Bill Text: NY S02084 | 2009-2010 | General Assembly | Introduced
Bill Title: Provides for siting of major electric generating facilities.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2010-06-08 - REPORTED AND COMMITTED TO FINANCE [S02084 Detail]
Download: New_York-2009-S02084-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
2084
2009-2010 Regular Sessions
I N S E N A T E
February 11, 2009
___________
Introduced by Sen. PARKER -- read twice and ordered printed, and when
printed to be committed to the Committee on Energy and Telecommuni-
cations
AN ACT to amend the public service law, the environmental conservation
law, the public authorities law and the state finance law, in relation
to siting of major electric generating facilities
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
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.
8 162-A. APPLICATIONS FOR SITING CERTAIN OTHER ELECTRIC GENERATING
9 FACILITIES.
10 163. PRE-APPLICATION PROCEDURES.
11 163-A. REPOWERING PROJECTS.
12 164. APPLICATION FOR A CERTIFICATE.
13 165. HEARING SCHEDULE.
14 166. PARTIES TO A CERTIFICATION PROCEEDING.
15 167. CONDUCT OF HEARING.
16 168. BOARD DECISIONS.
17 169. OPINION TO BE ISSUED WITH DECISION.
18 170. REHEARING AND JUDICIAL REVIEW.
19 171. JURISDICTION OF COURTS.
20 172. POWERS OF MUNICIPALITIES AND STATE AGENCIES.
21 S 160. DEFINITIONS. WHERE USED IN THIS ARTICLE, THE FOLLOWING TERMS,
22 UNLESS THE CONTEXT OTHERWISE REQUIRES, SHALL HAVE THE FOLLOWING MEAN-
23 INGS:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02432-01-9
S. 2084 2
1 1. "MUNICIPALITY" MEANS A COUNTY, CITY, TOWN OR VILLAGE LOCATED IN
2 THIS STATE.
3 2. "MAJOR ELECTRIC GENERATING FACILITY" MEANS AN ELECTRIC GENERATING
4 FACILITY THAT IS OPERATED AT A TOTAL NET GENERATING OUTPUT TO THE ELEC-
5 TRIC SYSTEM OF FIFTY THOUSAND KILOWATTS OR MORE, INCLUDING INTERCON-
6 NECTION ELECTRIC TRANSMISSION LINES AND FUEL GAS TRANSMISSION LINES THAT
7 ARE NOT SUBJECT TO REVIEW UNDER ARTICLE SEVEN OF THIS CHAPTER.
8 3. "PERSON" MEANS ANY INDIVIDUAL, CORPORATION, LIMITED LIABILITY
9 COMPANY, PUBLIC BENEFIT CORPORATION, POLITICAL SUBDIVISION, GOVERNMENTAL
10 AGENCY, MUNICIPALITY, PARTNERSHIP, COOPERATIVE ASSOCIATION, TRUST OR
11 ESTATE.
12 4. "BOARD" MEANS THE NEW YORK STATE BOARD ON ELECTRIC GENERATION
13 SITING AND THE ENVIRONMENT, WHICH SHALL BE IN THE DEPARTMENT AND CONSIST
14 OF SEVEN PERSONS: THE CHAIRMAN OF THE DEPARTMENT, WHO SHALL SERVE AS
15 CHAIRPERSON OF THE BOARD; THE COMMISSIONER OF ENVIRONMENTAL CONSERVA-
16 TION; THE COMMISSIONER OF HEALTH, THE CHAIRPERSON OF THE NEW YORK STATE
17 ENERGY RESEARCH AND DEVELOPMENT AUTHORITY; THE COMMISSIONER OF ECONOMIC
18 DEVELOPMENT AND TWO AD HOC PUBLIC MEMBERS APPOINTED BY THE GOVERNOR. ONE
19 AD HOC PUBLIC MEMBER SHALL BE A RESIDENT OF THE JUDICIAL DISTRICT IN
20 WHICH THE FACILITY AS PROPOSED IS TO BE LOCATED AND ONE AD HOC PUBLIC
21 MEMBER SHALL BE A RESIDENT OF THE COUNTY IN WHICH THE FACILITY AS
22 PROPOSED IS TO BE LOCATED. THE TERM OF THE AD HOC MEMBERS SHALL CONTINUE
23 UNTIL A FINAL DETERMINATION IS MADE IN THE PARTICULAR PROCEEDING FOR
24 WHICH THEY WERE APPOINTED. WHERE THE FACILITY OR ANY PORTION THEREOF OR
25 ANY ALTERNATIVE PROPOSED TO BE LOCATED WITHIN A CITY WITH A POPULATION
26 OF ONE MILLION OR MORE, ONE OF THE AD HOC PUBLIC MEMBERS CITED IN THIS
27 SECTION SHALL BE APPOINTED BY THE GOVERNOR AND SHALL BE A RESIDENT OF
28 THE JUDICIAL DISTRICT IN WHICH THE FACILITY IS TO BE LOCATED, AND THE
29 OTHER AD HOC PUBLIC MEMBER CITED IN THIS SECTION SHALL BE APPOINTED BY
30 THE GOVERNOR, IN CONSULTATION WITH THE BOROUGH PRESIDENT OF THE BOROUGH
31 IN WHICH THE FACILITY IS PROPOSED TO BE LOCATED AND SHALL BE A RESIDENT
32 OF THE BOROUGH IN WHICH THE FACILITY IS PROPOSED TO BE LOCATED.
33 5. "CERTIFICATE" MEANS A CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY
34 AND PUBLIC NEED AUTHORIZING THE CONSTRUCTION OF A MAJOR ELECTRIC GENER-
35 ATING FACILITY ISSUED BY THE BOARD PURSUANT TO THIS ARTICLE.
36 6. "APPROVED PROCUREMENT PROCESS" MEANS ANY ELECTRIC CAPACITY PROCURE-
37 MENT PROCESS APPROVED BY THE COMMISSION AND SUBSEQUENT TO MAY FIRST, TWO
38 THOUSAND FOUR, APPROVED BY THE COMMISSION AS REASONABLY CONSISTENT WITH
39 THE MOST RECENT STATE ENERGY PLAN ADOPTED PURSUANT TO FORMER ARTICLE SIX
40 OF THE ENERGY LAW.
41 S 161. GENERAL PROVISIONS RELATING TO THE BOARD. 1. UPON RECEIPT OF AN
42 APPLICATION UNDER THIS ARTICLE, THE CHAIRPERSON SHALL PROMPTLY NOTIFY
43 THE GOVERNOR. WITHIN THIRTY DAYS OF SUCH NOTIFICATION THE GOVERNOR SHALL
44 APPOINT THE AD HOC MEMBERS. FOUR OF THE SEVEN PERSONS ON THE BOARD SHALL
45 CONSTITUTE A QUORUM FOR THE TRANSACTION OF ANY BUSINESS OF THE BOARD,
46 AND THE DECISION OF FOUR MEMBERS OF THE BOARD SHALL CONSTITUTE ACTION OF
47 THE BOARD. THE BOARD, EXCLUSIVE OF THE AD HOC MEMBERS, SHALL HAVE THE
48 POWER TO ADOPT RULES AND REGULATIONS RELATING TO THE PROCEDURES TO BE
49 USED IN CERTIFYING FACILITIES UNDER THE PROVISIONS OF THIS ARTICLE,
50 INCLUDING THE SUSPENSION OR REVOCATION THEREOF, AND SHALL FURTHER HAVE
51 THE POWER TO SEEK DELEGATION FROM THE FEDERAL GOVERNMENT PURSUANT TO
52 FEDERAL REGULATORY PROGRAMS APPLICABLE TO THE SITING OF MAJOR ELECTRIC
53 GENERATING FACILITIES. THE CHAIRPERSON, AFTER CONSULTATION WITH THE
54 OTHER MEMBERS OF THE BOARD EXCLUSIVE OF THE AD HOC MEMBERS, SHALL HAVE
55 EXCLUSIVE JURISDICTION TO ISSUE DECLARATORY RULINGS REGARDING THE APPLI-
56 CABILITY OF, OR ANY OTHER QUESTION UNDER, THIS ARTICLE AND RULES AND
S. 2084 3
1 REGULATIONS ADOPTED HEREUNDER. REGULATIONS ADOPTED BY THE BOARD MAY
2 PROVIDE FOR RENEWAL APPLICATIONS FOR POLLUTANT CONTROL PERMITS TO BE
3 SUBMITTED TO AND ACTED UPON BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVA-
4 TION FOLLOWING COMMERCIAL OPERATION OF A CERTIFIED FACILITY.
5 2. IN ADDITION TO THE REQUIREMENTS OF THE PUBLIC OFFICERS LAW, NO
6 PERSON SHALL BE ELIGIBLE TO BE AN APPOINTEE OF THE GOVERNOR TO THE BOARD
7 WHO HOLDS ANOTHER STATE OR LOCAL OFFICE. NO MEMBER OF THE BOARD MAY
8 RETAIN OR HOLD ANY OFFICIAL RELATION TO, OR ANY SECURITIES OF AN ELEC-
9 TRIC UTILITY CORPORATION OPERATING IN THE STATE OR PROPOSED FOR OPERA-
10 TION IN THE STATE, ANY AFFILIATE THEREOF OR ANY OTHER COMPANY, FIRM,
11 PARTNERSHIP, CORPORATION, ASSOCIATION OR JOINT-STOCK ASSOCIATION THAT
12 MAY APPEAR BEFORE THE BOARD, NOR SHALL EITHER OF THE APPOINTEES HAVE
13 BEEN A DIRECTOR, OFFICER OR, WITHIN THE PREVIOUS TEN YEARS, AN EMPLOYEE
14 THEREOF. THE APPOINTEES OF THE GOVERNOR SHALL RECEIVE THE SUM OF TWO
15 HUNDRED DOLLARS FOR EACH DAY IN WHICH THEY ARE ACTUALLY ENGAGED IN THE
16 PERFORMANCE OF THEIR DUTIES PURSUANT TO THIS ARTICLE PLUS ACTUAL AND
17 NECESSARY EXPENSES INCURRED BY THEM IN THE PERFORMANCE OF SUCH DUTIES.
18 THE CHAIRPERSON SHALL PROVIDE SUCH PERSONNEL, HEARING EXAMINERS, SUBOR-
19 DINATES, EMPLOYEES AND SUCH LEGAL, TECHNOLOGICAL, SCIENTIFIC, ENGINEER-
20 ING AND OTHER SERVICES AND SUCH MEETING ROOMS, HEARING ROOMS AND OTHER
21 FACILITIES AS MAY BE REQUIRED IN PROCEEDINGS UNDER THIS ARTICLE. THE
22 BOARD MAY PROVIDE FOR ITS OWN REPRESENTATION AND APPEARANCE IN ALL
23 ACTIONS AND PROCEEDINGS INVOLVING ANY QUESTION UNDER THIS ARTICLE. THE
24 DEPARTMENT OF ENVIRONMENTAL CONSERVATION SHALL PROVIDE ASSOCIATE HEARING
25 EXAMINERS. EACH MEMBER OF THE BOARD OTHER THAN THE APPOINTEES OF THE
26 GOVERNOR MAY DESIGNATE AN ALTERNATE TO SERVE INSTEAD OF THE MEMBER WITH
27 RESPECT TO ALL PROCEEDINGS PURSUANT TO THIS ARTICLE. SUCH DESIGNATION
28 SHALL BE IN WRITING AND FILED WITH THE CHAIRPERSON.
29 S 162. BOARD CERTIFICATE. 1. NO PERSON SHALL COMMENCE THE PREPARATION
30 OF A SITE FOR, OR BEGIN THE CONSTRUCTION OF A MAJOR ELECTRIC GENERATING
31 FACILITY IN THE STATE WITHOUT HAVING FIRST OBTAINED A CERTIFICATE ISSUED
32 WITH RESPECT TO SUCH FACILITY BY THE BOARD. ANY SUCH FACILITY WITH
33 RESPECT TO WHICH A CERTIFICATE IS ISSUED SHALL NOT THEREAFTER BE BUILT,
34 MAINTAINED OR OPERATED EXCEPT IN CONFORMITY WITH SUCH CERTIFICATE AND
35 ANY TERMS, LIMITATIONS OR CONDITIONS CONTAINED THEREIN, PROVIDED THAT
36 NOTHING IN THIS ARTICLE SHALL EXEMPT SUCH FACILITY FROM COMPLIANCE WITH
37 STATE LAW AND REGULATIONS THEREUNDER SUBSEQUENTLY ADOPTED OR WITH MUNIC-
38 IPAL LAWS AND REGULATIONS THEREUNDER NOT INCONSISTENT WITH THE
39 PROVISIONS OF SUCH CERTIFICATE. A CERTIFICATE FOR A MAJOR ELECTRIC
40 GENERATING FACILITY MAY BE ISSUED ONLY PURSUANT TO THIS ARTICLE.
41 2. A CERTIFICATE MAY BE TRANSFERRED, SUBJECT TO THE APPROVAL OF THE
42 BOARD, TO A PERSON WHO AGREES TO COMPLY WITH THE TERMS, LIMITATIONS AND
43 CONDITIONS CONTAINED THEREIN.
44 3. A CERTIFICATE ISSUED PURSUANT TO THIS ARTICLE MAY BE AMENDED AS
45 PROVIDED IN THIS ARTICLE.
46 4. THIS ARTICLE SHALL NOT APPLY:
47 (A) TO A MAJOR ELECTRIC GENERATING FACILITY OVER WHICH ANY AGENCY OR
48 DEPARTMENT OF THE FEDERAL GOVERNMENT HAS EXCLUSIVE JURISDICTION, OR HAS
49 JURISDICTION CONCURRENT WITH THAT OF THE STATE AND HAS EXERCISED SUCH
50 JURISDICTION, TO THE EXCLUSION OF REGULATION OF THE FACILITY BY THE
51 STATE;
52 (B) TO NORMAL REPAIRS, REPLACEMENTS, MODIFICATIONS AND IMPROVEMENTS OF
53 A MAJOR ELECTRIC GENERATING FACILITY, WHENEVER BUILT, WHICH DO NOT
54 CONSTITUTE A VIOLATION OF ANY CERTIFICATE ISSUED UNDER THIS ARTICLE AND
55 WHICH DO NOT RESULT IN AN INCREASE IN CAPACITY OF THE FACILITY OF MORE
56 THAN FIFTY THOUSAND KILOWATTS;
S. 2084 4
1 (C) TO A MAJOR ELECTRIC GENERATING FACILITY (I) CONSTRUCTED ON LANDS
2 DEDICATED TO INDUSTRIAL USES, (II) THE OUTPUT OF WHICH SHALL BE USED
3 SOLELY FOR INDUSTRIAL PURPOSES, IN THE PREMISES, AND (III) THE GENERAT-
4 ING CAPACITY OF WHICH DOES NOT EXCEED TWO HUNDRED THOUSAND KILOWATTS; OR
5 (D) TO A MAJOR ELECTRIC GENERATING FACILITY WHICH GENERATES ELECTRIC-
6 ITY FROM THE COMBUSTION OF SOLID WASTE OR FROM FUEL DERIVED FROM SOLID
7 WASTE.
8 5. ANY PERSON INTENDING TO CONSTRUCT A MAJOR ELECTRIC GENERATING
9 FACILITY EXCLUDED FROM THIS ARTICLE PURSUANT TO PARAGRAPH (B) OR (C) OF
10 SUBDIVISION FOUR OF THIS SECTION MAY ELECT TO BECOME SUBJECT TO THE
11 PROVISIONS OF THIS ARTICLE BY DELIVERING NOTICE OF SUCH ELECTION TO THE
12 CHAIRPERSON OF THE BOARD. THIS ARTICLE SHALL THEREAFTER APPLY TO EACH
13 ELECTRIC GENERATING FACILITY IDENTIFIED IN SUCH NOTICE FROM THE DATE OF
14 ITS RECEIPT BY THE CHAIRPERSON OF THE BOARD. FOR THE PURPOSES OF THIS
15 ARTICLE, EACH SUCH FACILITY SHALL BE TREATED IN THE SAME MANNER AS A
16 MAJOR ELECTRIC GENERATING FACILITY AS DEFINED IN THIS ARTICLE.
17 S 162-A. APPLICATIONS FOR SITING CERTAIN OTHER ELECTRIC GENERATING
18 FACILITIES. APPLICATIONS FOR SITING ELECTRIC GENERATING FACILITIES THAT
19 OPERATE AT A TOTAL NET GENERATING OUTPUT TO THE ELECTRIC SYSTEM OF 49.99
20 THOUSAND KILOWATTS OR LESS, INCLUDING INTERCONNECTION ELECTRIC TRANS-
21 MISSION LINES AND FUEL GAS TRANSMISSION LINES THAT ARE NOT SUBJECT TO
22 REVIEW UNDER ARTICLE SEVEN OF THIS CHAPTER, SHALL RECEIVE A POSITIVE
23 DECLARATION FROM THE COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL
24 CONSERVATION AND SHALL BE SUBJECT TO FULL REVIEW UNDER ARTICLE EIGHT OF
25 THE ENVIRONMENTAL CONSERVATION LAW.
26 S 163. PRE-APPLICATION PROCEDURES. 1. ANY PERSON PROPOSING TO SUBMIT
27 AN APPLICATION FOR A CERTIFICATE SHALL FILE WITH THE CHAIRPERSON OF THE
28 BOARD A PRELIMINARY SCOPING STATEMENT CONTAINING A BRIEF DISCUSSION, ON
29 THE BASIS OF AVAILABLE INFORMATION, OF THE FOLLOWING ITEMS:
30 (A) DESCRIPTION OF THE PROPOSED FACILITY AND ITS ENVIRONMENTAL
31 SETTING;
32 (B) ANTICIPATED ENVIRONMENTAL AND HEALTH IMPACTS FROM THE CONSTRUCTION
33 AND/OR OPERATION OF THE PROPOSED FACILITY;
34 (C) A PROPOSED STUDY OR PROGRAM OF STUDIES DESIGNED TO EVALUATE POTEN-
35 TIAL ENVIRONMENTAL IMPACTS AND ANALYZE POTENTIAL IMPACTS OF PARTICULATE
36 MATTER OF 2.5 MICRONS OR GREATER ON THE GEOGRAPHIC AREA IN WHICH THE
37 FACILITY IS PROPOSED;
38 (D) MEASURES PROPOSED TO MINIMIZE ENVIRONMENTAL IMPACTS;
39 (E) REASONABLE ALTERNATIVES IF ANY TO THE PROPOSED FACILITY AS MAY BE
40 REQUIRED BY PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION ONE HUNDRED
41 SIXTY-FOUR OF THIS ARTICLE;
42 (F) IF THE FACILITY IS PROPOSED TO BE LOCATED IN THE COASTAL AREA, A
43 PRELIMINARY ANALYSIS OF THE CONSISTENCY OF THE PROPOSED FACILITY WITH
44 THE APPLICABLE COASTAL POLICIES OF ARTICLE FORTY-TWO OF THE EXECUTIVE
45 LAW, OR WHEN THE ACTION IS IN AN APPROVED LOCAL WATERFRONT REVITALIZA-
46 TION PROGRAM AREA, WITH THE LOCAL PROGRAM. IF THE PROPOSED FACILITY
47 COULD AFFECT ANY LAND OR WATER USE OR NATURAL RESOURCE OF THE COASTAL
48 AREA AND FEDERAL AUTHORIZATION IS NECESSARY, A PRELIMINARY ANALYSIS OF
49 THE CONSISTENCY OF THE PROPOSED FACILITY WITH THE ENFORCEABLE POLICIES
50 OF THE NEW YORK STATE COASTAL MANAGEMENT PROGRAM OR WHEN THE ACTION IS
51 IN AN APPROVED LOCAL WATERFRONT REVITALIZATION PROGRAM AREA, WITH THE
52 LOCAL PROGRAM;
53 (G) A DETERMINATION OF WHETHER THE PROPOSED FACILITY IS TO BE LOCATED
54 IN A POTENTIAL ENVIRONMENTAL JUSTICE AREA, AS DEFINED BY THE DEPARTMENT
55 OF ENVIRONMENTAL JUSTICE POLICY DIRECTIVE CP-29, ENVIRONMENTAL JUSTICE
56 AND PERMITTING; AND
S. 2084 5
1 (H) ANY OTHER INFORMATION THAT MAY BE RELEVANT OR THAT THE BOARD MAY
2 REQUIRE.
3 2. EACH PRELIMINARY SCOPING STATEMENT SHALL BE ACCOMPANIED BY A FEE OF
4 FIFTY THOUSAND DOLLARS TO BE DEPOSITED IN THE INTERVENOR ACCOUNT, ESTAB-
5 LISHED PURSUANT TO SECTION NINETY-SEVEN-TT OF THE STATE FINANCE LAW, AND
6 SHALL BE DISBURSED AT THE BOARD'S DIRECTION TO DEFRAY EXPENSES INCURRED
7 BY MUNICIPAL AND OTHER LOCAL, INTERESTED PERSONS (EXCEPT A MUNICIPALITY
8 WHICH IS THE APPLICANT) FOR CONSULTANTS' FEES TO EVALUATE THE PRELIMI-
9 NARY SCOPING STATEMENT AND ANALYZE THE METHODOLOGY AND SCOPE OF ANY
10 STUDY OR PROGRAM OF STUDIES TO BE UNDERTAKEN BY THE APPLICANT IN SUPPORT
11 OF ITS APPLICATION. SUCH FUNDS SHALL BE MADE AVAILABLE ON AN EQUITABLE
12 BASIS IN A MANNER WHICH FACILITATES BROAD PUBLIC PARTICIPATION IN THE
13 PRE-APPLICATION PROCESS. ANY UNUSED FUNDS SHALL BE MADE AVAILABLE AND
14 DISBURSED IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION SIX OF
15 SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE IF AN APPLICATION IS
16 FILED OR, IF THE PRELIMINARY SCOPING STATEMENT IS WITHDRAWN, RETURNED TO
17 THE APPLICANT. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRA-
18 RY, THE BOARD MAY PROVIDE BY RULES AND REGULATIONS FOR DISBURSEMENTS
19 FROM THE FUND FOR THE STATED PURPOSES.
20 3. SUCH PERSON SHALL SERVE COPIES OF THE PRELIMINARY SCOPING STATEMENT
21 ON PERSONS ENUMERATED IN PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION ONE
22 HUNDRED SIXTY-FOUR OF THIS ARTICLE AND PROVIDE NOTICE OF SUCH STATEMENT
23 AS PROVIDED IN PARAGRAPH (B) OF SUCH SUBDIVISION.
24 4. TO FACILITATE THE APPLICATION PROCESS AND ENABLE CITIZENS TO
25 PARTICIPATE IN DECISIONS THAT AFFECT THEIR HEALTH AND SAFETY AND THE
26 ENVIRONMENT, THE DEPARTMENT SHALL PROVIDE OPPORTUNITIES FOR CITIZEN
27 INVOLVEMENT. SUCH OPPORTUNITIES SHALL ENCOURAGE CONSULTATION WITH THE
28 PUBLIC EARLY IN THE APPLICATION PROCESS, ESPECIALLY BEFORE ANY PARTIES
29 ENTER A STIPULATION PURSUANT TO SUBDIVISION FIVE OF THIS SECTION. THE
30 PRIMARY GOALS OF THE CITIZEN PARTICIPATION PROCESS SHALL BE TO FACILI-
31 TATE COMMUNICATION BETWEEN THE APPLICANT AND INTERESTED OR AFFECTED
32 PERSONS. THE PROCESS SHALL FOSTER THE ACTIVE INVOLVEMENT OF THE INTER-
33 ESTED OR AFFECTED PERSONS.
34 5. SUCH PERSON MAY CONSULT AND SEEK AGREEMENT WITH ANY INTERESTED
35 PERSON INCLUDING, BUT NOT LIMITED TO, THE STAFF OF THE DEPARTMENT, THE
36 DEPARTMENT OF ENVIRONMENTAL CONSERVATION, THE DEPARTMENT OF STATE AND
37 THE DEPARTMENT OF HEALTH, AS APPROPRIATE, AS TO ANY ASPECT OF THE
38 PRELIMINARY SCOPING STATEMENT AND ANY STUDY OR PROGRAM OF STUDIES MADE
39 OR TO BE MADE TO SUPPORT SUCH APPLICATION. THE STAFF OF THE DEPARTMENT,
40 THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, THE DEPARTMENT OF STATE,
41 THE DEPARTMENT OF HEALTH, THE PERSON PROPOSING TO FILE AN APPLICATION,
42 AND ANY OTHER INTERESTED PERSON MAY ENTER INTO A STIPULATION SETTING
43 FORTH AN AGREEMENT ON ANY ASPECT OF THE PRELIMINARY SCOPING STATEMENT
44 AND THE STUDIES OR PROGRAM OF STUDIES TO BE CONDUCTED. ANY SUCH PERSON
45 PROPOSING TO SUBMIT AN APPLICATION FOR A CERTIFICATE SHALL SERVE A COPY
46 OF THE PROPOSED STIPULATION UPON ALL PERSONS ENUMERATED IN PARAGRAPH (A)
47 OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE,
48 PROVIDE NOTICE OF SUCH STIPULATION TO THOSE PERSONS IDENTIFIED IN PARA-
49 GRAPH (B) OF SUCH SUBDIVISION, AND AFFORD THE PUBLIC A REASONABLE OPPOR-
50 TUNITY TO SUBMIT COMMENTS ON THE STIPULATION BEFORE IT IS EXECUTED BY
51 THE INTERESTED PARTIES. NOTHING IN THIS SUBDIVISION, HOWEVER, SHALL BAR
52 ANY PARTY TO A HEARING ON AN APPLICATION, OTHER THAN ANY PARTY TO A
53 PRE-APPLICATION STIPULATION, FROM TIMELY RAISING OBJECTIONS TO ANY
54 ASPECT OF THE PRELIMINARY SCOPING STATEMENT AND THE METHODOLOGY AND
55 SCOPE OF ANY STIPULATED STUDIES OR PROGRAM OF STUDIES IN ANY SUCH AGREE-
56 MENT. IN ORDER TO ATTEMPT TO RESOLVE ANY QUESTIONS THAT MAY ARISE AS A
S. 2084 6
1 RESULT OF SUCH CONSULTATION, THE BOARD MAY DESIGNATE A HEARING EXAMINER
2 WHO SHALL MEDIATE ANY ISSUE RELATING TO ANY ASPECT OF THE PRELIMINARY
3 SCOPING STATEMENT AND THE METHODOLOGY AND SCOPE OF ANY SUCH STUDIES OR
4 PROGRAMS OF STUDY.
5 S 163-A. REPOWERING PROJECTS. 1. FOR PURPOSES OF THIS SECTION, THE
6 TERM "REPOWERING PROJECT" MEANS A MAJOR ELECTRIC GENERATING FACILITY
7 THAT PROPOSES TO ENTIRELY OR PARTIALLY REPLACE AN EXISTING MAJOR ELEC-
8 TRIC GENERATING FACILITY IN SUBSTANTIALLY THE SAME LOCATION AS THE
9 EXISTING FACILITY WHERE SUCH PROPOSED FACILITY:
10 (A) RESULTS IN A DECREASE OF NOT LESS THAN SEVENTY-FIVE PERCENT IN THE
11 RATE OF EMISSIONS OF EACH OF THE FOLLOWING ON A POUNDS PER MEGAWATT-HOUR
12 BASIS: (I) OXIDES OF NITROGEN, (II) OXIDES OF SULFUR, AND (III) PARTICU-
13 LATE MATTER. THE PERCENTAGE REDUCTION IN THE RATE OF SUCH EMISSIONS
14 SHALL BE CALCULATED BY COMPARING THE ANNUALIZED POTENTIAL TO EMIT OF THE
15 EXISTING FACILITY (EXPRESSED IN POUNDS PER MEGAWATT-HOUR) AT THE TIME
16 THE APPLICATION UNDER THIS ARTICLE IS FILED WITH THE CHAIRPERSON AND THE
17 FUTURE ANNUALIZED POTENTIAL TO EMIT OF THE MODIFIED FACILITY OR OF THE
18 COMBINATION OF THE EXISTING AND NEW FACILITY (EXPRESSED IN POUNDS PER
19 MEGAWATT-HOUR AND BASED UPON REASONABLY EXPECTED OPERATING CONDITIONS)
20 PROPOSED IN THE APPLICATION;
21 (B) EMPLOYS AIR POLLUTION CONTROL TECHNOLOGY CONSISTENT WITH THAT
22 NECESSARY TO MEET BEST AVAILABLE CONTROL TECHNOLOGY STANDARDS OR
23 ACHIEVES THE LOWEST ACHIEVABLE EMISSIONS RATE;
24 (C) WHEN A COOLING WATER INTAKE STRUCTURE IS PLANNED, INCORPORATES
25 COOLING WATER INTAKE STRUCTURE TECHNOLOGY CONSISTENT WITH THE BEST TECH-
26 NOLOGY AVAILABLE STANDARDS APPLICABLE TO NEW COOLING WATER INTAKE STRUC-
27 TURES (AS REFLECTED IN THE STATE POLLUTION DISCHARGE ELIMINATION SYSTEM
28 PERMIT ISSUED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION); AND
29 (D) REPLACES EXISTING GENERATING CAPACITY WITH GENERATING CAPACITY
30 THAT HAS A LOWER HEAT RATE.
31 2. ANY PERSON PROPOSING TO UNDERTAKE A REPOWERING PROJECT MAY ELECT TO
32 FOLLOW THE PROCEDURES SET FORTH IN THIS SECTION AS AN ALTERNATIVE TO THE
33 REQUIREMENTS SET FORTH IN SECTIONS ONE HUNDRED SIXTY-THREE AND ONE
34 HUNDRED SIXTY-FOUR OF THIS ARTICLE. SUCH PERSON SHALL FILE WITH THE
35 CHAIRPERSON OF THE BOARD AN APPLICATION, IN A FORM TO BE DETERMINED BY
36 THE BOARD THAT CONTAINS, AT A MINIMUM, THE FOLLOWING INFORMATION AND
37 MATERIALS:
38 (A) A DESCRIPTION OF THE SITE, INCLUDING ITS ENVIRONMENTAL SETTING,
39 AND A DESCRIPTION OF THE REPOWERING PROJECT, INCLUDING, BUT NOT LIMITED
40 TO, AVAILABLE SITE INFORMATION, MAPS, AND DESCRIPTIONS;
41 (B) ANALYSES THAT HAVE BEEN MADE OF (I) THE ENVIRONMENTAL IMPACTS OF
42 THE EXISTING ELECTRIC GENERATING FACILITY; (II) CONCEPTUAL ARCHITECTURAL
43 AND ENGINEERING PLANS INDICATING COMPATIBILITY OF THE FACILITY WITH THE
44 ENVIRONMENT; AND (III) THE EXPECTED ENVIRONMENTAL IMPACTS OF THE REPOW-
45 ERING PROJECT, INCLUDING, BUT NOT LIMITED TO, THE GENERATION OF SOLID
46 WASTES, AIR EMISSIONS INCLUDING PARTICULATE MATTER OF 2.5 MICRONS OR
47 GREATER, DISCHARGES INTO NAVIGABLE WATERS AND GROUNDWATER, IMPACTS UPON
48 WETLANDS, AND VISUAL IMPACTS, THE PROBABLE LEVEL OF NOISE DURING
49 CONSTRUCTION AND OPERATION OF THE REPOWERING PROJECT, AND ANY MEASURES
50 FOR CONTROL, ABATEMENT, OR MITIGATION OF SUCH IMPACTS, AND THE COMPAT-
51 IBILITY OF THE REPOWERING PROJECT WITH EXISTING FEDERAL, STATE AND
52 MUNICIPAL ENVIRONMENTAL, HEALTH AND SAFETY STANDARDS;
53 (C) SUCH EVIDENCE AS MAY ENABLE THE COMMISSIONER OF ENVIRONMENTAL
54 CONSERVATION TO EVALUATE THE REPOWERING PROJECT'S PROPOSED POLLUTION
55 CONTROL SYSTEMS AND TO REACH A DETERMINATION AS TO WHETHER OR NOT TO
56 ISSUE, SUBJECT TO APPROPRIATE CONDITIONS AND LIMITATIONS, PERMITS PURSU-
S. 2084 7
1 ANT TO FEDERAL RECOGNITION OF STATE AUTHORITY IN ACCORDANCE WITH THE
2 FEDERAL CLEAN WATER ACT, THE FEDERAL CLEAN AIR ACT AND THE FEDERAL
3 RESOURCE CONSERVATION AND RECOVERY ACT;
4 (D) A STATEMENT AS TO HOW THE CONSTRUCTION AND OPERATION OF THE REPOW-
5 ERING PROJECT, INCLUDING TRANSPORTATION AND DISPOSAL OF WASTES, COMPLY
6 WITH ENVIRONMENTAL, HEALTH AND SAFETY STANDARDS, REQUIREMENTS, REGU-
7 LATIONS, AND RULES UNDER STATE AND MUNICIPAL LAWS, AND A STATEMENT AS TO
8 WHY ANY VARIANCES OR EXCEPTIONS MAY BE GRANTED;
9 (E) A DESCRIPTION OF THE FUEL INTERCONNECTION AND SUPPLY FOR THE
10 PROJECT;
11 (F) AN ELECTRIC INTERCONNECTION STUDY, CONSISTING GENERALLY OF A
12 DESIGN STUDY AND A SYSTEM RELIABILITY IMPACT STUDY;
13 (G) A PLAN FOR SECURITY OF THE REPOWERING PROJECT DURING ITS
14 CONSTRUCTION AND OPERATION, TO BE REVIEWED BY THE BOARD IN CONSULTATION
15 WITH THE OFFICE OF PUBLIC SECURITY; AND
16 (H) SUCH OTHER INFORMATION AS THE APPLICANT MAY CONSIDER RELEVANT OR
17 AS MAY BE REQUIRED BY THE BOARD TO MAKE ITS FINDINGS PURSUANT TO SECTION
18 ONE HUNDRED SIXTY-EIGHT OF THIS ARTICLE. COPIES OF THE APPLICATION,
19 INCLUDING THE REQUIRED INFORMATION, SHALL BE AVAILABLE FOR PUBLIC
20 INSPECTION; PROVIDED, HOWEVER THAT THE SECURITY PLAN REQUIRED TO BE
21 FILED PURSUANT TO PARAGRAPH (G) OF THIS SUBDIVISION SHALL BE KEPT CONFI-
22 DENTIAL, SHALL NOT BE AVAILABLE FOR PUBLIC INSPECTION, AND PROVIDED
23 FURTHER THAT INFORMATION CONCERNING ELECTRIC AND NATURAL GAS INTERCON-
24 NECTIONS BETWEEN THE FACILITY AND THE ELECTRIC AND NATURAL GAS SYSTEMS
25 SHALL NOT BE PLACED IN PUBLIC LIBRARIES OR ON THE INTERNET, AND THAT THE
26 DEPARTMENT SHALL MAKE SUCH INFORMATION AVAILABLE FOR INSPECTION AT ITS
27 OFFICES AND SHALL MAINTAIN A LOGBOOK OF ALL THOSE WHO HAVE REQUESTED
28 ACCESS TO SUCH INFORMATION.
29 3. THE APPLICATION SHALL BE ACCOMPANIED BY:
30 (A) PROOF OF SERVICE, IN SUCH MANNER AS THE BOARD SHALL PRESCRIBE, IN
31 ACCORDANCE WITH SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-FOUR OF
32 THIS ARTICLE;
33 (B) PROOF THAT THE APPLICANT HAS CONDUCTED PUBLIC OUTREACH WITHIN THE
34 SIXTY DAYS PRECEDING THE FILING OF THE APPLICATION, FOR PURPOSES OF
35 FACILITATING COMMUNICATION BETWEEN THE APPLICANT AND INTERESTED AND
36 AFFECTED PARTIES AND ADVISING SUCH PARTIES ABOUT THE REPOWERING PROJECT;
37 AND
38 (C) A FEE IN AN AMOUNT EQUAL TO ONE THOUSAND DOLLARS FOR EACH THOUSAND
39 KILOWATTS OF GENERATING CAPACITY IN EXCESS OF THE GENERATING OUTPUT OF
40 THE EXISTING FACILITY IN THOUSANDS OF KILOWATTS MULTIPLIED BY ONE THOU-
41 SAND DOLLARS, BUT IN NO EVENT SHALL SUCH FEE EXCEED THREE HUNDRED THOU-
42 SAND DOLLARS. SUCH FEE SHALL BE DEPOSITED IN THE INTERVENOR ACCOUNT
43 ESTABLISHED PURSUANT TO SECTION NINETY-SEVEN-TT OF THE STATE FINANCE
44 LAW, TO BE DISBURSED AT THE BOARD'S DIRECTION IN ACCORDANCE WITH PARA-
45 GRAPH (A) OF SUBDIVISION SIX OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS
46 ARTICLE.
47 4. FOLLOWING THE FILING OF AN APPLICATION PURSUANT TO SUBDIVISION TWO
48 OF THIS SECTION, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION MAY INITI-
49 ATE A REVIEW PURSUANT TO FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL
50 PERMITTING AUTHORITY.
51 5. WITHIN SIXTY DAYS OF RECEIPT OF AN APPLICATION FILED PURSUANT TO
52 SUBDIVISION TWO OF THIS SECTION, THE CHAIRPERSON OF THE BOARD SHALL
53 DETERMINE WHETHER OR NOT THE APPLICATION IS FOR A REPOWERING PROJECT, AS
54 DEFINED IN SUBDIVISION ONE OF THIS SECTION, AND WHETHER OR NOT THE
55 APPLICATION COMPLIES WITH SUBDIVISION TWO OF THIS SECTION AND ANY REGU-
56 LATIONS PROMULGATED PURSUANT THERETO, AND SHALL, AFTER CONSULTATION WITH
S. 2084 8
1 THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION, RENDER A PRELIMINARY
2 DETERMINATION AS TO WHETHER OR NOT THE REPOWERING PROJECT MAY HAVE A
3 SIGNIFICANT ADVERSE ENVIRONMENTAL IMPACT. IN THE EVENT THAT THE CHAIR-
4 PERSON OF THE BOARD DETERMINES EITHER THAT THE APPLICATION IS NOT FOR A
5 REPOWERING PROJECT OR THAT THE REPOWERING PROJECT MAY HAVE A SIGNIFICANT
6 ADVERSE ENVIRONMENTAL IMPACT, THE APPLICATION SHALL BE DEEMED TO SATISFY
7 THE REQUIREMENTS OF SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-THREE
8 OF THIS ARTICLE AND THE APPLICATION SHALL NO LONGER BE SUBJECT TO, OR
9 ELIGIBLE FOR, THE PROCEDURES SET FORTH IN THIS SECTION. THE CHAIRPERSON
10 OF THE BOARD MAY REQUIRE THE FILING OF ANY ADDITIONAL INFORMATION NEEDED
11 TO SUPPLEMENT AN APPLICATION. IN THE EVENT OF A DETERMINATION THAT A
12 REPOWERING PROJECT IS NOT LIKELY TO HAVE A SIGNIFICANT ADVERSE ENVIRON-
13 MENTAL IMPACT, A PRELIMINARY DETERMINATION OF NON-SIGNIFICANCE SHALL BE
14 ISSUED. NOTICE OF ISSUANCE SHALL BE GIVEN TO PARTIES TO THE CERTIF-
15 ICATION PROCEEDING PURSUANT TO SUBDIVISION ONE OF SECTION ONE HUNDRED
16 SIXTY-SIX OF THIS ARTICLE AND SHALL ADDITIONALLY BE PUBLISHED ON THE WEB
17 SITE OF THE DEPARTMENT.
18 6. SIMULTANEOUSLY WITH THE ISSUANCE OF A PRELIMINARY DETERMINATION OF
19 SIGNIFICANCE, THE SECRETARY OF THE BOARD SHALL PROVIDE NOTICE OF A
20 PUBLIC HEARING TO ADDRESS DISBURSEMENT OF THE FEE PROVIDED FOR BY SUBDI-
21 VISION THREE OF THIS SECTION, WHICH HEARING SHALL BE HELD BY THE PRESID-
22 ING AND ASSOCIATE EXAMINERS, AND IN NO EVENT LATER THAN TWENTY-ONE DAYS
23 FOLLOWING ISSUANCE OF THE PRELIMINARY DETERMINATION OF NON-SIGNIFICANCE.
24 7. INTERESTED PARTIES SHALL HAVE NOT MORE THAN SIXTY DAYS FROM THE
25 DATE THE PRELIMINARY DETERMINATION OF SIGNIFICANCE IS ISSUED TO FILE
26 WRITTEN COMMENTS WITH REGARD TO SUCH PRELIMINARY DETERMINATION. THE
27 PUBLIC COMMENT PERIOD SHALL INCLUDE A PUBLIC STATEMENT HEARING AT WHICH
28 THE PRESIDING EXAMINER AND ASSOCIATE EXAMINER SHALL JOINTLY PRESIDE.
29 UPON THE CLOSE OF THE PUBLIC COMMENT PERIOD, IN THE EVENT THAT THE
30 PRESIDING EXAMINER DETERMINES THAT THERE IS AN ISSUE OF FACT WITH
31 RESPECT TO THE APPLICABILITY OF ANY LOCAL ORDINANCE, LAW, RESOLUTION,
32 STANDARD, OR OTHER ACTION, OR ANY REGULATION ISSUED THEREUNDER, OR ANY
33 LOCAL STANDARD OR REQUIREMENT THAT WOULD OTHERWISE BE APPLICABLE TO THE
34 REPOWERING PROJECT, THE PRESIDING EXAMINER SHALL SCHEDULE AN EVIDENTIARY
35 HEARING ON SUCH ISSUE OF FACT.
36 8. WITHIN THIRTY DAYS OF THE CLOSE OF THE PUBLIC COMMENT PERIOD, OR
37 WITHIN TWENTY-ONE DAYS AFTER THE TERMINATION OF A PUBLIC HEARING
38 RESPECTING THE APPLICABILITY OF LOCAL LAWS HELD IN ACCORDANCE WITH
39 SUBDIVISION SEVEN OF THIS SECTION, WHICHEVER IS LATER, THE CHAIRPERSON
40 OF THE BOARD, AFTER CONSULTATION WITH THE COMMISSIONER OF ENVIRONMENTAL
41 CONSERVATION SHALL RENDER A FINAL DETERMINATION AS TO WHETHER OR NOT THE
42 REPOWERING PROJECT MAY HAVE A SIGNIFICANT ADVERSE ENVIRONMENTAL IMPACT.
43 UPON A DETERMINATION THAT THE REPOWERING PROJECT IS NOT LIKELY TO HAVE A
44 SIGNIFICANT ADVERSE ENVIRONMENTAL IMPACT, THE CHAIRPERSON SHALL ISSUE A
45 FINAL DETERMINATION OF NON-SIGNIFICANT ENVIRONMENTAL IMPACT. IN THE
46 EVENT THAT THE CHAIRPERSON, AFTER CONSULTATION WITH THE COMMISSIONER OF
47 ENVIRONMENTAL CONSERVATION, DETERMINES THAT THE REPOWERING PROJECT MAY
48 HAVE A SIGNIFICANT ENVIRONMENTAL IMPACT, THE APPLICATION SHALL BE DEEMED
49 TO SATISFY THE REQUIREMENTS OF SUBDIVISION ONE OF SECTION ONE HUNDRED
50 SIXTY-THREE OF THIS ARTICLE, BUT SHALL NO LONGER BE SUBJECT TO, OR
51 ELIGIBLE FOR, THE PROCEDURES SET FORTH IN THIS SECTION.
52 9. IN THE EVENT THAT THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
53 ISSUES PERMITS PURSUANT TO FEDERALLY DELEGATED OR APPROVED PERMITTING
54 AUTHORITY UNDER THE FEDERAL CLEAN WATER ACT, THE FEDERAL CLEAN AIR ACT
55 AND THE FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT, THE COMMISSIONER
56 OF ENVIRONMENTAL CONSERVATION SHALL PROVIDE SUCH PERMITS TO THE CHAIR-
S. 2084 9
1 PERSON OF THE BOARD PRIOR TO THE DETERMINATION OF NON-SIGNIFICANCE. THE
2 CHAIRPERSON OF THE BOARD SHALL SUBMIT THE FINAL DETERMINATION OF
3 NON-SIGNIFICANCE TO THE BOARD, WHICH SHALL ISSUE A DECISION WITH RESPECT
4 TO THE APPLICATION WITHIN TWENTY-ONE DAYS AFTER SUCH SUBMISSION IN
5 ACCORDANCE WITH SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTICLE.
6 S 164. APPLICATION FOR A CERTIFICATE. 1. AN APPLICANT FOR A CERTIF-
7 ICATE SHALL FILE WITH THE CHAIRPERSON OF THE BOARD AN APPLICATION, IN
8 SUCH FORM AS THE BOARD MAY PRESCRIBE CONTAINING THE FOLLOWING INFORMA-
9 TION AND MATERIALS:
10 (A) A DESCRIPTION OF THE SITE AND A DESCRIPTION OF THE FACILITY TO BE
11 BUILT THEREON; INCLUDING AVAILABLE SITE INFORMATION, MAPS AND
12 DESCRIPTIONS, PRESENT AND PROPOSED DEVELOPMENT, SOURCE AND VOLUME OF
13 WATER REQUIRED FOR PLANT OPERATION AND COOLING, AND AS APPROPRIATE,
14 GEOLOGICAL, AESTHETIC, ECOLOGICAL, TSUNAMI, SEISMIC, BIOLOGICAL, WATER
15 SUPPLY, POPULATION AND LOAD CENTER DATA;
16 (B) A DESCRIPTION AND EVALUATION OF REASONABLE ALTERNATIVE LOCATIONS
17 TO THE PROPOSED FACILITY, IF ANY, AND WITH RESPECT TO A FACILITY THAT
18 HAS NOT BEEN SELECTED PURSUANT TO AN APPROVED PROCUREMENT PROCESS, A
19 DESCRIPTION AND EVALUATION OF REASONABLE DEMAND ENERGY SUPPLY SOURCE
20 ALTERNATIVES AND, WHERE APPROPRIATE, DEMAND-REDUCING MEASURES TO THE
21 PROPOSED FACILITY; A DESCRIPTION OF THE COMPARATIVE ADVANTAGES AND
22 DISADVANTAGES AS APPROPRIATE; AND A STATEMENT OF THE REASONS WHY THE
23 PRIMARY PROPOSED LOCATION AND SOURCE, AS APPROPRIATE, IS BEST SUITED,
24 AMONG THE ALTERNATIVES CONSIDERED, TO PROMOTE PUBLIC HEALTH AND WELFARE,
25 INCLUDING THE RECREATIONAL AND OTHER CONCURRENT USES WHICH THE SITE MAY
26 SERVE, PROVIDED THAT THE INFORMATION REQUIRED PURSUANT TO THIS PARAGRAPH
27 SHALL BE NO MORE EXTENSIVE THAN REQUIRED UNDER ARTICLE EIGHT OF THE
28 ENVIRONMENTAL CONSERVATION LAW;
29 (C) STUDIES, IDENTIFYING THE AUTHOR AND DATE THEREOF, WHICH HAVE BEEN
30 MADE OF THE EXPECTED ENVIRONMENTAL IMPACT AND SAFETY OF THE FACILITY,
31 BOTH DURING ITS CONSTRUCTION AND ITS OPERATION, WHICH STUDIES ARE SUFFI-
32 CIENT TO IDENTIFY (I) THE ANTICIPATED GASEOUS, LIQUID AND SOLID WASTES
33 TO BE PRODUCED AT THE FACILITY INCLUDING THEIR SOURCE, ANTICIPATED
34 VOLUMES, COMPOSITION AND TEMPERATURE, AND SUCH OTHER ATTRIBUTES AS THE
35 BOARD MAY SPECIFY AND THE PROBABLE LEVEL OF NOISE DURING CONSTRUCTION
36 AND OPERATION OF THE FACILITY; (II) THE TREATMENT PROCESSES TO REDUCE
37 WASTES TO BE RELEASED TO THE ENVIRONMENT, THE MANNER OF DISPOSAL FOR
38 WASTES RETAINED AND MEASURES FOR NOISE ABATEMENT; (III) THE ANTICIPATED
39 VOLUMES OF WASTES TO BE RELEASED TO THE ENVIRONMENT UNDER ANY OPERATING
40 CONDITION OF THE FACILITY, INCLUDING SUCH METEOROLOGICAL, HYDROLOGICAL
41 AND OTHER INFORMATION NEEDED TO SUPPORT SUCH ESTIMATES; (IV) CONCEPTUAL
42 ARCHITECTURAL AND ENGINEERING PLANS INDICATING COMPATIBILITY OF THE
43 FACILITY WITH THE ENVIRONMENT; (V) HOW THE CONSTRUCTION AND OPERATION OF
44 THE FACILITY, INCLUDING TRANSPORTATION AND DISPOSAL OF WASTES WOULD
45 COMPLY WITH ENVIRONMENTAL HEALTH AND SAFETY STANDARDS, REQUIREMENTS,
46 REGULATIONS AND RULES UNDER STATE AND MUNICIPAL LAWS, AND A STATEMENT
47 WHY ANY VARIANCES OR EXCEPTIONS SHOULD BE GRANTED; (VI) WATER WITH-
48 DRAWALS AND DISCHARGES; (VII) A DESCRIPTION OF THE FUEL INTERCONNECTION
49 AND SUPPLY FOR THE PROJECT; (VIII) AN ELECTRIC INTERCONNECTION STUDY,
50 CONSISTING GENERALLY OF A DESIGN STUDY AND A SYSTEM RELIABILITY IMPACT
51 STUDY; (IX) THE EXPECTED EMISSIONS FROM THE PROPOSED FACILITY OF PARTI-
52 CULATE MATTER OF 2.5 MICRONS OR GREATER; (X) THE CUMULATIVE AIR AND
53 ENVIRONMENTAL IMPACTS OF THE PROPOSED FACILITY IN AGGREGATE WITH EXIST-
54 ING EMISSION SOURCES ON THE GEOGRAPHIC AREA IN WHICH THE FACILITY IS
55 PROPOSED; AND (XI) IF THE FACILITY IS PROPOSED FOR A POTENTIAL ENVIRON-
56 MENTAL JUSTICE AREA, AS DEFINED IN THE DEPARTMENT OF ENVIRONMENTAL
S. 2084 10
1 CONSERVATION POLICY DIRECTIVE CP-29, ENVIRONMENTAL JUSTICE AND PERMIT-
2 TING, EXISTING EMISSION SOURCES THEREIN.
3 (D) EXCEPT WITH RESPECT TO A FACILITY THAT HAS BEEN SELECTED PURSUANT
4 TO AN APPROVED PROCUREMENT PROCESS, ESTIMATED COST INFORMATION, INCLUD-
5 ING PLANT COSTS BY ACCOUNT, ALL EXPENSES BY CATEGORIES INCLUDING FUEL
6 COSTS, PLANT SERVICE LIFE AND CAPACITY FACTOR AND TOTAL GENERATING COST
7 PER KILOWATT-HOUR, INCLUDING BOTH PLANT AND RELATED TRANSMISSION, AND
8 COMPARATIVE COSTS OF ALTERNATIVES CONSIDERED;
9 (E) A STATEMENT (I) DEMONSTRATING THAT THE FACILITY WILL SATISFY ADDI-
10 TIONAL ELECTRIC CAPACITY OR OTHER ELECTRIC SYSTEM NEEDS, AND THAT THE
11 CONSTRUCTION OF THE FACILITY IS REASONABLY CONSISTENT WITH LONG-RANGE
12 ENERGY PLANNING OBJECTIVES AND STRATEGIES, PROVIDED HOWEVER, THAT SUBSE-
13 QUENT TO THE ADOPTION OF A STATE ENERGY PLAN PURSUANT TO FORMER ARTICLE
14 SIX OF THE ENERGY LAW, AN APPLICANT SHALL DEMONSTRATE THAT THE
15 CONSTRUCTION OF THE FACILITY IS REASONABLY CONSISTENT WITH THE ENERGY
16 POLICIES AND LONG-RANGE ENERGY PLANNING OBJECTIVES AND STRATEGIES
17 CONTAINED IN THE MOST RECENT STATE ENERGY PLAN; OR (II) THAT THE FACILI-
18 TY WAS SELECTED PURSUANT TO AN APPROVED PROCUREMENT PROCESS;
19 (F) SUCH EVIDENCE AS WILL ENABLE THE BOARD OR COMMISSIONER OF ENVIRON-
20 MENTAL CONSERVATION TO EVALUATE THE FACILITY'S POLLUTION CONTROL SYSTEMS
21 AND TO REACH A DETERMINATION TO ISSUE THEREFOR, SUBJECT TO APPROPRIATE
22 CONDITIONS AND LIMITATIONS, PERMITS PURSUANT TO FEDERAL RECOGNITION OF
23 STATE AUTHORITY IN ACCORDANCE WITH THE FEDERAL CLEAN WATER ACT, THE
24 FEDERAL CLEAN AIR ACT AND THE FEDERAL RESOURCE CONSERVATION AND RECOVERY
25 ACT;
26 (G) ANY OTHER INFORMATION THAT THE BOARD DEEMS RELEVANT OR MAY
27 REQUIRE;
28 (H) A PLAN FOR SECURITY OF THE PROPOSED FACILITY DURING CONSTRUCTION
29 AND OPERATION OF SUCH FACILITY, TO BE REVIEWED BY THE BOARD, IN CONSUL-
30 TATION WITH THE NEW YORK STATE OFFICE OF PUBLIC SECURITY; AND
31 (I) SUCH OTHER INFORMATION AS THE APPLICANT MAY CONSIDER RELEVANT OR
32 AS MAY BE REQUIRED BY THE BOARD. COPIES OF THE APPLICATION, INCLUDING
33 THE REQUIRED INFORMATION, SHALL BE FILED WITH THE BOARD AND SHALL BE
34 AVAILABLE FOR PUBLIC INSPECTION; PROVIDED, HOWEVER, THAT THE SECURITY
35 PLAN REQUIRED TO BE FILED PURSUANT TO PARAGRAPH (H) OF THIS SUBDIVISION
36 SHALL BE KEPT CONFIDENTIAL AND SHALL NOT BE AVAILABLE FOR PUBLIC
37 INSPECTION, AND PROVIDED FURTHER THAT INFORMATION CONCERNING ELECTRIC
38 AND NATURAL GAS INTERCONNECTIONS BETWEEN THE FACILITY AND THE ELECTRIC
39 AND NATURAL GAS SYSTEMS SHALL NOT BE PLACED IN PUBLIC LIBRARIES OR ON
40 THE INTERNET, AND THAT THE DEPARTMENT SHALL MAKE SUCH INFORMATION AVAIL-
41 ABLE FOR INSPECTION AT ITS OFFICES AND SHALL MAINTAIN A LOG BOOK OF ALL
42 THOSE WHO HAVE REQUESTED ACCESS TO SUCH INFORMATION.
43 2. EACH APPLICATION SHALL BE ACCOMPANIED BY PROOF OF SERVICE, IN SUCH
44 MANNER AS THE BOARD SHALL PRESCRIBE, OF:
45 (A) A COPY OF SUCH APPLICATION ON (I) EACH MUNICIPALITY IN WHICH ANY
46 PORTION OF SUCH FACILITY IS TO BE LOCATED AS PROPOSED OR IN ANY ALTERNA-
47 TIVE LOCATION LISTED. SUCH COPY TO A MUNICIPALITY SHALL BE ADDRESSED TO
48 THE CHIEF EXECUTIVE OFFICER THEREOF AND SHALL SPECIFY THE DATE ON OR
49 ABOUT WHICH THE APPLICATION IS TO BE FILED;
50 (II) EACH MEMBER OF THE BOARD;
51 (III) THE DEPARTMENT OF AGRICULTURE AND MARKETS;
52 (IV) THE SECRETARY OF STATE;
53 (V) THE ATTORNEY GENERAL;
54 (VI) THE DEPARTMENT OF TRANSPORTATION;
S. 2084 11
1 (VII) A LIBRARY SERVING THE DISTRICT OF EACH MEMBER OF THE STATE
2 LEGISLATURE IN WHOSE DISTRICT ANY PORTION OF THE FACILITY IS TO BE
3 LOCATED AS PROPOSED OR IN ANY ALTERNATIVE LOCATION LISTED;
4 (VIII) IN THE EVENT THAT SUCH FACILITY OR ANY PORTION THEREOF AS
5 PROPOSED OR IN ANY ALTERNATE LOCATION LISTED IS LOCATED WITHIN THE
6 ADIRONDACK PARK, AS DESCRIBED IN SUBDIVISION ONE OF SECTION 9-0101 OF
7 THE ENVIRONMENTAL CONSERVATION LAW, THE ADIRONDACK PARK AGENCY; AND
8 (B) A NOTICE OF SUCH APPLICATION ON (I) PERSONS RESIDING IN MUNICI-
9 PALITIES ENTITLED TO RECEIVE A COPY OF THE APPLICATION UNDER SUBPARA-
10 GRAPH (I) OF PARAGRAPH (A) OF THIS SUBDIVISION. SUCH NOTICE SHALL BE
11 GIVEN BY THE PUBLICATION OF A SUMMARY OF THE APPLICATION AND THE DATE ON
12 OR ABOUT WHICH IT WILL BE FILED, TO BE PUBLISHED UNDER REGULATIONS TO BE
13 PROMULGATED BY THE BOARD, IN SUCH FORM AND IN SUCH NEWSPAPER OR NEWSPA-
14 PERS AS WILL SERVE SUBSTANTIALLY TO INFORM THE PUBLIC OF SUCH APPLICA-
15 TION;
16 (II) EACH MEMBER OF THE STATE LEGISLATURE IN WHOSE DISTRICT ANY
17 PORTION OF THE FACILITY IS TO BE LOCATED AS PROPOSED OR IN ANY ALTERNA-
18 TIVE LOCATION LISTED; AND
19 (III) PERSONS WHO HAVE FILED A STATEMENT WITH THE BOARD WITHIN THE
20 PAST TWELVE MONTHS THAT THEY WISH TO RECEIVE ALL SUCH NOTICES CONCERNING
21 FACILITIES IN THE AREA IN WHICH THE FACILITY IS TO BE LOCATED AS
22 PROPOSED OR IN ANY ALTERNATIVE LOCATION LISTED.
23 3. INADVERTENT FAILURE OF SERVICE ON ANY OF THE MUNICIPALITIES,
24 PERSONS, AGENCIES, BODIES OR COMMISSIONS NAMED IN SUBDIVISION TWO OF
25 THIS SECTION SHALL NOT BE JURISDICTIONAL AND MAY BE CURED PURSUANT TO
26 REGULATIONS OF THE BOARD DESIGNED TO AFFORD SUCH PERSONS ADEQUATE NOTICE
27 TO ENABLE THEM TO PARTICIPATE EFFECTIVELY IN THE PROCEEDING. IN ADDI-
28 TION, THE BOARD MAY, AFTER FILING, REQUIRE THE APPLICANT TO SERVE NOTICE
29 OF THE APPLICATION OR COPIES THEREOF OR BOTH UPON SUCH OTHER PERSONS AND
30 FILE PROOF THEREOF AS THE BOARD MAY DEEM APPROPRIATE.
31 4. THE BOARD SHALL PRESCRIBE THE FORM AND CONTENT OF AN APPLICATION
32 FOR AN AMENDMENT OF A CERTIFICATE TO BE ISSUED HEREUNDER. NOTICE OF SUCH
33 AN APPLICATION SHALL BE GIVEN AS SET FORTH IN SUBDIVISION TWO OF THIS
34 SECTION.
35 5. IF A REASONABLE ALTERNATIVE LOCATION OR, WITH RESPECT TO A FACILITY
36 THAT HAS NOT BEEN SELECTED PURSUANT TO AN APPROVED PROCUREMENT PROCESS,
37 A REASONABLE ALTERNATIVE ENERGY SUPPLY SOURCE OR DEMAND REDUCING MEASURE
38 NOT LISTED IN THE APPLICATION IS PROPOSED IN THE CERTIFICATION PROCEED-
39 ING, NOTICE OF SUCH PROPOSED ALTERNATIVE SHALL BE GIVEN AS SET FORTH IN
40 SUBDIVISION TWO OF THIS SECTION.
41 6. (A) EACH APPLICATION SHALL BE ACCOMPANIED BY A FEE IN AN AMOUNT
42 EQUAL TO ONE THOUSAND DOLLARS FOR EACH THOUSAND KILOWATTS OF GENERATING
43 CAPACITY OF THE SUBJECT FACILITY, BUT NO MORE THAN THREE HUNDRED THOU-
44 SAND DOLLARS WITH SUCH AMOUNT TO INCLUDE THE PRE-APPLICATION FEE
45 PROVIDED FOR IN SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-THREE OF
46 THIS ARTICLE, TO BE DEPOSITED IN THE INTERVENOR ACCOUNT, ESTABLISHED
47 PURSUANT TO SECTION NINETY-SEVEN-TT OF THE STATE FINANCE LAW, TO BE
48 DISBURSED AT THE BOARD'S DIRECTION, TO DEFRAY EXPENSES INCURRED BY
49 MUNICIPAL AND OTHER LOCAL PARTIES TO THE PROCEEDING (EXCEPT A MUNICI-
50 PALITY WHICH IS THE APPLICANT) FOR EXPERT WITNESS, LEGAL AND CONSULTANT
51 FEES. IF AT ANY TIME SUBSEQUENT TO THE FILING OF THE APPLICATION, THE
52 APPLICATION IS AMENDED IN A MANNER THAT WARRANTS SUBSTANTIAL ADDITIONAL
53 SCRUTINY, THE BOARD MAY REQUIRE AN ADDITIONAL INTERVENOR FEE IN AN
54 AMOUNT NOT TO EXCEED ONE HUNDRED THOUSAND DOLLARS. THE BOARD SHALL
55 PROVIDE FOR TRANSCRIPTS, THE REPRODUCTION AND SERVICE OF DOCUMENTS, AND
56 THE PUBLICATION OF REQUIRED NOTICES, FOR MUNICIPAL PARTIES. ANY MONEYS
S. 2084 12
1 REMAINING IN THE INTERVENOR FUND, AFTER THE BOARD HAS ISSUED ITS DECI-
2 SION ON AN APPLICATION UNDER THIS ARTICLE AND THE TIME FOR APPLYING FOR
3 A REHEARING AND JUDICIAL REVIEW HAS EXPIRED, SHALL BE RETURNED TO THE
4 APPLICANT.
5 (B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE
6 BOARD SHALL PROVIDE BY RULES AND REGULATIONS FOR THE MANAGEMENT OF THE
7 INTERVENOR FUND AND FOR DISBURSEMENTS FROM THE FUND, WHICH RULES AND
8 REGULATIONS SHALL BE CONSISTENT WITH THE PURPOSE OF THIS SECTION TO MAKE
9 AVAILABLE TO MUNICIPAL PARTIES AT LEAST ONE-HALF OF THE AMOUNT OF THIS
10 INTERVENOR FUND AND FOR USES SPECIFIED IN PARAGRAPH (A) OF THIS SUBDIVI-
11 SION. IN ADDITION, THE BOARD SHALL PROVIDE OTHER LOCAL PARTIES UP TO
12 ONE-HALF OF THE AMOUNT OF THE INTERVENOR FUND; PROVIDED, HOWEVER, THAT
13 THE BOARD SHALL ASSURE THAT THE PURPOSES FOR WHICH MONEYS IN THE
14 INTERVENOR FUND WILL BE EXPENDED WILL CONTRIBUTE TO AN INFORMED DECISION
15 AS TO THE APPROPRIATENESS OF THE SITE AND FACILITY AND ARE MADE AVAIL-
16 ABLE ON AN EQUITABLE BASIS IN A MANNER WHICH FACILITATES BROAD PUBLIC
17 PARTICIPATION.
18 7. AFTER PUBLIC NOTICE AND AN OPPORTUNITY TO COMMENT, THE BOARD SHALL
19 PROMULGATE SUCH REGULATIONS AS MAY BE NECESSARY TO IMPLEMENT, WITH
20 RESPECT TO MAJOR ELECTRIC GENERATING FACILITIES, PERMIT PROGRAMS ESTAB-
21 LISHED PURSUANT TO REQUIREMENTS OF THE FEDERAL CLEAN WATER ACT, THE
22 FEDERAL CLEAN AIR ACT AND THE FEDERAL RESOURCE CONSERVATION AND RECOVERY
23 ACT. SUCH REGULATIONS SHALL BE CONSISTENT WITH ANY STATE PROGRAM
24 REQUIREMENTS ESTABLISHED BY THE UNITED STATES ENVIRONMENTAL PROTECTION
25 AGENCY FOR STATE PARTICIPATION IN SUCH POLLUTANT CONTROL PERMIT PROGRAMS
26 AND SHALL INCLUDE PROCEDURES FOR EARLY CONSIDERATION AND SUCH PROMPT
27 DETERMINATION AS IS FEASIBLE OF ISSUES ARISING UNDER SUCH PERMIT
28 PROGRAMS.
29 S 165. HEARING SCHEDULE. 1. AFTER THE RECEIPT OF AN APPLICATION FILED
30 PURSUANT TO SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, THE CHAIR-
31 PERSON OF THE BOARD SHALL, WITHIN SIXTY DAYS OF SUCH RECEIPT, DETERMINE
32 WHETHER THE APPLICATION COMPLIES WITH SUCH SECTION AND UPON FINDING THAT
33 THE APPLICATION SO COMPLIES, FIX A DATE FOR THE COMMENCEMENT OF A PUBLIC
34 HEARING. UPON A DETERMINATION THAT AN APPLICATION COMPLIES WITH SECTION
35 ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE THE DEPARTMENT OF ENVIRONMENTAL
36 CONSERVATION MAY INITIATE A REVIEW PURSUANT TO FEDERALLY DELEGATED OR
37 APPROVED ENVIRONMENTAL PERMITTING AUTHORITY. THE APPLICANT SHALL SUBMIT
38 TO THE DEPARTMENT OF STATE COPIES OF THE APPLICATION, CONSISTENCY
39 CERTIFICATION AND NECESSARY DATA AND INFORMATION SUFFICIENT TO INITIATE
40 A REVIEW PURSUANT TO THE FEDERAL COASTAL ZONE MANAGEMENT ACT AND ITS
41 REGULATIONS. THE CHAIRPERSON OF THE BOARD MAY REQUIRE THE FILING OF ANY
42 ADDITIONAL INFORMATION NEEDED TO SUPPLEMENT AN APPLICATION BEFORE OR
43 DURING THE HEARINGS.
44 2. WITHIN A REASONABLE TIME AFTER THE DATE HAS BEEN FIXED BY THE
45 CHAIRPERSON FOR COMMENCEMENT OF A PUBLIC HEARING, THE PRESIDING EXAMINER
46 SHALL HOLD A PRE-HEARING CONFERENCE TO EXPEDITE THE ORDERLY CONDUCT AND
47 DISPOSITION OF THE HEARING, TO SPECIFY THE ISSUES, TO OBTAIN STIPU-
48 LATIONS AS TO MATTERS NOT DISPUTED, AND TO DEAL WITH SUCH OTHER MATTERS
49 AS THE PRESIDING EXAMINER MAY DEEM PROPER. THEREAFTER, THE PRESIDING
50 EXAMINER SHALL ISSUE AN ORDER IDENTIFYING THE ISSUES TO BE ADDRESSED BY
51 THE PARTIES, PROVIDED, HOWEVER, THAT NO SUCH ORDER SHALL PRECLUDE
52 CONSIDERATION OF ISSUES WHICH WARRANT CONSIDERATION IN ORDER TO DEVELOP
53 AN ADEQUATE RECORD AS DETERMINED BY AN ORDER OF THE BOARD.
54 3. ALL PARTIES SHALL BE PREPARED TO PROCEED IN AN EXPEDITIOUS MANNER
55 AT THE HEARING SO THAT IT MAY PROCEED REGULARLY UNTIL COMPLETION. THE
56 PLACE OF THE HEARING SHALL BE DESIGNATED BY THE PRESIDING EXAMINER.
S. 2084 13
1 HEARINGS SHALL BE HELD OF SUFFICIENT DURATION TO PROVIDE ADEQUATE OPPOR-
2 TUNITY TO HEAR DIRECT EVIDENCE AND REBUTTAL EVIDENCE FROM RESIDENTS OF
3 THE AREA AFFECTED BY THE MAJOR ELECTRIC GENERATING FACILITY.
4 4. (A) EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SUBDIVISION,
5 PROCEEDINGS ON AN APPLICATION SHALL BE COMPLETED IN ALL RESPECT IN A
6 MANNER CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL
7 PERMITTING AUTHORITY, INCLUDING A FINAL DECISION BY THE BOARD, WITHIN
8 TWELVE MONTHS FROM THE DATE OF A DETERMINATION BY THE CHAIRPERSON THAT
9 AN APPLICATION COMPLIES WITH SECTION ONE HUNDRED SIXTY-FOUR OF THIS
10 ARTICLE; PROVIDED, HOWEVER, FOR FACILITIES OVER TWO HUNDRED THOUSAND
11 KILOWATTS WHICH HAVE NOT BEEN SELECTED PURSUANT TO AN APPROVED PROCURE-
12 MENT PROCESS THE BOARD MAY EXTEND THE DEADLINE IN EXTRAORDINARY CIRCUM-
13 STANCES BY NO MORE THAN SIX MONTHS IN ORDER TO GIVE CONSIDERATION TO
14 SPECIFIC ISSUES NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE BOARD MUST
15 RENDER A FINAL DECISION ON THE APPLICATION BY THE AFOREMENTIONED DEAD-
16 LINES UNLESS SUCH DEADLINES ARE WAIVED BY THE APPLICANT. IF, AT ANY TIME
17 SUBSEQUENT TO THE COMMENCEMENT OF THE HEARING, THERE IS A MATERIAL AND
18 SUBSTANTIAL AMENDMENT TO THE APPLICATION, THE DEADLINES MAY BE EXTENDED
19 BY NO MORE THAN SIX MONTHS, UNLESS SUCH DEADLINE IS WAIVED BY THE APPLI-
20 CANT, TO CONSIDER SUCH AMENDMENT.
21 (B) PROCEEDINGS ON AN APPLICATION BY AN OWNER OF AN EXISTING MAJOR
22 ELECTRIC GENERATING FACILITY TO MODIFY SUCH EXISTING FACILITY OR SITE A
23 NEW MAJOR ELECTRIC GENERATING FACILITY ADJACENT OR CONTIGUOUS TO SUCH
24 EXISTING FACILITY, SHALL BE COMPLETED IN ALL RESPECTS IN A MANNER
25 CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL PERMITTING
26 AUTHORITY, INCLUDING A FINAL DECISION BY THE BOARD, WITHIN SIX MONTHS
27 FROM THE DATE OF A DETERMINATION BY THE CHAIRPERSON THAT SUCH APPLICA-
28 TION COMPLIES WITH SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, WHEN-
29 EVER SUCH APPLICATION DEMONSTRATES THAT THE OPERATION OF THE MODIFIED
30 FACILITY OR OF THE EXISTING FACILITY AND NEW FACILITY IN COMBINATION
31 WOULD RESULT IN: (I) A DECREASE OF NOT LESS THAN SEVENTY-FIVE PERCENT IN
32 THE RATE OF EMISSIONS OF EACH OF THE FOLLOWING ON A POUNDS PER MEGA-
33 WATT-HOUR BASIS: (A) OXIDES OF NITROGEN, (B) OXIDES OF SULFUR AND (C)
34 PARTICULATE MATTER OF 2.5 MICRONS OR GREATER. THE PERCENTAGE REDUCTIONS
35 IN THE RATE OF SUCH EMISSIONS SHALL BE CALCULATED BY COMPARING THE ANNU-
36 ALIZED POTENTIAL TO EMIT OF THE EXISTING FACILITY (EXPRESSED IN POUNDS
37 PER MEGAWATT-HOUR) AT THE TIME THE APPLICATION UNDER THIS ARTICLE IS
38 FILED WITH THE CHAIRPERSON AND THE FUTURE ANNUALIZED POTENTIAL TO EMIT
39 OF THE MODIFIED FACILITY OR OF THE COMBINATION OF THE EXISTING AND NEW
40 FACILITY (EXPRESSED IN POUNDS PER MEGAWATT-HOUR AND BASED UPON REASON-
41 ABLY EXPECTED OPERATING CONDITIONS) PROPOSED IN THE APPLICATION; AND
42 (II) INSTALLATION OF AIR COOLED CONDENSERS OR INSTALLATION OF EVAPORA-
43 TIVE COOLING WATER INTAKE SYSTEMS OR SUCH OTHER TECHNOLOGIES FOR THE
44 MODIFIED FACILITY OR FOR THE EXISTING AND NEW FACILITY THAT WOULD BE
45 DESIGNED TO WITHDRAW NO MORE THAN FIFTEEN GALLONS PER MINUTE PER MEGA-
46 WATT OF TOTAL PLANT GENERATING CAPACITY FOR COMBINED CYCLE COMBUSTION
47 TURBINE TECHNOLOGY PLANTS, FROM A SOURCE WATER BODY FOR COOLING
48 PURPOSES. THE APPLICANT SHALL SUPPLY THE DETAILS OF THE ANALYSIS IN THE
49 APPLICATION AND SUCH SUPPORTING INFORMATION, AS MAY BE REQUESTED BY THE
50 BOARD OR, IN THE EXERCISE OF FEDERALLY DELEGATED OR APPROVED ENVIRON-
51 MENTAL PERMITTING AUTHORITY, THE DEPARTMENT OF ENVIRONMENTAL CONSERVA-
52 TION, NECESSARY TO SHOW COMPLIANCE WITH THE REQUIREMENTS OF SUBPARAGRAPH
53 (I) OF THIS PARAGRAPH. FOR FACILITIES OVER TWO HUNDRED THOUSAND KILO-
54 WATTS WHICH HAVE NOT BEEN SELECTED PURSUANT TO AN APPROVED PROCUREMENT
55 PROCESS THE BOARD MAY EXTEND THE DEADLINE IN EXTRAORDINARY CIRCUMSTANCES
56 BY NO MORE THAN THREE MONTHS IN ORDER TO GIVE CONSIDERATION TO SPECIFIC
S. 2084 14
1 ISSUES NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE BOARD SHALL RENDER A
2 FINAL DECISION ON THE APPLICATION BY THE AFOREMENTIONED DEADLINES UNLESS
3 SUCH DEADLINES ARE WAIVED BY THE APPLICANT. IF, AT ANY TIME SUBSEQUENT
4 TO THE COMMENCEMENT OF THE HEARING, THERE IS A MATERIAL AND SUBSTANTIAL
5 AMENDMENT TO THE APPLICATION, THE DEADLINES MAY BE EXTENDED BY NO MORE
6 THAN THREE MONTHS, UNLESS SUCH DEADLINE IS WAIVED BY THE APPLICANT, TO
7 CONSIDER SUCH AMENDMENT.
8 5. ON AN APPLICATION FOR AN AMENDMENT OF A CERTIFICATE PROPOSING A
9 CHANGE IN THE FACILITY LIKELY TO RESULT IN ANY MATERIAL INCREASE IN ANY
10 ENVIRONMENTAL IMPACT OF THE FACILITY OR A SUBSTANTIAL CHANGE IN THE
11 LOCATION OF ALL OR A PORTION OF SUCH FACILITY, A HEARING SHALL BE HELD
12 IN THE SAME MANNER AS A HEARING ON AN APPLICATION FOR A CERTIFICATE. THE
13 BOARD SHALL PROMULGATE RULES, REGULATIONS AND STANDARDS UNDER WHICH IT
14 SHALL DETERMINE WHETHER HEARINGS ARE REQUIRED UNDER THIS SUBDIVISION AND
15 SHALL MAKE SUCH DETERMINATIONS.
16 S 166. PARTIES TO A CERTIFICATION PROCEEDING. 1. THE PARTIES TO THE
17 CERTIFICATION PROCEEDINGS SHALL INCLUDE:
18 (A) THE APPLICANT;
19 (B) THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, WHICH SHALL IN ANY
20 SUCH PROCEEDING PRESENT EXPERT TESTIMONY AND INFORMATION CONCERNING THE
21 POTENTIAL ENVIRONMENTAL IMPACTS OF THE PROPOSED FACILITY, AND, AS APPRO-
22 PRIATE, ANY ALTERNATE FACILITY OR ENERGY SOURCE ON THE ENVIRONMENT, AND
23 WHETHER AND HOW SUCH FACILITY WOULD COMPLY WITH APPLICABLE STATE AND
24 FEDERAL ENVIRONMENTAL PROTECTION LAWS, STANDARDS, RULES AND REGULATIONS;
25 (C) THE DEPARTMENT OF ECONOMIC DEVELOPMENT;
26 (D) THE DEPARTMENT OF HEALTH;
27 (E) THE DEPARTMENT OF AGRICULTURE AND MARKETS;
28 (F) THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY;
29 (G) THE DEPARTMENT OF STATE, WHICH SHALL BE AVAILABLE IN ANY SUCH
30 PROCEEDING TO PRESENT EXPERT TESTIMONY AND INFORMATION CONCERNING THE
31 COMPATIBILITY OF THE PROPOSED FACILITY WITH FEDERAL AND STATE COASTAL
32 ZONE MANAGEMENT LAWS, REGULATIONS, AND POLICIES;
33 (H) THE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, WHICH
34 SHALL BE AVAILABLE IN ANY SUCH PROCEEDING TO PRESENT EXPERT TESTIMONY
35 AND INFORMATION CONCERNING THE IMPACTS OF THE PROPOSED FACILITY ON STATE
36 PARKLANDS AND ARCHEOLOGICAL, HISTORICAL, CULTURAL, AND RECREATIONAL
37 RESOURCES UNDER THE SUPERVISION OF THE OFFICE;
38 (I) WHERE THE FACILITY OR ANY PORTION THEREOF OR ANY ALTERNATIVE
39 PROPOSED TO BE LOCATED WITHIN A CITY WITH A POPULATION OF ONE MILLION OR
40 MORE, THE APPROPRIATE ENVIRONMENTAL PROTECTION AGENCY OF SUCH CITY;
41 (J) WHERE THE FACILITY OR ANY PORTION THEREOF OR OF ANY ALTERNATE IS
42 TO BE LOCATED WITH THE ADIRONDACK PARK, AS DEFINED IN SUBDIVISION ONE OF
43 SECTION 9-0101 OF THE ENVIRONMENTAL CONSERVATION LAW, THE ADIRONDACK
44 PARK AGENCY;
45 (K) A MUNICIPALITY ENTITLED TO RECEIVE A COPY OF THE APPLICATION UNDER
46 PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-FOUR OF
47 THIS ARTICLE, IF IT HAS FILED WITH THE BOARD A NOTICE OF INTENT TO BE A
48 PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN IN THE PUBLISHED
49 NOTICE AS THE DATE FOR THE FILING OF THE APPLICATION; ANY MUNICIPALITY
50 ENTITLED TO BE A PARTY HEREIN AND SEEKING TO ENFORCE ANY LOCAL ORDI-
51 NANCE, LAW, RESOLUTION OR OTHER ACTION OR REGULATION OTHERWISE APPLICA-
52 BLE SHALL PRESENT EVIDENCE IN SUPPORT THEREOF OR SHALL BE BARRED FROM
53 THE ENFORCEMENT THEREOF;
54 (L) ANY INDIVIDUAL RESIDENT IN A MUNICIPALITY ENTITLED TO RECEIVE A
55 COPY OF THE APPLICATION UNDER PARAGRAPH (A) OF SUBDIVISION TWO OF
56 SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE IF HE OR SHE HAS FILED
S. 2084 15
1 WITH THE BOARD A NOTICE OF INTENT TO BE A PARTY WITHIN FORTY-FIVE DAYS
2 AFTER THE DATE GIVEN IN THE PUBLISHED NOTICE AS THE DATE FOR FILING OF
3 THE APPLICATION;
4 (M) ANY NONPROFIT CORPORATION OR ASSOCIATION, FORMED IN WHOLE OR IN
5 PART TO PROMOTE CONSERVATION OR NATURAL BEAUTY, TO PROTECT THE ENVIRON-
6 MENT, PERSONAL HEALTH OR OTHER BIOLOGICAL VALUES, TO PRESERVE HISTORICAL
7 SITES, TO PROMOTE CONSUMER INTERESTS, TO REPRESENT COMMERCIAL AND INDUS-
8 TRIAL GROUPS OR TO PROMOTE THE ORDERLY DEVELOPMENT OF ANY AREA IN WHICH
9 THE FACILITY IS TO BE LOCATED, IF IT HAS FILED WITH THE BOARD A NOTICE
10 OF INTENT TO BECOME A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN
11 IN THE PUBLISHED NOTICE AS THE DATE FOR FILING OF THE APPLICATION;
12 (N) ANY OTHER MUNICIPALITY OR RESIDENT OF SUCH MUNICIPALITY LOCATED
13 WITHIN A FIVE MILE RADIUS OF SUCH PROPOSED FACILITY, IF IT OR THE RESI-
14 DENT HAS FILED WITH THE BOARD A NOTICE OF INTENT TO BECOME A PARTY,
15 WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN IN THE PUBLISHED NOTICE AS
16 THE DATE FOR FILING OF THE APPLICATION;
17 (O) ANY OTHER MUNICIPALITY OR RESIDENT OF SUCH MUNICIPALITY WHICH THE
18 BOARD IN ITS DISCRETION FINDS TO HAVE AN INTEREST IN THE PROCEEDING
19 BECAUSE OF THE POTENTIAL ENVIRONMENTAL EFFECTS ON SUCH MUNICIPALITY OR
20 PERSON, IF THE MUNICIPALITY OR PERSON HAS FILED WITH THE BOARD A NOTICE
21 OF INTENT TO BECOME A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN
22 IN THE PUBLISHED NOTICE AS THE DATE FOR FILING OF THE APPLICATION,
23 TOGETHER WITH AN EXPLANATION OF THE POTENTIAL ENVIRONMENTAL EFFECTS ON
24 SUCH MUNICIPALITY OR PERSON; AND
25 (P) SUCH OTHER PERSONS OR ENTITIES AS THE BOARD MAY AT ANY TIME DEEM
26 APPROPRIATE, WHO MAY PARTICIPATE IN ALL SUBSEQUENT STAGES OF THE
27 PROCEEDING.
28 2. THE DEPARTMENT SHALL DESIGNATE MEMBERS OF ITS STAFF WHO SHALL
29 PARTICIPATE AS A PARTY IN PROCEEDINGS UNDER THIS ARTICLE.
30 3. ANY PERSON MAY MAKE A LIMITED APPEARANCE IN THE PROCEEDING BY
31 FILING A STATEMENT OF HIS OR HER INTENT TO LIMIT HIS OR HER APPEARANCE
32 IN WRITING AT ANY TIME PRIOR TO THE COMMENCEMENT OF THE HEARING. ALL
33 PAPERS AND MATTERS FILED BY A PERSON MAKING A LIMITED APPEARANCE SHALL
34 BECOME PART OF THE RECORD. NO PERSON MAKING A LIMITED APPEARANCE SHALL
35 BE A PARTY OR SHALL HAVE THE RIGHT TO PRESENT ORAL TESTIMONY OR
36 CROSS-EXAMINE WITNESSES OR PARTIES.
37 4. THE BOARD MAY FOR GOOD CAUSE SHOWN, PERMIT A MUNICIPALITY OR OTHER
38 PERSON ENTITLED TO BECOME A PARTY UNDER SUBDIVISION ONE OF THIS SECTION,
39 BUT WHICH HAS FAILED TO FILE THE REQUISITE NOTICE OF INTENT WITHIN THE
40 TIME REQUIRED, TO BECOME A PARTY, AND TO PARTICIPATE IN ALL SUBSEQUENT
41 STAGES OF THE PROCEEDINGS.
42 S 167. CONDUCT OF HEARING. 1. (A) THE HEARING SHALL BE CONDUCTED IN AN
43 EXPEDITIOUS MANNER BY A PRESIDING EXAMINER APPOINTED BY THE DEPARTMENT.
44 AN ASSOCIATE HEARING EXAMINER SHALL BE APPOINTED BY THE DEPARTMENT OF
45 ENVIRONMENTAL CONSERVATION PRIOR TO THE DATE SET FOR COMMENCEMENT OF THE
46 PUBLIC HEARING. THE ASSOCIATE EXAMINER SHALL ATTEND ALL HEARINGS AS
47 SCHEDULED BY THE PRESIDING EXAMINER AND SHALL ASSIST THE PRESIDING EXAM-
48 INER IN INQUIRING INTO AND CALLING FOR TESTIMONY CONCERNING RELEVANT AND
49 MATERIAL MATTERS. THE CONCLUSIONS AND RECOMMENDATIONS OF THE ASSOCIATE
50 EXAMINER SHALL BE INCORPORATED IN THE RECOMMENDED DECISION OF THE
51 PRESIDING EXAMINER, UNLESS THE ASSOCIATE EXAMINER PREFERS TO SUBMIT A
52 SEPARATE REPORT OF DISSENTING OR CONCURRING CONCLUSIONS AND RECOMMENDA-
53 TIONS. IN THE EVENT THAT THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION
54 ISSUES PERMITS PURSUANT TO FEDERALLY DELEGATED OR APPROVED AUTHORITY
55 UNDER THE FEDERAL CLEAN WATER ACT, THE FEDERAL CLEAN AIR ACT AND THE
56 FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT, THE RECORD IN THE
S. 2084 16
1 PROCEEDING AND THE ASSOCIATE HEARING EXAMINER'S CONCLUSIONS AND RECOM-
2 MENDATIONS SHALL, INSOFAR AS IS CONSISTENT WITH FEDERALLY DELEGATED OR
3 APPROVED ENVIRONMENTAL PERMITTING AUTHORITY, PROVIDE THE BASIS FOR THE
4 DECISION OF THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION WHETHER OR
5 NOT TO ISSUE SUCH PERMITS.
6 (B) WHEN THE FACILITY IS PROPOSED TO BE LOCATED IN A COASTAL AREA AND
7 FEDERAL AUTHORIZATION IS REQUIRED, A COASTAL RESOURCE SPECIALIST SHALL
8 BE DESIGNATED BY THE DEPARTMENT OF STATE PRIOR TO THE DATE SET FOR
9 COMMENCEMENT OF THE PUBLIC HEARING. THE COASTAL RESOURCE SPECIALIST
10 SHALL ATTEND ALL HEARINGS AS SCHEDULED BY THE PRESIDING AND ASSOCIATE
11 EXAMINERS AND SHALL ASSIST THE PRESIDING AND ASSOCIATE EXAMINERS IN
12 INQUIRING INTO AND CALLING FOR TESTIMONY CONCERNING RELEVANT AND MATERI-
13 AL MATTERS. IN THE EVENT THAT THE SECRETARY OF STATE IS REQUIRED TO
14 RENDER A CONSISTENCY DETERMINATION PURSUANT TO THE FEDERAL COASTAL ZONE
15 MANAGEMENT ACT, THE RECORD IN THE PROCEEDINGS SHALL PROVIDE INFORMATION
16 ON WHICH TO BASE THE DETERMINATION OF THE SECRETARY OF STATE WHETHER OR
17 NOT TO CONCUR WITH THE APPLICANT'S CERTIFICATION.
18 (C) 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. A RECORD SHALL BE MADE OF THE HEARING AND OF ALL
23 TESTIMONY TAKEN AND THE CROSS-EXAMINATIONS THEREON. THE RULES OF
24 EVIDENCE APPLICABLE TO PROCEEDINGS BEFORE A COURT SHALL NOT APPLY. THE
25 PRESIDING EXAMINER MAY PROVIDE FOR THE CONSOLIDATION OF THE REPRESEN-
26 TATION OF PARTIES, OTHER THAN GOVERNMENTAL BODIES OR AGENCIES, HAVING
27 SIMILAR INTERESTS. IN THE CASE OF SUCH A CONSOLIDATION, THE RIGHT TO
28 COUNSEL OF ITS OWN CHOOSING SHALL BE PRESERVED TO EACH PARTY TO THE
29 PROCEEDING PROVIDED THAT THE CONSOLIDATED GROUP MAY BE REQUIRED TO BE
30 HEARD THROUGH SUCH REASONABLE NUMBER OF COUNSEL AS THE PRESIDING EXAMIN-
31 ER SHALL DETERMINE. APPROPRIATE REGULATIONS SHALL BE ISSUED BY THE BOARD
32 TO PROVIDE FOR PRE-HEARING DISCOVERY PROCEDURES BY PARTIES TO A PROCEED-
33 ING, CONSOLIDATION OF THE REPRESENTATION OF PARTIES, THE EXCLUSION OF
34 IRRELEVANT, REPETITIVE, REDUNDANT OR IMMATERIAL EVIDENCE, AND THE REVIEW
35 OF RULINGS BY PRESIDING EXAMINERS.
36 (D) WHEN THE PROPOSED FACILITY IS TO BE LOCATED IN A POTENTIAL ENVI-
37 RONMENTAL JUSTICE AREA, AS DEFINED IN THE DEPARTMENT OF ENVIRONMENTAL
38 CONSERVATION POLICY DIRECTIVE CP-29, ENVIRONMENTAL JUSTICE AND PERMIT-
39 TING, AN ENVIRONMENTAL JUSTICE SPECIALIST SHALL BE DESIGNATED BY THE
40 DEPARTMENT OF ENVIRONMENTAL CONSERVATION PRIOR TO THE DATE SET FOR
41 COMMENCEMENT OF THE PUBLIC HEARING. THE ENVIRONMENTAL JUSTICE SPECIALIST
42 SHALL ATTEND ALL HEARINGS AS SCHEDULED BY THE PRESIDING AND ASSOCIATE
43 EXAMINERS AND SHALL ASSIST THE PRESIDING AND ASSOCIATE EXAMINERS IN
44 INQUIRING INTO AND CALLING FOR TESTIMONY CONCERNING RELEVANT AND MATERI-
45 AL MATTERS.
46 2. A COPY OF THE RECORD SHALL BE MADE AVAILABLE BY THE BOARD AT ALL
47 REASONABLE TIMES FOR EXAMINATION BY THE PUBLIC.
48 3. THE CHAIRPERSON OF THE BOARD MAY ENTER INTO AN AGREEMENT WITH AN
49 AGENCY OR DEPARTMENT OF THE UNITED STATES HAVING CONCURRENT JURISDICTION
50 OVER ALL OR PART OF THE LOCATION, CONSTRUCTION, OR OPERATION OF A MAJOR
51 ELECTRIC GENERATING FACILITY SUBJECT TO THIS ARTICLE WITH RESPECT TO
52 PROVIDING FOR JOINT PROCEDURES AND A JOINT HEARING OF COMMON ISSUES ON A
53 COMBINED RECORD, PROVIDED THAT SUCH AGREEMENT SHALL NOT DIMINISH THE
54 RIGHTS ACCORDED TO ANY PARTY UNDER THIS ARTICLE.
55 4. THE PRESIDING EXAMINER SHALL ALLOW TESTIMONY TO BE RECEIVED ON
56 REASONABLE AND AVAILABLE ALTERNATE LOCATIONS, AND, WITH RESPECT TO A
S. 2084 17
1 FACILITY THAT HAS NOT BEEN SELECTED PURSUANT TO AN APPROVED PROCUREMENT
2 PROCESS, ALTERNATE ENERGY SUPPLY SOURCES AND, WHERE APPROPRIATE,
3 DEMAND-REDUCING MEASURES, PROVIDED NOTICE OF THE INTENT TO SUBMIT SUCH
4 TESTIMONY SHALL BE GIVEN WITHIN SUCH PERIOD AS THE BOARD SHALL PRESCRIBE
5 BY REGULATION, WHICH PERIOD SHALL BE NOT LESS THAN THIRTY NOR MORE THAN
6 SIXTY DAYS AFTER THE COMMENCEMENT OF THE HEARING. NEVERTHELESS, IN ITS
7 DISCRETION, THE BOARD MAY THEREAFTER CAUSE TO BE CONSIDERED OTHER
8 REASONABLE AND AVAILABLE LOCATIONS AND, WITH RESPECT TO A FACILITY THAT
9 HAS NOT BEEN SELECTED PURSUANT TO AN APPROVED PROCUREMENT PROCESS,
10 ALTERNATE ENERGY SUPPLY SOURCES AND, WHERE APPROPRIATE, DEMAND-REDUCING
11 MEASURES.
12 5. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION FOUR OF THIS SECTION,
13 THE BOARD MAY MAKE A PROMPT DETERMINATION ON THE SUFFICIENCY OF THE
14 APPLICANT'S CONSIDERATION AND EVALUATION OF REASONABLE ALTERNATIVES TO
15 ITS PROPOSED TYPE OF MAJOR ELECTRIC GENERATING FACILITY AND ITS PROPOSED
16 LOCATION FOR THAT FACILITY, AS REQUIRED PURSUANT TO PARAGRAPH (B) OF
17 SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE,
18 BEFORE RESOLUTION OF OTHER ISSUES PERTINENT TO A FINAL DETERMINATION ON
19 THE APPLICATION; PROVIDED, HOWEVER, THAT ALL INTERESTED PARTIES HAVE
20 REASONABLE OPPORTUNITY TO QUESTION AND PRESENT EVIDENCE IN SUPPORT OF OR
21 AGAINST THE MERITS OF THE APPLICANT'S CONSIDERATION AND EVALUATION OF
22 SUCH ALTERNATIVES, AS REQUIRED PURSUANT TO PARAGRAPH (B) OF SUBDIVISION
23 ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, SO THAT THE BOARD
24 IS ABLE TO DECIDE, IN THE FIRST INSTANCE, WHETHER THE APPLICANT'S
25 PROPOSAL IS PREFERABLE TO ALTERNATIVES.
26 S 168. BOARD DECISIONS. 1. THE BOARD SHALL MAKE THE FINAL DECISION ON
27 AN APPLICATION UNDER THIS ARTICLE FOR A CERTIFICATE OR AMENDMENT THERE-
28 OF, UPON THE RECORD MADE BEFORE THE PRESIDING EXAMINER, AFTER RECEIVING
29 BRIEFS AND EXCEPTIONS TO THE RECOMMENDED DECISION OF SUCH EXAMINER AND
30 TO THE REPORT OF THE ASSOCIATE EXAMINER, AND AFTER HEARING SUCH ORAL
31 ARGUMENT AS THE BOARD SHALL DETERMINE. EXCEPT FOR GOOD CAUSE SHOWN TO
32 THE SATISFACTION OF THE BOARD, A DETERMINATION UNDER SUBDIVISION FIVE OF
33 SECTION ONE HUNDRED SIXTY-SEVEN OF THIS ARTICLE THAT THE APPLICANT'S
34 PROPOSAL IS PREFERABLE TO ALTERNATIVES SHALL BE FINAL. SUCH A DETERMI-
35 NATION SHALL BE SUBJECT TO REHEARING AND REVIEW ONLY AFTER THE FINAL
36 DECISION ON AN APPLICATION IS RENDERED.
37 2. THE BOARD SHALL RENDER A DECISION UPON THE RECORD EITHER TO GRANT
38 OR DENY THE APPLICATION AS FILED OR TO CERTIFY THE FACILITY UPON SUCH
39 TERMS, CONDITIONS, LIMITATIONS OR MODIFICATIONS OF THE CONSTRUCTION OR
40 OPERATION OF THE FACILITY AS THE BOARD MAY DEEM APPROPRIATE. THE BOARD
41 SHALL ISSUE, WITH ITS DECISION, AN OPINION STATING IN FULL ITS REASONS
42 FOR ITS DECISION. THE BOARD SHALL ISSUE AN ORDER UPON THE DECISION AND
43 THE OPINION EMBODYING THE TERMS AND CONDITIONS THEREOF IN FULL. FOLLOW-
44 ING ANY REHEARING AND ANY JUDICIAL REVIEW OF THE BOARD'S DECISION, THE
45 BOARD'S JURISDICTION OVER AN APPLICATION SHALL CEASE, PROVIDED HOWEVER,
46 THAT THE BOARD EXCLUSIVE OF THE AD HOC MEMBERS, SHALL RETAIN JURISDIC-
47 TION WITH RESPECT TO THE AMENDMENT, SUSPENSION OR REVOCATION OF A
48 CERTIFICATE. THE COMMISSION SHALL MONITOR, ENFORCE AND ADMINISTER
49 COMPLIANCE WITH ANY TERMS AND CONDITIONS SET FORTH IN THE BOARD'S ORDER.
50 THE BOARD SHALL NOT GRANT A CERTIFICATE FOR THE CONSTRUCTION OR OPERA-
51 TION OF A MAJOR ELECTRIC GENERATING FACILITY, EITHER AS PROPOSED OR AS
52 MODIFIED BY THE BOARD, UNLESS IT SHALL FIRST FIND AND DETERMINE:
53 (A)(I) THAT THE FACILITY WILL SATISFY ADDITIONAL ELECTRIC CAPACITY
54 NEEDS OR OTHER ELECTRIC SYSTEM NEEDS, AND THAT THE CONSTRUCTION OF THE
55 FACILITY IS CONSISTENT WITH LONG-RANGE ENERGY PLANNING OBJECTIVES AND
56 STRATEGIES, PROVIDED HOWEVER, THAT SUBSEQUENT TO THE ADOPTION OF A STATE
S. 2084 18
1 ENERGY PLAN PURSUANT TO FORMER ARTICLE SIX OF THE ENERGY LAW, THE BOARD
2 SHALL FIND AND DETERMINE THAT THE CONSTRUCTION OF THE FACILITY IS
3 REASONABLY CONSISTENT WITH THE POLICIES AND LONG-RANGE ENERGY PLANNING
4 OBJECTIVES AND STRATEGIES CONTAINED IN THE MOST RECENT STATE ENERGY
5 PLAN; OR (II) THAT THE FACILITY WAS SELECTED PURSUANT TO AN APPROVED
6 PROCUREMENT PROCESS;
7 (B) THE NATURE OF THE PROBABLE ENVIRONMENTAL IMPACTS, INCLUDING AN
8 EVALUATION OF THE PREDICTABLE ADVERSE AND BENEFICIAL IMPACTS ON THE
9 ENVIRONMENT AND ECOLOGY, PUBLIC HEALTH AND SAFETY, AESTHETICS, SCENIC,
10 HISTORIC AND RECREATIONAL VALUE, FOREST AND PARKS, AIR AND WATER QUALI-
11 TY, INCLUDING, THE CUMULATIVE AIR AND ENVIRONMENTAL IMPACTS OF THE
12 PROPOSED FACILITY IN THE AGGREGATE WITH EXISTING EMISSION SOURCES ON THE
13 GEOGRAPHIC AREA IN WHICH THE FACILITY IS PROPOSED; AND THE POTENTIAL FOR
14 SIGNIFICANT DETERIORATION IN LOCAL AIR QUALITY FROM PARTICULATE MATTER
15 OF 2.5 MICRONS OR GREATER IN SIZE, WITH PARTICULAR ATTENTION TO FACILI-
16 TIES LOCATED IN AREAS DESIGNATED AS SEVERE NON-ATTAINMENT, FISH AND
17 OTHER MARINE LIFE AND WILDLIFE;
18 (C) THAT THE FACILITY (I) MITIGATES TO THE EXTENT PRACTICABLE ADVERSE
19 ENVIRONMENTAL IMPACTS, CONSIDERING THE STATE OF AVAILABLE TECHNOLOGY,
20 THE NATURE AND ECONOMICS OF SUCH REASONABLE ALTERNATIVES AS ARE REQUIRED
21 TO BE EXAMINED PURSUANT TO PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION
22 ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, THE INTEREST OF THE STATE WITH
23 RESPECT TO AESTHETICS, PRESERVATION OF HISTORIC SITES, FOREST AND PARKS,
24 FISH AND WILDLIFE, VIABLE AGRICULTURAL LANDS, AND OTHER PERTINENT
25 CONSIDERATIONS, (II) IS COMPATIBLE WITH PUBLIC HEALTH AND SAFETY, (III)
26 WILL NOT BE IN CONTRAVENTION OF WATER QUALITY STANDARDS OR BE INCONSIST-
27 ENT WITH APPLICABLE REGULATIONS OF THE DEPARTMENT OF ENVIRONMENTAL
28 CONSERVATION, OR IN CASE NO CLASSIFICATION HAS BEEN MADE OF THE RECEIV-
29 ING WATERS ASSOCIATED WITH THE FACILITY, WILL NOT DISCHARGE ANY EFFLUENT
30 THAT WILL BE UNDULY INJURIOUS TO THE PROPAGATION AND PROTECTION OF FISH
31 AND WILDLIFE, THE INDUSTRIAL DEVELOPMENT OF THE STATE, AND PUBLIC HEALTH
32 AND PUBLIC ENJOYMENT OF THE RECEIVING WATERS, (IV) WILL NOT EMIT ANY
33 POLLUTANTS TO THE AIR THAT WILL BE IN CONTRAVENTION OF APPLICABLE AIR
34 EMISSION CONTROL REQUIREMENTS OR AIR QUALITY STANDARDS, (V) WILL CONTROL
35 THE RUNOFF AND LEACHATE FROM ANY SOLID WASTE DISPOSAL FACILITY, AND (VI)
36 WILL CONTROL THE DISPOSAL OF ANY HAZARDOUS WASTE;
37 (D) IF THE FACILITY IS PROPOSED TO BE LOCATED IN A COASTAL AREA, THAT
38 THE ACTION IS CONSISTENT WITH APPLICABLE POLICIES SET FORTH IN ARTICLE
39 FORTY-TWO OF THE EXECUTIVE LAW, OR IF THE FACILITY IS PROPOSED TO BE
40 LOCATED IN A MUNICIPALITY WITH A LOCAL WATERFRONT REVITALIZATION PROGRAM
41 APPROVED BY THE SECRETARY OF STATE, THAT THE ACTION IS CONSISTENT TO THE
42 MAXIMUM EXTENT PRACTICABLE WITH THAT LOCAL WATERFRONT REVITALIZATION
43 PROGRAM;
44 (E) THAT THE FACILITY IS DESIGNATED TO OPERATE IN COMPLIANCE WITH
45 APPLICABLE STATE AND LOCAL LAWS AND REGULATIONS ISSUED THEREUNDER
46 CONCERNING, AMONG OTHER MATTERS, THE ENVIRONMENT, PUBLIC HEALTH AND
47 SAFETY, ALL OF WHICH SHALL BE BINDING UPON THE APPLICANT, EXCEPT THAT
48 THE BOARD MAY REFUSE TO APPLY ANY LOCAL ORDINANCE, LAW, RESOLUTION OR
49 OTHER ACTION OR ANY REGULATION ISSUED THEREUNDER OR ANY LOCAL STANDARD
50 OR REQUIREMENT WHICH WOULD BE OTHERWISE APPLICABLE IF IT FINDS THAT AS
51 APPLIED TO THE PROPOSED FACILITY SUCH IS UNREASONABLY RESTRICTIVE IN
52 VIEW OF THE EXISTING TECHNOLOGY FOR THE NEEDS OF OR COSTS TO RATE PAYERS
53 WHETHER LOCATED INSIDE OR OUTSIDE OF SUCH MUNICIPALITY. THE BOARD SHALL
54 PROVIDE THE MUNICIPALITY AN OPPORTUNITY TO PRESENT EVIDENCE IN SUPPORT
55 OF SUCH ORDINANCE, LAW, RESOLUTION, REGULATION OR OTHER LOCAL ACTION
56 ISSUED THEREUNDER; AND
S. 2084 19
1 (F) THAT THE CONSTRUCTION AND OPERATION OF THE FACILITY IS IN THE
2 PUBLIC INTEREST, CONSIDERING THE ENVIRONMENTAL IMPACTS OF THE FACILITY
3 AND REASONABLE ALTERNATIVES EXAMINED AS REQUIRED PURSUANT TO PARAGRAPH
4 (B) OF SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTI-
5 CLE.
6 3. THE BOARD MAY, EITHER AS A PART OF THE DECISION DESCRIBED IN SUBDI-
7 VISION TWO OF THIS SECTION OR AS A PART OF ANY DETERMINATION AS MAY BE
8 APPROPRIATELY MADE IN CONFORMANCE WITH REGULATIONS ADOPTED PURSUANT TO
9 SUBDIVISION SEVEN OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE,
10 ISSUE PERMITS PURSUANT TO FEDERAL RECOGNITION OF STATE AUTHORITY IN
11 ACCORDANCE WITH FEDERAL CLEAN WATER ACT, THE FEDERAL CLEAN AIR ACT AND
12 THE FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT. SUCH PERMITS SHALL
13 BE BASED UPON THE EVIDENCE OF RECORD WITH RESPECT TO THE CONSTRUCTION
14 AND OPERATION OF THE POLLUTION CONTROL SYSTEMS OF THE FACILITY AND SHALL
15 CONTAIN SUCH CONDITIONS AND LIMITATIONS AS THE BOARD SHALL DEEM APPRO-
16 PRIATE. THE ISSUANCE OF SUCH PERMITS AS PART OF A DETERMINATION HERE-
17 UNDER SHALL NOT PREVENT THE BOARD, IF IT BE SO DISPOSED, FROM DENYING
18 THE APPLICATION UNDER SUBDIVISION TWO OF THIS SECTION IN WHICH EVENT THE
19 PERMIT SHALL THENCEFORTH BE DEEMED TO BE OF NO FORCE OR EFFECT.
20 4. A COPY OF THE BOARD'S DECISION AND OPINION SHALL BE SERVED ON EACH
21 PARTY PERSONALLY OR BY MAIL.
22 S 169. OPINION TO BE ISSUED WITH DECISION. IN RENDERING A DECISION ON
23 AN APPLICATION FOR A CERTIFICATE, THE BOARD SHALL ISSUE AN OPINION STAT-
24 ING ITS REASONS FOR THE ACTION TAKEN. IF THE BOARD HAS FOUND THAT ANY
25 LOCAL ORDINANCE, LAW, RESOLUTION, REGULATION OR OTHER ACTION ISSUED
26 THEREUNDER OR ANY OTHER LOCAL STANDARD OR REQUIREMENT WHICH WOULD BE
27 OTHERWISE APPLICABLE IS UNREASONABLY RESTRICTIVE PURSUANT TO PARAGRAPH
28 (E) OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTI-
29 CLE, IT SHALL STATE IN ITS OPINION THE REASONS THEREFOR.
30 S 170. REHEARING AND JUDICIAL REVIEW. 1. ANY PARTY AGGRIEVED BY THE
31 BOARD'S DECISION DENYING OR GRANTING A CERTIFICATE MAY APPLY TO THE
32 BOARD FOR A REHEARING WITHIN THIRTY DAYS AFTER ISSUANCE OF THE AGGRIEV-
33 ING DECISION. ANY SUCH APPLICATION SHALL BE CONSIDERED AND DECIDED BY
34 THE BOARD AND ANY REHEARING SHALL BE COMPLETED AND A DECISION RENDERED
35 THEREON WITHIN NINETY DAYS OF THE EXPIRATION OF THE PERIOD FOR FILING
36 REHEARING PETITIONS, PROVIDED HOWEVER THAT THE BOARD MAY EXTEND THE
37 DEADLINE BY NO MORE THAN NINETY DAYS WHERE A REHEARING IS REQUIRED IF
38 NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE APPLICANT MAY WAIVE SUCH
39 DEADLINE. THEREAFTER SUCH A PARTY MAY OBTAIN JUDICIAL REVIEW OF SUCH
40 DECISION AS PROVIDED IN THIS SECTION. A JUDICIAL PROCEEDING SHALL BE
41 BROUGHT IN THE APPELLATE DIVISION OF THE SUPREME COURT OF THE STATE OF
42 NEW YORK IN THE JUDICIAL DEPARTMENT EMBRACING THE COUNTY WHEREIN THE
43 FACILITY IS TO BE LOCATED OR, IF THE APPLICATION IS DENIED, THE COUNTY
44 WHEREIN THE APPLICANT HAS PROPOSED TO LOCATE THE FACILITY. SUCH PROCEED-
45 ING SHALL BE INITIATED BY THE FILING OF A PETITION IN SUCH COURT WITHIN
46 THIRTY DAYS AFTER THE ISSUANCE OF A FINAL DECISION BY THE BOARD UPON THE
47 APPLICATION FOR REHEARING TOGETHER WITH PROOF OF SERVICE OF A DEMAND ON
48 THE BOARD TO FILE WITH SAID COURT A COPY OF A WRITTEN TRANSCRIPT OF THE
49 RECORD OF THE PROCEEDING AND A COPY OF THE BOARD'S DECISION AND OPINION.
50 THE BOARD'S COPY OF SAID TRANSCRIPT, DECISION AND OPINION, SHALL BE
51 AVAILABLE AT ALL REASONABLE TIMES TO ALL PARTIES FOR EXAMINATION WITHOUT
52 COST. UPON RECEIPT OF SUCH PETITION AND DEMAND THE BOARD SHALL FORTHWITH
53 DELIVER TO THE COURT A COPY OF THE RECORD AND A COPY OF THE BOARD'S
54 DECISION AND OPINION. THEREUPON, THE COURT SHALL HAVE JURISDICTION OF
55 THE PROCEEDING AND SHALL HAVE THE POWER TO GRANT SUCH RELIEF AS IT DEEMS
56 JUST AND PROPER, AND TO MAKE AND ENTER AN ORDER ENFORCING, MODIFYING AND
S. 2084 20
1 ENFORCING AS SO MODIFIED, REMANDING FOR FURTHER SPECIFIC EVIDENCE OR
2 FINDINGS OR SETTING ASIDE IN WHOLE OR IN PART SUCH DECISION. THE APPEAL
3 SHALL BE HEARD ON THE RECORD, WITHOUT REQUIREMENT OF REPRODUCTION, AND
4 UPON BRIEFS TO THE COURT. NO OBJECTION THAT HAS NOT BEEN URGED BY THE
5 PARTY IN HIS OR HER APPLICATION FOR REHEARING BEFORE THE BOARD SHALL BE
6 CONSIDERED BY THE COURT, UNLESS THE FAILURE OR NEGLECT TO URGE SUCH
7 OBJECTION SHALL BE EXCUSED BECAUSE OF EXTRAORDINARY CIRCUMSTANCES. THE
8 FINDINGS OF FACT ON WHICH SUCH DECISION IS BASED SHALL BE CONCLUSIVE IF
9 SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD CONSIDERED AS A WHOLE
10 AND MATTERS OF JUDICIAL NOTICE SET FORTH IN THE OPINION. THE JURISDIC-
11 TION OF THE APPELLATE DIVISION OF THE SUPREME COURT SHALL BE EXCLUSIVE
12 AND ITS JUDGMENT AND ORDER SHALL BE FINAL, SUBJECT TO REVIEW BY THE
13 COURT OF APPEALS IN THE SAME MANNER AND FORM AND WITH THE SAME EFFECT AS
14 PROVIDED FOR APPEALS IN SPECIAL PROCEEDING. ALL SUCH PROCEEDINGS SHALL
15 BE HEARD AND DETERMINED BY THE APPELLATE DIVISION OF THE SUPREME COURT
16 AND BY THE COURT OF APPEALS AS EXPEDITIOUSLY AS POSSIBLE AND WITH LAWFUL
17 PRECEDENCE OVER ALL OTHER MATTERS.
18 2. THE GROUNDS FOR AND SCOPE OF REVIEW OF THE COURT SHALL BE LIMITED
19 TO WHETHER THE DECISION AND OPINION OF THE BOARD ARE:
20 (A) IN CONFORMITY WITH THE CONSTITUTION OF THE STATE AND THE UNITED
21 STATES;
22 (B) SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD AND MATTERS OF
23 JUDICIAL NOTICE PROPERLY CONSIDERED AND APPLIED IN THE OPINION;
24 (C) WITHIN THE BOARD'S STATUTORY JURISDICTION OR AUTHORITY;
25 (D) MADE IN ACCORDANCE WITH PROCEDURES SET FORTH IN THIS ARTICLE OR
26 ESTABLISHED BY RULE OR REGULATION PURSUANT TO THIS ARTICLE; OR
27 (E) ARBITRARY, CAPRICIOUS OR AN ABUSE OF DISCRETION.
28 3. EXCEPT AS PROVIDED IN THIS SECTION, ARTICLE SEVENTY-EIGHT OF THE
29 CIVIL PRACTICE LAW AND RULES SHALL APPLY TO APPEALS TAKEN PURSUANT TO
30 THIS ARTICLE.
31 S 171. JURISDICTION OF COURTS. EXCEPT AS EXPRESSLY SET FORTH IN
32 SECTION ONE HUNDRED SEVENTY OF THIS ARTICLE AND EXCEPT FOR REVIEW BY THE
33 COURT OF APPEALS OF A DECISION OF THE APPELLATE DIVISION OF THE SUPREME
34 COURT AS PROVIDED FOR THEREIN, NO COURT OF THIS STATE SHALL HAVE JURIS-
35 DICTION TO HEAR OR DETERMINE ANY MATTER, CASE OR CONTROVERSY CONCERNING
36 ANY MATTER WHICH WAS OR COULD HAVE BEEN DETERMINED IN A PROCEEDING UNDER
37 THIS ARTICLE OR TO STOP OR DELAY THE CONSTRUCTION OR OPERATION OF A
38 MAJOR ELECTRIC GENERATING FACILITY EXCEPT TO ENFORCE COMPLIANCE WITH
39 THIS ARTICLE OR THE TERMS AND CONDITIONS ISSUED THEREUNDER.
40 S 172. POWERS OF MUNICIPALITIES AND STATE AGENCIES. 1. NOTWITHSTANDING
41 ANY OTHER PROVISION OF LAW, NO STATE AGENCY, MUNICIPALITY OR ANY AGENCY
42 THEREOF MAY, EXCEPT AS EXPRESSLY AUTHORIZED UNDER THIS ARTICLE BY THE
43 BOARD, REQUIRE ANY APPROVAL, CONSENT, PERMIT, CERTIFICATE OR OTHER
44 CONDITION FOR THE CONSTRUCTION OR OPERATION OF A MAJOR ELECTRIC GENERAT-
45 ING FACILITY WITH RESPECT TO WHICH AN APPLICATION FOR A CERTIFICATE
46 HEREUNDER HAS BEEN FILED, OTHER THAN THOSE PROVIDED BY OTHERWISE APPLI-
47 CABLE STATE LAW FOR THE PROTECTION OF EMPLOYEES ENGAGED IN THE
48 CONSTRUCTION AND OPERATION OF SUCH FACILITY; PROVIDED, HOWEVER, THAT IN
49 THE CASE OF A MUNICIPALITY OR AN AGENCY THEREOF, SUCH MUNICIPALITY HAS
50 RECEIVED NOTICE OF THE FILING OF THE APPLICATION THEREFOR; AND PROVIDED
51 FURTHER HOWEVER, THAT THE DEPARTMENT OF STATE MAY MAKE CONSISTENCY
52 DETERMINATIONS PURSUANT TO THE FEDERAL COASTAL ZONE MANAGEMENT ACT. IN
53 ISSUING SUCH DETERMINATIONS, THE SECRETARY OF STATE SHALL FOLLOW PROCE-
54 DURES ESTABLISHED IN THIS ARTICLE TO THE EXTENT THAT THEY ARE CONSISTENT
55 WITH THE FEDERAL COASTAL ZONE MANAGEMENT ACT AND ITS IMPLEMENTING REGU-
56 LATION; AND PROVIDED FURTHER, HOWEVER, THAT THE DEPARTMENT OF ENVIRON-
S. 2084 21
1 MENTAL CONSERVATION MAY ISSUE PERMITS PURSUANT TO FEDERALLY DELEGATED OR
2 APPROVED AUTHORITY UNDER THE FEDERAL CLEAN WATER ACT, THE FEDERAL CLEAN
3 AIR ACT AND THE FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT. IN ISSU-
4 ING SUCH PERMITS, THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION SHALL
5 FOLLOW PROCEDURES ESTABLISHED IN THIS ARTICLE TO THE EXTENT THAT THEY
6 ARE CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL
7 PERMITTING AUTHORITY. THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION AND
8 THE SECRETARY OF STATE SHALL PROVIDE SUCH PERMITS TO THE BOARD PRIOR TO
9 ITS DETERMINATION WHETHER OR NOT TO ISSUE A CERTIFICATE.
10 2. THE ADIRONDACK PARK AGENCY SHALL NOT HOLD PUBLIC HEARINGS FOR A
11 MAJOR ELECTRIC GENERATING FACILITY WITH RESPECT TO WHICH AN APPLICATION
12 HEREUNDER IS FILED, PROVIDED THAT SUCH AGENCY HAS RECEIVED NOTICE OF THE
13 FILING OF SUCH APPLICATION.
14 S 2. The opening paragraph and paragraph (b) of subdivision 5 of
15 section 8-0111 of the environmental conservation law, as added by chap-
16 ter 612 of the laws of 1975, are amended to read as follows:
17 The requirements of [subdivision two of section 8-0109 of] this arti-
18 cle shall not apply to:
19 (b) Actions subject to the provisions requiring a certificate of envi-
20 ronmental compatibility and public need in articles seven [and eight]
21 AND TEN AND FORMER ARTICLE EIGHT of the public service law; or
22 S 3. Section 17-0701 of the environmental conservation law is amended
23 by adding a new subdivision 8 to read as follows:
24 8. IN THE CASE OF A MAJOR ELECTRIC GENERATING FACILITY, AS DEFINED IN
25 SECTION ONE HUNDRED SIXTY OF THE PUBLIC SERVICE LAW, FOR THE
26 CONSTRUCTION OR OPERATION OF WHICH A CERTIFICATE IS REQUIRED UNDER ARTI-
27 CLE TEN OF THE PUBLIC SERVICE LAW, SUCH CERTIFICATE SHALL BE DEEMED A
28 PERMIT UNDER THIS SECTION IF ISSUED BY THE STATE BOARD ON ELECTRIC
29 GENERATION SITING AND THE ENVIRONMENT PURSUANT TO FEDERALLY DELEGATED OR
30 APPROVED ENVIRONMENTAL PERMIT AUTHORITY. NOTHING HEREIN SHALL LIMIT THE
31 AUTHORITY OF THE DEPARTMENT OF HEALTH AND THIS DEPARTMENT TO MONITOR THE
32 ENVIRONMENTAL AND HEALTH IMPACTS RESULTING FROM THE OPERATION OF SUCH
33 MAJOR ELECTRIC GENERATING FACILITY AND TO ENFORCE APPLICABLE PROVISIONS
34 OF THE PUBLIC HEALTH LAW, THIS CHAPTER AND THE TERMS AND CONDITIONS OF
35 THE CERTIFICATE GOVERNING THE ENVIRONMENTAL AND HEALTH IMPACTS RESULTING
36 FROM SUCH OPERATION.
37 S 4. Section 17-0823 of the environmental conservation law, as added
38 by chapter 801 of the laws of 1973, is amended to read as follows:
39 S 17-0823. Power plant siting.
40 In the case of a major steam electric generating facility, as defined
41 in section one hundred forty of the public service law, for the
42 construction or operation of which a certificate is required under
43 FORMER article eight of [such] THE PUBLIC SERVICE law, OR A MAJOR ELEC-
44 TRIC GENERATING FACILITY AS DEFINED IN SECTION ONE HUNDRED SIXTY OF THE
45 PUBLIC SERVICE LAW, FOR THE CONSTRUCTION OR OPERATION OF WHICH A CERTIF-
46 ICATE IS REQUIRED UNDER ARTICLE TEN OF THE PUBLIC SERVICE LAW, [an
47 applicant shall apply for and obtain such certificate in lieu of filing
48 an application and obtaining a permit under this article. Any reference
49 in this article to a permit shall, in the case of such major steam elec-
50 tric generating facility, be deemed for all purposes to refer to such
51 certificate, provided that nothing] SUCH CERTIFICATE SHALL BE DEEMED A
52 PERMIT UNDER THIS SECTION IF ISSUED BY THE STATE BOARD ON ELECTIVE
53 GENERATION SITING AND THE ENVIRONMENT PURSUANT TO FEDERALLY DELEGATED OR
54 APPROVED ENVIRONMENTAL PERMIT AUTHORITY. NOTHING herein shall limit the
55 authority of the [departments] DEPARTMENT of health and [environmental
56 conservation] THE DEPARTMENT to monitor the environmental and health
S. 2084 22
1 impacts resulting from the operation of such major steam electric gener-
2 ating facility OR MAJOR ELECTRIC GENERATING FACILITY and to enforce
3 applicable provisions of the public health LAW and [environmental
4 conservation laws] THIS CHAPTER and the terms and conditions of the
5 certificate governing the environmental and health impacts resulting
6 from such operation. In such case all powers, duties, obligations and
7 privileges conferred upon the department by this article shall devolve
8 upon the New York state board on electric generation siting and the
9 environment. In considering the granting of permits, such board shall
10 apply the provisions of this article and the Act.
11 S 5. Paragraph j of subdivision 2 of section 19-0305 of the environ-
12 mental conservation law, as amended by chapter 525 of the laws of 1981,
13 is amended to read as follows:
14 j. Consider for approval or disapproval applications for permits and
15 certificates including plans or specifications for air contamination
16 sources and air cleaning installations or any part thereof submitted [to
17 him pursuant to] CONSISTENT WITH the rules of the department, and
18 inspect the installation for compliance with the plans or specifica-
19 tions; provided that in the case of a major steam electric generating
20 facility, as defined in [either] FORMER section one hundred forty of the
21 public service law, for which a certificate is required pursuant to
22 [either] FORMER article eight of [such] THE PUBLIC SERVICE law, PURSUANT
23 TO FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL PERMITTING AUTHORITY
24 such approval functions shall be performed by the state board on elec-
25 tric generation siting and the environment, as defined in such law, and
26 such inspection functions shall be performed by the department[;
27 provided further that nothing]. NOTHING herein shall limit the authori-
28 ty of the [departments] DEPARTMENT of health and [environmental conser-
29 vation] THE DEPARTMENT to monitor the environmental and health impacts
30 resulting from the operation of such major steam electric generating
31 facility and to enforce applicable provisions of the public health LAW
32 and [the environmental conservation laws] THIS CHAPTER and the terms and
33 conditions of the certificate governing the environmental and health
34 impacts resulting from such operation.
35 S 6. Paragraph (e) of subdivision 3 of section 49-0307 of the environ-
36 mental conservation law, as added by chapter 292 of the laws of 1984, is
37 amended to read as follows:
38 (e) where land subject to a conservation easement or an interest in
39 such land is required for a major utility transmission facility which
40 has received a certificate of environmental compatibility and public
41 need pursuant to article seven of the public service law or is required
42 for a major steam electric generating facility which has received a
43 certificate [or] OF environmental compatibility and public need pursuant
44 to article eight of the public service law, OR A MAJOR ELECTRIC GENERAT-
45 ING FACILITY WHICH HAS RECEIVED A CERTIFICATE OF ENVIRONMENTAL COMPAT-
46 IBILITY AND PUBLIC NEED PURSUANT TO ARTICLE TEN OF THE PUBLIC SERVICE
47 LAW, upon the filing of such certificate in a manner prescribed for
48 recording a conveyance of real property pursuant to section two hundred
49 ninety-one of the real property law or any other applicable provision of
50 law, provided that such certificate contains a finding that the public
51 interest in the conservation and protection of the natural resources,
52 open spaces and scenic beauty of the Adirondack or Catskill parks has
53 been considered.
54 S 7. Section 1014 of the public authorities law, as amended by chapter
55 446 of the laws of 1972, is amended to read as follows:
S. 2084 23
1 S 1014. Public service law not applicable to authority; inconsistent
2 provisions in other acts superseded. The rates, services and practices
3 relating to the generation, transmission, distribution and sale by the
4 authority, of power to be generated from the projects authorized by this
5 title shall not be subject to the provisions of the public service law
6 nor to regulation by, nor the jurisdiction of the department of public
7 service. Except to the extent article seven of the public service law
8 applies to the siting and operation of a major utility transmission
9 facility as defined therein, AND ARTICLE TEN OF THE PUBLIC SERVICE LAW
10 APPLIES TO SITING OF MAJOR ELECTRIC GENERATING FACILITIES AS DEFINED
11 THEREIN, and except to the extent section eighteen-a of such law
12 provides for assessment of the authority for certain costs relating
13 thereto, the provisions of the public service law and of the ENVIRON-
14 MENTAL conservation law and every other law relating to the department
15 of public service or the public service commission or to the [conserva-
16 tion] department OF ENVIRONMENTAL CONSERVATION or to the functions,
17 powers or duties assigned to the division of water power and control by
18 chapter six hundred nineteen, of the laws of nineteen hundred twenty-
19 six, shall so far as is necessary to make this title effective in
20 accordance with its terms and purposes be deemed to be superseded, and
21 wherever any provision of law shall be found in conflict with the
22 provisions of this title or inconsistent with the purposes thereof, it
23 shall be deemed to be superseded, modified or repealed as the case may
24 require.
25 S 8. Subdivision 1 of section 1020-s of the public authorities law, as
26 added by chapter 517 of the laws of 1986, is amended to read as follows:
27 1. The rates, services and practices relating to the electricity
28 generated by facilities owned or operated by the authority shall not be
29 subject to the provisions of the public service law or to regulation by,
30 or the jurisdiction of, the public service commission, except to the
31 extent (a) article seven of the public service law applies to the siting
32 and operation of a major utility transmission facility as defined there-
33 in, (b) article [eight] TEN of such law applies to the siting of a
34 generating facility as defined therein, and (c) section eighteen-a of
35 such law provides for assessment for certain costs, property or oper-
36 ations.
37 S 9. The state finance law is amended by adding a new section 97-tt to
38 read as follows:
39 S 97-TT. INTERVENOR ACCOUNT. 1. THERE IS HEREBY ESTABLISHED IN THE
40 JOINT CUSTODY OF THE STATE COMPTROLLER AND THE COMMISSIONER OF TAXATION
41 AND FINANCE AN ACCOUNT TO BE KNOWN AS THE INTERVENOR ACCOUNT.
42 2. SUCH ACCOUNT SHALL CONSIST OF ALL REVENUES RECEIVED FROM SITING
43 APPLICATION FEES FOR ELECTRIC GENERATING FACILITIES PURSUANT TO SECTION
44 ONE HUNDRED SIXTY-FOUR OF THE PUBLIC SERVICE LAW.
45 3. MONEYS OF THE ACCOUNT, FOLLOWING APPROPRIATION BY THE LEGISLATURE,
46 MAY BE EXPENDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION ONE HUNDRED
47 SIXTY-FOUR OF THE PUBLIC SERVICE LAW. MONEYS SHALL BE PAID OUT OF THE
48 ACCOUNT ON THE AUDIT AND WARRANT OF THE STATE COMPTROLLER ON VOUCHERS
49 CERTIFIED OR APPROVED BY THE CHAIR OF THE PUBLIC SERVICE COMMISSION.
50 S 10. Separability. If any clause, sentence, paragraph, section or
51 part of this act shall be adjudged by any court of competent jurisdic-
52 tion to be invalid, such judgment shall not affect, impair or invalidate
53 the remainder thereof, but shall be confined in its operation to the
54 clause, sentence, paragraph, section or part thereof directly involved
55 in the controversy in which such judgment shall have been rendered.
S. 2084 24
1 S 11. This act shall take effect immediately, provided that nothing in
2 this act shall be construed to limit any administrative authority, with
3 respect to matters included in this act, which existed prior to the
4 effective date of this act.
