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This entry was published on 2014-09-22
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SECTION 164
Application for a certificate
Public Service (PBS) CHAPTER 48, ARTICLE 10
§ 164. Application for a certificate. 1. An applicant for a
certificate 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
mercury, 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
including their source, anticipated volumes, composition and
temperature, and such other attributes as the board may specify and the
probable level of noise during construction and operation of the
facility; (ii) the treatment processes to reduce wastes to be released
to the environment, the manner of disposal for wastes retained and
measures for noise abatement; (iii) the anticipated volumes of wastes to
be released to the environment under any operating condition of the
facility, including such meteorological, hydrological and other
information needed to support such estimates; (iv) conceptual
architectural and engineering plans indicating compatibility of the
facility with the environment; (v) how the construction and operation of
the facility, including transportation and disposal of wastes would
comply with environmental health and safety standards, requirements,
regulations and rules under state and municipal laws, and a statement
why any variances or exceptions should be granted; (vi) water
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
Conservation and Recovery Act, and permits pursuant to section 15-1503
and article 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
significant and adverse disproportionate environmental impacts of the
proposed facility, if any, resulting from its construction and
operation, including 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
application 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
regulations promulgated pursuant to paragraph (f) of this subdivision;

(i) A description and evaluation of reasonable and available alternate
locations to the proposed facility, if any; a description of the
comparative advantages and disadvantages as appropriate; and a statement
of the reasons why the primary proposed location and source, as
appropriate, is best suited, among the alternatives considered, to
promote public health and welfare, including the recreational and other
concurrent uses which the site may serve, provided that the information
required pursuant to this paragraph shall be no more extensive than
required under article eight of the environmental conservation law;

(j) For proposed wind-powered facilities, the expected environmental
impacts of the facility on avian and bat species based on
pre-construction 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
consistent with the most recent state energy plan, including, but not
limited to, impacts on fuel diversity, regional requirements for
capacity, electric transmission and fuel delivery constraints and other
issues as appropriate, including the comparative advantages and
disadvantages of reasonable 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
alternative location listed. Such copy to a municipality shall be
addressed to the chief executive officer thereof and shall specify the
date on or about which the application is to be filed;

(ii) each member of the board;

(iii) the department of agriculture and markets;

(iv) the secretary of state;

(v) the attorney general;

(vi) the department of transportation;

(vii) the office of parks, recreation and historic preservation;

(viii) a library serving the district of each member of the state
legislature in whose district any portion of the facility is to be
located as proposed or in any alternative location listed;

(ix) in the event that such facility or any portion thereof as
proposed or in any alternative location listed is located within the
Adirondack park, as defined in subdivision one of section 9-0101 of the
environmental conservation law, the Adirondack park agency; and

(x) the public information coordinator for placement on the website of
the department; and

(b) A notice of such application on (i) persons residing in
municipalities entitled to receive a copy of the application under
subparagraph (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
newspapers, 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 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 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
alternative 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
addition, 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
additional fee of five hundred dollars for each thousand kilowatt of
capacity, 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 application is amended in a manner that warrants
substantial additional scrutiny, the board may require an additional
intervenor fee in an amount not to exceed 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 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
decision 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.