OVER TWO HUNDRED THOU-
SAND KILOWATTS WHICH HAVE NOT BEEN SELECTED PURSUANT TO AN APPROVED
PROCUREMENT PROCESS, THE BOARD MAY EXTEND THE DEADLINE IN EXTRAORDINARY
CIRCUMSTANCES 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
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.
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
A. 7250 21
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 WITHIN 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
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 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
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;
A. 7250 22
(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 OR PREDICTABLE PUBLIC HEALTH
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 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 HE OR SHE SHALL ASSIST THE
PRESIDING EXAMINER IN INQUIRING INTO AND CALLING FOR TESTIMONY CONCERN-
ING RELEVANT AND MATERIAL MATTERS. THE CONCLUSIONS AND RECOMMENDATIONS
OF THE ASSOCIATE EXAMINER SHALL BE INCORPORATED IN THE RECOMMENDED DECI-
SION OF THE PRESIDING EXAMINER, UNLESS THE ASSOCIATE EXAMINER PREFERS TO
SUBMIT A SEPARATE REPORT OF DISSENTING OR CONCURRING CONCLUSIONS AND
RECOMMENDATIONS. 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 RECOMMENDA-
TIONS SHALL, IN SO FAR 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 THE 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
A. 7250 23
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 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 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 AN 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 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; PROVIDED, HOWEVER, THAT NOTICE OF THE INTENT
TO SUBMIT SUCH TESTIMONY SHALL BE GIVEN WITHIN SUCH PERIOD AS THE
PRESIDING EXAMINER SHALL PRESCRIBE, WHICH PERIOD SHALL BE NOT LESS THAN
THIRTY NOR MORE THAN SIXTY DAYS AFTER THE COMMENCEMENT OF THE HEARING.
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 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
A. 7250 24
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 DEPARTMENT OF ENVIRONMENTAL CONSERVATION SHALL BE RESPONSIBLE FOR
ENFORCING CONTINUED COMPLIANCE BY A CERTIFICATED FACILITY WITH ALL ENVI-
RONMENTAL LAWS, REGULATIONS AND STANDARDS. THE BOARD MAY NOT GRANT A
CERTIFICATE FOR THE CONSTRUCTION OR OPERATION OF A MAJOR OR NON-MAJOR
ELECTRIC GENERATING FACILITY OR A REPOWERING PROJECT, 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
ENERGY PLAN PURSUANT TO 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 PROC-
ESS;
(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, FISH AND OTHER MARINE
LIFE, AND WILDLIFE, AIR AND WATER QUALITY, INCLUDING THE CUMULATIVE
EFFECT OF AIR EMISSIONS FROM EXISTING MAJOR AND NON-MAJOR ELECTRIC
GENERATING FACILITIES AND FACILITIES CERTIFICATED BY THE BOARD SIXTY
DAYS OR MORE PRIOR TO THE DATE OF THE FILING OF THE APPLICATION, AND THE
POTENTIAL FOR SIGNIFICANT DETERIORATION IN LOCAL AIR QUALITY, WITH
PARTICULAR ATTENTION TO FACILITIES LOCATED IN AREAS DESIGNATED AS SEVERE
NONATTAINMENT, AND PREDICTABLE, SIGNIFICANT AND ADVERSE DISPROPORTIONATE
ENVIRONMENTAL IMPACTS, IF ANY, FROM THE CONSTRUCTION AND/OR OPERATION OF
A. 7250 25
THE PROPOSED FACILITY IN ACCORDANCE WITH REGULATIONS PROMULGATED BY THE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION FOR THE ANALYSIS OF ENVIRON-
MENTAL JUSTICE ISSUES;
(C) THAT THE FACILITY (I) MINIMIZES ADVERSE ENVIRONMENTAL IMPACTS,
CONSIDERING THE STATE OF AVAILABLE TECHNOLOGY, MITIGATION OF ANY
PREDICTABLE, SIGNIFICANT AND ADVERSE DISPROPORTIONATE ENVIRONMENTAL
IMPACTS, IF ANY, FROM THE CONSTRUCTION AND/OR OPERATION OF THE PROPOSED
FACILITY, IN ACCORDANCE WITH REGULATIONS PROMULGATED BY THE DEPARTMENT
OF ENVIRONMENTAL CONSERVATION REGARDING ENVIRONMENTAL JUSTICE ISSUES,
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 A FACILITY IS PROPOSED TO BE LOCATED IN THE 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 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
EXISTING 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
ORDINANCE, LAW, RESOLUTION, REGULATION OR OTHER LOCAL ACTION ISSUED
THEREUNDER; AND
(F) THAT THE CONSTRUCTION AND OPERATION OF THE FACILITY IS IN THE
PUBLIC INTEREST, CONSIDERING THE ENVIRONMENTAL IMPACTS OF THE FACILITY,
INCLUDING THE PREDICTABLE HEALTH IMPACTS THEREOF AND REASONABLE ALTERNA-
TIVES EXAMINED AS REQUIRED PURSUANT TO PARAGRAPH (B) OF SUBDIVISION ONE
OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE.
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
A. 7250 26
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 ANY SUCH 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 ON THE BOARD OF
A DEMAND THAT THE BOARD FILE WITH SAID COURT A COPY OF A WRITTEN TRAN-
SCRIPT OF THE RECORD OF THE PROCEEDING AND A COPY OF THE BOARD'S DECI-
SION 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 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 OFFICIAL NOTICE SET FORTH IN THE
OPINION. THE JURISDICTION 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 OF THE STATE AND THE UNITED
STATES;
(B) SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD AND MATTERS OF
OFFICIAL NOTICE PROPERLY CONSIDERED AND APPLIED IN THE OPINION;
(C) WITHIN THE BOARD'S STATUTORY JURISDICTION OR AUTHORITY;
A. 7250 27
(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 SECTION.
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 AN
ELECTRIC GENERATING FACILITY PURSUANT TO THIS ARTICLE, EXCEPT TO ENFORCE
COMPLIANCE WITH THIS ARTICLE OR THE TERMS AND CONDITIONS ISSUED THERE-
UNDER.
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 AN ELECTRIC GENERATING
FACILITY WITH RESPECT TO WHICH AN APPLICATION FOR A CERTIFICATE HERE-
UNDER HAS BEEN FILED, OTHER THAN THOSE PROVIDED BY OTHERWISE APPLICABLE
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, HOWEV-
ER, THAT THE DEPARTMENT OF ENVIRONMENTAL 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; 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 PROCEDURES ESTABLISHED IN THIS ARTICLE
TO THE EXTENT THAT THEY ARE CONSISTENT WITH THE FEDERAL COASTAL ZONE
MANAGEMENT ACT AND ITS IMPLEMENTING REGULATIONS. IN ISSUING 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 SECRE-
TARY OF STATE SHALL PROVIDE SUCH PERMITS AND DETERMINATIONS, RESPECTIVE-
LY, 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 4. 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 THE FORMER ARTICLE EIGHT of the public service law; or
A. 7250 28
S 5. 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 FORMER section one hundred forty of the public service law, for the
construction or operation of which a certificate is required under THE
FORMER article eight of [such] THE PUBLIC SERVICE law, OR A MAJOR OR
NON-MAJOR ELECTRIC GENERATING FACILITY OR REPOWERING PROJECT 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, [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 electric 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 ELECTRIC GENERATION SITING AND THE ENVIRON-
MENT 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 impacts resulting from the opera-
tion of such major steam electric generating facility OR MAJOR OR
NON-MAJOR ELECTRIC GENERATING FACILITY OR REPOWERING PROJECT and to
enforce applicable provisions of the public health LAW and [environ-
mental conservation laws] THIS ARTICLE 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 6. 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] THE FORMER article eight of [such] THE PUBLIC SERVICE law, OR A
MAJOR OR NON-MAJOR ELECTRIC GENERATING FACILITY OR REPOWERING PROJECT AS
DEFINED IN SECTION ONE HUNDRED SIXTY OF THE PUBLIC SERVICE LAW, FOR
WHICH A CERTIFICATE IS REQUIRED PURSUANT TO ARTICLE TEN OF THE PUBLIC
SERVICE LAW, such approval functions [shall] MAY be performed by the
state board on electric generation siting and the environment, as
defined in [such] THE PUBLIC SERVICE law, PURSUANT TO FEDERALLY DELEG-
ATED OR APPROVED ENVIRONMENTAL PERMITTING AUTHORITY, and such inspection
functions shall be performed by the department[; provided further that
nothing]. NOTHING herein shall limit the authority of the [departments]
DEPARTMENT of health and [environmental conservation] THE DEPARTMENT to
monitor the environmental and health impacts resulting from the opera-
tion of such major steam electric generating facility and to enforce
applicable provisions of the public health LAW and [the environmental
A. 7250 29
conservation laws] THIS CHAPTER and the terms and conditions of the
certificate governing the environmental and health impacts resulting
from such operation.
S 7. 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 THE FORMER article eight of the public service law, OR A MAJOR OR
NON-MAJOR ELECTRIC GENERATING FACILITY OR REPOWERING PROJECT WHICH HAS
RECEIVED A CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY 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 8. 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
facility as defined therein, AND ARTICLE TEN OF THE PUBLIC SERVICE LAW
APPLIES TO SITING OF MAJOR OR NON-MAJOR ELECTRIC GENERATING FACILITIES
OR REPOWERING PROJECTS 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 ENVIRONMENTAL conservation law and every other law relat-
ing to the department of public service or the public service commission
or to the [conservation] 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 9. 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-
A. 7250 30
in, (b) article [eight] TEN of such law applies to the siting of a MAJOR
OR NON-MAJOR ELECTRIC generating facility OR REPOWERING PROJECT as
defined therein, and (c) section eighteen-a of such law provides for
assessment for certain costs, property or operations.
S 10. 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, ONE HUNDRED SIXTY-THREE-A 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 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 11. 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 12. 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, and provided further that prior to the
effective date of the rules and regulations of the department of envi-
ronmental conservation relating to the analysis of environmental justice
issues pursuant to this act, the policies and guidelines of such depart-
ment relating thereto in effect at the time an application is filed
shall be applied in lieu of such rules and regulations.