Bill S191-2011

Establishes a process for the siting of electric generating facilities and repowering projects

Establishes a process for the siting of electric generating facilities; establishes the intervenor account.

Details

Actions

  • Jan 4, 2012: REFERRED TO ENERGY AND TELECOMMUNICATIONS
  • Jan 4, 2012: returned to senate
  • Jan 4, 2012: died in assembly
  • May 9, 2011: referred to energy
  • May 9, 2011: DELIVERED TO ASSEMBLY
  • May 9, 2011: PASSED SENATE
  • May 4, 2011: ADVANCED TO THIRD READING
  • May 3, 2011: 2ND REPORT CAL.
  • May 2, 2011: 1ST REPORT CAL.406
  • Mar 1, 2011: REPORTED AND COMMITTED TO FINANCE
  • Jan 5, 2011: REFERRED TO ENERGY AND TELECOMMUNICATIONS

Votes

VOTE: COMMITTEE VOTE: - Energy and Telecommunications - Mar 1, 2011
Ayes (8): Maziarz, Alesi, Fuschillo, Griffo, O'Mara, Robach, Parker, Kennedy
Ayes W/R (3): Ritchie, Adams, Kruger
Nays (1): Gianaris

Memo

BILL NUMBER:S191

TITLE OF BILL: An act to amend the public service law, in relation to siting electric generating facilities; to amend the environmental conservation law, in relation to making certain conforming changes relating to the siting of electric generating facilities; to amend the public authorities law, in relation to making provisions of law relating to the siting of electric generating facilities applicable to the power authority of the state of New York and the Long Island power authority; and to amend the state finance law, in relation to establishing the intervenor account

PURPOSE: This bill would re-authorize Article 10 of the Public Service Law (PSL), relating to the siting of electric generating facilities, make various procedural changes designed to improve the review process for the siting of major electric generating facilities and for the repowering of existing power plants before the New York State Board on Electric Generation Siting and the Environment (Siting Board), and establish an account for the deposit and disbursement of funds to intervening parties in proceedings before the Siting Board.

SUMMARY OF PROVISIONS: Section one of the bill would reestablish, with amendments, PSL Article 10, to provide a comprehensive process relating to the siting of major and repowered electric generating facilities. All new proposals to construct power plants in excess of 80 megawatts (MW) in net output to the electric system would be governed by this process. Unlike review under the State Environmental Quality Review Act, no "negative declarations" of potential adverse environmental impacts would be allowed.

Funding would be provided to stakeholder groups to participate in the process. Under the revised Article 10, applications for repowering projects would be subject to a mandatory 45-day public comment period and a public statement hearing In addition, if a dispute arises over issues of fact, an evidentiary hearing could be held. Each of these Public participation steps would ensure a public review of potential environmental impacts of these facilities.

The bill would: (1) make the Office of Parks, Recreation and Historic Preservation and the Department of State parties to Article 10 proceedings; (2) require applicants to prepare a security plan to be reviewed by the Siting Board, in consultation with the State Office of Homeland Security; and (3) require consideration of health impacts and environmental justice impacts as part of the Article 10 review.

The bill would also make technical changes to clarify the operation of Article 10. More specifically, section one of the bill contains the following provisions:

* PSL § 160 would establish the definitions of terms used in Article 10. The term "major electric generating facility" would be defined as a facility that is operated with a total net generating output of 80 MW or more. This section also would establish the makeup and membership of the New York State Board on Electric Generation Siting and the Environment.

* PSL § 161 would establish general provisions relating to the Siting Board, including eligibility for membership and compensation of Siting Board members.

* PSL § 162 would govern the circumstances in which Board certificates are required and exemptions from that requirement. Such exemptions would include:,(1) electric generating facilities for which an application for a license, permit or other approval was sought before at least 180 days after the effective date of the new Article 10; (2) electric generating facilities over which the Federal Government has exclusive jurisdiction; (3) replacements, repairs and modifications to existing electric generating facilities, which do not result in an increase in capacity to the facility of more than 50 MW; and (4) electric generating facilities constructed on industrial lands and not exceeding 200 M.

* PSL § 163 would describe procedures for pre-application for certificates and establish a new pre-application fee of $50,000 for use by intervenors. The bill also would require, for proposed facilities located in a coastal area, a preliminary analysis of the proposed facility in relation to the applicable coastal zone polices set forth in Executive Law Article 42, and the bill would require a description of environmental justice impacts of the proposed facility.

* PSL § 163-a would establish separate, expedited procedures for the review of repowering projects that would modify or partially or entirely replace an existing electric generating facility and that would result in substantial decreases in emissions to air and water and increases to electric generation efficiency. It would establish an application fee of $1,000 for a repowering project that results in an increased net generating output of 60 MW or more.

* PSL § 164 would establish procedures far applications for a certificate for a major electric generating facility. It would set forth the information to be included in such application, provide for public notice and input, and would require an application fee of $1,000 for every MW of net generating capacity the proposed facility would produce.

* PSL § 165 would set forth the timetable for public hearings, once the Siting Board deems an application complete, and procedures for such hearings.

* PSL § 166 would establish the agencies that are parties to the proceedings, including the Department of Environmental Conservation, the Department of Economic Development, the Department of Health, the Department of Agriculture and Markets, the New York State Energy Research and Development Authority, the Department of State, the Office of Parks, Recreation and Historic Preservation, the City of

New York (where the facility is proposed to be located therein) and the Adirondack Park Agency (where the facility is proposed to be located therein). Section 166 would also specify that interested individuals, municipalities and not-for-profit organizations may become parties and participate in the proceeding.

* PSL § 167 would set forth the procedures for the conduct of the hearings before examiners appointed by the Siting Board and the Department of Environmental Conservation.

* PSL § 168 would describe the decision-making process to be followed by the Siting Board, in reviewing and deciding an application, and would delineate the issues for consideration in reaching such decision. The Siting Board would have to find, inter alia, that the proposed facility is designed to operate in compliance with local laws and regulations, unless the Board finds that the local requirement is unreasonably restrictive in view of the existing technology or the needs of or costs to rate payers whether located inside or outside of the affected municipality.

* PSL § 169 would require the Siting Board to issue a written opinion setting forth the reasons for its determination on an Article 10 application.

* PSL § 170 would establish procedures for rehearing and judicial review of determinations by the Siting Board.

* PSL § 171 would establish the jurisdiction of the courts and the process for judicial review of a determination by the Siting Board granting or denying a certificate.

* PSL § 172 would prohibit any municipality or state agency from requiring any additional permits or approvals of a proposed facility beyond those expressly provided for under this legislation.

Sections two through five of the bill would reenact, with minor amendments, conforming provisions of the Environmental Conservation Law (ECL) to clarify that actions taken by the Siting Board under PSL Article 10 are not subject to the requirements of the State Environmental Quality Review Act (ECL Article 8).

Sections six and seven would amend Public Authorities Law §§ 1014 and 1020-s, relating to inapplicability of the Public Service Law, to provide that PSL Article 10 applies to the siting of major electric generating facilities and repowering projects by the New York Power Authority and the Long Island Power Authority.

Section eight of the bill would amend the State Finance Law to enact State Finance Law §99-t establishing the intervenor account in the joint custody of the State Comptroller and the Commissioner of Taxation and Finance. The account would consist of all revenues received from pre-application and application fees.

Section nine of the bill would establish the severability of the provisions of the legislation.

Section ten would establish an immediate effective date for the legislation with no expiration.

EXISTING LAW:

PSL Article 10, State Finance Law §97-tt and conforming provisions of the ECL expired on January 1, 2003, with the exception of applications filed on or before December 31, 2002. Public Authorities Law provisions, subjecting the New York Power Authority and the Long Island Power Authority to Article 10, also have expired. In the absence of these provisions, the siting of major electric generating facilities and the repowering of existing facilities is subject to environmental review pursuant to State Environmental Quality Review Act (SEQRA (ECL Article 8).

JUSTIFICATION:

PSL Article 10 was designed to implement an expedited, fuel diverse, and technology neutral review process for the siting of major electric generating facilities and the review of repowering projects, while recognizing the importance of and providing for citizen involvement in the siting process. The bill would retain this emphasis on communication between the applicant and parties affected by the construction and operation of the facility.

The bill would extend the application of Article 10's intervenor funding and public involvement procedures to major facilities and repowering Projects. Toward this end, the bill would continue the use of application fees as sources of funds for intervenors and would establish a new pre-application fee for use by intervenors at an earlier stage of the Article 10 process. These fees would help defray expenses by municipalities and other parties to the proceeding for expert witnesses and consultants. This intervenor funding provision would provide municipalities, and other parties potentially affected by the construction and operation of the facility, with resources to evaluate the highly technical information submitted in connection with an Article 10 application and would enable the parties to participate meaningfully in proceedings before the Siting Board. The bill also would integrate environmental justice policy into the procedures and determinations relating to the siting of electric generating facilities, in a manner consistent with the Department of Environmental Conservation Commissioner's Policy 29, Environmental Justice and Permitting (issued March 19, 2003).

The New York Independent System Operator (NYISO) has released its report, Power Trends 2010: New Yorks Emerging Energy Crossroads, which is its annual analysis of the New York bulk power systems achievements and challenges. The NYISO notes that, currently, the bulk power grid is operating reliably and should continue to have sufficient resources to maintain such reliability through 2018. Given that it takes about five years for new baseload power plants to actually come on line, including time for permitting, construction and interconnection, reenactment of Article 10 is needed. The reestablishment of the Article 10 statute's familiar and successful siting process would establish the means of maintaining reliable supply of electricity to the State, consistent with protecting the environment.

Interestingly, New York State power producers already are reducing the impact facility operations have on the environment. Since the expiration of Article 10 in 2003, the DEC has adopted its Clean Air Interstate Rule to reduce significantly emissions of sulfur dioxide (S02) and nitrogen oxides (NOx). In addition, to reduce NOx emissions even further, the Department of Environmental Conservation has adopted its Best Available Retrofit Technology (BART) Determinations Rule and approved its Reasonably Available Control Technology for the Control of Nitrogen Oxides (NOx RACT) Rule. The Department also has promulgated its Clean Air Mercury Rule and Regional Greenhouse Initiative (ROGI). The Department has policies on fine particulate matter (PM 2.5), environmental justice, and GHG Emissions and the State Environmental Quality Review Act, and the agency has proposed for public review a policy on Climate Change and DEC Action. Additionally, the New York State Public Service Commission and the New York State Energy Research and Development Authority (NYSERDA) are implementing the Renewable Portfolio Standard to increase the use of renewable energy sources and the Energy Efficiency Portfolio Standard to reduce electricity consumption. Also, NYSERDA adopted a spending plan for the use of RGGI allowances auction proceeds to reduce greenhouse gas emissions across all economic sectors and fuel types. Furthermore, Governor Paterson's Executive Order 24 establishes an ambitious goal to reduce greenhouse gas emissions in New York State by 80 percent below the levels emitted in 1990 by the year 2050. The order creates a Climate Action Council, with a directive to prepare a draft Climate Action Plan by November 1, 2010. Compliance with the governor's climate change directive and other state requirements will lead to the siting and construction of additional electric generating facilities and the repowering of existing power plants. The Article 10 process will facilitate these power project activities.

Construction of new power plants, in addition to enhancing the overall reliability of the State's electric system, also may have a net positive effect on the environment, and new state-of-the-art power plants also are efficient. Broad support exists among environmental and industry groups that repowering projects should be encouraged. Toward this end, the bill creates a process for repowering existing electric generating facilities.

LEGISLATIVE HISTORY: S.8063 of 2009-2010; Reported and Committed to Finance

FISCAL IMPLICATIONS:

The costs of the Department of Public Service are recovered from its regulated utilities pursuant to PSI .18-a. The State authorizes, in its annual budget, amounts for expenses incurred by state agencies participating in the Article 10 siting process. Funds from the intervenor account also are subject to annual appropriation.

EFFECTIVE DATE: Immediate, provisions of.


Text

STATE OF NEW YORK ________________________________________________________________________ 191 2011-2012 Regular Sessions IN SENATE (PREFILED) January 5, 2011 ___________
Introduced by Sen. MAZIARZ -- 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, in relation to siting electric generating facilities; to amend the environmental conservation law, in relation to making certain conforming changes relating to the siting of electric generating facilities; to amend the public authorities law, in relation to making provisions of law relating to the siting of electric generating facilities applicable to the power authority of the state of New York and the Long Island power authority; and to amend the state finance law, in relation to establishing the interve- nor account THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The public service law is amended by adding a new article 10 to read as follows: ARTICLE 10 SITING OF ELECTRIC GENERATING FACILITIES SECTION 160. DEFINITIONS. 161. GENERAL PROVISIONS RELATING TO THE BOARD. 162. BOARD CERTIFICATE. 163. PRE-APPLICATION PROCEDURES. 163-A. REPOWERING PROJECTS. 164. APPLICATION FOR A CERTIFICATE. 165. HEARING SCHEDULE. 166. PARTIES TO A CERTIFICATION PROCEEDING. 167. CONDUCT OF HEARING. 168. BOARD DECISIONS. 169. OPINION TO BE ISSUED WITH DECISION. 170. REHEARING AND JUDICIAL REVIEW.
171. JURISDICTION OF COURTS. 172. POWERS OF MUNICIPALITIES AND STATE AGENCIES. S 160. DEFINITIONS. WHERE USED IN THIS ARTICLE, THE FOLLOWING TERMS, UNLESS THE CONTEXT OTHERWISE REQUIRES, SHALL HAVE THE FOLLOWING MEAN- INGS: 1. "MUNICIPALITY" MEANS A COUNTY, CITY, TOWN OR VILLAGE LOCATED IN THIS STATE. 2. "MAJOR ELECTRIC GENERATING FACILITY" MEANS AN ELECTRIC GENERATING FACILITY THAT IS OPERATED AT A TOTAL NET GENERATING OUTPUT TO THE ELEC- TRIC SYSTEM OF EIGHTY THOUSAND KILOWATTS OR MORE, INCLUDING INTERCON- NECTION WATER, SEWER, TELECOMMUNICATION, FUEL AND STEAM LINES, AND INTERCONNECTION ELECTRIC TRANSMISSION LINES AND FUEL GAS TRANSMISSION LINES THAT ARE NOT SUBJECT TO REVIEW UNDER ARTICLE SEVEN OF THIS CHAP- TER. 3. "PERSON" MEANS ANY INDIVIDUAL, CORPORATION, LIMITED LIABILITY COMPANY, 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 CHAIRPERSON OF THE COMMISSION, WHO SHALL SERVE AS CHAIRPERSON OF THE BOARD; THE COMMISSIONER OF ENVIRONMENTAL CONSERVA- TION; THE COMMISSIONER OF HEALTH; THE CHAIRPERSON OF THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY; THE COMMISSIONER OF ECONOMIC DEVELOPMENT; AND TWO AD HOC PUBLIC MEMBERS APPOINTED BY THE GOVERNOR. ONE AD HOC PUBLIC MEMBER SHALL BE A RESIDENT OF THE JUDICIAL DISTRICT IN WHICH THE FACILITY AS PROPOSED IS TO BE LOCATED AND ONE AD HOC PUBLIC MEMBER SHALL BE A RESIDENT OF THE COUNTY IN WHICH THE FACILITY AS PROPOSED IS TO BE LOCATED. IN SELECTING THE AD HOC MEMBERS, THE GOVERNOR MAY CONSIDER RECOMMENDATIONS FROM COMMUNITY-BASED ORGANIZATIONS AND RESIDENTS FROM THE COUNTY, MUNICIPALITY AND/OR COMMUNITY IN WHICH THE FACILITY IS PROPOSED TO BE LOCATED. THE TERM OF THE AD HOC MEMBERS SHALL CONTINUE UNTIL A FINAL DETERMINATION IS MADE IN THE PARTICULAR PROCEED- ING FOR WHICH THEY WERE APPOINTED, INCLUDING ANY REHEARING AND ANY JUDI- CIAL REVIEW OF SUCH DECISION. 5. "REPOWERING PROJECT" MEANS A MAJOR ELECTRIC GENERATING FACILITY THAT PROPOSES TO MODIFY OR ENTIRELY OR PARTIALLY REPLACE AN EXISTING ELECTRIC GENERATING FACILITY, IN A MANNER BEYOND THE SCOPE OF THE PROVISIONS OF PARAGRAPH (C) OF SUBDIVISION FOUR OF SECTION ONE HUNDRED SIXTY-TWO OF THIS ARTICLE, IN SUBSTANTIALLY THE SAME LOCATION AS THE EXISTING FACILITY OR TO SITE A NEW MAJOR ELECTRIC GENERATING FACILITY ADJACENT OR CONTIGUOUS TO SUCH EXISTING FACILITY, WHERE SUCH PROPOSED MODIFIED FACILITY OR EXISTING AND NEW FACILITY IN COMBINATION: (A) RESULTS IN A DECREASE IN THE RATE OF EMISSIONS OF EACH OF THE FOLLOWING ON A POUNDS PER MEGAWATT-HOUR BASIS: (I) OXIDES OF NITROGEN, (II) OXIDES OF SULFUR, AND (III) PARTICULATE MATTER. THE REDUCTION IN THE RATE OF SUCH EMISSIONS SHALL BE CALCULATED BASED UPON A COMPARISON OF THE POTENTIAL TO EMIT OF THE EXISTING FACILITY (EXPRESSED IN POUNDS PER MEGAWATT-HOUR) AT THE TIME THE APPLICATION UNDER THIS ARTICLE IS FILED WITH THE CHAIRPERSON AND THE FUTURE POTENTIAL TO EMIT OF THE MODI- FIED FACILITY OR OF THE COMBINATION OF THE EXISTING AND NEW FACILITY (EXPRESSED IN POUNDS PER MEGAWATT-HOUR) AND BASED UPON REASONABLY EXPECTED OPERATING CONDITIONS PROPOSED OR IDENTIFIED IN THE APPLICATION; AND (B) REPLACES EXISTING GENERATING CAPACITY WITH GENERATING CAPACITY THAT HAS A LOWER HEAT RATE.
6. "CERTIFICATE" MEANS A CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY AND PUBLIC NEED AUTHORIZING THE CONSTRUCTION OF AN ELECTRIC GENERATING FACILITY ISSUED BY THE BOARD PURSUANT TO THIS ARTICLE. S 161. GENERAL PROVISIONS RELATING TO THE BOARD. UPON RECEIPT OF AN APPLICATION UNDER THIS ARTICLE, THE CHAIRPERSON SHALL PROMPTLY NOTIFY THE GOVERNOR. WITHIN THIRTY DAYS OF SUCH NOTIFICATION, THE GOVERNOR SHALL APPOINT THE AD HOC MEMBERS. FOUR OF THE SEVEN PERSONS ON THE BOARD SHALL CONSTITUTE A QUORUM FOR THE TRANSACTION OF ANY BUSINESS OF THE BOARD, AND THE DECISION OF FOUR MEMBERS OF THE BOARD SHALL CONSTITUTE ACTION OF THE BOARD. THE BOARD, EXCLUSIVE OF THE AD HOC MEMBERS, SHALL HAVE THE POWER TO ADOPT RULES AND REGULATIONS RELATING TO THE PROCEDURES TO BE USED IN CERTIFYING FACILITIES UNDER THE PROVISIONS OF THIS ARTI- CLE, INCLUDING THE SUSPENSION OR REVOCATION THEREOF. 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 CERTIFICATE TERMS AND CONDI- TIONS, 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 APPLI- CATIONS FOR POLLUTANT CONTROL PERMITS TO BE SUBMITTED TO AND ACTED UPON BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION FOLLOWING COMMERCIAL OPERATION OF A CERTIFIED FACILITY. IN ADDITION TO THE REQUIREMENTS OF THE PUBLIC OFFICERS LAW, NO PERSON SHALL BE ELIGIBLE TO BE AN APPOINTEE OF THE GOVERNOR 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 UTIL- ITY CORPORATION OPERATING IN THE STATE OR PROPOSED FOR OPERATION IN THE STATE, ANY AFFILIATE THEREOF OR ANY OTHER COMPANY, FIRM, PARTNERSHIP, CORPORATION, ASSOCIATION OR JOINT-STOCK ASSOCIATION THAT MAY APPEAR BEFORE THE BOARD, NOR SHALL EITHER OF THE APPOINTEES HAVE BEEN A DIREC- TOR, OFFICER OR, WITHIN THE PREVIOUS TEN YEARS, AN EMPLOYEE THEREOF. THE AD HOC APPOINTEES OF THE GOVERNOR SHALL RECEIVE THE SUM OF TWO HUNDRED DOLLARS FOR EACH DAY IN WHICH THEY ARE ACTUALLY ENGAGED IN THE PERFORM- ANCE OF THEIR DUTIES PURSUANT TO THIS ARTICLE PLUS ACTUAL AND NECESSARY EXPENSES INCURRED BY THEM IN THE PERFORMANCE OF SUCH DUTIES. THE CHAIR- PERSON SHALL PROVIDE SUCH PERSONNEL, HEARING EXAMINERS, SUBORDINATES AND EMPLOYEES AND SUCH LEGAL, TECHNOLOGICAL, SCIENTIFIC, ENGINEERING AND OTHER SERVICES AND SUCH MEETING ROOMS, HEARING ROOMS AND OTHER FACILI- TIES AS MAY BE REQUIRED IN PROCEEDINGS UNDER THIS ARTICLE. THE BOARD 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 OF THE GOVER- NOR 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. S 162. BOARD CERTIFICATE. 1. NO PERSON SHALL COMMENCE THE PREPARATION OF A SITE FOR, OR BEGIN THE CONSTRUCTION OF, A MAJOR ELECTRIC GENERATING FACILITY OR REPOWERING PROJECT IN THE STATE 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 CONFORM- ITY WITH SUCH CERTIFICATE AND ANY TERMS, LIMITATIONS OR CONDITIONS CONTAINED THEREIN; PROVIDED THAT NOTHING IN THIS ARTICLE SHALL EXEMPT
SUCH FACILITY FROM COMPLIANCE WITH STATE LAW AND REGULATIONS THEREUNDER, SUBSEQUENTLY ADOPTED OR WITH MUNICIPAL LAWS AND REGULATIONS THEREUNDER, NOT INCONSISTENT WITH THE PROVISIONS OF SUCH CERTIFICATE. A CERTIFICATE FOR A MAJOR ELECTRIC GENERATING FACILITY OR REPOWERING PROJECT 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 PURSUANT TO THIS ARTICLE MAY BE AMENDED AS PROVIDED IN THIS ARTICLE. 4. THIS ARTICLE SHALL NOT APPLY: (A) TO AN ELECTRIC GENERATING FACILITY IF, ON OR BEFORE THE ONE HUNDRED EIGHTIETH DAY AFTER THE EFFECTIVE DATE OF THIS ARTICLE, 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 AN ELECTRIC GENER- ATING FACILITY HAS BEEN DESIGNATED BY THE APPLICANT; OR IF THE FACILITY IS UNDER CONSTRUCTION AT SUCH TIME; (B) TO AN ELECTRIC GENERATING FACILITY OVER WHICH ANY AGENCY OR DEPARTMENT OF THE FEDERAL GOVERNMENT HAS EXCLUSIVE 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; (C) TO REPAIRS, REPLACEMENTS, MODIFICATIONS AND IMPROVEMENTS OF AN 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 FIFTY THOUSAND KILOWATTS; OR (D) TO AN ELECTRIC GENERATING FACILITY (I) CONSTRUCTED ON LANDS DEDI- CATED TO INDUSTRIAL USES, (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. 5. ANY PERSON INTENDING TO CONSTRUCT AN ELECTRIC GENERATING FACILITY EXCLUDED FROM THIS ARTICLE PURSUANT TO SUBDIVISION FOUR OF THIS SECTION MAY ELECT TO BECOME SUBJECT TO THE PROVISIONS OF THIS ARTICLE BY DELIV- ERING NOTICE OF SUCH ELECTION TO THE CHAIRPERSON 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- PERSON OF THE BOARD. FOR THE PURPOSES OF THIS ARTICLE, EACH SUCH FACIL- ITY SHALL BE TREATED IN THE SAME MANNER AS A MAJOR ELECTRIC GENERATING FACILITY OR REPOWERING PROJECT AS APPROPRIATE AND AS DEFINED IN THIS ARTICLE. S 163. PRE-APPLICATION PROCEDURES. 1. ANY PERSON PROPOSING TO SUBMIT AN APPLICATION FOR A CERTIFICATE SHALL FILE WITH THE CHAIRPERSON OF 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 IMPACTS FROM THE CONSTRUCTION AND/OR OPER- ATION OF THE PROPOSED FACILITY; (C) A PRELIMINARY DESCRIPTION OF PREDICTABLE, SIGNIFICANT AND ADVERSE- LY DISPROPORTIONATE ENVIRONMENTAL IMPACTS, IF ANY, FROM THE CONSTRUCTION AND/OR OPERATION OF THE PROPOSED FACILITY IN ACCORDANCE WITH REGULATIONS PROMULGATED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION FOR THE ANALYSIS OF ENVIRONMENTAL JUSTICE ISSUES;
(D) ANY PROPOSED STUDY OR PROGRAM OF STUDIES DESIGNED TO EVALUATE POTENTIAL ENVIRONMENTAL IMPACTS, INCLUDING THE PREDICTABLE HEALTH IMPACTS THEREOF; (E) ANY MEASURES PROPOSED TO MITIGATE ENVIRONMENTAL IMPACTS, INCLUDING THE PREDICTABLE HEALTH IMPACTS THEREOF; (F) REASONABLE ALTERNATIVES TO THE PROPOSED FACILITY AS MAY BE REQUIRED BY PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE; (G) IF THE FACILITY IS PROPOSED TO BE LOCATED IN THE COASTAL AREA, A PRELIMINARY ANALYSIS OF THE CONSISTENCY OF THE PROPOSED FACILITY WITH THE APPLICABLE COASTAL POLICIES OF ARTICLE FORTY-TWO OF THE EXECUTIVE LAW, OR WHEN THE ACTION IS IN AN APPROVED LOCAL WATERFRONT REVITALIZA- TION PROGRAM AREA, WITH THE LOCAL PROGRAM. IF THE PROPOSED FACILITY COULD AFFECT ANY LAND OR WATER USE OR NATURAL RESOURCE OF THE COASTAL AREA AND FEDERAL AUTHORIZATION IS NECESSARY, A PRELIMINARY ANALYSIS OF THE CONSISTENCY OF THE PROPOSED FACILITY WITH THE ENFORCEABLE POLICIES OF THE NEW YORK STATE COASTAL MANAGEMENT PROGRAM OR WHEN THE ACTION IS IN AN APPROVED LOCAL WATERFRONT REVITALIZATION PROGRAM AREA, WITH THE LOCAL PROGRAM; AND (H) ANY OTHER INFORMATION THAT MAY BE RELEVANT OR THAT THE BOARD MAY REQUIRE. 2. EACH PRELIMINARY SCOPING STATEMENT SHALL BE ACCOMPANIED BY A FEE OF FIFTY THOUSAND DOLLARS TO BE DEPOSITED IN THE INTERVENOR ACCOUNT, ESTAB- LISHED PURSUANT TO SECTION NINETY-NINE-T OF THE STATE FINANCE LAW, AND SHALL BE DISBURSED AT THE BOARD'S DIRECTION TO DEFRAY EXPENSES INCURRED BY MUNICIPAL AND OTHER LOCAL, INTERESTED PERSONS (EXCEPT A MUNICIPALITY WHICH IS THE APPLICANT) FOR CONSULTANTS' FEES TO EVALUATE THE PRELIMI- NARY SCOPING STATEMENT AND ANALYZE THE METHODOLOGY AND SCOPE OF ANY STUDY OR PROGRAM OF STUDIES TO BE UNDERTAKEN BY THE APPLICANT IN SUPPORT OF ITS APPLICATION. SUCH FUNDS SHALL BE MADE AVAILABLE ON AN EQUITABLE BASIS IN A MANNER WHICH FACILITATES BROAD PUBLIC PARTICIPATION IN THE PRE-APPLICATION PROCESS. ANY UNUSED FUNDS SHALL BE MADE AVAILABLE AND DISBURSED IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION FIVE OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE IF AN APPLICATION IS FILED OR, IF THE PRELIMINARY SCOPING STATEMENT IS WITHDRAWN, SUCH FUNDS SHALL BE RETURNED TO THE APPLICANT WITHIN FORTY-FIVE DAYS AFTER SUCH WITHDRAWAL. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, THE BOARD MAY PROVIDE BY RULES AND REGULATIONS FOR DISBURSEMENTS FROM THE ACCOUNT FOR THE STATED PURPOSES. 3. 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. SUCH NOTICE SHALL INCLUDE THE AVAILABILITY OF FUNDS FOR ELIGIBLE PERSONS TO PARTICIPATE IN THE PRE-APPLICATION PROCESS. 4. TO FACILITATE THE APPLICATION PROCESS AND ENABLE CITIZENS TO PARTICIPATE IN DECISIONS THAT AFFECT THEIR HEALTH AND SAFETY AND THE ENVIRONMENT, THE DEPARTMENT SHALL PROVIDE OPPORTUNITIES FOR CITIZEN INVOLVEMENT, AND SHALL CONSULT WITH THE PUBLIC EARLY IN THE APPLICATION PROCESS, ESPECIALLY BEFORE ANY PERSONS ENTER A STIPULATION PURSUANT TO SUBDIVISION FIVE OF THIS SECTION. THE PRIMARY GOAL 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 INTERESTED OR AFFECTED PERSONS. 5. 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, THE DEPARTMENT OF STATE, THE DEPARTMENT OF HEALTH, AND THE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, AS APPROPRIATE, AS TO ANY ASPECT OF THE PRELIMINARY SCOP- ING 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 STATE, THE DEPARTMENT OF HEALTH, THE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, 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 PERSONS. NOTHING IN THIS SUBDIVISION, HOWEVER, SHALL BAR ANY PARTY TO A HEARING ON AN APPLI- CATION, 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 MAY DESIGNATE A HEARING EXAMINER WHO SHALL OVERSEE THE PRE-APPLICATION PROCESS, INCLUDING THE DISBURSEMENT OF THE FUNDS PROVIDED FOR IN SUBDIVISION TWO OF THIS SECTION, 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. S 163-A. REPOWERING PROJECTS. 1. ANY PERSON PROPOSING TO SITE A REPOW- ERING PROJECT SHALL BE REQUIRED TO FOLLOW THE PROCEDURES SET FORTH IN THIS SECTION. ANY PERSON PROPOSING TO UNDERTAKE A REPOWERING PROJECT SHALL FILE WITH THE CHAIRPERSON OF THE BOARD AN APPLICATION, IN A FORM TO BE DETERMINED BY THE BOARD, THAT CONTAINS, AT A MINIMUM, THE FOLLOW- ING INFORMATION AND MATERIALS: (A) A DESCRIPTION OF THE SITE, INCLUDING ITS ENVIRONMENTAL SETTING, AND A DESCRIPTION OF THE REPOWERING PROJECT, INCLUDING, BUT NOT LIMITED TO, AVAILABLE SITE INFORMATION, MAPS, AND DESCRIPTIONS; (B) ANALYSES THAT HAVE BEEN MADE (I) FOR REPOWERING PROJECTS, OF THE EXPECTED ENVIRONMENTAL IMPACTS OF THE EXISTING ELECTRIC GENERATING FACILITY; (II) OF CONCEPTUAL ARCHITECTURAL AND ENGINEERING PLANS INDI- CATING COMPATIBILITY OF THE REPOWERING PROJECT WITH THE ENVIRONMENT; AND (III) OF THE EXPECTED ENVIRONMENTAL IMPACTS OF THE REPOWERING PROJECT, INCLUDING, BUT NOT LIMITED TO, THE GENERATION OF SOLID WASTES, AIR EMIS- SIONS, DISCHARGES INTO NAVIGABLE WATERS AND GROUNDWATER, IMPACTS UPON WETLANDS, AND VISUAL IMPACTS, THE PROBABLE LEVEL OF NOISE DURING CONSTRUCTION AND OPERATION OF THE REPOWERING PROJECT, AND ANY MEASURES FOR CONTROL, ABATEMENT, OR MITIGATION OF SUCH IMPACTS, AND THE COMPAT- IBILITY OF THE REPOWERING PROJECT WITH EXISTING FEDERAL, STATE AND MUNICIPAL ENVIRONMENTAL, HEALTH AND SAFETY STANDARDS; (C) SUCH EVIDENCE AS MAY ENABLE THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION TO EVALUATE THE PROPOSED POLLUTION CONTROL SYSTEMS OF THE REPOWERING PROJECT AND TO REACH A DETERMINATION AS TO WHETHER OR NOT TO ISSUE, SUBJECT TO APPROPRIATE CONDITIONS AND LIMITATIONS, PERMITS PURSU- ANT 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;
(D) A STATEMENT AS TO HOW THE CONSTRUCTION AND OPERATION OF THE REPOW- ERING PROJECT, INCLUDING TRANSPORTATION AND DISPOSAL OF WASTES, WILL COMPLY WITH ENVIRONMENTAL, HEALTH AND SAFETY REGULATIONS AND RULES UNDER STATE AND MUNICIPAL LAWS, AND A STATEMENT AS TO WHY ANY VARIANCES OR EXCEPTIONS MAY BE GRANTED; (E) A DESCRIPTION OF THE FUEL INTERCONNECTION AND SUPPLY FOR THE REPOWERING PROJECT; (F) AN ELECTRIC INTERCONNECTION STUDY, CONSISTING GENERALLY OF A DESIGN STUDY AND A SYSTEM RELIABILITY IMPACT STUDY; (G) A PLAN FOR SECURITY OF THE REPOWERING PROJECT DURING ITS CONSTRUCTION AND OPERATION, TO BE REVIEWED BY THE BOARD IN CONSULTATION WITH THE OFFICE OF HOMELAND SECURITY; AND (H) SUCH OTHER INFORMATION AS THE APPLICANT MAY CONSIDER RELEVANT OR AS MAY BE REQUIRED BY THE BOARD TO MAKE ITS FINDINGS PURSUANT TO SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTICLE. COPIES OF THE APPLICATION, INCLUDING THE REQUIRED INFORMATION, SHALL BE AVAILABLE FOR PUBLIC INSPECTION, PROVIDED, HOWEVER, THAT SUCH INSPECTION IS CONSISTENT WITH ARTICLE SIX OF THE PUBLIC OFFICERS LAW AND ARTICLE TWENTY-SIX OF THE EXECUTIVE LAW. 2. THE APPLICATION SHALL BE ACCOMPANIED BY: (A) PROOF OF SERVICE, IN SUCH MANNER AS THE BOARD SHALL PRESCRIBE, IN ACCORDANCE WITH SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE; AND (B) PROOF THAT THE APPLICANT HAS CONDUCTED PUBLIC OUTREACH WITHIN THE SIXTY DAYS PRECEDING THE FILING OF THE APPLICATION, FOR PURPOSES OF FACILITATING COMMUNICATION BETWEEN THE APPLICANT AND INTERESTED AND AFFECTED PERSONS AND ADVISING SUCH PERSONS ABOUT THE REPOWERING PROJECT. 3. THE APPLICATION SHALL BE ACCOMPANIED BY A FEE TO BE DETERMINED PURSUANT TO THE PROVISIONS OF THIS SUBDIVISION. FOR THE PURPOSES OF THIS SUBDIVISION, "INCREASED NET GENERATING OUTPUT" SHALL BE DETERMINED USING THE FOLLOWING FORMULA: THE NET GENERATING OUTPUT OF THE PROPOSED FACIL- ITY IN THOUSANDS OF KILOWATTS MINUS THE NET GENERATING OUTPUT OF THE EXISTING FACILITY IN THOUSANDS OF KILOWATTS. FOR A REPOWERING PROJECT THAT RESULTS IN AN INCREASED NET GENERATING OUTPUT OF EIGHTY THOUSAND KILOWATTS OR MORE, A FEE IN AN AMOUNT EQUAL TO ONE THOUSAND DOLLARS FOR EACH THOUSAND KILOWATTS OF INCREASED NET GENERATING OUTPUT, BUT A FEE NO MORE THAN THREE HUNDRED THOUSAND DOLLARS WITH SUCH AMOUNT TO INCLUDE THE PRE-APPLICATION FEE PROVIDED FOR IN SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-THREE OF THIS ARTICLE. 4. SUCH FEE SHALL BE DEPOSITED IN THE INTERVENOR ACCOUNT ESTABLISHED PURSUANT TO SECTION NINETY-NINE-T OF THE STATE FINANCE LAW, TO BE DISBURSED AT THE BOARD'S DIRECTION IN ACCORDANCE WITH SUBDIVISION FIVE OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE. ANY MONEYS REMAINING IN THE INTERVENOR ACCOUNT SHALL BE RETURNED TO THE APPLICANT WITHIN FORTY-FIVE DAYS AFTER THE BOARD HAS ISSUED ITS DECISION ON AN APPLICA- TION UNDER THIS ARTICLE AND THE TIME FOR APPLYING FOR A REHEARING AND JUDICIAL REVIEW HAS EXPIRED. 5. FOLLOWING THE FILING OF AN APPLICATION PURSUANT TO SUBDIVISION TWO OF THIS SECTION, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION SHALL INITIATE A REVIEW PURSUANT TO FEDERALLY DELEGATED OR APPROVED ENVIRON- MENTAL PERMITTING AUTHORITY. 6. WITHIN SIXTY DAYS OF RECEIPT OF AN APPLICATION FILED PURSUANT TO SUBDIVISION ONE OF THIS SECTION, THE CHAIRPERSON OF THE BOARD SHALL DETERMINE WHETHER OR NOT THE APPLICATION COMPLIES WITH THIS SECTION AND ANY REGULATIONS PROMULGATED PURSUANT THERETO. THE CHAIRPERSON OF THE BOARD MAY REQUIRE THE FILING OF ANY ADDITIONAL INFORMATION NEEDED TO
SUPPLEMENT AN APPLICATION. NOTICE OF COMPLIANCE SHALL BE GIVEN TO PARTIES TO THE CERTIFICATION PROCEEDING PURSUANT TO SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-SIX OF THIS ARTICLE AND SHALL ADDITIONALLY BE PUBLISHED ON THE WEB SITE OF THE DEPARTMENT. 7. PARTIES AND INTERESTED PERSONS SHALL HAVE FORTY-FIVE DAYS FROM THE DATE THE APPLICATION IS DEEMED COMPLIANT TO FILE WRITTEN COMMENTS WITH REGARD TO SUCH APPLICATION. A PUBLIC STATEMENT HEARING SHALL BE HELD WITHIN THE COMMENT PERIOD AT WHICH THE PRESIDING EXAMINER AND ASSOCIATE EXAMINER SHALL JOINTLY PRESIDE. WITHIN SIXTY DAYS OF THE APPLICATION BEING DEEMED COMPLIANT, THE PRESIDING EXAMINER, AFTER CONSULTATION WITH THE ASSOCIATE EXAMINER, SHALL DETERMINE WHETHER THERE IS A RELEVANT AND MATERIAL ISSUE OF FACT AND SHALL DETERMINE WHETHER OR NOT TO SCHEDULE AN EVIDENTIARY HEARING ON SUCH ISSUE OF FACT. SUCH EVIDENTIARY HEARING, IF APPLICABLE, SHALL BE CONDUCTED PURSUANT TO THE RELEVANT PROVISIONS OF SECTIONS ONE HUNDRED SIXTY-FIVE AND ONE HUNDRED SIXTY-SEVEN OF THIS ARTICLE, WHICH ARE NOT INCONSISTENT WITH THE PROVISIONS OF THIS SECTION. 8. WITHIN SIXTY DAYS OF THE CLOSE OF THE PUBLIC STATEMENT HEARING AND ANY EVIDENTIARY HEARING, IF APPLICABLE, AND THE FILING OF ANY BRIEFS, IF APPLICABLE, THE BOARD SHALL RENDER A FINAL DETERMINATION ON AN APPLICA- TION UNDER THIS SECTION FOR A CERTIFICATE UPON THE RECORD MADE BEFORE THE PRESIDING AND ASSOCIATE EXAMINERS AND PURSUANT TO THE REQUIREMENTS OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTICLE. 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 DEADLINE, UNLESS SUCH DEADLINE IS WAIVED BY THE APPLICANT. IF AT ANY TIME SUBSEQUENT TO THE COMMENCEMENT OF THE PUBLIC STATEMENT HEARING OR EVIDENTIARY HEARING, IF APPLICABLE, THERE IS A MATERIAL AND SUBSTANTIAL AMENDMENT TO THE APPLI- CATION, THE DEADLINE MAY BE EXTENDED BY NO MORE THAN THREE MONTHS, UNLESS SUCH DEADLINE IS WAIVED BY THE APPLICANT, TO CONSIDER SUCH AMEND- MENT. 9. IN THE EVENT THAT THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION ISSUES PERMITS PURSUANT TO FEDERALLY DELEGATED OR APPROVED PERMITTING AUTHORITY UNDER THE FEDERAL CLEAN WATER ACT, THE FEDERAL CLEAN AIR ACT AND THE FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT, THE COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION SHALL PROVIDE SUCH PERMITS TO THE BOARD PRIOR TO THE DETERMINATION OF WHETHER OR NOT TO ISSUE A CERTIFICATE. S 164. APPLICATION FOR A CERTIFICATE. 1. AN APPLICANT FOR A CERTIF- ICATE TO CONSTRUCT A MAJOR ELECTRIC GENERATING FACILITY SHALL FILE WITH THE CHAIRPERSON OF 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, AND, AS APPROPRIATE, GEOLOGICAL, AESTHETIC, ECOLOGICAL, TSUNAMI, SEISMIC, BIOLOGICAL, WATER SUPPLY, POPULATION AND LOAD CENTER DATA; (B) A DESCRIPTION AND EVALUATION OF REASONABLE ALTERNATIVE LOCATIONS TO THE PROPOSED FACILITY, IF ANY; A DESCRIPTION AND EVALUATION OF REASONABLE ENERGY SUPPLY SOURCE ALTERNATIVES AND, WHERE APPROPRIATE, DEMAND-REDUCING MEASURES TO THE PROPOSED FACILITY; A DESCRIPTION OF THE COMPARATIVE ADVANTAGES AND DISADVANTAGES OF EACH SUCH LOCATION, ENERGY SUPPLY SOURCES AND DEMAND-REDUCING MEASURES, 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; (C) STUDIES, IDENTIFYING THE AUTHOR AND DATE THEREOF, WHICH EVALUATE PREDICTABLE, SIGNIFICANT AND ADVERSE DISPROPORTIONATE ENVIRONMENTAL IMPACTS OF THE PROPOSED FACILITY, IF ANY, RESULTING FROM ITS CONSTRUCTION AND OPERATION, IN ACCORDANCE WITH REGULATIONS PROMULGATED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION FOR THE ANALYSIS OF ENVIRONMENTAL JUSTICE ISSUES; (D) STUDIES, IDENTIFYING THE AUTHOR AND DATE THEREOF, WHICH HAVE BEEN MADE OF THE EXPECTED ENVIRONMENTAL IMPACTS, INCLUDING THE PREDICTABLE HEALTH IMPACTS THEREOF, AND OF THE SAFETY OF THE FACILITY, BOTH DURING ITS CONSTRUCTION AND ITS OPERATION, WHICH STUDIES ARE SUFFICIENT TO IDENTIFY: (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 OPERA- TION 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 CONDI- TION 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, PUBLIC HEALTH, SAFETY AND INFRASTRUCTURE SECURITY REGULATIONS AND RULES UNDER STATE AND MUNICIPAL LAWS, AND A STATEMENT WHY ANY VARIANCES OR EXCEPTIONS SHOULD BE GRANTED; (VI) WATER WITHDRAWALS AND DISCHARGES; (VII) A DESCRIPTION OF THE FUEL INTERCON- NECTION AND SUPPLY FOR THE PROJECT; AND (VIII) AN ELECTRIC INTERCON- NECTION STUDY, CONSISTING GENERALLY OF A DESIGN STUDY AND A SYSTEM RELI- ABILITY IMPACT STUDY; (E) SUCH EVIDENCE AS WILL ENABLE THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION TO EVALUATE THE FACILITY'S POLLUTION CONTROL SYSTEMS AND TO REACH A DETERMINATION TO ISSUE THEREFOR, SUBJECT TO APPROPRIATE CONDI- TIONS 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; (F) ANY OTHER INFORMATION THAT THE APPLICANT DEEMS RELEVANT OR THAT THE BOARD MAY REQUIRE; (G) A PLAN FOR SECURITY OF THE PROPOSED FACILITY DURING CONSTRUCTION AND OPERATION OF SUCH FACILITY, TO BE REVIEWED BY THE BOARD, IN CONSUL- TATION WITH THE NEW YORK STATE OFFICE OF HOMELAND SECURITY; (H) COPIES OF THE APPLICATION, INCLUDING THE REQUIRED INFORMATION, SHALL BE FILED WITH THE BOARD AND SHALL BE AVAILABLE FOR PUBLIC INSPECTION, PROVIDED, HOWEVER, THAT SUCH INSPECTION IS CONSISTENT WITH ARTICLE SIX OF THE PUBLIC OFFICERS LAW AND ARTICLE TWENTY-SIX OF THE EXECUTIVE LAW; AND (I) A STATEMENT EXPLAINING HOW THE FACILITY IS REASONABLY CONSISTENT WITH ENERGY POLICIES, GOALS AND/OR OBJECTIVES IN THE MOST RECENTLY ADOPTED STATE ENERGY PLAN. 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 AND, ADDI- TIONALLY, ANY COMMUNITY-BASED BOARD OR ORGANIZATION THAT HAS FILED A STATEMENT WITH THE BOARD WITHIN THE PAST TWELVE MONTHS THAT IT WISHES TO RECEIVE INFORMATION ON FACILITIES IN AREAS 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 (B) A NOTICE OF SUCH APPLICATION ON (I) PERSONS RESIDING IN MUNICI- PALITIES ENTITLED TO RECEIVE A COPY OF THE APPLICATION UNDER SUBPARA- GRAPH (I) OF PARAGRAPH (A) OF THIS SUBDIVISION. SUCH NOTICE SHALL BE GIVEN BY THE PUBLICATION OF A SUMMARY OF THE APPLICATION AND THE DATE ON OR ABOUT WHICH IT WILL BE FILED, TO BE PUBLISHED UNDER REGULATIONS TO BE PROMULGATED BY THE BOARD, IN SUCH FORM AND IN SUCH NEWSPAPER OR NEWSPA- PERS AS WILL SERVE SUBSTANTIALLY TO INFORM THE PUBLIC OF SUCH APPLICA- TION; (II) EACH MEMBER OF THE STATE LEGISLATURE IN WHOSE DISTRICT ANY PORTION OF THE FACILITY IS TO BE LOCATED AS PROPOSED OR IN ANY ALTERNA- TIVE LOCATION LISTED; AND (III) PERSONS WHO HAVE FILED A STATEMENT WITH THE BOARD WITHIN THE PAST TWELVE MONTHS THAT THEY WISH TO RECEIVE ALL SUCH NOTICES CONCERNING FACILITIES IN THE AREA IN WHICH THE FACILITY IS TO BE LOCATED AS PROPOSED OR IN ANY ALTERNATIVE LOCATION LISTED. 3. INADVERTENT FAILURE OF SERVICE ON ANY OF THE MUNICIPALITIES, PERSONS, AGENCIES, BODIES OR COMMISSIONS NAMED IN SUBDIVISION TWO OF THIS SECTION SHALL NOT BE JURISDICTIONAL AND MAY BE CURED PURSUANT TO REGULATIONS OF THE BOARD DESIGNED TO AFFORD SUCH PERSONS ADEQUATE NOTICE TO ENABLE THEM TO PARTICIPATE EFFECTIVELY IN THE PROCEEDING. IN ADDI- TION, THE BOARD MAY, AFTER FILING, REQUIRE THE APPLICANT TO SERVE NOTICE OF THE APPLICATION OR COPIES THEREOF OR BOTH UPON SUCH OTHER PERSONS AND FILE PROOF THEREOF AS THE BOARD MAY DEEM APPROPRIATE. 4. THE BOARD SHALL PRESCRIBE THE FORM AND CONTENT OF AN APPLICATION FOR AN AMENDMENT OF A CERTIFICATE TO BE ISSUED HEREUNDER. NOTICE OF SUCH AN APPLICATION SHALL BE GIVEN AS SET FORTH IN SUBDIVISION TWO OF THIS SECTION. 5. (A) EACH APPLICATION SHALL BE ACCOMPANIED BY A FEE IN AN AMOUNT EQUAL TO ONE THOUSAND DOLLARS FOR EACH THOUSAND KILOWATTS OF GENERATING CAPACITY OF THE SUBJECT FACILITY, BUT NO MORE THAN THREE HUNDRED THOU- SAND DOLLARS WITH SUCH AMOUNT TO INCLUDE THE PRE-APPLICATION FEE PROVIDED FOR IN SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-THREE OF THIS ARTICLE. SUCH FEE SHALL BE DEPOSITED IN THE INTERVENOR ACCOUNT, ESTABLISHED PURSUANT TO SECTION NINETY-NINE-T 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 MUNICI- PALITY WHICH IS THE APPLICANT) FOR EXPERT WITNESS AND CONSULTANT FEES. IF AT ANY TIME SUBSEQUENT TO THE FILING OF THE APPLICATION, THE APPLICA- TION IS AMENDED IN A MANNER THAT WARRANTS SUBSTANTIAL ADDITIONAL SCRUTI- NY, THE BOARD MAY REQUIRE AN ADDITIONAL INTERVENOR FEE IN AN AMOUNT NOT TO EXCEED ONE HUNDRED THOUSAND DOLLARS. THE BOARD SHALL PROVIDE FOR TRANSCRIPTS, THE REPRODUCTION AND SERVICE OF DOCUMENTS, AND THE PUBLICA- TION OF REQUIRED NOTICES FOR MUNICIPAL PARTIES. ANY MONEYS REMAINING IN THE INTERVENOR ACCOUNT SHALL BE RETURNED TO THE APPLICANT WITHIN FORTY- FIVE DAYS AFTER THE BOARD HAS ISSUED ITS DECISION ON AN APPLICATION UNDER THIS ARTICLE AND THE TIME FOR APPLYING FOR A REHEARING AND JUDI- CIAL REVIEW HAS EXPIRED. (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 ENSURE THAT THE PURPOSES FOR WHICH MONEYS IN THE INTERVENOR ACCOUNT WILL BE EXPENDED WILL CONTRIBUTE TO AN INFORMED DECI- SION AS TO THE APPROPRIATENESS OF THE SITE AND FACILITY AND ARE MADE AVAILABLE ON AN EQUITABLE BASIS IN A MANNER WHICH FACILITATES BROAD PUBLIC PARTICIPATION. S 165. HEARING SCHEDULE. 1. AFTER THE RECEIPT OF AN APPLICATION FILED PURSUANT TO SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, THE CHAIR- PERSON OF THE BOARD SHALL, WITHIN SIXTY DAYS OF SUCH RECEIPT, DETERMINE WHETHER THE APPLICATION COMPLIES WITH SUCH SECTION AND UPON A FINDING THAT THE APPLICATION SO COMPLIES, FIX A DATE FOR THE COMMENCEMENT OF A PUBLIC HEARING. THE CHAIRPERSON OF THE BOARD MAY REQUIRE THE FILING OF ANY ADDITIONAL INFORMATION NEEDED TO SUPPLEMENT AN APPLICATION BEFORE OR DURING THE HEARINGS. UPON A DETERMINATION THAT AN APPLICATION COMPLIES WITH SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION SHALL INITIATE A REVIEW PURSUANT TO FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL PERMITTING AUTHORITY. THE APPLICANT SHALL SUBMIT TO THE DEPARTMENT OF STATE COPIES OF THE APPLICATION, CONSISTENCY CERTIFICATION AND NECESSARY DATA AND INFORMATION SUFFICIENT TO INITIATE A REVIEW PURSUANT TO THE FEDERAL COASTAL ZONE MANAGEMENT ACT AND ITS REGULATIONS. 2. WITHIN A REASONABLE TIME AFTER THE DATE HAS BEEN FIXED BY THE CHAIRPERSON 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 STIPU- LATIONS 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 ISSUES WHICH WARRANT CONSIDERATION IN ORDER TO DEVELOP AN ADEQUATE RECORD AS DETERMINED BY AN ORDER OF THE BOARD. 3. ALL PARTIES SHALL BE PREPARED TO PROCEED IN AN EXPEDITIOUS MANNER AT THE HEARING SO THAT IT MAY PROCEED REGULARLY UNTIL COMPLETION. THE PLACE OF THE HEARING SHALL BE DESIGNATED BY THE PRESIDING EXAMINER. 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 ELECTRIC GENERATING FACILITY.
4. 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 CHAIRPERSON THAT AN APPLICATION COMPLIES WITH SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE; PROVIDED, HOWEVER, THAT 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 APPLI- CANT. 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 DEAD- LINE IS WAIVED BY THE APPLICANT, TO CONSIDER SUCH AMENDMENT. 5. ON AN APPLICATION FOR AN AMENDMENT OF A CERTIFICATE PROPOSING A CHANGE IN THE FACILITY LIKELY TO RESULT IN ANY MATERIAL INCREASE IN ANY ENVIRONMENTAL IMPACT OF THE FACILITY OR A SUBSTANTIAL CHANGE IN THE LOCATION OF ALL OR A PORTION OF SUCH FACILITY, A HEARING SHALL BE HELD IN THE SAME MANNER AS A HEARING ON AN APPLICATION FOR A CERTIFICATE. THE BOARD SHALL PROMULGATE RULES, REGULATIONS AND STANDARDS UNDER WHICH IT SHALL DETERMINE WHETHER HEARINGS ARE REQUIRED UNDER THIS SUBDIVISION AND SHALL MAKE SUCH DETERMINATIONS. S 166. PARTIES TO A CERTIFICATION PROCEEDING. 1. THE PARTIES TO THE CERTIFICATION PROCEEDINGS SHALL INCLUDE: (A) THE APPLICANT; (B) THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION; (C) THE DEPARTMENT OF ECONOMIC DEVELOPMENT; (D) THE DEPARTMENT OF HEALTH; (E) THE DEPARTMENT OF AGRICULTURE AND MARKETS; (F) THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY; (G) THE DEPARTMENT OF STATE; (H) THE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION; (I) WHERE THE FACILITY OR ANY PORTION THEREOF OR ANY ALTERNATIVE PROPOSED TO BE LOCATED WITHIN A CITY WITH A POPULATION OF ONE MILLION OR MORE, THE APPROPRIATE ENVIRONMENTAL PROTECTION AGENCY OF SUCH CITY; (J) 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; (K) A MUNICIPALITY ENTITLED TO RECEIVE A COPY OF THE APPLICATION UNDER PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, IF IT HAS FILED WITH THE BOARD A NOTICE OF INTENT TO BE A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN IN THE PUBLISHED NOTICE AS THE DATE FOR THE FILING OF THE APPLICATION; ANY MUNICIPALITY ENTITLED TO BE A PARTY HEREIN AND SEEKING TO ENFORCE ANY LOCAL ORDI- NANCE, LAW, RESOLUTION OR OTHER ACTION OR REGULATION OTHERWISE APPLICA- BLE, INCLUDING BUT NOT LIMITED TO, ANY THAT MAY REQUIRE APPROVAL FOR THE OCCUPATION OF MUNICIPAL PROPERTY BY AN ELECTRIC, FUEL, TELECOMMUNI- CATION, WATER, SEWER OR STEAM LINE OR INTERCONNECTION, SHALL PRESENT EVIDENCE IN SUPPORT THEREOF OR SHALL BE BARRED FROM THE ENFORCEMENT THEREOF; (L) 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; (M) ANY NON-PROFIT CORPORATION OR ASSOCIATION, FORMED IN WHOLE OR IN PART TO PROMOTE CONSERVATION OR NATURAL BEAUTY, TO PROTECT THE ENVIRON- MENT, PERSONAL HEALTH OR OTHER BIOLOGICAL VALUES, TO PRESERVE HISTORICAL SITES, TO PROMOTE CONSUMER INTERESTS, TO REPRESENT COMMERCIAL AND INDUS- TRIAL GROUPS OR TO PROMOTE THE ORDERLY DEVELOPMENT OF ANY AREA IN WHICH THE FACILITY IS TO BE LOCATED, IF IT HAS FILED WITH THE BOARD A NOTICE OF INTENT TO BECOME A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN IN THE PUBLISHED NOTICE AS THE DATE FOR FILING OF THE APPLICATION; (N) ANY OTHER MUNICIPALITY OR RESIDENT OF SUCH MUNICIPALITY LOCATED WITHIN A FIVE MILE RADIUS OF SUCH PROPOSED FACILITY, IF IT OR THE RESI- DENT HAS FILED WITH THE BOARD A NOTICE OF INTENT TO BECOME A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN IN THE PUBLISHED NOTICE AS THE DATE FOR FILING OF THE APPLICATION; (O) 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 OR PREDICTABLE PUBLIC HEALTH 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 (P) 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 ORAL TESTIMONY OR CROSS-EXAMINE WITNESSES OR PARTIES. 4. THE BOARD MAY FOR GOOD CAUSE SHOWN, PERMIT A MUNICIPALITY OR OTHER PERSON ENTITLED TO BECOME A PARTY UNDER SUBDIVISION ONE OF THIS SECTION, BUT HAS FAILED TO FILE THE REQUISITE NOTICE OF INTENT WITHIN THE TIME REQUIRED, TO BECOME A PARTY, AND TO PARTICIPATE IN ALL SUBSEQUENT STAGES OF THE PROCEEDING. S 167. CONDUCT OF HEARING. 1. (A) THE HEARING SHALL BE CONDUCTED IN AN EXPEDITIOUS MANNER BY A PRESIDING EXAMINER APPOINTED BY THE DEPARTMENT. AN ASSOCIATE HEARING EXAMINER SHALL BE APPOINTED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION PRIOR TO THE DATE SET FOR COMMENCEMENT OF THE PUBLIC HEARING. THE ASSOCIATE EXAMINER SHALL ATTEND ALL HEARINGS AS SCHEDULED BY THE PRESIDING EXAMINER, AND HE OR SHE SHALL ASSIST THE PRESIDING EXAMINER IN INQUIRING INTO AND CALLING FOR TESTIMONY CONCERN- ING RELEVANT AND MATERIAL MATTERS. THE CONCLUSIONS AND RECOMMENDATIONS OF THE ASSOCIATE EXAMINER SHALL BE INCORPORATED IN THE RECOMMENDED DECI- SION 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, THE RECORD IN THE PROCEEDING AND THE ASSOCIATE EXAMINER'S CONCLUSIONS AND RECOMMENDA-
TIONS SHALL, IN SO FAR 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) WHEN THE FACILITY IS PROPOSED TO BE LOCATED IN THE COASTAL AREA AND FEDERAL AUTHORIZATION IS REQUIRED, A COASTAL RESOURCE SPECIALIST SHALL BE DESIGNATED BY THE DEPARTMENT OF STATE PRIOR TO THE DATE SET FOR COMMENCEMENT OF THE PUBLIC HEARING. THE COASTAL RESOURCE SPECIALIST SHALL ATTEND ALL HEARINGS AS SCHEDULED BY THE PRESIDING AND ASSOCIATE EXAMINERS AND SHALL ASSIST THE PRESIDING AND ASSOCIATE EXAMINERS IN INQUIRING INTO AND CALLING FOR TESTIMONY CONCERNING RELEVANT AND MATERI- AL MATTERS. IN THE EVENT THAT THE SECRETARY OF STATE IS REQUIRED TO RENDER A CONSISTENCY DETERMINATION PURSUANT TO THE FEDERAL COASTAL ZONE MANAGEMENT ACT, THE RECORD IN THE PROCEEDINGS SHALL PROVIDE INFORMATION ON WHICH TO BASE THE DETERMINATION OF THE SECRETARY OF STATE WHETHER OR NOT TO CONCUR WITH THE APPLICANT'S CERTIFICATION. (C) THE TESTIMONY PRESENTED AT A HEARING SHALL BE PRESENTED IN WRIT- ING. 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. A RECORD SHALL BE MADE OF THE HEARING AND OF ALL TESTI- MONY 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 DETER- MINE. APPROPRIATE REGULATIONS SHALL BE ISSUED BY THE BOARD TO PROVIDE FOR PREHEARING DISCOVERY PROCEDURES BY PARTIES TO A PROCEEDING, CONSOL- IDATION OF THE REPRESENTATION OF PARTIES, THE EXCLUSION OF IRRELEVANT, REPETITIVE, REDUNDANT OR IMMATERIAL EVIDENCE, AND THE REVIEW OF RULINGS BY PRESIDING EXAMINERS. 2. A COPY OF THE RECORD SHALL BE MADE AVAILABLE BY THE BOARD AT ALL REASONABLE TIMES FOR EXAMINATION BY THE PUBLIC. 3. THE CHAIRPERSON 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 AN ELEC- TRIC GENERATING FACILITY SUBJECT TO THIS ARTICLE WITH RESPECT TO PROVID- ING FOR JOINT PROCEDURES AND A JOINT HEARING OF COMMON ISSUES ON A COMBINED RECORD; PROVIDED THAT SUCH AGREEMENT SHALL NOT DIMINISH THE RIGHTS ACCORDED TO ANY PARTY UNDER THIS ARTICLE. 4. THE PRESIDING EXAMINER SHALL ALLOW TESTIMONY TO BE RECEIVED ON REASONABLE AND AVAILABLE ALTERNATE LOCATIONS AND, WHERE APPROPRIATE, DEMAND-REDUCING MEASURES; PROVIDED, HOWEVER, THAT NOTICE OF THE INTENT TO SUBMIT SUCH TESTIMONY SHALL BE GIVEN WITHIN SUCH PERIOD AS THE PRESIDING EXAMINER SHALL PRESCRIBE, WHICH PERIOD SHALL BE NOT LESS THAN THIRTY NOR MORE THAN SIXTY DAYS AFTER THE COMMENCEMENT OF THE HEARING. IN ITS DISCRETION, THE BOARD MAY THEREAFTER CAUSE TO BE CONSIDERED OTHER REASONABLE AND AVAILABLE LOCATIONS AND, WHERE APPROPRIATE, DEMAND-REDUC- ING 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 ELECTRIC GENERATING FACILITY AND ITS PROPOSED
LOCATION FOR THAT FACILITY, AS REQUIRED PURSUANT TO PARAGRAPH (B) 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 (B) OF SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, SO THAT THE BOARD IS ABLE TO DECIDE, IN THE FIRST INSTANCE, WHETHER THE APPLICANT'S PROPOSAL IS PREFERABLE TO ALTERNATIVES. S 168. BOARD DECISIONS. 1. THE BOARD SHALL MAKE THE FINAL DECISION ON AN APPLICATION UNDER THIS ARTICLE FOR A CERTIFICATE OR AMENDMENT THERE- OF, UPON THE RECORD MADE BEFORE THE PRESIDING EXAMINER ON SUCH APPLICA- TION OR AMENDMENT THEREOF, AFTER RECEIVING BRIEFS AND EXCEPTIONS TO THE RECOMMENDED DECISION OF SUCH EXAMINER AND TO THE REPORT OF THE ASSOCIATE EXAMINER, AND AFTER HEARING SUCH ORAL ARGUMENT AS THE BOARD SHALL DETER- MINE. 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 ALTERNA- TIVES 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 RENDER A DECISION UPON THE RECORD EITHER TO GRANT OR DENY THE APPLICATION AS FILED OR TO CERTIFY THE FACILITY UPON SUCH TERMS, CONDITIONS, LIMITATIONS OR MODIFICATIONS OF THE CONSTRUCTION OR OPERATION OF THE FACILITY AS THE BOARD MAY DEEM APPROPRIATE. THE BOARD SHALL ISSUE, WITH ITS DECISION, AN OPINION STATING IN FULL ITS REASONS FOR ITS DECISION. THE BOARD SHALL ISSUE AN ORDER UPON THE DECISION AND THE OPINION EMBODYING THE TERMS AND CONDITIONS THEREOF IN FULL. FOLLOW- ING ANY REHEARING AND ANY JUDICIAL REVIEW OF THE BOARD'S DECISION, THE BOARD'S JURISDICTION OVER AN APPLICATION SHALL CEASE; PROVIDED, HOWEVER, THAT THE BOARD, EXCLUSIVE OF THE AD HOC MEMBERS, SHALL RETAIN JURISDIC- TION WITH RESPECT TO THE AMENDMENT, SUSPENSION OR REVOCATION OF A CERTIFICATE. THE COMMISSION SHALL MONITOR, ENFORCE AND ADMINISTER COMPLIANCE WITH ANY TERMS AND CONDITIONS SET FORTH IN THE BOARD'S ORDER. THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION SHALL BE RESPONSIBLE FOR ENFORCING CONTINUED COMPLIANCE BY A CERTIFICATED FACILITY WITH ALL ENVI- RONMENTAL LAWS, REGULATIONS AND STANDARDS. THE BOARD MAY NOT GRANT A CERTIFICATE FOR THE CONSTRUCTION OR OPERATION OF A MAJOR ELECTRIC GENER- ATING FACILITY OR A REPOWERING PROJECT, EITHER AS PROPOSED OR AS MODI- FIED BY THE BOARD, UNLESS IT SHALL FIRST FIND AND DETERMINE: (A) THAT THE FACILITY IS REASONABLY CONSISTENT WITH GOALS, STRATEGIES OR OBJECTIVES IN THE MOST RECENTLY ADOPTED STATE ENERGY PLAN; (B) THE NATURE OF THE PROBABLE ENVIRONMENTAL IMPACTS, INCLUDING AN EVALUATION OF THE PREDICTABLE ADVERSE AND BENEFICIAL IMPACTS ON THE ENVIRONMENT AND ECOLOGY, PUBLIC HEALTH AND SAFETY, AESTHETICS, SCENIC, HISTORIC AND RECREATIONAL VALUE, FOREST AND PARKS, FISH AND OTHER MARINE LIFE, AND WILDLIFE, AIR AND WATER QUALITY, INCLUDING THE CUMULATIVE EFFECT OF AIR EMISSIONS FROM EXISTING MAJOR ELECTRIC GENERATING FACILI- TIES AND FACILITIES CERTIFICATED BY THE BOARD SIXTY DAYS OR MORE PRIOR TO THE DATE OF THE FILING OF THE APPLICATION, AND THE POTENTIAL FOR SIGNIFICANT DETERIORATION IN LOCAL AIR QUALITY, WITH PARTICULAR ATTEN- TION TO FACILITIES LOCATED IN AREAS DESIGNATED AS SEVERE NONATTAINMENT, AND PREDICTABLE, SIGNIFICANT AND ADVERSE DISPROPORTIONATE ENVIRONMENTAL IMPACTS, IF ANY, FROM THE CONSTRUCTION AND/OR OPERATION OF THE PROPOSED FACILITY IN ACCORDANCE WITH REGULATIONS PROMULGATED BY THE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION FOR THE ANALYSIS OF ENVIRONMENTAL JUSTICE ISSUES; (C) THAT THE FACILITY (I) MINIMIZES ADVERSE ENVIRONMENTAL IMPACTS, CONSIDERING THE STATE OF AVAILABLE TECHNOLOGY, MITIGATION OF ANY PREDICTABLE, SIGNIFICANT AND ADVERSE DISPROPORTIONATE ENVIRONMENTAL IMPACTS, IF ANY, FROM THE CONSTRUCTION AND/OR OPERATION OF THE PROPOSED FACILITY, IN ACCORDANCE WITH REGULATIONS PROMULGATED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION REGARDING ENVIRONMENTAL JUSTICE ISSUES, THE NATURE AND ECONOMICS OF SUCH REASONABLE ALTERNATIVES AS ARE REQUIRED TO BE EXAMINED PURSUANT TO PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, THE INTEREST OF THE STATE WITH RESPECT TO AESTHETICS, PRESERVATION OF HISTORIC SITES, FOREST AND PARKS, FISH AND WILDLIFE, VIABLE AGRICULTURAL LANDS, AND OTHER PERTINENT CONSIDERATIONS, (II) IS COMPATIBLE WITH PUBLIC HEALTH AND SAFETY, (III) WILL NOT BE IN CONTRAVENTION OF WATER QUALITY STANDARDS OR BE INCONSIST- ENT WITH APPLICABLE REGULATIONS OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION OR, IN CASE NO CLASSIFICATION HAS BEEN MADE OF THE RECEIV- ING WATERS ASSOCIATED WITH THE FACILITY, WILL NOT DISCHARGE ANY EFFLUENT THAT WILL BE UNDULY INJURIOUS TO THE PROPAGATION AND PROTECTION OF FISH AND WILDLIFE, THE INDUSTRIAL DEVELOPMENT OF THE STATE, AND PUBLIC HEALTH AND PUBLIC ENJOYMENT OF THE RECEIVING WATERS, (IV) WILL NOT EMIT ANY POLLUTANTS TO THE AIR THAT WILL BE IN CONTRAVENTION OF APPLICABLE AIR EMISSION CONTROL REQUIREMENTS OR AIR QUALITY STANDARDS, (V) WILL CONTROL THE RUNOFF AND LEACHATE FROM ANY SOLID WASTE DISPOSAL FACILITY, AND (VI) WILL CONTROL THE DISPOSAL OF ANY HAZARDOUS WASTE; (D) IF A FACILITY IS PROPOSED TO BE LOCATED IN THE COASTAL AREA, THAT THE ACTION IS CONSISTENT WITH APPLICABLE POLICIES SET FORTH IN ARTICLE FORTY-TWO OF THE EXECUTIVE LAW, OR IF THE FACILITY IS PROPOSED TO BE LOCATED IN A MUNICIPALITY WITH A LOCAL WATERFRONT REVITALIZATION PROGRAM APPROVED BY THE SECRETARY OF STATE, THAT THE ACTION IS CONSISTENT TO THE EXTENT PRACTICABLE WITH THAT LOCAL WATERFRONT REVITALIZATION PROGRAM; (E) THAT THE FACILITY IS DESIGNED TO OPERATE IN COMPLIANCE WITH APPLI- CABLE 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 REFUSE TO APPLY ANY LOCAL ORDINANCE, LAW, RESOLUTION OR OTHER ACTION OR ANY REGULATION ISSUED THEREUNDER OR ANY LOCAL STANDARD OR REQUIREMENT, INCLUDING ANY THAT MAY REQUIRE APPROVAL FOR THE OCCUPATION OF MUNICIPAL PROPERTY BY AN ELECTRIC, FUEL, TELECOMMUNICATION, WATER, SEWER OR STEAM LINE OR INTERCONNECTION, WHICH WOULD BE OTHERWISE APPLICABLE IF IT FINDS THAT, AS APPLIED TO THE PROPOSED FACILITY, SUCH IS UNREASONABLY RESTRIC- TIVE 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; AND (F) THAT THE CONSTRUCTION AND OPERATION OF THE FACILITY IS IN THE PUBLIC INTEREST, CONSIDERING THE ENVIRONMENTAL IMPACTS OF THE FACILITY, INCLUDING THE PREDICTABLE HEALTH IMPACTS THEREOF AND REASONABLE ALTERNA- TIVES EXAMINED AS REQUIRED PURSUANT TO PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE. 3. A COPY OF THE BOARD'S DECISION AND OPINION SHALL BE SERVED ON EACH PARTY PERSONALLY OR BY MAIL. S 169. OPINION TO BE ISSUED WITH DECISION. IN RENDERING A DECISION ON AN APPLICATION FOR A CERTIFICATE, THE BOARD SHALL ISSUE AN OPINION STAT- ING ITS REASONS FOR THE ACTION TAKEN. IF THE BOARD HAS FOUND THAT ANY
LOCAL ORDINANCE, LAW, RESOLUTION, REGULATION OR OTHER ACTION ISSUED THEREUNDER OR ANY OTHER LOCAL STANDARD OR REQUIREMENT WHICH WOULD BE OTHERWISE APPLICABLE IS UNREASONABLY RESTRICTIVE PURSUANT TO PARAGRAPH (E) OF SUBDIVISION TWO OF SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTI- CLE, IT SHALL STATE IN ITS OPINION THE REASONS THEREFOR. S 170. REHEARING AND JUDICIAL REVIEW. 1. ANY PARTY AGGRIEVED BY THE BOARD'S DECISION DENYING OR GRANTING A CERTIFICATE MAY APPLY TO THE BOARD FOR A REHEARING WITHIN THIRTY DAYS AFTER ISSUANCE OF THE AGGRIEV- ING DECISION. ANY SUCH APPLICATION SHALL BE CONSIDERED AND DECIDED BY THE BOARD, AND ANY REHEARING SHALL BE COMPLETED AND A DECISION RENDERED THEREON WITHIN NINETY DAYS OF THE EXPIRATION OF THE PERIOD FOR FILING REHEARING PETITIONS; PROVIDED, HOWEVER, THAT THE BOARD MAY EXTEND THE DEADLINE BY NO MORE THAN NINETY DAYS WHERE A REHEARING IS REQUIRED IF NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE APPLICANT MAY WAIVE SUCH DEADLINE. THEREAFTER ANY SUCH 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 ON THE BOARD OF A DEMAND THAT THE BOARD FILE WITH SAID COURT A COPY OF A WRIT- TEN 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 OFFICIAL 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 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 OF THE STATE AND THE UNITED STATES; (B) SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD AND MATTERS OF OFFICIAL 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; OR (E) ARBITRARY, CAPRICIOUS OR AN ABUSE OF DISCRETION. 3. EXCEPT AS PROVIDED IN THIS SECTION, ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES SHALL APPLY TO APPEALS TAKEN PURSUANT TO THIS SECTION. S 171. JURISDICTION OF COURTS. EXCEPT AS EXPRESSLY SET FORTH IN SECTION ONE HUNDRED SEVENTY OF THIS ARTICLE AND EXCEPT FOR REVIEW BY THE COURT OF APPEALS OF A DECISION OF THE APPELLATE DIVISION OF THE SUPREME COURT AS PROVIDED FOR THEREIN, NO COURT OF THIS STATE SHALL HAVE JURIS- DICTION TO HEAR OR DETERMINE ANY MATTER, CASE OR CONTROVERSY CONCERNING ANY MATTER WHICH WAS OR COULD HAVE BEEN DETERMINED IN A PROCEEDING UNDER THIS ARTICLE OR TO STOP OR DELAY THE CONSTRUCTION OR OPERATION OF AN ELECTRIC GENERATING FACILITY PURSUANT TO THIS ARTICLE, EXCEPT TO ENFORCE COMPLIANCE WITH THIS ARTICLE OR THE TERMS AND CONDITIONS ISSUED THERE- UNDER. S 172. POWERS OF MUNICIPALITIES AND STATE AGENCIES. 1. NOTWITHSTAND- ING ANY OTHER PROVISION OF LAW, NO STATE AGENCY, MUNICIPALITY OR ANY AGENCY THEREOF MAY, EXCEPT AS EXPRESSLY AUTHORIZED UNDER THIS ARTICLE BY THE BOARD, REQUIRE ANY APPROVAL, CONSENT, PERMIT, CERTIFICATE OR OTHER CONDITION FOR THE CONSTRUCTION OR OPERATION OF AN ELECTRIC GENERATING FACILITY WITH RESPECT TO WHICH AN APPLICATION FOR A CERTIFICATE HERE- UNDER HAS BEEN FILED, INCLUDING ANY THAT MAY REQUIRE APPROVAL FOR THE OCCUPATION OF MUNICIPAL PROPERTY BY AN ELECTRIC, FUEL, TELECOMMUNI- CATION, WATER, SEWER OR STEAM LINE OR INTERCONNECTION, OTHER THAN THOSE PROVIDED BY OTHERWISE APPLICABLE STATE LAW FOR THE PROTECTION OF EMPLOY- EES ENGAGED IN THE CONSTRUCTION AND OPERATION OF SUCH FACILITY; PROVIDED, HOWEVER, THAT IN THE CASE OF A MUNICIPALITY OR AN AGENCY THER- EOF, SUCH MUNICIPALITY HAS RECEIVED NOTICE OF THE FILING OF THE APPLICA- TION THEREFOR; AND PROVIDED FURTHER, HOWEVER, THAT THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION MAY ISSUE 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; AND PROVIDED FURTHER HOWEVER, THAT THE DEPARTMENT OF STATE MAY MAKE CONSISTENCY DETERMINATIONS PURSUANT TO THE FEDERAL COASTAL ZONE MANAGE- MENT ACT. IN ISSUING SUCH DETERMINATIONS, THE SECRETARY OF STATE SHALL FOLLOW PROCEDURES ESTABLISHED IN THIS ARTICLE TO THE EXTENT THAT THEY ARE CONSISTENT WITH THE FEDERAL COASTAL ZONE MANAGEMENT ACT AND ITS IMPLEMENTING REGULATIONS. 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 AND THE SECRETARY OF STATE SHALL PROVIDE SUCH PERMITS AND DETERMINATIONS, RESPECTIVELY, TO THE BOARD PRIOR TO ITS DETERMINATION WHETHER OR NOT TO ISSUE A CERTIFICATE. 2. THE ADIRONDACK PARK AGENCY SHALL NOT HOLD PUBLIC HEARINGS FOR A MAJOR ELECTRIC GENERATING FACILITY WITH RESPECT TO WHICH AN APPLICATION HEREUNDER IS FILED, PROVIDED THAT SUCH AGENCY HAS RECEIVED NOTICE OF THE FILING OF SUCH APPLICATION. S 2. The opening paragraph and paragraph (b) of subdivision 5 of section 8-0111 of the environmental conservation law, as added by chap- ter 612 of the laws of 1975, are amended to read as follows: The requirements of [subdivision two of section 8-0109 of] this arti- cle shall not apply to:
(b) Actions subject to the provisions requiring a certificate of envi- ronmental compatibility and public need in articles seven and [eight] TEN AND THE FORMER ARTICLE EIGHT of the public service law; or S 3. 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 FORMER section one hundred forty of the public service law, for the construction or operation of which a certificate is required under THE FORMER article eight of [such] THE PUBLIC SERVICE law, OR A MAJOR ELEC- TRIC GENERATING FACILITY OR REPOWERING PROJECT AS DEFINED IN SECTION ONE HUNDRED SIXTY OF THE PUBLIC SERVICE LAW, FOR THE CONSTRUCTION OR OPERA- TION OF WHICH A CERTIFICATE IS REQUIRED UNDER ARTICLE TEN OF THE PUBLIC SERVICE LAW, [an applicant shall apply for and obtain such certificate in lieu of filing an application and obtaining a permit under this arti- cle. Any reference in this article to a permit shall, in the case of such major steam electric generating facility, be deemed for all purposes to refer to such certificate, provided that nothing] 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. NOTH- ING herein shall limit the authority of the [departments] DEPARTMENT of health and [environmental conservation] THE DEPARTMENT to monitor the environmental and health impacts resulting from the operation of such major steam electric generating facility OR MAJOR ELECTRIC GENERATING FACILITY OR REPOWERING PROJECT and to enforce applicable provisions of the public health LAW and [environmental conservation laws] THIS ARTICLE and the terms and conditions of the certificate governing the environ- mental 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 arti- cle and the Act. S 4. Paragraph j of subdivision 2 of section 19-0305 of the environ- mental conservation law, as amended by chapter 525 of the laws of 1981, is amended to read as follows: j. Consider for approval or disapproval applications for permits and certificates including plans or specifications for air contamination sources and air cleaning installations or any part thereof submitted [to him pursuant to] CONSISTENT WITH the rules of the department, and inspect the installation for compliance with the plans or specifica- tions; provided that in the case of a major steam electric generating facility, as defined in [either] FORMER section one hundred forty of the public service law, for which a certificate is required pursuant to [either] THE FORMER article eight of [such] THE PUBLIC SERVICE law, OR A MAJOR ELECTRIC GENERATING FACILITY OR REPOWERING PROJECT AS DEFINED IN SECTION ONE HUNDRED SIXTY OF THE PUBLIC SERVICE LAW, FOR WHICH A CERTIF- ICATE IS REQUIRED PURSUANT TO ARTICLE TEN OF THE PUBLIC SERVICE LAW, such approval functions [shall] MAY be performed by the state board on electric generation siting and the environment, as defined in [such] THE PUBLIC SERVICE law, PURSUANT TO FEDERALLY DELEGATED OR APPROVED ENVIRON- MENTAL PERMITTING AUTHORITY, and such inspection functions shall be performed by the department[; provided further that nothing]. NOTHING herein shall limit the authority of the [departments] DEPARTMENT of health and [environmental conservation] THE DEPARTMENT to monitor the
environmental and health impacts resulting from the operation of such major steam electric generating facility and to enforce applicable provisions of the public health LAW and [the environmental conservation laws] THIS CHAPTER and the terms and conditions of the certificate governing the environmental and health impacts resulting from such oper- ation. S 5. Paragraph (e) of subdivision 3 of section 49-0307 of the environ- mental conservation law, as added by chapter 292 of the laws of 1984, is amended to read as follows: (e) where land subject to a conservation easement or an interest in such land is required for a major utility transmission facility which has received a certificate of environmental compatibility and public need pursuant to article seven of the public service law or is required for a major steam electric generating facility which has received a certificate [or] OF environmental compatibility and public need pursuant to THE FORMER article eight of the public service law, OR A MAJOR ELEC- TRIC GENERATING FACILITY OR REPOWERING PROJECT WHICH HAS RECEIVED A CERTIFICATE OF ENVIRONMENTAL COMPATIBILITY AND PUBLIC NEED PURSUANT TO ARTICLE TEN OF THE PUBLIC SERVICE LAW, upon the filing of such certif- icate in a manner prescribed for recording a conveyance of real property pursuant to section two hundred ninety-one of the real property law or any other applicable provision of law, provided that such certificate contains a finding that the public interest in the conservation and protection of the natural resources, open spaces and scenic beauty of the Adirondack or Catskill parks has been considered. S 6. 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 SITING OF MAJOR ELECTRIC GENERATING FACILITIES OR REPOWERING PROJECTS AS DEFINED THEREIN, and except to the extent section eighteen-a of such 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 [conservation] department OF ENVIRONMENTAL CONSERVATION or to the func- tions, 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 7. Subdivision 1 of section 1020-s of the public authorities law, as added by chapter 517 of the laws of 1986, is amended to read as follows: 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 there- in, (b) article [eight] TEN of such law applies to the siting of a MAJOR ELECTRIC generating facility OR REPOWERING PROJECT as defined therein, and (c) section eighteen-a of such law provides for assessment for certain costs, property or operations. S 8. The state finance law is amended by adding a new section 99-t to read as follows: S 99-T. 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, ONE HUNDRED SIXTY-THREE-A 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 SECTION 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 9. Separability. 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 10. 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 existed prior to the effective date of this act, and provided further that prior to the effective date of the rules and regulations of the department of envi- ronmental conservation relating to the analysis of environmental justice issues pursuant to this act, the policies and guidelines of such depart- ment relating thereto in effect at the time an application is filed shall be applied in lieu of such rules and regulations.

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