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Article 10 Text

ARTICLE 10 [Enacted August 4, 2011]
SITING OF MAJOR ELECTRIC GENERATING FACILITIES
SECTION 160. DEFINITIONS.
SECTION 161. GENERAL PROVISIONS RELATING TO THE BOARD.
SECTION 162. BOARD CERTIFICATE.
SECTION 163. PRE-APPLICATION PROCEDURES.
SECTION 164. APPLICATION FOR A CERTIFICATE.
SECTION 165. HEARING SCHEDULE.
SECTION 166. PARTIES TO A CERTIFICATION PROCEEDING.
SECTION 167. CONDUCT OF HEARING.
SECTION 168. BOARD DECISIONS.
SECTION 169. OPINION TO BE ISSUED WITH DECISION.
SECTION 170. REHEARING AND JUDICIAL REVIEW.
SECTION 171. JURISDICTION OF COURTS.
SECTION 172. POWERS OF MUNICIPALITIES AND STATE AGENCIES.
SECTION 173. APPLICABILITY TO PUBLIC AUTHORITIES.
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SECTION 160. Definitions.
Where used in this article, the following terms, unless the context otherwise
requires, shall have the following meanings:
1. "MUNICIPALITY" MEANS A COUNTY, CITY, TOWN OR VILLAGE LOCATED IN THIS
STATE.
2. "MAJOR ELECTRIC GENERATING FACILITY" MEANS AN ELECTRIC GENERATING
FACILITY WITH A NAMEPLATE GENERATING CAPACITY OF TWENTY-FIVE THOUSAND
KILOWATTS OR MORE, INCLUDING INTERCONNECTION ELECTRIC TRANSMISSION LINES AND
FUEL GAS TRANSMISSION LINES THAT ARE NOT SUBJECT TO REVIEW UNDER ARTICLE
SEVEN OF THIS CHAPTER.
3. "Person" means any individual, corporation, public benefit corporation,
political subdivision, governmental agency, municipality, partnership, cooperative
association, trust or estate.
4. "Board" means the new york state board on electric generation siting and
the environment, which shall be in the department and consist of seven
persons: the chair of the department, who shall serve as chair of the board;
the commissioner of environmental conservation; the commissioner of health;
the chair of the new york state energy research and development authority;
the commissioner of economic development and two ad hoc public members, both
of whom shall reside within the municipality in which the facility is
proposed to be located, except if such facility is proposed to be located
within the city of new york, then all ad hoc members shall reside within
the community district in which the facility is proposed to be located. One
ad hoc member shall be appointed by the president pro tem of the senate and
one ad hoc member shall be appointed by the speaker of the assembly, in
accordance with subdivision two of section one hundred sixty-one of this
article. The term of the ad hoc public members shall continue until a final
determination is made in the particular proceeding for which they were
appointed.
5. "Certificate" means a certificate of environmental compatibility and
public need authorizing the construction of a major electric generating
facility issued by the board pursuant to this article.
6. "Fuel waste byproduct" shall mean waste or combination of wastes produced
as a byproduct of generating electricity from a major electric generating
facility in an amount which requires storage or disposal and, because of its
quantity, concentration, or physical, chemical or other characteristics, may
pose a substantial present or potential hazard to human health or the
environment.
7. "Nameplate" means a manufacturer's designation, generally as affixed to
the generator unit, which states the total output of such generating facility
as originally designed according to the manufacturer's original design
specifications.
8. "Public information coordinator" means an office created within the
department which shall assist and advise interested parties and members of
the public in participating in the siting and certification of major electric
generating facilities. The duties of the public information officer shall
include, but not be limited to: (a) implementing measures that assure full
and adequate public participation in matters before the board; (b) responding
to inquiries from the public for information on how to participate in matters
before the board; (c) assisting the public in requesting records relating to
matters before the board; (d) ensuring all interested persons are provided
with a reasonable opportunity to participate at public meetings relating to
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matters before the board; (e) ensuring that all necessary or required
documents are available for public access on the department's website within
any time periods specified within this article; and (f) any other duties as
may be prescribed by the board, after consultation with the department.
9. "Local parties" shall mean persons residing in a community who may be
affected by the proposed major electric generating facility who individually
or collectively seek intervenor funding pursuant to sections one hundred
sixty-three and one hundred sixty-four of this article.
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SECTION 161. GENERAL PROVISIONS RELATING TO THE BOARD.
1. The board, exclusive of the ad hoc members, shall have the power to adopt
the rules and regulations relating to the procedures to be used in certifying
facilities under the provisions of this article, including the suspension or
revocation thereof, and shall further have the power to seek delegation from
the federal government pursuant to federal regulatory programs applicable to
the siting of major electric facilities. The chairperson, after consultation
with the other members of the board exclusive of the ad hoc members, shall
have exclusive jurisdiction to issue declaratory rulings regarding the
applicability of, or any other question under, this article and rules and
regulations adopted hereunder and to grant requests for extensions or
amendments to or transfers of certificate terms and conditions, provided that
no party to the proceeding opposes such request for extensions or amendments
within thirty days of the filing of such request. Regulations adopted by the
board may provide for renewal applications for pollutant control permits to
be submitted to and acted upon by the department of environmental
conservation following commercial operation of a certified facility. The
board shall not accept any pre-application preliminary scoping statement or
application for a certificate, or exercise any powers or functions until the
department of environmental conservation has promulgated rules and
regulations required by paragraphs (f) and (g) of subdivision one of section
one hundred sixty-four of this article and section 19-0312 of the
environmental conservation law; provided however that the board shall be
authorized to adopt rules and regulations required by this article.
2. Upon receipt of a pre-application preliminary scoping statement under this
article, the chair shall promptly notify the governor, the president pro tem
of the senate, the speaker of the assembly, the chief executive officers
representing the municipality and the county in which the facility is
proposed to be located, and, if such facility is proposed to be located
within the city of new york, the mayor of the city of new york, as well as
the chairperson of the community board and the borough president representing
the area in which the facility is proposed to be located. One ad hoc member
shall be appointed by the president pro tem of the senate and one ad hoc
member shall be appointed by the speaker of the assembly from a list of
candidates submitted to them, in the following manner. If such facility is
proposed to be located outside of the city of new york, the chief executive
officer representing the municipality shall nominate four candidates and the
chief executive officer representing the county shall nominate four
candidates for consideration. If such facility is proposed to be located
outside of the city of new york and in a village located within a town, the
chief executive officer representing the town shall nominate four candidates,
the chief executive officer representing the county shall nominate four
candidates, and the chief executive officer representing the village shall
nominate four candidates for consideration. If such facility is proposed to
be located in the city of new york, the chair person of the community board,
the borough president, and the mayor of the city of new york shall each
nominate four candidates for consideration. Nominations shall be submitted
to the president pro tem of the senate and the speaker of the assembly within
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fifteen days of receipt of notification of the pre-application preliminary
scoping statement. In the event that the president pro tem of the senate
does not appoint one of the candidates within thirty days of such
nominations, the governor shall appoint the ad hoc member from the list of
candidates. In the event that the speaker of the assembly does not appoint
one of the candidates within thirty days of such nominations, the governor
shall appoint the ad hoc member from the list of candidates. In the event
that one or both of the ad hoc public members have not been appointed within
forty-five days, a majority of persons named to the board shall constitute a
quorum.
3. In addition to the requirements of the public officers law, no person
shall be eligible to be an appointee to the board who holds another state or
local office. No member of the board may retain or hold any official
relation to, or any securities of an electric utility corporation operating
in the state or proposed for operation in the state, any affiliate thereof or
any other company, firm, partnership, corporation, association or joint-stock
association that may appear before the board, nor shall either of the
appointees have been a director, officer or, within the previous ten years,
an employee thereof. The ad hoc appointees shall receive the sum of two
hundred dollars for each day in which they are actually engaged in the
performance of their duties pursuant to this article plus actual and
necessary expenses incurred by them in the performance of such duties. The
chairperson shall provide such personnel, hearing examiners, subordinates and
employees and such legal, technological, scientific, engineering and other
services and such meeting rooms, hearing rooms and other facilities as may be
required in proceedings under this article. The board under the direction of
the chairperson, may provide for its own representation and appearance in all
actions and proceedings involving any question under this article. The
department of environmental conservation shall provide associate hearing
examiners. Each member of the board other than the ad hoc appointees may
designate an alternate to serve instead of the member with respect to all
proceedings pursuant to this article. Such designation shall be in writing
and filed with the chairperson.
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SECTION 162. BOARD CERTIFICATE.
1. Following the promulgation of rules and regulations pursuant to paragraphs
(f) and (g) of subdivision one of section one hundred sixty-four of this
article, and section 19-0312 of the environmental conservation law, no
person shall commence the preparation of a site for, or begin the
construction of a major electric generating facility in the state, or
increase the capacity of an existing electric generating facility by more
than twenty-five thousand kilowatts without having first obtained a
certificate issued with respect to such facility by the board. Any such
facility with respect to which a certificate is issued shall not thereafter
be built, maintained or operated except in conformity with such certificate
and any terms, limitations or conditions contained therein, provided that
nothing herein shall exempt such facility from compliance with federal, state
and local laws and regulations except as otherwise provided in this
article. A certificate for a major electric generating facility, or an
increase in the capacity of an existing electric generating facility by more
than twenty-five thousand kilowatts, may be issued only pursuant to this
article.
2. A certificate may be transferred, subject to the approval of the board, to
a person who agrees to comply with the terms, limitations and conditions
contained therein.
3. A certificate issued under this article may be amended pursuant to this
section.
4. This article shall not apply:
(a) to a major electric generating facility over which any agency or
department of the federal government has exclusive siting jurisdiction,
or has jurisdiction concurrent with that of the state and has exercised
such jurisdiction to the exclusion of regulation of the facility by the
state;
(b) to normal repairs, replacements, modifications and improvements of a
major electric generating facility, whenever built, which do not
constitute a violation of any certificate issued under this article and
which do not result in an increase in capacity of the facility of more
than twenty-five thousand kilowatts;
(c) to a major electric generating facility
(i) constructed on lands dedicated to industrial uses,
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(ii) the output of which shall be used solely for industrial purposes,
on the premises, and
(iii) the generating capacity of which does not exceed two hundred
thousand kilowatts; or
(d) to a major electric generating facility if, on or before the effective
date of the rules and regulations promulgated pursuant to this article
and section 19-0312 of the environmental conservation law, an
application has been made for a license, permit, certificate, consent
or approval from any federal, state or local commission, agency, board
or regulatory body, in which application the location of the major
electric generating facility has been designated by the applicant; or
if the facility is under construction at such time.
5. Any person intending to construct a major electric generating facility
excluded from this article pursuant to paragraph (b), (c), or (d) of
subdivision four of this section may elect to become subject to the
provisions of this article by delivering notice of such election to the chair
of the board. This article shall thereafter apply to each electric
generating facility identified in such notice from the date of its receipt by
the chair of the board. For the purposes of this article, each such facility
shall be treated in the same manner as a major electric generating facility
as defined in this article.
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SECTION 163. PRE-APPLICATION PROCEDURES.
1. Any person proposing to submit an application for a certificate shall file
with the board a preliminary scoping statement containing a brief discussion,
on the basis of available information, of the following items:
(a) description of the proposed facility and its environmental setting;
(b) potential environmental and health impacts resulting from the
construction and operation of the proposed facility;
(c) proposed studies or program of studies designed to evaluate potential
environmental and health impacts, including, for proposed wind-powered
facilities, proposed studies during pre-construction activities and a
proposed period of post-construction operations monitoring for
potential impacts to avian and bat species;
(d) measures proposed to minimize environmental impacts; and
(e) where the proposed facility intends to use petroleum or other back-up
fuel for generating electricity, a discussion and/or study of the
sufficiency of the proposed on-site fuel storage capacity and supply;
and
(f) reasonable alternatives to the facility that may be required by
paragraph (i) of subdivision one of section one hundred sixty-four of
this article;
(g) identification of all other state and federal permits, certifications,
or other authorizations needed for construction, operation or
maintenance of the proposed facility; and
(h) any other information that may be relevant or that the board may
require.
2. Such person shall serve copies of the preliminary scoping statement on
persons enumerated in paragraph (a) of subdivision two of section one hundred
sixty-four of this article and provide notice of such statement as provided
in paragraph (b) of such subdivision in plain language, in english and in any
other language spoken as determined by the board by a significant portion of
the population in the community, that describes the proposed facility and its
location, the range of potential environmental and health impacts of each
pollutant, the application and review process, and a contact person, with
phone number and address, from whom information will be available as the
application proceeds.
3. To facilitate the pre-application and application processes and enable
citizens to participate in decisions that affect their health and safety and
the environment, the department and such person shall provide opportunities
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for citizen involvement. Such opportunities shall encourage consultation with
the public early in the pre-application and application processes, especially
before any parties enter a stipulation pursuant to subdivision five of this
section. The primary goals of the citizen participation process shall be to
facilitate communication between the applicant and interested or affected
persons. The process shall foster the active involvement of the interested
or affected persons.
4. (a) Each pre-application preliminary scoping statement shall be
accompanied by a fee in an amount equal to three hundred fifty dollars
for each thousand kilowatts of generating capacity of the subject
facility, but no more than two hundred thousand dollars, to be
deposited in the intervenor account established pursuant to section
ninety-seven-kkkk of the state finance law, to be disbursed at the
hearing examiner's direction to defray pre-application expenses
incurred by municipal and local parties (except for a municipality
submitting the pre-application scoping statement) for expert witness,
consultant, administrative and legal fees. If at any time subsequent
to the filing of the pre-application the pre-application is
substantially modified or revised, the board may require an additional
pre-application intervenor fee in an amount not to exceed twenty-five
thousand dollars. No fees made available under this paragraph shall be
used for judicial review or litigation. Any moneys remaining in the
intervenor account upon the submission of an application for a
certificate shall be made available to intervenors according to
paragraph (a) of subdivision six of section one hundred sixty-four of
this article.
(b) pre-application disbursements from the intervenor account shall be made
in accordance with rules and regulations established pursuant to
paragraph (b) of subdivision six of section one hundred sixty-four of
this article which rules shall provide for an expedited pre-application
disbursement schedule to assure early and meaningful public
involvement, with at least one-half of pre-application intervenor funds
becoming available through an application process to commence within
sixty days of the filing of a pre-application preliminary scoping
statement.
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5. After meeting the requirements of subdivisions one through three of this
section, and after pre-application intervenor funds have been allocated by
the pre-hearing examiner pursuant to paragraph (b) of subdivision four of
this section, such person may consult and seek agreement with any interested
person, including, but not limited to, the staff of the department, the
department of environmental conservation and the department of health, as
appropriate, as to any aspect of the preliminary scoping statement and any
study or program of studies made or to be made to support such application.
The staff of the department, the department of environmental conservation,
the department of health, the person proposing to file an application, and
any other interested person may enter into a stipulation setting forth an
agreement on any aspect of the preliminary scoping statement and the studies
or program of studies to be conducted. Any such person proposing to submit
an application for a certificate shall serve a copy of the proposed
stipulation upon all persons enumerated in paragraph (a) of subdivision two
of section one hundred sixty-four of this article, provide notice of such
stipulation to those persons identified in paragraph (b) of such subdivision,
and afford the public a reasonable opportunity to submit comments on the
stipulation before it is executed by the interested parties. Nothing in this
section, however, shall bar any party to a hearing on an application, other
than any party to a pre-application stipulation, from timely raising
objections to any aspect of the preliminary scoping statement and the
methodology and scope of any stipulated studies or program of studies in any
such agreement. In order to attempt to resolve any questions that may arise
as a result of such consultation, the department shall designate a hearing
examiner who shall oversee the pre-application process and mediate any issue
relating to any aspect of the preliminary scoping statement and the
methodology and scope of any such studies or programs of study. Upon
completion of the notice provisions provided in this section, such hearing
examiner shall, within sixty days of the filing of a preliminary scoping
statement, convene a meeting of interested parties in order to initiate the
stipulation process.
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SECTION 164. APPLICATION FOR A CERTIFICATE.
1. An applicant for a certificate shall file with the board an application,
in such form as the board may prescribe containing the following information
and materials:
(a) a description of the site and a description of the facility to be built
thereon; including available site information, maps and descriptions,
present and proposed development, source and volume of water required
for plant operation and cooling, anticipated emissions to air,
including but not limited to federal criteria pollutants and mercury,
anticipated discharges to water and groundwater, pollution control
equipment, and, as appropriate, geological, visual or other aesthetic,
ecological, tsunami, seismic, biological, water supply, population and
load center data;
(b) an evaluation of the expected environmental and health impacts and
safety implications of the facility, both during its construction and
its operation, including any studies, identifying the author and date
thereof, used in the evaluation, which identifies
(i) the anticipated gaseous, liquid and solid wastes to be produced
at the facility including their source, anticipated volumes,
composition and temperature, and such other attributes as the
board may specify and the probable level of noise during
construction and operation of the facility; (ii) the treatment
processes to reduce wastes to be released to the environment, the
manner of disposal for wastes retained and measures for noise
abatement;
(iii) the anticipated volumes of wastes to be released to the
environment under any operating condition of the facility,
including such meteorological, hydrological and other information
needed to support such estimates;
(iv) conceptual architectural and engineering plans indicating
compatibility of the facility with the environment;
(v) how the construction and operation of the facility, including
transportation and disposal of wastes would comply with
environmental health and safety standards, requirements,
regulations and rules under state and municipal laws, and a
statement why any variances or exceptions should be granted;
(vi) water withdrawals from and discharges to the watershed;
(vii) a description of the fuel interconnection and supply for the
project; and
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(viii) an electric interconnection study, consisting generally of a
design study and a system reliability impact study;
(c) such evidence as will enable the board and the commissioner of
environmental conservation to evaluate the facility's pollution control
systems and to reach a determination to issue therefor, subject to
appropriate conditions and limitations, permits pursuant to federal
recognition of state authority in accordance with the federal clean
water act, the federal clean air act and the federal resource
conservation and recovery act, and permits pursuant to section 15-1503
and article nineteen of the environmental conservation law;
(d) where the proposed facility intends to use petroleum or other back-up
fuel for generating electricity, evidence and an evaluation on the
adequacy of the facility's on-site back-up fuel storage and supply;
(e) a plan for security of the proposed facility during construction and
operation of such facility and the measures to be taken to ensure the
safety and security of the local community, including contingency,
emergency response and evacuation control, to be reviewed by the board
in consultation with the new york state division of homeland security
and emergency services and in cities with a population over one
million, such plan shall also be reviewed by the local office of
emergency management;
(f) in accordance with rules and regulations that shall be promulgated by
the department of environmental conservation for the analysis of
environmental justice issues, including the requirements of paragraphs
(g) and (h) of subdivision one of this section, an evaluation of
significant and adverse disproportionate environmental impacts of the
proposed facility, if any, resulting from its construction and
operation, including any studies identifying the author and dates
thereof, which were used in the evaluation;
(g) a cumulative impact analysis of air quality within a half-mile of the
facility, or other radius as determined by standards established by
department of environmental conservation regulations, that considers
available data associated with projected emissions of air pollutants,
including but not limited to federal criteria pollutants and mercury,
from sources, including, but not limited to, the facility, facilities
that have been proposed under this article and have submitted an
application determined to be in compliance by the board, existing
sources, and sources permitted but not yet constructed that were
permitted sixty or more days prior to the filing of the application
under title v of the clean air act, provided that such analysis and
standards shall be in accordance with rules and regulations that shall
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be promulgated by the department of environmental conservation pursuant
to this paragraph;
(h) a comprehensive demographic, economic and physical description of the
community within which the facility is located, within a half-mile
radius of the location of the proposed facility, compared and
contrasted with the county in which the facility is proposed and with
adjacent communities within such county, including reasonably available
data on population, racial and ethnic characteristics, income levels,
open space, and public health data, including available department of
public health data on incidents of asthma and cancer provided that
such description and comparison shall be in accordance with rules and
regulations promulgated pursuant to paragraph (f) of this subdivision;
(i) a description and evaluation of reasonable and available alternate
locations to the proposed facility, if any; a description of the
comparative advantages and disadvantages as appropriate; and a
statement of the reasons why the primary proposed location and source,
as appropriate, is best suited, among the alternatives considered, to
promote public health and welfare, including the recreational and other
concurrent uses which the site may serve, provided that the information
required pursuant to this paragraph shall be no more extensive than
required under article eight of the environmental conservation law;
(j) for proposed wind-powered facilities, the expected environmental impacts
of the facility on avian and bat species based on pre-construction
studies conducted pursuant to paragraph (c) of subdivision one of
section one hundred sixty-three of this article; and a proposed plan to
avoid or, where unavoidable, minimize and mitigate any such impacts
during construction and operation of the facility based on existing
information and results of post-construction monitoring proposed in the
plan;
(k) an analysis of the potential impact that the proposed facility will have
on the wholesale generation markets, both generally and for the
location-based market in which the facility is proposed, as well as the
potential impact of the proposed facility on fuel costs;
(l) a statement demonstrating that the facility is reasonably consistent
with the most recent state energy plan, including, but not limited to,
impacts on fuel diversity, regional requirements for capacity, electric
transmission and fuel delivery constraints and other issues as
appropriate, including the comparative advantages and disadvantages of
reasonable and available alternate locations or properties identified
for power plant construction, and a statement of the reasons why the
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proposed location and source is best suited, among the alternatives
identified, to promote public health and welfare;
(m) such other information as the applicant may consider relevant or as may
be required by the board.
Copies of the application, including the required information, shall be filed
with the board and shall be available for public inspection; and
2. Each application shall be accompanied by proof of service, in such manner
as the board shall prescribe, of:
(a) a copy of such application on
(i) each municipality in which any portion of such facility is to be
located as proposed or in any alternative location listed. Such
copy to a municipality shall be addressed to the chief executive
officer thereof and shall specify the date on or about which the
application is to be filed;
(ii) each member of the board;
(iii) the department of agriculture and markets;
(iv) the secretary of state;
(v) the attorney general;
(vi) the department of transportation;
(vii) the office of parks, recreation and historic preservation;
(viii) a library serving the district of each member of the state
legislature in whose district any portion of the facility is to
be located as proposed or in any alternative location listed;
(ix) in the event that such facility or any portion thereof as
proposed or in any alternative location listed is located within
the adirondack park, as defined in subdivision one of section 9-
0101 of the environmental conservation law, the adirondack park
agency; and
(x) the public information coordinator for placement on the website of
the department; and
(b) a notice of such application on
(i) persons residing in municipalities entitled to receive a copy of
the application under subparagraph (i) of paragraph (a) of this
subdivision. Such notice shall be given by the publication of a
summary of the application and the date on or about which it will
be filed, to be published under regulations to be promulgated by
the board, in such form and in such newspaper or newspapers,
including local community and general circulation newspapers, as
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will serve substantially to inform the public of such
application, in plain language, in english and in any other
language spoken as determined by the board by a significant
portion of the population in the community, that describes the
proposed facility and its location, the range of potential
environmental and health impacts of each pollutant, the
application and review process, and a contact person, with phone
number and address, from whom information will be available as
the application proceeds;
(ii) each member of the state legislature in whose district any
portion of the facility is to be located as proposed or in any
alternative location listed; and
(iii) persons who have filed a statement with the secretary within the
past twelve months that they wish to receive all such notices
concerning facilities in the area in which the facility is to be
located as proposed or in any alternative location listed.
3. Inadvertent failure of service on any of the municipalities, persons,
agencies, bodies or commissions named in subdivision two of this section
shall not be jurisdictional and may be cured pursuant to regulations of the
board designed to afford such persons adequate notice to enable them to
participate effectively in the proceeding. In addition, the board may, after
filing, require the applicant to serve notice of the application or copies
thereof or both upon such other persons and file proof thereof as the board
may deem appropriate.
4. The board shall prescribe the form and content of an application for an
amendment of a certificate to be issued pursuant to this article. Notice of
such an application shall be given as set forth in subdivision two of this
section.
5. If a reasonable and available alternate location not listed in the
application is proposed in the certification proceeding, notice of such
proposed alternative shall be given as set forth in subdivision two of this
section.
6. (a) Each application shall be accompanied by a fee in an amount
(i) equal to one thousand dollars for each thousand kilowatts of
capacity, but no more than four hundred thousand dollars,
(ii) and for facilities that will require storage or disposal of
fuel waste byproduct, an additional fee of five hundred dollars
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for each thousand kilowatt of capacity, but no more than fifty
thousand dollars shall be deposited in the intervenor account,
established pursuant to section ninety-seven-kkkk of the state
finance law, to be disbursed at the board's direction, to defray
expenses incurred by municipal and other local parties to the
proceeding (except a municipality which is the applicant) for
expert witness, consultant, administrative and legal fees,
provided, however, such expenses shall not be available for
judicial review or litigation.
If at any time subsequent to the filing of the application, the application
is amended in a manner that warrants substantial additional scrutiny, the
board may require an additional intervenor fee in an amount not to exceed
seventy-five thousand dollars. The board shall provide for notices, for
municipal and other local parties, in all appropriate languages. Any moneys
remaining in the intervenor account after the board's jurisdiction over an
application has ceased shall be returned to the applicant.
(b) notwithstanding any other provision of law to the contrary, the board
shall provide by rules and regulations for the management of the intervenor
account and for disbursements from the account, which rules and regulations
shall be consistent with the purpose of this section to make available to
municipal parties at least one-half of the amount of the intervenor account
and for uses specified in paragraph (a) of this subdivision. In addition, the
board shall provide other local parties up to one-half of the amount of the
intervenor account, provided, however, that the board shall assure that the
purposes for which moneys in the intervenor account will be expended will
contribute to an informed decision as to the appropriateness of the site and
facility and are made available on an equitable basis in a manner which
facilitates broad public participation.
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SECTION 165. HEARING SCHEDULE.
1. After the receipt of an application filed pursuant to section one hundred
sixty-four of this article, the chair of the board shall, within sixty days
of such receipt, determine whether the application complies with such section
and upon finding that the application so complies, fix a date for the
commencement of a public hearing. The department of environmental
conservation shall advise the board within said sixty day period whether an
application filed pursuant to paragraph (b) of subdivision four of this
section contains sufficient information meeting the requirements specified
under subparagraphs (i) through (iv) of such paragraph to qualify for the
expedited procedure provided for in such paragraph. No later than the date
of the determination that an application complies with section one hundred
sixty-four of this article, the department of environmental conservation
shall initiate its review pursuant to federally delegated or approved
environmental permitting authority. The chair of the board may require the
filing of any additional information needed to supplement an application
before or during the hearings.
2. Within a reasonable time after the date has been fixed by the chair for
commencement of a public hearing, the presiding examiner shall hold a
prehearing conference to expedite the orderly conduct and disposition of the
hearing, to specify the issues, to obtain stipulations as to matters not
disputed, and to deal with such other matters as the presiding examiner may
deem proper. Thereafter, the presiding examiner shall issue an order
identifying the issues to be addressed by the parties provided, however,
that no such order shall preclude consideration of additional issues or
requests for additional submissions, documentation or testimony at a hearing
which warrant consideration in order to develop an adequate record as
determined by an order of the board. The presiding examiner shall be
permitted a reasonable time to respond to any and all interlocutory motions
and appeals, but in no case shall such time extend beyond forty-five days.
3. All parties shall be prepared to proceed in an expeditious manner at the
hearing so that it may proceed regularly until completion, except that
hearings shall be of sufficient duration to provide adequate opportunity to
hear direct evidence and rebuttal evidence from residents of the area
affected by the proposed major electric generating facility. To the extent
practicable, the place of the hearing shall be designated by the presiding
examiner at a location within two miles of the proposed location of the
facility.
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4. (a) except as provided in paragraph (b) of this subdivision, proceedings
on an application shall be completed in all respects in a manner
consistent with federally delegated or approved environmental
permitting authority, including a final decision by the board, within
twelve months from the date of a determination by the chair that an
application complies with section one hundred sixty-four of this
article; provided, however, the board may extend the deadline in
extraordinary circumstances by no more than six months in order to give
consideration to specific issues necessary to develop an adequate
record. The board must render a final decision on the application by
the aforementioned deadlines unless such deadlines are waived by the
applicant. If, at any time subsequent to the commencement of the
hearing, there is a material and substantial amendment to the
application, the deadlines may be extended by no more than six months,
unless such deadline is waived by the applicant, to consider such
amendment.
(b) proceedings on an application by an owner of an existing major
electric generating facility to modify such existing facility or site a
new major electric generating facility adjacent or contiguous to such
existing facility, shall be completed in all respects in a manner
consistent with federally delegated or approved environmental
permitting authority, including a final decision by the board, within
six months from the date of a determination by the chair that such
application complies with section one hundred sixty-four of this
article, whenever such application demonstrates that the operation of
the modified facility, or of the existing facility and new facility in
combination, would result in:
(i) a decrease in the rate of emission of each of the relevant siting
air contaminants. For facilities that are partially replaced or
modified, the percentage decrease shall be calculated by
comparing the potential to emit of each such contaminant of the
existing unit that is to be modified or replaced as of the date
of application under this article to the future potential to emit
each such contaminant of the modified or replacement unit as
proposed in the application. For facilities that are sited
physically adjacent or contiguous to an existing facility, the
percentage decrease shall be calculated by comparing the
potential to emit of each such contaminant of the existing
facility as of the date of application under this article, to the
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future potential to emit each such contaminant of the existing
and new facility combined as proposed in the application;
(ii) a reduction of the total annual emissions of each of the relevant
siting air contaminants emitted by the existing facility. The
percent age reduction shall be calculated by comparing (on a
pounds-per-year basis) the past actual emissions of each of the
relevant siting air contaminants emitted by the existing facility
averaged over the three years preceding the date of application
under this article, to the annualized potential to emit each such
contaminant of the modified facility or of the combined existing
and new facility as proposed in the application;
(iii) introduction of a new cooling water intake structure where such
structure withdraws water at a rate equal to or less than closedcycle
cooling; and
(iv) a lower heat rate than the heat rate of the existing facility.
The applicant shall supply the details of the analysis in the application and
such supporting information, as may be requested by the board or, in the
exercise of federally delegated or approved environmental permitting
authority, the department of environmental conservation, necessary to show
compliance with the requirements of subparagraphs (i) through (iv) of this
paragraph. The board may extend the deadline in extraordinary circumstances
by no more than three months in order to give consideration to specific
issues necessary to develop an adequate record. The board shall render a
final decision on the application by the aforementioned deadlines unless such
deadlines are waived by the applicant. If, at any time subsequent to the
commencement of the hearing, there is a material and substantial amendment to
the application, the deadlines may be extended by no more than three months,
unless such deadline is waived by the applicant, to consider such amendment.
5. If an application for an amendment of a certificate proposing a change in
the facility is likely to result in any material increase in any
environmental impact of the facility or a substantial change in the location
of all or a portion of such facility, a hearing shall be held in the same
manner as a hearing on an application for a certificate. The board shall
promulgate rules, regulations and standards under which it shall determine
whether hearings are required under this subdivision and shall make such
determinations.
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SECTION 166. PARTIES TO A CERTIFICATION PROCEEDING.
1. The parties to the certification proceedings shall include:
(a) the applicant;
(b) the department of environmental conservation;
(c) the department of economic development;
(d) the department of health;
(e) the department of agriculture and markets;
(f) the new york state energy research and development authority;
(g) the department of state;
(h) the office of parks, recreation and historic preservation;
(i) where the facility or any portion thereof or of any alternate is to be
located within the adirondack park, as defined in subdivision one of
section 9-0101 of the environmental conservation law, the adirondack
park agency;
(j) a municipality entitled to receive a copy of the application under
paragraph (a) of subdivision two of section one hundred sixty-four of
this article, if it has filed with the board a notice of intent to be a
party, within forty-five days after the date given in the published
notice as the date for the filing of the application; any municipality
entitled to be a party herein and seeking to enforce any local
ordinance, law, resolution or other action or regulation otherwise
applicable shall present evidence in support thereof or shall be barred
from the enforcement thereof;
(k) any individual resident in a municipality entitled to receive a copy of
the application under paragraph (a) of subdivision two of section one
hundred sixty-four of this article if he or she has filed with the
board a notice of intent to be a party, within forty-five days after
the date given in the published notice as the date for filing of the
application;
(l) any non-profit corporation or association, formed in whole or in part to
promote conservation or natural beauty, to protect the environment,
personal health or other biological values, to preserve historical
sites, to promote consumer interests, to represent commercial and
industrial groups or to promote the orderly development of any area in
which the facility is to be located, if it has filed with the board a
notice of intent to become a party, within forty-five days after the
date given in the published notice as the date for filing of the
application;
(m) any other municipality or resident of such municipality located within a
five mile radius of such proposed facility, if it or the resident has
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filed with the board a notice of intent to become a party, within
forty-five days after the date given in the published notice as the
date for filing of the application;
(n) any other municipality or resident of such municipality which the board
in its discretion finds to have an interest in the proceeding because
of the potential environmental effects on such municipality or person,
if the municipality or person has filed with the board a notice of
intent to become a party, within forty-five days after the date given
in the published notice as the date for filing of the application,
together with an explanation of the potential environmental effects on
such municipality or person; and
(o) such other persons or entities as the board may at any time deem
appropriate, who may participate in all subsequent stages of the
proceeding.
2. The department shall designate members of its staff who shall participate
as a party in proceedings under this article.
3. Any person may make a limited appearance in the proceeding by filing a
statement of his or her intent to limit his or her appearance in writing at
any time prior to the commencement of the hearing. All papers and matters
filed by a person making a limited appearance shall become part of the
record. No person making a limited appearance shall be a party or shall have
the right to present testimony or cross-examine witnesses or parties.
4. The presiding officer may for good cause shown, permit a municipality or
other person entitled to become a party under subdivision one of this
section, but which has failed to file the requisite notice of intent within
the time required, to become a party, and to participate in all subsequent
stages of the proceeding.
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SECTION 167. CONDUCT OF HEARING.
1. (a) The hearing shall be conducted in an expeditious manner by a presiding
examiner appointed by the department. An associate hearing examiner shall be
appointed by the department of environmental conservation prior to the date
set for commencement of the public hearing. The associate examiner shall
attend all hearings as scheduled by the presiding examiner and shall assist
the presiding examiner in inquiring into and calling for testimony concerning
relevant and material matters. The conclusions and recommendations of the
associate examiner shall be incorporated in the recommended decision of the
presiding examiner, unless the associate examiner prefers to submit a
separate report of dissenting or concurring conclusions and recommendations.
In the event that the commissioner of environmental conservation issues
permits pursuant to federally delegated or approved authority under the
federal clean water act, the federal clean air act and the federal resource
conservation and recovery act, or section 15-1503 and article nineteen of the
environmental conservation law, the record in the proceeding and the
associate examiner's conclusions and recommendations shall, insofar as is
consistent with federally delegated or approved environmental permitting
authority, provide the basis for the decision of the commissioner of
environmental conservation whether or not to issue such permits.
(b) the testimony presented at a hearing may be presented in writing. Oral
testimony may be presented at any public statement hearing conducted by the
board for the taking of unsworn statements. The board may require any state
agency to provide expert testimony on specific subjects where its personnel
have the requisite expertise and such testimony is considered necessary to
the development of an adequate record. All testimony and information
presented by the applicant, any state agency or other party shall be subject
to discovery and cross-examination. A record shall be made of the hearing
and of all testimony taken and the cross-examinations thereon. The rules of
evidence applicable to proceedings before a court shall not apply. The
presiding examiner may provide for the consolidation of the representation of
parties, other than governmental bodies or agencies, having similar
interests. In the case of such a consolidation, the right to counsel of its
own choosing shall be preserved to each party to the proceeding provided that
the consolidated group may be required to be heard through such reasonable
number of counsel as the presiding examiner shall determine. Appropriate
regulations shall be issued by the board to provide for prehearing discovery
procedures by parties to a proceeding, consolidation of the representation of
parties, the exclusion of irrelevant, repetitive, redundant or immaterial
evidence, and the review of rulings by presiding examiners.
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2. A copy of the record including, but not limited to, testimony, briefs and
hearing testimony shall be made available by the board within thirty days of
the close of the evidentiary record for examination by the public, and shall
be made available on the department's website.
3. The chair of the board may enter into an agreement with an agency or
department of the united states having concurrent jurisdiction over all or
part of the location, construction, or operation of a major electric
generating facility subject to this article with respect to providing for
joint procedures and a joint hearing of common issues on a combined record,
provided that such agreement shall not diminish the rights accorded to any
party under this article.
4. The presiding examiner shall allow testimony to be received on reasonable
and available alternate locations for the proposed facility, alternate energy
supply sources and demand-reducing measures, provided notice of the intent to
submit such testimony shall be given within such period as the board shall
prescribe by regulation, which period shall be not less than thirty nor more
than sixty days after the commencement of the hearing. Nevertheless, in its
discretion, the board may thereafter cause to be considered other reasonable
and available locations for the proposed facility, alternate energy supply
sources and, where appropriate, demand-reducing measures.
5. Notwithstanding the provisions of subdivision four of this section, the
board may make a prompt determination on the sufficiency of the applicant's
consideration and evaluation of reasonable alternatives to its proposed type
of major electric generating facility and its proposed location for that
facility, as required pursuant to paragraph (i) of subdivision one of section
one hundred sixty-four of this article, before resolution of other issues
pertinent to a final determination on the application; provided, however,
that all interested parties have reasonable opportunity to question and
present evidence in support of or against the merits of the applicant's
consideration and evaluation of such alternatives, as required pursuant to
paragraph (i) of subdivision one of section one hundred sixty-four of this
article, so that the board is able to decide, in the first instance, whether
the applicant's proposal is preferable to alternatives.
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SECTION 168. BOARD DECISIONS.
1. The board shall make the final decision on an application under this
article for a certificate or amendment thereof, upon the record made before
the presiding examiner, including any briefs or exceptions to any recommended
decision of such examiner or to any report of the associate examiner, and
after hearing such oral argument as the board shall determine. Except for
good cause shown to the satisfaction of the board, a determination under
subdivision five of section one hundred sixty-seven of this article that the
applicant's proposal is preferable to alternatives shall be final. Such a
determination shall be subject to rehearing and review only after the final
decision on an application is rendered.
2. The board shall not grant a certificate or amendment thereof for the
construction or operation of a facility, either as proposed or as modified
by the board, without making explicit findings regarding the nature of the
probable environmental impacts of the construction and operation of the
facility, including the cumulative environmental impacts of the construction
and operation of related facilities such as electric lines, gas lines, water
supply lines, waste water or other sewage treatment facilities,
communications and relay facilities, access roads, rail facilities, or steam
lines, including impacts on:
(a) ecology, air, ground and surface water, wildlife, and habitat;
(b) public health and safety;
(c) cultural, historic, and recreational resources, including aesthetics and
scenic values; and
(d) transportation, communication, utilities and other infrastructure.
Such findings shall include the cumulative impact of emissions on the local
community including whether the construction and operation of the facility
results in a significant and adverse disproportionate environmental impact,
in accordance with regulations promulgated pursuant to paragraph (f) of
subdivision one of section one hundred sixty-four of this article by the
department of environmental conservation regarding environmental justice
issues.
3. The board may not grant a certificate for the construction or operation of
a major electric generating facility, either as proposed or as modified by
the board, unless the board determines that:
(a) the facility is a beneficial addition to or substitution for the
electric generation capacity of the state; and
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(b) the construction and operation of the facility will serve the public
interest; and
(c) the adverse environmental effects of the construction and operation of
the facility will be minimized or avoided to the maximum extent
practicable; and
(d) if the board finds that the facility results in or contributes to a
significant and adverse disproportionate environmental impact in the
community in which the facility would be located, the applicant will
avoid, offset or minimize the impacts caused by the facility upon the
local community for the duration that the certificate is issued to the
maximum extent practicable using verifiable measures; and
(e) the facility is designed to operate in compliance with applicable state
and local laws and regulations issued thereunder concerning, among
other matters, the environment, public health and safety, all of which
shall be binding upon the applicant, except that the board may elect
not to apply, in whole or in part, any local ordinance, law, resolution
or other action or any regulation issued thereunder or any local
standard or requirement, including, but not limited to, those relating
to the interconnection to and use of water, electric, sewer,
telecommunication, fuel and steam lines in public rights of way, which
would be otherwise applicable if it finds that, as applied to the
proposed facility, such is unreasonably burdensome in view of the
existing technology or the needs of or costs to ratepayers whether
located inside or outside of such municipality. The board shall
provide the municipality an opportunity to present evidence in support
of such ordinance, law, resolution, regulation or other local action
issued thereunder.
4. In making the determinations required in subdivision three of this
section, the board shall consider:
(a) the state of available technology;
(b) the nature and economics of reasonable alternatives;
(c) environmental impacts found pursuant to subdivision two of this section;
(d) the impact of construction and operation of related facilities, such as
electric lines, gas lines, water supply lines, waste water or other
sewage treatment facilities, communications and relay facilities,
access roads, rail facilities, or steam lines;
(e) the consistency of the construction and operation of the facility with
the energy policies and long-range energy planning objectives and
strategies contained in the most recent state energy plan;
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(f) the impact on community character and whether the facility would affect
communities that are disproportionately impacted by cumulative levels
of pollutants; and
(g) such additional social, economic, visual or other aesthetic,
environmental and other considerations deemed pertinent by the board.
5. The department or the commission shall monitor, enforce and administer
compliance with any terms and conditions set forth in the board's order.
6. A copy of the board's decision and opinion shall be served on each party
electronically or by mail.
7. Following any rehearing and any judicial review of the board's decision,
the board's jurisdiction over an application shall cease, provided, however,
that the permanent board shall retain jurisdiction with respect to the
amendment, suspension or revocation of a certificate.
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SECTION 169. OPINION TO BE ISSUED WITH DECISION.
In rendering a decision on an application for a certificate, the board shall
issue an opinion stating its reasons for the action taken. If the board has
found that any local ordinance, law, resolution, regulation or other action
issued thereunder or any other local standard or requirement which would be
otherwise applicable is unreasonably burdensome pursuant to paragraph (e) of
subdivision three of section one hundred sixty-eight of this article, it
shall state in its opinion the reasons therefor.
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SECTION 170. REHEARING AND JUDICIAL REVIEW.
1. Any party aggrieved by the board's decision denying or granting a
certificate may apply to the board for a rehearing within thirty days after
issuance of the aggrieving decision. Any such application shall be
considered and decided by the board and any rehearing shall be completed and
a decision rendered thereon within ninety days of the expiration of the
period for filing rehearing petitions, provided however that the board may
extend the deadline by no more than ninety days where a rehearing is required
if necessary to develop an adequate record. The applicant may waive such
deadline. Thereafter such a party may obtain judicial review of such
decision as provided in this section. A judicial proceeding shall be brought
in the appellate division of the supreme court of the state of new york in
the judicial department embracing the county wherein the facility is to be
located or, if the application is denied, the county wherein the applicant
has proposed to locate the facility. Such proceeding shall be initiated by
the filing of a petition in such court within thirty days after the issuance
of a final decision by the board upon the application for rehearing together
with proof of service of a demand on the board to file with said court a copy
of a written transcript of the record of the proceeding and a copy of the
board's decision and opinion. The board's copy of said transcript, decision
and opinion, shall be available at all reasonable times to all parties for
examination without cost. Upon receipt of such petition and demand the board
shall forthwith deliver to the court a copy of the record and a copy of the
board's decision and opinion. Thereupon, the court shall have jurisdiction
of the proceeding and shall have the power to grant such relief as it deems
just and proper, and to make and enter an order enforcing, modifying and
enforcing as so modified, remanding for further specific evidence or findings
or setting aside in whole or in part such decision. The appeal shall be
heard on the record, without requirement of reproduction, and upon briefs to
the court. No objection that has not been urged by the party in his or her
application for rehearing before the board shall be considered by the court,
unless the failure or neglect to urge such objection shall be excused because
of extraordinary circumstances. The findings of fact on which such decision
is based shall be conclusive if supported by substantial evidence on the
record considered as a whole and matters of judicial notice set forth in the
opinion. The jurisdiction of the appellate division of the supreme court
shall be exclusive and its judgment and order shall be final, subject to
review by the court of appeals in the same manner and form and with the same
effect as provided for appeals in a special proceeding. All such proceedings
shall be heard and determined by the appellate division of the supreme court
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and by the court of appeals as expeditiously as possible and with lawful
precedence over all other matters.
2. The grounds for and scope of review of the court shall be limited to
whether the decision and opinion of the board are:
(a) in conformity with the constitution, laws and regulations of the state
and the united states;
(b) supported by substantial evidence in the record and matters of judicial
notice properly considered and applied in the opinion;
(c) within the board's statutory jurisdiction or authority;
(d) made in accordance with procedures set forth in this article or
established by rule or regulation pursuant to this article;
(e) arbitrary, capricious or an abuse of discretion; or
(f) made pursuant to a process that afforded meaningful involvement of
citizens affected by the facility regardless of age, race, color,
national origin and income.
3. Except as herein provided article seventy-eight of the civil practice law
and rules shall apply to appeals taken hereunder.
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SECTION 171. JURISDICTION OF COURTS.
Except as expressly set forth in section one hundred seventy of this article
and except for review by the court of appeals of a decision of the appellate
division of the supreme court as provided for therein, no court of this state
shall have jurisdiction to hear or determine any matter, case or controversy
concerning any matter which was or could have been determined in a proceeding
under this article or to stop or delay the construction or operation of a
major electric generating facility except to enforce compliance with this
article or the terms and conditions issued thereunder.
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SECTION 172. POWERS OF MUNICIPALITIES AND STATE AGENCIES.
1. Notwithstanding any other provision of law, no state agency, municipality
or any agency thereof may, except as expressly authorized under this article
by the board, require any approval, consent, permit, certificate or other
condition for the construction or operation of a major electric generating
facility with respect to which an application for a certificate hereunder has
been filed, including pursuant to paragraph (e) of subdivision three of
section one hundred sixty-eight of this article, any such approval, consent,
permit, certificate or condition relating to the interconnection to or use of
water, electric, sewer, telecommunication, fuel and steam lines in public
rights of way, provided that this article shall not impair or abrogate any
federal, state or local labor laws or any otherwise applicable state law for
the protection of employees engaged in the construction and operation of such
facility; provided, however, that in the case of a municipality or an agency
thereof, such municipality has received notice of the filing of the
application there for;
and provided further, however, that the department of environmental
conservation shall be the permitting agency for permits issued pursuant to
federally delegated or approved authority under the federal clean water act,
the federal clean air act and the federal resource conservation and recovery
act. In issuing such permits, the commissioner of environmental conservation
shall follow procedures established in this article to the extent that they
are consistent with federally delegated or approved environmental permitting
authority. The commissioner of environmental conservation shall provide such
permits to the board prior to its determination whether or not to issue a
certificate. The issuance by the department of environmental conservation of
such permits shall in no way interfere with the required review by the board
of the anticipated environmental and health impacts relating to the
construction and operation of the facility as proposed, or its authority to
deny an application for certification pursuant to section one hundred sixtyeight
of this article, and, in the event of such a denial, any such permits
shall be deemed null and void.
2. The adirondack park agency shall not hold public hearings for a major
electric generating facility with respect to which an application hereunder
is filed, provided that such agency has received notice of the filing of such
application.
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SECTION 173. APPLICABILITY TO PUBLIC AUTHORITIES.
The power authority of the state of new york, the green island power
authority and the long island power authority shall be subject to all
provisions of this article for major electric generating facilities which any
such authority builds or causes to be built. For generating facilities which
are not major electric generating facilities, none of the above named
authorities shall be permitted to serve as lead agency for purposes of
environmental review pursuant to the provisions of the environmental
conservation law.
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OTHER PARTS OF THE ENABLING LEGISLATION
S 13. The opening paragraph and paragraph (b) of subdivision 5 of section 8-
0111 of the environmental conservation law, as added by chapter 612 of the
laws of 1975, are amended to read as follows:
The requirements of this article shall not apply to:
(b) Actions subject to the provisions requiring a certificate of
environmental compatibility and public need in articles seven, ten and the
former article eight of the public service law; or
S 14. Section 17-0823 of the environmental conservation law, as added by
chapter 801 of the laws of 1973, is amended to read as follows:
S 17-0823. Power plant siting.
In the case of a major steam electric generating facility, as defined in
section one hundred forty of the public service law, for the construction or
operation of which a certificate is required under the former article eight
of the public service law, or a major electric generating facility as defined
in section one hundred sixty of the public service law, for the construction
or operation of which a certificate is required under article ten of the
public service law, such certificate shall be deemed a permit under this
section if issued by the state board on electric generation siting and the
environment pursuant to federally delegated or approved environmental permit
authority. Nothing herein shall limit the authority of the department of
health and the department to monitor the environmental and health impacts
resulting from the operation of such major steam electric generating facility
or major electric generating facility and to enforce applicable provisions of
the public health law and this article and the terms and conditions of the
certificate governing the environmental and health impacts resulting from
such operation. In such case all powers, duties, obligations and privileges
conferred upon the department by this article shall devolve upon the new york
state board on electric generation siting and the environment. In
considering the granting of permits, such board shall apply the provisions of
this article and the act.
S 15. Paragraph j of subdivision 2 of section 19-0305 of the environmental
conservation law, as amended by chapter 525 of the laws of 1981, is amended
to read as follows:
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j. Consider for approval or disapproval applications for permits and
certificates including plans or specifications for air contamination sources
and air cleaning installations or any part thereof submitted consistent with
the rules of the department, and inspect the installation for compliance with
the plans or specifications; provided that in the case of a major steam
electric generating facility, as defined in former section one hundred forty
of the public service law, for which a certificate is required pursuant to
the former article eight of the public service law, or a major electric
generating facility as defined in section one hundred sixty of the public
service law, for which a certificate is required pursuant to article ten of
the public service law, such approval functions may be performed by the state
board on electric generation siting and the environment, as defined in the
public service law, pursuant to federally delegated or approved environmental
permitting authority, and such inspection functions shall be performed by the
department. Nothing herein shall limit the authority of the department of
health and the department to monitor the environmental and health impacts
resulting from the operation of such major steam electric generating facility
and to enforce applicable provisions of the public health law and this
chapter and the terms and conditions of the certificate governing the
environmental and health impacts resulting from such operation.
S 16. Paragraph (e) of subdivision 3 of section 49-0307 of the environmental
conservation law, as added by chapter 292 of the laws of 1984, is amended to
read as follows:
(e) where land subject to a conservation easement or an interest in such land
is required for a major utility transmission facility which has received a
certificate of environmental compatibility and public need pursuant to
article seven of the public service law or is required for a major steam
electric generating facility which has received a certificate of
environmental compatibility and public need pursuant to the former article
eight of the public service law, or a major electric generating facility or
repowering project which has received a certificate of environmental
compatibility and public need pursuant to article ten of the public service
law, upon the filing of such certificate in a manner prescribed for recording
a conveyance of real property pursuant to section two hundred ninety-one of
the real property law or any other applicable provision of law, provided that
such certificate contains a finding that the public interest in the
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conservation and protection of the natural resources, open spaces and scenic
beauty of the adirondack or catskill parks has been considered.
S 17. Section 1014 of the public authorities law, as amended by chapter 446
of the laws of 1972, is amended to read as follows:
S 1014. Public service law not applicable to authority; inconsistent
provisions in other acts superseded. The rates, services and practices
relating to the generation, transmission, distribution and sale by the
authority, of power to be generated from the projects authorized by this
title shall not be subject to the provisions of the public service law nor to
regulation by, nor the jurisdiction of the department of public service.
except to the extent article seven of the public service law applies to the
siting and operation of a major utility transmission facility as defined
therein, and article ten of the public service law applies to the siting of a
major electric generating facility as defined therein, and except to the
extent section eighteen-a of the public service law provides for assessment
of the authority for certain costs relating thereto, the provisions of the
public service law and of the environmental conservation law and every other
law relating to the department of public service or the public service
commission or to the environmental conservation department or to the
functions, powers or duties assigned to the division of water power and
control by chapter six hundred nineteen of the laws of nineteen hundred
twenty-six, shall so far as is necessary to make this title effective in
accordance with its terms and purposes be deemed to be superseded, and
wherever any provision of law shall be found in conflict with the provisions
of this title or inconsistent with the purposes thereof, it shall be deemed
to be superseded, modified or repealed as the case may require.
S 18. Paragraph c of subdivision 8 of section 1020-c of the public
authorities law, as amended by chapter 7 of the laws of 1987, is amended to
read as follows:
c. Article seven of the public service law shall apply to the authority's
siting and operation of a major transmission facility as therein defined and
article ten of the public service law shall apply to the authority's siting
and operation of a major electric generating facility as therein defined.
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S 19. Section 1020-s of the public authorities law, as added by chapter 517
of the laws of 1986, is amended to read as follows:
S 1020-s. Public service law generally not applicable to authority;
inconsistent provisions in certain other acts superseded.
1. The rates, services and practices relating to the electricity generated by
facilities owned or operated by the authority shall not be subject to the
provisions of the public service law or to regulation by, or the jurisdiction
of, the public service commission, except to the extent (a) article seven of
the public service law applies to the siting and operation of a major utility
transmission facility as defined therein, (b) article ten of such law applies
to the siting of a generating facility as defined therein, and (c) section
eighteen-a of such law provides for assessment for certain costs, property or
operations.
2. The issuance by the authority of its obligations to acquire the securities
or assets of LILCO shall be deemed not to be "state action" within the
meaning of the state environmental quality review act, and such act shall not
be applicable in any respect to such acquisition or any action of the
authority to effect such acquisition.
S 20. The state finance law is amended by adding a new section 97-kkkk to
read as follows:
S 97-kkkk. Intervenor account.
1. There is hereby established in the joint custody of the state comptroller
and the commissioner of taxation and finance an account to be known as the
intervenor account.
2. Such account shall consist of all revenues received from siting
application fees for electric generating facilities pursuant to sections one
hundred sixty-three and one hundred sixty-four of the public service law.
3. Moneys of the account, following appropriation by the legislature, may be
expended in accordance with the provisions of sections one hundred sixtythree
and one hundred sixty-four of the public service law. Moneys shall be
paid out of the account on the audit and warrant of the state comptroller on
vouchers certified or approved by the chair of the public service commission.
S 21. The environmental conservation law is amended by adding a new section
19-0312 to read as follows:
S 19-0312. Power plant emissions and performance standards.
1. Definitions.
As used in this section:
-37-
a. "mercury" means elemental, oxidized, and particle-bound mercury in source
emissions.
b. "major electric generating facility" means any electricity generating
facility with a nameplate capacity of twenty-five thousand kilowatts or more.
2. Any major electric generating facility shall demonstrate compliance with
all applicable emission requirements established by the department for the
purpose of complying with all state and federal air quality requirements,
including requirements for sulfur dioxide, nitrogen oxides, mercury, carbon
dioxide and particulate matter of less than 2.5 microns. Such facility must
also comply with other applicable department air quality requirements
relating to offsetting of emissions.
3. No later than twelve months after the effective date of this section, the
commissioner shall promulgate rules and regulations targeting reductions in
emissions of carbon dioxide that would apply to major electric generating
facilities that commenced construction after the effective date of the
regulations.
S 23. Severability.
If any clause, sentence, paragraph, section or part of this act shall be
adjudged by any court of competent jurisdiction to be invalid, such judgment
shall not affect, impair or invalidate the remainder thereof, but shall be
confined in its operation to the clause, sentence, paragraph, section or part
thereof directly involved in the controversy in which such judgment shall
have been rendered.
S 24. This act shall take effect immediately; provided that nothing in this
act shall be construed to limit any administrative authority, with respect to
matters included in this act, which authority existed prior to the effective
date of this act. Within twelve months of the effective date of this act,
all rules and regulations required pursuant to this act shall be adopted.
Prior to the adoption of such rules and regulations by the New York state
board on electric generation siting and the environment and the department of
environmental conservation required under this act, nothing in this act shall
affect the right to apply for a permit pursuant to the environmental
conservation law including article 8 therein, or other applicable laws, to
operate an electric generating facility with a nameplate generating capacity
of twenty-five thousand kilowatts or more.