senate Bill S1045

2011-2012 Legislative Session

Provides for siting major electric generating facilities

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Jan 04, 2012 referred to energy and telecommunications
Jan 05, 2011 referred to energy and telecommunications

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S1045 - Bill Details

Current Committee:
Law Section:
Public Service Law
Laws Affected:
Add Art 10 §§160 - 172, Pub Serv L; amd §§1014 & 1020-s, Pub Auth L; amd §§8-0111, 17-0701, 17-0823, 19-0305 & 49-0307, En Con L; add §97-t, St Fin L
Versions Introduced in 2009-2010 Legislative Session:
S2084

S1045 - Bill Texts

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Provides for siting of major electric generating facilities.

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BILL NUMBER:S1045

TITLE OF BILL:
An act
to amend the public service law, the environmental conservation
law, the public authorities law and the state finance law, in relation
to siting of major electric generating facilities

PURPOSE:
To provide for the siting of major electric generating facilities.

SUMMARY OF PROVISIONS:
Section one adds a new Article 10 to the Public Service Law.

Section two adds this Article 10 to a section of Environmental
Conservation Law that requires actions subject to the provisions
requiring a Certificate of Environmental Compatibility and Public Need.

Section three provides that, nothing within this new Article 10, PSL,
limits the authority of the Department of Health and the Department
of Environmental Conservation to monitor the environmental and health
impacts resulting from the operation of a major electric generating
facility certified under this Article, and to enforce applicable
provisions of the Public Health Law.

Sections four, five, six, seven and eight make technical changes to
various laws in order to comply with the provisions of this Article
10, Public Service Law.

Section 9 establishes an intervenor account in the joint custody of
the State Comptroller and the Commissioner of Taxation and Finance,
consisting of all revenues received from siting application fees, and
allows for appropriation of such funds by the Legislature.

Section 10 is the separability clause.

Section 11 is the effective date.

EXISTING LAW:
Article 10 of the Public Service Law - Siting of Major Electric
Generating Facilities, expired on January 1, 2003.

JUSTIFICATION:
The energy industry, electricity in particular, is at a turning point.
Many forces, including the expiration of the original Article X
siting law and the clear need for a new electric capacity in the near
future - have come together and provided the State with the
opportunity to enhance its siting processes to more adequately
reflect the concerns and questions raised during the initial 10 year
life-span of the original Article X law.

This enhanced Article X reestablishes a one-stop forum for the siting
of major electric generating facilities. The provisions included
herein would apply to both steam and non-steam facilities with a
generating capacity of 50 megawatts or more.


The legislation provides that applications for siting electric
generating facilities that operate at a total net generating output
to the electric system of 49,99 megawatts or less, including
interconnection electric transmission lines and fuel gas transmission
lines that are not subject to review under Article 7, PSL, receive a
positive declaration from the Commissioner of the Department of
Environmental Conservation and be subject to full review under
Article 8 of the Environmental Conservation Law (State Environmental
Quality Review Act). Applications for facilities proposed under this
legislation would have to present information on the need for the
facility, site-specific environmental impacts of the proposed
facility (and mitigation efforts to the extent practicable) and
information on reasonable and available alternate locations for such
facilities, In addition to provisions included herein from the
expired Article X law, the applicant would have to provide health
impact analyses, cumulative impact analyses, and analyze potential
impacts of particulate matter of 2.5 microns and greater on the
geographic area in which the facility is proposed. The application
would be required to determine whether the proposed facility is to
be located in a potential environmental justice area, as defined by
the Department of Environmental Conservation's Environmental Justice
Policy Directive CP-29 Environmental Justice and Permitting.

When the proposed facility is to be located in a potential
environmental justice area, an environmental justice specialist will
be designated by the Department of Environmental Conservation prior
to the date set for commencement of the required public hearings, The
environmental justice specialist will attend all hearings as
scheduled by the presiding and associate examiner and will assist the
presiding and associate examiners in inquiring into and calling for
testimony concerning relevant and material matters.

The intervenor account established under this legislation will allow
for its use, by affected communities, for legal fees.

The legislation provides that for projects proposed to be sited in New
York City, one of the ad hoc public members of the Siting Board will
be appointed by the Governor in consultation with the Borough
President of the Borough in which the facility is proposed to be
located, and be a resident of that Borough.

LEGISLATIVE HISTORY:
This is a bill that follows the general outline of the
original Article X of the Public Service Law, expired on January 1,
2003 (and changes made to that law since its origin), with changes to
reflect current conditions and concerns expressed by communities and
legislators.

2009-2010: S.2084 - Finance
2007-2008: S.4529

FISCAL IMPLICATIONS:
Costs incurred by State agencies participating in the reenacted siting
process would be recovered, as in the past, through Section 18-a of
the Public Service Law, and thus would not affect the State's fiscal
plan of revenues and expenditures.


LOCAL FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
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.

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

                                  1045

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sens. PARKER, PERKINS -- read twice and ordered printed,
  and when printed to be committed to the Committee on Energy and  Tele-
  communications

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

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

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02118-01-1

S. 1045                             2

  S 160. DEFINITIONS. WHERE USED IN THIS ARTICLE, THE  FOLLOWING  TERMS,
UNLESS  THE  CONTEXT  OTHERWISE REQUIRES, SHALL HAVE THE FOLLOWING MEAN-
INGS:
  1.  "MUNICIPALITY"  MEANS  A  COUNTY, CITY, TOWN OR VILLAGE LOCATED IN
THIS STATE.
  2. "MAJOR ELECTRIC GENERATING FACILITY" MEANS AN  ELECTRIC  GENERATING
FACILITY  THAT IS OPERATED AT A TOTAL NET GENERATING OUTPUT TO THE ELEC-
TRIC SYSTEM OF FIFTY THOUSAND KILOWATTS  OR  MORE,  INCLUDING  INTERCON-
NECTION ELECTRIC TRANSMISSION LINES AND FUEL GAS TRANSMISSION LINES THAT
ARE NOT SUBJECT TO REVIEW UNDER ARTICLE SEVEN OF THIS CHAPTER.
  3.  "PERSON"  MEANS  ANY  INDIVIDUAL,  CORPORATION,  LIMITED LIABILITY
COMPANY, PUBLIC BENEFIT CORPORATION, POLITICAL SUBDIVISION, GOVERNMENTAL
AGENCY, MUNICIPALITY, PARTNERSHIP,  COOPERATIVE  ASSOCIATION,  TRUST  OR
ESTATE.
  4.  "BOARD"  MEANS  THE  NEW  YORK  STATE BOARD ON ELECTRIC GENERATION
SITING AND THE ENVIRONMENT, WHICH SHALL BE IN THE DEPARTMENT AND CONSIST
OF SEVEN PERSONS: THE CHAIRMAN OF THE DEPARTMENT,  WHO  SHALL  SERVE  AS
CHAIRPERSON  OF  THE  BOARD; THE COMMISSIONER OF ENVIRONMENTAL CONSERVA-
TION; THE COMMISSIONER OF HEALTH, THE CHAIRPERSON OF THE NEW YORK  STATE
ENERGY  RESEARCH AND DEVELOPMENT AUTHORITY; THE COMMISSIONER OF ECONOMIC
DEVELOPMENT AND TWO AD HOC PUBLIC MEMBERS APPOINTED BY THE GOVERNOR. ONE
AD HOC PUBLIC MEMBER SHALL BE A RESIDENT OF  THE  JUDICIAL  DISTRICT  IN
WHICH  THE  FACILITY  AS PROPOSED IS TO BE LOCATED AND ONE AD HOC PUBLIC
MEMBER SHALL BE A RESIDENT OF  THE  COUNTY  IN  WHICH  THE  FACILITY  AS
PROPOSED IS TO BE LOCATED. THE TERM OF THE AD HOC MEMBERS SHALL CONTINUE
UNTIL  A  FINAL  DETERMINATION  IS MADE IN THE PARTICULAR PROCEEDING FOR
WHICH THEY WERE APPOINTED. WHERE THE FACILITY OR ANY PORTION THEREOF  OR
ANY  ALTERNATIVE  PROPOSED TO BE LOCATED WITHIN A CITY WITH A POPULATION
OF ONE MILLION OR MORE, ONE OF THE AD HOC PUBLIC MEMBERS CITED  IN  THIS
SECTION  SHALL  BE  APPOINTED BY THE GOVERNOR AND SHALL BE A RESIDENT OF
THE JUDICIAL DISTRICT IN WHICH THE FACILITY IS TO BE  LOCATED,  AND  THE
OTHER  AD  HOC PUBLIC MEMBER CITED IN THIS SECTION SHALL BE APPOINTED BY
THE GOVERNOR, IN CONSULTATION WITH THE BOROUGH PRESIDENT OF THE  BOROUGH
IN  WHICH THE FACILITY IS PROPOSED TO BE LOCATED AND SHALL BE A RESIDENT
OF THE BOROUGH IN WHICH THE FACILITY IS PROPOSED TO BE LOCATED.
  5. "CERTIFICATE" MEANS A CERTIFICATE  OF  ENVIRONMENTAL  COMPATIBILITY
AND  PUBLIC NEED AUTHORIZING THE CONSTRUCTION OF A MAJOR ELECTRIC GENER-
ATING FACILITY ISSUED BY THE BOARD PURSUANT TO THIS ARTICLE.
  6. "APPROVED PROCUREMENT PROCESS" MEANS ANY ELECTRIC CAPACITY PROCURE-
MENT PROCESS APPROVED BY THE COMMISSION AND SUBSEQUENT TO MAY FIRST, TWO
THOUSAND FOUR, APPROVED BY THE COMMISSION AS REASONABLY CONSISTENT  WITH
THE MOST RECENT STATE ENERGY PLAN ADOPTED PURSUANT TO ARTICLE SIX OF THE
ENERGY LAW.
  S 161. GENERAL PROVISIONS RELATING TO THE BOARD. 1. UPON RECEIPT OF AN
APPLICATION  UNDER  THIS  ARTICLE, THE CHAIRPERSON SHALL PROMPTLY NOTIFY
THE GOVERNOR. WITHIN THIRTY DAYS OF SUCH NOTIFICATION THE GOVERNOR SHALL
APPOINT THE AD HOC MEMBERS. FOUR OF THE SEVEN PERSONS ON THE BOARD SHALL
CONSTITUTE A QUORUM FOR THE TRANSACTION OF ANY BUSINESS  OF  THE  BOARD,
AND THE DECISION OF FOUR MEMBERS OF THE BOARD SHALL CONSTITUTE ACTION OF
THE  BOARD.  THE  BOARD, EXCLUSIVE OF THE AD HOC MEMBERS, SHALL HAVE THE
POWER TO ADOPT RULES AND REGULATIONS RELATING TO THE  PROCEDURES  TO  BE
USED  IN  CERTIFYING  FACILITIES  UNDER  THE PROVISIONS OF THIS ARTICLE,
INCLUDING THE SUSPENSION OR REVOCATION THEREOF, AND SHALL  FURTHER  HAVE
THE  POWER  TO  SEEK  DELEGATION FROM THE FEDERAL GOVERNMENT PURSUANT TO
FEDERAL REGULATORY PROGRAMS APPLICABLE TO THE SITING OF  MAJOR  ELECTRIC
GENERATING  FACILITIES.  THE  CHAIRPERSON,  AFTER  CONSULTATION WITH THE

S. 1045                             3

OTHER MEMBERS OF THE BOARD EXCLUSIVE OF THE AD HOC MEMBERS,  SHALL  HAVE
EXCLUSIVE JURISDICTION TO ISSUE DECLARATORY RULINGS REGARDING THE APPLI-
CABILITY  OF,  OR  ANY  OTHER QUESTION UNDER, THIS ARTICLE AND RULES AND
REGULATIONS  ADOPTED  HEREUNDER.  REGULATIONS  ADOPTED  BY THE BOARD MAY
PROVIDE FOR RENEWAL APPLICATIONS FOR POLLUTANT  CONTROL  PERMITS  TO  BE
SUBMITTED TO AND ACTED UPON BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVA-
TION FOLLOWING COMMERCIAL OPERATION OF A CERTIFIED FACILITY.
  2.  IN  ADDITION  TO  THE  REQUIREMENTS OF THE PUBLIC OFFICERS LAW, NO
PERSON SHALL BE ELIGIBLE TO BE AN APPOINTEE OF THE GOVERNOR TO THE BOARD
WHO HOLDS ANOTHER STATE OR LOCAL OFFICE. NO  MEMBER  OF  THE  BOARD  MAY
RETAIN  OR  HOLD ANY OFFICIAL RELATION TO, OR ANY SECURITIES OF AN ELEC-
TRIC UTILITY CORPORATION OPERATING IN THE STATE OR PROPOSED  FOR  OPERA-
TION  IN  THE  STATE,  ANY AFFILIATE THEREOF OR ANY OTHER COMPANY, FIRM,
PARTNERSHIP, CORPORATION, ASSOCIATION OR  JOINT-STOCK  ASSOCIATION  THAT
MAY  APPEAR  BEFORE  THE  BOARD, NOR SHALL EITHER OF THE APPOINTEES HAVE
BEEN A DIRECTOR, OFFICER OR, WITHIN THE PREVIOUS TEN YEARS, AN  EMPLOYEE
THEREOF.  THE  APPOINTEES  OF  THE GOVERNOR SHALL RECEIVE THE SUM OF TWO
HUNDRED DOLLARS FOR EACH DAY IN WHICH THEY ARE ACTUALLY ENGAGED  IN  THE
PERFORMANCE  OF  THEIR  DUTIES  PURSUANT TO THIS ARTICLE PLUS ACTUAL AND
NECESSARY EXPENSES INCURRED BY THEM IN THE PERFORMANCE OF  SUCH  DUTIES.
THE  CHAIRPERSON SHALL PROVIDE SUCH PERSONNEL, HEARING EXAMINERS, SUBOR-
DINATES, EMPLOYEES AND SUCH LEGAL, TECHNOLOGICAL, SCIENTIFIC,  ENGINEER-
ING  AND  OTHER SERVICES AND SUCH MEETING ROOMS, HEARING ROOMS AND OTHER
FACILITIES AS MAY BE REQUIRED IN PROCEEDINGS UNDER THIS  ARTICLE.    THE
BOARD  MAY  PROVIDE  FOR  ITS  OWN  REPRESENTATION AND APPEARANCE IN ALL
ACTIONS AND PROCEEDINGS INVOLVING ANY QUESTION UNDER THIS  ARTICLE.  THE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION SHALL PROVIDE ASSOCIATE HEARING
EXAMINERS.  EACH  MEMBER  OF  THE BOARD OTHER THAN THE APPOINTEES OF THE
GOVERNOR MAY DESIGNATE AN ALTERNATE TO SERVE INSTEAD OF THE MEMBER  WITH
RESPECT  TO  ALL  PROCEEDINGS PURSUANT TO THIS ARTICLE. SUCH DESIGNATION
SHALL BE IN WRITING AND FILED WITH THE CHAIRPERSON.
  S 162. BOARD CERTIFICATE. 1. NO PERSON SHALL COMMENCE THE  PREPARATION
OF  A SITE FOR, OR BEGIN THE CONSTRUCTION OF A MAJOR ELECTRIC GENERATING
FACILITY IN THE STATE WITHOUT HAVING FIRST OBTAINED A CERTIFICATE ISSUED
WITH RESPECT TO SUCH FACILITY BY  THE  BOARD.  ANY  SUCH  FACILITY  WITH
RESPECT  TO WHICH A CERTIFICATE IS ISSUED SHALL NOT THEREAFTER BE BUILT,
MAINTAINED OR OPERATED EXCEPT IN CONFORMITY WITH  SUCH  CERTIFICATE  AND
ANY  TERMS,  LIMITATIONS  OR CONDITIONS CONTAINED THEREIN, PROVIDED THAT
NOTHING IN THIS ARTICLE SHALL EXEMPT SUCH FACILITY FROM COMPLIANCE  WITH
STATE LAW AND REGULATIONS THEREUNDER SUBSEQUENTLY ADOPTED OR WITH MUNIC-
IPAL   LAWS   AND  REGULATIONS  THEREUNDER  NOT  INCONSISTENT  WITH  THE
PROVISIONS OF SUCH CERTIFICATE.  A  CERTIFICATE  FOR  A  MAJOR  ELECTRIC
GENERATING FACILITY MAY BE ISSUED ONLY PURSUANT TO THIS ARTICLE.
  2.  A  CERTIFICATE  MAY BE TRANSFERRED, SUBJECT TO THE APPROVAL OF THE
BOARD, TO A PERSON WHO AGREES TO COMPLY WITH THE TERMS, LIMITATIONS  AND
CONDITIONS CONTAINED THEREIN.
  3.  A  CERTIFICATE  ISSUED  PURSUANT TO THIS ARTICLE MAY BE AMENDED AS
PROVIDED IN THIS ARTICLE.
  4. THIS ARTICLE SHALL NOT APPLY:
  (A) TO A MAJOR ELECTRIC GENERATING FACILITY OVER WHICH ANY  AGENCY  OR
DEPARTMENT  OF THE FEDERAL GOVERNMENT HAS EXCLUSIVE JURISDICTION, OR HAS
JURISDICTION CONCURRENT WITH THAT OF THE STATE AND  HAS  EXERCISED  SUCH
JURISDICTION,  TO  THE  EXCLUSION  OF  REGULATION OF THE FACILITY BY THE
STATE;
  (B) TO NORMAL REPAIRS, REPLACEMENTS, MODIFICATIONS AND IMPROVEMENTS OF
A MAJOR ELECTRIC GENERATING  FACILITY,  WHENEVER  BUILT,  WHICH  DO  NOT

S. 1045                             4

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;
  (C)  TO  A MAJOR ELECTRIC GENERATING FACILITY (I) CONSTRUCTED ON LANDS
DEDICATED TO INDUSTRIAL USES, (II) THE OUTPUT OF  WHICH  SHALL  BE  USED
SOLELY  FOR INDUSTRIAL PURPOSES, IN THE PREMISES, AND (III) THE GENERAT-
ING CAPACITY OF WHICH DOES NOT EXCEED TWO HUNDRED THOUSAND KILOWATTS; OR
  (D) TO A MAJOR ELECTRIC GENERATING FACILITY WHICH GENERATES  ELECTRIC-
ITY  FROM  THE COMBUSTION OF SOLID WASTE OR FROM FUEL DERIVED FROM SOLID
WASTE.
  5. ANY PERSON INTENDING  TO  CONSTRUCT  A  MAJOR  ELECTRIC  GENERATING
FACILITY  EXCLUDED FROM THIS ARTICLE PURSUANT TO PARAGRAPH (B) OR (C) OF
SUBDIVISION FOUR OF THIS SECTION MAY ELECT  TO  BECOME  SUBJECT  TO  THE
PROVISIONS  OF THIS ARTICLE BY DELIVERING NOTICE OF SUCH ELECTION TO THE
CHAIRPERSON OF THE BOARD. THIS ARTICLE SHALL THEREAFTER  APPLY  TO  EACH
ELECTRIC  GENERATING FACILITY IDENTIFIED IN SUCH NOTICE FROM THE DATE OF
ITS RECEIPT BY THE CHAIRPERSON OF THE BOARD. FOR THE  PURPOSES  OF  THIS
ARTICLE,  EACH  SUCH  FACILITY  SHALL BE TREATED IN THE SAME MANNER AS A
MAJOR ELECTRIC GENERATING FACILITY AS DEFINED IN THIS ARTICLE.
  S 162-A. APPLICATIONS FOR SITING  CERTAIN  OTHER  ELECTRIC  GENERATING
FACILITIES.  APPLICATIONS FOR SITING ELECTRIC GENERATING FACILITIES THAT
OPERATE AT A TOTAL NET GENERATING OUTPUT TO THE ELECTRIC SYSTEM OF 49.99
THOUSAND KILOWATTS OR LESS, INCLUDING  INTERCONNECTION  ELECTRIC  TRANS-
MISSION  LINES  AND  FUEL GAS TRANSMISSION LINES THAT ARE NOT SUBJECT TO
REVIEW UNDER ARTICLE SEVEN OF THIS CHAPTER,  SHALL  RECEIVE  A  POSITIVE
DECLARATION  FROM  THE  COMMISSIONER  OF THE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION AND SHALL BE SUBJECT TO FULL REVIEW UNDER ARTICLE EIGHT  OF
THE ENVIRONMENTAL CONSERVATION LAW.
  S  163.  PRE-APPLICATION PROCEDURES. 1. ANY PERSON PROPOSING TO SUBMIT
AN APPLICATION FOR A CERTIFICATE SHALL FILE WITH THE CHAIRPERSON OF  THE
BOARD  A PRELIMINARY SCOPING STATEMENT CONTAINING A BRIEF DISCUSSION, ON
THE BASIS OF AVAILABLE INFORMATION, OF THE FOLLOWING ITEMS:
  (A)  DESCRIPTION  OF  THE  PROPOSED  FACILITY  AND  ITS  ENVIRONMENTAL
SETTING;
  (B) ANTICIPATED ENVIRONMENTAL AND HEALTH IMPACTS FROM THE CONSTRUCTION
AND/OR OPERATION OF THE PROPOSED FACILITY;
  (C) A PROPOSED STUDY OR PROGRAM OF STUDIES DESIGNED TO EVALUATE POTEN-
TIAL  ENVIRONMENTAL IMPACTS AND ANALYZE POTENTIAL IMPACTS OF PARTICULATE
MATTER OF 2.5 MICRONS OR GREATER ON THE GEOGRAPHIC  AREA  IN  WHICH  THE
FACILITY IS PROPOSED;
  (D) MEASURES PROPOSED TO MINIMIZE ENVIRONMENTAL IMPACTS;
  (E)  REASONABLE ALTERNATIVES IF ANY TO THE PROPOSED FACILITY AS MAY BE
REQUIRED BY PARAGRAPH (B) OF SUBDIVISION  ONE  OF  SECTION  ONE  HUNDRED
SIXTY-FOUR OF THIS ARTICLE;
  (F)  IF  THE FACILITY IS PROPOSED TO BE LOCATED IN THE COASTAL AREA, A
PRELIMINARY ANALYSIS OF THE CONSISTENCY OF THE  PROPOSED  FACILITY  WITH
THE  APPLICABLE  COASTAL  POLICIES OF ARTICLE FORTY-TWO OF THE EXECUTIVE
LAW, OR WHEN THE ACTION IS IN AN APPROVED LOCAL  WATERFRONT  REVITALIZA-
TION  PROGRAM  AREA,  WITH  THE  LOCAL PROGRAM. IF THE PROPOSED FACILITY
COULD AFFECT ANY LAND OR WATER USE OR NATURAL RESOURCE  OF  THE  COASTAL
AREA  AND  FEDERAL AUTHORIZATION IS NECESSARY, A PRELIMINARY ANALYSIS OF
THE CONSISTENCY OF THE PROPOSED FACILITY WITH THE  ENFORCEABLE  POLICIES
OF  THE  NEW YORK STATE COASTAL MANAGEMENT PROGRAM OR WHEN THE ACTION IS
IN AN APPROVED LOCAL WATERFRONT REVITALIZATION PROGRAM  AREA,  WITH  THE
LOCAL PROGRAM;

S. 1045                             5

  (G)  A DETERMINATION OF WHETHER THE PROPOSED FACILITY IS TO BE LOCATED
IN A POTENTIAL ENVIRONMENTAL JUSTICE AREA, AS DEFINED BY THE  DEPARTMENT
OF  ENVIRONMENTAL  JUSTICE POLICY DIRECTIVE CP-29, ENVIRONMENTAL JUSTICE
AND PERMITTING; AND
  (H)  ANY  OTHER INFORMATION THAT MAY BE RELEVANT OR THAT THE BOARD MAY
REQUIRE.
  2. EACH PRELIMINARY SCOPING STATEMENT SHALL BE ACCOMPANIED BY A FEE OF
FIFTY THOUSAND DOLLARS TO BE DEPOSITED IN THE INTERVENOR ACCOUNT, ESTAB-
LISHED PURSUANT TO SECTION NINETY-NINE-T OF THE STATE FINANCE  LAW,  AND
SHALL  BE DISBURSED AT THE BOARD'S DIRECTION TO DEFRAY EXPENSES INCURRED
BY MUNICIPAL AND OTHER LOCAL, INTERESTED PERSONS (EXCEPT A  MUNICIPALITY
WHICH  IS  THE APPLICANT) FOR CONSULTANTS' FEES TO EVALUATE THE PRELIMI-
NARY SCOPING STATEMENT AND ANALYZE THE  METHODOLOGY  AND  SCOPE  OF  ANY
STUDY OR PROGRAM OF STUDIES TO BE UNDERTAKEN BY THE APPLICANT IN SUPPORT
OF  ITS  APPLICATION. SUCH FUNDS SHALL BE MADE AVAILABLE ON AN EQUITABLE
BASIS IN A MANNER WHICH FACILITATES BROAD PUBLIC  PARTICIPATION  IN  THE
PRE-APPLICATION  PROCESS.  ANY  UNUSED FUNDS SHALL BE MADE AVAILABLE AND
DISBURSED IN ACCORDANCE  WITH  THE  PROVISIONS  OF  SUBDIVISION  SIX  OF
SECTION  ONE  HUNDRED  SIXTY-FOUR  OF  THIS ARTICLE IF AN APPLICATION IS
FILED OR, IF THE PRELIMINARY SCOPING STATEMENT IS WITHDRAWN, RETURNED TO
THE APPLICANT. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRA-
RY, THE BOARD MAY PROVIDE BY RULES  AND  REGULATIONS  FOR  DISBURSEMENTS
FROM THE FUND FOR THE STATED PURPOSES.
  3. SUCH PERSON SHALL SERVE COPIES OF THE PRELIMINARY SCOPING STATEMENT
ON PERSONS ENUMERATED IN PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION ONE
HUNDRED  SIXTY-FOUR OF THIS ARTICLE AND PROVIDE NOTICE OF SUCH STATEMENT
AS PROVIDED IN PARAGRAPH (B) OF SUCH SUBDIVISION.
  4. TO FACILITATE  THE  APPLICATION  PROCESS  AND  ENABLE  CITIZENS  TO
PARTICIPATE  IN  DECISIONS  THAT  AFFECT THEIR HEALTH AND SAFETY AND THE
ENVIRONMENT, THE DEPARTMENT  SHALL  PROVIDE  OPPORTUNITIES  FOR  CITIZEN
INVOLVEMENT.  SUCH  OPPORTUNITIES  SHALL ENCOURAGE CONSULTATION WITH THE
PUBLIC EARLY IN THE APPLICATION PROCESS, ESPECIALLY BEFORE  ANY  PARTIES
ENTER  A  STIPULATION  PURSUANT TO SUBDIVISION FIVE OF THIS SECTION. THE
PRIMARY GOALS OF THE CITIZEN PARTICIPATION PROCESS SHALL BE  TO  FACILI-
TATE  COMMUNICATION  BETWEEN  THE  APPLICANT  AND INTERESTED OR AFFECTED
PERSONS. THE PROCESS SHALL FOSTER THE ACTIVE INVOLVEMENT OF  THE  INTER-
ESTED OR AFFECTED PERSONS.
  5.  SUCH  PERSON  MAY  CONSULT  AND SEEK AGREEMENT WITH ANY INTERESTED
PERSON INCLUDING, BUT NOT LIMITED TO, THE STAFF OF THE  DEPARTMENT,  THE
DEPARTMENT  OF  ENVIRONMENTAL  CONSERVATION, THE DEPARTMENT OF STATE AND
THE DEPARTMENT OF HEALTH, AS  APPROPRIATE,  AS  TO  ANY  ASPECT  OF  THE
PRELIMINARY  SCOPING  STATEMENT AND ANY STUDY OR PROGRAM OF STUDIES MADE
OR TO BE MADE TO SUPPORT SUCH APPLICATION. THE STAFF OF THE  DEPARTMENT,
THE  DEPARTMENT  OF ENVIRONMENTAL CONSERVATION, THE DEPARTMENT OF STATE,
THE DEPARTMENT OF HEALTH, THE PERSON PROPOSING TO FILE  AN  APPLICATION,
AND  ANY  OTHER  INTERESTED  PERSON MAY ENTER INTO A STIPULATION SETTING
FORTH AN AGREEMENT ON ANY ASPECT OF THE  PRELIMINARY  SCOPING  STATEMENT
AND  THE  STUDIES OR PROGRAM OF STUDIES TO BE CONDUCTED. ANY SUCH PERSON
PROPOSING TO SUBMIT AN APPLICATION FOR A CERTIFICATE SHALL SERVE A  COPY
OF THE PROPOSED STIPULATION UPON ALL PERSONS ENUMERATED IN PARAGRAPH (A)
OF  SUBDIVISION  TWO  OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE,
PROVIDE NOTICE OF SUCH STIPULATION TO THOSE PERSONS IDENTIFIED IN  PARA-
GRAPH (B) OF SUCH SUBDIVISION, AND AFFORD THE PUBLIC A REASONABLE OPPOR-
TUNITY  TO  SUBMIT  COMMENTS ON THE STIPULATION BEFORE IT IS EXECUTED BY
THE INTERESTED PARTIES. NOTHING IN THIS SUBDIVISION, HOWEVER, SHALL  BAR
ANY  PARTY  TO  A  HEARING  ON AN APPLICATION, OTHER THAN ANY PARTY TO A

S. 1045                             6

PRE-APPLICATION STIPULATION,  FROM  TIMELY  RAISING  OBJECTIONS  TO  ANY
ASPECT  OF  THE  PRELIMINARY  SCOPING  STATEMENT AND THE METHODOLOGY AND
SCOPE OF ANY STIPULATED STUDIES OR PROGRAM OF STUDIES IN ANY SUCH AGREE-
MENT.  IN  ORDER TO ATTEMPT TO RESOLVE ANY QUESTIONS THAT MAY ARISE AS A
RESULT OF SUCH CONSULTATION, THE BOARD MAY DESIGNATE A HEARING  EXAMINER
WHO  SHALL  MEDIATE  ANY ISSUE RELATING TO ANY ASPECT OF THE PRELIMINARY
SCOPING STATEMENT AND THE METHODOLOGY AND SCOPE OF ANY SUCH  STUDIES  OR
PROGRAMS OF STUDY.
  S  163-A.  REPOWERING  PROJECTS.  1. FOR PURPOSES OF THIS SECTION, THE
TERM "REPOWERING PROJECT" MEANS A  MAJOR  ELECTRIC  GENERATING  FACILITY
THAT  PROPOSES  TO ENTIRELY OR PARTIALLY REPLACE AN EXISTING MAJOR ELEC-
TRIC GENERATING FACILITY IN  SUBSTANTIALLY  THE  SAME  LOCATION  AS  THE
EXISTING FACILITY WHERE SUCH PROPOSED FACILITY:
  (A) RESULTS IN A DECREASE OF NOT LESS THAN SEVENTY-FIVE PERCENT IN THE
RATE OF EMISSIONS OF EACH OF THE FOLLOWING ON A POUNDS PER MEGAWATT-HOUR
BASIS: (I) OXIDES OF NITROGEN, (II) OXIDES OF SULFUR, AND (III) PARTICU-
LATE  MATTER.  THE  PERCENTAGE  REDUCTION  IN THE RATE OF SUCH EMISSIONS
SHALL BE CALCULATED BY COMPARING THE ANNUALIZED POTENTIAL TO EMIT OF THE
EXISTING FACILITY (EXPRESSED IN POUNDS PER MEGAWATT-HOUR)  AT  THE  TIME
THE APPLICATION UNDER THIS ARTICLE IS FILED WITH THE CHAIRPERSON AND THE
FUTURE  ANNUALIZED  POTENTIAL TO EMIT OF THE MODIFIED FACILITY OR OF THE
COMBINATION OF THE EXISTING AND NEW FACILITY (EXPRESSED  IN  POUNDS  PER
MEGAWATT-HOUR  AND  BASED UPON REASONABLY EXPECTED OPERATING CONDITIONS)
PROPOSED IN THE APPLICATION;
  (B) EMPLOYS AIR POLLUTION  CONTROL  TECHNOLOGY  CONSISTENT  WITH  THAT
NECESSARY  TO  MEET  BEST  AVAILABLE  CONTROL  TECHNOLOGY  STANDARDS  OR
ACHIEVES THE LOWEST ACHIEVABLE EMISSIONS RATE;
  (C) WHEN A COOLING WATER INTAKE  STRUCTURE  IS  PLANNED,  INCORPORATES
COOLING WATER INTAKE STRUCTURE TECHNOLOGY CONSISTENT WITH THE BEST TECH-
NOLOGY AVAILABLE STANDARDS APPLICABLE TO NEW COOLING WATER INTAKE STRUC-
TURES  (AS REFLECTED IN THE STATE POLLUTION DISCHARGE ELIMINATION SYSTEM
PERMIT ISSUED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION); AND
  (D) REPLACES EXISTING GENERATING  CAPACITY  WITH  GENERATING  CAPACITY
THAT HAS A LOWER HEAT RATE.
  2. ANY PERSON PROPOSING TO UNDERTAKE A REPOWERING PROJECT MAY ELECT TO
FOLLOW THE PROCEDURES SET FORTH IN THIS SECTION AS AN ALTERNATIVE TO THE
REQUIREMENTS  SET  FORTH  IN  SECTIONS  ONE  HUNDRED SIXTY-THREE AND ONE
HUNDRED SIXTY-FOUR OF THIS ARTICLE. SUCH  PERSON  SHALL  FILE  WITH  THE
CHAIRPERSON  OF  THE BOARD AN APPLICATION, IN A FORM TO BE DETERMINED BY
THE BOARD THAT CONTAINS, AT A MINIMUM,  THE  FOLLOWING  INFORMATION  AND
MATERIALS:
  (A)  A  DESCRIPTION  OF THE SITE, INCLUDING ITS ENVIRONMENTAL SETTING,
AND A DESCRIPTION OF THE REPOWERING PROJECT, INCLUDING, BUT NOT  LIMITED
TO, AVAILABLE SITE INFORMATION, MAPS, AND DESCRIPTIONS;
  (B)  ANALYSES  THAT HAVE BEEN MADE OF (I) THE ENVIRONMENTAL IMPACTS OF
THE EXISTING ELECTRIC GENERATING FACILITY; (II) CONCEPTUAL ARCHITECTURAL
AND ENGINEERING PLANS INDICATING COMPATIBILITY OF THE FACILITY WITH  THE
ENVIRONMENT;  AND (III) THE EXPECTED ENVIRONMENTAL IMPACTS OF THE REPOW-
ERING PROJECT, INCLUDING, BUT NOT LIMITED TO, THE  GENERATION  OF  SOLID
WASTES,  AIR  EMISSIONS  INCLUDING  PARTICULATE MATTER OF 2.5 MICRONS OR
GREATER, DISCHARGES INTO NAVIGABLE WATERS AND GROUNDWATER, IMPACTS  UPON
WETLANDS,  AND  VISUAL  IMPACTS,  THE  PROBABLE  LEVEL  OF  NOISE DURING
CONSTRUCTION AND OPERATION OF THE REPOWERING PROJECT, AND  ANY  MEASURES
FOR  CONTROL,  ABATEMENT, OR MITIGATION OF SUCH IMPACTS, AND THE COMPAT-
IBILITY OF THE REPOWERING  PROJECT  WITH  EXISTING  FEDERAL,  STATE  AND
MUNICIPAL ENVIRONMENTAL, HEALTH AND SAFETY STANDARDS;

S. 1045                             7

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

S. 1045                             8

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

S. 1045                             9

  9. IN THE EVENT THAT  THE  DEPARTMENT  OF  ENVIRONMENTAL  CONSERVATION
ISSUES  PERMITS  PURSUANT  TO FEDERALLY DELEGATED OR APPROVED PERMITTING
AUTHORITY UNDER THE FEDERAL CLEAN WATER ACT, THE FEDERAL CLEAN  AIR  ACT
AND THE FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT, THE COMMISSIONER
OF  ENVIRONMENTAL  CONSERVATION SHALL PROVIDE SUCH PERMITS TO THE CHAIR-
PERSON OF THE BOARD PRIOR TO THE DETERMINATION OF NON-SIGNIFICANCE.  THE
CHAIRPERSON  OF  THE  BOARD  SHALL  SUBMIT  THE  FINAL  DETERMINATION OF
NON-SIGNIFICANCE TO THE BOARD, WHICH SHALL ISSUE A DECISION WITH RESPECT
TO THE APPLICATION WITHIN  TWENTY-ONE  DAYS  AFTER  SUCH  SUBMISSION  IN
ACCORDANCE WITH SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTICLE.
  S  164.  APPLICATION  FOR A CERTIFICATE. 1. AN APPLICANT FOR A CERTIF-
ICATE SHALL FILE WITH THE CHAIRPERSON OF THE BOARD  AN  APPLICATION,  IN
SUCH  FORM  AS THE BOARD MAY PRESCRIBE CONTAINING THE FOLLOWING INFORMA-
TION AND MATERIALS:
  (A) A DESCRIPTION OF THE SITE AND A DESCRIPTION OF THE FACILITY TO  BE
BUILT   THEREON;   INCLUDING   AVAILABLE   SITE  INFORMATION,  MAPS  AND
DESCRIPTIONS, PRESENT AND PROPOSED DEVELOPMENT,  SOURCE  AND  VOLUME  OF
WATER  REQUIRED  FOR  PLANT  OPERATION  AND COOLING, AND AS APPROPRIATE,
GEOLOGICAL, AESTHETIC, ECOLOGICAL, TSUNAMI, SEISMIC,  BIOLOGICAL,  WATER
SUPPLY, POPULATION AND LOAD CENTER DATA;
  (B)  A  DESCRIPTION AND EVALUATION OF REASONABLE ALTERNATIVE LOCATIONS
TO THE PROPOSED FACILITY, IF ANY, AND WITH RESPECT TO  A  FACILITY  THAT
HAS  NOT  BEEN  SELECTED  PURSUANT TO AN APPROVED PROCUREMENT PROCESS, A
DESCRIPTION AND EVALUATION OF REASONABLE  DEMAND  ENERGY  SUPPLY  SOURCE
ALTERNATIVES  AND,  WHERE  APPROPRIATE,  DEMAND-REDUCING MEASURES TO THE
PROPOSED FACILITY; A  DESCRIPTION  OF  THE  COMPARATIVE  ADVANTAGES  AND
DISADVANTAGES  AS  APPROPRIATE;  AND  A STATEMENT OF THE REASONS WHY THE
PRIMARY PROPOSED LOCATION AND SOURCE, AS APPROPRIATE,  IS  BEST  SUITED,
AMONG THE ALTERNATIVES CONSIDERED, TO PROMOTE PUBLIC HEALTH AND WELFARE,
INCLUDING  THE RECREATIONAL AND OTHER CONCURRENT USES WHICH THE SITE MAY
SERVE, PROVIDED THAT THE INFORMATION REQUIRED PURSUANT TO THIS PARAGRAPH
SHALL BE NO MORE EXTENSIVE THAN REQUIRED  UNDER  ARTICLE  EIGHT  OF  THE
ENVIRONMENTAL CONSERVATION LAW;
  (C)  STUDIES, IDENTIFYING THE AUTHOR AND DATE THEREOF, WHICH HAVE BEEN
MADE OF THE EXPECTED ENVIRONMENTAL IMPACT AND SAFETY  OF  THE  FACILITY,
BOTH DURING ITS CONSTRUCTION AND ITS OPERATION, WHICH STUDIES ARE SUFFI-
CIENT  TO  IDENTIFY (I) THE ANTICIPATED GASEOUS, LIQUID AND SOLID WASTES
TO BE PRODUCED AT  THE  FACILITY  INCLUDING  THEIR  SOURCE,  ANTICIPATED
VOLUMES,  COMPOSITION  AND TEMPERATURE, AND SUCH OTHER ATTRIBUTES AS THE
BOARD MAY SPECIFY AND THE PROBABLE LEVEL OF  NOISE  DURING  CONSTRUCTION
AND  OPERATION  OF  THE FACILITY; (II) THE TREATMENT PROCESSES TO REDUCE
WASTES TO BE RELEASED TO THE ENVIRONMENT, THE  MANNER  OF  DISPOSAL  FOR
WASTES  RETAINED AND MEASURES FOR NOISE ABATEMENT; (III) THE ANTICIPATED
VOLUMES OF WASTES TO BE RELEASED TO THE ENVIRONMENT UNDER ANY  OPERATING
CONDITION  OF  THE FACILITY, INCLUDING SUCH METEOROLOGICAL, HYDROLOGICAL
AND OTHER INFORMATION NEEDED TO SUPPORT SUCH ESTIMATES; (IV)  CONCEPTUAL
ARCHITECTURAL  AND  ENGINEERING  PLANS  INDICATING  COMPATIBILITY OF THE
FACILITY WITH THE ENVIRONMENT; (V) HOW THE CONSTRUCTION AND OPERATION OF
THE FACILITY, INCLUDING TRANSPORTATION  AND  DISPOSAL  OF  WASTES  WOULD
COMPLY  WITH  ENVIRONMENTAL  HEALTH  AND SAFETY STANDARDS, REQUIREMENTS,
REGULATIONS AND RULES UNDER STATE AND MUNICIPAL LAWS,  AND  A  STATEMENT
WHY  ANY  VARIANCES  OR  EXCEPTIONS  SHOULD BE GRANTED; (VI) WATER WITH-
DRAWALS AND DISCHARGES; (VII) A DESCRIPTION OF THE FUEL  INTERCONNECTION
AND  SUPPLY  FOR  THE PROJECT; (VIII) AN ELECTRIC INTERCONNECTION STUDY,
CONSISTING GENERALLY OF A DESIGN STUDY AND A SYSTEM  RELIABILITY  IMPACT
STUDY;  (IX) THE EXPECTED EMISSIONS FROM THE PROPOSED FACILITY OF PARTI-

S. 1045                            10

CULATE MATTER OF 2.5 MICRONS OR GREATER;  (X)  THE  CUMULATIVE  AIR  AND
ENVIRONMENTAL  IMPACTS OF THE PROPOSED FACILITY IN AGGREGATE WITH EXIST-
ING EMISSION SOURCES ON THE GEOGRAPHIC AREA IN  WHICH  THE  FACILITY  IS
PROPOSED;  AND (XI) IF THE FACILITY IS PROPOSED FOR A POTENTIAL ENVIRON-
MENTAL JUSTICE AREA, AS  DEFINED  IN  THE  DEPARTMENT  OF  ENVIRONMENTAL
CONSERVATION  POLICY  DIRECTIVE CP-29, ENVIRONMENTAL JUSTICE AND PERMIT-
TING, EXISTING EMISSION SOURCES THEREIN.
  (D) EXCEPT WITH RESPECT TO A FACILITY THAT HAS BEEN SELECTED  PURSUANT
TO  AN APPROVED PROCUREMENT PROCESS, ESTIMATED COST INFORMATION, INCLUD-
ING PLANT COSTS BY ACCOUNT, ALL EXPENSES BY  CATEGORIES  INCLUDING  FUEL
COSTS,  PLANT SERVICE LIFE AND CAPACITY FACTOR AND TOTAL GENERATING COST
PER KILOWATT-HOUR, INCLUDING BOTH PLANT AND  RELATED  TRANSMISSION,  AND
COMPARATIVE COSTS OF ALTERNATIVES CONSIDERED;
  (E) A STATEMENT (I) DEMONSTRATING THAT THE FACILITY WILL SATISFY ADDI-
TIONAL  ELECTRIC  CAPACITY  OR OTHER ELECTRIC SYSTEM NEEDS, AND THAT THE
CONSTRUCTION OF THE FACILITY IS REASONABLY  CONSISTENT  WITH  LONG-RANGE
ENERGY PLANNING OBJECTIVES AND STRATEGIES, PROVIDED HOWEVER, THAT SUBSE-
QUENT  TO THE ADOPTION OF A STATE ENERGY PLAN PURSUANT TO 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;
  (F) SUCH EVIDENCE AS WILL ENABLE THE BOARD OR COMMISSIONER OF ENVIRON-
MENTAL CONSERVATION TO EVALUATE THE FACILITY'S POLLUTION CONTROL SYSTEMS
AND TO REACH A DETERMINATION TO ISSUE THEREFOR, SUBJECT  TO  APPROPRIATE
CONDITIONS  AND  LIMITATIONS, PERMITS PURSUANT TO FEDERAL RECOGNITION OF
STATE AUTHORITY IN ACCORDANCE WITH THE  FEDERAL  CLEAN  WATER  ACT,  THE
FEDERAL CLEAN AIR ACT AND THE FEDERAL RESOURCE CONSERVATION AND RECOVERY
ACT;
  (G)  ANY  OTHER  INFORMATION  THAT  THE  BOARD  DEEMS  RELEVANT OR MAY
REQUIRE;
  (H) A PLAN FOR SECURITY OF THE PROPOSED FACILITY  DURING  CONSTRUCTION
AND  OPERATION OF SUCH FACILITY, TO BE REVIEWED BY THE BOARD, IN CONSUL-
TATION WITH THE NEW YORK STATE OFFICE OF PUBLIC SECURITY; AND
  (I) SUCH OTHER INFORMATION AS THE APPLICANT MAY CONSIDER  RELEVANT  OR
AS  MAY  BE  REQUIRED BY THE BOARD. COPIES OF THE APPLICATION, INCLUDING
THE REQUIRED INFORMATION, SHALL BE FILED WITH THE  BOARD  AND  SHALL  BE
AVAILABLE  FOR  PUBLIC  INSPECTION; PROVIDED, HOWEVER, THAT THE SECURITY
PLAN REQUIRED TO BE FILED PURSUANT TO PARAGRAPH (H) OF THIS  SUBDIVISION
SHALL  BE  KEPT  CONFIDENTIAL  AND  SHALL  NOT  BE  AVAILABLE FOR PUBLIC
INSPECTION, AND PROVIDED FURTHER THAT  INFORMATION  CONCERNING  ELECTRIC
AND  NATURAL  GAS INTERCONNECTIONS BETWEEN THE FACILITY AND THE ELECTRIC
AND NATURAL GAS SYSTEMS SHALL NOT BE PLACED IN PUBLIC  LIBRARIES  OR  ON
THE INTERNET, AND THAT THE DEPARTMENT SHALL MAKE SUCH INFORMATION AVAIL-
ABLE  FOR INSPECTION AT ITS OFFICES AND SHALL MAINTAIN A LOG BOOK OF ALL
THOSE WHO HAVE REQUESTED ACCESS TO SUCH INFORMATION.
  2. EACH APPLICATION SHALL BE ACCOMPANIED BY PROOF OF SERVICE, IN  SUCH
MANNER AS THE BOARD SHALL PRESCRIBE, OF:
  (A)  A  COPY OF SUCH APPLICATION ON (I) EACH MUNICIPALITY IN WHICH ANY
PORTION OF SUCH FACILITY IS TO BE LOCATED AS PROPOSED OR IN ANY ALTERNA-
TIVE LOCATION LISTED. SUCH COPY TO A MUNICIPALITY SHALL BE ADDRESSED  TO
THE  CHIEF  EXECUTIVE  OFFICER  THEREOF AND SHALL SPECIFY THE DATE ON OR
ABOUT WHICH THE APPLICATION IS TO BE FILED;
  (II) EACH MEMBER OF THE BOARD;
  (III) THE DEPARTMENT OF AGRICULTURE AND MARKETS;

S. 1045                            11

  (IV) THE SECRETARY OF STATE;
  (V) THE ATTORNEY GENERAL;
  (VI) THE DEPARTMENT OF TRANSPORTATION;
  (VII)  A  LIBRARY  SERVING  THE  DISTRICT  OF EACH MEMBER OF THE STATE
LEGISLATURE IN WHOSE DISTRICT ANY PORTION  OF  THE  FACILITY  IS  TO  BE
LOCATED AS PROPOSED OR IN ANY ALTERNATIVE LOCATION LISTED;
  (VIII)  IN  THE  EVENT  THAT  SUCH  FACILITY OR ANY PORTION THEREOF AS
PROPOSED OR IN ANY ALTERNATE  LOCATION  LISTED  IS  LOCATED  WITHIN  THE
ADIRONDACK  PARK,  AS  DESCRIBED IN SUBDIVISION ONE OF SECTION 9-0101 OF
THE ENVIRONMENTAL CONSERVATION LAW, THE ADIRONDACK PARK AGENCY; AND
  (B) A NOTICE OF SUCH APPLICATION ON (I) PERSONS  RESIDING  IN  MUNICI-
PALITIES  ENTITLED  TO  RECEIVE A COPY OF THE APPLICATION UNDER SUBPARA-
GRAPH (I) OF PARAGRAPH (A) OF THIS SUBDIVISION.  SUCH  NOTICE  SHALL  BE
GIVEN BY THE PUBLICATION OF A SUMMARY OF THE APPLICATION AND THE DATE ON
OR ABOUT WHICH IT WILL BE FILED, TO BE PUBLISHED UNDER REGULATIONS TO BE
PROMULGATED  BY THE BOARD, IN SUCH FORM AND IN SUCH NEWSPAPER OR NEWSPA-
PERS AS WILL SERVE SUBSTANTIALLY TO INFORM THE PUBLIC OF  SUCH  APPLICA-
TION;
  (II)  EACH  MEMBER  OF  THE  STATE  LEGISLATURE  IN WHOSE DISTRICT ANY
PORTION OF THE FACILITY IS TO BE LOCATED AS PROPOSED OR IN ANY  ALTERNA-
TIVE LOCATION LISTED; AND
  (III)  PERSONS  WHO  HAVE  FILED A STATEMENT WITH THE BOARD WITHIN THE
PAST TWELVE MONTHS THAT THEY WISH TO RECEIVE ALL SUCH NOTICES CONCERNING
FACILITIES IN THE AREA IN  WHICH  THE  FACILITY  IS  TO  BE  LOCATED  AS
PROPOSED OR IN ANY ALTERNATIVE LOCATION LISTED.
  3.  INADVERTENT  FAILURE  OF  SERVICE  ON  ANY  OF THE MUNICIPALITIES,
PERSONS, AGENCIES, BODIES OR COMMISSIONS NAMED  IN  SUBDIVISION  TWO  OF
THIS  SECTION  SHALL  NOT BE JURISDICTIONAL AND MAY BE CURED PURSUANT TO
REGULATIONS OF THE BOARD DESIGNED TO AFFORD SUCH PERSONS ADEQUATE NOTICE
TO ENABLE THEM TO PARTICIPATE EFFECTIVELY IN THE  PROCEEDING.  IN  ADDI-
TION, THE BOARD MAY, AFTER FILING, REQUIRE THE APPLICANT TO SERVE NOTICE
OF THE APPLICATION OR COPIES THEREOF OR BOTH UPON SUCH OTHER PERSONS AND
FILE PROOF THEREOF AS THE BOARD MAY DEEM APPROPRIATE.
  4.  THE  BOARD  SHALL PRESCRIBE THE FORM AND CONTENT OF AN APPLICATION
FOR AN AMENDMENT OF A CERTIFICATE TO BE ISSUED HEREUNDER. NOTICE OF SUCH
AN APPLICATION SHALL BE GIVEN AS SET FORTH IN SUBDIVISION  TWO  OF  THIS
SECTION.
  5. IF A REASONABLE ALTERNATIVE LOCATION OR, WITH RESPECT TO A FACILITY
THAT  HAS NOT BEEN SELECTED PURSUANT TO AN APPROVED PROCUREMENT PROCESS,
A REASONABLE ALTERNATIVE ENERGY SUPPLY SOURCE OR DEMAND REDUCING MEASURE
NOT LISTED IN THE APPLICATION IS PROPOSED IN THE CERTIFICATION  PROCEED-
ING,  NOTICE OF SUCH PROPOSED ALTERNATIVE SHALL BE GIVEN AS SET FORTH IN
SUBDIVISION TWO OF THIS SECTION.
  6. (A) EACH APPLICATION SHALL BE ACCOMPANIED BY A  FEE  IN  AN  AMOUNT
EQUAL  TO ONE THOUSAND DOLLARS FOR EACH THOUSAND KILOWATTS OF GENERATING
CAPACITY OF THE SUBJECT FACILITY, BUT NO MORE THAN THREE  HUNDRED  THOU-
SAND  DOLLARS  WITH  SUCH  AMOUNT  TO  INCLUDE  THE  PRE-APPLICATION FEE
PROVIDED FOR IN SUBDIVISION TWO OF SECTION ONE  HUNDRED  SIXTY-THREE  OF
THIS  ARTICLE,  TO  BE  DEPOSITED IN THE INTERVENOR ACCOUNT, ESTABLISHED
PURSUANT TO SECTION NINETY-NINE-T  OF  THE  STATE  FINANCE  LAW,  TO  BE
DISBURSED  AT  THE  BOARD'S  DIRECTION,  TO  DEFRAY EXPENSES INCURRED BY
MUNICIPAL AND OTHER LOCAL PARTIES TO THE PROCEEDING  (EXCEPT  A  MUNICI-
PALITY  WHICH IS THE APPLICANT) FOR EXPERT WITNESS, LEGAL AND CONSULTANT
FEES. IF AT ANY TIME SUBSEQUENT TO THE FILING OF  THE  APPLICATION,  THE
APPLICATION  IS AMENDED IN A MANNER THAT WARRANTS SUBSTANTIAL ADDITIONAL
SCRUTINY, THE BOARD MAY REQUIRE  AN  ADDITIONAL  INTERVENOR  FEE  IN  AN

S. 1045                            12

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 FUND, AFTER THE BOARD HAS ISSUED ITS DECI-
SION ON AN APPLICATION UNDER THIS ARTICLE AND THE TIME FOR APPLYING  FOR
A  REHEARING  AND  JUDICIAL REVIEW HAS EXPIRED, SHALL BE RETURNED TO THE
APPLICANT.
  (B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO  THE  CONTRARY,  THE
BOARD  SHALL  PROVIDE BY RULES AND REGULATIONS FOR THE MANAGEMENT OF THE
INTERVENOR FUND AND FOR DISBURSEMENTS FROM THE  FUND,  WHICH  RULES  AND
REGULATIONS SHALL BE CONSISTENT WITH THE PURPOSE OF THIS SECTION TO MAKE
AVAILABLE  TO  MUNICIPAL PARTIES AT LEAST ONE-HALF OF THE AMOUNT OF THIS
INTERVENOR FUND AND FOR USES SPECIFIED IN PARAGRAPH (A) OF THIS SUBDIVI-
SION. IN ADDITION, THE BOARD SHALL PROVIDE OTHER  LOCAL  PARTIES  UP  TO
ONE-HALF  OF  THE AMOUNT OF THE INTERVENOR FUND; PROVIDED, HOWEVER, THAT
THE BOARD SHALL ASSURE  THAT  THE  PURPOSES  FOR  WHICH  MONEYS  IN  THE
INTERVENOR FUND WILL BE EXPENDED WILL CONTRIBUTE TO AN INFORMED DECISION
AS  TO  THE APPROPRIATENESS OF THE SITE AND FACILITY AND ARE MADE AVAIL-
ABLE ON AN EQUITABLE BASIS IN A MANNER WHICH  FACILITATES  BROAD  PUBLIC
PARTICIPATION.
  7.  AFTER PUBLIC NOTICE AND AN OPPORTUNITY TO COMMENT, THE BOARD SHALL
PROMULGATE SUCH REGULATIONS AS  MAY  BE  NECESSARY  TO  IMPLEMENT,  WITH
RESPECT  TO MAJOR ELECTRIC GENERATING FACILITIES, PERMIT PROGRAMS ESTAB-
LISHED PURSUANT TO REQUIREMENTS OF THE  FEDERAL  CLEAN  WATER  ACT,  THE
FEDERAL CLEAN AIR ACT AND THE FEDERAL RESOURCE CONSERVATION AND RECOVERY
ACT.  SUCH  REGULATIONS  SHALL  BE  CONSISTENT  WITH  ANY  STATE PROGRAM
REQUIREMENTS ESTABLISHED BY THE UNITED STATES  ENVIRONMENTAL  PROTECTION
AGENCY FOR STATE PARTICIPATION IN SUCH POLLUTANT CONTROL PERMIT PROGRAMS
AND  SHALL  INCLUDE  PROCEDURES  FOR EARLY CONSIDERATION AND SUCH PROMPT
DETERMINATION AS  IS  FEASIBLE  OF  ISSUES  ARISING  UNDER  SUCH  PERMIT
PROGRAMS.
  S  165. HEARING SCHEDULE. 1. AFTER THE RECEIPT OF AN APPLICATION FILED
PURSUANT TO SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE,  THE  CHAIR-
PERSON  OF THE BOARD SHALL, WITHIN SIXTY DAYS OF SUCH RECEIPT, DETERMINE
WHETHER THE APPLICATION COMPLIES WITH SUCH SECTION AND UPON FINDING THAT
THE APPLICATION SO COMPLIES, FIX A DATE FOR THE COMMENCEMENT OF A PUBLIC
HEARING. UPON A DETERMINATION THAT AN APPLICATION COMPLIES WITH  SECTION
ONE  HUNDRED  SIXTY-FOUR OF THIS ARTICLE THE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION MAY INITIATE A REVIEW PURSUANT TO  FEDERALLY  DELEGATED  OR
APPROVED  ENVIRONMENTAL PERMITTING AUTHORITY. THE APPLICANT SHALL SUBMIT
TO THE DEPARTMENT  OF  STATE  COPIES  OF  THE  APPLICATION,  CONSISTENCY
CERTIFICATION  AND NECESSARY DATA AND INFORMATION SUFFICIENT TO INITIATE
A REVIEW PURSUANT TO THE FEDERAL COASTAL ZONE  MANAGEMENT  ACT  AND  ITS
REGULATIONS.  THE CHAIRPERSON OF THE BOARD MAY REQUIRE THE FILING OF ANY
ADDITIONAL INFORMATION NEEDED TO SUPPLEMENT  AN  APPLICATION  BEFORE  OR
DURING THE HEARINGS.
  2.  WITHIN  A  REASONABLE  TIME  AFTER  THE DATE HAS BEEN FIXED BY THE
CHAIRPERSON FOR COMMENCEMENT OF A PUBLIC HEARING, THE PRESIDING EXAMINER
SHALL HOLD A PRE-HEARING CONFERENCE TO EXPEDITE THE ORDERLY CONDUCT  AND
DISPOSITION  OF  THE  HEARING,  TO  SPECIFY THE ISSUES, TO OBTAIN STIPU-
LATIONS AS TO MATTERS NOT DISPUTED, AND TO DEAL WITH SUCH OTHER  MATTERS
AS  THE  PRESIDING  EXAMINER  MAY DEEM PROPER. THEREAFTER, THE PRESIDING
EXAMINER SHALL ISSUE AN ORDER IDENTIFYING THE ISSUES TO BE ADDRESSED  BY
THE  PARTIES,  PROVIDED,  HOWEVER,  THAT  NO  SUCH  ORDER SHALL PRECLUDE
CONSIDERATION OF ISSUES WHICH WARRANT CONSIDERATION IN ORDER TO  DEVELOP
AN ADEQUATE RECORD AS DETERMINED BY AN ORDER OF THE BOARD.

S. 1045                            13

  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 HELD OF SUFFICIENT DURATION TO PROVIDE ADEQUATE OPPOR-
TUNITY  TO  HEAR DIRECT EVIDENCE AND REBUTTAL EVIDENCE FROM RESIDENTS OF
THE AREA AFFECTED BY THE MAJOR ELECTRIC GENERATING FACILITY.
  4. (A) EXCEPT AS  PROVIDED  IN  PARAGRAPH  (B)  OF  THIS  SUBDIVISION,
PROCEEDINGS  ON  AN  APPLICATION  SHALL BE COMPLETED IN ALL RESPECT IN A
MANNER CONSISTENT WITH FEDERALLY  DELEGATED  OR  APPROVED  ENVIRONMENTAL
PERMITTING  AUTHORITY,  INCLUDING  A FINAL DECISION BY THE BOARD, WITHIN
TWELVE MONTHS FROM THE DATE OF A DETERMINATION BY THE  CHAIRPERSON  THAT
AN  APPLICATION  COMPLIES  WITH  SECTION  ONE HUNDRED SIXTY-FOUR OF THIS
ARTICLE; PROVIDED, HOWEVER, FOR FACILITIES  OVER  TWO  HUNDRED  THOUSAND
KILOWATTS  WHICH HAVE NOT BEEN SELECTED PURSUANT TO AN APPROVED PROCURE-
MENT PROCESS THE BOARD MAY EXTEND THE DEADLINE IN EXTRAORDINARY  CIRCUM-
STANCES  BY  NO  MORE  THAN SIX MONTHS IN ORDER TO GIVE CONSIDERATION TO
SPECIFIC ISSUES NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE BOARD  MUST
RENDER  A  FINAL DECISION ON THE APPLICATION BY THE AFOREMENTIONED DEAD-
LINES UNLESS SUCH DEADLINES ARE WAIVED BY THE APPLICANT. IF, AT ANY TIME
SUBSEQUENT TO THE COMMENCEMENT OF THE HEARING, THERE IS A  MATERIAL  AND
SUBSTANTIAL  AMENDMENT TO THE APPLICATION, THE DEADLINES MAY BE EXTENDED
BY NO MORE THAN SIX MONTHS, UNLESS SUCH DEADLINE IS WAIVED BY THE APPLI-
CANT, TO CONSIDER SUCH AMENDMENT.
  (B) PROCEEDINGS ON AN APPLICATION BY AN OWNER  OF  AN  EXISTING  MAJOR
ELECTRIC  GENERATING FACILITY TO MODIFY SUCH EXISTING FACILITY OR SITE A
NEW MAJOR ELECTRIC GENERATING FACILITY ADJACENT OR  CONTIGUOUS  TO  SUCH
EXISTING  FACILITY,  SHALL  BE  COMPLETED  IN  ALL  RESPECTS IN A MANNER
CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL PERMITTING
AUTHORITY, INCLUDING A FINAL DECISION BY THE BOARD,  WITHIN  SIX  MONTHS
FROM  THE  DATE OF A DETERMINATION BY THE CHAIRPERSON THAT SUCH APPLICA-
TION COMPLIES WITH SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, WHEN-
EVER SUCH APPLICATION DEMONSTRATES THAT THE OPERATION  OF  THE  MODIFIED
FACILITY  OR  OF  THE  EXISTING FACILITY AND NEW FACILITY IN COMBINATION
WOULD RESULT IN: (I) A DECREASE OF NOT LESS THAN SEVENTY-FIVE PERCENT IN
THE RATE OF EMISSIONS OF EACH OF THE FOLLOWING ON  A  POUNDS  PER  MEGA-
WATT-HOUR  BASIS:  (A)  OXIDES OF NITROGEN, (B) OXIDES OF SULFUR AND (C)
PARTICULATE MATTER OF 2.5 MICRONS OR GREATER. THE PERCENTAGE  REDUCTIONS
IN THE RATE OF SUCH EMISSIONS SHALL BE CALCULATED BY COMPARING THE ANNU-
ALIZED  POTENTIAL  TO EMIT OF THE EXISTING FACILITY (EXPRESSED IN POUNDS
PER MEGAWATT-HOUR) AT THE TIME THE APPLICATION  UNDER  THIS  ARTICLE  IS
FILED  WITH  THE CHAIRPERSON AND THE FUTURE ANNUALIZED POTENTIAL TO EMIT
OF THE MODIFIED FACILITY OR OF THE COMBINATION OF THE EXISTING  AND  NEW
FACILITY  (EXPRESSED  IN POUNDS PER MEGAWATT-HOUR AND BASED UPON REASON-
ABLY EXPECTED OPERATING CONDITIONS) PROPOSED  IN  THE  APPLICATION;  AND
(II)  INSTALLATION  OF AIR COOLED CONDENSERS OR INSTALLATION OF EVAPORA-
TIVE COOLING WATER INTAKE SYSTEMS OR SUCH  OTHER  TECHNOLOGIES  FOR  THE
MODIFIED  FACILITY  OR  FOR  THE EXISTING AND NEW FACILITY THAT WOULD BE
DESIGNED TO WITHDRAW NO MORE THAN FIFTEEN GALLONS PER MINUTE  PER  MEGA-
WATT  OF  TOTAL  PLANT GENERATING CAPACITY FOR COMBINED CYCLE COMBUSTION
TURBINE  TECHNOLOGY  PLANTS,  FROM  A  SOURCE  WATER  BODY  FOR  COOLING
PURPOSES.  THE APPLICANT SHALL SUPPLY THE DETAILS OF THE ANALYSIS IN THE
APPLICATION AND SUCH SUPPORTING INFORMATION, AS MAY BE REQUESTED BY  THE
BOARD  OR,  IN  THE EXERCISE OF FEDERALLY DELEGATED OR APPROVED ENVIRON-
MENTAL PERMITTING AUTHORITY, THE DEPARTMENT OF  ENVIRONMENTAL  CONSERVA-
TION, NECESSARY TO SHOW COMPLIANCE WITH THE REQUIREMENTS OF SUBPARAGRAPH
(I)  OF  THIS  PARAGRAPH. FOR FACILITIES OVER TWO HUNDRED THOUSAND KILO-

S. 1045                            14

WATTS WHICH HAVE NOT BEEN SELECTED PURSUANT TO AN  APPROVED  PROCUREMENT
PROCESS THE BOARD MAY EXTEND THE DEADLINE IN EXTRAORDINARY CIRCUMSTANCES
BY  NO MORE THAN THREE MONTHS IN ORDER TO GIVE CONSIDERATION TO SPECIFIC
ISSUES NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE BOARD SHALL RENDER A
FINAL DECISION ON THE APPLICATION BY THE AFOREMENTIONED DEADLINES UNLESS
SUCH  DEADLINES  ARE WAIVED BY THE APPLICANT. IF, AT ANY TIME SUBSEQUENT
TO THE COMMENCEMENT OF THE HEARING, THERE IS A MATERIAL AND  SUBSTANTIAL
AMENDMENT  TO  THE APPLICATION, THE DEADLINES MAY BE EXTENDED BY NO MORE
THAN THREE MONTHS, UNLESS SUCH DEADLINE IS WAIVED BY THE  APPLICANT,  TO
CONSIDER SUCH AMENDMENT.
  5.  ON  AN  APPLICATION  FOR AN AMENDMENT OF A CERTIFICATE PROPOSING A
CHANGE IN THE FACILITY LIKELY TO RESULT IN ANY MATERIAL INCREASE IN  ANY
ENVIRONMENTAL  IMPACT  OF  THE  FACILITY  OR A SUBSTANTIAL CHANGE IN THE
LOCATION OF ALL OR A PORTION OF SUCH FACILITY, A HEARING SHALL  BE  HELD
IN THE SAME MANNER AS A HEARING ON AN APPLICATION FOR A CERTIFICATE. THE
BOARD  SHALL  PROMULGATE RULES, REGULATIONS AND STANDARDS UNDER WHICH IT
SHALL DETERMINE WHETHER HEARINGS ARE REQUIRED UNDER THIS SUBDIVISION AND
SHALL MAKE SUCH DETERMINATIONS.
  S 166. PARTIES TO A CERTIFICATION PROCEEDING. 1. THE  PARTIES  TO  THE
CERTIFICATION PROCEEDINGS SHALL INCLUDE:
  (A) THE APPLICANT;
  (B)  THE  DEPARTMENT OF ENVIRONMENTAL CONSERVATION, WHICH SHALL IN ANY
SUCH PROCEEDING PRESENT EXPERT TESTIMONY AND INFORMATION CONCERNING  THE
POTENTIAL ENVIRONMENTAL IMPACTS OF THE PROPOSED FACILITY, AND, AS APPRO-
PRIATE,  ANY ALTERNATE FACILITY OR ENERGY SOURCE ON THE ENVIRONMENT, AND
WHETHER AND HOW SUCH FACILITY WOULD COMPLY  WITH  APPLICABLE  STATE  AND
FEDERAL ENVIRONMENTAL PROTECTION LAWS, STANDARDS, RULES AND REGULATIONS;
  (C) THE DEPARTMENT OF ECONOMIC DEVELOPMENT;
  (D) THE DEPARTMENT OF HEALTH;
  (E) THE DEPARTMENT OF AGRICULTURE AND MARKETS;
  (F) THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY;
  (G)  THE  DEPARTMENT  OF  STATE,  WHICH SHALL BE AVAILABLE IN ANY SUCH
PROCEEDING TO PRESENT EXPERT TESTIMONY AND  INFORMATION  CONCERNING  THE
COMPATIBILITY  OF  THE  PROPOSED FACILITY WITH FEDERAL AND STATE COASTAL
ZONE MANAGEMENT LAWS, REGULATIONS, AND POLICIES;
  (H) THE OFFICE OF PARKS, RECREATION AND HISTORIC  PRESERVATION,  WHICH
SHALL  BE  AVAILABLE  IN ANY SUCH PROCEEDING TO PRESENT EXPERT TESTIMONY
AND INFORMATION CONCERNING THE IMPACTS OF THE PROPOSED FACILITY ON STATE
PARKLANDS AND  ARCHEOLOGICAL,  HISTORICAL,  CULTURAL,  AND  RECREATIONAL
RESOURCES UNDER THE SUPERVISION OF THE OFFICE;
  (I)  WHERE  THE  FACILITY  OR  ANY  PORTION THEREOF OR ANY ALTERNATIVE
PROPOSED TO BE LOCATED WITHIN A CITY WITH A POPULATION OF ONE MILLION OR
MORE, THE APPROPRIATE ENVIRONMENTAL PROTECTION AGENCY OF SUCH CITY;
  (J) WHERE THE FACILITY OR ANY PORTION THEREOF OR OF ANY  ALTERNATE  IS
TO BE LOCATED WITH THE ADIRONDACK PARK, AS DEFINED IN SUBDIVISION ONE OF
SECTION  9-0101  OF  THE  ENVIRONMENTAL CONSERVATION LAW, THE ADIRONDACK
PARK AGENCY;
  (K) A MUNICIPALITY ENTITLED TO RECEIVE A COPY OF THE APPLICATION UNDER
PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION ONE  HUNDRED  SIXTY-FOUR  OF
THIS  ARTICLE, IF IT HAS FILED WITH THE BOARD A NOTICE OF INTENT TO BE A
PARTY, WITHIN FORTY-FIVE DAYS AFTER THE  DATE  GIVEN  IN  THE  PUBLISHED
NOTICE  AS  THE DATE FOR THE FILING OF THE APPLICATION; ANY MUNICIPALITY
ENTITLED TO BE A PARTY HEREIN AND SEEKING TO  ENFORCE  ANY  LOCAL  ORDI-
NANCE,  LAW, RESOLUTION OR OTHER ACTION OR REGULATION OTHERWISE APPLICA-
BLE SHALL PRESENT EVIDENCE IN SUPPORT THEREOF OR SHALL  BE  BARRED  FROM
THE ENFORCEMENT THEREOF;

S. 1045                            15

  (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 NONPROFIT CORPORATION OR ASSOCIATION, FORMED IN  WHOLE  OR  IN
PART  TO PROMOTE CONSERVATION OR NATURAL BEAUTY, TO PROTECT THE ENVIRON-
MENT, PERSONAL HEALTH OR OTHER BIOLOGICAL VALUES, TO PRESERVE HISTORICAL
SITES, TO PROMOTE CONSUMER INTERESTS, TO REPRESENT COMMERCIAL AND INDUS-
TRIAL GROUPS OR TO PROMOTE THE ORDERLY DEVELOPMENT OF ANY AREA IN  WHICH
THE  FACILITY  IS TO BE LOCATED, IF IT HAS FILED WITH THE BOARD A NOTICE
OF INTENT TO BECOME A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN
IN THE PUBLISHED NOTICE AS THE DATE FOR FILING OF THE APPLICATION;
  (N) ANY OTHER MUNICIPALITY OR RESIDENT OF  SUCH  MUNICIPALITY  LOCATED
WITHIN  A FIVE MILE RADIUS OF SUCH PROPOSED FACILITY, IF IT OR THE RESI-
DENT HAS FILED WITH THE BOARD A NOTICE OF  INTENT  TO  BECOME  A  PARTY,
WITHIN  FORTY-FIVE  DAYS AFTER THE DATE GIVEN IN THE PUBLISHED NOTICE AS
THE DATE FOR FILING OF THE APPLICATION;
  (O) ANY OTHER MUNICIPALITY OR RESIDENT OF SUCH MUNICIPALITY WHICH  THE
BOARD  IN  ITS  DISCRETION  FINDS  TO HAVE AN INTEREST IN THE PROCEEDING
BECAUSE OF THE POTENTIAL ENVIRONMENTAL EFFECTS ON SUCH  MUNICIPALITY  OR
PERSON,  IF THE MUNICIPALITY OR PERSON HAS FILED WITH THE BOARD A NOTICE
OF INTENT TO BECOME A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN
IN THE PUBLISHED NOTICE AS THE  DATE  FOR  FILING  OF  THE  APPLICATION,
TOGETHER  WITH  AN EXPLANATION OF THE POTENTIAL ENVIRONMENTAL EFFECTS ON
SUCH MUNICIPALITY OR PERSON; AND
  (P) SUCH OTHER PERSONS OR ENTITIES AS THE BOARD MAY AT ANY  TIME  DEEM
APPROPRIATE,  WHO  MAY  PARTICIPATE  IN  ALL  SUBSEQUENT  STAGES  OF THE
PROCEEDING.
  2. THE DEPARTMENT SHALL DESIGNATE  MEMBERS  OF  ITS  STAFF  WHO  SHALL
PARTICIPATE AS A PARTY IN PROCEEDINGS UNDER THIS ARTICLE.
  3.  ANY  PERSON  MAY  MAKE  A  LIMITED APPEARANCE IN THE PROCEEDING BY
FILING A STATEMENT OF HIS OR HER INTENT TO LIMIT HIS OR  HER  APPEARANCE
IN  WRITING  AT  ANY  TIME PRIOR TO THE COMMENCEMENT OF THE HEARING. ALL
PAPERS AND MATTERS FILED BY A PERSON MAKING A LIMITED  APPEARANCE  SHALL
BECOME  PART  OF THE RECORD. NO PERSON MAKING A LIMITED APPEARANCE SHALL
BE A PARTY OR  SHALL  HAVE  THE  RIGHT  TO  PRESENT  ORAL  TESTIMONY  OR
CROSS-EXAMINE WITNESSES OR PARTIES.
  4.  THE BOARD MAY FOR GOOD CAUSE SHOWN, PERMIT A MUNICIPALITY OR OTHER
PERSON ENTITLED TO BECOME A PARTY UNDER SUBDIVISION ONE OF THIS SECTION,
BUT WHICH HAS FAILED TO FILE THE REQUISITE NOTICE OF INTENT  WITHIN  THE
TIME  REQUIRED,  TO BECOME A PARTY, AND TO PARTICIPATE IN ALL SUBSEQUENT
STAGES OF THE PROCEEDINGS.
  S 167. CONDUCT OF HEARING. 1. (A) THE HEARING SHALL BE CONDUCTED IN AN
EXPEDITIOUS MANNER BY A PRESIDING EXAMINER APPOINTED BY THE  DEPARTMENT.
AN  ASSOCIATE  HEARING  EXAMINER SHALL BE APPOINTED BY THE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION PRIOR TO THE DATE SET FOR COMMENCEMENT OF THE
PUBLIC HEARING. THE ASSOCIATE EXAMINER  SHALL  ATTEND  ALL  HEARINGS  AS
SCHEDULED BY THE PRESIDING EXAMINER AND SHALL ASSIST THE PRESIDING EXAM-
INER IN INQUIRING INTO AND CALLING FOR TESTIMONY CONCERNING RELEVANT AND
MATERIAL  MATTERS.  THE CONCLUSIONS AND RECOMMENDATIONS OF THE ASSOCIATE
EXAMINER SHALL BE  INCORPORATED  IN  THE  RECOMMENDED  DECISION  OF  THE
PRESIDING  EXAMINER,  UNLESS  THE ASSOCIATE EXAMINER PREFERS TO SUBMIT A
SEPARATE REPORT OF DISSENTING OR CONCURRING CONCLUSIONS AND  RECOMMENDA-
TIONS.  IN THE EVENT THAT THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION

S. 1045                            16

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 HEARING EXAMINER'S CONCLUSIONS AND RECOM-
MENDATIONS SHALL, INSOFAR AS IS CONSISTENT WITH FEDERALLY  DELEGATED  OR
APPROVED  ENVIRONMENTAL  PERMITTING AUTHORITY, PROVIDE THE BASIS FOR THE
DECISION OF THE COMMISSIONER OF ENVIRONMENTAL  CONSERVATION  WHETHER  OR
NOT TO ISSUE SUCH PERMITS.
  (B)  WHEN THE FACILITY IS PROPOSED TO BE LOCATED IN A COASTAL AREA AND
FEDERAL AUTHORIZATION IS REQUIRED, A COASTAL RESOURCE  SPECIALIST  SHALL
BE  DESIGNATED  BY  THE  DEPARTMENT  OF  STATE PRIOR TO THE DATE SET FOR
COMMENCEMENT OF THE PUBLIC  HEARING.  THE  COASTAL  RESOURCE  SPECIALIST
SHALL  ATTEND  ALL  HEARINGS AS SCHEDULED BY THE PRESIDING AND ASSOCIATE
EXAMINERS AND SHALL ASSIST THE  PRESIDING  AND  ASSOCIATE  EXAMINERS  IN
INQUIRING INTO AND CALLING FOR TESTIMONY CONCERNING RELEVANT AND MATERI-
AL  MATTERS.  IN  THE  EVENT  THAT THE SECRETARY OF STATE IS REQUIRED TO
RENDER A CONSISTENCY DETERMINATION PURSUANT TO THE FEDERAL COASTAL  ZONE
MANAGEMENT  ACT, THE RECORD IN THE PROCEEDINGS SHALL PROVIDE INFORMATION
ON WHICH TO BASE THE DETERMINATION OF THE SECRETARY OF STATE WHETHER  OR
NOT TO CONCUR WITH THE APPLICANT'S CERTIFICATION.
  (C)  THE  TESTIMONY PRESENTED AT A HEARING MAY BE PRESENTED IN WRITING
OR ORALLY. THE BOARD MAY REQUIRE ANY  STATE  AGENCY  TO  PROVIDE  EXPERT
TESTIMONY  ON  SPECIFIC  SUBJECTS WHERE ITS PERSONNEL HAVE THE REQUISITE
EXPERTISE AND SUCH TESTIMONY IS CONSIDERED NECESSARY TO THE  DEVELOPMENT
OF  AN ADEQUATE RECORD. A RECORD SHALL BE MADE OF THE HEARING AND OF ALL
TESTIMONY  TAKEN  AND  THE  CROSS-EXAMINATIONS  THEREON.  THE  RULES  OF
EVIDENCE  APPLICABLE  TO PROCEEDINGS BEFORE A COURT SHALL NOT APPLY. THE
PRESIDING EXAMINER MAY PROVIDE FOR THE CONSOLIDATION  OF  THE  REPRESEN-
TATION  OF  PARTIES,  OTHER THAN GOVERNMENTAL BODIES OR AGENCIES, HAVING
SIMILAR INTERESTS. IN THE CASE OF SUCH A  CONSOLIDATION,  THE  RIGHT  TO
COUNSEL  OF  ITS  OWN  CHOOSING  SHALL BE PRESERVED TO EACH PARTY TO THE
PROCEEDING PROVIDED THAT THE CONSOLIDATED GROUP MAY BE  REQUIRED  TO  BE
HEARD THROUGH SUCH REASONABLE NUMBER OF COUNSEL AS THE PRESIDING EXAMIN-
ER SHALL DETERMINE. APPROPRIATE REGULATIONS SHALL BE ISSUED BY THE BOARD
TO PROVIDE FOR PRE-HEARING DISCOVERY PROCEDURES BY PARTIES TO A PROCEED-
ING,  CONSOLIDATION  OF  THE REPRESENTATION OF PARTIES, THE EXCLUSION OF
IRRELEVANT, REPETITIVE, REDUNDANT OR IMMATERIAL EVIDENCE, AND THE REVIEW
OF RULINGS BY PRESIDING EXAMINERS.
  (D) WHEN THE PROPOSED FACILITY IS TO BE LOCATED IN A  POTENTIAL  ENVI-
RONMENTAL  JUSTICE  AREA,  AS DEFINED IN THE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION POLICY DIRECTIVE CP-29, ENVIRONMENTAL JUSTICE  AND  PERMIT-
TING,  AN  ENVIRONMENTAL  JUSTICE  SPECIALIST SHALL BE DESIGNATED BY THE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION  PRIOR  TO  THE  DATE  SET  FOR
COMMENCEMENT OF THE PUBLIC HEARING. THE ENVIRONMENTAL JUSTICE SPECIALIST
SHALL  ATTEND  ALL  HEARINGS AS SCHEDULED BY THE PRESIDING AND ASSOCIATE
EXAMINERS AND SHALL ASSIST THE  PRESIDING  AND  ASSOCIATE  EXAMINERS  IN
INQUIRING INTO AND CALLING FOR TESTIMONY CONCERNING RELEVANT AND MATERI-
AL MATTERS.
  2.  A  COPY  OF THE RECORD SHALL BE MADE AVAILABLE BY THE BOARD AT ALL
REASONABLE TIMES FOR EXAMINATION BY THE PUBLIC.
  3. THE CHAIRPERSON OF THE BOARD MAY ENTER INTO AN  AGREEMENT  WITH  AN
AGENCY OR DEPARTMENT OF THE UNITED STATES HAVING CONCURRENT JURISDICTION
OVER  ALL OR PART OF THE LOCATION, CONSTRUCTION, OR OPERATION OF A MAJOR
ELECTRIC GENERATING FACILITY SUBJECT TO THIS  ARTICLE  WITH  RESPECT  TO
PROVIDING FOR JOINT PROCEDURES AND A JOINT HEARING OF COMMON ISSUES ON A

S. 1045                            17

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 NOTICE OF THE INTENT TO SUBMIT SUCH
TESTIMONY SHALL BE GIVEN WITHIN SUCH PERIOD AS THE BOARD SHALL PRESCRIBE
BY REGULATION, WHICH PERIOD SHALL BE NOT LESS THAN THIRTY NOR MORE  THAN
SIXTY  DAYS  AFTER THE COMMENCEMENT OF THE HEARING. NEVERTHELESS, IN ITS
DISCRETION, THE BOARD  MAY  THEREAFTER  CAUSE  TO  BE  CONSIDERED  OTHER
REASONABLE  AND AVAILABLE LOCATIONS AND, WITH RESPECT TO A FACILITY THAT
HAS NOT BEEN SELECTED  PURSUANT  TO  AN  APPROVED  PROCUREMENT  PROCESS,
ALTERNATE  ENERGY SUPPLY SOURCES AND, WHERE APPROPRIATE, DEMAND-REDUCING
MEASURES.
  5. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION FOUR OF THIS SECTION,
THE BOARD MAY MAKE A PROMPT DETERMINATION  ON  THE  SUFFICIENCY  OF  THE
APPLICANT'S  CONSIDERATION  AND EVALUATION OF REASONABLE ALTERNATIVES TO
ITS PROPOSED TYPE OF MAJOR ELECTRIC GENERATING FACILITY AND ITS PROPOSED
LOCATION FOR THAT FACILITY, AS REQUIRED PURSUANT  TO  PARAGRAPH  (B)  OF
SUBDIVISION  ONE  OF  SECTION  ONE  HUNDRED  SIXTY-FOUR OF THIS ARTICLE,
BEFORE RESOLUTION OF OTHER ISSUES PERTINENT TO A FINAL DETERMINATION  ON
THE  APPLICATION;  PROVIDED,  HOWEVER,  THAT ALL INTERESTED PARTIES HAVE
REASONABLE OPPORTUNITY TO QUESTION AND PRESENT EVIDENCE IN SUPPORT OF OR
AGAINST THE MERITS OF THE APPLICANT'S CONSIDERATION  AND  EVALUATION  OF
SUCH  ALTERNATIVES, AS REQUIRED PURSUANT TO PARAGRAPH (B) OF SUBDIVISION
ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, SO THAT THE BOARD
IS ABLE TO DECIDE,  IN  THE  FIRST  INSTANCE,  WHETHER  THE  APPLICANT'S
PROPOSAL IS PREFERABLE TO ALTERNATIVES.
  S  168. BOARD DECISIONS. 1. THE BOARD SHALL MAKE THE FINAL DECISION ON
AN APPLICATION UNDER THIS ARTICLE FOR A CERTIFICATE OR AMENDMENT  THERE-
OF,  UPON THE RECORD MADE BEFORE THE PRESIDING EXAMINER, AFTER RECEIVING
BRIEFS AND EXCEPTIONS TO THE RECOMMENDED DECISION OF SUCH  EXAMINER  AND
TO  THE  REPORT  OF  THE ASSOCIATE EXAMINER, AND AFTER HEARING SUCH ORAL
ARGUMENT AS THE BOARD SHALL DETERMINE. EXCEPT FOR GOOD  CAUSE  SHOWN  TO
THE SATISFACTION OF THE BOARD, A DETERMINATION UNDER SUBDIVISION FIVE OF
SECTION  ONE  HUNDRED  SIXTY-SEVEN  OF THIS ARTICLE THAT THE APPLICANT'S
PROPOSAL IS PREFERABLE TO ALTERNATIVES SHALL BE FINAL. SUCH  A  DETERMI-
NATION  SHALL  BE  SUBJECT  TO REHEARING AND REVIEW ONLY AFTER THE FINAL
DECISION ON AN APPLICATION IS RENDERED.
  2. THE BOARD SHALL RENDER A DECISION UPON THE RECORD EITHER  TO  GRANT
OR  DENY  THE  APPLICATION AS FILED OR TO CERTIFY THE FACILITY UPON SUCH
TERMS, CONDITIONS, LIMITATIONS OR MODIFICATIONS OF THE  CONSTRUCTION  OR
OPERATION  OF  THE FACILITY AS THE BOARD MAY DEEM APPROPRIATE. THE BOARD
SHALL ISSUE, WITH ITS DECISION, AN OPINION STATING IN FULL  ITS  REASONS
FOR  ITS  DECISION. THE BOARD SHALL ISSUE AN ORDER UPON THE DECISION AND
THE OPINION EMBODYING THE TERMS AND CONDITIONS THEREOF IN FULL.  FOLLOW-
ING ANY REHEARING AND ANY JUDICIAL REVIEW OF THE BOARD'S  DECISION,  THE
BOARD'S  JURISDICTION OVER AN APPLICATION SHALL CEASE, PROVIDED HOWEVER,
THAT THE BOARD EXCLUSIVE OF THE AD HOC MEMBERS, SHALL  RETAIN  JURISDIC-
TION  WITH  RESPECT  TO  THE  AMENDMENT,  SUSPENSION  OR REVOCATION OF A
CERTIFICATE.  THE  COMMISSION  SHALL  MONITOR,  ENFORCE  AND  ADMINISTER
COMPLIANCE WITH ANY TERMS AND CONDITIONS SET FORTH IN THE BOARD'S ORDER.
THE  BOARD  SHALL NOT GRANT A CERTIFICATE FOR THE CONSTRUCTION OR OPERA-
TION OF A MAJOR ELECTRIC GENERATING FACILITY, EITHER AS PROPOSED  OR  AS
MODIFIED BY THE BOARD, UNLESS IT SHALL FIRST FIND AND DETERMINE:

S. 1045                            18

  (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, AIR AND WATER  QUALI-
TY,  INCLUDING,  THE  CUMULATIVE  AIR  AND  ENVIRONMENTAL IMPACTS OF THE
PROPOSED FACILITY IN THE AGGREGATE WITH EXISTING EMISSION SOURCES ON THE
GEOGRAPHIC AREA IN WHICH THE FACILITY IS PROPOSED; AND THE POTENTIAL FOR
SIGNIFICANT DETERIORATION IN LOCAL AIR QUALITY FROM  PARTICULATE  MATTER
OF  2.5 MICRONS OR GREATER IN SIZE, WITH PARTICULAR ATTENTION TO FACILI-
TIES LOCATED IN AREAS DESIGNATED  AS  SEVERE  NON-ATTAINMENT,  FISH  AND
OTHER MARINE LIFE AND WILDLIFE;
  (C)  THAT THE FACILITY (I) MITIGATES TO THE EXTENT PRACTICABLE ADVERSE
ENVIRONMENTAL IMPACTS, CONSIDERING THE STATE  OF  AVAILABLE  TECHNOLOGY,
THE NATURE AND ECONOMICS OF SUCH REASONABLE ALTERNATIVES AS ARE REQUIRED
TO  BE  EXAMINED PURSUANT TO PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION
ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, THE INTEREST OF THE  STATE  WITH
RESPECT TO AESTHETICS, PRESERVATION OF HISTORIC SITES, FOREST AND PARKS,
FISH  AND  WILDLIFE,  VIABLE  AGRICULTURAL  LANDS,  AND  OTHER PERTINENT
CONSIDERATIONS, (II) IS COMPATIBLE WITH PUBLIC HEALTH AND SAFETY,  (III)
WILL NOT BE IN CONTRAVENTION OF WATER QUALITY STANDARDS OR BE INCONSIST-
ENT  WITH  APPLICABLE  REGULATIONS  OF  THE  DEPARTMENT OF ENVIRONMENTAL
CONSERVATION, OR IN CASE NO CLASSIFICATION HAS BEEN MADE OF THE  RECEIV-
ING WATERS ASSOCIATED WITH THE FACILITY, WILL NOT DISCHARGE ANY EFFLUENT
THAT  WILL BE UNDULY INJURIOUS TO THE PROPAGATION AND PROTECTION OF FISH
AND WILDLIFE, THE INDUSTRIAL DEVELOPMENT OF THE STATE, AND PUBLIC HEALTH
AND PUBLIC ENJOYMENT OF THE RECEIVING WATERS, (IV)  WILL  NOT  EMIT  ANY
POLLUTANTS  TO  THE  AIR THAT WILL BE IN CONTRAVENTION OF APPLICABLE AIR
EMISSION CONTROL REQUIREMENTS OR AIR QUALITY STANDARDS, (V) WILL CONTROL
THE RUNOFF AND LEACHATE FROM ANY SOLID WASTE DISPOSAL FACILITY, AND (VI)
WILL CONTROL THE DISPOSAL OF ANY HAZARDOUS WASTE;
  (D) IF THE FACILITY IS PROPOSED TO BE LOCATED IN A COASTAL AREA,  THAT
THE  ACTION  IS CONSISTENT WITH APPLICABLE POLICIES SET FORTH IN ARTICLE
FORTY-TWO OF THE EXECUTIVE LAW, OR IF THE FACILITY  IS  PROPOSED  TO  BE
LOCATED IN A MUNICIPALITY WITH A LOCAL WATERFRONT REVITALIZATION PROGRAM
APPROVED BY THE SECRETARY OF STATE, THAT THE ACTION IS CONSISTENT TO THE
MAXIMUM  EXTENT  PRACTICABLE  WITH  THAT LOCAL WATERFRONT REVITALIZATION
PROGRAM;
  (E) THAT THE FACILITY IS DESIGNATED  TO  OPERATE  IN  COMPLIANCE  WITH
APPLICABLE  STATE  AND  LOCAL  LAWS  AND  REGULATIONS  ISSUED THEREUNDER
CONCERNING, AMONG OTHER MATTERS,  THE  ENVIRONMENT,  PUBLIC  HEALTH  AND
SAFETY,  ALL  OF  WHICH SHALL BE BINDING UPON THE APPLICANT, EXCEPT THAT
THE BOARD MAY REFUSE TO APPLY ANY LOCAL ORDINANCE,  LAW,  RESOLUTION  OR
OTHER  ACTION  OR ANY REGULATION ISSUED THEREUNDER OR ANY LOCAL STANDARD
OR REQUIREMENT WHICH WOULD BE OTHERWISE APPLICABLE IF IT FINDS  THAT  AS
APPLIED  TO  THE  PROPOSED  FACILITY SUCH IS UNREASONABLY RESTRICTIVE IN
VIEW OF THE EXISTING TECHNOLOGY FOR THE NEEDS OF OR COSTS TO RATE PAYERS

S. 1045                            19

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
AND  REASONABLE  ALTERNATIVES EXAMINED AS REQUIRED PURSUANT TO PARAGRAPH
(B) OF SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF  THIS  ARTI-
CLE.
  3. THE BOARD MAY, EITHER AS A PART OF THE DECISION DESCRIBED IN SUBDI-
VISION  TWO  OF THIS SECTION OR AS A PART OF ANY DETERMINATION AS MAY BE
APPROPRIATELY MADE IN CONFORMANCE WITH REGULATIONS ADOPTED  PURSUANT  TO
SUBDIVISION  SEVEN  OF  SECTION  ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE,
ISSUE PERMITS PURSUANT TO FEDERAL  RECOGNITION  OF  STATE  AUTHORITY  IN
ACCORDANCE  WITH  FEDERAL CLEAN WATER ACT, THE FEDERAL CLEAN AIR ACT AND
THE FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT. SUCH  PERMITS  SHALL
BE  BASED  UPON  THE EVIDENCE OF RECORD WITH RESPECT TO THE CONSTRUCTION
AND OPERATION OF THE POLLUTION CONTROL SYSTEMS OF THE FACILITY AND SHALL
CONTAIN SUCH CONDITIONS AND LIMITATIONS AS THE BOARD SHALL  DEEM  APPRO-
PRIATE.  THE  ISSUANCE  OF SUCH PERMITS AS PART OF A DETERMINATION HERE-
UNDER SHALL NOT PREVENT THE BOARD, IF IT BE SO  DISPOSED,  FROM  DENYING
THE APPLICATION UNDER SUBDIVISION TWO OF THIS SECTION IN WHICH EVENT THE
PERMIT SHALL THENCEFORTH BE DEEMED TO BE OF NO FORCE OR EFFECT.
  4.  A COPY OF THE BOARD'S DECISION AND OPINION SHALL BE SERVED ON EACH
PARTY PERSONALLY OR BY MAIL.
  S 169. OPINION TO BE ISSUED WITH DECISION. IN RENDERING A DECISION  ON
AN APPLICATION FOR A CERTIFICATE, THE BOARD SHALL ISSUE AN OPINION STAT-
ING  ITS  REASONS  FOR THE ACTION TAKEN. IF THE BOARD HAS FOUND THAT ANY
LOCAL ORDINANCE, LAW, RESOLUTION,  REGULATION  OR  OTHER  ACTION  ISSUED
THEREUNDER  OR  ANY  OTHER  LOCAL STANDARD OR REQUIREMENT WHICH WOULD BE
OTHERWISE APPLICABLE IS UNREASONABLY RESTRICTIVE PURSUANT  TO  PARAGRAPH
(E)  OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTI-
CLE, IT SHALL STATE IN ITS OPINION THE REASONS THEREFOR.
  S 170. REHEARING AND JUDICIAL REVIEW. 1. ANY PARTY  AGGRIEVED  BY  THE
BOARD'S  DECISION  DENYING  OR  GRANTING  A CERTIFICATE MAY APPLY TO THE
BOARD FOR A REHEARING WITHIN THIRTY DAYS AFTER ISSUANCE OF THE  AGGRIEV-
ING  DECISION.  ANY  SUCH APPLICATION SHALL BE CONSIDERED AND DECIDED BY
THE BOARD AND ANY REHEARING SHALL BE COMPLETED AND A  DECISION  RENDERED
THEREON  WITHIN  NINETY  DAYS OF THE EXPIRATION OF THE PERIOD FOR FILING
REHEARING PETITIONS, PROVIDED HOWEVER THAT  THE  BOARD  MAY  EXTEND  THE
DEADLINE  BY  NO  MORE THAN NINETY DAYS WHERE A REHEARING IS REQUIRED IF
NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE APPLICANT  MAY  WAIVE  SUCH
DEADLINE.  THEREAFTER  SUCH  A  PARTY MAY OBTAIN JUDICIAL REVIEW OF SUCH
DECISION AS PROVIDED IN THIS SECTION. A  JUDICIAL  PROCEEDING  SHALL  BE
BROUGHT  IN  THE APPELLATE DIVISION OF THE SUPREME COURT OF THE STATE OF
NEW YORK IN THE JUDICIAL DEPARTMENT EMBRACING  THE  COUNTY  WHEREIN  THE
FACILITY  IS  TO BE LOCATED OR, IF THE APPLICATION IS DENIED, THE COUNTY
WHEREIN THE APPLICANT HAS PROPOSED TO LOCATE THE FACILITY. SUCH PROCEED-
ING SHALL BE INITIATED BY THE FILING OF A PETITION IN SUCH COURT  WITHIN
THIRTY DAYS AFTER THE ISSUANCE OF A FINAL DECISION BY THE BOARD UPON THE
APPLICATION  FOR REHEARING TOGETHER WITH PROOF OF SERVICE OF A DEMAND ON
THE BOARD TO FILE WITH SAID COURT A COPY OF A WRITTEN TRANSCRIPT OF  THE
RECORD OF THE PROCEEDING AND A COPY OF THE BOARD'S DECISION AND OPINION.
THE  BOARD'S  COPY  OF  SAID  TRANSCRIPT, DECISION AND OPINION, SHALL BE
AVAILABLE AT ALL REASONABLE TIMES TO ALL PARTIES FOR EXAMINATION WITHOUT
COST. UPON RECEIPT OF SUCH PETITION AND DEMAND THE BOARD SHALL FORTHWITH

S. 1045                            20

DELIVER TO THE COURT A COPY OF THE RECORD AND  A  COPY  OF  THE  BOARD'S
DECISION  AND  OPINION.  THEREUPON, THE COURT SHALL HAVE JURISDICTION OF
THE PROCEEDING AND SHALL HAVE THE POWER TO GRANT SUCH RELIEF AS IT DEEMS
JUST AND PROPER, AND TO MAKE AND ENTER AN ORDER ENFORCING, MODIFYING AND
ENFORCING  AS  SO  MODIFIED,  REMANDING FOR FURTHER SPECIFIC EVIDENCE OR
FINDINGS OR SETTING ASIDE IN WHOLE OR IN PART SUCH DECISION. THE  APPEAL
SHALL  BE  HEARD ON THE RECORD, WITHOUT REQUIREMENT OF REPRODUCTION, AND
UPON BRIEFS TO THE COURT. NO OBJECTION THAT HAS NOT BEEN  URGED  BY  THE
PARTY  IN HIS OR HER APPLICATION FOR REHEARING BEFORE THE BOARD SHALL BE
CONSIDERED BY THE COURT, UNLESS THE FAILURE  OR  NEGLECT  TO  URGE  SUCH
OBJECTION  SHALL  BE EXCUSED BECAUSE OF EXTRAORDINARY CIRCUMSTANCES. THE
FINDINGS OF FACT ON WHICH SUCH DECISION IS BASED SHALL BE CONCLUSIVE  IF
SUPPORTED  BY  SUBSTANTIAL  EVIDENCE ON THE RECORD CONSIDERED AS A WHOLE
AND MATTERS OF JUDICIAL NOTICE SET FORTH IN THE OPINION.  THE  JURISDIC-
TION  OF  THE APPELLATE DIVISION OF THE SUPREME COURT SHALL BE EXCLUSIVE
AND ITS JUDGMENT AND ORDER SHALL BE FINAL,  SUBJECT  TO  REVIEW  BY  THE
COURT OF APPEALS IN THE SAME MANNER AND FORM AND WITH THE SAME EFFECT AS
PROVIDED  FOR  APPEALS IN SPECIAL PROCEEDING. ALL SUCH PROCEEDINGS SHALL
BE HEARD AND DETERMINED BY THE APPELLATE DIVISION OF THE  SUPREME  COURT
AND BY THE COURT OF APPEALS AS EXPEDITIOUSLY AS POSSIBLE AND WITH LAWFUL
PRECEDENCE OVER ALL OTHER MATTERS.
  2.  THE  GROUNDS FOR AND SCOPE OF REVIEW OF THE COURT SHALL BE LIMITED
TO WHETHER THE DECISION AND OPINION OF THE BOARD ARE:
  (A) IN CONFORMITY WITH THE CONSTITUTION OF THE STATE  AND  THE  UNITED
STATES;
  (B)  SUPPORTED  BY  SUBSTANTIAL  EVIDENCE IN THE RECORD AND MATTERS OF
JUDICIAL NOTICE PROPERLY CONSIDERED AND APPLIED IN THE OPINION;
  (C) WITHIN THE BOARD'S STATUTORY JURISDICTION OR AUTHORITY;
  (D) MADE IN ACCORDANCE WITH PROCEDURES SET FORTH IN  THIS  ARTICLE  OR
ESTABLISHED BY RULE OR REGULATION PURSUANT TO THIS ARTICLE; OR
  (E) ARBITRARY, CAPRICIOUS OR AN ABUSE OF DISCRETION.
  3.  EXCEPT  AS  PROVIDED IN THIS SECTION, ARTICLE SEVENTY-EIGHT OF THE
CIVIL PRACTICE LAW AND RULES SHALL APPLY TO APPEALS  TAKEN  PURSUANT  TO
THIS ARTICLE.
  S  171.  JURISDICTION  OF  COURTS.  EXCEPT  AS  EXPRESSLY SET FORTH IN
SECTION ONE HUNDRED SEVENTY OF THIS ARTICLE AND EXCEPT FOR REVIEW BY THE
COURT OF APPEALS OF A DECISION OF THE APPELLATE DIVISION OF THE  SUPREME
COURT  AS PROVIDED FOR THEREIN, NO COURT OF THIS STATE SHALL HAVE JURIS-
DICTION TO HEAR OR DETERMINE ANY MATTER, CASE OR CONTROVERSY  CONCERNING
ANY MATTER WHICH WAS OR COULD HAVE BEEN DETERMINED IN A PROCEEDING UNDER
THIS  ARTICLE  OR  TO  STOP  OR DELAY THE CONSTRUCTION OR OPERATION OF A
MAJOR ELECTRIC GENERATING FACILITY EXCEPT  TO  ENFORCE  COMPLIANCE  WITH
THIS ARTICLE OR THE TERMS AND CONDITIONS ISSUED THEREUNDER.
  S 172. POWERS OF MUNICIPALITIES AND STATE AGENCIES. 1. NOTWITHSTANDING
ANY  OTHER PROVISION OF LAW, NO STATE AGENCY, MUNICIPALITY OR ANY AGENCY
THEREOF MAY, EXCEPT AS EXPRESSLY AUTHORIZED UNDER THIS  ARTICLE  BY  THE
BOARD,  REQUIRE  ANY  APPROVAL,  CONSENT,  PERMIT,  CERTIFICATE OR OTHER
CONDITION FOR THE CONSTRUCTION OR OPERATION OF A MAJOR ELECTRIC GENERAT-
ING FACILITY WITH RESPECT TO WHICH  AN  APPLICATION  FOR  A  CERTIFICATE
HEREUNDER  HAS BEEN FILED, OTHER THAN THOSE PROVIDED BY OTHERWISE APPLI-
CABLE  STATE  LAW  FOR  THE  PROTECTION  OF  EMPLOYEES  ENGAGED  IN  THE
CONSTRUCTION  AND OPERATION OF SUCH FACILITY; PROVIDED, HOWEVER, THAT IN
THE CASE OF A MUNICIPALITY OR AN AGENCY THEREOF, SUCH  MUNICIPALITY  HAS
RECEIVED  NOTICE OF THE FILING OF THE APPLICATION THEREFOR; AND PROVIDED
FURTHER HOWEVER, THAT THE  DEPARTMENT  OF  STATE  MAY  MAKE  CONSISTENCY
DETERMINATIONS  PURSUANT  TO THE FEDERAL COASTAL ZONE MANAGEMENT ACT. IN

S. 1045                            21

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

S. 1045                            22

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

S. 1045                            23

open spaces and scenic beauty of the Adirondack or  Catskill  parks  has
been considered.
  S 7. Section 1014 of the public authorities law, as amended by chapter
446 of the laws of 1972, is amended to read as follows:
  S  1014.  Public service law not applicable to authority; inconsistent
provisions in other acts superseded. The rates, services  and  practices
relating  to  the generation, transmission, distribution and sale by the
authority, of power to be generated from the projects authorized by this
title shall not be subject to the provisions of the public  service  law
nor  to  regulation by, nor the jurisdiction of the department of public
service. Except to the extent article seven of the  public  service  law
applies  to  the  siting  and  operation of a major utility transmission
facility as defined therein, AND ARTICLE TEN OF THE PUBLIC  SERVICE  LAW
APPLIES  TO  SITING  OF  MAJOR ELECTRIC GENERATING FACILITIES AS DEFINED
THEREIN, and except  to  the  extent  section  eighteen-a  of  such  law
provides  for  assessment  of  the  authority for certain costs relating
thereto, the provisions of the public service law and  of  the  ENVIRON-
MENTAL  conservation  law and every other law relating to the department
of public service or the public service commission or to the  [conserva-
tion]  department  OF  ENVIRONMENTAL  CONSERVATION  or to the functions,
powers or duties assigned to the division of water power and control  by
chapter  six  hundred  nineteen, of the laws of nineteen hundred twenty-
six, shall so far as is  necessary  to  make  this  title  effective  in
accordance  with  its terms and purposes be deemed to be superseded, and
wherever any provision of law  shall  be  found  in  conflict  with  the
provisions  of  this title or inconsistent with the purposes thereof, it
shall be deemed to be superseded, modified or repealed as the  case  may
require.
  S 8. Subdivision 1 of section 1020-s of the public authorities law, as
added by chapter 517 of the laws of 1986, is amended to read as follows:
  1.  The  rates,  services  and  practices  relating to the electricity
generated by facilities owned or operated by the authority shall not  be
subject to the provisions of the public service law or to regulation by,
or  the  jurisdiction  of,  the public service commission, except to the
extent (a) article seven of the public service law applies to the siting
and operation of a major utility transmission facility as defined there-
in, (b) article [eight] TEN of such law  applies  to  the  siting  of  a
generating  facility  as  defined therein, and (c) section eighteen-a of
such law provides for assessment for certain costs,  property  or  oper-
ations.
  S  9. The state finance law is amended by adding a new section 99-t to
read as follows:
  S 99-T. INTERVENOR ACCOUNT. 1. THERE  IS  HEREBY  ESTABLISHED  IN  THE
JOINT  CUSTODY OF THE STATE COMPTROLLER AND THE COMMISSIONER OF TAXATION
AND FINANCE AN ACCOUNT TO BE KNOWN AS THE INTERVENOR ACCOUNT.
  2. SUCH ACCOUNT SHALL CONSIST OF ALL  REVENUES  RECEIVED  FROM  SITING
APPLICATION  FEES FOR ELECTRIC GENERATING FACILITIES PURSUANT TO SECTION
ONE HUNDRED SIXTY-FOUR OF THE PUBLIC SERVICE LAW.
  3. MONEYS OF THE ACCOUNT, FOLLOWING APPROPRIATION BY THE  LEGISLATURE,
MAY BE EXPENDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION ONE HUNDRED
SIXTY-FOUR  OF  THE  PUBLIC SERVICE LAW. MONEYS SHALL BE PAID OUT OF THE
ACCOUNT ON THE AUDIT AND WARRANT OF THE STATE  COMPTROLLER  ON  VOUCHERS
CERTIFIED OR APPROVED BY THE CHAIR OF THE PUBLIC SERVICE COMMISSION.
  S  10.  Separability.  If  any clause, sentence, paragraph, section or
part of this act shall be adjudged by any court of  competent  jurisdic-
tion to be invalid, such judgment shall not affect, impair or invalidate

S. 1045                            24

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 11. This act shall take effect immediately, provided that nothing in
this  act shall be construed to limit any administrative authority, with
respect to matters included in this act,  which  existed  prior  to  the
effective date of this act.

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