S. 5844 2 A. 8510
(A) ALL DETERMINATIONS AND SAFEGUARDS RELATED TO THE TERMINATION AND
RECONNECTION OF SERVICE SHALL APPLY TO ON-BILL RECOVERY CHARGES BILLED
BY A UTILITY PURSUANT TO SUCH SECTION;
(B) IN THE EVENT THAT THE RESPONSIBILITY FOR MAKING UTILITY PAYMENTS
HAS BEEN ASSUMED BY OCCUPANTS OF A MULTIPLE DWELLING PURSUANT TO SECTION
THIRTY-THREE OF THIS ARTICLE OR BY OCCUPANTS OF A TWO-FAMILY DWELLING
PURSUANT TO SECTION THIRTY-FOUR OF THIS ARTICLE, SUCH OCCUPANTS SHALL
NOT BE BILLED FOR ANY ARREARS OF ON-BILL RECOVERY CHARGES OR ANY
PROSPECTIVE ON-BILL RECOVERY CHARGES, WHICH SHALL REMAIN THE RESPONSI-
BILITY OF THE INCURRING CUSTOMER;
(C) DEFERRED PAYMENT AGREEMENTS PURSUANT TO SECTION THIRTY-SEVEN OF
THIS ARTICLE SHALL BE AVAILABLE TO CUSTOMERS PARTICIPATING IN ON-BILL
RECOVERY ON THE SAME TERMS AS OTHER CUSTOMERS, AND THE UTILITY SHALL
RETAIN THE SAME DISCRETION TO DEFER TERMINATION OF SERVICE AS FOR ANY
OTHER DELINQUENT CUSTOMER;
(D) WHERE A CUSTOMER HAS A BUDGET BILLING PLAN OR LEVELIZED PAYMENT
PLAN PURSUANT TO SECTION THIRTY-EIGHT OF THIS ARTICLE, THE UTILITY SHALL
RECALCULATE THE PAYMENTS UNDER SUCH PLAN TO REFLECT THE PROJECTED
EFFECTS OF INSTALLING ENERGY EFFICIENCY MEASURES AS SOON AS PRACTICABLE
AFTER RECEIPT OF INFORMATION ON THE ENERGY AUDIT AND QUALIFIED ENERGY
EFFICIENCY SERVICES SELECTED;
(E) ON-BILL RECOVERY CHARGES SHALL NOT BE SUBJECT TO THE PROVISIONS OF
SECTION FORTY-ONE OF THIS ARTICLE;
(F) LATE PAYMENT CHARGES ON UNPAID ON-BILL RECOVERY CHARGES SHALL BE
DETERMINED AS PROVIDED IN THIS SECTION, OR AS OTHERWISE CONSENTED TO BY
THE CUSTOMER IN THE AGREEMENT FOR GREEN JOBS-GREEN NEW YORK ON-BILL
RECOVERY AND ANY SUCH CHARGES SHALL BE REMITTED TO THE NEW YORK STATE
ENERGY RESEARCH AND DEVELOPMENT AUTHORITY;
(G) NOTWITHSTANDING THE PROVISIONS OF SECTION FORTY-THREE OF THIS
ARTICLE, WHEN A COMPLAINT IS RELATED SOLELY TO WORK PERFORMED UNDER THE
GREEN JOBS-GREEN NEW YORK PROGRAM OR TO THE APPROPRIATE AMOUNT OF
ON-BILL RECOVERY CHARGES, THE UTILITY SHALL ONLY BE REQUIRED TO INFORM
THE CUSTOMER OF THE COMPLAINT HANDLING PROCEDURES OF THE NEW YORK STATE
ENERGY RESEARCH AND DEVELOPMENT AUTHORITY, WHICH SHALL RETAIN RESPONSI-
BILITY FOR HANDLING SUCH COMPLAINTS, AND SUCH COMPLAINTS SHALL NOT BE
DEEMED TO BE COMPLAINTS ABOUT UTILITY SERVICE IN ANY OTHER COMMISSION
ACTION OR PROCEEDING; AND
(H) BILLING INFORMATION PROVIDED PURSUANT TO SECTION FORTY-FOUR OF
THIS ARTICLE SHALL INCLUDE INFORMATION ON GREEN JOBS-GREEN NEW YORK
ON-BILL RECOVERY CHARGES, INCLUDING THE BASIS FOR SUCH CHARGES, AND ANY
INFORMATION OR INSERTS PROVIDED BY THE NEW YORK STATE ENERGY RESEARCH
AND DEVELOPMENT AUTHORITY RELATED THERETO. IN ADDITION, AT LEAST ANNUAL-
LY THE AUTHORITY SHALL PROVIDE THE UTILITY WITH INFORMATION FOR INCLU-
SION OR INSERTION IN THE CUSTOMER'S BILL THAT SETS FORTH THE AMOUNT AND
DURATION OF REMAINING ON-BILL RECOVERY CHARGES AND THE AUTHORITY'S
CONTACT INFORMATION AND PROCEDURES FOR RESOLVING CUSTOMER COMPLAINTS
WITH SUCH CHARGES.
S 4. Paragraph (d) of subdivision 6 of section 65 of the public
service law, as added by chapter 204 of the laws of 2010, is amended to
read as follows:
(d) for installation of capital improvements and fixtures to promote
energy efficiency upon the request and consent of the customer, INCLUD-
ING BUT NOT LIMITED TO THE PERFORMANCE OF QUALIFIED ENERGY EFFICIENCY
SERVICES FOR CUSTOMERS PARTICIPATING IN GREEN JOBS-GREEN NEW YORK
ON-BILL RECOVERY PURSUANT TO SECTION SIXTY-SIX-M OF THIS ARTICLE.
S. 5844 3 A. 8510
S 5. The public service law is amended by adding a new section 66-m
to read as follows:
S 66-M. GREEN JOBS-GREEN NEW YORK ON-BILL RECOVERY. 1.(A) THE COMMIS-
SION SHALL, WITHIN FORTY-FIVE DAYS OF THE EFFECTIVE DATE OF THIS
SECTION, COMMENCE A PROCEEDING TO INVESTIGATE THE IMPLEMENTATION BY EACH
COMBINATION ELECTRIC AND GAS CORPORATION HAVING ANNUAL REVENUES IN
EXCESS OF TWO HUNDRED MILLION DOLLARS OF A BILLING AND COLLECTION
SERVICE FOR ON-BILL RECOVERY CHARGES IN PAYMENT OF OBLIGATIONS OF ITS
CUSTOMERS TO THE GREEN JOBS-GREEN NEW YORK REVOLVING LOAN FUND ESTAB-
LISHED PURSUANT TO TITLE NINE-A OF ARTICLE EIGHT OF THE PUBLIC AUTHORI-
TIES LAW AND, WITHIN ONE HUNDRED FIFTY DAYS OF THE EFFECTIVE DATE OF
THIS SECTION, THE COMMISSION SHALL MAKE A DETERMINATION ESTABLISHING THE
BILLING AND COLLECTION PROCEDURES FOR SUCH ON-BILL RECOVERY CHARGES. THE
DEPARTMENT SHALL CONSULT WITH THE NEW YORK STATE ENERGY RESEARCH AND
DEVELOPMENT AUTHORITY IN THE PREPARATION OF ITS RECOMMENDATIONS TO THE
COMMISSION FOR SUCH DETERMINATION. THE COMMISSION SHALL REQUIRE SUCH
ELECTRIC AND GAS CORPORATIONS TO OFFER BILLING AND COLLECTION SERVICES
FOR GREEN JOBS-GREEN NEW YORK ON-BILL RECOVERY CHARGES FOR ELIGIBLE
CUSTOMERS WITHIN THREE HUNDRED DAYS OF THE EFFECTIVE DATE OF THIS
SECTION. TO THE EXTENT PRACTICABLE, SUCH ELECTRIC AND GAS CORPORATIONS
SHALL UTILIZE EXISTING ELECTRONIC DATA INTERCHANGE INFRASTRUCTURE OR
OTHER EXISTING BILLING INFRASTRUCTURE TO IMPLEMENT THEIR BILLING AND
COLLECTION RESPONSIBILITIES UNDER THIS SECTION, AND SHALL UTILIZE FUND-
ING AVAILABLE FROM THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT
AUTHORITY TO DEFRAY ANY COSTS ASSOCIATED WITH ELECTRONIC DATA INTER-
CHANGE IMPROVEMENTS OR OTHER COSTS OF INITIATING AND IMPLEMENTING THIS
PROGRAM.
(B) TO ENSURE PROPER PROGRAM DESIGN AND IMPLEMENTATION, EACH ELECTRIC
AND GAS CORPORATION SHALL INITIALLY LIMIT THE NUMBER OF CUSTOMERS WHO
PAY A GREEN JOBS-GREEN NEW YORK ON-BILL RECOVERY CHARGE AT ANY GIVEN
TIME TO NO MORE THAN ONE HALF OF ONE PERCENT OF ITS TOTAL CUSTOMERS, ON
A FIRST COME, FIRST SERVED BASIS. PRIOR TO REACHING SUCH LIMIT, THE NEW
YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY SHALL PETITION THE
COMMISSION TO REVIEW SAID LIMIT, AND THE COMMISSION SHALL INCREASE SUCH
LIMIT PROVIDED THAT THE COMMISSION FINDS THAT THE PROGRAM HAS NOT CAUSED
SIGNIFICANT HARM TO THE ELECTRIC OR GAS COMPANY OR ITS RATEPAYERS.
(C) THE COMMISSION MAY SUSPEND SUCH AN ELECTRIC AND GAS CORPORATION'S
OFFERING OF THE ON-BILL RECOVERY CHARGE PROVIDED THAT THE COMMISSION,
AFTER CONDUCTING A HEARING AS PROVIDED IN SECTION TWENTY OF THIS CHAP-
TER, MAKES A FINDING THAT THERE IS A SIGNIFICANT INCREASE IN ARREARS OR
UTILITY SERVICE DISCONNECTIONS THAT THE COMMISSION DETERMINES IS DIRECT-
LY RELATED TO THE ON-BILL RECOVERY CHARGE, OR A FINDING OF OTHER GOOD
CAUSE.
(D) THE ON-BILL RECOVERY CHARGE SHALL BE COLLECTED ON THE BILL FROM
THE CUSTOMER'S ELECTRIC CORPORATION UNLESS THE QUALIFIED ENERGY EFFI-
CIENCY SERVICES AT THAT CUSTOMER'S PREMISES RESULT IN MORE PROJECTED
ENERGY SAVINGS ON THE CUSTOMER'S GAS BILL THAN THE ELECTRIC BILL, IN
WHICH CASE SUCH CHARGE SHALL BE COLLECTED ON THE CUSTOMER'S GAS CORPO-
RATION BILL.
(E) THE COMMISSION SHALL DETERMINE AN APPROPRIATE PERCENTAGE, UP TO
FIFTEEN PERCENT, OF THE ENERGY SAVINGS FROM QUALIFIED ENERGY EFFICIENCY
SERVICES, FINANCED WITH A LOAN PURSUANT TO SECTION EIGHTEEN HUNDRED
NINETY-SIX OF THE PUBLIC AUTHORITIES LAW THAT IS SUBJECT TO AN ON-BILL
RECOVERY CHARGE, TO BE CREDITED TO THE COMBINATION ELECTRIC AND GAS
CORPORATION THAT IS ISSUING THE BILL FOR SUCH CHARGE, FOR PURPOSES OF
S. 5844 4 A. 8510
MEETING SUCH CORPORATION'S TARGETS UNDER ENERGY EFFICIENCY PROGRAMS
ESTABLISHED BY THE COMMISSION.
2. SCHEDULES FOR THE COLLECTION AND BILLING OF ON-BILL RECOVERY CHARG-
ES SHALL PROVIDE:
(A) THAT BILLING AND COLLECTION SERVICES SHALL BE AVAILABLE TO ALL
CUSTOMERS WHO HAVE MET THE STANDARDS ESTABLISHED BY THE NEW YORK STATE
ENERGY RESEARCH AND DEVELOPMENT AUTHORITY FOR PARTICIPATION IN THE
ON-BILL RECOVERY MECHANISM UNDER THE GREEN JOBS-GREEN NEW YORK PROGRAM
AND HAVE EXECUTED AN AGREEMENT FOR THE PERFORMANCE OF QUALIFIED ENERGY
EFFICIENCY SERVICES UNDER SUCH PROGRAM; PROVIDED, HOWEVER, THAT FOR
RESIDENTIAL PROPERTIES ANY SUCH CUSTOMER MUST HOLD PRIMARY OWNERSHIP OR
REPRESENT THE PRIMARY OWNER OR OWNERS OF THE PREMISES AND HOLD PRIMARY
METER ACCOUNT RESPONSIBILITY OR REPRESENT THE PRIMARY HOLDER OR HOLDERS
OF METER ACCOUNT RESPONSIBILITY FOR ALL METERS TO WHICH SUCH ON-BILL
RECOVERY CHARGES WILL APPLY;
(B) THAT THE RESPONSIBILITIES OF SUCH ELECTRIC AND GAS CORPORATION ARE
LIMITED TO PROVIDING BILLING AND COLLECTION SERVICES FOR ON-BILL RECOV-
ERY CHARGES AS DIRECTED BY THE AUTHORITY;
(C) THAT THE RIGHTS AND RESPONSIBILITIES OF RESIDENTIAL CUSTOMERS
PAYING ON-BILL RECOVERY CHARGES SHALL BE GOVERNED BY THE PROVISIONS OF
ARTICLE TWO OF THIS CHAPTER;
(D) UNLESS FULLY SATISFIED PRIOR TO SALE OR TRANSFER, THAT (I) THE
ON-BILL RECOVERY CHARGES FOR ANY SERVICES PROVIDED AT THE CUSTOMER'S
PREMISES SHALL SURVIVE CHANGES IN OWNERSHIP, TENANCY OR METER ACCOUNT
RESPONSIBILITY, AND (II) THAT ARREARS IN ON-BILL RECOVERY CHARGES AT THE
TIME OF ACCOUNT CLOSURE OR METER TRANSFER SHALL REMAIN THE RESPONSIBIL-
ITY OF THE INCURRING CUSTOMER, UNLESS EXPRESSLY ASSUMED BY A SUBSEQUENT
PURCHASER OF THE PROPERTY SUBJECT TO SUCH CHARGES;
(E) NOT LESS THAN FORTY-FIVE DAYS AFTER CLOSURE OF AN ACCOUNT THAT IS
SUBJECT TO AN ON-BILL RECOVERY CHARGE, AND PROVIDED THAT THE CUSTOMER
DOES NOT RE-ESTABLISH SERVICE WITH SUCH ELECTRIC AND GAS CORPORATION, IT
SHALL BE THE RESPONSIBILITY OF THE NEW YORK STATE ENERGY RESEARCH AND
DEVELOPMENT AUTHORITY AND NOT THE ELECTRIC AND GAS CORPORATION TO
COLLECT ANY ARREARS THAT ARE DUE AND OWING;
(F) A CUSTOMER REMITTING LESS THAN THE TOTAL AMOUNT DUE FOR ELECTRIC
AND/OR GAS SERVICES AND ON-BILL RECOVERY CHARGES SHALL HAVE SUCH PARTIAL
PAYMENT FIRST APPLIED AS PAYMENT FOR ELECTRIC AND/OR GAS SERVICES AND
ANY REMAINING AMOUNT WILL BE APPLIED TO THE ON-BILL RECOVERY CHARGE;
(G) BILLING AND COLLECTION SERVICES SHALL BE AVAILABLE WITHOUT REGARD
TO WHETHER THE ENERGY OR FUEL DELIVERED BY THE UTILITY IS THE CUSTOMER'S
PRIMARY ENERGY SOURCE;
(H) UNLESS OTHERWISE PRECLUDED BY LAW, PARTICIPATION IN THE GREEN
JOBS-GREEN NEW YORK PROGRAM SHALL NOT AFFECT A CUSTOMER'S ELIGIBILITY
FOR ANY REBATE OR INCENTIVE OFFERED BY A UTILITY; AND
(I) ANY OTHER PROVISIONS NECESSARY TO PROVIDE FOR THE BILLING AND
COLLECTION OF ON-BILL RECOVERY CHARGES.
3. THE COMMISSION SHALL NOT APPROVE ANY APPLICATION FOR THE CONVERSION
TO SUBMETERING OF ANY MASTER METER WHICH IS SUBJECT TO ANY ON-BILL
RECOVERY CHARGES.
S 6. Sections 1020-hh, 1020-ii and 1020-jj of the public authorities
law, as renumbered by chapter 433 of the laws of 2009, are renumbered
sections 1020-ii, 1020-jj and 1020-kk and a new section 1020-hh is added
to read as follows:
S 1020-HH. GREEN JOBS-GREEN NEW YORK ON-BILL RECOVERY. 1. WITHIN THREE
HUNDRED DAYS OF THE EFFECTIVE DATE OF THIS SECTION, THE AUTHORITY SHALL
ESTABLISH A PROGRAM TO PROVIDE FOR THE BILLING AND COLLECTION OF ON-BILL
S. 5844 5 A. 8510
RECOVERY CHARGES FOR PAYMENT OF OBLIGATIONS OF ITS CUSTOMERS TO THE
GREEN JOBS-GREEN NEW YORK REVOLVING LOAN FUND ESTABLISHED PURSUANT TO
TITLE NINE-A OF ARTICLE EIGHT OF THE PUBLIC AUTHORITIES LAW. SUCH
PROGRAM SHALL BE CONSISTENT WITH THE STANDARDS SET FORTH IN SUBDIVISION
THREE OF SECTION FORTY-TWO AND SECTION SIXTY-SIX-M OF THE PUBLIC SERVICE
LAW. TO THE MAXIMUM EXTENT PRACTICABLE, FUNDING AVAILABLE FROM THE NEW
YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY SHALL BE UTILIZED
TO DEFRAY ANY COSTS ASSOCIATED WITH ELECTRONIC DATA INTERCHANGE IMPROVE-
MENTS OR OTHER COSTS OF INITIATING AND IMPLEMENTING THIS PROGRAM. BILL-
ING AND COLLECTION SERVICES UNDER SUCH TARIFFS SHALL COMMENCE AS SOON AS
PRACTICABLE AFTER ESTABLISHMENT OF THE PROGRAM.
2. THE AUTHORITY MAY SUSPEND ITS OFFERING OF THE ON-BILL RECOVERY
CHARGE PROVIDED THAT THE AUTHORITY MAKES A FINDING THAT THERE IS A
SIGNIFICANT INCREASE IN ARREARS OR UTILITY SERVICE DISCONNECTIONS THAT
THE AUTHORITY DETERMINES IS DIRECTLY RELATED TO SUCH CHARGE, OR A FIND-
ING OF OTHER GOOD CAUSE.
S 7. Subdivision 5 of section 1891 of the public authorities law, as
added by chapter 487 of the laws of 2009, is amended to read as follows:
5. "Eligible project" means qualified energy efficiency services for a
non-residential structure, a residential structure or a multi-family
structure. AN ELIGIBLE PROJECT SHALL NOT BE CONSIDERED (A) A MAJOR
CAPITAL IMPROVEMENT PURSUANT TO SUBPARAGRAPH (G) OF PARAGRAPH ONE OF
SUBDIVISION G OF SECTION 26-405 OF THE ADMINISTRATIVE CODE OF THE CITY
OF NEW YORK, SUBPARAGRAPH (K) OF PARAGRAPH ONE OF SUBDIVISION G OF
SECTION 26-405 OF THE ADMINISTRATIVE CODE OF THE CITY OF NEW YORK, PARA-
GRAPH SIX OF SUBDIVISION C OF SECTION 26-511 OF THE ADMINISTRATIVE CODE
OF THE CITY OF NEW YORK, PARAGRAPH THREE OF SUBDIVISION D OF SECTION SIX
OF SECTION FOUR OF CHAPTER FIVE HUNDRED SEVENTY-SIX OF THE LAWS OF NINE-
TEEN HUNDRED SEVENTY-FOUR, AND THE SECOND UNDESIGNATED PARAGRAPH OF
PARAGRAPH (A) OF SUBDIVISION FOUR OF SECTION FOUR OF CHAPTER TWO HUNDRED
SEVENTY-FOUR OF THE LAWS OF NINETEEN HUNDRED FORTY-SIX; OR (B) AN INDI-
VIDUAL APARTMENT IMPROVEMENT PURSUANT TO SUBPARAGRAPH (E) OF PARAGRAPH
ONE OF SUBDIVISION G OF SECTION 26-405 OF THE ADMINISTRATIVE CODE OF THE
CITY OF NEW YORK, PARAGRAPH THIRTEEN OF SUBDIVISION C OF SECTION 26-511
OF THE ADMINISTRATIVE CODE OF THE CITY OF NEW YORK, PARAGRAPH ONE OF
SUBDIVISION D OF SECTION SIX OF SECTION FOUR OF CHAPTER FIVE HUNDRED
SEVENTY-SIX OF THE LAWS OF NINETEEN HUNDRED SEVENTY-FOUR, AND CLAUSE
FIVE OF THE SECOND UNDESIGNATED PARAGRAPH OF PARAGRAPH (A) OF SUBDIVI-
SION FOUR OF SECTION FOUR OF CHAPTER TWO HUNDRED SEVENTY-FOUR OF THE
LAWS OF NINETEEN HUNDRED FORTY-SIX.
S 7-a. Section 1894 of the public authorities law is amended by adding
a new subdivision 4 to read as follows:
4. ANY ORGANIZATION USING FUNDING PROVIDED UNDER THE PROGRAM FOR
MARKETING OR OTHER OUTREACH ACTIVITIES SHALL NOT COMMINGLE SUCH MARKET-
ING OR OUTREACH ACTIVITIES WITH ANY OTHER ADVOCACY OR POLICY PROMOTION
EFFORTS.
S 8. Section 1896 of the public authorities law, as added by chapter
487 of the laws of 2009, is amended to read as follows:
S 1896. Green jobs-green New York revolving loan fund. 1. (a) There is
hereby created a green jobs-green New York revolving loan fund. The
revolving loan fund shall consist of:
(i) all moneys made available for the purpose of the revolving loan
fund pursuant to section eighteen hundred ninety-nine-a of this title;
(ii) payments of principal and interest, INCLUDING ANY LATE PAYMENT
CHARGES, made pursuant to loan or financing agreements entered into with
the authority or its designee pursuant to this section; and
S. 5844 6 A. 8510
(iii) any interest earned by the investment of moneys in the revolving
loan fund.
(b) The revolving loan fund shall consist of two accounts:
(i) one account which shall be maintained for monies to be made avail-
able to provide loans to finance the cost of approved qualified energy
efficiency services for residential structures and multi-family struc-
tures, and
(ii) one account which shall be maintained for monies made available
to provide loans to finance the cost of approved qualified energy effi-
ciency services for non-residential structures. The initial balance of
the residential account established in [clause] SUBPARAGRAPH (i) of this
paragraph shall represent at least fifty percent of the total balance of
the two accounts. The authority shall not commingle the monies of the
revolving loan fund with any other monies of the authority or held by
the authority, nor shall the authority commingle the monies between
accounts. Payments of principal, interest and fees shall be deposited
into the account created and maintained for the appropriate type of
eligible project.
(c) In administering such program, the authority is authorized and
directed to:
(i) use monies made available for the revolving loan fund to achieve
the purposes of this section by section eighteen hundred ninety-nine-a
of this title, including but not limited to making loans available for
eligible projects;
(ii) enter into contracts with one or more program implementers to
perform such functions as the authority deems appropriate; [and]
(iii) ESTABLISH AN ON-BILL RECOVERY MECHANISM FOR REPAYMENT OF LOANS
FOR THE PERFORMANCE OF QUALIFIED ENERGY EFFICIENCY SERVICES FOR ELIGIBLE
PROJECTS PROVIDED THAT SUCH ON-BILL RECOVERY MECHANISM SHALL PROVIDE FOR
THE UTILIZATION OF ANY ON-BILL RECOVERY PROGRAMS ESTABLISHED PURSUANT TO
SECTION SIXTY-SIX-M OF THE PUBLIC SERVICE LAW AND SECTION ONE THOUSAND
TWENTY-HH OF THIS CHAPTER;
(IV) ESTABLISH STANDARDS FOR CUSTOMER PARTICIPATION IN SUCH ON-BILL
RECOVERY MECHANISM, INCLUDING STANDARDS FOR RELIABLE UTILITY BILL
PAYMENT, CURRENT GOOD STANDING ON ANY MORTGAGE OBLIGATIONS, AND SUCH
ADDITIONAL STANDARDS AS THE AUTHORITY DEEMS NECESSARY; PROVIDED THAT IN
ORDER TO PROVIDE BROAD ACCESS TO ON-BILL RECOVERY, THE AUTHORITY SHALL,
TO THE FULLEST EXTENT PRACTICABLE, CONSIDER ALTERNATIVE MEASURES OF
CREDITWORTHINESS THAT ARE PRUDENT IN ORDER TO INCLUDE PARTICIPATION BY
CUSTOMERS WHO ARE LESS LIKELY TO HAVE ACCESS TO TRADITIONAL SOURCES OF
FINANCING;
(V) TO THE EXTENT FEASIBLE, MAKE AVAILABLE ON A PRO RATA BASIS, BASED
ON THE NUMBER OF ELECTRIC CUSTOMERS WITHIN THE UTILITY SERVICE TERRITO-
RY, TO COMBINATION ELECTRIC AND GAS CORPORATIONS THAT OFFER ON-BILL
RECOVERY PURSUANT TO SECTION SIXTY-SIX-M OF THE PUBLIC SERVICE LAW AND
THE LONG ISLAND POWER AUTHORITY, UP TO FIVE HUNDRED THOUSAND DOLLARS TO
DEFRAY COSTS DIRECTLY ASSOCIATED WITH CHANGING OR UPGRADING BILLING
SYSTEMS TO ACCOMMODATE ON-BILL RECOVERY CHARGES;
(VI) WITHIN THIRTY DAYS OF CLOSING OF A LOAN TO A CUSTOMER, PAY A FEE
OF ONE HUNDRED DOLLARS PER LOAN TO THE COMBINATION ELECTRIC AND GAS
CORPORATION IN WHOSE SERVICE TERRITORY SUCH CUSTOMER IS LOCATED OR TO
THE LONG ISLAND POWER AUTHORITY IF SUCH CUSTOMER IS LOCATED IN THE
SERVICE TERRITORY OF THAT AUTHORITY TO HELP DEFRAY THE COSTS THAT ARE
DIRECTLY ASSOCIATED WITH IMPLEMENTING THE PROGRAM;
(VII) WITHIN THIRTY DAYS OF CLOSING OF A LOAN TO A CUSTOMER, PAY A
SERVICING FEE OF ONE PERCENT OF THE LOAN AMOUNT TO THE COMBINATION ELEC-
S. 5844 7 A. 8510
TRIC AND GAS CORPORATION IN WHOSE SERVICE TERRITORY SUCH CUSTOMER IS
LOCATED OR TO THE LONG ISLAND POWER AUTHORITY IF SUCH CUSTOMER IS
LOCATED IN THE SERVICE TERRITORY OF THAT AUTHORITY TO HELP DEFRAY THE
COSTS THAT ARE DIRECTLY ASSOCIATED WITH THE PROGRAM; AND
(VIII) exercise such other powers as are necessary for the proper
administration of the program, INCLUDING AT THE DISCRETION OF THE
AUTHORITY, ENTERING INTO AGREEMENTS WITH APPLICANTS AND WITH SUCH STATE
OR FEDERAL AGENCIES AS NECESSARY TO DIRECTLY RECEIVE REBATES AND GRANTS
AVAILABLE FOR ELIGIBLE PROJECTS AND APPLY SUCH FUNDS TO REPAYMENT OF
APPLICANT LOAN OBLIGATIONS.
2. (a) The authority shall provide financial assistance in the form of
loans for the performance of qualified energy efficiency services for
eligible projects on terms and conditions established by the authority.
(b) Loans made by the authority pursuant to this section shall be
subject to the following limitations:
(i) eligible projects shall meet cost effectiveness standards devel-
oped by the authority;
(ii) loans shall not exceed thirteen thousand dollars per applicant
for approved qualified energy efficiency services for residential struc-
tures, and twenty-six thousand dollars per applicant for approved quali-
fied energy efficiency services for non-residential structures,
PROVIDED, HOWEVER, THAT THE AUTHORITY MAY PERMIT A LOAN IN EXCESS OF
SUCH AMOUNTS IF THE TOTAL COST OF ENERGY EFFICIENCY MEASURES FINANCED BY
SUCH LOAN WILL ACHIEVE A PAYBACK PERIOD OF FIFTEEN YEARS OR LESS, BUT IN
NO EVENT SHALL ANY SUCH LOAN EXCEED TWENTY-FIVE THOUSAND DOLLARS PER
APPLICANT FOR RESIDENTIAL STRUCTURES AND FIFTY THOUSAND DOLLARS PER
APPLICANT FOR NON-RESIDENTIAL STRUCTURES; and for multi-family struc-
tures loans shall be in amounts determined by the authority, provided,
however, that the authority shall assure that a significant number of
residential structures are included in the program; [and]
(iii) NO FEES OR PENALTIES SHALL BE CHARGED OR COLLECTED FOR PREPAY-
MENT OF ANY SUCH LOAN; AND
(IV) loans shall be at interest rates determined by the authority to
be no higher than necessary to make the provision of the qualified ener-
gy efficiency services feasible.
In determining whether to make a loan, and the amount of any loan that
is made, the authority is authorized to consider whether the applicant
or borrower has received, or is eligible to receive, financial assist-
ance and other incentives from any other source for the qualified energy
efficiency services which would be the subject of the loan. IN DETER-
MINING WHETHER A LOAN WILL ACHIEVE A PAYBACK PERIOD OF FIFTEEN YEARS OR
LESS PURSUANT TO SUBPARAGRAPH (II) OF THIS PARAGRAPH, THE AUTHORITY MAY
CONSIDER THE AMOUNT OF THE LOAN TO BE REDUCED BY THE AMOUNT OF ANY
REBATES FOR QUALIFIED ENERGY EFFICIENCY SERVICES RECEIVED BY THE APPLI-
CANT OR BY THE AUTHORITY ON BEHALF OF AN APPLICANT.
(c) Applications for financial assistance pursuant to this section
shall be reviewed and evaluated by the authority or its designee pursu-
ant to eligibility and qualification requirements and criteria estab-
lished by the authority. The authority shall establish standards for (i)
qualified energy efficiency services, and (ii) measurement and verifica-
tion of energy savings. Such standards shall meet or exceed the stand-
ards used by the authority for similar programs in existence on the
effective date of this section.
(d) The amount of a fee paid for an energy audit provided under
section eighteen hundred ninety-five of this title may be added to the
amount of a loan that is made under this section to finance the cost of
S. 5844 8 A. 8510
an eligible project conducted in response to such energy audit. In such
a case, the amount of the fee may be reimbursed from the fund to the
borrower.
(E) IN ESTABLISHING AN ON-BILL RECOVERY MECHANISM:
(I) THE COST-EFFECTIVENESS OF AN ELIGIBLE PROJECT SHALL BE EVALUATED
SOLELY ON THE BASIS OF THE COSTS AND PROJECTED SAVINGS TO THE APPLYING
CUSTOMER, USING STANDARD ENGINEERING ASSESSMENTS AND PRIOR BILLING DATA
AND USAGE PATTERNS; PROVIDED HOWEVER THAT BASED UPON THE MOST RECENT
CUSTOMER DATA AVAILABLE, ON AN ANNUALIZED BASIS, THE MONTHLY ON-BILL
REPAYMENT AMOUNT FOR A PACKAGE OF MEASURES SHALL NOT EXCEED ONE-TWELFTH
OF THE SAVINGS PROJECTED TO RESULT FROM THE INSTALLATION OF THE MEASURES
PROVIDED FURTHER THAT NOTHING HEREIN SHALL BE CONSTRUED TO PROHIBIT OR
PREVENT CUSTOMERS WHOSE PRIMARY HEATING ENERGY SOURCE IS FROM DELIVERA-
BLE FUELS FROM PARTICIPATING IN THE PROGRAM;
(II) THE AUTHORITY SHALL ESTABLISH A PROCESS FOR RECEIPT AND RESOL-
UTION OF CUSTOMER COMPLAINTS CONCERNING ON-BILL RECOVERY CHARGES AND FOR
ADDRESSING DELAYS AND DEFAULTS IN CUSTOMER PAYMENTS; AND
(III) THE AUTHORITY MAY LIMIT THE AVAILABILITY OF LIGHTING MEASURES OR
HOUSEHOLD APPLIANCES THAT ARE NOT PERMANENTLY AFFIXED TO REAL PROPERTY.
(F) PRIOR TO OR AT THE CLOSING OF EACH LOAN MADE PURSUANT TO THIS
SECTION, THE AUTHORITY SHALL CAUSE A NOTICE TO BE PROVIDED TO EACH
CUSTOMER RECEIVING SUCH LOAN STATING, IN CLEAR AND CONSPICUOUS TERMS:
(I) THE FINANCIAL AND LEGAL OBLIGATIONS AND RISKS OF ACCEPTING SUCH
LOAN RESPONSIBILITIES, INCLUDING THE OBLIGATION TO PROVIDE OR CONSENT TO
THE CUSTOMER'S UTILITY PROVIDING THE AUTHORITY INFORMATION ON THE SOURC-
ES AND QUANTITIES OF ENERGY USED IN THE CUSTOMER'S PREMISES AND ANY
IMPROVEMENTS OR MODIFICATIONS TO THE PREMISES, USE OF THE PREMISES OR
ENERGY CONSUMING APPLIANCES OR EQUIPMENT OF ANY TYPE THAT MAY SIGNIF-
ICANTLY AFFECT ENERGY USAGE;
(II) THAT THE ON-BILL RECOVERY CHARGE WILL BE BILLED BY SUCH CUSTOMER
UTILITY COMPANY AND THAT FAILURE TO PAY SUCH ON-BILL RECOVERY CHARGE MAY
RESULT IN THE CUSTOMER HAVING HIS OR HER ELECTRICITY AND/OR GAS TERMI-
NATED FOR NON-PAYMENT, PROVIDED THAT SUCH UTILITY COMPANY FOLLOWS THE
REQUIREMENTS OF ARTICLE TWO OF THE PUBLIC SERVICE LAW WITH RESPECT TO
RESIDENTIAL CUSTOMERS;
(III) THAT INCURRING SUCH LOAN TO UNDERTAKE ENERGY-EFFICIENCY
PROJECTS MAY NOT RESULT IN LOWER MONTHLY ENERGY COSTS OVER TIME, BASED
ON ADDITIONAL FACTORS THAT CONTRIBUTE TO MONTHLY ENERGY COSTS;
(IV) THAT THE PROGRAM IS OPERATED BY THE AUTHORITY AND IT IS THE SOLE
RESPONSIBILITY OF THE AUTHORITY TO HANDLE CONSUMER INQUIRIES AND
COMPLAINTS RELATED TO THE OPERATION AND LENDING ASSOCIATED WITH THE
PROGRAM, PROVIDED FURTHER THAT THE AUTHORITY SHALL PROVIDE A MECHANISM
TO RECEIVE SUCH CONSUMER INQUIRIES AND COMPLAINTS.
(G) ANY PERSON ENTERING INTO A LOAN AGREEMENT PURSUANT TO THIS SECTION
SHALL HAVE THE RIGHT TO CANCEL ANY SUCH LOAN AGREEMENT UNTIL MIDNIGHT OF
THE FIFTH BUSINESS DAY FOLLOWING THE DAY ON WHICH SUCH PERSON SIGNS SUCH
AGREEMENT PROVIDED THE LOAN PROCEEDS HAVE NOT YET BEEN DISBURSED.
3. THE AUTHORITY SHALL EVALUATE THE COST-EFFECTIVENESS OF THE ON-BILL
RECOVERY MECHANISM ON AN ON-GOING BASIS. (A) IN CONDUCTING SUCH EVALU-
ATION, THE AUTHORITY SHALL REQUEST EACH CUSTOMER TO PROVIDE:
(I) INFORMATION ON ENERGY USAGE AND/OR PERMISSION TO COLLECT INFORMA-
TION ON ENERGY USAGE FROM UTILITIES AND OTHER RETAIL VENDORS, INCLUDING
BUT NOT LIMITED TO INFORMATION REQUIRED TO BE FURNISHED TO CONSUMERS
UNDER ARTICLE SEVENTEEN OF THE ENERGY LAW;
(II) INFORMATION ON OTHER SOURCES OF ENERGY USED IN THE CUSTOMER'S
PREMISES; AND
S. 5844 9 A. 8510
(III) INFORMATION ON ANY IMPROVEMENTS OR MODIFICATIONS TO THE PREMISES
THAT MAY SIGNIFICANTLY AFFECT ENERGY USAGE.
(B) AT A MINIMUM THE AUTHORITY SHALL COLLECT AND MAINTAIN INFORMATION
FOR DATES PRIOR TO THE PERFORMANCE OF QUALIFIED ENERGY EFFICIENCY
SERVICES, TO ESTABLISH A BASELINE, AND FOR DATES COVERING A SUBSEQUENT
TIME PERIOD TO MEASURE THE EFFECTIVENESS OF SUCH MEASURES. SUCH DATA
SHALL BE CORRELATED WITH INFORMATION FROM THE ENERGY AUDIT AND ANY OTHER
RELEVANT INFORMATION, INCLUDING INFORMATION ON LOCAL WEATHER CONDITIONS,
AND SHALL BE USED TO EVALUATE THE ON-BILL RECOVERY PROGRAM AND TO
IMPROVE THE ACCURACY OF PROJECTIONS OF COST-EFFECTIVENESS ON AN ON-GOING
BASIS. AN ANALYSIS OF SUCH DATA SHALL BE INCLUDED IN THE ANNUAL REPORT
PREPARED PURSUANT TO SECTION EIGHTEEN HUNDRED NINETY-NINE OF THIS TITLE.
(C) ALL INFORMATION COLLECTED BY THE AUTHORITY SHALL BE CONFIDENTIAL
AND SHALL BE USED EXCLUSIVELY FOR THE PURPOSES OF THIS SUBDIVISION.
4. (A) QUALIFIED ENERGY EFFICIENCY SERVICES REPAID THROUGH AN ON-BILL
RECOVERY MECHANISM SHALL BE CONSIDERED A SPECIAL ENERGY PROJECT PURSUANT
TO SECTION EIGHTEEN HUNDRED FIFTY-ONE OF THIS ARTICLE. THE NEW YORK
STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY SHALL SECURE EVERY LOAN
ISSUED FOR SUCH SERVICES THAT ARE TO BE REPAID THROUGH AN ON-BILL RECOV-
ERY MECHANISM WITH A MORTGAGE UPON THE REAL PROPERTY THAT IS IMPROVED BY
SUCH SERVICES. SUCH MORTGAGE SHALL BE RECORDED PURSUANT TO SECTION TWO
HUNDRED NINETY-ONE-D OF THE REAL PROPERTY LAW.
(B) ALL TERMS AND PROVISIONS OF A GREEN JOBS-GREEN NEW YORK MORTGAGE
PURSUANT TO THIS SUBDIVISION SHALL BE SUBJECT AND SUBORDINATE TO THE
LIEN OF ANY MORTGAGE OR MORTGAGES ON SUCH PROPERTY. WHEN A SUBSEQUENT
PURCHASER OF THE PROPERTY IS GRANTED A MORTGAGE, THE GREEN JOBS-GREEN
NEW YORK MORTGAGE SHALL BE SUBORDINATE TO THE TERMS OF THAT MORTGAGE.
(C) THE MORTGAGEE SHALL NOT RETAIN ANY RIGHT TO ENFORCE PAYMENT OR
FORECLOSE UPON THE PROPERTY.
S 9. Section 1897 of the public authorities law is amended by adding a
new subdivision 7 to read as follows:
7. THE AUTHORITY SHALL PRESCRIBE CONDITIONS FOR TRAINING THAT WILL
INCLUDE IDENTIFIABLE STANDARDS FOR ALL EDUCATION AND TRAINING ACTIVITIES
AUTHORIZED UNDER THIS SECTION, AND WILL DESIGNATE A CERTIFICATE TO BE
ISSUED TO ANY TRAINEE THAT SUCCESSFULLY MEETS SUCH STANDARDS AND
COMPLETES THE REQUIRED EDUCATION AND TRAINING.
S 10. Subdivision 3 of section 1899 of the public authorities law, as
added by chapter 487 of the laws of 2009, is amended to read as follows:
3. The status of the authority's activities and outcomes related to
section eighteen hundred ninety-six of this title. Such report shall
include, but not be limited to:
(a) the number of persons who have applied for and received financial
assistance through the revolving loan fund;
(b) the revolving loan fund account balances;
(c) the number of loans in default; [and]
(d) the amount and nature of the costs incurred by the authority for
the activities described in paragraph (c) of subdivision one of section
eighteen hundred ninety-six of this title;
(E) THE AUTHORITY'S ACTIVITIES AND OUTCOMES RELATED TO ESTABLISHING AN
ON-BILL RECOVERY MECHANISM, INCLUDING THE NUMBER OF PERSONS WHO HAVE
APPLIED FOR AND WHO HAVE RECEIVED FINANCIAL ASSISTANCE THAT UTILIZES
ON-BILL RECOVERY AND THE RESULTS OF THE EVALUATION PROGRAM PERFORMED
PURSUANT TO SUBDIVISION THREE OF SECTION EIGHTEEN HUNDRED NINETY-SIX OF
THIS TITLE;
(F) THE AMOUNT EXPENDED BY THE AUTHORITY IN SUPPORT OF THE PROGRAM
AND THE PURPOSES FOR WHICH SUCH FUNDS HAVE BEEN EXPENDED;
S. 5844 10 A. 8510
(G) THE NUMBER OF CUSTOMERS PARTICIPATING IN THE PROGRAM, SEPARATELY
STATING THE NUMBER OF RESIDENTIAL AND NON-RESIDENTIAL CUSTOMERS AND THE
AMOUNTS FINANCED;
(H) THE NUMBER OF PROGRAM PARTICIPANTS WHO ARE IN ARREARS IN THEIR
UTILITY ACCOUNTS FOR ELECTRIC AND/OR GAS SERVICE;
(I) THE NUMBER OF PROGRAM PARTICIPANTS WHO ARE IN ARREARS IN THEIR
ON-BILL RECOVERY CHARGE PAYMENTS;
(J) THE NUMBER OF PROGRAM PARTICIPANTS WHOSE UTILITY SERVICE HAS BEEN
TERMINATED FOR NON-PAYMENT;
(K) A DESCRIPTION OF THE GEOGRAPHIC DISTRIBUTION OF LOANS MADE;
(L) AN ESTIMATE OF THE ENERGY SAVINGS RESULTING FROM THIS PROGRAM;
(M) AN ESTIMATE OF THE AVERAGE PROJECT COST; AND
(N) IN CONSULTATION WITH THE DEPARTMENT OF LABOR, AN ESTIMATE OF THE
NUMBER OF JOBS CREATED UNDER THE PROGRAM.
S 11. Section 242 of the real property law is amended by adding a new
subdivision 4 to read as follows:
4. DISCLOSURE PRIOR TO THE SALE OF REAL PROPERTY TO WHICH A GREEN
JOBS-GREEN NEW YORK ON-BILL RECOVERY CHARGE APPLIES. (A) ANY PERSON,
FIRM, COMPANY, PARTNERSHIP OR CORPORATION OFFERING TO SELL REAL PROPERTY
WHICH IS SUBJECT TO A GREEN JOBS-GREEN NEW YORK ON-BILL RECOVERY CHARGE
PURSUANT TO TITLE NINE-A OF ARTICLE EIGHT OF THE PUBLIC AUTHORITIES LAW
SHALL PROVIDE WRITTEN NOTICE TO THE PROSPECTIVE PURCHASER OR THE
PROSPECTIVE PURCHASER'S AGENT, STATING AS FOLLOWS: "THIS PROPERTY IS
SUBJECT TO A GREEN JOBS-GREEN NEW YORK ON-BILL RECOVERY CHARGE". SUCH
NOTICE SHALL ALSO STATE THE TOTAL AMOUNT OF THE ORIGINAL CHARGE, THE
PAYMENT SCHEDULE AND THE APPROXIMATE REMAINING BALANCE, A DESCRIPTION OF
THE ENERGY EFFICIENCY SERVICES PERFORMED, INCLUDING IMPROVEMENTS TO THE
PROPERTY, AND AN EXPLANATION OF THE BENEFIT OF THE GREEN JOBS-GREEN NEW
YORK QUALIFIED ENERGY EFFICIENCY SERVICES. SUCH NOTICE SHALL BE PROVIDED
BY THE SELLER PRIOR TO ACCEPTING A PURCHASE OFFER.
(B) ANY PROSPECTIVE OR ACTUAL PURCHASER WHO HAS SUFFERED A LOSS DUE TO
A VIOLATION OF THIS SUBDIVISION IS ENTITLED TO RECOVER ANY ACTUAL
DAMAGES INCURRED FROM THE PERSON OFFERING TO SELL OR SELLING SAID REAL
PROPERTY.
S 12. 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.
163. PRE-APPLICATION PROCEDURES.
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.
173. APPLICABILITY TO PUBLIC AUTHORITIES.
S 160. DEFINITIONS. WHERE USED IN THIS ARTICLE, THE FOLLOWING TERMS,
UNLESS THE CONTEXT OTHERWISE REQUIRES, SHALL HAVE THE FOLLOWING MEAN-
INGS:
S. 5844 11 A. 8510
1. "MUNICIPALITY" MEANS A COUNTY, CITY, TOWN OR VILLAGE LOCATED IN
THIS STATE.
2. "MAJOR ELECTRIC GENERATING FACILITY" MEANS AN ELECTRIC GENERATING
FACILITY WITH A NAMEPLATE GENERATING CAPACITY OF TWENTY-FIVE THOUSAND
KILOWATTS OR MORE, INCLUDING INTERCONNECTION 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, PUBLIC BENEFIT CORPO-
RATION, POLITICAL SUBDIVISION, GOVERNMENTAL AGENCY, MUNICIPALITY, PART-
NERSHIP, CO-OPERATIVE ASSOCIATION, TRUST OR ESTATE.
4. "BOARD" MEANS THE NEW YORK STATE BOARD ON ELECTRIC GENERATION
SITING AND THE ENVIRONMENT, WHICH SHALL BE IN THE DEPARTMENT AND CONSIST
OF SEVEN PERSONS: THE CHAIR OF THE DEPARTMENT, WHO SHALL SERVE AS CHAIR
OF THE BOARD; THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION; THE
COMMISSIONER OF HEALTH; THE CHAIR OF THE NEW YORK STATE ENERGY RESEARCH
AND DEVELOPMENT AUTHORITY; THE COMMISSIONER OF ECONOMIC DEVELOPMENT AND
TWO AD HOC PUBLIC MEMBERS, BOTH OF WHOM SHALL RESIDE WITHIN THE MUNICI-
PALITY IN WHICH THE FACILITY IS PROPOSED TO BE LOCATED, EXCEPT IF SUCH
FACILITY IS PROPOSED TO BE LOCATED WITHIN THE CITY OF NEW YORK, THEN ALL
AD HOC MEMBERS SHALL RESIDE WITHIN THE COMMUNITY DISTRICT IN WHICH THE
FACILITY IS PROPOSED TO BE LOCATED. ONE AD HOC MEMBER SHALL BE APPOINTED
BY THE PRESIDENT PRO TEM OF THE SENATE AND ONE AD HOC MEMBER SHALL BE
APPOINTED BY THE SPEAKER OF THE ASSEMBLY, IN ACCORDANCE WITH SUBDIVISION
TWO OF SECTION ONE HUNDRED SIXTY-ONE OF THIS ARTICLE. THE TERM OF THE AD
HOC PUBLIC MEMBERS SHALL CONTINUE UNTIL A FINAL DETERMINATION IS MADE IN
THE PARTICULAR PROCEEDING FOR WHICH THEY WERE APPOINTED.
5. "CERTIFICATE" MEANS A CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY
AND PUBLIC NEED AUTHORIZING THE CONSTRUCTION OF A MAJOR ELECTRIC GENER-
ATING FACILITY ISSUED BY THE BOARD PURSUANT TO THIS ARTICLE.
6. "FUEL WASTE BYPRODUCT" SHALL MEAN WASTE OR COMBINATION OF WASTES
PRODUCED AS A BYPRODUCT OF GENERATING ELECTRICITY FROM A MAJOR ELECTRIC
GENERATING FACILITY IN AN AMOUNT WHICH REQUIRES STORAGE OR DISPOSAL AND,
BECAUSE OF ITS QUANTITY, CONCENTRATION, OR PHYSICAL, CHEMICAL OR OTHER
CHARACTERISTICS, MAY POSE A SUBSTANTIAL PRESENT OR POTENTIAL HAZARD TO
HUMAN HEALTH OR THE ENVIRONMENT.
7. "NAMEPLATE" MEANS A MANUFACTURER'S DESIGNATION, GENERALLY AS
AFFIXED TO THE GENERATOR UNIT, WHICH STATES THE TOTAL OUTPUT OF SUCH
GENERATING FACILITY AS ORIGINALLY DESIGNED ACCORDING TO THE MANUFACTUR-
ER'S ORIGINAL DESIGN SPECIFICATIONS.
8. "PUBLIC INFORMATION COORDINATOR" MEANS AN OFFICE CREATED WITHIN THE
DEPARTMENT WHICH SHALL ASSIST AND ADVISE INTERESTED PARTIES AND MEMBERS
OF THE PUBLIC IN PARTICIPATING IN THE SITING AND CERTIFICATION OF MAJOR
ELECTRIC GENERATING FACILITIES. THE DUTIES OF THE PUBLIC INFORMATION
OFFICER SHALL INCLUDE, BUT NOT BE LIMITED TO: (A) IMPLEMENTING MEASURES
THAT ASSURE FULL AND ADEQUATE PUBLIC PARTICIPATION IN MATTERS BEFORE THE
BOARD; (B) RESPONDING TO INQUIRIES FROM THE PUBLIC FOR INFORMATION ON
HOW TO PARTICIPATE IN MATTERS BEFORE THE BOARD; (C) ASSISTING THE PUBLIC
IN REQUESTING RECORDS RELATING TO MATTERS BEFORE THE BOARD; (D) ENSURING
ALL INTERESTED PERSONS ARE PROVIDED WITH A REASONABLE OPPORTUNITY TO
PARTICIPATE AT PUBLIC MEETINGS RELATING TO MATTERS BEFORE THE BOARD; (E)
ENSURING THAT ALL NECESSARY OR REQUIRED DOCUMENTS ARE AVAILABLE FOR
PUBLIC ACCESS ON THE DEPARTMENT'S WEBSITE WITHIN ANY TIME PERIODS SPECI-
FIED WITHIN THIS ARTICLE; AND (F) ANY OTHER DUTIES AS MAY BE PRESCRIBED
BY THE BOARD, AFTER CONSULTATION WITH THE DEPARTMENT.
9. "LOCAL PARTIES" SHALL MEAN PERSONS RESIDING IN A COMMUNITY WHO MAY
BE AFFECTED BY THE PROPOSED MAJOR ELECTRIC GENERATING FACILITY WHO INDI-
S. 5844 12 A. 8510
VIDUALLY OR COLLECTIVELY SEEK INTERVENOR FUNDING PURSUANT TO SECTIONS
ONE HUNDRED SIXTY-THREE AND ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE.
S 161. GENERAL PROVISIONS RELATING TO THE BOARD. 1. THE BOARD,
EXCLUSIVE OF THE AD HOC MEMBERS, SHALL HAVE THE POWER TO ADOPT THE RULES
AND REGULATIONS RELATING TO THE PROCEDURES TO BE USED IN CERTIFYING
FACILITIES UNDER THE PROVISIONS OF THIS ARTICLE, INCLUDING THE SUSPEN-
SION 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 FACILITIES. THE
CHAIRPERSON, AFTER CONSULTATION WITH THE OTHER MEMBERS OF THE BOARD
EXCLUSIVE OF THE AD HOC MEMBERS, SHALL HAVE EXCLUSIVE JURISDICTION TO
ISSUE DECLARATORY RULINGS REGARDING THE APPLICABILITY OF, OR ANY OTHER
QUESTION UNDER, THIS ARTICLE AND RULES AND REGULATIONS ADOPTED HEREUNDER
AND TO GRANT REQUESTS FOR EXTENSIONS OR AMENDMENTS TO OR TRANSFERS OF
CERTIFICATE TERMS AND CONDITIONS, PROVIDED THAT NO PARTY TO THE PROCEED-
ING OPPOSES SUCH REQUEST FOR EXTENSIONS OR AMENDMENTS WITHIN THIRTY DAYS
OF THE FILING OF SUCH REQUEST. REGULATIONS ADOPTED BY THE BOARD MAY
PROVIDE FOR RENEWAL 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. THE BOARD
SHALL NOT ACCEPT ANY PRE-APPLICATION PRELIMINARY SCOPING STATEMENT OR
APPLICATION FOR A CERTIFICATE, OR EXERCISE ANY POWERS OR FUNCTIONS UNTIL
THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION HAS PROMULGATED RULES AND
REGULATIONS REQUIRED BY PARAGRAPHS (F) AND (G) OF SUBDIVISION ONE OF
SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE AND SECTION 19-0312 OF
THE ENVIRONMENTAL CONSERVATION LAW; PROVIDED HOWEVER THAT THE BOARD
SHALL BE AUTHORIZED TO ADOPT RULES AND REGULATIONS REQUIRED BY THIS
ARTICLE.
2. UPON RECEIPT OF A PRE-APPLICATION PRELIMINARY SCOPING STATEMENT
UNDER THIS ARTICLE, THE CHAIR SHALL PROMPTLY NOTIFY THE GOVERNOR, THE
PRESIDENT PRO TEM OF THE SENATE, THE SPEAKER OF THE ASSEMBLY, THE CHIEF
EXECUTIVE OFFICERS REPRESENTING THE MUNICIPALITY AND THE COUNTY IN WHICH
THE FACILITY IS PROPOSED TO BE LOCATED, AND, IF SUCH FACILITY IS
PROPOSED TO BE LOCATED WITHIN THE CITY OF NEW YORK, THE MAYOR OF THE
CITY OF NEW YORK, AS WELL AS THE CHAIRPERSON OF THE COMMUNITY BOARD AND
THE BOROUGH PRESIDENT REPRESENTING THE AREA IN WHICH THE FACILITY IS
PROPOSED TO BE LOCATED. ONE AD HOC MEMBER SHALL BE APPOINTED BY THE
PRESIDENT PRO TEM OF THE SENATE AND ONE AD HOC MEMBER SHALL BE APPOINTED
BY THE SPEAKER OF THE ASSEMBLY FROM A LIST OF CANDIDATES SUBMITTED TO
THEM, IN THE FOLLOWING MANNER. IF SUCH FACILITY IS PROPOSED TO BE
LOCATED OUTSIDE OF THE CITY OF NEW YORK, THE CHIEF EXECUTIVE OFFICER
REPRESENTING THE MUNICIPALITY SHALL NOMINATE FOUR CANDIDATES AND THE
CHIEF EXECUTIVE OFFICER REPRESENTING THE COUNTY SHALL NOMINATE FOUR
CANDIDATES FOR CONSIDERATION. IF SUCH FACILITY IS PROPOSED TO BE LOCATED
OUTSIDE OF THE CITY OF NEW YORK AND IN A VILLAGE LOCATED WITHIN A TOWN,
THE CHIEF EXECUTIVE OFFICER REPRESENTING THE TOWN SHALL NOMINATE FOUR
CANDIDATES, THE CHIEF EXECUTIVE OFFICER REPRESENTING THE COUNTY SHALL
NOMINATE FOUR CANDIDATES, AND THE CHIEF EXECUTIVE OFFICER REPRESENTING
THE VILLAGE SHALL NOMINATE FOUR CANDIDATES FOR CONSIDERATION. IF SUCH
FACILITY IS PROPOSED TO BE LOCATED IN THE CITY OF NEW YORK, THE CHAIR-
PERSON OF THE COMMUNITY BOARD, THE BOROUGH PRESIDENT, AND THE MAYOR OF
THE CITY OF NEW YORK SHALL EACH NOMINATE FOUR CANDIDATES FOR CONSIDER-
ATION. NOMINATIONS SHALL BE SUBMITTED TO THE PRESIDENT PRO TEM OF THE
SENATE AND THE SPEAKER OF THE ASSEMBLY WITHIN FIFTEEN DAYS OF RECEIPT OF
NOTIFICATION OF THE PRE-APPLICATION PRELIMINARY SCOPING STATEMENT. IN
THE EVENT THAT THE PRESIDENT PRO TEM OF THE SENATE DOES NOT APPOINT ONE
S. 5844 13 A. 8510
OF THE CANDIDATES WITHIN THIRTY DAYS OF SUCH NOMINATIONS, THE GOVERNOR
SHALL APPOINT THE AD HOC MEMBER FROM THE LIST OF CANDIDATES. IN THE
EVENT THAT THE SPEAKER OF THE ASSEMBLY DOES NOT APPOINT ONE OF THE
CANDIDATES WITHIN THIRTY DAYS OF SUCH NOMINATIONS, THE GOVERNOR SHALL
APPOINT THE AD HOC MEMBER FROM THE LIST OF CANDIDATES. IN THE EVENT
THAT ONE OR BOTH OF THE AD HOC PUBLIC MEMBERS HAVE NOT BEEN APPOINTED
WITHIN FORTY-FIVE DAYS, A MAJORITY OF PERSONS NAMED TO THE BOARD SHALL
CONSTITUTE A QUORUM.
3. IN ADDITION TO THE REQUIREMENTS OF THE PUBLIC OFFICERS LAW, NO
PERSON SHALL BE ELIGIBLE TO BE AN APPOINTEE TO THE BOARD WHO HOLDS
ANOTHER STATE OR LOCAL OFFICE. NO MEMBER OF THE BOARD MAY RETAIN OR HOLD
ANY OFFICIAL RELATION TO, OR ANY SECURITIES OF AN ELECTRIC UTILITY
CORPORATION OPERATING IN THE STATE OR PROPOSED FOR OPERATION IN THE
STATE, ANY AFFILIATE THEREOF OR ANY OTHER COMPANY, FIRM, PARTNERSHIP,
CORPORATION, ASSOCIATION OR JOINT-STOCK ASSOCIATION THAT MAY APPEAR
BEFORE THE BOARD, NOR SHALL EITHER OF THE APPOINTEES HAVE BEEN A DIREC-
TOR, OFFICER OR, WITHIN THE PREVIOUS TEN YEARS, AN EMPLOYEE THEREOF. THE
AD HOC APPOINTEES 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, SUBORDINATES AND
EMPLOYEES AND SUCH LEGAL, TECHNOLOGICAL, SCIENTIFIC, ENGINEERING AND
OTHER SERVICES AND SUCH MEETING ROOMS, HEARING ROOMS AND OTHER FACILI-
TIES AS MAY BE REQUIRED IN PROCEEDINGS UNDER THIS ARTICLE. THE BOARD
UNDER THE DIRECTION OF THE CHAIRPERSON, MAY PROVIDE FOR ITS OWN REPRE-
SENTATION AND APPEARANCE IN ALL ACTIONS AND PROCEEDINGS INVOLVING ANY
QUESTION UNDER THIS ARTICLE. THE DEPARTMENT OF ENVIRONMENTAL CONSERVA-
TION SHALL PROVIDE ASSOCIATE HEARING EXAMINERS. EACH MEMBER OF THE BOARD
OTHER THAN THE AD HOC APPOINTEES MAY DESIGNATE AN ALTERNATE TO SERVE
INSTEAD OF THE MEMBER WITH RESPECT TO ALL PROCEEDINGS PURSUANT TO THIS
ARTICLE. SUCH DESIGNATION SHALL BE IN WRITING AND FILED WITH THE CHAIR-
PERSON.
S 162. BOARD CERTIFICATE. 1. FOLLOWING THE PROMULGATION OF RULES AND
REGULATIONS PURSUANT TO PARAGRAPHS (F) AND (G) OF SUBDIVISION ONE OF
SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, AND SECTION 19-0312 OF
THE ENVIRONMENTAL CONSERVATION LAW, NO PERSON SHALL COMMENCE THE PREPA-
RATION OF A SITE FOR, OR BEGIN THE CONSTRUCTION OF A MAJOR ELECTRIC
GENERATING FACILITY IN THE STATE, OR INCREASE THE CAPACITY OF AN EXIST-
ING ELECTRIC GENERATING FACILITY BY MORE THAN TWENTY-FIVE THOUSAND KILO-
WATTS 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 OPER-
ATED EXCEPT IN CONFORMITY WITH SUCH CERTIFICATE AND ANY TERMS, LIMITA-
TIONS OR CONDITIONS CONTAINED THEREIN, PROVIDED THAT NOTHING HEREIN
SHALL EXEMPT SUCH FACILITY FROM COMPLIANCE WITH FEDERAL, STATE AND LOCAL
LAWS AND REGULATIONS EXCEPT AS OTHERWISE PROVIDED IN THIS ARTICLE. A
CERTIFICATE FOR A MAJOR ELECTRIC GENERATING FACILITY, OR AN INCREASE IN
THE CAPACITY OF AN EXISTING ELECTRIC GENERATING FACILITY BY MORE THAN
TWENTY-FIVE THOUSAND KILOWATTS, MAY BE ISSUED ONLY PURSUANT TO THIS
ARTICLE.
2. A CERTIFICATE MAY BE TRANSFERRED, SUBJECT TO THE APPROVAL OF THE
BOARD, TO A PERSON WHO AGREES TO COMPLY WITH THE TERMS, LIMITATIONS AND
CONDITIONS CONTAINED THEREIN.
3. A CERTIFICATE ISSUED UNDER THIS ARTICLE MAY BE AMENDED PURSUANT TO
THIS SECTION.
S. 5844 14 A. 8510
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 SITING JURISDICTION, OR HAS JURISDICTION CONCURRENT WITH
THAT OF THE STATE AND HAS EXERCISED SUCH JURISDICTION TO THE EXCLUSION
OF REGULATION OF THE FACILITY BY THE STATE;
(B) TO NORMAL REPAIRS, REPLACEMENTS, MODIFICATIONS AND IMPROVEMENTS OF
A MAJOR ELECTRIC GENERATING FACILITY, WHENEVER BUILT, WHICH DO NOT
CONSTITUTE A VIOLATION OF ANY CERTIFICATE ISSUED UNDER THIS ARTICLE AND
WHICH DO NOT RESULT IN AN INCREASE IN CAPACITY OF THE FACILITY OF MORE
THAN TWENTY-FIVE THOUSAND KILOWATTS;
(C) TO A MAJOR ELECTRIC GENERATING FACILITY (I) CONSTRUCTED ON LANDS
DEDICATED TO INDUSTRIAL USES, (II) THE OUTPUT OF WHICH SHALL BE USED
SOLELY FOR INDUSTRIAL PURPOSES, ON THE PREMISES, AND (III) THE GENERAT-
ING CAPACITY OF WHICH DOES NOT EXCEED TWO HUNDRED THOUSAND KILOWATTS; OR
(D) TO A MAJOR ELECTRIC GENERATING FACILITY IF, ON OR BEFORE THE
EFFECTIVE DATE OF THE RULES AND REGULATIONS PROMULGATED PURSUANT TO THIS
ARTICLE AND SECTION 19-0312 OF THE ENVIRONMENTAL CONSERVATION LAW, AN
APPLICATION HAS BEEN MADE FOR A LICENSE, PERMIT, CERTIFICATE, CONSENT OR
APPROVAL FROM ANY FEDERAL, STATE OR LOCAL COMMISSION, AGENCY, BOARD OR
REGULATORY BODY, IN WHICH APPLICATION THE LOCATION OF THE MAJOR ELECTRIC
GENERATING FACILITY HAS BEEN DESIGNATED BY THE APPLICANT; OR IF THE
FACILITY IS UNDER CONSTRUCTION AT SUCH TIME.
5. ANY PERSON INTENDING TO CONSTRUCT A MAJOR ELECTRIC GENERATING
FACILITY EXCLUDED FROM THIS ARTICLE PURSUANT TO PARAGRAPH (B), (C), OR
(D) OF SUBDIVISION FOUR OF THIS SECTION MAY ELECT TO BECOME SUBJECT TO
THE PROVISIONS OF THIS ARTICLE BY DELIVERING NOTICE OF SUCH ELECTION TO
THE CHAIR OF THE BOARD. THIS ARTICLE SHALL THEREAFTER APPLY TO EACH
ELECTRIC GENERATING FACILITY IDENTIFIED IN SUCH NOTICE FROM THE DATE OF
ITS RECEIPT BY THE CHAIR OF THE BOARD. FOR THE PURPOSES OF THIS ARTICLE,
EACH SUCH FACILITY SHALL BE TREATED IN THE SAME MANNER AS A MAJOR ELEC-
TRIC GENERATING FACILITY AS DEFINED IN THIS ARTICLE.
S 163. PRE-APPLICATION PROCEDURES. 1. ANY PERSON PROPOSING TO SUBMIT
AN APPLICATION FOR A CERTIFICATE SHALL FILE WITH THE BOARD A PRELIMINARY
SCOPING STATEMENT CONTAINING A BRIEF DISCUSSION, ON THE BASIS OF AVAIL-
ABLE INFORMATION, OF THE FOLLOWING ITEMS:
(A) DESCRIPTION OF THE PROPOSED FACILITY AND ITS ENVIRONMENTAL
SETTING;
(B) POTENTIAL ENVIRONMENTAL AND HEALTH IMPACTS RESULTING FROM THE
CONSTRUCTION AND OPERATION OF THE PROPOSED FACILITY;
(C) PROPOSED STUDIES OR PROGRAM OF STUDIES DESIGNED TO EVALUATE POTEN-
TIAL ENVIRONMENTAL AND HEALTH IMPACTS, INCLUDING, FOR PROPOSED WIND-POW-
ERED FACILITIES, PROPOSED STUDIES DURING PRE-CONSTRUCTION ACTIVITIES AND
A PROPOSED PERIOD OF POST-CONSTRUCTION OPERATIONS MONITORING FOR POTEN-
TIAL IMPACTS TO AVIAN AND BAT SPECIES;
(D) MEASURES PROPOSED TO MINIMIZE ENVIRONMENTAL IMPACTS; AND
(E) WHERE THE PROPOSED FACILITY INTENDS TO USE PETROLEUM OR OTHER
BACK-UP FUEL FOR GENERATING ELECTRICITY, A DISCUSSION AND/OR STUDY OF
THE SUFFICIENCY OF THE PROPOSED ON-SITE FUEL STORAGE CAPACITY AND
SUPPLY; AND
(F) REASONABLE ALTERNATIVES TO THE FACILITY THAT MAY BE REQUIRED BY
PARAGRAPH (I) OF SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF
THIS ARTICLE;
(G) IDENTIFICATION OF ALL OTHER STATE AND FEDERAL PERMITS, CERTIF-
ICATIONS, OR OTHER AUTHORIZATIONS NEEDED FOR CONSTRUCTION, OPERATION OR
MAINTENANCE OF THE PROPOSED FACILITY; AND
S. 5844 15 A. 8510
(H) ANY OTHER INFORMATION THAT MAY BE RELEVANT OR THAT THE BOARD MAY
REQUIRE.
2. SUCH PERSON SHALL SERVE COPIES OF THE PRELIMINARY SCOPING STATEMENT
ON PERSONS ENUMERATED IN PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION ONE
HUNDRED SIXTY-FOUR OF THIS ARTICLE AND PROVIDE NOTICE OF SUCH STATEMENT
AS PROVIDED IN PARAGRAPH (B) OF SUCH SUBDIVISION IN PLAIN LANGUAGE, IN
ENGLISH AND IN ANY OTHER LANGUAGE SPOKEN AS DETERMINED BY THE BOARD BY A
SIGNIFICANT PORTION OF THE POPULATION IN THE COMMUNITY, THAT DESCRIBES
THE PROPOSED FACILITY AND ITS LOCATION, THE RANGE OF POTENTIAL ENVIRON-
MENTAL AND HEALTH IMPACTS OF EACH POLLUTANT, THE APPLICATION AND REVIEW
PROCESS, AND A CONTACT PERSON, WITH PHONE NUMBER AND ADDRESS, FROM WHOM
INFORMATION WILL BE AVAILABLE AS THE APPLICATION PROCEEDS.
3. TO FACILITATE THE PRE-APPLICATION AND APPLICATION PROCESSES AND
ENABLE CITIZENS TO PARTICIPATE IN DECISIONS THAT AFFECT THEIR HEALTH AND
SAFETY AND THE ENVIRONMENT, THE DEPARTMENT AND SUCH PERSON SHALL PROVIDE
OPPORTUNITIES FOR CITIZEN INVOLVEMENT. SUCH OPPORTUNITIES SHALL ENCOUR-
AGE CONSULTATION WITH THE PUBLIC EARLY IN THE PRE-APPLICATION AND APPLI-
CATION PROCESSES, ESPECIALLY BEFORE ANY PARTIES ENTER A STIPULATION
PURSUANT TO SUBDIVISION FIVE OF THIS SECTION. THE PRIMARY GOALS OF THE
CITIZEN PARTICIPATION PROCESS SHALL BE TO FACILITATE COMMUNICATION
BETWEEN THE APPLICANT AND INTERESTED OR AFFECTED PERSONS. THE PROCESS
SHALL FOSTER THE ACTIVE INVOLVEMENT OF THE INTERESTED OR AFFECTED
PERSONS.
4. (A) EACH PRE-APPLICATION PRELIMINARY SCOPING STATEMENT SHALL BE
ACCOMPANIED BY A FEE IN AN AMOUNT EQUAL TO THREE HUNDRED FIFTY DOLLARS
FOR EACH THOUSAND KILOWATTS OF GENERATING CAPACITY OF THE SUBJECT FACIL-
ITY, BUT NO MORE THAN TWO HUNDRED THOUSAND DOLLARS, TO BE DEPOSITED IN
THE INTERVENOR ACCOUNT ESTABLISHED PURSUANT TO SECTION NINETY-SEVEN-KKKK
OF THE STATE FINANCE LAW, TO BE DISBURSED AT THE HEARING EXAMINER'S
DIRECTION TO DEFRAY PRE-APPLICATION EXPENSES INCURRED BY MUNICIPAL AND
LOCAL PARTIES (EXCEPT FOR A MUNICIPALITY SUBMITTING THE PRE-APPLICATION
SCOPING STATEMENT) FOR EXPERT WITNESS, CONSULTANT, ADMINISTRATIVE AND
LEGAL FEES. IF AT ANY TIME SUBSEQUENT TO THE FILING OF THE PRE-APPLICA-
TION THE PRE-APPLICATION IS SUBSTANTIALLY MODIFIED OR REVISED, THE BOARD
MAY REQUIRE AN ADDITIONAL PRE-APPLICATION INTERVENOR FEE IN AN AMOUNT
NOT TO EXCEED TWENTY-FIVE THOUSAND DOLLARS. NO FEES MADE AVAILABLE
UNDER THIS PARAGRAPH SHALL BE USED FOR JUDICIAL REVIEW OR LITIGATION.
ANY MONEYS REMAINING IN THE INTERVENOR ACCOUNT UPON THE SUBMISSION OF AN
APPLICATION FOR A CERTIFICATE SHALL BE MADE AVAILABLE TO INTERVENORS
ACCORDING TO PARAGRAPH (A) OF SUBDIVISION SIX OF SECTION ONE HUNDRED
SIXTY-FOUR OF THIS ARTICLE.
(B) PRE-APPLICATION DISBURSEMENTS FROM THE INTERVENOR ACCOUNT SHALL BE
MADE IN ACCORDANCE WITH RULES AND REGULATIONS ESTABLISHED PURSUANT TO
PARAGRAPH (B) OF SUBDIVISION SIX OF SECTION ONE HUNDRED SIXTY-FOUR OF
THIS ARTICLE WHICH RULES SHALL PROVIDE FOR AN EXPEDITED PRE-APPLICATION
DISBURSEMENT SCHEDULE TO ASSURE EARLY AND MEANINGFUL PUBLIC INVOLVEMENT,
WITH AT LEAST ONE-HALF OF PRE-APPLICATION INTERVENOR FUNDS BECOMING
AVAILABLE THROUGH AN APPLICATION PROCESS TO COMMENCE WITHIN SIXTY DAYS
OF THE FILING OF A PRE-APPLICATION PRELIMINARY SCOPING STATEMENT.
5. AFTER MEETING THE REQUIREMENTS OF SUBDIVISIONS ONE THROUGH THREE OF
THIS SECTION, AND AFTER PRE-APPLICATION INTERVENOR FUNDS HAVE BEEN ALLO-
CATED BY THE PRE-HEARING EXAMINER PURSUANT TO PARAGRAPH (B) OF SUBDIVI-
SION FOUR OF THIS SECTION, SUCH PERSON MAY CONSULT AND SEEK AGREEMENT
WITH ANY INTERESTED PERSON, INCLUDING, BUT NOT LIMITED TO, THE STAFF OF
THE DEPARTMENT, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION AND THE
DEPARTMENT OF HEALTH, AS APPROPRIATE, AS TO ANY ASPECT OF THE PRELIMI-
S. 5844 16 A. 8510
NARY SCOPING STATEMENT AND ANY STUDY OR PROGRAM OF STUDIES MADE OR TO BE
MADE TO SUPPORT SUCH APPLICATION. THE STAFF OF THE DEPARTMENT, THE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION, THE DEPARTMENT OF HEALTH, THE
PERSON PROPOSING TO FILE AN APPLICATION, AND ANY OTHER INTERESTED PERSON
MAY ENTER INTO A STIPULATION SETTING FORTH AN AGREEMENT ON ANY ASPECT OF
THE PRELIMINARY SCOPING STATEMENT AND THE STUDIES OR PROGRAM OF STUDIES
TO BE CONDUCTED. ANY SUCH PERSON PROPOSING TO SUBMIT AN APPLICATION FOR
A CERTIFICATE SHALL SERVE A COPY OF THE PROPOSED STIPULATION UPON ALL
PERSONS ENUMERATED IN PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION ONE
HUNDRED SIXTY-FOUR OF THIS ARTICLE, PROVIDE NOTICE OF SUCH STIPULATION
TO THOSE PERSONS IDENTIFIED IN PARAGRAPH (B) OF SUCH SUBDIVISION, AND
AFFORD THE PUBLIC A REASONABLE OPPORTUNITY TO SUBMIT COMMENTS ON THE
STIPULATION BEFORE IT IS EXECUTED BY THE INTERESTED PARTIES. NOTHING IN
THIS SECTION, HOWEVER, SHALL BAR ANY PARTY TO A HEARING ON AN APPLICA-
TION, OTHER THAN ANY PARTY TO A PRE-APPLICATION STIPULATION, FROM TIMELY
RAISING OBJECTIONS TO ANY ASPECT OF THE PRELIMINARY SCOPING STATEMENT
AND THE METHODOLOGY AND SCOPE OF ANY STIPULATED STUDIES OR PROGRAM OF
STUDIES IN ANY SUCH AGREEMENT. IN ORDER TO ATTEMPT TO RESOLVE ANY QUES-
TIONS THAT MAY ARISE AS A RESULT OF SUCH CONSULTATION, THE DEPARTMENT
SHALL DESIGNATE A HEARING EXAMINER WHO SHALL OVERSEE THE PRE-APPLICATION
PROCESS AND MEDIATE ANY ISSUE RELATING TO ANY ASPECT OF THE PRELIMINARY
SCOPING STATEMENT AND THE METHODOLOGY AND SCOPE OF ANY SUCH STUDIES OR
PROGRAMS OF STUDY. UPON COMPLETION OF THE NOTICE PROVISIONS PROVIDED IN
THIS SECTION, SUCH HEARING EXAMINER SHALL, WITHIN SIXTY DAYS OF THE
FILING OF A PRELIMINARY SCOPING STATEMENT, CONVENE A MEETING OF INTER-
ESTED PARTIES IN ORDER TO INITIATE THE STIPULATION PROCESS.
S 164. APPLICATION FOR A CERTIFICATE. 1. AN APPLICANT FOR A CERTIF-
ICATE SHALL FILE WITH THE BOARD AN APPLICATION, IN SUCH FORM AS THE
BOARD MAY PRESCRIBE CONTAINING THE FOLLOWING INFORMATION AND MATERIALS:
(A) A DESCRIPTION OF THE SITE AND A DESCRIPTION OF THE FACILITY TO BE
BUILT THEREON; INCLUDING AVAILABLE SITE INFORMATION, MAPS AND
DESCRIPTIONS, PRESENT AND PROPOSED DEVELOPMENT, SOURCE AND VOLUME OF
WATER REQUIRED FOR PLANT OPERATION AND COOLING, ANTICIPATED EMISSIONS TO
AIR, INCLUDING BUT NOT LIMITED TO FEDERAL CRITERIA POLLUTANTS AND MERCU-
RY, ANTICIPATED DISCHARGES TO WATER AND GROUNDWATER, POLLUTION CONTROL
EQUIPMENT, AND, AS APPROPRIATE, GEOLOGICAL, VISUAL OR OTHER AESTHETIC,
ECOLOGICAL, TSUNAMI, SEISMIC, BIOLOGICAL, WATER SUPPLY, POPULATION AND
LOAD CENTER DATA;
(B) AN EVALUATION OF THE EXPECTED ENVIRONMENTAL AND HEALTH IMPACTS AND
SAFETY IMPLICATIONS OF THE FACILITY, BOTH DURING ITS CONSTRUCTION AND
ITS OPERATION, INCLUDING ANY STUDIES, IDENTIFYING THE AUTHOR AND DATE
THEREOF, USED IN THE EVALUATION, WHICH IDENTIFIES (I) THE ANTICIPATED
GASEOUS, LIQUID AND SOLID WASTES TO BE PRODUCED AT THE FACILITY INCLUD-
ING 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 TREAT-
MENT 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 ENVIRON-
MENT 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
S. 5844 17 A. 8510
LAWS, AND A STATEMENT WHY ANY VARIANCES OR EXCEPTIONS SHOULD BE GRANTED;
(VI) WATER WITHDRAWALS FROM AND DISCHARGES TO THE WATERSHED; (VII) A
DESCRIPTION OF THE FUEL INTERCONNECTION AND SUPPLY FOR THE PROJECT; AND
(VIII) AN ELECTRIC INTERCONNECTION STUDY, CONSISTING GENERALLY OF A
DESIGN STUDY AND A SYSTEM RELIABILITY IMPACT STUDY;
(C) SUCH EVIDENCE AS WILL ENABLE THE BOARD AND THE COMMISSIONER OF
ENVIRONMENTAL CONSERVATION TO EVALUATE THE FACILITY'S POLLUTION CONTROL
SYSTEMS AND TO REACH A DETERMINATION TO ISSUE THEREFOR, SUBJECT TO
APPROPRIATE CONDITIONS AND LIMITATIONS, PERMITS PURSUANT TO FEDERAL
RECOGNITION OF STATE AUTHORITY IN ACCORDANCE WITH THE FEDERAL CLEAN
WATER ACT, THE FEDERAL CLEAN AIR ACT AND THE FEDERAL RESOURCE CONSERVA-
TION AND RECOVERY ACT, AND PERMITS PURSUANT TO SECTION 15-1503 AND ARTI-
CLE NINETEEN OF THE ENVIRONMENTAL CONSERVATION LAW;
(D) WHERE THE PROPOSED FACILITY INTENDS TO USE PETROLEUM OR OTHER
BACK-UP FUEL FOR GENERATING ELECTRICITY, EVIDENCE AND AN EVALUATION ON
THE ADEQUACY OF THE FACILITY'S ON-SITE BACK-UP FUEL STORAGE AND SUPPLY;
(E) A PLAN FOR SECURITY OF THE PROPOSED FACILITY DURING CONSTRUCTION
AND OPERATION OF SUCH FACILITY AND THE MEASURES TO BE TAKEN TO ENSURE
THE SAFETY AND SECURITY OF THE LOCAL COMMUNITY, INCLUDING CONTINGENCY,
EMERGENCY RESPONSE AND EVACUATION CONTROL, TO BE REVIEWED BY THE BOARD
IN CONSULTATION WITH THE NEW YORK STATE DIVISION OF HOMELAND SECURITY
AND EMERGENCY SERVICES AND IN CITIES WITH A POPULATION OVER ONE MILLION,
SUCH PLAN SHALL ALSO BE REVIEWED BY THE LOCAL OFFICE OF EMERGENCY
MANAGEMENT;
(F) IN ACCORDANCE WITH RULES AND REGULATIONS THAT SHALL BE PROMULGATED
BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION FOR THE ANALYSIS OF
ENVIRONMENTAL JUSTICE ISSUES, INCLUDING THE REQUIREMENTS OF PARAGRAPHS
(G) AND (H) OF SUBDIVISION ONE OF THIS SECTION, AN EVALUATION OF SIGNIF-
ICANT AND ADVERSE DISPROPORTIONATE ENVIRONMENTAL IMPACTS OF THE PROPOSED
FACILITY, IF ANY, RESULTING FROM ITS CONSTRUCTION AND OPERATION, INCLUD-
ING ANY STUDIES IDENTIFYING THE AUTHOR AND DATES THEREOF, WHICH WERE
USED IN THE EVALUATION;
(G) A CUMULATIVE IMPACT ANALYSIS OF AIR QUALITY WITHIN A HALF-MILE OF
THE FACILITY, OR OTHER RADIUS AS DETERMINED BY STANDARDS ESTABLISHED BY
DEPARTMENT OF ENVIRONMENTAL CONSERVATION REGULATIONS, THAT CONSIDERS
AVAILABLE DATA ASSOCIATED WITH PROJECTED EMISSIONS OF AIR POLLUTANTS,
INCLUDING BUT NOT LIMITED TO FEDERAL CRITERIA POLLUTANTS AND MERCURY,
FROM SOURCES, INCLUDING, BUT NOT LIMITED TO, THE FACILITY, FACILITIES
THAT HAVE BEEN PROPOSED UNDER THIS ARTICLE AND HAVE SUBMITTED AN APPLI-
CATION DETERMINED TO BE IN COMPLIANCE BY THE BOARD, EXISTING SOURCES,
AND SOURCES PERMITTED BUT NOT YET CONSTRUCTED THAT WERE PERMITTED SIXTY
OR MORE DAYS PRIOR TO THE FILING OF THE APPLICATION UNDER TITLE V OF THE
CLEAN AIR ACT, PROVIDED THAT SUCH ANALYSIS AND STANDARDS SHALL BE IN
ACCORDANCE WITH RULES AND REGULATIONS THAT SHALL BE PROMULGATED BY THE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION PURSUANT TO THIS PARAGRAPH;
(H) A COMPREHENSIVE DEMOGRAPHIC, ECONOMIC AND PHYSICAL DESCRIPTION OF
THE COMMUNITY WITHIN WHICH THE FACILITY IS LOCATED, WITHIN A HALF-MILE
RADIUS OF THE LOCATION OF THE PROPOSED FACILITY, COMPARED AND CONTRASTED
WITH THE COUNTY IN WHICH THE FACILITY IS PROPOSED AND WITH ADJACENT
COMMUNITIES WITHIN SUCH COUNTY, INCLUDING REASONABLY AVAILABLE DATA ON
POPULATION, RACIAL AND ETHNIC CHARACTERISTICS, INCOME LEVELS, OPEN
SPACE, AND PUBLIC HEALTH DATA, INCLUDING AVAILABLE DEPARTMENT OF PUBLIC
HEALTH DATA ON INCIDENTS OF ASTHMA AND CANCER PROVIDED THAT SUCH
DESCRIPTION AND COMPARISON SHALL BE IN ACCORDANCE WITH RULES AND REGU-
LATIONS PROMULGATED PURSUANT TO PARAGRAPH (F) OF THIS SUBDIVISION;
S. 5844 18 A. 8510
(I) A DESCRIPTION AND EVALUATION OF REASONABLE AND AVAILABLE ALTERNATE
LOCATIONS TO THE PROPOSED FACILITY, IF ANY; A DESCRIPTION OF THE COMPAR-
ATIVE ADVANTAGES AND DISADVANTAGES AS APPROPRIATE; AND A STATEMENT OF
THE REASONS WHY THE PRIMARY PROPOSED LOCATION AND SOURCE, AS APPROPRI-
ATE, IS BEST SUITED, AMONG THE ALTERNATIVES CONSIDERED, TO PROMOTE
PUBLIC HEALTH AND WELFARE, INCLUDING THE RECREATIONAL AND OTHER CONCUR-
RENT 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;
(J) FOR PROPOSED WIND-POWERED FACILITIES, THE EXPECTED ENVIRONMENTAL
IMPACTS OF THE FACILITY ON AVIAN AND BAT SPECIES BASED ON PRE-CONSTRUC-
TION STUDIES CONDUCTED PURSUANT TO PARAGRAPH (C) OF SUBDIVISION ONE OF
SECTION ONE HUNDRED SIXTY-THREE OF THIS ARTICLE; AND A PROPOSED PLAN TO
AVOID OR, WHERE UNAVOIDABLE, MINIMIZE AND MITIGATE ANY SUCH IMPACTS
DURING CONSTRUCTION AND OPERATION OF THE FACILITY BASED ON EXISTING
INFORMATION AND RESULTS OF POST-CONSTRUCTION MONITORING PROPOSED IN THE
PLAN;
(K) AN ANALYSIS OF THE POTENTIAL IMPACT THAT THE PROPOSED FACILITY
WILL HAVE ON THE WHOLESALE GENERATION MARKETS, BOTH GENERALLY AND FOR
THE LOCATION-BASED MARKET IN WHICH THE FACILITY IS PROPOSED, AS WELL AS
THE POTENTIAL IMPACT OF THE PROPOSED FACILITY ON FUEL COSTS;
(L) A STATEMENT DEMONSTRATING THAT THE FACILITY IS REASONABLY CONSIST-
ENT WITH THE MOST RECENT STATE ENERGY PLAN, INCLUDING, BUT NOT LIMITED
TO, IMPACTS ON FUEL DIVERSITY, REGIONAL REQUIREMENTS FOR CAPACITY, ELEC-
TRIC TRANSMISSION AND FUEL DELIVERY CONSTRAINTS AND OTHER ISSUES AS
APPROPRIATE, INCLUDING THE COMPARATIVE ADVANTAGES AND DISADVANTAGES OF
REASONABLE AND AVAILABLE ALTERNATE LOCATIONS OR PROPERTIES IDENTIFIED
FOR POWER PLANT CONSTRUCTION, AND A STATEMENT OF THE REASONS WHY THE
PROPOSED LOCATION AND SOURCE IS BEST SUITED, AMONG THE ALTERNATIVES
IDENTIFIED, TO PROMOTE PUBLIC HEALTH AND WELFARE;
(M) 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; AND
2. EACH APPLICATION SHALL BE ACCOMPANIED BY PROOF OF SERVICE, IN SUCH
MANNER AS THE BOARD SHALL PRESCRIBE, OF:
(A) A COPY OF SUCH APPLICATION ON (I) EACH MUNICIPALITY IN WHICH ANY
PORTION OF SUCH FACILITY IS TO BE LOCATED AS PROPOSED OR IN ANY ALTERNA-
TIVE LOCATION LISTED. SUCH COPY TO A MUNICIPALITY SHALL BE ADDRESSED TO
THE CHIEF EXECUTIVE OFFICER THEREOF AND SHALL SPECIFY THE DATE ON OR
ABOUT WHICH THE APPLICATION IS TO BE FILED;
(II) EACH MEMBER OF THE BOARD;
(III) THE DEPARTMENT OF AGRICULTURE AND MARKETS;
(IV) THE SECRETARY OF STATE;
(V) THE ATTORNEY GENERAL;
(VI) THE DEPARTMENT OF TRANSPORTATION;
(VII) THE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION;
(VIII) A LIBRARY SERVING THE DISTRICT OF EACH MEMBER OF THE STATE
LEGISLATURE IN WHOSE DISTRICT ANY PORTION OF THE FACILITY IS TO BE
LOCATED AS PROPOSED OR IN ANY ALTERNATIVE LOCATION LISTED;
(IX) IN THE EVENT THAT SUCH FACILITY OR ANY PORTION THEREOF AS
PROPOSED OR IN ANY ALTERNATIVE LOCATION LISTED IS LOCATED WITHIN THE
ADIRONDACK PARK, AS DEFINED IN SUBDIVISION ONE OF SECTION 9-0101 OF THE
ENVIRONMENTAL CONSERVATION LAW, THE ADIRONDACK PARK AGENCY; AND
(X) THE PUBLIC INFORMATION COORDINATOR FOR PLACEMENT ON THE WEBSITE OF
THE DEPARTMENT; AND
S. 5844 19 A. 8510
(B) A NOTICE OF SUCH APPLICATION ON (I) PERSONS RESIDING IN MUNICI-
PALITIES ENTITLED TO RECEIVE A COPY OF THE APPLICATION UNDER SUBPARA-
GRAPH (I) OF PARAGRAPH (A) OF THIS SUBDIVISION. SUCH NOTICE SHALL BE
GIVEN BY THE PUBLICATION OF A SUMMARY OF THE APPLICATION AND THE DATE ON
OR ABOUT WHICH IT WILL BE FILED, TO BE PUBLISHED UNDER REGULATIONS TO BE
PROMULGATED BY THE BOARD, IN SUCH FORM AND IN SUCH NEWSPAPER OR NEWSPA-
PERS, INCLUDING LOCAL COMMUNITY AND GENERAL CIRCULATION NEWSPAPERS, AS
WILL SERVE SUBSTANTIALLY TO INFORM THE PUBLIC OF SUCH APPLICATION, IN
PLAIN LANGUAGE, IN ENGLISH AND IN ANY OTHER LANGUAGE SPOKEN AS DETER-
MINED BY THE BOARD BY A SIGNIFICANT PORTION OF THE POPULATION IN THE
COMMUNITY, THAT DESCRIBES THE PROPOSED FACILITY AND ITS LOCATION, THE
RANGE OF POTENTIAL ENVIRONMENTAL AND HEALTH IMPACTS OF EACH POLLUTANT,
THE APPLICATION AND REVIEW PROCESS, AND A CONTACT PERSON, WITH PHONE
NUMBER AND ADDRESS, FROM WHOM INFORMATION WILL BE AVAILABLE AS THE
APPLICATION PROCEEDS;
(II) EACH MEMBER OF THE STATE LEGISLATURE IN WHOSE DISTRICT ANY
PORTION OF THE FACILITY IS TO BE LOCATED AS PROPOSED OR IN ANY ALTERNA-
TIVE LOCATION LISTED; AND
(III) PERSONS WHO HAVE FILED A STATEMENT WITH THE SECRETARY WITHIN THE
PAST TWELVE MONTHS THAT THEY WISH TO RECEIVE ALL SUCH NOTICES CONCERNING
FACILITIES IN THE AREA IN WHICH THE FACILITY IS TO BE LOCATED AS
PROPOSED OR IN ANY ALTERNATIVE LOCATION LISTED.
3. INADVERTENT FAILURE OF SERVICE ON ANY OF THE MUNICIPALITIES,
PERSONS, AGENCIES, BODIES OR COMMISSIONS NAMED IN SUBDIVISION TWO OF
THIS SECTION SHALL NOT BE JURISDICTIONAL AND MAY BE CURED PURSUANT TO
REGULATIONS OF THE BOARD DESIGNED TO AFFORD SUCH PERSONS ADEQUATE NOTICE
TO ENABLE THEM TO PARTICIPATE EFFECTIVELY IN THE PROCEEDING. IN ADDI-
TION, THE BOARD MAY, AFTER FILING, REQUIRE THE APPLICANT TO SERVE NOTICE
OF THE APPLICATION OR COPIES THEREOF OR BOTH UPON SUCH OTHER PERSONS AND
FILE PROOF THEREOF AS THE BOARD MAY DEEM APPROPRIATE.
4. THE BOARD SHALL PRESCRIBE THE FORM AND CONTENT OF AN APPLICATION
FOR AN AMENDMENT OF A CERTIFICATE TO BE ISSUED PURSUANT TO THIS ARTICLE.
NOTICE OF SUCH AN APPLICATION SHALL BE GIVEN AS SET FORTH IN SUBDIVISION
TWO OF THIS SECTION.
5. IF A REASONABLE AND AVAILABLE ALTERNATE LOCATION NOT LISTED IN THE
APPLICATION IS PROPOSED IN THE CERTIFICATION PROCEEDING, NOTICE OF SUCH
PROPOSED ALTERNATIVE SHALL BE GIVEN AS SET FORTH IN SUBDIVISION TWO OF
THIS SECTION.
6. (A) EACH APPLICATION SHALL BE ACCOMPANIED BY A FEE IN AN AMOUNT (I)
EQUAL TO ONE THOUSAND DOLLARS FOR EACH THOUSAND KILOWATTS OF CAPACITY,
BUT NO MORE THAN FOUR HUNDRED THOUSAND DOLLARS, (II) AND FOR FACILITIES
THAT WILL REQUIRE STORAGE OR DISPOSAL OF FUEL WASTE BYPRODUCT AN ADDI-
TIONAL FEE OF FIVE HUNDRED DOLLARS FOR EACH THOUSAND KILOWATT OF CAPACI-
TY, BUT NO MORE THAN FIFTY THOUSAND DOLLARS SHALL BE DEPOSITED IN THE
INTERVENOR ACCOUNT, ESTABLISHED PURSUANT TO SECTION NINETY-SEVEN-KKKK OF
THE STATE FINANCE LAW, TO BE DISBURSED AT THE BOARD'S DIRECTION, TO
DEFRAY EXPENSES INCURRED BY MUNICIPAL AND OTHER LOCAL PARTIES TO THE
PROCEEDING (EXCEPT A MUNICIPALITY WHICH IS THE APPLICANT) FOR EXPERT
WITNESS, CONSULTANT, ADMINISTRATIVE AND LEGAL FEES, PROVIDED, HOWEVER,
SUCH EXPENSES SHALL NOT BE AVAILABLE FOR JUDICIAL REVIEW OR LITIGATION.
IF AT ANY TIME SUBSEQUENT TO THE FILING OF THE APPLICATION, THE APPLICA-
TION IS AMENDED IN A MANNER THAT WARRANTS SUBSTANTIAL ADDITIONAL SCRUTI-
NY, THE BOARD MAY REQUIRE AN ADDITIONAL INTERVENOR FEE IN AN AMOUNT NOT
TO EXCEED SEVENTY-FIVE THOUSAND DOLLARS. THE BOARD SHALL PROVIDE FOR
NOTICES, FOR MUNICIPAL AND OTHER LOCAL PARTIES, IN ALL APPROPRIATE
LANGUAGES. ANY MONEYS REMAINING IN THE INTERVENOR ACCOUNT AFTER THE
S. 5844 20 A. 8510
BOARD'S JURISDICTION OVER AN APPLICATION HAS CEASED SHALL BE RETURNED TO
THE APPLICANT.
(B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE
BOARD SHALL PROVIDE BY RULES AND REGULATIONS FOR THE MANAGEMENT OF THE
INTERVENOR ACCOUNT AND FOR DISBURSEMENTS FROM THE ACCOUNT, WHICH RULES
AND REGULATIONS SHALL BE CONSISTENT WITH THE PURPOSE OF THIS SECTION TO
MAKE AVAILABLE TO MUNICIPAL PARTIES AT LEAST ONE-HALF OF THE AMOUNT OF
THE INTERVENOR ACCOUNT AND FOR USES SPECIFIED IN PARAGRAPH (A) OF THIS
SUBDIVISION. IN ADDITION, THE BOARD SHALL PROVIDE OTHER LOCAL PARTIES UP
TO ONE-HALF OF THE AMOUNT OF THE INTERVENOR ACCOUNT, PROVIDED, HOWEVER,
THAT THE BOARD SHALL ASSURE THAT THE PURPOSES FOR WHICH MONEYS IN THE
INTERVENOR ACCOUNT WILL BE EXPENDED WILL CONTRIBUTE TO AN INFORMED DECI-
SION AS TO THE APPROPRIATENESS OF THE SITE AND FACILITY AND ARE MADE
AVAILABLE ON AN EQUITABLE BASIS IN A MANNER WHICH FACILITATES BROAD
PUBLIC PARTICIPATION.
S 165. HEARING SCHEDULE. 1. AFTER THE RECEIPT OF AN APPLICATION FILED
PURSUANT TO SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, THE CHAIR OF
THE BOARD SHALL, WITHIN SIXTY DAYS OF SUCH RECEIPT, DETERMINE WHETHER
THE APPLICATION COMPLIES WITH SUCH SECTION AND UPON FINDING THAT THE
APPLICATION SO COMPLIES, FIX A DATE FOR THE COMMENCEMENT OF A PUBLIC
HEARING. THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION SHALL ADVISE THE
BOARD WITHIN SAID SIXTY DAY PERIOD WHETHER AN APPLICATION FILED PURSUANT
TO PARAGRAPH (B) OF SUBDIVISION FOUR OF THIS SECTION CONTAINS SUFFICIENT
INFORMATION MEETING THE REQUIREMENTS SPECIFIED UNDER SUBPARAGRAPHS (I)
THROUGH (IV) OF SUCH PARAGRAPH TO QUALIFY FOR THE EXPEDITED PROCEDURE
PROVIDED FOR IN SUCH PARAGRAPH. NO LATER THAN THE DATE OF THE DETERMI-
NATION THAT AN APPLICATION COMPLIES WITH SECTION ONE HUNDRED SIXTY-FOUR
OF THIS ARTICLE, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION SHALL
INITIATE ITS REVIEW PURSUANT TO FEDERALLY DELEGATED OR APPROVED ENVIRON-
MENTAL PERMITTING AUTHORITY. THE CHAIR OF THE BOARD MAY REQUIRE THE
FILING OF ANY ADDITIONAL INFORMATION NEEDED TO SUPPLEMENT AN APPLICATION
BEFORE OR DURING THE HEARINGS.
2. WITHIN A REASONABLE TIME AFTER THE DATE HAS BEEN FIXED BY THE CHAIR
FOR COMMENCEMENT OF A PUBLIC HEARING, THE PRESIDING EXAMINER SHALL HOLD
A PREHEARING CONFERENCE TO EXPEDITE THE ORDERLY CONDUCT AND DISPOSITION
OF THE HEARING, TO SPECIFY THE ISSUES, TO OBTAIN STIPULATIONS AS TO
MATTERS NOT DISPUTED, AND TO DEAL WITH SUCH OTHER MATTERS AS THE PRESID-
ING EXAMINER MAY DEEM PROPER. THEREAFTER, THE PRESIDING EXAMINER SHALL
ISSUE AN ORDER IDENTIFYING THE ISSUES TO BE ADDRESSED BY THE PARTIES
PROVIDED, HOWEVER, THAT NO SUCH ORDER SHALL PRECLUDE CONSIDERATION OF
ADDITIONAL ISSUES OR REQUESTS FOR ADDITIONAL SUBMISSIONS, DOCUMENTATION
OR TESTIMONY AT A HEARING WHICH WARRANT CONSIDERATION IN ORDER TO DEVEL-
OP AN ADEQUATE RECORD AS DETERMINED BY AN ORDER OF THE BOARD. THE
PRESIDING EXAMINER SHALL BE PERMITTED A REASONABLE TIME TO RESPOND TO
ANY AND ALL INTERLOCUTORY MOTIONS AND APPEALS, BUT IN NO CASE SHALL SUCH
TIME EXTEND BEYOND FORTY-FIVE DAYS.
3. ALL PARTIES SHALL BE PREPARED TO PROCEED IN AN EXPEDITIOUS MANNER
AT THE HEARING SO THAT IT MAY PROCEED REGULARLY UNTIL COMPLETION, EXCEPT
THAT HEARINGS SHALL BE OF SUFFICIENT DURATION TO PROVIDE ADEQUATE OPPOR-
TUNITY TO HEAR DIRECT EVIDENCE AND REBUTTAL EVIDENCE FROM RESIDENTS OF
THE AREA AFFECTED BY THE PROPOSED MAJOR ELECTRIC GENERATING FACILITY. TO
THE EXTENT PRACTICABLE, THE PLACE OF THE HEARING SHALL BE DESIGNATED BY
THE PRESIDING EXAMINER AT A LOCATION WITHIN TWO MILES OF THE PROPOSED
LOCATION OF THE FACILITY.
4. (A) EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SUBDIVISION,
PROCEEDINGS ON AN APPLICATION SHALL BE COMPLETED IN ALL RESPECTS IN A
S. 5844 21 A. 8510
MANNER CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL
PERMITTING AUTHORITY, INCLUDING A FINAL DECISION BY THE BOARD, WITHIN
TWELVE MONTHS FROM THE DATE OF A DETERMINATION BY THE CHAIR THAT AN
APPLICATION COMPLIES WITH SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTI-
CLE; PROVIDED, HOWEVER, THE BOARD MAY EXTEND THE DEADLINE IN EXTRAOR-
DINARY CIRCUMSTANCES BY NO MORE THAN SIX MONTHS IN ORDER TO GIVE CONSID-
ERATION TO SPECIFIC ISSUES NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE
BOARD MUST RENDER A FINAL DECISION ON THE APPLICATION BY THE AFOREMEN-
TIONED DEADLINES UNLESS SUCH DEADLINES ARE WAIVED BY THE APPLICANT. IF,
AT ANY TIME SUBSEQUENT TO THE COMMENCEMENT OF THE HEARING, THERE IS A
MATERIAL AND SUBSTANTIAL AMENDMENT TO THE APPLICATION, THE DEADLINES MAY
BE EXTENDED BY NO MORE THAN SIX MONTHS, UNLESS SUCH DEADLINE IS WAIVED
BY THE APPLICANT, TO CONSIDER SUCH AMENDMENT.
(B) PROCEEDINGS ON AN APPLICATION BY AN OWNER OF AN EXISTING MAJOR
ELECTRIC GENERATING FACILITY TO MODIFY SUCH EXISTING FACILITY OR SITE A
NEW MAJOR ELECTRIC GENERATING FACILITY ADJACENT OR CONTIGUOUS TO SUCH
EXISTING FACILITY, SHALL BE COMPLETED IN ALL RESPECTS IN A MANNER
CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL PERMITTING
AUTHORITY, INCLUDING A FINAL DECISION BY THE BOARD, WITHIN SIX MONTHS
FROM THE DATE OF A DETERMINATION BY THE CHAIR THAT SUCH APPLICATION
COMPLIES WITH SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, WHENEVER
SUCH APPLICATION DEMONSTRATES THAT THE OPERATION OF THE MODIFIED FACILI-
TY, OR OF THE EXISTING FACILITY AND NEW FACILITY IN COMBINATION, WOULD
RESULT IN:
(I) A DECREASE IN THE RATE OF EMISSION OF EACH OF THE RELEVANT SITING
AIR CONTAMINANTS. FOR FACILITIES THAT ARE PARTIALLY REPLACED OR MODI-
FIED, THE PERCENTAGE DECREASE SHALL BE CALCULATED BY COMPARING THE
POTENTIAL TO EMIT OF EACH SUCH CONTAMINANT OF THE EXISTING UNIT THAT IS
TO BE MODIFIED OR REPLACED AS OF THE DATE OF APPLICATION UNDER THIS
ARTICLE TO THE FUTURE POTENTIAL TO EMIT EACH SUCH CONTAMINANT OF THE
MODIFIED OR REPLACEMENT UNIT AS PROPOSED IN THE APPLICATION. FOR FACILI-
TIES THAT ARE SITED PHYSICALLY ADJACENT OR CONTIGUOUS TO AN EXISTING
FACILITY, THE PERCENTAGE DECREASE SHALL BE CALCULATED BY COMPARING THE
POTENTIAL TO EMIT OF EACH SUCH CONTAMINANT OF THE EXISTING FACILITY AS
OF THE DATE OF APPLICATION UNDER THIS ARTICLE, TO THE FUTURE POTENTIAL
TO EMIT EACH SUCH CONTAMINANT OF THE EXISTING AND NEW FACILITY COMBINED
AS PROPOSED IN THE APPLICATION;
(II) A REDUCTION OF THE TOTAL ANNUAL EMISSIONS OF EACH OF THE RELEVANT
SITING AIR CONTAMINANTS EMITTED BY THE EXISTING FACILITY. THE PERCENT-
AGE REDUCTION SHALL BE CALCULATED BY COMPARING (ON A POUNDS-PER-YEAR
BASIS) THE PAST ACTUAL EMISSIONS OF EACH OF THE RELEVANT SITING AIR
CONTAMINANTS EMITTED BY THE EXISTING FACILITY AVERAGED OVER THE THREE
YEARS PRECEDING THE DATE OF APPLICATION UNDER THIS ARTICLE, TO THE ANNU-
ALIZED POTENTIAL TO EMIT EACH SUCH CONTAMINANT OF THE MODIFIED FACILITY
OR OF THE COMBINED EXISTING AND NEW FACILITY AS PROPOSED IN THE APPLICA-
TION;
(III) INTRODUCTION OF A NEW COOLING WATER INTAKE STRUCTURE WHERE SUCH
STRUCTURE WITHDRAWS WATER AT A RATE EQUAL TO OR LESS THAN CLOSED-CYCLE
COOLING; AND
(IV) A LOWER HEAT RATE THAN THE HEAT RATE OF THE EXISTING FACILITY.
THE APPLICANT SHALL SUPPLY THE DETAILS OF THE ANALYSIS IN THE APPLICA-
TION AND SUCH SUPPORTING INFORMATION, AS MAY BE REQUESTED BY THE BOARD
OR, IN THE EXERCISE OF FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL
PERMITTING AUTHORITY, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION,
NECESSARY TO SHOW COMPLIANCE WITH THE REQUIREMENTS OF SUBPARAGRAPHS (I)
THROUGH (IV) OF THIS PARAGRAPH. THE BOARD MAY EXTEND THE DEADLINE IN
S. 5844 22 A. 8510
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 HEAR-
ING, 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. IF AN APPLICATION FOR AN AMENDMENT OF A CERTIFICATE PROPOSING A
CHANGE IN THE FACILITY IS 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;
(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;
(H) THE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION;
(I) WHERE THE FACILITY OR ANY PORTION THEREOF OR OF ANY ALTERNATE IS
TO BE LOCATED WITHIN THE ADIRONDACK PARK, AS DEFINED IN SUBDIVISION ONE
OF SECTION 9-0101 OF THE ENVIRONMENTAL CONSERVATION LAW, THE ADIRONDACK
PARK AGENCY;
(J) A MUNICIPALITY ENTITLED TO RECEIVE A COPY OF THE APPLICATION UNDER
PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-FOUR OF
THIS ARTICLE, IF IT HAS FILED WITH THE BOARD A NOTICE OF INTENT TO BE A
PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN IN THE PUBLISHED
NOTICE AS THE DATE FOR THE FILING OF THE APPLICATION; ANY MUNICIPALITY
ENTITLED TO BE A PARTY HEREIN AND SEEKING TO ENFORCE ANY LOCAL ORDI-
NANCE, LAW, RESOLUTION OR OTHER ACTION OR REGULATION OTHERWISE APPLICA-
BLE SHALL PRESENT EVIDENCE IN SUPPORT THEREOF OR SHALL BE BARRED FROM
THE ENFORCEMENT THEREOF;
(K) ANY INDIVIDUAL RESIDENT IN A MUNICIPALITY ENTITLED TO RECEIVE A
COPY OF THE APPLICATION UNDER PARAGRAPH (A) OF SUBDIVISION TWO OF
SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE IF HE 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;
(1) ANY NON-PROFIT CORPORATION OR ASSOCIATION, FORMED IN WHOLE OR IN
PART TO PROMOTE CONSERVATION OR NATURAL BEAUTY, TO PROTECT THE ENVIRON-
MENT, PERSONAL HEALTH OR OTHER BIOLOGICAL VALUES, TO PRESERVE HISTORICAL
SITES, TO PROMOTE CONSUMER INTERESTS, TO REPRESENT COMMERCIAL AND INDUS-
TRIAL GROUPS OR TO PROMOTE THE ORDERLY DEVELOPMENT OF ANY AREA IN WHICH
THE FACILITY IS TO BE LOCATED, IF IT HAS FILED WITH THE BOARD A NOTICE
OF INTENT TO BECOME A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN
IN THE PUBLISHED NOTICE AS THE DATE FOR FILING OF THE APPLICATION;
(M) ANY OTHER MUNICIPALITY OR RESIDENT OF SUCH MUNICIPALITY LOCATED
WITHIN A FIVE MILE RADIUS OF SUCH PROPOSED FACILITY, IF IT OR THE RESI-
DENT HAS FILED WITH THE BOARD A NOTICE OF INTENT TO BECOME A PARTY,
S. 5844 23 A. 8510
WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN IN THE PUBLISHED NOTICE AS
THE DATE FOR FILING OF THE APPLICATION;
(N) ANY OTHER MUNICIPALITY OR RESIDENT OF SUCH MUNICIPALITY WHICH THE
BOARD IN ITS DISCRETION FINDS TO HAVE AN INTEREST IN THE PROCEEDING
BECAUSE OF THE POTENTIAL ENVIRONMENTAL EFFECTS ON SUCH MUNICIPALITY OR
PERSON, IF THE MUNICIPALITY OR PERSON HAS FILED WITH THE BOARD A NOTICE
OF INTENT TO BECOME A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN
IN THE PUBLISHED NOTICE AS THE DATE FOR FILING OF THE APPLICATION,
TOGETHER WITH AN EXPLANATION OF THE POTENTIAL ENVIRONMENTAL EFFECTS ON
SUCH MUNICIPALITY OR PERSON; AND
(O) SUCH OTHER PERSONS OR ENTITIES AS THE BOARD MAY AT ANY TIME DEEM
APPROPRIATE, WHO MAY PARTICIPATE IN ALL SUBSEQUENT STAGES OF THE
PROCEEDING.
2. THE DEPARTMENT SHALL DESIGNATE MEMBERS OF ITS STAFF WHO SHALL
PARTICIPATE AS A PARTY IN PROCEEDINGS UNDER THIS ARTICLE.
3. ANY PERSON MAY MAKE A LIMITED APPEARANCE IN THE PROCEEDING BY
FILING A STATEMENT OF HIS OR HER INTENT TO LIMIT HIS OR HER APPEARANCE
IN WRITING AT ANY TIME PRIOR TO THE COMMENCEMENT OF THE HEARING. ALL
PAPERS AND MATTERS FILED BY A PERSON MAKING A LIMITED APPEARANCE SHALL
BECOME PART OF THE RECORD. NO PERSON MAKING A LIMITED APPEARANCE SHALL
BE A PARTY OR SHALL HAVE THE RIGHT TO PRESENT TESTIMONY OR CROSS-EXAMINE
WITNESSES OR PARTIES.
4. THE PRESIDING OFFICER MAY FOR GOOD CAUSE SHOWN, PERMIT A MUNICI-
PALITY OR OTHER PERSON ENTITLED TO BECOME A PARTY UNDER SUBDIVISION ONE
OF THIS SECTION, BUT WHICH HAS FAILED TO FILE THE REQUISITE NOTICE OF
INTENT WITHIN THE TIME REQUIRED, TO BECOME A PARTY, AND TO PARTICIPATE
IN ALL SUBSEQUENT STAGES OF THE PROCEEDING.
S 167. CONDUCT OF HEARING. 1. (A) THE HEARING SHALL BE CONDUCTED IN AN
EXPEDITIOUS MANNER BY A PRESIDING EXAMINER APPOINTED BY THE DEPARTMENT.
AN ASSOCIATE HEARING EXAMINER SHALL BE APPOINTED BY THE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION PRIOR TO THE DATE SET FOR COMMENCEMENT OF THE
PUBLIC HEARING. THE ASSOCIATE EXAMINER SHALL ATTEND ALL HEARINGS AS
SCHEDULED BY THE PRESIDING EXAMINER AND SHALL ASSIST THE PRESIDING EXAM-
INER IN INQUIRING INTO AND CALLING FOR TESTIMONY CONCERNING RELEVANT AND
MATERIAL MATTERS. THE CONCLUSIONS AND RECOMMENDATIONS OF THE ASSOCIATE
EXAMINER SHALL BE INCORPORATED IN THE RECOMMENDED DECISION OF THE
PRESIDING EXAMINER, UNLESS THE ASSOCIATE EXAMINER PREFERS TO SUBMIT A
SEPARATE REPORT OF DISSENTING OR CONCURRING CONCLUSIONS AND RECOMMENDA-
TIONS. IN THE EVENT THAT THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION
ISSUES PERMITS PURSUANT TO FEDERALLY DELEGATED OR APPROVED AUTHORITY
UNDER THE FEDERAL CLEAN WATER ACT, THE FEDERAL CLEAN AIR ACT AND THE
FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT, OR SECTION 15-1503 AND
ARTICLE NINETEEN OF THE ENVIRONMENTAL CONSERVATION LAW, THE RECORD IN
THE PROCEEDING AND THE ASSOCIATE EXAMINER'S CONCLUSIONS AND RECOMMENDA-
TIONS SHALL, INSOFAR AS IS CONSISTENT WITH FEDERALLY DELEGATED OR
APPROVED ENVIRONMENTAL PERMITTING AUTHORITY, PROVIDE THE BASIS FOR THE
DECISION OF THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION WHETHER OR
NOT TO ISSUE SUCH PERMITS.
(B) THE TESTIMONY PRESENTED AT A HEARING MAY BE PRESENTED IN WRITING.
ORAL TESTIMONY MAY BE PRESENTED AT ANY PUBLIC STATEMENT HEARING
CONDUCTED BY THE BOARD FOR THE TAKING OF UNSWORN STATEMENTS. 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. ALL TESTIMONY AND INFORMATION PRESENTED BY THE APPLICANT, ANY
STATE AGENCY OR OTHER PARTY SHALL BE SUBJECT TO DISCOVERY AND CROSS-EXA-
S. 5844 24 A. 8510
MINATION. A RECORD SHALL BE MADE OF THE HEARING AND OF ALL TESTIMONY
TAKEN AND THE CROSS-EXAMINATIONS THEREON. THE RULES OF EVIDENCE APPLICA-
BLE TO PROCEEDINGS BEFORE A COURT SHALL NOT APPLY. THE PRESIDING EXAMIN-
ER MAY PROVIDE FOR THE CONSOLIDATION OF THE REPRESENTATION 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 CHOOS-
ING 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 EXAMINER SHALL DETERMINE. APPROPRI-
ATE REGULATIONS SHALL BE ISSUED BY THE BOARD TO PROVIDE FOR PREHEARING
DISCOVERY PROCEDURES BY PARTIES TO A PROCEEDING, CONSOLIDATION OF THE
REPRESENTATION OF PARTIES, THE EXCLUSION OF IRRELEVANT, REPETITIVE,
REDUNDANT OR IMMATERIAL EVIDENCE, AND THE REVIEW OF RULINGS BY PRESIDING
EXAMINERS.
2. A COPY OF THE RECORD INCLUDING, BUT NOT LIMITED TO, TESTIMONY,
BRIEFS AND HEARING TESTIMONY SHALL BE MADE AVAILABLE BY THE BOARD WITHIN
THIRTY DAYS OF THE CLOSE OF THE EVIDENTIARY RECORD FOR EXAMINATION BY
THE PUBLIC, AND SHALL BE MADE AVAILABLE ON THE DEPARTMENT'S WEBSITE.
3. THE CHAIR OF THE BOARD MAY ENTER INTO AN AGREEMENT WITH AN AGENCY
OR DEPARTMENT OF THE UNITED STATES HAVING CONCURRENT JURISDICTION OVER
ALL OR PART OF THE LOCATION, CONSTRUCTION, OR OPERATION OF A MAJOR ELEC-
TRIC GENERATING FACILITY SUBJECT TO THIS ARTICLE WITH RESPECT TO PROVID-
ING FOR JOINT PROCEDURES AND A JOINT HEARING OF COMMON ISSUES ON A
COMBINED RECORD, PROVIDED THAT SUCH AGREEMENT SHALL NOT DIMINISH THE
RIGHTS ACCORDED TO ANY PARTY UNDER THIS ARTICLE.
4. THE PRESIDING EXAMINER SHALL ALLOW TESTIMONY TO BE RECEIVED ON
REASONABLE AND AVAILABLE ALTERNATE LOCATIONS FOR THE PROPOSED FACILITY,
ALTERNATE ENERGY SUPPLY SOURCES AND DEMAND-REDUCING MEASURES, PROVIDED
NOTICE OF THE INTENT TO SUBMIT SUCH TESTIMONY SHALL BE GIVEN WITHIN SUCH
PERIOD AS THE BOARD SHALL PRESCRIBE BY REGULATION, WHICH PERIOD SHALL BE
NOT LESS THAN THIRTY NOR MORE THAN SIXTY DAYS AFTER THE COMMENCEMENT OF
THE HEARING. NEVERTHELESS, IN ITS DISCRETION, THE BOARD MAY THEREAFTER
CAUSE TO BE CONSIDERED OTHER REASONABLE AND AVAILABLE LOCATIONS FOR THE
PROPOSED FACILITY, ALTERNATE ENERGY SUPPLY SOURCES AND, WHERE APPROPRI-
ATE, DEMAND-REDUCING MEASURES.
5. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION FOUR OF THIS SECTION,
THE BOARD MAY MAKE A PROMPT DETERMINATION ON THE SUFFICIENCY OF THE
APPLICANT'S CONSIDERATION AND EVALUATION OF REASONABLE ALTERNATIVES TO
ITS PROPOSED TYPE OF MAJOR ELECTRIC GENERATING FACILITY AND ITS PROPOSED
LOCATION FOR THAT FACILITY, AS REQUIRED PURSUANT TO PARAGRAPH (I) 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 (I) 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, INCLUDING ANY
BRIEFS OR EXCEPTIONS TO ANY RECOMMENDED DECISION OF SUCH EXAMINER OR TO
ANY REPORT OF THE ASSOCIATE EXAMINER, AND AFTER HEARING SUCH ORAL ARGU-
MENT AS THE BOARD SHALL DETERMINE. EXCEPT FOR GOOD CAUSE SHOWN TO THE
SATISFACTION OF THE BOARD, A DETERMINATION UNDER SUBDIVISION FIVE OF
S. 5844 25 A. 8510
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 NOT GRANT A CERTIFICATE OR AMENDMENT THEREOF FOR
THE CONSTRUCTION OR OPERATION OF A FACILITY, EITHER AS PROPOSED OR AS
MODIFIED BY THE BOARD, WITHOUT MAKING EXPLICIT FINDINGS REGARDING THE
NATURE OF THE PROBABLE ENVIRONMENTAL IMPACTS OF THE CONSTRUCTION AND
OPERATION OF THE FACILITY, INCLUDING THE CUMULATIVE ENVIRONMENTAL
IMPACTS OF THE CONSTRUCTION AND OPERATION OF RELATED FACILITIES SUCH AS
ELECTRIC LINES, GAS LINES, WATER SUPPLY LINES, WASTE WATER OR OTHER
SEWAGE TREATMENT FACILITIES, COMMUNICATIONS AND RELAY FACILITIES, ACCESS
ROADS, RAIL FACILITIES, OR STEAM LINES, INCLUDING IMPACTS ON:
(A) ECOLOGY, AIR, GROUND AND SURFACE WATER, WILDLIFE, AND HABITAT;
(B) PUBLIC HEALTH AND SAFETY;
(C) CULTURAL, HISTORIC, AND RECREATIONAL RESOURCES, INCLUDING AESTHET-
ICS AND SCENIC VALUES; AND
(D) TRANSPORTATION, COMMUNICATION, UTILITIES AND OTHER INFRASTRUCTURE.
SUCH FINDINGS SHALL INCLUDE THE CUMULATIVE IMPACT OF EMISSIONS ON THE
LOCAL COMMUNITY INCLUDING WHETHER THE CONSTRUCTION AND OPERATION OF THE
FACILITY RESULTS IN A SIGNIFICANT AND ADVERSE DISPROPORTIONATE ENVIRON-
MENTAL IMPACT, IN ACCORDANCE WITH REGULATIONS PROMULGATED PURSUANT TO
PARAGRAPH (F) OF SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF
THIS ARTICLE BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION REGARDING
ENVIRONMENTAL JUSTICE ISSUES.
3. THE BOARD MAY NOT GRANT A CERTIFICATE FOR THE CONSTRUCTION OR OPER-
ATION OF A MAJOR ELECTRIC GENERATING FACILITY, EITHER AS PROPOSED OR AS
MODIFIED BY THE BOARD, UNLESS THE BOARD DETERMINES THAT:
(A) THE FACILITY IS A BENEFICIAL ADDITION TO OR SUBSTITUTION FOR THE
ELECTRIC GENERATION CAPACITY OF THE STATE; AND
(B) THE CONSTRUCTION AND OPERATION OF THE FACILITY WILL SERVE THE
PUBLIC INTEREST; AND
(C) THE ADVERSE ENVIRONMENTAL EFFECTS OF THE CONSTRUCTION AND OPERA-
TION OF THE FACILITY WILL BE MINIMIZED OR AVOIDED TO THE MAXIMUM EXTENT
PRACTICABLE; AND
(D) IF THE BOARD FINDS THAT THE FACILITY RESULTS IN OR CONTRIBUTES TO
A SIGNIFICANT AND ADVERSE DISPROPORTIONATE ENVIRONMENTAL IMPACT IN THE
COMMUNITY IN WHICH THE FACILITY WOULD BE LOCATED, THE APPLICANT WILL
AVOID, OFFSET OR MINIMIZE THE IMPACTS CAUSED BY THE FACILITY UPON THE
LOCAL COMMUNITY FOR THE DURATION THAT THE CERTIFICATE IS ISSUED TO THE
MAXIMUM EXTENT PRACTICABLE USING VERIFIABLE MEASURES; AND
(E) THE FACILITY IS DESIGNED 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 ELECT NOT
TO APPLY, IN WHOLE OR IN PART, ANY LOCAL ORDINANCE, LAW, RESOLUTION OR
OTHER ACTION OR ANY REGULATION ISSUED THEREUNDER OR ANY LOCAL STANDARD
OR REQUIREMENT, INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO THE
INTERCONNECTION TO AND USE OF WATER, ELECTRIC, SEWER, TELECOMMUNICATION,
FUEL AND STEAM LINES IN PUBLIC RIGHTS OF WAY, WHICH WOULD BE OTHERWISE
APPLICABLE IF IT FINDS THAT, AS APPLIED TO THE PROPOSED FACILITY, SUCH
IS UNREASONABLY BURDENSOME IN VIEW OF THE EXISTING TECHNOLOGY OR THE
NEEDS OF OR COSTS TO RATEPAYERS WHETHER LOCATED INSIDE OR OUTSIDE OF
SUCH MUNICIPALITY. THE BOARD SHALL PROVIDE THE MUNICIPALITY AN OPPORTU-
NITY TO PRESENT EVIDENCE IN SUPPORT OF SUCH ORDINANCE, LAW, RESOLUTION,
REGULATION OR OTHER LOCAL ACTION ISSUED THEREUNDER.
S. 5844 26 A. 8510
4. IN MAKING THE DETERMINATIONS REQUIRED IN SUBDIVISION THREE OF THIS
SECTION, THE BOARD SHALL CONSIDER:
(A) THE STATE OF AVAILABLE TECHNOLOGY;
(B) THE NATURE AND ECONOMICS OF REASONABLE ALTERNATIVES;
(C) ENVIRONMENTAL IMPACTS FOUND PURSUANT TO SUBDIVISION TWO OF THIS
SECTION;
(D) THE IMPACT OF CONSTRUCTION AND OPERATION OF RELATED FACILITIES,
SUCH AS ELECTRIC LINES, GAS LINES, WATER SUPPLY LINES, WASTE WATER OR
OTHER SEWAGE TREATMENT FACILITIES, COMMUNICATIONS AND RELAY FACILITIES,
ACCESS ROADS, RAIL FACILITIES, OR STEAM LINES;
(E) THE CONSISTENCY OF THE CONSTRUCTION AND OPERATION OF THE FACILITY
WITH THE ENERGY POLICIES AND LONG-RANGE ENERGY PLANNING OBJECTIVES AND
STRATEGIES CONTAINED IN THE MOST RECENT STATE ENERGY PLAN;
(F) THE IMPACT ON COMMUNITY CHARACTER AND WHETHER THE FACILITY WOULD
AFFECT COMMUNITIES THAT ARE DISPROPORTIONATELY IMPACTED BY CUMULATIVE
LEVELS OF POLLUTANTS; AND
(G) SUCH ADDITIONAL SOCIAL, ECONOMIC, VISUAL OR OTHER AESTHETIC, ENVI-
RONMENTAL AND OTHER CONSIDERATIONS DEEMED PERTINENT BY THE BOARD.
5. THE DEPARTMENT OR THE COMMISSION SHALL MONITOR, ENFORCE AND ADMIN-
ISTER COMPLIANCE WITH ANY TERMS AND CONDITIONS SET FORTH IN THE BOARD'S
ORDER.
6. A COPY OF THE BOARD'S DECISION AND OPINION SHALL BE SERVED ON EACH
PARTY ELECTRONICALLY OR BY MAIL.
7. FOLLOWING ANY REHEARING AND ANY JUDICIAL REVIEW OF THE BOARD'S
DECISION, THE BOARD'S JURISDICTION OVER AN APPLICATION SHALL CEASE,
PROVIDED, HOWEVER, THAT THE PERMANENT BOARD SHALL RETAIN JURISDICTION
WITH RESPECT TO THE AMENDMENT, SUSPENSION OR REVOCATION OF A CERTIF-
ICATE.
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 BURDENSOME PURSUANT TO PARAGRAPH
(E) OF SUBDIVISION THREE OF SECTION ONE HUNDRED SIXTY-EIGHT OF THIS
ARTICLE, 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.
S. 5844 27 A. 8510
THE BOARD'S COPY OF SAID TRANSCRIPT, DECISION AND OPINION, SHALL BE
AVAILABLE AT ALL REASONABLE TIMES TO ALL PARTIES FOR EXAMINATION WITHOUT
COST. UPON RECEIPT OF SUCH PETITION AND DEMAND THE BOARD SHALL FORTHWITH
DELIVER TO THE COURT A COPY OF THE RECORD AND A COPY OF THE BOARD'S
DECISION AND OPINION. THEREUPON, THE COURT SHALL HAVE JURISDICTION OF
THE PROCEEDING AND SHALL HAVE THE POWER TO GRANT SUCH RELIEF AS IT DEEMS
JUST AND PROPER, AND TO MAKE AND ENTER AN ORDER ENFORCING, MODIFYING AND
ENFORCING AS SO MODIFIED, REMANDING FOR FURTHER SPECIFIC EVIDENCE OR
FINDINGS OR SETTING ASIDE IN WHOLE OR IN PART SUCH DECISION. THE APPEAL
SHALL BE HEARD ON THE RECORD, WITHOUT REQUIREMENT OF REPRODUCTION, AND
UPON BRIEFS TO THE COURT. NO OBJECTION THAT HAS NOT BEEN URGED BY THE
PARTY IN HIS OR HER APPLICATION FOR REHEARING BEFORE THE BOARD SHALL BE
CONSIDERED BY THE COURT, UNLESS THE FAILURE OR NEGLECT TO URGE SUCH
OBJECTION SHALL BE EXCUSED BECAUSE OF EXTRAORDINARY CIRCUMSTANCES. THE
FINDINGS OF FACT ON WHICH SUCH DECISION IS BASED SHALL BE CONCLUSIVE IF
SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD CONSIDERED AS A WHOLE
AND MATTERS OF JUDICIAL NOTICE SET FORTH IN THE OPINION. THE JURISDIC-
TION OF THE APPELLATE DIVISION OF THE SUPREME COURT SHALL BE EXCLUSIVE
AND ITS JUDGMENT AND ORDER SHALL BE FINAL, SUBJECT TO REVIEW BY THE
COURT OF APPEALS IN THE SAME MANNER AND FORM AND WITH THE SAME EFFECT AS
PROVIDED FOR APPEALS IN A SPECIAL PROCEEDING. ALL SUCH PROCEEDINGS SHALL
BE HEARD AND DETERMINED BY THE APPELLATE DIVISION OF THE SUPREME COURT
AND BY THE COURT OF APPEALS AS EXPEDITIOUSLY AS POSSIBLE AND WITH LAWFUL
PRECEDENCE OVER ALL OTHER MATTERS.
2. THE GROUNDS FOR AND SCOPE OF REVIEW OF THE COURT SHALL BE LIMITED
TO WHETHER THE DECISION AND OPINION OF THE BOARD ARE:
(A) IN CONFORMITY WITH THE CONSTITUTION, LAWS AND REGULATIONS OF THE
STATE AND THE UNITED STATES;
(B) SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD AND MATTERS OF
JUDICIAL NOTICE PROPERLY CONSIDERED AND APPLIED IN THE OPINION;
(C) WITHIN THE BOARD'S STATUTORY JURISDICTION OR AUTHORITY;
(D) MADE IN ACCORDANCE WITH PROCEDURES SET FORTH IN THIS ARTICLE OR
ESTABLISHED BY RULE OR REGULATION PURSUANT TO THIS ARTICLE;
(E) ARBITRARY, CAPRICIOUS OR AN ABUSE OF DISCRETION; OR
(F) MADE PURSUANT TO A PROCESS THAT AFFORDED MEANINGFUL INVOLVEMENT OF
CITIZENS AFFECTED BY THE FACILITY REGARDLESS OF AGE, RACE, COLOR,
NATIONAL ORIGIN AND INCOME.
3. EXCEPT AS HEREIN PROVIDED ARTICLE SEVENTY-EIGHT OF THE CIVIL PRAC-
TICE LAW AND RULES SHALL APPLY TO APPEALS TAKEN HEREUNDER.
S 171. JURISDICTION OF COURTS. EXCEPT AS EXPRESSLY SET FORTH IN
SECTION ONE HUNDRED SEVENTY OF THIS ARTICLE AND EXCEPT FOR REVIEW BY THE
COURT OF APPEALS OF A DECISION OF THE APPELLATE DIVISION OF THE SUPREME
COURT AS PROVIDED FOR THEREIN, NO COURT OF THIS STATE SHALL HAVE JURIS-
DICTION TO HEAR OR DETERMINE ANY MATTER, CASE OR CONTROVERSY CONCERNING
ANY MATTER WHICH WAS OR COULD HAVE BEEN DETERMINED IN A PROCEEDING UNDER
THIS ARTICLE OR TO STOP OR DELAY THE CONSTRUCTION OR OPERATION OF A
MAJOR ELECTRIC GENERATING FACILITY EXCEPT TO ENFORCE COMPLIANCE WITH
THIS ARTICLE OR THE TERMS AND CONDITIONS ISSUED THEREUNDER.
S 172. POWERS OF MUNICIPALITIES AND STATE AGENCIES. 1. NOTWITHSTAND-
ING ANY OTHER PROVISION OF LAW, NO STATE AGENCY, MUNICIPALITY OR ANY
AGENCY THEREOF MAY, EXCEPT AS EXPRESSLY AUTHORIZED UNDER THIS ARTICLE BY
THE BOARD, REQUIRE ANY APPROVAL, CONSENT, PERMIT, CERTIFICATE OR OTHER
CONDITION FOR THE CONSTRUCTION OR OPERATION OF A MAJOR ELECTRIC GENERAT-
ING FACILITY WITH RESPECT TO WHICH AN APPLICATION FOR A CERTIFICATE
HEREUNDER HAS BEEN FILED, INCLUDING PURSUANT TO PARAGRAPH (E) OF SUBDI-
VISION THREE OF SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTICLE, ANY
S. 5844 28 A. 8510
SUCH APPROVAL, CONSENT, PERMIT, CERTIFICATE OR CONDITION RELATING TO THE
INTERCONNECTION TO OR USE OF WATER, ELECTRIC, SEWER, TELECOMMUNICATION,
FUEL AND STEAM LINES IN PUBLIC RIGHTS OF WAY, PROVIDED THAT THIS ARTICLE
SHALL NOT IMPAIR OR ABROGATE ANY FEDERAL, STATE OR LOCAL LABOR LAWS OR
ANY OTHERWISE APPLICABLE STATE LAW FOR THE PROTECTION OF EMPLOYEES
ENGAGED IN THE CONSTRUCTION AND OPERATION OF SUCH FACILITY; PROVIDED,
HOWEVER, THAT IN THE CASE OF A MUNICIPALITY OR AN AGENCY THEREOF, SUCH
MUNICIPALITY HAS RECEIVED NOTICE OF THE FILING OF THE APPLICATION THERE-
FOR; AND PROVIDED FURTHER, HOWEVER, THAT THE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION SHALL BE THE PERMITTING AGENCY FOR PERMITS ISSUED PURSUANT
TO FEDERALLY DELEGATED OR APPROVED AUTHORITY UNDER THE FEDERAL CLEAN
WATER ACT, THE FEDERAL CLEAN AIR ACT AND THE FEDERAL RESOURCE CONSERVA-
TION AND RECOVERY ACT. IN ISSUING SUCH PERMITS, THE COMMISSIONER OF
ENVIRONMENTAL CONSERVATION SHALL FOLLOW PROCEDURES ESTABLISHED IN THIS
ARTICLE TO THE EXTENT THAT THEY ARE CONSISTENT WITH FEDERALLY DELEGATED
OR APPROVED ENVIRONMENTAL PERMITTING AUTHORITY. THE COMMISSIONER OF
ENVIRONMENTAL CONSERVATION SHALL PROVIDE SUCH PERMITS TO THE BOARD PRIOR
TO ITS DETERMINATION WHETHER OR NOT TO ISSUE A CERTIFICATE. THE ISSUANCE
BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION OF SUCH PERMITS SHALL IN
NO WAY INTERFERE WITH THE REQUIRED REVIEW BY THE BOARD OF THE ANTIC-
IPATED ENVIRONMENTAL AND HEALTH IMPACTS RELATING TO THE CONSTRUCTION AND
OPERATION OF THE FACILITY AS PROPOSED, OR ITS AUTHORITY TO DENY AN
APPLICATION FOR CERTIFICATION PURSUANT TO SECTION ONE HUNDRED
SIXTY-EIGHT OF THIS ARTICLE, AND, IN THE EVENT OF SUCH A DENIAL, ANY
SUCH PERMITS SHALL BE DEEMED NULL AND VOID.
2. THE ADIRONDACK PARK AGENCY SHALL NOT HOLD PUBLIC HEARINGS FOR A
MAJOR ELECTRIC GENERATING FACILITY WITH RESPECT TO WHICH AN APPLICATION
HEREUNDER IS FILED, PROVIDED THAT SUCH AGENCY HAS RECEIVED NOTICE OF THE
FILING OF SUCH APPLICATION.
S 173. APPLICABILITY TO PUBLIC AUTHORITIES. THE POWER AUTHORITY OF
THE STATE OF NEW YORK, THE GREEN ISLAND POWER AUTHORITY AND THE LONG
ISLAND POWER AUTHORITY SHALL BE SUBJECT TO ALL PROVISIONS OF THIS ARTI-
CLE FOR MAJOR ELECTRIC GENERATING FACILITIES WHICH ANY SUCH AUTHORITY
BUILDS OR CAUSES TO BE BUILT. FOR GENERATING FACILITIES WHICH ARE NOT
MAJOR ELECTRIC GENERATING FACILITIES, NONE OF THE ABOVE NAMED AUTHORI-
TIES SHALL BE PERMITTED TO SERVE AS LEAD AGENCY FOR PURPOSES OF ENVIRON-
MENTAL REVIEW PURSUANT TO THE PROVISIONS OF THE ENVIRONMENTAL CONSERVA-
TION LAW.
S 13. 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],
TEN AND THE FORMER ARTICLE EIGHT of the public service law; or
S 14. Section 17-0823 of the environmental conservation law, as added
by chapter 801 of the laws of 1973, is amended to read as follows:
S 17-0823. Power plant siting.
In the case of a major steam electric generating facility, as defined
in section one hundred forty of the public service law, for the
construction or operation of which a certificate is required under THE
FORMER article eight of [such] THE PUBLIC SERVICE law, [an applicant
shall apply for and obtain such certificate in lieu of filing an appli-
cation and obtaining a permit under this article. Any reference in this
article to a permit shall, in the case of such major steam electric
S. 5844 29 A. 8510
generating facility, be deemed for all purposes to refer to such certif-
icate, provided that nothing] OR 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 [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 ARTICLE and the terms and conditions of the
certificate governing the environmental and health impacts resulting
from such operation. In such case all powers, duties, obligations and
privileges conferred upon the department by this article shall devolve
upon the New York state board on electric generation siting and the
environment. In considering the granting of permits, such board shall
apply the provisions of this article and the Act.
S 15. Paragraph j of subdivision 2 of section 19-0305 of the environ-
mental conservation law, as amended by chapter 525 of the laws of 1981,
is amended to read as follows:
j. Consider for approval or disapproval applications for permits and
certificates including plans or specifications for air contamination
sources and air cleaning installations or any part thereof submitted [to
him pursuant to] CONSISTENT WITH the rules of the department, and
inspect the installation for compliance with the plans or specifica-
tions; provided that in the case of a major steam electric generating
facility, as defined in [either] FORMER section one hundred forty of the
public service law, for which a certificate is required pursuant to
[either] THE FORMER article eight of [such] THE PUBLIC SERVICE law, OR A
MAJOR ELECTRIC GENERATING FACILITY AS DEFINED IN SECTION ONE HUNDRED
SIXTY OF THE PUBLIC SERVICE LAW, FOR WHICH A CERTIFICATE IS REQUIRED
PURSUANT TO ARTICLE TEN OF THE PUBLIC SERVICE LAW, such approval func-
tions [shall] MAY be performed by the state board on electric generation
siting and the environment, as defined in [such] THE PUBLIC SERVICE law,
PURSUANT TO FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL PERMITTING
AUTHORITY, and such inspection functions shall be performed by the
department[; provided further that nothing]. NOTHING herein shall limit
the authority of the [departments] DEPARTMENT of health and [environ-
mental conservation] 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 16. Paragraph (e) of subdivision 3 of section 49-0307 of the envi-
ronmental 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
S. 5844 30 A. 8510
to THE FORMER article eight of the public service law, OR A MAJOR ELEC-
TRIC GENERATING FACILITY OR REPOWERING PROJECT WHICH HAS RECEIVED A
CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY AND PUBLIC NEED PURSUANT TO
ARTICLE TEN OF THE PUBLIC SERVICE LAW, upon the filing of such certif-
icate in a manner prescribed for recording a conveyance of real property
pursuant to section two hundred ninety-one of the real property law or
any other applicable provision of law, provided that such certificate
contains a finding that the public interest in the conservation and
protection of the natural resources, open spaces and scenic beauty of
the Adirondack or Catskill parks has been considered.
S 17. Section 1014 of the public authorities law, as amended by chap-
ter 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 THE SITING OF A MAJOR ELECTRIC GENERATING FACILITY AS DEFINED
THEREIN, AND except to the extent section eighteen-a of [such] THE
PUBLIC SERVICE law provides for assessment of the authority for certain
costs relating thereto, the provisions of the public service law and of
the ENVIRONMENTAL conservation law and every other law relating to the
department of public service or the public service commission or to the
ENVIRONMENTAL conservation department or to the functions, powers or
duties assigned to the division of water power and control by chapter
six hundred nineteen[,] of the laws of nineteen hundred twenty-six,
shall so far as is necessary to make this title effective in accordance
with its terms and purposes be deemed to be superseded, and wherever any
provision of law shall be found in conflict with the provisions of this
title or inconsistent with the purposes thereof, it shall be deemed to
be superseded, modified or repealed as the case may require.
S 18. Paragraph c of subdivision 8 of section 1020-c of the public
authorities law, as amended by chapter 7 of the laws of 1987, is amended
to read as follows:
c. Article seven of the public service law shall apply to the authori-
ty's siting and operation of a major transmission facility as therein
defined and article [eight] TEN of the public service law shall apply to
the authority's siting and operation of a major [steam] electric gener-
ating facility as therein defined.
S 19. Section 1020-s of the public authorities law, as added by chap-
ter 517 of the laws of 1986, is amended to read as follows:
S 1020-s. Public service law generally not applicable to authority;
inconsistent provisions in certain other acts superseded. 1. The rates,
services and practices relating to the electricity generated by facili-
ties owned or operated by the authority shall not be subject to the
provisions of the public service law or to regulation by, or the juris-
diction of, the public service commission, except to the extent (a)
article seven of the public service law applies to the siting and opera-
tion of a major utility transmission facility as defined therein, (b)
article [eight] TEN of such law applies to the siting of a generating
facility as defined therein, and (c) section eighteen-a of such law
provides for assessment for certain costs, property or operations.
S. 5844 31 A. 8510
2. The issuance by the authority of its obligations to acquire the
securities or assets of LILCO shall be deemed not to be "state action"
within the meaning of the state environmental quality review act, and
such act shall not be applicable in any respect to such acquisition or
any action of the authority to effect such acquisition.
S 20. The state finance law is amended by adding a new section 97-kkkk
to read as follows:
S 97-KKKK. INTERVENOR ACCOUNT. 1. THERE IS HEREBY ESTABLISHED IN THE
JOINT CUSTODY OF THE STATE COMPTROLLER AND THE COMMISSIONER OF TAXATION
AND FINANCE AN ACCOUNT TO BE KNOWN AS THE INTERVENOR ACCOUNT.
2. SUCH ACCOUNT SHALL CONSIST OF ALL REVENUES RECEIVED FROM SITING
APPLICATION FEES FOR ELECTRIC GENERATING FACILITIES PURSUANT TO SECTIONS
ONE HUNDRED SIXTY-THREE AND ONE HUNDRED SIXTY-FOUR OF THE PUBLIC SERVICE
LAW.
3. MONEYS OF THE ACCOUNT, FOLLOWING APPROPRIATION BY THE LEGISLATURE,
MAY BE EXPENDED IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS ONE
HUNDRED SIXTY-THREE AND ONE HUNDRED SIXTY-FOUR OF THE PUBLIC SERVICE
LAW. MONEYS SHALL BE PAID OUT OF THE ACCOUNT ON THE AUDIT AND WARRANT OF
THE STATE COMPTROLLER ON VOUCHERS CERTIFIED OR APPROVED BY THE CHAIR OF
THE PUBLIC SERVICE COMMISSION.
S 21. The environmental conservation law is amended by adding a new
section 19-0312 to read as follows:
S 19-0312. POWER PLANT EMISSIONS AND PERFORMANCE STANDARDS.
1. DEFINITIONS. AS USED IN THIS SECTION:
A. "MERCURY" MEANS ELEMENTAL, OXIDIZED, AND PARTICLE-BOUND MERCURY IN
SOURCE EMISSIONS.
B. "MAJOR ELECTRIC GENERATING FACILITY" MEANS ANY ELECTRICITY GENERAT-
ING FACILITY WITH A NAMEPLATE CAPACITY OF TWENTY-FIVE THOUSAND KILOWATTS
OR MORE.
2. ANY MAJOR ELECTRIC GENERATING FACILITY SHALL DEMONSTRATE COMPLIANCE
WITH ALL APPLICABLE EMISSION REQUIREMENTS ESTABLISHED BY THE DEPARTMENT
FOR THE PURPOSE OF COMPLYING WITH ALL STATE AND FEDERAL AIR QUALITY
REQUIREMENTS, INCLUDING REQUIREMENTS FOR SULFUR DIOXIDE, NITROGEN
OXIDES, MERCURY, CARBON DIOXIDE AND PARTICULATE MATTER OF LESS THAN 2.5
MICRONS. SUCH FACILITY MUST ALSO COMPLY WITH OTHER APPLICABLE DEPARTMENT
AIR QUALITY REQUIREMENTS RELATING TO OFFSETTING OF EMISSIONS.
3. NO LATER THAN TWELVE MONTHS AFTER THE EFFECTIVE DATE OF THIS
SECTION, THE COMMISSIONER SHALL PROMULGATE RULES AND REGULATIONS TARGET-
ING REDUCTIONS IN EMISSIONS OF CARBON DIOXIDE THAT WOULD APPLY TO MAJOR
ELECTRIC GENERATING FACILITIES THAT COMMENCED CONSTRUCTION AFTER THE
EFFECTIVE DATE OF THE REGULATIONS.
S 22. Study to Increase Generation from Photovoltaic Devices in New
York. 1. Legislative Intent. The legislature hereby finds and declares
that solar energy generation from photovoltaic devices in New York
represents less than 0.01 percent of the State's electricity generation.
While the current cost of electricity from photovoltaic devices is a
premium above market price for electricity from most other fuels, the
cost of installing such photovoltaic generation is declining and
increasing solar energy generation represents a significant opportunity
for the development of the State's clean energy economic sector and the
creation of new high technology jobs in New York.
2. The New York state energy research and development authority, in
consultation with the department of public service, is hereby authorized
and directed to conduct a study with respect to increasing generation
from photovoltaic devices in New York, including, but not limited to,
the following:
S. 5844 32 A. 8510
a. Identify administrative and policy options that could be used in
achieve goals of two thousand five hundred megawatts of generation from
photovoltaic devices in New York by 2020 and five thousand megawatts by
2025.
b. Conduct a targeted analysis of the per megawatt cost of achieving
increased generation from photovoltaic devices and the costs of achiev-
ing the goals specified in paragraph a of this subdivision using each of
the options identified in the analysis conducted pursuant to such para-
graph.
c. Conduct an analysis of the net economic and job creation benefits
of achieving the goals specified in subdivision a of this section using
each of the options identified in the analysis conducted pursuant to
such subdivision.
d. Conduct an analysis of the environmental benefits of achieving the
goals specified in paragraph a of this subdivision using each of the
options identified in the analysis conducted pursuant to such paragraph.
3. The New York state energy research and development authority shall
report to the governor and the legislature on the findings and recommen-
dations of the study conducted pursuant to subdivision two of this
section on or before January 31, 2012.
S 23. Severability. If any clause, sentence, paragraph, section or
part of this act shall be adjudged by any court of competent jurisdic-
tion to be invalid, such judgment shall not affect, impair or invalidate
the remainder thereof, but shall be confined in its operation to the
clause, sentence, paragraph, section or part thereof directly involved
in the controversy in which such judgment shall have been rendered.
S 24. 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 authority existed prior
to the effective date of this act. Within twelve months of the effec-
tive date of this act, all rules and regulations required pursuant to
this act shall be adopted. Prior to the adoption of such rules and
regulations by the New York state board on electric generation siting
and the environment and the department of environmental conservation
required under this act, nothing in this act shall affect the right to
apply for a permit pursuant to the environmental conservation law
including article 8 therein, or other applicable laws, to operate an
electric generating facility with a nameplate generating capacity of
twenty-five thousand kilowatts or more.
