Bill Text: NY A08696 | 2009-2010 | General Assembly | Amended
Bill Title: Relates to the siting of major electric generating facilities; relates to power plant emissions and performance standards.
Spectrum: Slight Partisan Bill (Democrat 3-1)
Status: (Engrossed - Dead) 2010-06-21 - amended on third reading 8696b [A08696 Detail]
Download: New_York-2009-A08696-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
8696--B
Cal. No. 620
2009-2010 Regular Sessions
I N A S S E M B L Y
June 3, 2009
___________
Introduced by M. of A. CAHILL, SPANO -- Multi-Sponsored by -- M. of A.
LATIMER -- read once and referred to the Committee on Energy --
reported from committee, advanced to a third reading, amended and
ordered reprinted, retaining its place on the order of third reading
-- reported from committee, advanced to a third reading, amended and
ordered reprinted, retaining its place on the order of third reading
AN ACT to amend the public service law, in relation to the siting of
major electric generating facilities; to amend the public authorities
law, in relation to making technical corrections thereto; to amend the
state finance law, in relation to establishing an intervenor account;
to amend the environmental conservation law, in relation to power
plant emissions and performance standards; and providing for the
repeal of such provisions upon expiration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The public service law is amended by adding a new article
2 10 to read as follows:
3 ARTICLE 10
4 SITING OF MAJOR ELECTRIC GENERATING FACILITIES
5 SECTION 160. DEFINITIONS.
6 161. GENERAL PROVISIONS RELATING TO THE BOARD.
7 162. BOARD CERTIFICATE.
8 163. PRE-APPLICATION PROCEDURES.
9 164. APPLICATION FOR A CERTIFICATE.
10 165. HEARING SCHEDULE.
11 166. PARTIES TO A CERTIFICATION PROCEEDING.
12 167. CONDUCT OF HEARING.
13 168. BOARD DECISIONS.
14 169. OPINION TO BE ISSUED WITH DECISION.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14152-03-0
A. 8696--B 2
1 170. REHEARING AND JUDICIAL REVIEW.
2 171. JURISDICTION OF COURTS.
3 172. POWERS OF MUNICIPALITIES AND STATE AGENCIES.
4 173. APPLICABILITY TO PUBLIC AUTHORITIES.
5 S 160. DEFINITIONS. WHERE USED IN THIS ARTICLE, THE FOLLOWING TERMS,
6 UNLESS THE CONTEXT OTHERWISE REQUIRES, SHALL HAVE THE FOLLOWING MEAN-
7 INGS:
8 1. "MUNICIPALITY" MEANS A COUNTY, CITY, TOWN OR VILLAGE LOCATED IN
9 THIS STATE.
10 2. "MAJOR ELECTRIC GENERATING FACILITY" MEANS AN ELECTRIC GENERATING
11 FACILITY WITH A NAMEPLATE GENERATING CAPACITY OF TWENTY THOUSAND KILO-
12 WATTS OR MORE, INCLUDING INTERCONNECTION ELECTRIC TRANSMISSION LINES AND
13 FUEL GAS TRANSMISSION LINES THAT ARE NOT SUBJECT TO REVIEW UNDER ARTICLE
14 SEVEN OF THIS CHAPTER. FOR PURPOSES OF THIS ARTICLE, MAJOR ELECTRIC
15 GENERATING FACILITY SHALL INCLUDE ANY COMBINATION OF POWER PLANTS WHICH
16 EXCEEDS TWENTY THOUSAND KILOWATTS OF NAMEPLATE GENERATING CAPACITY,
17 BUILT OR CAUSED TO BE BUILT BY A SINGLE PERSON WITHIN A TWELVE MONTH
18 PERIOD.
19 3. "PERSON" MEANS ANY INDIVIDUAL, CORPORATION, PUBLIC BENEFIT CORPO-
20 RATION, POLITICAL SUBDIVISION, GOVERNMENTAL AGENCY, MUNICIPALITY, PART-
21 NERSHIP, CO-OPERATIVE ASSOCIATION, TRUST OR ESTATE.
22 4. "BOARD" MEANS THE NEW YORK STATE BOARD ON ELECTRIC GENERATION
23 SITING AND THE ENVIRONMENT, WHICH SHALL BE IN THE DEPARTMENT AND CONSIST
24 OF SEVEN PERSONS: THE CHAIR OF THE DEPARTMENT, WHO SHALL SERVE AS CHAIR
25 OF THE BOARD; THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION; THE
26 COMMISSIONER OF HEALTH; THE CHAIR OF THE NEW YORK STATE ENERGY RESEARCH
27 AND DEVELOPMENT AUTHORITY; THE COMMISSIONER OF ECONOMIC DEVELOPMENT AND
28 TWO AD HOC PUBLIC MEMBERS. ONE AD HOC PUBLIC MEMBER SHALL BE APPOINTED
29 BY THE CHIEF EXECUTIVE OFFICER REPRESENTING THE MUNICIPALITY IN WHICH
30 THE FACILITY IS PROPOSED, OR, IN THE CITY OF NEW YORK, BY THE CHAIR-
31 PERSON OF THE COMMUNITY BOARD OF THE COMMUNITY DISTRICT IN WHICH THE
32 FACILITY IS PROPOSED, AND WHICH MEMBER SHALL BE A RESIDENT OF SUCH MUNI-
33 CIPALITY OR SUCH COMMUNITY DISTRICT IN WHICH THE FACILITY IS PROPOSED.
34 THE SECOND AD HOC PUBLIC MEMBER SHALL BE APPOINTED BY THE CHIEF EXECU-
35 TIVE OFFICER OF THE COUNTY IN WHICH THE FACILITY IS PROPOSED, OR IN THE
36 CITY OF NEW YORK, BY THE BOROUGH PRESIDENT OF THE COUNTY IN WHICH THE
37 FACILITY IS PROPOSED, AND WHICH MEMBER SHALL BE A RESIDENT OF SUCH COUN-
38 TY OR SUCH BOROUGH. THE TERM OF THE AD HOC PUBLIC MEMBERS SHALL CONTIN-
39 UE UNTIL A FINAL DETERMINATION IS MADE IN THE PARTICULAR PROCEEDING FOR
40 WHICH THEY WERE APPOINTED.
41 5. "CERTIFICATE" MEANS A CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY
42 AND PUBLIC NEED AUTHORIZING THE CONSTRUCTION OF A MAJOR ELECTRIC GENER-
43 ATING FACILITY ISSUED BY THE BOARD PURSUANT TO THIS ARTICLE.
44 6. "FUEL WASTE BYPRODUCT" SHALL MEAN WASTE OR COMBINATION OF WASTES
45 PRODUCED AS A BYPRODUCT OF GENERATING ELECTRICITY FROM A MAJOR ELECTRIC
46 GENERATING FACILITY IN AN AMOUNT WHICH REQUIRES STORAGE OR DISPOSAL AND,
47 BECAUSE OF ITS QUANTITY, CONCENTRATION, OR PHYSICAL, CHEMICAL OR OTHER
48 CHARACTERISTICS, MAY POSE A SUBSTANTIAL PRESENT OR POTENTIAL HAZARD TO
49 HUMAN HEALTH OR THE ENVIRONMENT.
50 7. "NAMEPLATE" MEANS A MANUFACTURER'S DESIGNATION, GENERALLY AS
51 AFFIXED TO THE GENERATOR UNIT, WHICH STATES THE TOTAL OUTPUT OF SUCH
52 GENERATING FACILITY AS ORIGINALLY DESIGNED ACCORDING TO THE MANUFACTUR-
53 ER'S ORIGINAL DESIGN SPECIFICATIONS.
54 8. "PUBLIC INFORMATION COORDINATOR" MEANS AN OFFICE CREATED WITHIN THE
55 DEPARTMENT WHICH SHALL ASSIST AND ADVISE INTERESTED PARTIES AND MEMBERS
56 OF THE PUBLIC IN PARTICIPATING IN THE SITING AND CERTIFICATION OF MAJOR
A. 8696--B 3
1 ELECTRIC GENERATING FACILITIES. THE DUTIES OF THE PUBLIC INFORMATION
2 OFFICER SHALL INCLUDE, BUT NOT BE LIMITED TO: (A) IMPLEMENTING MEASURES
3 THAT ASSURE FULL AND ADEQUATE PUBLIC PARTICIPATION IN MATTERS BEFORE THE
4 BOARD; (B) RESPONDING TO INQUIRIES FROM THE PUBLIC FOR INFORMATION ON
5 HOW TO PARTICIPATE IN MATTERS BEFORE THE BOARD; (C) ASSISTING THE PUBLIC
6 IN REQUESTING RECORDS RELATING TO MATTERS BEFORE THE BOARD; (D) ENSURING
7 ALL INTERESTED PERSONS ARE PROVIDED WITH A REASONABLE OPPORTUNITY TO
8 PARTICIPATE AT PUBLIC MEETINGS RELATING TO MATTERS BEFORE THE BOARD; (E)
9 ENSURING THAT ALL NECESSARY OR REQUIRED DOCUMENTS ARE AVAILABLE FOR
10 PUBLIC ACCESS ON THE DEPARTMENT'S WEBSITE WITHIN ANY TIME PERIODS SPECI-
11 FIED WITHIN THIS ARTICLE; AND (F) ANY OTHER DUTIES AS MAY BE PRESCRIBED
12 BY THE BOARD, AFTER CONSULTATION WITH THE DEPARTMENT.
13 S 161. GENERAL PROVISIONS RELATING TO THE BOARD. UPON RECEIPT OF A
14 PRE-APPLICATION PRELIMINARY SCOPING STATEMENT UNDER THIS ARTICLE, THE
15 CHAIR SHALL PROMPTLY NOTIFY THE GOVERNOR; THE CHIEF EXECUTIVE OFFICER
16 REPRESENTING THE MUNICIPALITY IN WHICH THE FACILITY IS PROPOSED, OR, IN
17 THE CITY OF NEW YORK, THE CHAIRPERSON OF THE COMMUNITY BOARD OF THE
18 COMMUNITY DISTRICT IN WHICH THE FACILITY IS PROPOSED; AND THE CHIEF
19 EXECUTIVE OFFICER OF THE COUNTY IN WHICH THE FACILITY IS PROPOSED, OR IN
20 THE CITY OF NEW YORK, THE BOROUGH PRESIDENT OF THE COUNTY IN WHICH THE
21 FACILITY IS PROPOSED. WITHIN THIRTY DAYS OF SUCH NOTIFICATION THE CHIEF
22 EXECUTIVE OFFICERS SHALL APPOINT THE AD HOC PUBLIC MEMBERS. FOUR OF THE
23 SEVEN PERSONS ON THE BOARD SHALL CONSTITUTE A QUORUM FOR THE TRANSACTION
24 OF ANY BUSINESS OF THE BOARD, AND THE DECISION OF FOUR MEMBERS OF THE
25 BOARD SHALL CONSTITUTE ACTION OF THE BOARD. IN THE EVENT THAT ONE OR
26 BOTH OF THE AD HOC PUBLIC MEMBERS HAVE NOT BEEN APPOINTED WITHIN THIRTY
27 DAYS, A MAJORITY OF PERSONS NAMED TO THE BOARD SHALL CONSTITUTE A
28 QUORUM. THE BOARD, EXCLUSIVE OF THE AD HOC PUBLIC MEMBERS, SHALL HAVE
29 THE POWER TO ADOPT RULES AND REGULATIONS RELATING TO THE PROCEDURES TO
30 BE USED IN CERTIFYING FACILITIES UNDER THE PROVISIONS OF THIS ARTICLE,
31 SUBJECT TO PROCEDURES ESTABLISHED BY THE STATE ADMINISTRATIVE PROCEDURE
32 ACT, INCLUDING THE SUSPENSION OR REVOCATION THEREOF, AND SHALL FURTHER
33 HAVE THE POWER TO SEEK DELEGATION FROM THE FEDERAL GOVERNMENT PURSUANT
34 TO FEDERAL REGULATORY PROGRAMS APPLICABLE TO THE SITING OF MAJOR ELEC-
35 TRIC GENERATING FACILITIES. THE CHAIR, AFTER CONSULTATION WITH THE OTHER
36 MEMBERS OF THE BOARD EXCLUSIVE OF THE AD HOC PUBLIC MEMBERS, SHALL HAVE
37 EXCLUSIVE JURISDICTION TO ISSUE DECLARATORY RULINGS REGARDING THE APPLI-
38 CABILITY OF, OR ANY OTHER QUESTION UNDER, THIS ARTICLE AND RULES AND
39 REGULATIONS ADOPTED HEREUNDER. REGULATIONS ADOPTED BY THE BOARD MAY
40 PROVIDE FOR RENEWAL APPLICATIONS FOR POLLUTANT CONTROL PERMITS TO BE
41 SUBMITTED TO AND ACTED UPON BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVA-
42 TION FOLLOWING COMMERCIAL OPERATION OF A CERTIFIED FACILITY.
43 IN ADDITION TO THE REQUIREMENTS OF THE PUBLIC OFFICERS LAW, NO PERSON
44 SHALL BE ELIGIBLE TO BE AN APPOINTEE OF THE GOVERNOR TO THE BOARD WHO
45 HOLDS ANOTHER STATE OR LOCAL OFFICE. NO MEMBER OF THE BOARD MAY RETAIN
46 OR HOLD ANY OFFICIAL RELATION TO, OR ANY SECURITIES OF AN ELECTRIC UTIL-
47 ITY CORPORATION OPERATING OR PROPOSED FOR OPERATION IN THE STATE, ANY
48 AFFILIATE THEREOF OR ANY OTHER COMPANY, FIRM, PARTNERSHIP, CORPORATION,
49 ASSOCIATION OR JOINT-STOCK ASSOCIATION THAT MAY APPEAR BEFORE THE BOARD,
50 NOR SHALL EITHER OF THE APPOINTEES HAVE BEEN A DIRECTOR, OFFICER OR,
51 WITHIN THE PREVIOUS TEN YEARS, AN EMPLOYEE THEREOF. THE AD HOC PUBLIC
52 MEMBERS OF THE BOARD SHALL RECEIVE THE SUM OF TWO HUNDRED DOLLARS FOR
53 EACH DAY IN WHICH THEY ARE ACTUALLY ENGAGED IN THE PERFORMANCE OF THEIR
54 DUTIES HEREIN PLUS ACTUAL AND NECESSARY EXPENSES INCURRED BY THEM IN THE
55 PERFORMANCE OF SUCH DUTIES. THE CHAIR SHALL PROVIDE SUCH PERSONNEL,
56 HEARING EXAMINERS, SUBORDINATES, EMPLOYEES AND SUCH LEGAL, TECHNOLOG-
A. 8696--B 4
1 ICAL, SCIENTIFIC, ENGINEERING AND OTHER SERVICES AND SUCH MEETING ROOMS,
2 HEARING ROOMS AND OTHER FACILITIES AS MAY BE REQUIRED IN PROCEEDINGS
3 UNDER THIS ARTICLE. THE BOARD MAY PROVIDE FOR ITS OWN REPRESENTATION AND
4 APPEARANCE IN ALL ACTIONS AND PROCEEDINGS INVOLVING ANY QUESTION UNDER
5 THIS ARTICLE. THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION SHALL PROVIDE
6 ASSOCIATE HEARING EXAMINERS. EACH MEMBER OF THE BOARD OTHER THAN THE AD
7 HOC PUBLIC MEMBERS MAY DESIGNATE AN ALTERNATE TO SERVE INSTEAD OF THE
8 MEMBER WITH RESPECT TO ALL PROCEEDINGS PURSUANT TO THIS ARTICLE. SUCH
9 DESIGNATION SHALL BE IN WRITING AND FILED WITH THE CHAIR.
10 S 162. BOARD CERTIFICATE. 1. NO PERSON SHALL COMMENCE THE PREPARATION
11 OF A SITE FOR, OR BEGIN THE CONSTRUCTION OF A MAJOR ELECTRIC GENERATING
12 FACILITY IN THE STATE, OR INCREASE THE CAPACITY OF AN EXISTING ELECTRIC
13 GENERATING FACILITY BY MORE THAN TWENTY THOUSAND KILOWATTS WITHOUT
14 HAVING FIRST OBTAINED A CERTIFICATE ISSUED WITH RESPECT TO SUCH FACILITY
15 BY THE BOARD. ANY SUCH FACILITY WITH RESPECT TO WHICH A CERTIFICATE IS
16 ISSUED SHALL NOT THEREAFTER BE BUILT, MAINTAINED OR OPERATED EXCEPT IN
17 CONFORMITY WITH SUCH CERTIFICATE AND ANY TERMS, LIMITATIONS OR CONDI-
18 TIONS CONTAINED THEREIN, PROVIDED THAT NOTHING HEREIN SHALL EXEMPT SUCH
19 FACILITY FROM COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS AND REGU-
20 LATIONS EXCEPT AS OTHERWISE PROVIDED IN THIS ARTICLE. LOCAL LAWS AND
21 REGULATIONS SHALL APPLY AS OF THE DATE OF THE FILING OF THE PRE-APPLICA-
22 TION PRELIMINARY SCOPING STATEMENT, EXCEPT TO THE EXTENT THAT ANY LOCAL
23 LAWS AND REGULATIONS ARE MODIFIED TO EFFECTUATE LAND USE PLANS OR
24 PROPOSALS INITIATED PRIOR TO THE DATE OF THE FILING OF THE PRE-APPLICA-
25 TION PRELIMINARY SCOPING STATEMENT. A CERTIFICATE FOR A MAJOR ELECTRIC
26 GENERATING FACILITY, OR AN INCREASE IN THE CAPACITY OF AN EXISTING ELEC-
27 TRIC GENERATING FACILITY BY MORE THAN TWENTY THOUSAND KILOWATTS, MAY BE
28 ISSUED ONLY PURSUANT TO THIS ARTICLE.
29 2. A CERTIFICATE MAY BE TRANSFERRED, SUBJECT TO THE APPROVAL OF THE
30 BOARD, TO A PERSON WHO AGREES TO COMPLY WITH THE TERMS, LIMITATIONS AND
31 CONDITIONS CONTAINED THEREIN.
32 3. A CERTIFICATE ISSUED UNDER THIS ARTICLE MAY BE AMENDED PURSUANT TO
33 THIS SECTION.
34 4. THIS ARTICLE SHALL NOT APPLY: (A) TO A MAJOR ELECTRIC GENERATING
35 FACILITY OVER WHICH ANY AGENCY OR DEPARTMENT OF THE FEDERAL GOVERNMENT
36 HAS EXCLUSIVE JURISDICTION, OR HAS JURISDICTION CONCURRENT WITH THAT OF
37 THE STATE AND HAS EXERCISED SUCH JURISDICTION TO THE EXCLUSION OF REGU-
38 LATION OF THE FACILITY BY THE STATE;
39 (B) TO NORMAL REPAIRS, REPLACEMENTS, MODIFICATIONS AND IMPROVEMENTS OF
40 A MAJOR ELECTRIC GENERATING FACILITY, WHENEVER BUILT, WHICH DO NOT
41 CONSTITUTE A VIOLATION OF ANY CERTIFICATE ISSUED UNDER THIS ARTICLE AND
42 WHICH DO NOT RESULT IN AN INCREASE IN CAPACITY OF THE FACILITY OF MORE
43 THAN TWENTY THOUSAND KILOWATTS;
44 (C) TO A MAJOR ELECTRIC GENERATING FACILITY (I) CONSTRUCTED ON LANDS
45 DEDICATED TO INDUSTRIAL USES, (II) THE OUTPUT OF WHICH SHALL BE USED
46 SOLELY FOR INDUSTRIAL PURPOSES, ON THE PREMISES, AND (III) THE GENERAT-
47 ING CAPACITY OF WHICH DOES NOT EXCEED TWO HUNDRED THOUSAND KILOWATTS; OR
48 (D) TO A MAJOR ELECTRIC GENERATING FACILITY IF, ON OR BEFORE THE
49 EFFECTIVE DATE OF THIS ARTICLE, AN APPLICATION HAS BEEN MADE FOR A
50 LICENSE, PERMIT, CERTIFICATE, CONSENT OR APPROVAL FROM ANY FEDERAL,
51 STATE OR LOCAL COMMISSION, AGENCY, BOARD OR REGULATORY BODY, IN WHICH
52 APPLICATION THE LOCATION OF THE MAJOR ELECTRIC GENERATING FACILITY HAS
53 BEEN DESIGNATED BY THE APPLICANT; OR IF THE FACILITY IS UNDER
54 CONSTRUCTION AT SUCH TIME.
55 5. ANY PERSON INTENDING TO CONSTRUCT A MAJOR ELECTRIC GENERATING
56 FACILITY EXCLUDED FROM THIS ARTICLE PURSUANT TO PARAGRAPH (B), (C), OR
A. 8696--B 5
1 (D) OF SUBDIVISION FOUR OF THIS SECTION MAY ELECT TO BECOME SUBJECT TO
2 THE PROVISIONS OF THIS ARTICLE BY DELIVERING NOTICE OF SUCH ELECTION TO
3 THE CHAIR OF THE BOARD. THIS ARTICLE SHALL THEREAFTER APPLY TO EACH
4 ELECTRIC GENERATING FACILITY IDENTIFIED IN SUCH NOTICE FROM THE DATE OF
5 ITS RECEIPT BY THE CHAIR OF THE BOARD. FOR THE PURPOSES OF THIS ARTICLE,
6 EACH SUCH FACILITY SHALL BE TREATED IN THE SAME MANNER AS A MAJOR ELEC-
7 TRIC GENERATING FACILITY AS DEFINED IN THIS ARTICLE.
8 S 163. PRE-APPLICATION PROCEDURES. 1. ANY PERSON PROPOSING TO SUBMIT
9 AN APPLICATION FOR A CERTIFICATE SHALL FILE WITH THE CHAIR OF THE BOARD
10 A PRELIMINARY SCOPING STATEMENT CONTAINING A BRIEF DISCUSSION, ON THE
11 BASIS OF AVAILABLE INFORMATION, OF THE FOLLOWING ITEMS:
12 (A) DESCRIPTION OF THE PROPOSED FACILITY AND ITS ENVIRONMENTAL
13 SETTING;
14 (B) POTENTIAL ENVIRONMENTAL AND HEALTH IMPACTS FROM THE INCREMENTAL
15 INCREASE IN POLLUTION RESULTING FROM THE CONSTRUCTION AND OPERATION OF
16 THE PROPOSED FACILITY;
17 (C) PROPOSED STUDIES OR PROGRAM OF STUDIES DESIGNED TO EVALUATE POTEN-
18 TIAL ENVIRONMENTAL AND HEALTH IMPACTS;
19 (D) MEASURES PROPOSED TO MINIMIZE ENVIRONMENTAL IMPACTS; AND
20 (E) WHERE THE PROPOSED FACILITY INTENDS TO USE PETROLEUM OR OTHER
21 BACK-UP FUEL FOR GENERATING ELECTRICITY, A DISCUSSION AND/OR STUDY OF
22 THE SUFFICIENCY OF THE PROPOSED ON-SITE FUEL STORAGE CAPACITY AND SUPPLY
23 INCLUDING AN ANALYSIS OF THE POTENTIAL IMPACT OF UTILIZING THE BACK-UP
24 FUEL UPON THE FUEL SUPPLY AND DELIVERY INDUSTRIES; AND
25 (F) ANY OTHER INFORMATION THAT MAY BE RELEVANT OR THAT THE BOARD MAY
26 REQUIRE.
27 2. SUCH PERSON SHALL SERVE COPIES OF THE PRELIMINARY SCOPING STATEMENT
28 ON PERSONS ENUMERATED IN PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION ONE
29 HUNDRED SIXTY-FOUR OF THIS ARTICLE AND PROVIDE NOTICE OF SUCH STATEMENT
30 AS PROVIDED IN PARAGRAPH (B) OF SUCH SUBDIVISION IN PLAIN LANGUAGE, IN
31 ENGLISH AND IN ANY OTHER LANGUAGE SPOKEN AS DETERMINED BY THE BOARD BY A
32 SIGNIFICANT PORTION OF THE POPULATION IN THE COMMUNITY, THAT DESCRIBES
33 THE PROPOSED FACILITY AND ITS LOCATION, THE RANGE OF POTENTIAL ENVIRON-
34 MENTAL AND HEALTH IMPACTS OF EACH POLLUTANT, THE APPLICATION AND REVIEW
35 PROCESS, AND A CONTACT PERSON, WITH PHONE NUMBER AND ADDRESS, FROM WHOM
36 INFORMATION WILL BE AVAILABLE AS THE APPLICATION PROCEEDS.
37 3. TO FACILITATE THE PRE-APPLICATION AND APPLICATION PROCESSES AND
38 ENABLE CITIZENS TO PARTICIPATE IN DECISIONS THAT AFFECT THEIR HEALTH AND
39 SAFETY AND THE ENVIRONMENT, THE DEPARTMENT AND SUCH PERSON SHALL PROVIDE
40 OPPORTUNITIES FOR CITIZEN INVOLVEMENT. SUCH OPPORTUNITIES SHALL ENCOUR-
41 AGE CONSULTATION WITH THE PUBLIC EARLY IN THE PRE-APPLICATION AND APPLI-
42 CATION PROCESSES, ESPECIALLY BEFORE ANY PARTIES ENTER A STIPULATION
43 PURSUANT TO SUBDIVISION FOUR OF THIS SECTION. THE PRIMARY GOALS OF THE
44 CITIZEN PARTICIPATION PROCESS SHALL BE TO FACILITATE COMMUNICATION
45 BETWEEN THE APPLICANT AND INTERESTED OR AFFECTED PERSONS. THE PROCESS
46 SHALL FOSTER THE ACTIVE INVOLVEMENT OF THE INTERESTED OR AFFECTED
47 PERSONS.
48 4. (A) EACH PRE-APPLICATION PRELIMINARY SCOPING STATEMENT SHALL BE
49 ACCOMPANIED BY A FEE IN AN AMOUNT EQUAL TO TWO HUNDRED FIFTY DOLLARS FOR
50 EACH THOUSAND KILOWATTS OF GENERATING CAPACITY OF THE SUBJECT FACILITY,
51 BUT NO MORE THAN ONE HUNDRED THOUSAND DOLLARS, TO BE DEPOSITED IN THE
52 INTERVENOR ACCOUNT ESTABLISHED PURSUANT TO SECTION NINETY-SEVEN-JJJJ OF
53 THE STATE FINANCE LAW, TO BE DISBURSED AT THE HEARING EXAMINER'S DIREC-
54 TION TO DEFRAY PRE-APPLICATION EXPENSES INCURRED BY MUNICIPAL AND OTHER
55 INTERESTED PARTIES (EXCEPT FOR A MUNICIPALITY SUBMITTING THE PRE-APPLI-
56 CATION SCOPING STATEMENT) FOR EXPERT WITNESS, CONSULTANT, ADMINISTRATIVE
A. 8696--B 6
1 AND LEGAL FEES. IF AT ANY TIME SUBSEQUENT TO THE FILING OF THE PRE-AP-
2 PLICATION THE PRE-APPLICATION IS SUBSTANTIALLY MODIFIED OR REVISED, THE
3 BOARD MAY REQUIRE AN ADDITIONAL PRE-APPLICATION INTERVENOR FEE IN AN
4 AMOUNT NOT TO EXCEED TWENTY-FIVE THOUSAND DOLLARS. ANY MONEYS REMAINING
5 IN THE INTERVENOR ACCOUNT UPON THE SUBMISSION OF AN APPLICATION FOR A
6 CERTIFICATE SHALL BE MADE AVAILABLE TO INTERVENORS ACCORDING TO PARA-
7 GRAPH (A) OF SUBDIVISION SIX OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS
8 ARTICLE.
9 (B) PRE-APPLICATION DISBURSEMENTS FROM THE INTERVENOR ACCOUNT SHALL BE
10 MADE IN ACCORDANCE WITH RULES AND REGULATIONS ESTABLISHED PURSUANT TO
11 PARAGRAPH (B) OF SUBDIVISION SIX OF SECTION ONE HUNDRED SIXTY-FOUR OF
12 THIS ARTICLE WHICH RULES SHALL PROVIDE FOR AN EXPEDITED PRE-APPLICATION
13 DISBURSEMENT SCHEDULE TO ASSURE EARLY AND MEANINGFUL PUBLIC INVOLVEMENT,
14 WITH AT LEAST ONE-HALF OF PRE-APPLICATION INTERVENOR FUNDS BECOMING
15 AVAILABLE THROUGH AN APPLICATION PROCESS WITHIN SIXTY DAYS OF THE FILING
16 OF A PRE-APPLICATION PRELIMINARY SCOPING STATEMENT.
17 5. AFTER MEETING THE REQUIREMENTS OF SUBDIVISIONS ONE THROUGH THREE
18 OF THIS SECTION, AND AFTER PRE-APPLICATION INTERVENOR FUNDS HAVE BEEN
19 ALLOCATED BY THE PRE-HEARING EXAMINER PURSUANT TO PARAGRAPH (A) OF
20 SUBDIVISION FOUR OF THIS SECTION, SUCH PERSON MAY CONSULT AND SEEK
21 AGREEMENT WITH ANY INTERESTED PERSON, INCLUDING, BUT NOT LIMITED TO, THE
22 STAFF OF THE DEPARTMENT, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
23 AND THE DEPARTMENT OF HEALTH, AS APPROPRIATE, AS TO ANY ASPECT OF THE
24 PRELIMINARY SCOPING STATEMENT AND ANY STUDY OR PROGRAM OF STUDIES MADE
25 OR TO BE MADE TO SUPPORT SUCH APPLICATION. THE STAFF OF THE DEPARTMENT,
26 THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, THE DEPARTMENT OF HEALTH,
27 THE PERSON PROPOSING TO FILE AN APPLICATION, AND ANY OTHER INTERESTED
28 PERSON MAY ENTER INTO A STIPULATION SETTING FORTH AN AGREEMENT ON ANY
29 ASPECT OF THE PRELIMINARY SCOPING STATEMENT AND THE STUDIES OR PROGRAM
30 OF STUDIES TO BE CONDUCTED. ANY SUCH PERSON PROPOSING TO SUBMIT AN
31 APPLICATION FOR A CERTIFICATE SHALL SERVE A COPY OF THE PROPOSED STIPU-
32 LATION UPON ALL PERSONS ENUMERATED IN PARAGRAPH (A) OF SUBDIVISION TWO
33 OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, PROVIDE NOTICE OF
34 SUCH STIPULATION TO THOSE PERSONS IDENTIFIED IN PARAGRAPH (B) OF SUCH
35 SUBDIVISION, AND AFFORD THE PUBLIC A REASONABLE OPPORTUNITY TO SUBMIT
36 COMMENTS ON THE STIPULATION BEFORE IT IS EXECUTED BY THE INTERESTED
37 PARTIES. NOTHING IN THIS SECTION, HOWEVER, SHALL BAR ANY PARTY TO A
38 HEARING ON AN APPLICATION, OTHER THAN ANY PARTY TO A PRE-APPLICATION
39 STIPULATION, FROM TIMELY RAISING OBJECTIONS TO ANY ASPECT OF THE PRELIM-
40 INARY SCOPING STATEMENT AND THE METHODOLOGY AND SCOPE OF ANY STIPULATED
41 STUDIES OR PROGRAM OF STUDIES IN ANY SUCH AGREEMENT. IN ORDER TO ATTEMPT
42 TO RESOLVE ANY QUESTIONS THAT MAY ARISE AS A RESULT OF SUCH CONSULTA-
43 TION, THE DEPARTMENT SHALL DESIGNATE A HEARING EXAMINER WHO SHALL OVER-
44 SEE THE PRE-APPLICATION PROCESS AND MEDIATE ANY ISSUE RELATING TO ANY
45 ASPECT OF THE PRELIMINARY SCOPING STATEMENT AND THE METHODOLOGY AND
46 SCOPE OF ANY SUCH STUDIES OR PROGRAMS OF STUDY. UPON COMPLETION OF THE
47 NOTICE PROVISIONS PROVIDED IN THIS SECTION, SUCH HEARING EXAMINER SHALL,
48 WITHIN SIXTY DAYS OF THE FILING OF A PRELIMINARY SCOPING STATEMENT,
49 CONVENE A MEETING OF INTERESTED PARTIES IN ORDER TO INITIATE THE STIPU-
50 LATION PROCESS.
51 S 164. APPLICATION FOR A CERTIFICATE. 1. AN APPLICANT FOR A CERTIF-
52 ICATE SHALL FILE WITH THE CHAIR OF THE BOARD AN APPLICATION, IN SUCH
53 FORM AS THE BOARD MAY PRESCRIBE CONTAINING THE FOLLOWING INFORMATION AND
54 MATERIALS:
55 (A) A DESCRIPTION OF THE SITE AND A DESCRIPTION OF THE FACILITY TO BE
56 BUILT THEREON; INCLUDING AVAILABLE SITE INFORMATION, MAPS AND
A. 8696--B 7
1 DESCRIPTIONS, PRESENT AND PROPOSED DEVELOPMENT, SOURCE AND VOLUME OF
2 WATER REQUIRED FOR PLANT OPERATION AND COOLING, ANTICIPATED EMISSIONS TO
3 AIR, INCLUDING BUT NOT LIMITED TO PARTICULATE MATTER OF 2.5 MICRONS OR
4 SMALLER, FEDERAL CRITERIA POLLUTANTS AND TOXINS, INCLUDING MERCURY,
5 ANTICIPATED DISCHARGES TO WATER AND GROUNDWATER, POLLUTION CONTROL
6 EQUIPMENT, AND, AS APPROPRIATE, GEOLOGICAL, AESTHETIC, ECOLOGICAL,
7 TSUNAMI, SEISMIC, BIOLOGICAL, WATER SUPPLY, POPULATION AND LOAD CENTER
8 DATA;
9 (B) STUDIES, IDENTIFYING THE AUTHOR AND DATE THEREOF, WHICH HAVE BEEN
10 MADE OF THE EXPECTED ENVIRONMENTAL AND HEALTH IMPACTS AND SAFETY IMPLI-
11 CATIONS OF THE FACILITY, BOTH DURING ITS CONSTRUCTION AND ITS OPERATION,
12 WHICH STUDIES ARE SUFFICIENT TO IDENTIFY (I) THE ANTICIPATED GASEOUS,
13 LIQUID AND SOLID WASTES TO BE PRODUCED AT THE FACILITY INCLUDING THEIR
14 SOURCE, ANTICIPATED VOLUMES, COMPOSITION AND TEMPERATURE, AND SUCH OTHER
15 ATTRIBUTES AS THE BOARD MAY SPECIFY AND THE PROBABLE LEVEL OF NOISE
16 DURING CONSTRUCTION AND OPERATION OF THE FACILITY; (II) THE TREATMENT
17 PROCESSES TO REDUCE WASTES TO BE RELEASED TO THE ENVIRONMENT, THE MANNER
18 OF DISPOSAL FOR WASTES RETAINED AND MEASURES FOR NOISE ABATEMENT; (III)
19 THE ANTICIPATED VOLUMES OF WASTES TO BE RELEASED TO THE ENVIRONMENT
20 UNDER ANY OPERATING CONDITION OF THE FACILITY, INCLUDING SUCH METEORO-
21 LOGICAL, HYDROLOGICAL AND OTHER INFORMATION NEEDED TO SUPPORT SUCH ESTI-
22 MATES; (IV) CONCEPTUAL ARCHITECTURAL AND ENGINEERING PLANS INDICATING
23 COMPATIBILITY OF THE FACILITY WITH THE ENVIRONMENT; (V) HOW THE
24 CONSTRUCTION AND OPERATION OF THE FACILITY, INCLUDING TRANSPORTATION AND
25 DISPOSAL OF WASTES WOULD COMPLY WITH ENVIRONMENTAL HEALTH AND SAFETY
26 STANDARDS, REQUIREMENTS, REGULATIONS AND RULES UNDER STATE AND MUNICIPAL
27 LAWS, AND A STATEMENT WHY ANY VARIANCES OR EXCEPTIONS SHOULD BE GRANTED;
28 (VI) WATER WITHDRAWALS FROM AND DISCHARGES TO THE WATERSHED; (VII) A
29 DESCRIPTION OF THE FUEL INTERCONNECTION AND SUPPLY FOR THE PROJECT; AND
30 (VIII) AN ELECTRIC INTERCONNECTION STUDY, CONSISTING GENERALLY OF A
31 DESIGN STUDY AND A SYSTEM RELIABILITY IMPACT STUDY;
32 (C) A STATEMENT DEMONSTRATING THAT THE FACILITY WILL SATISFY ADDI-
33 TIONAL ELECTRIC CAPACITY OR OTHER ELECTRIC SYSTEM NEEDS, AND THAT THE
34 CONSTRUCTION OF THE FACILITY IS REASONABLY CONSISTENT WITH LONG-RANGE
35 ENERGY PLANNING OBJECTIVES AND STRATEGIES;
36 (D) SUCH EVIDENCE AS WILL ENABLE THE BOARD AND THE COMMISSIONER OF
37 ENVIRONMENTAL CONSERVATION TO EVALUATE THE FACILITY'S POLLUTION CONTROL
38 SYSTEMS AND TO REACH A DETERMINATION TO ISSUE THEREFOR, SUBJECT TO
39 APPROPRIATE CONDITIONS AND LIMITATIONS, PERMITS PURSUANT TO FEDERAL
40 RECOGNITION OF STATE AUTHORITY IN ACCORDANCE WITH THE FEDERAL CLEAN
41 WATER ACT, THE FEDERAL CLEAN AIR ACT AND THE FEDERAL RESOURCE CONSERVA-
42 TION AND RECOVERY ACT;
43 (E) WHERE THE PROPOSED FACILITY INTENDS TO USE PETROLEUM OR OTHER
44 BACK-UP FUEL FOR GENERATING ELECTRICITY, EVIDENCE AND AN EVALUATION ON
45 BOTH (I) THE ADEQUACY OF THE FACILITY'S ON-SITE BACK-UP FUEL STORAGE AND
46 SUPPLY, AND (II) THE POTENTIAL IMPACT THAT INTERRUPTION OF THE FACILI-
47 TY'S PRIMARY FUEL WILL HAVE UPON THE FUEL SUPPLY AND DISTRIBUTION INDUS-
48 TRIES;
49 (F) A PLAN FOR SECURITY OF THE PROPOSED FACILITY DURING CONSTRUCTION
50 AND OPERATION OF SUCH FACILITY AND THE MEASURES TO BE TAKEN TO ENSURE
51 THE SAFETY AND SECURITY OF THE LOCAL COMMUNITY, INCLUDING CONTINGENCY,
52 EMERGENCY RESPONSE AND EVACUATION CONTROL, TO BE REVIEWED BY THE BOARD
53 IN CONSULTATION WITH THE NEW YORK STATE EMERGENCY MANAGEMENT OFFICE; AND
54 (G) SUCH OTHER INFORMATION AS THE APPLICANT MAY CONSIDER RELEVANT OR
55 AS MAY BE REQUIRED BY THE BOARD. COPIES OF THE APPLICATION, INCLUDING
A. 8696--B 8
1 THE REQUIRED INFORMATION, SHALL BE FILED WITH THE BOARD AND SHALL BE
2 AVAILABLE FOR PUBLIC INSPECTION.
3 2. EACH APPLICATION SHALL BE ACCOMPANIED BY PROOF OF SERVICE, IN SUCH
4 MANNER AS THE BOARD SHALL PRESCRIBE, OF:
5 (A) A COPY OF SUCH APPLICATION ON (I) EACH MUNICIPALITY IN WHICH ANY
6 PORTION OF SUCH FACILITY IS TO BE LOCATED AS PROPOSED OR IN ANY ALTERNA-
7 TIVE LOCATION LISTED. SUCH COPY TO A MUNICIPALITY SHALL BE ADDRESSED TO
8 THE CHIEF EXECUTIVE OFFICER THEREOF AND SHALL SPECIFY THE DATE ON OR
9 ABOUT WHICH THE APPLICATION IS TO BE FILED;
10 (II) EACH MEMBER OF THE BOARD;
11 (III) THE DEPARTMENT OF AGRICULTURE AND MARKETS;
12 (IV) THE SECRETARY OF STATE;
13 (V) THE ATTORNEY GENERAL;
14 (VI) THE DEPARTMENT OF TRANSPORTATION;
15 (VII) THE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION;
16 (VIII) A LIBRARY SERVING THE DISTRICT OF EACH MEMBER OF THE STATE
17 LEGISLATURE IN WHOSE DISTRICT ANY PORTION OF THE FACILITY IS TO BE
18 LOCATED AS PROPOSED OR IN ANY ALTERNATIVE LOCATION LISTED;
19 (IX) IN THE EVENT THAT SUCH FACILITY OR ANY PORTION THEREOF AS
20 PROPOSED OR IN ANY ALTERNATIVE LOCATION LISTED IS LOCATED WITHIN THE
21 ADIRONDACK PARK, AS DEFINED IN SUBDIVISION ONE OF SECTION 9-0101 OF THE
22 ENVIRONMENTAL CONSERVATION LAW, THE ADIRONDACK PARK AGENCY; AND
23 (X) THE PUBLIC INFORMATION OFFICER FOR PLACEMENT ON THE WEBSITE OF THE
24 DEPARTMENT; AND
25 (B) A NOTICE OF SUCH APPLICATION ON (I) PERSONS RESIDING IN MUNICI-
26 PALITIES ENTITLED TO RECEIVE A COPY OF THE APPLICATION UNDER SUBPARA-
27 GRAPH (I) OF PARAGRAPH (A) OF THIS SUBDIVISION. SUCH NOTICE SHALL BE
28 GIVEN BY THE PUBLICATION OF A SUMMARY OF THE APPLICATION AND THE DATE ON
29 OR ABOUT WHICH IT WILL BE FILED, TO BE PUBLISHED UNDER REGULATIONS TO BE
30 PROMULGATED BY THE BOARD, IN SUCH FORM AND IN SUCH NEWSPAPER OR NEWSPA-
31 PERS, INCLUDING LOCAL COMMUNITY AND GENERAL CIRCULATION NEWSPAPERS, AS
32 WILL SERVE SUBSTANTIALLY TO INFORM THE PUBLIC OF SUCH APPLICATION, IN
33 PLAIN LANGUAGE, IN ENGLISH AND IN ANY OTHER LANGUAGE SPOKEN AS DETER-
34 MINED BY THE BOARD BY A SIGNIFICANT PORTION OF THE POPULATION IN THE
35 COMMUNITY, THAT DESCRIBES THE PROPOSED FACILITY AND ITS LOCATION, THE
36 RANGE OF POTENTIAL ENVIRONMENTAL AND HEALTH IMPACTS OF EACH POLLUTANT,
37 THE APPLICATION AND REVIEW PROCESS, AND A CONTACT PERSON, WITH PHONE
38 NUMBER AND ADDRESS, FROM WHOM INFORMATION WILL BE AVAILABLE AS THE
39 APPLICATION PROCEEDS;
40 (II) EACH MEMBER OF THE STATE LEGISLATURE IN WHOSE DISTRICT ANY
41 PORTION OF THE FACILITY IS TO BE LOCATED AS PROPOSED OR IN ANY ALTERNA-
42 TIVE LOCATION LISTED; AND
43 (III) PERSONS WHO HAVE FILED A STATEMENT WITH THE BOARD WITHIN THE
44 PAST TWELVE MONTHS THAT THEY WISH TO RECEIVE ALL SUCH NOTICES CONCERNING
45 FACILITIES IN THE AREA IN WHICH THE FACILITY IS TO BE LOCATED AS
46 PROPOSED OR IN ANY ALTERNATIVE LOCATION LISTED.
47 3. INADVERTENT FAILURE OF SERVICE ON ANY OF THE MUNICIPALITIES,
48 PERSONS, AGENCIES, BODIES OR COMMISSIONS NAMED IN SUBDIVISION TWO OF
49 THIS SECTION SHALL NOT BE JURISDICTIONAL AND MAY BE CURED PURSUANT TO
50 REGULATIONS OF THE BOARD DESIGNED TO AFFORD SUCH PERSONS ADEQUATE NOTICE
51 TO ENABLE THEM TO PARTICIPATE EFFECTIVELY IN THE PROCEEDING. IN ADDI-
52 TION, THE BOARD MAY, AFTER FILING, REQUIRE THE APPLICANT TO SERVE NOTICE
53 OF THE APPLICATION OR COPIES THEREOF OR BOTH UPON SUCH OTHER PERSONS AND
54 FILE PROOF THEREOF AS THE BOARD MAY DEEM APPROPRIATE.
55 4. THE BOARD SHALL PRESCRIBE THE FORM AND CONTENT OF AN APPLICATION
56 FOR AN AMENDMENT OF A CERTIFICATE TO BE ISSUED PURSUANT TO THIS ARTICLE.
A. 8696--B 9
1 NOTICE OF SUCH AN APPLICATION SHALL BE GIVEN AS SET FORTH IN SUBDIVISION
2 TWO OF THIS SECTION.
3 5. IF A REASONABLE ALTERNATIVE LOCATION OR A REASONABLE ALTERNATIVE
4 ENERGY SUPPLY SOURCE OR DEMAND REDUCING MEASURE NOT LISTED IN THE APPLI-
5 CATION IS PROPOSED IN THE CERTIFICATION PROCEEDING, NOTICE OF SUCH
6 PROPOSED ALTERNATIVE SHALL BE GIVEN AS SET FORTH IN SUBDIVISION TWO OF
7 THIS SECTION.
8 6. (A) EACH APPLICATION SHALL BE ACCOMPANIED BY A FEE IN AN AMOUNT (I)
9 EQUAL TO ONE THOUSAND DOLLARS FOR EACH THOUSAND KILOWATTS OF CAPACITY,
10 BUT NO MORE THAN FOUR HUNDRED THOUSAND DOLLARS, (II) AND FOR FACILITIES
11 THAT WILL REQUIRE STORAGE OR DISPOSAL OF FUEL WASTE BYPRODUCT AN ADDI-
12 TIONAL FEE OF FIVE HUNDRED DOLLARS FOR EACH THOUSAND KILOWATT OF CAPACI-
13 TY, BUT NO MORE THAN TWO HUNDRED THOUSAND DOLLARS SHALL BE DEPOSITED IN
14 THE INTERVENOR ACCOUNT, ESTABLISHED PURSUANT TO SECTION
15 NINETY-SEVEN-JJJJ OF THE STATE FINANCE LAW, TO BE DISBURSED AT THE
16 BOARD'S DIRECTION, TO DEFRAY EXPENSES INCURRED BY MUNICIPAL AND OTHER
17 LOCAL PARTIES TO THE PROCEEDING (EXCEPT A MUNICIPALITY WHICH IS THE
18 APPLICANT) FOR EXPERT WITNESS, CONSULTANT, ADMINISTRATIVE AND LEGAL
19 FEES, PROVIDED, HOWEVER, SUCH EXPENSES SHALL NOT BE AVAILABLE FOR JUDI-
20 CIAL REVIEW. IF AT ANY TIME SUBSEQUENT TO THE FILING OF THE APPLICATION,
21 THE APPLICATION IS AMENDED IN A MANNER THAT WARRANTS SUBSTANTIAL ADDI-
22 TIONAL SCRUTINY, THE BOARD MAY REQUIRE AN ADDITIONAL INTERVENOR FEE IN
23 AN AMOUNT NOT TO EXCEED ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS. THE
24 BOARD SHALL PROVIDE FOR TRANSCRIPTS, THE REPRODUCTION AND SERVICE OF
25 DOCUMENTS, AND THE PUBLICATION OF REQUIRED NOTICES, FOR MUNICIPAL AND
26 OTHER LOCAL PARTIES, IN ALL APPROPRIATE LANGUAGES. ANY MONEYS REMAINING
27 IN THE INTERVENOR ACCOUNT AFTER THE BOARD'S JURISDICTION OVER AN APPLI-
28 CATION HAS CEASED SHALL BE RETURNED TO THE APPLICANT.
29 (B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE
30 BOARD SHALL PROVIDE BY RULES AND REGULATIONS FOR THE MANAGEMENT OF THE
31 INTERVENOR ACCOUNT AND FOR DISBURSEMENTS FROM THE ACCOUNT, WHICH RULES
32 AND REGULATIONS SHALL BE CONSISTENT WITH THE PURPOSE OF THIS SECTION TO
33 MAKE AVAILABLE TO MUNICIPAL PARTIES AT LEAST ONE-HALF OF THE AMOUNT OF
34 THE INTERVENOR ACCOUNT AND FOR USES SPECIFIED IN PARAGRAPH (A) OF THIS
35 SUBDIVISION. IN ADDITION, THE BOARD SHALL PROVIDE OTHER LOCAL PARTIES UP
36 TO ONE-HALF OF THE AMOUNT OF THE INTERVENOR ACCOUNT, PROVIDED, HOWEVER,
37 THAT THE BOARD SHALL ASSURE THAT THE PURPOSES FOR WHICH MONEYS IN THE
38 INTERVENOR ACCOUNT WILL BE EXPENDED WILL CONTRIBUTE TO AN INFORMED DECI-
39 SION AS TO THE APPROPRIATENESS OF THE SITE AND FACILITY AND ARE MADE
40 AVAILABLE ON AN EQUITABLE BASIS IN A MANNER WHICH FACILITATES BROAD
41 PUBLIC PARTICIPATION.
42 S 165. HEARING SCHEDULE. 1. AFTER THE RECEIPT OF AN APPLICATION FILED
43 PURSUANT TO SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, THE CHAIR OF
44 THE BOARD SHALL, WITHIN SIXTY DAYS OF SUCH RECEIPT, DETERMINE WHETHER
45 THE APPLICATION COMPLIES WITH SUCH SECTION AND UPON FINDING THAT THE
46 APPLICATION SO COMPLIES, FIX A DATE FOR THE COMMENCEMENT OF A PUBLIC
47 HEARING. UPON A DETERMINATION THAT AN APPLICATION COMPLIES WITH SECTION
48 ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE THE DEPARTMENT OF ENVIRONMENTAL
49 CONSERVATION MAY INITIATE A REVIEW PURSUANT TO FEDERALLY DELEGATED OR
50 APPROVED ENVIRONMENTAL PERMITTING AUTHORITY. THE CHAIR OF THE BOARD MAY
51 REQUIRE THE FILING OF ANY ADDITIONAL INFORMATION NEEDED TO SUPPLEMENT AN
52 APPLICATION BEFORE OR DURING THE HEARINGS.
53 2. WITHIN A REASONABLE TIME AFTER THE DATE HAS BEEN FIXED BY THE CHAIR
54 FOR COMMENCEMENT OF A PUBLIC HEARING, THE PRESIDING EXAMINER SHALL HOLD
55 A PREHEARING CONFERENCE TO EXPEDITE THE ORDERLY CONDUCT AND DISPOSITION
56 OF THE HEARING, TO SPECIFY THE ISSUES, TO OBTAIN STIPULATIONS AS TO
A. 8696--B 10
1 MATTERS NOT DISPUTED, AND TO DEAL WITH SUCH OTHER MATTERS AS THE PRESID-
2 ING EXAMINER MAY DEEM PROPER. THEREAFTER, THE PRESIDING EXAMINER SHALL
3 ISSUE AN ORDER IDENTIFYING THE ISSUES TO BE ADDRESSED BY THE PARTIES
4 PROVIDED, HOWEVER, THAT NO SUCH ORDER SHALL PRECLUDE CONSIDERATION OF
5 ADDITIONAL ISSUES OR REQUESTS FOR ADDITIONAL SUBMISSIONS, DOCUMENTATION
6 OR TESTIMONY AT A HEARING WHICH WARRANT CONSIDERATION IN ORDER TO DEVEL-
7 OP AN ADEQUATE RECORD AS DETERMINED BY AN ORDER OF THE BOARD. THE
8 PRESIDING EXAMINER SHALL BE PERMITTED A REASONABLE TIME TO RESPOND TO
9 ANY AND ALL INTERLOCUTORY MOTIONS AND APPEALS, BUT IN NO CASE SHALL SUCH
10 TIME EXTEND BEYOND FORTY-FIVE DAYS.
11 3. ALL PARTIES SHALL BE PREPARED TO PROCEED IN AN EXPEDITIOUS MANNER
12 AT THE HEARING SO THAT IT MAY PROCEED REGULARLY UNTIL COMPLETION, EXCEPT
13 THAT HEARINGS SHALL BE OF SUFFICIENT DURATION TO PROVIDE ADEQUATE OPPOR-
14 TUNITY TO HEAR DIRECT EVIDENCE AND REBUTTAL EVIDENCE FROM RESIDENTS OF
15 THE AREA AFFECTED BY THE PROPOSED MAJOR ELECTRIC GENERATING FACILITY. TO
16 THE EXTENT PRACTICABLE, THE PLACE OF THE HEARING SHALL BE DESIGNATED BY
17 THE PRESIDING EXAMINER AT A LOCATION WITHIN TWO MILES OF THE PROPOSED
18 LOCATION OF THE FACILITY.
19 4. PROCEEDINGS ON AN APPLICATION SHALL BE COMPLETED IN ALL RESPECTS IN
20 A MANNER CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL
21 PERMITTING AUTHORITY, INCLUDING A FINAL DECISION BY THE BOARD, WITHIN
22 TWELVE MONTHS FROM THE DATE OF A DETERMINATION BY THE CHAIR THAT AN
23 APPLICATION COMPLIES WITH SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTI-
24 CLE; PROVIDED, HOWEVER, THE BOARD MAY EXTEND THE DEADLINE IN EXTRAOR-
25 DINARY CIRCUMSTANCES BY NO MORE THAN SIX MONTHS IN ORDER TO GIVE CONSID-
26 ERATION TO SPECIFIC ISSUES NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE
27 BOARD MUST RENDER A FINAL DECISION ON THE APPLICATION BY THE AFOREMEN-
28 TIONED DEADLINES UNLESS SUCH DEADLINES ARE WAIVED BY THE APPLICANT. IF,
29 AT ANY TIME SUBSEQUENT TO THE COMMENCEMENT OF THE HEARING, THERE IS A
30 MATERIAL AND SUBSTANTIAL AMENDMENT TO THE APPLICATION, THE DEADLINES MAY
31 BE EXTENDED BY NO MORE THAN SIX MONTHS, UNLESS SUCH DEADLINE IS WAIVED
32 BY THE APPLICANT, TO CONSIDER SUCH AMENDMENT.
33 5. ON AN APPLICATION FOR AN AMENDMENT OF A CERTIFICATE PROPOSING A
34 CHANGE IN THE FACILITY LIKELY TO RESULT IN ANY MATERIAL INCREASE IN ANY
35 ENVIRONMENTAL IMPACT OF THE FACILITY OR A SUBSTANTIAL CHANGE IN THE
36 LOCATION OF ALL OR A PORTION OF SUCH FACILITY, A HEARING SHALL BE HELD
37 IN THE SAME MANNER AS A HEARING ON AN APPLICATION FOR A CERTIFICATE. THE
38 BOARD SHALL PROMULGATE RULES, REGULATIONS AND STANDARDS UNDER WHICH IT
39 SHALL DETERMINE WHETHER HEARINGS ARE REQUIRED UNDER THIS SUBDIVISION AND
40 SHALL MAKE SUCH DETERMINATIONS.
41 S 166. PARTIES TO A CERTIFICATION PROCEEDING. 1. THE PARTIES TO THE
42 CERTIFICATION PROCEEDINGS SHALL INCLUDE:
43 (A) THE APPLICANT;
44 (B) THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, WHICH SHALL IN ANY
45 SUCH PROCEEDING PRESENT EXPERT TESTIMONY AND INFORMATION INCLUDING:
46 (I) A CUMULATIVE IMPACTS ANALYSIS OF AIR QUALITY BASED ON EXISTING AND
47 PROJECTED EMISSIONS FROM EXISTING AND PROPOSED SOURCES LOCATED WITHIN
48 THE COUNTY IN WHICH THE FACILITY IS PROPOSED AND EACH COUNTY ADJACENT TO
49 SUCH COUNTY, OR WHERE SUCH FACILITY IS PROPOSED IN CITIES WITH A POPU-
50 LATION OF ONE MILLION OR GREATER, FOR AN AREA COMPRISING A FIVE-MILE
51 RADIUS FROM THE LOCATION OF THE PROPOSED FACILITY, THE COUNTY OF THE
52 PROPOSED FACILITY AND EACH COUNTY ADJACENT TO SUCH COUNTY, INCLUDING,
53 BUT NOT LIMITED TO, PARTICULATE MATTER OF 2.5 MICRONS OR SMALLER, FEDER-
54 AL CRITERIA POLLUTANTS AND TOXINS, INCLUDING MERCURY, AND FOR WHICH
55 CUMULATIVE IMPACTS THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION SHALL
A. 8696--B 11
1 PROMULGATE REGULATIONS WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS
2 SUBPARAGRAPH;
3 (II) A COMPREHENSIVE DEMOGRAPHIC, ECONOMIC AND PHYSICAL DESCRIPTION OF
4 THE COMMUNITY WITHIN WHICH THE FACILITY IS LOCATED, WITHIN A TWO-MILE
5 RADIUS OF THE LOCATION OF THE PROPOSED FACILITY, COMPARED AND CONTRASTED
6 WITH THE COUNTY IN WHICH THE FACILITY IS PROPOSED AND WITH NEIGHBORING
7 COMMUNITIES, INCLUDING RESIDENTIAL PATTERNS, POPULATION, RACIAL AND
8 ETHNIC CHARACTERISTICS, INCOME LEVELS, EMPLOYMENT, OPEN SPACE, EDUCA-
9 TIONAL, BUSINESS, AND PUBLIC HEALTH DATA, INCLUDING BUT NOT LIMITED TO
10 INCIDENTS OF RESPIRATORY AILMENTS, CANCER, AND INFANT MORTALITY, AND FOR
11 WHICH COMPREHENSIVE DESCRIPTION THE DEPARTMENT OF ENVIRONMENTAL CONSER-
12 VATION SHALL PROMULGATE REGULATIONS WITHIN SIX MONTHS OF THE EFFECTIVE
13 DATE OF THIS SUBPARAGRAPH;
14 (III) ANY OTHER POTENTIAL ENVIRONMENTAL IMPACTS OF THE PROPOSED FACIL-
15 ITY, AND, AS APPROPRIATE, ANY ALTERNATE FACILITY OR ENERGY SOURCE ON THE
16 ENVIRONMENT, AND WHETHER AND HOW SUCH FACILITY WOULD COMPLY WITH APPLI-
17 CABLE STATE AND FEDERAL ENVIRONMENTAL PROTECTION LAWS, STANDARDS, RULES
18 AND REGULATIONS;
19 (C) THE DEPARTMENT OF ECONOMIC DEVELOPMENT;
20 (D) THE DEPARTMENT OF HEALTH, WHICH SHALL CONSULT WITH THE DEPARTMENT
21 OF ENVIRONMENTAL CONSERVATION AND CONTRIBUTE TO THE DEVELOPMENT OF THE
22 ANALYSIS AND TESTIMONY CONCERNING ISSUES DESCRIBED IN SUBPARAGRAPH (II)
23 OF PARAGRAPH (B) OF THIS SUBDIVISION;
24 (E) THE DEPARTMENT OF AGRICULTURE AND MARKETS;
25 (F) THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY,
26 WHICH SHALL BE REQUIRED IN ANY SUCH PROCEEDING TO PRESENT EXPERT TESTI-
27 MONY AND INFORMATION CONSISTING OF:
28 (I) A COST-BASED ANALYSIS OF THE POTENTIAL IMPACT OF THE PROPOSED
29 FACILITY ON THE WHOLESALE GENERATION MARKETS, BOTH GENERALLY AND FOR THE
30 LOCATION-BASED MARKET IN WHICH THE FACILITY IS PROPOSED, AS WELL AS THE
31 POTENTIAL IMPACT OF THE PROPOSED FACILITY ON FUEL COSTS, IN COMPARISON
32 WITH THE COSTS FOR ACHIEVING AN EQUAL LEVEL OF CAPACITY THROUGH ALTERNA-
33 TIVE RESOURCES, INCLUDING RENEWABLE ENERGY RESOURCES AND ENERGY CONSER-
34 VATION AND EFFICIENCY PROGRAMS, AND
35 (II) A DISCUSSION OF THE CONTRIBUTION OR IMPAIRMENT OF THE PROPOSED
36 FACILITY TOWARDS MEETING THE ENUMERATED GOALS AS DISCUSSED IN THE MOST
37 RECENT STATE ENERGY PLAN, INCLUDING IMPACTS ON FUEL DIVERSITY, REGIONAL
38 REQUIREMENTS FOR CAPACITY, ELECTRIC TRANSMISSION AND FUEL DELIVERY
39 CONSTRAINTS AND OTHER ISSUES AS APPROPRIATE, INCLUDING THE COMPARATIVE
40 ADVANTAGES AND DISADVANTAGES OF REASONABLE ALTERNATE LOCATIONS OR PROP-
41 ERTIES IDENTIFIED FOR POWER PLANT CONSTRUCTION, AND A STATEMENT OF THE
42 REASONS WHY THE PROPOSED LOCATION AND SOURCE IS BEST SUITED, AMONG THE
43 ALTERNATIVES IDENTIFIED, TO PROMOTE PUBLIC HEALTH AND WELFARE;
44 (G) THE DEPARTMENT OF STATE, WHICH SHALL BE REQUIRED IN ANY SUCH
45 PROCEEDING TO PRESENT EXPERT TESTIMONY AND INFORMATION CONCERNING THE
46 COMPATIBILITY OF THE PROPOSED FACILITY WITH FEDERAL AND STATE COASTAL
47 ZONE MANAGEMENT LAWS, REGULATIONS AND POLICIES;
48 (H) THE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, WHICH
49 SHALL BE REQUIRED IN ANY SUCH PROCEEDING TO PRESENT EXPERT TESTIMONY AND
50 INFORMATION CONCERNING THE IMPACT OF THE PROPOSED FACILITY ON PARKLANDS
51 AND ARCHEOLOGICAL, HISTORICAL, CULTURAL AND RECREATIONAL RESOURCES;
52 (I) WHERE THE FACILITY OR ANY PORTION THEREOF OR OF ANY ALTERNATE IS
53 TO BE LOCATED WITHIN THE ADIRONDACK PARK, AS DEFINED IN SUBDIVISION ONE
54 OF SECTION 9-0101 OF THE ENVIRONMENTAL CONSERVATION LAW, THE ADIRONDACK
55 PARK AGENCY;
A. 8696--B 12
1 (J) A MUNICIPALITY ENTITLED TO RECEIVE A COPY OF THE APPLICATION UNDER
2 PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-FOUR OF
3 THIS ARTICLE, IF IT HAS FILED WITH THE BOARD A NOTICE OF INTENT TO BE A
4 PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN IN THE PUBLISHED
5 NOTICE AS THE DATE FOR THE FILING OF THE APPLICATION; ANY MUNICIPALITY
6 ENTITLED TO BE A PARTY HEREIN AND SEEKING TO ENFORCE ANY LOCAL ORDI-
7 NANCE, LAW, RESOLUTION OR OTHER ACTION OR REGULATION OTHERWISE APPLICA-
8 BLE SHALL PRESENT EVIDENCE IN SUPPORT THEREOF OR SHALL BE BARRED FROM
9 THE ENFORCEMENT THEREOF;
10 (K) ANY INDIVIDUAL RESIDENT IN A MUNICIPALITY ENTITLED TO RECEIVE A
11 COPY OF THE APPLICATION UNDER PARAGRAPH (A) OF SUBDIVISION TWO OF
12 SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE IF HE HAS FILED WITH THE
13 BOARD A NOTICE OF INTENT TO BE A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE
14 DATE GIVEN IN THE PUBLISHED NOTICE AS THE DATE FOR FILING OF THE APPLI-
15 CATION;
16 (1) ANY NON-PROFIT CORPORATION OR ASSOCIATION, FORMED IN WHOLE OR IN
17 PART TO PROMOTE CONSERVATION OR NATURAL BEAUTY, TO PROTECT THE ENVIRON-
18 MENT, PERSONAL HEALTH OR OTHER BIOLOGICAL VALUES, TO PRESERVE HISTORICAL
19 SITES, TO PROMOTE CONSUMER INTERESTS, TO REPRESENT COMMERCIAL AND INDUS-
20 TRIAL GROUPS OR TO PROMOTE THE ORDERLY DEVELOPMENT OF ANY AREA IN WHICH
21 THE FACILITY IS TO BE LOCATED, IF IT HAS FILED WITH THE BOARD A NOTICE
22 OF INTENT TO BECOME A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN
23 IN THE PUBLISHED NOTICE AS THE DATE FOR FILING OF THE APPLICATION;
24 (M) ANY OTHER MUNICIPALITY OR RESIDENT OF SUCH MUNICIPALITY LOCATED
25 WITHIN A FIVE MILE RADIUS OF SUCH PROPOSED FACILITY, IF IT OR THE RESI-
26 DENT HAS FILED WITH THE BOARD A NOTICE OF INTENT TO BECOME A PARTY,
27 WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN IN THE PUBLISHED NOTICE AS
28 THE DATE FOR FILING OF THE APPLICATION;
29 (N) ANY OTHER MUNICIPALITY OR RESIDENT OF SUCH MUNICIPALITY WHICH THE
30 BOARD IN ITS DISCRETION FINDS TO HAVE AN INTEREST IN THE PROCEEDING
31 BECAUSE OF THE POTENTIAL ENVIRONMENTAL EFFECTS ON SUCH MUNICIPALITY OR
32 PERSON, IF THE MUNICIPALITY OR PERSON HAS FILED WITH THE BOARD A NOTICE
33 OF INTENT TO BECOME A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN
34 IN THE PUBLISHED NOTICE AS THE DATE FOR FILING OF THE APPLICATION,
35 TOGETHER WITH AN EXPLANATION OF THE POTENTIAL ENVIRONMENTAL EFFECTS ON
36 SUCH MUNICIPALITY OR PERSON; AND
37 (O) SUCH OTHER PERSONS OR ENTITIES AS THE BOARD MAY AT ANY TIME DEEM
38 APPROPRIATE, WHO MAY PARTICIPATE IN ALL SUBSEQUENT STAGES OF THE
39 PROCEEDING.
40 2. THE DEPARTMENT SHALL DESIGNATE MEMBERS OF ITS STAFF WHO SHALL
41 PARTICIPATE AS A PARTY IN PROCEEDINGS UNDER THIS ARTICLE.
42 3. ANY PERSON MAY MAKE A LIMITED APPEARANCE IN THE PROCEEDING BY
43 FILING A STATEMENT OF HIS OR HER INTENT TO LIMIT HIS OR HER APPEARANCE
44 IN WRITING AT ANY TIME PRIOR TO THE COMMENCEMENT OF THE HEARING. ALL
45 PAPERS AND MATTERS FILED BY A PERSON MAKING A LIMITED APPEARANCE SHALL
46 BECOME PART OF THE RECORD. NO PERSON MAKING A LIMITED APPEARANCE SHALL
47 BE A PARTY OR SHALL HAVE THE RIGHT TO PRESENT ORAL TESTIMONY OR
48 CROSS-EXAMINE WITNESSES OR PARTIES.
49 4. THE BOARD MAY FOR GOOD CAUSE SHOWN, PERMIT A MUNICIPALITY OR OTHER
50 PERSON ENTITLED TO BECOME A PARTY UNDER SUBDIVISION ONE OF THIS SECTION,
51 BUT WHICH HAS FAILED TO FILE THE REQUISITE NOTICE OF INTENT WITHIN THE
52 TIME REQUIRED, TO BECOME A PARTY, AND TO PARTICIPATE IN ALL SUBSEQUENT
53 STAGES OF THE PROCEEDING.
54 S 167. CONDUCT OF HEARING. 1. (A) THE HEARING SHALL BE CONDUCTED IN AN
55 EXPEDITIOUS MANNER BY A PRESIDING EXAMINER APPOINTED BY THE DEPARTMENT.
56 AN ASSOCIATE HEARING EXAMINER SHALL BE APPOINTED BY THE DEPARTMENT OF
A. 8696--B 13
1 ENVIRONMENTAL CONSERVATION PRIOR TO THE DATE SET FOR COMMENCEMENT OF THE
2 PUBLIC HEARING. THE ASSOCIATE EXAMINER SHALL ATTEND ALL HEARINGS AS
3 SCHEDULED BY THE PRESIDING EXAMINER AND SHALL ASSIST THE PRESIDING EXAM-
4 INER IN INQUIRING INTO AND CALLING FOR TESTIMONY CONCERNING RELEVANT AND
5 MATERIAL MATTERS. THE CONCLUSIONS AND RECOMMENDATIONS OF THE ASSOCIATE
6 EXAMINER SHALL BE INCORPORATED IN THE RECOMMENDED DECISION OF THE
7 PRESIDING EXAMINER, UNLESS THE ASSOCIATE EXAMINER PREFERS TO SUBMIT A
8 SEPARATE REPORT OF DISSENTING OR CONCURRING CONCLUSIONS AND RECOMMENDA-
9 TIONS. IN THE EVENT THAT THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION
10 ISSUES PERMITS PURSUANT TO FEDERALLY DELEGATED OR APPROVED AUTHORITY
11 UNDER THE FEDERAL CLEAN WATER ACT, THE FEDERAL CLEAN AIR ACT AND THE
12 FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT, THE RECORD IN THE
13 PROCEEDING AND THE ASSOCIATE EXAMINER'S CONCLUSIONS AND RECOMMENDATIONS
14 SHALL, INSOFAR AS IS CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED
15 ENVIRONMENTAL PERMITTING AUTHORITY, PROVIDE THE BASIS FOR THE DECISION
16 OF THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION WHETHER OR NOT TO
17 ISSUE SUCH PERMITS.
18 (B) THE TESTIMONY PRESENTED AT A HEARING MAY BE PRESENTED IN WRITING
19 OR ORALLY. THE BOARD MAY REQUIRE ANY STATE AGENCY TO PROVIDE EXPERT
20 TESTIMONY ON SPECIFIC SUBJECTS WHERE ITS PERSONNEL HAVE THE REQUISITE
21 EXPERTISE AND SUCH TESTIMONY IS CONSIDERED NECESSARY TO THE DEVELOPMENT
22 OF AN ADEQUATE RECORD. ALL TESTIMONY AND INFORMATION PRESENTED BY THE
23 APPLICANT, ANY STATE AGENCY OR OTHER PARTY SHALL BE SUBJECT TO DISCOVERY
24 AND CROSS-EXAMINATION. A RECORD SHALL BE MADE OF THE HEARING AND OF ALL
25 TESTIMONY TAKEN AND THE CROSS-EXAMINATIONS THEREON. THE RULES OF
26 EVIDENCE APPLICABLE TO PROCEEDINGS BEFORE A COURT SHALL NOT APPLY. THE
27 PRESIDING EXAMINER MAY PROVIDE FOR THE CONSOLIDATION OF THE REPRESEN-
28 TATION OF PARTIES, OTHER THAN GOVERNMENTAL BODIES OR AGENCIES, HAVING
29 SIMILAR INTERESTS. IN THE CASE OF SUCH A CONSOLIDATION, THE RIGHT TO
30 COUNSEL OF ITS OWN CHOOSING SHALL BE PRESERVED TO EACH PARTY TO THE
31 PROCEEDING PROVIDED THAT THE CONSOLIDATED GROUP MAY BE REQUIRED TO BE
32 HEARD THROUGH SUCH REASONABLE NUMBER OF COUNSEL AS THE PRESIDING EXAMIN-
33 ER SHALL DETERMINE. APPROPRIATE REGULATIONS SHALL BE ISSUED BY THE BOARD
34 TO PROVIDE FOR PREHEARING DISCOVERY PROCEDURES BY PARTIES TO A PROCEED-
35 ING, CONSOLIDATION OF THE REPRESENTATION OF PARTIES, THE EXCLUSION OF
36 IRRELEVANT, REPETITIVE, REDUNDANT OR IMMATERIAL EVIDENCE, AND THE REVIEW
37 OF RULINGS BY PRESIDING EXAMINERS.
38 2. A COPY OF THE RECORD INCLUDING, BUT NOT LIMITED TO, TESTIMONY,
39 BRIEFS, E-MAILS AND HEARING TESTIMONY SHALL BE MADE AVAILABLE BY THE
40 BOARD WITHIN THIRTY DAYS FOR EXAMINATION BY THE PUBLIC, AND SHALL BE
41 MADE AVAILABLE ON THE DEPARTMENT'S WEBSITE.
42 3. THE CHAIR OF THE BOARD MAY ENTER INTO AN AGREEMENT WITH AN AGENCY
43 OR DEPARTMENT OF THE UNITED STATES HAVING CONCURRENT JURISDICTION OVER
44 ALL OR PART OF THE LOCATION, CONSTRUCTION, OR OPERATION OF A MAJOR ELEC-
45 TRIC GENERATING FACILITY SUBJECT TO THIS ARTICLE WITH RESPECT TO PROVID-
46 ING FOR JOINT PROCEDURES AND A JOINT HEARING OF COMMON ISSUES ON A
47 COMBINED RECORD, PROVIDED THAT SUCH AGREEMENT SHALL NOT DIMINISH THE
48 RIGHTS ACCORDED TO ANY PARTY UNDER THIS ARTICLE.
49 4. THE PRESIDING EXAMINER SHALL ALLOW TESTIMONY TO BE RECEIVED ON
50 REASONABLE AND AVAILABLE ALTERNATE LOCATIONS FOR THE PROPOSED FACILITY,
51 ALTERNATE ENERGY SUPPLY SOURCES AND DEMAND-REDUCING MEASURES, PROVIDED
52 NOTICE OF THE INTENT TO SUBMIT SUCH TESTIMONY SHALL BE GIVEN WITHIN SUCH
53 PERIOD AS THE BOARD SHALL PRESCRIBE BY REGULATION, WHICH PERIOD SHALL BE
54 NOT LESS THAN THIRTY NOR MORE THAN SIXTY DAYS AFTER THE COMMENCEMENT OF
55 THE HEARING. NEVERTHELESS, IN ITS DISCRETION, THE BOARD MAY THEREAFTER
56 CAUSE TO BE CONSIDERED OTHER REASONABLE AND AVAILABLE LOCATIONS FOR THE
A. 8696--B 14
1 PROPOSED FACILITY, ALTERNATE ENERGY SUPPLY SOURCES AND, WHERE APPROPRI-
2 ATE, DEMAND-REDUCING MEASURES.
3 5. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION FOUR OF THIS SECTION,
4 THE BOARD MAY MAKE A PROMPT DETERMINATION ON THE SUFFICIENCY OF THE
5 APPLICANT'S CONSIDERATION AND EVALUATION OF REASONABLE ALTERNATIVES TO
6 ITS PROPOSED TYPE OF MAJOR ELECTRIC GENERATING FACILITY AND ITS PROPOSED
7 LOCATION FOR THAT FACILITY, AS REQUIRED PURSUANT TO PARAGRAPH (B) OF
8 SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE,
9 BEFORE RESOLUTION OF OTHER ISSUES PERTINENT TO A FINAL DETERMINATION ON
10 THE APPLICATION; PROVIDED, HOWEVER, THAT ALL INTERESTED PARTIES HAVE
11 REASONABLE OPPORTUNITY TO QUESTION AND PRESENT EVIDENCE IN SUPPORT OF OR
12 AGAINST THE MERITS OF THE APPLICANT'S CONSIDERATION AND EVALUATION OF
13 SUCH ALTERNATIVES, AS REQUIRED PURSUANT TO PARAGRAPH (B) OF SUBDIVISION
14 ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, SO THAT THE BOARD
15 IS ABLE TO DECIDE, IN THE FIRST INSTANCE, WHETHER THE APPLICANT'S
16 PROPOSAL IS PREFERABLE TO ALTERNATIVES.
17 S 168. BOARD DECISIONS. 1. THE BOARD SHALL MAKE THE FINAL DECISION ON
18 AN APPLICATION UNDER THIS ARTICLE FOR A CERTIFICATE OR AMENDMENT THERE-
19 OF, UPON THE RECORD MADE BEFORE THE PRESIDING EXAMINER, AFTER RECEIVING
20 BRIEFS AND EXCEPTIONS TO THE RECOMMENDED DECISION OF SUCH EXAMINER AND
21 TO THE REPORT OF THE ASSOCIATE EXAMINER, AND AFTER HEARING SUCH ORAL
22 ARGUMENT AS THE BOARD SHALL DETERMINE. EXCEPT FOR GOOD CAUSE SHOWN TO
23 THE SATISFACTION OF THE BOARD, A DETERMINATION UNDER SUBDIVISION FIVE OF
24 SECTION ONE HUNDRED SIXTY-SEVEN OF THIS ARTICLE THAT THE APPLICANT'S
25 PROPOSAL IS PREFERABLE TO ALTERNATIVES SHALL BE FINAL. SUCH A DETERMI-
26 NATION SHALL BE SUBJECT TO REHEARING AND REVIEW ONLY AFTER THE FINAL
27 DECISION ON AN APPLICATION IS RENDERED.
28 2. THE BOARD SHALL RENDER A DECISION UPON THE RECORD EITHER TO GRANT
29 OR DENY THE APPLICATION AS FILED OR TO CERTIFY THE FACILITY UPON SUCH
30 TERMS, CONDITIONS, LIMITATIONS OR MODIFICATIONS OF THE CONSTRUCTION OR
31 OPERATION OF THE FACILITY AS THE BOARD MAY DEEM APPROPRIATE. THE BOARD
32 SHALL ISSUE, WITH ITS DECISION, AN OPINION STATING IN FULL ITS REASONS
33 FOR ITS DECISION, INCLUDING A STATEMENT OF HOW THE DECISION IS CONSIST-
34 ENT WITH THE STATE ENERGY PLAN. THE BOARD SHALL ISSUE AN ORDER UPON THE
35 DECISION AND THE OPINION EMBODYING THE TERMS AND CONDITIONS THEREOF IN
36 FULL. FOLLOWING ANY REHEARING AND ANY JUDICIAL REVIEW OF THE BOARD'S
37 DECISION, THE BOARD'S JURISDICTION OVER AN APPLICATION SHALL CEASE,
38 PROVIDED, HOWEVER, THAT THE BOARD SHALL RETAIN JURISDICTION WITH RESPECT
39 TO THE AMENDMENT, SUSPENSION OR REVOCATION OF A CERTIFICATE. THE COMMIS-
40 SION SHALL MONITOR, ENFORCE AND ADMINISTER COMPLIANCE WITH ANY TERMS AND
41 CONDITIONS SET FORTH IN THE BOARD'S ORDER. THE BOARD MAY NOT GRANT A
42 CERTIFICATE FOR THE CONSTRUCTION OR OPERATION OF A MAJOR ELECTRIC GENER-
43 ATING FACILITY, EITHER AS PROPOSED OR AS MODIFIED BY THE BOARD, UNLESS
44 IT SHALL FIRST FIND AND DETERMINE:
45 (A) THAT THE FACILITY WILL SATISFY ADDITIONAL ELECTRIC CAPACITY NEEDS
46 OR OTHER ELECTRIC SYSTEM NEEDS, AND THAT THE CONSTRUCTION OF THE FACILI-
47 TY IS CONSISTENT WITH LONG-RANGE ENERGY PLANNING OBJECTIVES AND STRATE-
48 GIES, THE BOARD SHALL FIND AND DETERMINE THAT THE CONSTRUCTION OF THE
49 FACILITY IS REASONABLY CONSISTENT WITH THE POLICIES AND LONG-RANGE ENER-
50 GY PLANNING OBJECTIVES AND STRATEGIES CONTAINED IN THE MOST RECENT STATE
51 ENERGY PLAN, INCLUDING THAT THE ADDITIONAL ELECTRICITY PROVIDED BY THE
52 FACILITY AS PROPOSED IS NEEDED AND IS THE MOST EFFECTIVE OPTION FOR
53 RATEPAYERS, CONSIDERING REQUIRED CAPITAL INVESTMENT, COST, RATEPAYER
54 IMPACTS, SECURITY AND DIVERSITY OF FUEL SUPPLIES AND GENERATING MODES,
55 PROTECTION OF PUBLIC HEALTH AND SAFETY, ADVERSE AND BENEFICIAL ENVIRON-
56 MENTAL IMPACTS, CONSERVATION OF ENERGY AND ENERGY RESOURCES AND ANY
A. 8696--B 15
1 OTHER POLICY OBJECTIVES DEEMED APPROPRIATE, COMPARED TO ALL OTHER ALTER-
2 NATIVES, INCLUDING DEMAND REDUCTION OPTIONS, AND THAT THE LOCATION
3 PROPOSED FOR THE FACILITY IS IDENTIFIED AS A SUITABLE LOCATION FOR POWER
4 PLANT CONSTRUCTION;
5 (B) THE NATURE OF THE PROBABLE ENVIRONMENTAL IMPACTS, INCLUDING AN
6 EVALUATION OF THE PREDICTABLE ADVERSE AND BENEFICIAL IMPACTS ON THE
7 ENVIRONMENT AND ECOLOGY, PUBLIC HEALTH AND SAFETY, AESTHETICS, SCENIC,
8 HISTORIC AND RECREATIONAL VALUE, FOREST AND PARKS, AIR AND WATER QUALI-
9 TY, INCLUDING THE CUMULATIVE EFFECT OF AIR EMISSIONS FROM EXISTING AND
10 PROPOSED FACILITIES AND THE POTENTIAL FOR SIGNIFICANT DETERIORATION IN
11 LOCAL AIR QUALITY, WITH PARTICULAR ATTENTION TO FACILITIES LOCATED IN OR
12 NEAR AREAS DESIGNATED AS SEVERE NONATTAINMENT, FISH AND OTHER MARINE
13 LIFE AND WILDLIFE, OR LANDS INCLUDED IN THE STATE OPEN SPACE PLAN;
14 (C) THAT THE FACILITY (I) MINIMIZES ADVERSE ENVIRONMENTAL IMPACTS,
15 CONSIDERING THE STATE OF AVAILABLE TECHNOLOGY, THE NATURE AND ECONOMICS
16 OF SUCH REASONABLE ALTERNATIVES AS ARE REQUIRED TO BE EXAMINED PURSUANT
17 TO PARAGRAPH (F) OF SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-SIX OF
18 THIS ARTICLE, THE INTEREST OF THE STATE WITH RESPECT TO AESTHETICS,
19 PRESERVATION OF HISTORIC SITES, FOREST AND PARKS, FISH AND WILDLIFE,
20 VIABLE AGRICULTURAL LANDS, AND OTHER PERTINENT CONSIDERATIONS, (II) IS
21 COMPATIBLE WITH PUBLIC HEALTH AND SAFETY, (III) WILL NOT BE IN CONTRA-
22 VENTION OF WATER QUALITY STANDARDS OR BE INCONSISTENT WITH APPLICABLE
23 REGULATIONS OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, OR IN CASE
24 NO CLASSIFICATION HAS BEEN MADE OF THE RECEIVING WATERS ASSOCIATED WITH
25 THE FACILITY, WILL NOT DISCHARGE ANY EFFLUENT THAT WILL BE UNDULY INJU-
26 RIOUS TO THE PROPAGATION AND PROTECTION OF FISH AND WILDLIFE, THE INDUS-
27 TRIAL DEVELOPMENT OF THE STATE, AND PUBLIC HEALTH AND PUBLIC ENJOYMENT
28 OF THE RECEIVING WATERS, (IV) WILL NOT EMIT ANY POLLUTANTS TO THE AIR
29 THAT WILL BE IN CONTRAVENTION OF APPLICABLE AIR EMISSION CONTROL
30 REQUIREMENTS OR AIR QUALITY STANDARDS, (V) WILL CONTROL THE RUNOFF AND
31 LEACHATE FROM ANY SOLID WASTE DISPOSAL FACILITY, AND (VI) WILL CONTROL
32 THE DISPOSAL OF ANY HAZARDOUS WASTE;
33 (D) WHERE APPLICABLE, THAT THE FACILITY POSSESSES ADEQUATE ON-SITE
34 PETROLEUM OR OTHER BACK-UP FUEL SUPPLY AND STORAGE TO ACCOMMODATE AND
35 MEET THE SUPPLY NEEDS OF THE FACILITY DURING PERIODS OF INTERRUPTION OF
36 ITS PRIMARY FUEL WHILE NOT DISRUPTING OR NEGATIVELY IMPACTING THE FUEL
37 SUPPLY AND DISTRIBUTION INDUSTRIES;
38 (E) THAT THE FACILITY IS DESIGNED TO OPERATE IN COMPLIANCE WITH APPLI-
39 CABLE STATE AND LOCAL LAWS AND REGULATIONS ISSUED THEREUNDER CONCERNING,
40 AMONG OTHER MATTERS, THE ENVIRONMENT, PUBLIC HEALTH AND SAFETY, ALL OF
41 WHICH SHALL BE BINDING UPON THE APPLICANT, EXCEPT THAT THE BOARD MAY
42 REFUSE TO APPLY ANY LOCAL ORDINANCE, LAW, RESOLUTION OR OTHER ACTION OR
43 ANY REGULATION ISSUED THEREUNDER OR ANY LOCAL STANDARD OR REQUIREMENT
44 WHICH WOULD BE OTHERWISE APPLICABLE IF IT FINDS THAT AS APPLIED TO THE
45 PROPOSED FACILITY SUCH IS UNREASONABLY RESTRICTIVE IN VIEW OF THE EXIST-
46 ING TECHNOLOGY OR THE NEEDS OF OR COSTS TO RATEPAYERS WHETHER LOCATED
47 INSIDE OR OUTSIDE OF SUCH MUNICIPALITY. THE BOARD SHALL PROVIDE THE
48 MUNICIPALITY AN OPPORTUNITY TO PRESENT EVIDENCE IN SUPPORT OF SUCH ORDI-
49 NANCE, LAW, RESOLUTION, REGULATION OR OTHER LOCAL ACTION ISSUED THERE-
50 UNDER;
51 (F) THAT THE CONSTRUCTION AND OPERATION OF THE FACILITY IS IN THE
52 PUBLIC INTEREST, CONSIDERING THE ENVIRONMENTAL AND HEALTH IMPACTS OF THE
53 FACILITY AND REASONABLE ALTERNATIVES EXAMINED AS REQUIRED PURSUANT TO
54 PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF
55 THIS ARTICLE; AND
A. 8696--B 16
1 (G) THAT THE FACILITY BASED ON INFORMATION PRESENTED PURSUANT TO
2 SUBPARAGRAPHS (I) AND (II) OF PARAGRAPH (B) OF SUBDIVISION ONE OF
3 SECTION ONE HUNDRED SIXTY-SIX OF THIS ARTICLE, AS PROPOSED DOES NOT
4 PLACE OR INCREASE AN ADDITIONAL ENVIRONMENTAL OR HEALTH BURDEN ON A
5 COMMUNITY THAT HAS A SIGNIFICANT LEVEL OF EMISSIONS GENERATED WITHIN THE
6 COMMUNITY AS COMPARED WITH THE COUNTY AVERAGE.
7 3. A COPY OF THE BOARD'S DECISION AND OPINION SHALL BE SERVED ON EACH
8 PARTY PERSONALLY OR BY MAIL.
9 S 169. OPINION TO BE ISSUED WITH DECISION. IN RENDERING A DECISION ON
10 AN APPLICATION FOR A CERTIFICATE, THE BOARD SHALL ISSUE AN OPINION STAT-
11 ING ITS REASONS FOR THE ACTION TAKEN. IF THE BOARD HAS FOUND THAT ANY
12 LOCAL ORDINANCE, LAW, RESOLUTION, REGULATION OR OTHER ACTION ISSUED
13 THEREUNDER OR ANY OTHER LOCAL STANDARD OR REQUIREMENT WHICH WOULD BE
14 OTHERWISE APPLICABLE IS UNREASONABLY RESTRICTIVE PURSUANT TO PARAGRAPH
15 (E) OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTI-
16 CLE, IT SHALL STATE IN ITS OPINION THE REASONS THEREFOR.
17 S 170. REHEARING AND JUDICIAL REVIEW. 1. ANY PARTY AGGRIEVED BY THE
18 BOARD'S DECISION DENYING OR GRANTING A CERTIFICATE MAY APPLY TO THE
19 BOARD FOR A REHEARING WITHIN THIRTY DAYS AFTER ISSUANCE OF THE AGGRIEV-
20 ING DECISION. ANY SUCH APPLICATION SHALL BE CONSIDERED AND DECIDED BY
21 THE BOARD AND ANY REHEARING SHALL BE COMPLETED AND A DECISION RENDERED
22 THEREON WITHIN NINETY DAYS OF THE EXPIRATION OF THE PERIOD FOR FILING
23 REHEARING PETITIONS, PROVIDED HOWEVER THAT THE BOARD MAY EXTEND THE
24 DEADLINE BY NO MORE THAN NINETY DAYS WHERE A REHEARING IS REQUIRED IF
25 NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE APPLICANT MAY WAIVE SUCH
26 DEADLINE. THEREAFTER SUCH A PARTY MAY OBTAIN JUDICIAL REVIEW OF SUCH
27 DECISION AS PROVIDED IN THIS SECTION. A JUDICIAL PROCEEDING SHALL BE
28 BROUGHT IN THE APPELLATE DIVISION OF THE SUPREME COURT OF THE STATE OF
29 NEW YORK IN THE JUDICIAL DEPARTMENT EMBRACING THE COUNTY WHEREIN THE
30 FACILITY IS TO BE LOCATED OR, IF THE APPLICATION IS DENIED, THE COUNTY
31 WHEREIN THE APPLICANT HAS PROPOSED TO LOCATE THE FACILITY. SUCH PROCEED-
32 ING SHALL BE INITIATED BY THE FILING OF A PETITION IN SUCH COURT WITHIN
33 THIRTY DAYS AFTER THE ISSUANCE OF A FINAL DECISION BY THE BOARD UPON THE
34 APPLICATION FOR REHEARING TOGETHER WITH PROOF OF SERVICE OF A DEMAND ON
35 THE BOARD TO FILE WITH SAID COURT A COPY OF A WRITTEN TRANSCRIPT OF THE
36 RECORD OF THE PROCEEDING AND A COPY OF THE BOARD'S DECISION AND OPINION.
37 THE BOARD'S COPY OF SAID TRANSCRIPT, DECISION AND OPINION, SHALL BE
38 AVAILABLE AT ALL REASONABLE TIMES TO ALL PARTIES FOR EXAMINATION WITHOUT
39 COST. UPON RECEIPT OF SUCH PETITION AND DEMAND THE BOARD SHALL FORTH-
40 WITH DELIVER TO THE COURT A COPY OF THE RECORD AND A COPY OF THE BOARD'S
41 DECISION AND OPINION. THEREUPON, THE COURT SHALL HAVE JURISDICTION OF
42 THE PROCEEDING AND SHALL HAVE THE POWER TO GRANT SUCH RELIEF AS IT DEEMS
43 JUST AND PROPER, AND TO MAKE AND ENTER AN ORDER ENFORCING, MODIFYING AND
44 ENFORCING AS SO MODIFIED, REMANDING FOR FURTHER SPECIFIC EVIDENCE OR
45 FINDINGS OR SETTING ASIDE IN WHOLE OR IN PART SUCH DECISION. THE APPEAL
46 SHALL BE HEARD ON THE RECORD, WITHOUT REQUIREMENT OF REPRODUCTION, AND
47 UPON BRIEFS TO THE COURT. NO OBJECTION THAT HAS NOT BEEN URGED BY THE
48 PARTY IN HIS OR HER APPLICATION FOR REHEARING BEFORE THE BOARD SHALL BE
49 CONSIDERED BY THE COURT, UNLESS THE FAILURE OR NEGLECT TO URGE SUCH
50 OBJECTION SHALL BE EXCUSED BECAUSE OF EXTRAORDINARY CIRCUMSTANCES. THE
51 FINDINGS OF FACT ON WHICH SUCH DECISION IS BASED SHALL BE CONCLUSIVE IF
52 SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD CONSIDERED AS A WHOLE
53 AND MATTERS OF JUDICIAL NOTICE SET FORTH IN THE OPINION. THE JURISDIC-
54 TION OF THE APPELLATE DIVISION OF THE SUPREME COURT SHALL BE EXCLUSIVE
55 AND ITS JUDGMENT AND ORDER SHALL BE FINAL, SUBJECT TO REVIEW BY THE
56 COURT OF APPEALS IN THE SAME MANNER AND FORM AND WITH THE SAME EFFECT AS
A. 8696--B 17
1 PROVIDED FOR APPEALS IN A SPECIAL PROCEEDING. ALL SUCH PROCEEDINGS SHALL
2 BE HEARD AND DETERMINED BY THE APPELLATE DIVISION OF THE SUPREME COURT
3 AND BY THE COURT OF APPEALS AS EXPEDITIOUSLY AS POSSIBLE AND WITH LAWFUL
4 PRECEDENCE OVER ALL OTHER MATTERS.
5 2. THE GROUNDS FOR AND SCOPE OF REVIEW OF THE COURT SHALL BE LIMITED
6 TO WHETHER THE DECISION AND OPINION OF THE BOARD ARE:
7 (A) IN CONFORMITY WITH THE CONSTITUTION, LAWS AND REGULATIONS OF THE
8 STATE AND THE UNITED STATES;
9 (B) SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD AND MATTERS OF
10 JUDICIAL NOTICE PROPERLY CONSIDERED AND APPLIED IN THE OPINION;
11 (C) WITHIN THE BOARD'S STATUTORY JURISDICTION OR AUTHORITY;
12 (D) MADE IN ACCORDANCE WITH PROCEDURES SET FORTH IN THIS ARTICLE OR
13 ESTABLISHED BY RULE OR REGULATION PURSUANT TO THIS ARTICLE;
14 (E) ARBITRARY, CAPRICIOUS OR AN ABUSE OF DISCRETION; OR
15 (F) MADE TO ENSURE FAIR TREATMENT AND MEANINGFUL INVOLVEMENT OF ALL
16 PEOPLE REGARDLESS OF AGE, RACE, COLOR, NATIONAL ORIGIN AND INCOME.
17 3. EXCEPT AS HEREIN PROVIDED ARTICLE SEVENTY-EIGHT OF THE CIVIL PRAC-
18 TICE LAW AND RULES SHALL APPLY TO APPEALS TAKEN HEREUNDER.
19 S 171. JURISDICTION OF COURTS. EXCEPT AS EXPRESSLY SET FORTH IN
20 SECTION ONE HUNDRED SEVENTY OF THIS ARTICLE AND EXCEPT FOR REVIEW BY THE
21 COURT OF APPEALS OF A DECISION OF THE APPELLATE DIVISION OF THE SUPREME
22 COURT AS PROVIDED FOR THEREIN, NO COURT OF THIS STATE SHALL HAVE JURIS-
23 DICTION TO HEAR OR DETERMINE ANY MATTER, CASE OR CONTROVERSY CONCERNING
24 ANY MATTER WHICH WAS OR COULD HAVE BEEN DETERMINED IN A PROCEEDING UNDER
25 THIS ARTICLE OR TO STOP OR DELAY THE CONSTRUCTION OR OPERATION OF A
26 MAJOR ELECTRIC GENERATING FACILITY EXCEPT TO ENFORCE COMPLIANCE WITH
27 THIS ARTICLE OR THE TERMS AND CONDITIONS ISSUED THEREUNDER.
28 S 172. POWERS OF MUNICIPALITIES AND STATE AGENCIES. 1. NOTWITHSTAND-
29 ING ANY OTHER PROVISION OF LAW, NO STATE AGENCY, MUNICIPALITY OR ANY
30 AGENCY THEREOF MAY, EXCEPT AS EXPRESSLY AUTHORIZED UNDER THIS ARTICLE BY
31 THE BOARD, REQUIRE ANY APPROVAL, CONSENT, PERMIT, CERTIFICATE OR OTHER
32 CONDITION FOR THE CONSTRUCTION OR OPERATION OF A MAJOR ELECTRIC GENERAT-
33 ING FACILITY WITH RESPECT TO WHICH AN APPLICATION FOR A CERTIFICATE
34 HEREUNDER HAS BEEN FILED, OTHER THAN THOSE PROVIDED BY OTHERWISE APPLI-
35 CABLE STATE LAW FOR THE PROTECTION OF EMPLOYEES ENGAGED IN THE
36 CONSTRUCTION AND OPERATION OF SUCH FACILITY; PROVIDED, HOWEVER, THAT IN
37 THE CASE OF A MUNICIPALITY OR AN AGENCY THEREOF, SUCH MUNICIPALITY HAS
38 RECEIVED NOTICE OF THE FILING OF THE APPLICATION THEREFOR; AND PROVIDED
39 FURTHER, HOWEVER, THAT THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
40 SHALL BE THE PERMITTING AGENCY FOR PERMITS ISSUED PURSUANT TO FEDERALLY
41 DELEGATED OR APPROVED AUTHORITY UNDER THE FEDERAL CLEAN WATER ACT, THE
42 FEDERAL CLEAN AIR ACT AND THE FEDERAL RESOURCE CONSERVATION AND RECOVERY
43 ACT. IN ISSUING SUCH PERMITS, THE COMMISSIONER OF ENVIRONMENTAL CONSER-
44 VATION SHALL FOLLOW PROCEDURES ESTABLISHED IN THIS ARTICLE TO THE EXTENT
45 THAT THEY ARE CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED ENVIRON-
46 MENTAL PERMITTING AUTHORITY. THE COMMISSIONER OF ENVIRONMENTAL CONSERVA-
47 TION SHALL PROVIDE SUCH PERMITS TO THE BOARD PRIOR TO ITS DETERMINATION
48 WHETHER OR NOT TO ISSUE A CERTIFICATE. THE ISSUANCE BY THE DEPARTMENT
49 OF ENVIRONMENTAL CONSERVATION OF SUCH PERMITS SHALL IN NO WAY INTERFERE
50 WITH OR AFFECT THE REQUIRED REVIEW BY THE BOARD OF THE ANTICIPATED ENVI-
51 RONMENTAL AND HEALTH IMPACTS RELATING TO THE CONSTRUCTION AND OPERATION
52 OF THE FACILITY AS PROPOSED, OR ITS AUTHORITY TO DENY AN APPLICATION FOR
53 CERTIFICATION PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTI-
54 CLE, AND, IN THE EVENT OF SUCH A DENIAL, ANY SUCH PERMITS SHALL BE
55 DEEMED NULL AND VOID.
A. 8696--B 18
1 2. THE ADIRONDACK PARK AGENCY SHALL NOT HOLD PUBLIC HEARINGS FOR A
2 MAJOR ELECTRIC GENERATING FACILITY WITH RESPECT TO WHICH AN APPLICATION
3 HEREUNDER IS FILED, PROVIDED THAT SUCH AGENCY HAS RECEIVED NOTICE OF THE
4 FILING OF SUCH APPLICATION.
5 S 173. APPLICABILITY TO PUBLIC AUTHORITIES. FOR PURPOSES OF THIS ARTI-
6 CLE, THE POWER AUTHORITY OF THE STATE OF NEW YORK, THE GREEN ISLAND
7 POWER AUTHORITY AND THE LONG ISLAND POWER AUTHORITY SHALL BE REQUIRED TO
8 APPLY ALL PROVISIONS OF THIS ARTICLE FOR MAJOR ELECTRIC GENERATING
9 FACILITIES WHICH EITHER AUTHORITY BUILDS OR CAUSES TO BE BUILT. FOR
10 GENERATING FACILITIES WHICH ARE NOT MAJOR ELECTRIC GENERATING FACILI-
11 TIES, NEITHER AUTHORITY SHALL BE PERMITTED TO SERVE AS LEAD AGENCY FOR
12 PURPOSES OF ENVIRONMENTAL REVIEW PURSUANT TO THE PROVISIONS OF THE ENVI-
13 RONMENTAL CONSERVATION LAW.
14 S 2. Section 1014 of the public authorities law, as amended by chapter
15 446 of the laws of 1972, is amended to read as follows:
16 S 1014. Public service law not applicable to authority; inconsistent
17 provisions in other acts superseded. The rates, services and practices
18 relating to the generation, transmission, distribution and sale by the
19 authority, of power to be generated from the projects authorized by this
20 title shall not be subject to the provisions of the public service law
21 nor to regulation by, nor the jurisdiction of the department of public
22 service. Except to the extent article seven of the public service law
23 applies to the siting and operation of a major utility transmission
24 facility as defined therein, AND ARTICLE TEN OF THE PUBLIC SERVICE LAW
25 APPLIES TO THE SITING OF A MAJOR ELECTRIC GENERATING FACILITY AS DEFINED
26 THEREIN, and except to the extent section eighteen-a of such law
27 provides for assessment of the authority for certain costs relating
28 thereto, the provisions of the public service law and of the conserva-
29 tion law and every other law relating to the department of public
30 service or the public service commission or to the ENVIRONMENTAL conser-
31 vation department or to the functions, powers or duties assigned to the
32 division of water power and control by chapter six hundred nineteen[,]
33 of the laws of nineteen hundred twenty-six, shall so far as is necessary
34 to make this title effective in accordance with its terms and purposes
35 be deemed to be superseded, and wherever any provision of law shall be
36 found in conflict with the provisions of this title or inconsistent with
37 the purposes thereof, it shall be deemed to be superseded, modified or
38 repealed as the case may require.
39 S 3. Paragraph c of subdivision 8 of section 1020-c of the public
40 authorities law, as amended by chapter 7 of the laws of 1987, is amended
41 to read as follows:
42 c. Article seven of the public service law shall apply to the authori-
43 ty's siting and operation of a major transmission facility as therein
44 defined and article [eight] TEN of the public service law shall apply to
45 the authority's siting and operation of a major [steam] electric gener-
46 ating facility as therein defined.
47 S 4. Section 1020-s of the public authorities law, as added by chapter
48 517 of the laws of 1986, is amended to read as follows:
49 S 1020-s. Public service law generally not applicable to authority;
50 inconsistent provisions in certain other acts superseded. 1. The rates,
51 services and practices relating to the electricity generated by facili-
52 ties owned or operated by the authority shall not be subject to the
53 provisions of the public service law or to regulation by, or the juris-
54 diction of, the public service commission, except to the extent (a)
55 article seven of the public service law applies to the siting and opera-
56 tion of a major utility transmission facility as defined therein, (b)
A. 8696--B 19
1 article [eight] TEN of such law applies to the siting of a MAJOR ELEC-
2 TRIC generating facility as defined therein, and (c) section eighteen-a
3 of such law provides for assessment for certain costs, property or oper-
4 ations.
5 2. The issuance by the authority of its obligations to acquire the
6 securities or assets of LILCO shall be deemed not to be "state action"
7 within the meaning of the state environmental quality review act, and
8 such act shall not be applicable in any respect to such acquisition or
9 any action of the authority to effect such acquisition.
10 S 5. The state finance law is amended by adding a new section 97-jjjj
11 to read as follows:
12 S 97-JJJJ. INTERVENOR ACCOUNT. 1. THERE IS HEREBY ESTABLISHED IN THE
13 JOINT CUSTODY OF THE STATE COMPTROLLER AND THE COMMISSIONER OF TAXATION
14 AND FINANCE AN ACCOUNT TO BE KNOWN AS THE INTERVENOR ACCOUNT.
15 2. SUCH ACCOUNT SHALL CONSIST OF ALL REVENUES RECEIVED FROM SITING
16 APPLICATION FEES FOR ELECTRIC GENERATING FACILITIES PURSUANT TO SECTIONS
17 ONE HUNDRED SIXTY-THREE AND ONE HUNDRED SIXTY-FOUR OF THE PUBLIC SERVICE
18 LAW.
19 3. MONEYS OF THE ACCOUNT, FOLLOWING APPROPRIATION BY THE LEGISLATURE,
20 MAY BE EXPENDED IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS ONE
21 HUNDRED SIXTY-THREE AND ONE HUNDRED SIXTY-FOUR OF THE PUBLIC SERVICE
22 LAW. MONEYS SHALL BE PAID OUT OF THE ACCOUNT ON THE AUDIT AND WARRANT OF
23 THE STATE COMPTROLLER ON VOUCHERS CERTIFIED OR APPROVED BY THE CHAIR OF
24 THE PUBLIC SERVICE COMMISSION.
25 S 6. The environmental conservation law is amended by adding a new
26 section 19-0312 to read as follows:
27 S 19-0312. POWER PLANT EMISSIONS AND PERFORMANCE STANDARDS.
28 1. DEFINITIONS. AS USED IN THIS SECTION:
29 A. "MERCURY" MEANS ELEMENTAL MERCURY AND ANY COMPOUND CONTAINING
30 MERCURY.
31 B. "MAJOR ELECTRIC GENERATING FACILITY" MEANS ANY ELECTRICITY GENERAT-
32 ING FACILITY WITH A NAMEPLATE CAPACITY OF TWENTY THOUSAND KILOWATTS OR
33 MORE.
34 C. "ANNUAL MERCURY EMISSIONS RATE" MEANS THE POUNDS OF MERCURY EMITTED
35 BY MAJOR ELECTRIC GENERATING FACILITIES IN A GIVEN CALENDAR YEAR DIVIDED
36 BY THE TOTAL MEGAWATTS GENERATED IN A CALENDAR YEAR, USING METHODOLOGY
37 SET FORTH IN PARAGRAPH F OF SUBDIVISION TWO OF THIS SECTION.
38 2. A. NO LATER THAN JANUARY FIRST, TWO THOUSAND ELEVEN, THE COMMIS-
39 SIONER SHALL PROMULGATE RULES AND REGULATIONS SUCH THAT A MAJOR ELECTRIC
40 GENERATING FACILITY SHALL EMIT NO MORE THAN 1.3 POUNDS PER MEGAWATT HOUR
41 OF TOTAL NITROGEN OXIDE EMISSIONS BY MAY FIRST, TWO THOUSAND ELEVEN.
42 B. NO LATER THAN JANUARY FIRST, TWO THOUSAND ELEVEN, THE COMMISSIONER
43 SHALL PROMULGATE RULES AND REGULATIONS LIMITING THE AMOUNT OF TOTAL
44 SULFUR DIOXIDE EMITTED BY MAJOR ELECTRIC GENERATING FACILITIES.
45 C. NO LATER THAN JANUARY FIRST, TWO THOUSAND ELEVEN, THE COMMISSIONER
46 SHALL PROMULGATE RULES AND REGULATIONS IMPLEMENTING REDUCTIONS IN EMIS-
47 SIONS OF CARBON DIOXIDE IN ACCORDANCE WITH THE PROVISIONS OF THIS
48 SECTION. THE COMMISSIONER SHALL DEVELOP A MECHANISM FOR MAJOR ELECTRIC
49 GENERATING FACILITIES TO COMPLY BASED ON AN EMISSIONS PERFORMANCE STAND-
50 ARD EXPRESSED IN POUNDS OF POLLUTANT EMITTED PER MEGAWATT HOUR GENER-
51 ATED.
52 D. UPON THE EFFECTIVE DATE OF THIS SECTION, THE COMMISSIONER SHALL SET
53 A PERMANENT CAP ON THE TOTAL AMOUNT OF CARBON DIOXIDE EMITTED BY ALL
54 FOSSIL FUEL-FIRED ELECTRICITY GENERATING UNITS HAVING A RATED CAPACITY
55 EQUAL TO OR GREATER THAN TWENTY-FIVE THOUSAND KILOWATTS THAT IS EQUAL TO
56 64,310,805 SHORT TONS AND BEGINNING JANUARY FIRST, TWO THOUSAND FIFTEEN,
A. 8696--B 20
1 SUCH CAP SHALL BE REDUCED BY TWO AND ONE-HALF PERCENT OF SAID AMOUNT PER
2 YEAR FOR FOUR CONSECUTIVE YEARS.
3 E. THE COMMISSIONER MAY ESTABLISH OR EMPLOY AN EMISSIONS CREDIT TRAD-
4 ING MECHANISM TO FACILITATE COMPLIANCE WITH CARBON DIOXIDE REQUIREMENTS.
5 F. BY JANUARY FIRST, TWO THOUSAND ELEVEN, THE COMMISSIONER SHALL
6 PROMULGATE RULES AND REGULATIONS THAT PROVIDE A METHODOLOGY FOR DETER-
7 MINING THE ANNUAL MERCURY EMISSIONS RATE, MEASURED IN POUNDS PER MEGA-
8 WATT, FROM MAJOR ELECTRIC GENERATING FACILITIES IN THIS STATE.
9 G. THE COMMISSIONER SHALL PROMULGATE, NO LATER THAN JANUARY FIRST, TWO
10 THOUSAND ELEVEN, RULES AND REGULATIONS SUCH THAT A MAJOR ELECTRIC GENER-
11 ATING FACILITY SHALL EMIT NO MORE THAN 2.5 POUNDS PER MEGAWATT HOUR OF
12 TOTAL MERCURY EMISSIONS BY JANUARY FIRST, TWO THOUSAND TWELVE.
13 3. THE EMISSION RATES, LIMITATIONS, AND PRACTICES REQUIRED BY THIS
14 SECTION SHALL NOT BE CONSTRUED TO SUPERSEDE MORE STRINGENT EMISSION
15 RATES, LIMITATIONS, AND PRACTICES THAT ARE APPLICABLE ON THE EFFECTIVE
16 DATE OF THIS SECTION OR MAY BECOME APPLICABLE AFTER SUCH EFFECTIVE DATE.
17 S 7. Severability. If any clause, sentence, paragraph, section or part
18 of this act shall be adjudged by any court of competent jurisdiction to
19 be invalid, such judgment shall not affect, impair or invalidate the
20 remainder thereof, but shall be confined in its operation to the clause,
21 sentence, paragraph, section or part thereof directly involved in the
22 controversy in which such judgment shall have been rendered.
23 S 8. This act shall take effect immediately and shall expire and be
24 deemed repealed December 31, 2020; and provided that nothing in this act
25 shall be construed to limit any administrative authority, with respect
26 to matters included in this act, which existed prior to the effective
27 date of this act.
