S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  8394

                            I N  S E N A T E

                              June 28, 2010
                               ___________

Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Rules

AN ACT to amend the public service law, in relation  to  the  siting  of
  major  electric generating facilities; to amend the public authorities
  law, in relation to making technical corrections thereto; to amend the
  state finance law, in relation to establishing an intervenor  account;
  to  amend  the  environmental  conservation  law, in relation to power
  plant emissions and  performance  standards;  and  providing  for  the
  repeal of such provisions upon expiration thereof

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The public service law is amended by adding a  new  article
10 to read as follows:
                               ARTICLE 10

             SITING OF MAJOR ELECTRIC GENERATING FACILITIES

SECTION 160. DEFINITIONS.
        161. GENERAL PROVISIONS RELATING TO THE BOARD.
        162. BOARD CERTIFICATE.
        163. PRE-APPLICATION PROCEDURES.
        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.
        173. APPLICABILITY TO PUBLIC AUTHORITIES.
  S 160. DEFINITIONS.  WHERE  USED IN THIS ARTICLE, THE FOLLOWING TERMS,
UNLESS THE CONTEXT OTHERWISE REQUIRES, SHALL HAVE  THE  FOLLOWING  MEAN-
INGS:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD17925-01-0

S. 8394                             2

  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  THOUSAND  KILO-
WATTS OR MORE, INCLUDING INTERCONNECTION ELECTRIC TRANSMISSION LINES AND
FUEL GAS TRANSMISSION LINES THAT ARE NOT SUBJECT TO REVIEW UNDER ARTICLE
SEVEN  OF  THIS  CHAPTER.   FOR PURPOSES OF THIS ARTICLE, MAJOR ELECTRIC
GENERATING FACILITY SHALL INCLUDE ANY COMBINATION OF POWER PLANTS  WHICH
EXCEEDS  TWENTY  THOUSAND  KILOWATTS  OF  NAMEPLATE GENERATING CAPACITY,
BUILT OR CAUSED TO BE BUILT BY A SINGLE PERSON  WITHIN  A  TWELVE  MONTH
PERIOD,  WITHIN A SINGLE COUNTY, OR WITHIN ONE-HALF MILE OR LESS OF EACH
OTHER, OR WITHIN THE SAME FEDERALLY DESIGNATED CLEAN AIR ACT  NONATTAIN-
MENT ZONE.
  3.  "PERSON"  MEANS ANY INDIVIDUAL, CORPORATION, PUBLIC BENEFIT CORPO-
RATION, POLITICAL SUBDIVISION, GOVERNMENTAL AGENCY, MUNICIPALITY,  PART-
NERSHIP, CO-OPERATIVE 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.  ONE AD HOC PUBLIC MEMBER SHALL BE APPOINTED
BY THE CHIEF EXECUTIVE OFFICER REPRESENTING THE  MUNICIPALITY  IN  WHICH
THE  FACILITY  IS  PROPOSED,  OR, IN THE CITY OF NEW YORK, BY THE CHAIR-
PERSON OF THE COMMUNITY BOARD OF THE COMMUNITY  DISTRICT  IN  WHICH  THE
FACILITY IS PROPOSED, AND WHICH MEMBER SHALL BE A RESIDENT OF SUCH MUNI-
CIPALITY  OR  SUCH COMMUNITY DISTRICT IN WHICH THE FACILITY IS PROPOSED.
THE SECOND AD HOC PUBLIC MEMBER SHALL BE APPOINTED BY THE  CHIEF  EXECU-
TIVE  OFFICER OF THE COUNTY IN WHICH THE FACILITY IS PROPOSED, OR IN THE
CITY OF NEW YORK, BY THE BOROUGH PRESIDENT OF THE COUNTY  IN  WHICH  THE
FACILITY IS PROPOSED, AND WHICH MEMBER SHALL BE A RESIDENT OF SUCH COUN-
TY OR SUCH BOROUGH.  THE TERM OF THE AD HOC PUBLIC MEMBERS SHALL CONTIN-
UE  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 GENER-
ATING 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  MANUFACTUR-
ER'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

S. 8394                             3

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 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 SPECI-
FIED WITHIN THIS ARTICLE; AND (F) ANY OTHER DUTIES AS MAY BE  PRESCRIBED
BY THE BOARD, AFTER CONSULTATION WITH THE DEPARTMENT.
  9. "APPROVED PROCUREMENT PROCESS" MEANS ANY ELECTRIC CAPACITY PROCURE-
MENT  PROCESS  APPROVED  BY THE COMMISSION AND CONSISTENT WITH THE STATE
ENERGY PLAN ADOPTED PURSUANT TO ARTICLE SIX OF THE ENERGY LAW.
  S 161. GENERAL PROVISIONS RELATING TO THE BOARD.  UPON  RECEIPT  OF  A
PRE-APPLICATION  PRELIMINARY  SCOPING  STATEMENT UNDER THIS ARTICLE, THE
CHAIR SHALL PROMPTLY NOTIFY THE GOVERNOR; THE  CHIEF  EXECUTIVE  OFFICER
REPRESENTING  THE MUNICIPALITY IN WHICH THE FACILITY IS PROPOSED, OR, IN
THE CITY OF NEW YORK, THE CHAIRPERSON OF  THE  COMMUNITY  BOARD  OF  THE
COMMUNITY  DISTRICT  IN  WHICH  THE  FACILITY IS PROPOSED; AND THE CHIEF
EXECUTIVE OFFICER OF THE COUNTY IN WHICH THE FACILITY IS PROPOSED, OR IN
THE CITY OF NEW YORK, THE BOROUGH PRESIDENT OF THE COUNTY IN  WHICH  THE
FACILITY IS PROPOSED.  WITHIN THIRTY DAYS OF SUCH NOTIFICATION THE CHIEF
EXECUTIVE  OFFICERS SHALL APPOINT THE AD HOC PUBLIC 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.  IN THE EVENT THAT ONE OR
BOTH OF THE AD HOC PUBLIC MEMBERS HAVE NOT BEEN APPOINTED WITHIN  THIRTY
DAYS,  A  MAJORITY  OF  PERSONS  NAMED  TO  THE BOARD SHALL CONSTITUTE A
QUORUM.  THE BOARD, EXCLUSIVE OF THE AD HOC PUBLIC 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  ARTICLE,
SUBJECT  TO PROCEDURES ESTABLISHED BY THE STATE ADMINISTRATIVE PROCEDURE
ACT, 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  ELEC-
TRIC GENERATING FACILITIES. THE CHAIR, AFTER CONSULTATION WITH THE OTHER
MEMBERS  OF THE BOARD EXCLUSIVE OF THE AD HOC PUBLIC MEMBERS, SHALL HAVE
EXCLUSIVE JURISDICTION TO ISSUE DECLARATORY RULINGS REGARDING THE APPLI-
CABILITY OF, OR ANY OTHER QUESTION UNDER, THIS  ARTICLE  AND  RULES  AND
REGULATIONS  ADOPTED  HEREUNDER.  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 CONSERVA-
TION 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 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 PUBLIC
MEMBERS OF THE BOARD SHALL RECEIVE THE SUM OF TWO  HUNDRED  DOLLARS  FOR
EACH  DAY IN WHICH THEY ARE ACTUALLY ENGAGED IN THE PERFORMANCE OF THEIR
DUTIES HEREIN PLUS ACTUAL AND NECESSARY EXPENSES INCURRED BY THEM IN THE
PERFORMANCE OF SUCH DUTIES. THE  CHAIR  SHALL  PROVIDE  SUCH  PERSONNEL,
HEARING  EXAMINERS,  SUBORDINATES,  EMPLOYEES AND SUCH LEGAL, TECHNOLOG-
ICAL, SCIENTIFIC, ENGINEERING AND OTHER SERVICES AND SUCH MEETING ROOMS,
HEARING ROOMS AND OTHER FACILITIES AS MAY  BE  REQUIRED  IN  PROCEEDINGS

S. 8394                             4

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 PUBLIC MEMBERS 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 CHAIR.
  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  IN THE STATE, OR INCREASE THE CAPACITY OF AN EXISTING ELECTRIC
GENERATING FACILITY BY  MORE  THAN  TWENTY  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 CONDI-
TIONS CONTAINED THEREIN, PROVIDED THAT NOTHING HEREIN SHALL EXEMPT  SUCH
FACILITY  FROM  COMPLIANCE  WITH FEDERAL, STATE AND LOCAL LAWS AND REGU-
LATIONS EXCEPT AS OTHERWISE PROVIDED IN THIS  ARTICLE.  LOCAL  LAWS  AND
REGULATIONS SHALL APPLY AS OF THE DATE OF THE FILING OF THE PRE-APPLICA-
TION  PRELIMINARY SCOPING STATEMENT, EXCEPT TO THE EXTENT THAT ANY LOCAL
LAWS AND REGULATIONS ARE  MODIFIED  TO  EFFECTUATE  LAND  USE  PLANS  OR
PROPOSALS  INITIATED PRIOR TO THE DATE OF THE FILING OF THE PRE-APPLICA-
TION PRELIMINARY SCOPING STATEMENT.  A CERTIFICATE FOR A MAJOR  ELECTRIC
GENERATING FACILITY, OR AN INCREASE IN THE CAPACITY OF AN EXISTING ELEC-
TRIC  GENERATING FACILITY BY MORE THAN TWENTY 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 JURISDICTION, OR HAS JURISDICTION CONCURRENT WITH THAT OF
THE STATE AND HAS EXERCISED SUCH JURISDICTION TO THE EXCLUSION OF  REGU-
LATION 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 THOUSAND KILOWATTS;
  (C) TO A MAJOR ELECTRIC GENERATING FACILITY (I) CONSTRUCTED  ON  LANDS
DEDICATED  TO  INDUSTRIAL  USES,  (II) THE OUTPUT OF WHICH SHALL BE USED
SOLELY FOR INDUSTRIAL PURPOSES, ON THE PREMISES, AND (III) THE  GENERAT-
ING 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 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 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

S. 8394                             5

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 ELEC-
TRIC GENERATING FACILITY 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 CHAIR 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 AND HEALTH IMPACTS  FROM  THE  INCREMENTAL
INCREASE  IN  POLLUTION RESULTING FROM THE CONSTRUCTION AND OPERATION OF
THE PROPOSED FACILITY;
  (C) PROPOSED STUDIES OR PROGRAM OF STUDIES DESIGNED TO EVALUATE POTEN-
TIAL ENVIRONMENTAL AND HEALTH IMPACTS;
  (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
INCLUDING AN ANALYSIS OF THE POTENTIAL IMPACT OF UTILIZING  THE  BACK-UP
FUEL UPON THE FUEL SUPPLY AND DELIVERY INDUSTRIES; AND
  (F)  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 ENVIRON-
MENTAL 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  FOR CITIZEN INVOLVEMENT. SUCH OPPORTUNITIES SHALL ENCOUR-
AGE CONSULTATION WITH THE PUBLIC EARLY IN THE PRE-APPLICATION AND APPLI-
CATION PROCESSES, ESPECIALLY BEFORE  ANY  PARTIES  ENTER  A  STIPULATION
PURSUANT  TO  SUBDIVISION FOUR 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 TWO HUNDRED FIFTY DOLLARS FOR
EACH THOUSAND KILOWATTS OF GENERATING CAPACITY OF THE SUBJECT  FACILITY,
BUT  NO  MORE  THAN ONE HUNDRED THOUSAND DOLLARS, TO BE DEPOSITED IN THE
INTERVENOR ACCOUNT ESTABLISHED PURSUANT TO SECTION NINETY-SEVEN-JJJJ  OF
THE  STATE FINANCE LAW, TO BE DISBURSED AT THE HEARING EXAMINER'S DIREC-
TION TO DEFRAY PRE-APPLICATION EXPENSES INCURRED BY MUNICIPAL AND  OTHER
INTERESTED  PARTIES (EXCEPT FOR A MUNICIPALITY SUBMITTING THE PRE-APPLI-
CATION SCOPING STATEMENT) FOR EXPERT WITNESS, CONSULTANT, ADMINISTRATIVE
AND LEGAL FEES. IF AT ANY TIME SUBSEQUENT TO THE FILING OF  THE  PRE-AP-
PLICATION  THE PRE-APPLICATION IS SUBSTANTIALLY MODIFIED OR REVISED, THE

S. 8394                             6

BOARD MAY REQUIRE AN ADDITIONAL PRE-APPLICATION  INTERVENOR  FEE  IN  AN
AMOUNT  NOT TO EXCEED TWENTY-FIVE THOUSAND DOLLARS. ANY MONEYS REMAINING
IN THE INTERVENOR ACCOUNT UPON THE SUBMISSION OF AN  APPLICATION  FOR  A
CERTIFICATE  SHALL  BE  MADE AVAILABLE TO INTERVENORS ACCORDING TO PARA-
GRAPH (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 WITHIN SIXTY DAYS OF THE FILING
OF A PRE-APPLICATION PRELIMINARY SCOPING STATEMENT.
  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 (A) 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  STIPU-
LATION  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 PRELIM-
INARY 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 CONSULTA-
TION, THE DEPARTMENT SHALL DESIGNATE A HEARING EXAMINER WHO SHALL  OVER-
SEE  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 STIPU-
LATION PROCESS.
  S 164. APPLICATION FOR A CERTIFICATE. 1. AN APPLICANT  FOR  A  CERTIF-
ICATE  SHALL  FILE  WITH  THE CHAIR 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, ANTICIPATED EMISSIONS TO

S. 8394                             7

AIR,  INCLUDING  BUT NOT LIMITED TO PARTICULATE MATTER OF 2.5 MICRONS OR
SMALLER, FEDERAL CRITERIA  POLLUTANTS  AND  TOXINS,  INCLUDING  MERCURY,
ANTICIPATED  DISCHARGES  TO  WATER  AND  GROUNDWATER,  POLLUTION CONTROL
EQUIPMENT,  AND,  AS  APPROPRIATE,  GEOLOGICAL,  AESTHETIC,  ECOLOGICAL,
TSUNAMI, SEISMIC, BIOLOGICAL, WATER SUPPLY, POPULATION AND  LOAD  CENTER
DATA;
  (B)  STUDIES, IDENTIFYING THE AUTHOR AND DATE THEREOF, WHICH HAVE BEEN
MADE OF THE EXPECTED ENVIRONMENTAL AND HEALTH IMPACTS AND SAFETY  IMPLI-
CATIONS 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 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 METEORO-
LOGICAL, HYDROLOGICAL AND OTHER INFORMATION NEEDED TO SUPPORT SUCH ESTI-
MATES; (IV) CONCEPTUAL ARCHITECTURAL AND  ENGINEERING  PLANS  INDICATING
COMPATIBILITY  OF  THE  FACILITY  WITH  THE  ENVIRONMENT;  (V)  HOW  THE
CONSTRUCTION AND OPERATION OF THE FACILITY, INCLUDING TRANSPORTATION AND
DISPOSAL OF WASTES WOULD COMPLY WITH  ENVIRONMENTAL  HEALTH  AND  SAFETY
STANDARDS, REQUIREMENTS, REGULATIONS AND RULES UNDER STATE AND MUNICIPAL
LAWS, AND A STATEMENT WHY ANY VARIANCES OR EXCEPTIONS SHOULD BE GRANTED;
(VI)  WATER  WITHDRAWALS  FROM  AND DISCHARGES TO THE WATERSHED; (VII) A
DESCRIPTION OF THE FUEL INTERCONNECTION AND SUPPLY FOR THE PROJECT;  AND
(VIII)  AN  ELECTRIC  INTERCONNECTION  STUDY,  CONSISTING GENERALLY OF A
DESIGN STUDY AND A SYSTEM RELIABILITY IMPACT STUDY;
  (C) A STATEMENT DEMONSTRATING THAT THE  FACILITY  WILL  SATISFY  ADDI-
TIONAL  ELECTRIC  CAPACITY  OR OTHER ELECTRIC SYSTEM NEEDS, AND THAT THE
CONSTRUCTION OF THE FACILITY IS REASONABLY  CONSISTENT  WITH  LONG-RANGE
ENERGY PLANNING OBJECTIVES AND STRATEGIES;
  (D)  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  CONSERVA-
TION AND RECOVERY ACT;
  (E)  WHERE  THE  PROPOSED  FACILITY  INTENDS TO USE PETROLEUM OR OTHER
BACK-UP FUEL FOR GENERATING ELECTRICITY, EVIDENCE AND AN  EVALUATION  ON
BOTH (I) THE ADEQUACY OF THE FACILITY'S ON-SITE BACK-UP FUEL STORAGE AND
SUPPLY,  AND  (II) THE POTENTIAL IMPACT THAT INTERRUPTION OF THE FACILI-
TY'S PRIMARY FUEL WILL HAVE UPON THE FUEL SUPPLY AND DISTRIBUTION INDUS-
TRIES;
  (F) 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 EMERGENCY MANAGEMENT OFFICE  AND
IN  CITIES  WITH  A POPULATION OVER ONE MILLION, SUCH PLAN SHALL ALSO BE
REVIEWED BY THE LOCAL OFFICE OF EMERGENCY MANAGEMENT;
  (G) SUCH OTHER INFORMATION AS THE APPLICANT MAY CONSIDER  RELEVANT  OR
AS  MAY  BE  REQUIRED BY THE BOARD. COPIES OF THE APPLICATION, INCLUDING

S. 8394                             8

THE REQUIRED INFORMATION, SHALL BE FILED WITH THE  BOARD  AND  SHALL  BE
AVAILABLE FOR PUBLIC INSPECTION; AND
  (H)  A  DESCRIPTION AND EVALUATION OF REASONABLE ALTERNATIVE LOCATIONS
TO THE PROPOSED FACILITY, IF ANY, AND WITH RESPECT TO  A  FACILITY  THAT
HAS  NOT  BEEN  SELECTED  PURSUANT TO AN APPROVED PROCUREMENT PROCESS, A
DESCRIPTION AND EVALUATION OF REASONABLE  DEMAND  ENERGY  SUPPLY  SOURCE
ALTERNATIVES  AND,  WHERE  APPROPRIATE,  DEMAND-REDUCING MEASURES TO THE
PROPOSED FACILITY; 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.
  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 ALTERNA-
TIVE  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 OFFICER FOR PLACEMENT ON THE WEBSITE OF THE
DEPARTMENT; 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, INCLUDING LOCAL COMMUNITY AND GENERAL CIRCULATION  NEWSPAPERS,  AS
WILL  SERVE  SUBSTANTIALLY  TO INFORM THE PUBLIC OF SUCH APPLICATION, IN
PLAIN LANGUAGE, IN ENGLISH AND IN ANY OTHER LANGUAGE  SPOKEN  AS  DETER-
MINED  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 ALTERNA-
TIVE LOCATION LISTED; AND

S. 8394                             9

  (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 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 ALTERNATIVE LOCATION OR  A  REASONABLE  ALTERNATIVE
ENERGY SUPPLY SOURCE OR DEMAND REDUCING MEASURE NOT LISTED IN THE APPLI-
CATION  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 ADDI-
TIONAL FEE OF FIVE HUNDRED DOLLARS FOR EACH THOUSAND KILOWATT OF CAPACI-
TY, BUT NO MORE THAN TWO HUNDRED THOUSAND DOLLARS SHALL BE DEPOSITED  IN
THE    INTERVENOR    ACCOUNT,    ESTABLISHED    PURSUANT    TO   SECTION
NINETY-SEVEN-JJJJ 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  JUDI-
CIAL REVIEW. IF AT ANY TIME SUBSEQUENT TO THE FILING OF THE APPLICATION,
THE  APPLICATION  IS AMENDED IN A MANNER THAT WARRANTS SUBSTANTIAL ADDI-
TIONAL SCRUTINY, THE BOARD MAY REQUIRE AN ADDITIONAL INTERVENOR  FEE  IN
AN  AMOUNT  NOT  TO EXCEED ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS. THE
BOARD SHALL PROVIDE FOR TRANSCRIPTS, THE  REPRODUCTION  AND  SERVICE  OF
DOCUMENTS,  AND  THE  PUBLICATION OF REQUIRED 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 APPLI-
CATION 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 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. 8394                            10

  S 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. UPON A DETERMINATION THAT AN APPLICATION COMPLIES WITH  SECTION
ONE  HUNDRED  SIXTY-FOUR OF THIS ARTICLE THE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION MAY INITIATE A 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 PRESID-
ING  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 DEVEL-
OP  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 OPPOR-
TUNITY 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.
  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 CHAIR THAT AN
APPLICATION COMPLIES WITH SECTION ONE HUNDRED SIXTY-FOUR OF  THIS  ARTI-
CLE;  PROVIDED,  HOWEVER,  THE BOARD MAY EXTEND THE DEADLINE IN EXTRAOR-
DINARY CIRCUMSTANCES BY NO MORE THAN SIX MONTHS IN ORDER TO GIVE CONSID-
ERATION TO SPECIFIC ISSUES NECESSARY TO DEVELOP AN ADEQUATE RECORD.  THE
BOARD  MUST  RENDER A FINAL DECISION ON THE APPLICATION BY THE AFOREMEN-
TIONED 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.
  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. 8394                            11

  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, WHICH SHALL IN ANY
SUCH PROCEEDING PRESENT EXPERT TESTIMONY AND INFORMATION INCLUDING:
  (I) A CUMULATIVE IMPACTS ANALYSIS OF AIR QUALITY BASED ON EXISTING AND
PROJECTED EMISSIONS FROM EXISTING AND PROPOSED  SOURCES  LOCATED  WITHIN
THE COUNTY IN WHICH THE FACILITY IS PROPOSED AND EACH COUNTY ADJACENT TO
SUCH  COUNTY,  OR WHERE SUCH FACILITY IS PROPOSED IN CITIES WITH A POPU-
LATION OF ONE MILLION OR GREATER, FOR AN  AREA  COMPRISING  A  FIVE-MILE
RADIUS  FROM  THE  LOCATION  OF THE PROPOSED FACILITY, THE COUNTY OF THE
PROPOSED FACILITY AND EACH COUNTY ADJACENT TO  SUCH  COUNTY,  INCLUDING,
BUT NOT LIMITED TO, PARTICULATE MATTER OF 2.5 MICRONS OR SMALLER, FEDER-
AL  CRITERIA  POLLUTANTS  AND  TOXINS,  INCLUDING MERCURY, AND FOR WHICH
CUMULATIVE IMPACTS THE DEPARTMENT OF  ENVIRONMENTAL  CONSERVATION  SHALL
PROMULGATE  REGULATIONS  WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS
SUBPARAGRAPH;
  (II) A COMPREHENSIVE DEMOGRAPHIC, ECONOMIC AND PHYSICAL DESCRIPTION OF
THE COMMUNITY WITHIN WHICH THE FACILITY IS LOCATED,  WITHIN  A  TWO-MILE
RADIUS OF THE LOCATION OF THE PROPOSED FACILITY, COMPARED AND CONTRASTED
WITH  THE  COUNTY IN WHICH THE FACILITY IS PROPOSED AND WITH NEIGHBORING
COMMUNITIES, INCLUDING  RESIDENTIAL  PATTERNS,  POPULATION,  RACIAL  AND
ETHNIC  CHARACTERISTICS,  INCOME  LEVELS, EMPLOYMENT, OPEN SPACE, EDUCA-
TIONAL, BUSINESS, AND PUBLIC HEALTH DATA, INCLUDING BUT NOT  LIMITED  TO
INCIDENTS OF RESPIRATORY AILMENTS, CANCER, AND INFANT MORTALITY, AND FOR
WHICH  COMPREHENSIVE DESCRIPTION THE DEPARTMENT OF ENVIRONMENTAL CONSER-
VATION SHALL PROMULGATE REGULATIONS WITHIN SIX MONTHS OF  THE  EFFECTIVE
DATE OF THIS SUBPARAGRAPH;
  (III) ANY OTHER POTENTIAL ENVIRONMENTAL IMPACTS OF THE PROPOSED FACIL-
ITY, AND, AS APPROPRIATE, ANY ALTERNATE FACILITY OR ENERGY SOURCE ON THE
ENVIRONMENT,  AND WHETHER AND HOW SUCH FACILITY WOULD COMPLY WITH APPLI-
CABLE STATE AND FEDERAL ENVIRONMENTAL PROTECTION LAWS, STANDARDS,  RULES
AND REGULATIONS;
  (C) THE DEPARTMENT OF ECONOMIC DEVELOPMENT;
  (D)  THE DEPARTMENT OF HEALTH, WHICH SHALL CONSULT WITH THE DEPARTMENT
OF ENVIRONMENTAL CONSERVATION AND CONTRIBUTE TO THE DEVELOPMENT  OF  THE
ANALYSIS  AND TESTIMONY CONCERNING ISSUES DESCRIBED IN SUBPARAGRAPH (II)
OF PARAGRAPH (B) OF THIS SUBDIVISION;
  (E) THE DEPARTMENT OF AGRICULTURE AND MARKETS;
  (F) THE NEW YORK STATE  ENERGY  RESEARCH  AND  DEVELOPMENT  AUTHORITY,
WHICH  SHALL BE REQUIRED IN ANY SUCH PROCEEDING TO PRESENT EXPERT TESTI-
MONY AND INFORMATION CONSISTING OF:
  (I) A COST-BASED ANALYSIS OF THE  POTENTIAL  IMPACT  OF  THE  PROPOSED
FACILITY 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,  IN  COMPARISON
WITH THE COSTS FOR ACHIEVING AN EQUAL LEVEL OF CAPACITY THROUGH ALTERNA-
TIVE  RESOURCES, INCLUDING RENEWABLE ENERGY RESOURCES AND ENERGY CONSER-
VATION AND EFFICIENCY PROGRAMS, AND
  (II) A DISCUSSION OF THE CONTRIBUTION OR IMPAIRMENT  OF  THE  PROPOSED
FACILITY  TOWARDS  MEETING THE ENUMERATED GOALS AS DISCUSSED IN THE MOST
RECENT STATE ENERGY PLAN, INCLUDING 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 ALTERNATE LOCATIONS OR PROP-
ERTIES IDENTIFIED FOR POWER PLANT CONSTRUCTION, AND A STATEMENT  OF  THE

S. 8394                            12

REASONS  WHY  THE PROPOSED LOCATION AND SOURCE IS BEST SUITED, AMONG THE
ALTERNATIVES IDENTIFIED, TO PROMOTE PUBLIC HEALTH AND WELFARE;
  (G)  THE  DEPARTMENT  OF  STATE,  WHICH  SHALL BE REQUIRED IN ANY SUCH
PROCEEDING TO PRESENT EXPERT TESTIMONY AND  INFORMATION  CONCERNING  THE
COMPATIBILITY  OF  THE  PROPOSED FACILITY WITH FEDERAL AND STATE COASTAL
ZONE MANAGEMENT LAWS, REGULATIONS AND POLICIES;
  (H) THE OFFICE OF PARKS, RECREATION AND HISTORIC  PRESERVATION,  WHICH
SHALL BE REQUIRED IN ANY SUCH PROCEEDING TO PRESENT EXPERT TESTIMONY AND
INFORMATION  CONCERNING THE IMPACT OF THE PROPOSED FACILITY ON PARKLANDS
AND ARCHEOLOGICAL, HISTORICAL, CULTURAL AND RECREATIONAL RESOURCES;
  (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 ORDI-
NANCE, LAW, RESOLUTION OR OTHER ACTION OR REGULATION OTHERWISE  APPLICA-
BLE  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 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 APPLI-
CATION;
  (1) 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;
  (M) 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;
  (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.

S. 8394                            13

  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 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.
  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 SHALL ASSIST THE PRESIDING EXAM-
INER 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  RECOMMENDA-
TIONS.  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 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
OR ORALLY. 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  REPRESEN-
TATION  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 EXAMIN-
ER SHALL DETERMINE. APPROPRIATE REGULATIONS SHALL BE ISSUED BY THE BOARD
TO  PROVIDE FOR PREHEARING DISCOVERY PROCEDURES BY PARTIES TO A PROCEED-
ING, CONSOLIDATION 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 INCLUDING, BUT NOT LIMITED TO, TESTIMONY,
BRIEFS, E-MAILS AND HEARING TESTIMONY SHALL BE  MADE  AVAILABLE  BY  THE
BOARD  WITHIN  THIRTY  DAYS  FOR EXAMINATION BY THE PUBLIC, AND SHALL BE
MADE AVAILABLE ON THE DEPARTMENT'S WEBSITE.

S. 8394                            14

  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 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 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 APPROPRI-
ATE, 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  (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, 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 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  DETERMI-
NATION  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, INCLUDING A STATEMENT OF HOW THE DECISION IS CONSIST-
ENT WITH THE STATE ENERGY PLAN. THE BOARD SHALL ISSUE AN ORDER UPON  THE
DECISION  AND  THE OPINION EMBODYING THE TERMS AND CONDITIONS THEREOF IN
FULL.  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 BOARD SHALL RETAIN JURISDICTION WITH RESPECT
TO THE AMENDMENT, SUSPENSION OR REVOCATION OF A CERTIFICATE. THE COMMIS-
SION SHALL MONITOR, ENFORCE AND ADMINISTER COMPLIANCE WITH ANY TERMS AND
CONDITIONS SET FORTH IN THE BOARD'S ORDER.  THE BOARD MAY  NOT  GRANT  A

S. 8394                            15

CERTIFICATE FOR THE CONSTRUCTION OR OPERATION OF A MAJOR ELECTRIC GENER-
ATING  FACILITY,  EITHER AS PROPOSED OR AS MODIFIED BY THE BOARD, UNLESS
IT SHALL FIRST FIND AND DETERMINE:
  (A)  THAT THE FACILITY WILL SATISFY ADDITIONAL ELECTRIC CAPACITY NEEDS
OR OTHER ELECTRIC SYSTEM NEEDS, AND THAT THE CONSTRUCTION OF THE FACILI-
TY IS CONSISTENT WITH LONG-RANGE ENERGY PLANNING OBJECTIVES AND  STRATE-
GIES,  THE  BOARD  SHALL FIND AND DETERMINE THAT THE CONSTRUCTION OF THE
FACILITY IS REASONABLY CONSISTENT WITH THE POLICIES AND LONG-RANGE ENER-
GY PLANNING OBJECTIVES AND STRATEGIES CONTAINED IN THE MOST RECENT STATE
ENERGY PLAN, INCLUDING THAT THE ADDITIONAL ELECTRICITY PROVIDED  BY  THE
FACILITY  AS  PROPOSED  IS  NEEDED  AND IS THE MOST EFFECTIVE OPTION FOR
RATEPAYERS, CONSIDERING REQUIRED  CAPITAL  INVESTMENT,  COST,  RATEPAYER
IMPACTS,  SECURITY  AND DIVERSITY OF FUEL SUPPLIES AND GENERATING MODES,
PROTECTION OF PUBLIC HEALTH AND SAFETY, ADVERSE AND BENEFICIAL  ENVIRON-
MENTAL  IMPACTS,  CONSERVATION  OF  ENERGY  AND ENERGY RESOURCES AND ANY
OTHER POLICY OBJECTIVES DEEMED APPROPRIATE, COMPARED TO ALL OTHER ALTER-
NATIVES, INCLUDING DEMAND  REDUCTION  OPTIONS,  AND  THAT  THE  LOCATION
PROPOSED FOR THE FACILITY IS IDENTIFIED AS A SUITABLE LOCATION FOR POWER
PLANT CONSTRUCTION;
  (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, AIR AND WATER  QUALI-
TY,  INCLUDING  THE CUMULATIVE EFFECT OF AIR EMISSIONS FROM EXISTING AND
PROPOSED FACILITIES AND THE POTENTIAL FOR SIGNIFICANT  DETERIORATION  IN
LOCAL AIR QUALITY, WITH PARTICULAR ATTENTION TO FACILITIES LOCATED IN OR
NEAR  AREAS  DESIGNATED  AS  SEVERE NONATTAINMENT, FISH AND OTHER MARINE
LIFE AND WILDLIFE, OR LANDS INCLUDED IN THE STATE OPEN SPACE PLAN;
  (C) THAT THE FACILITY (I)  MINIMIZES  ADVERSE  ENVIRONMENTAL  IMPACTS,
CONSIDERING  THE STATE OF AVAILABLE TECHNOLOGY, THE NATURE AND ECONOMICS
OF SUCH REASONABLE ALTERNATIVES AS ARE REQUIRED TO BE EXAMINED  PURSUANT
TO  PARAGRAPH (F) OF SUBDIVISION ONE OF SECTION ONE HUNDRED SIXTY-SIX 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 CONTRA-
VENTION OF WATER QUALITY STANDARDS OR BE  INCONSISTENT  WITH  APPLICABLE
REGULATIONS  OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, OR IN CASE
NO CLASSIFICATION HAS BEEN MADE OF THE RECEIVING WATERS ASSOCIATED  WITH
THE  FACILITY, WILL NOT DISCHARGE ANY EFFLUENT THAT WILL BE UNDULY INJU-
RIOUS TO THE PROPAGATION AND PROTECTION OF FISH AND WILDLIFE, THE INDUS-
TRIAL 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)  WHERE  APPLICABLE,  THAT  THE FACILITY POSSESSES ADEQUATE ON-SITE
PETROLEUM OR OTHER BACK-UP FUEL SUPPLY AND STORAGE  TO  ACCOMMODATE  AND
MEET  THE SUPPLY NEEDS OF THE FACILITY DURING PERIODS OF INTERRUPTION OF
ITS PRIMARY FUEL WHILE NOT DISRUPTING OR NEGATIVELY IMPACTING  THE  FUEL
SUPPLY AND DISTRIBUTION INDUSTRIES;
  (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

S. 8394                            16

REFUSE  TO APPLY ANY LOCAL ORDINANCE, LAW, RESOLUTION OR OTHER ACTION OR
ANY REGULATION ISSUED THEREUNDER OR ANY LOCAL  STANDARD  OR  REQUIREMENT
WHICH  WOULD  BE OTHERWISE APPLICABLE IF IT FINDS THAT AS APPLIED TO THE
PROPOSED FACILITY SUCH IS UNREASONABLY RESTRICTIVE IN VIEW OF THE EXIST-
ING  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 ORDI-
NANCE,  LAW,  RESOLUTION, REGULATION OR OTHER LOCAL ACTION ISSUED THERE-
UNDER;
  (F) THAT THE CONSTRUCTION AND OPERATION OF  THE  FACILITY  IS  IN  THE
PUBLIC INTEREST, CONSIDERING THE ENVIRONMENTAL AND HEALTH IMPACTS OF THE
FACILITY  AND  REASONABLE  ALTERNATIVES EXAMINED AS REQUIRED PURSUANT TO
PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION ONE  HUNDRED  SIXTY-FOUR  OF
THIS ARTICLE; AND
  (G)  THAT  THE  FACILITY  BASED  ON  INFORMATION PRESENTED PURSUANT TO
SUBPARAGRAPHS (I) AND (II)  OF  PARAGRAPH  (B)  OF  SUBDIVISION  ONE  OF
SECTION  ONE  HUNDRED  SIXTY-SIX  OF  THIS ARTICLE, AS PROPOSED DOES NOT
PLACE OR INCREASE AN ADDITIONAL ENVIRONMENTAL  OR  HEALTH  BURDEN  ON  A
COMMUNITY THAT HAS A SIGNIFICANT LEVEL OF EMISSIONS GENERATED WITHIN THE
COMMUNITY AS COMPARED WITH THE COUNTY AVERAGE.
  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 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 PROCEED-
ING  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 FORTH-
WITH 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

S. 8394                            17

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  JURISDIC-
TION  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, 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 TO ENSURE FAIR TREATMENT AND MEANINGFUL  INVOLVEMENT  OF  ALL
PEOPLE REGARDLESS OF AGE, RACE, COLOR, NATIONAL ORIGIN AND INCOME.
  3.  EXCEPT AS HEREIN PROVIDED ARTICLE SEVENTY-EIGHT OF THE CIVIL PRAC-
TICE LAW AND RULES SHALL APPLY TO APPEALS TAKEN HEREUNDER.
  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  A
MAJOR  ELECTRIC  GENERATING  FACILITY  EXCEPT TO ENFORCE COMPLIANCE WITH
THIS ARTICLE OR THE TERMS AND CONDITIONS ISSUED THEREUNDER.
  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 A MAJOR ELECTRIC GENERAT-
ING  FACILITY  WITH  RESPECT  TO  WHICH AN APPLICATION FOR A CERTIFICATE
HEREUNDER HAS BEEN FILED, OTHER THAN THOSE PROVIDED BY OTHERWISE  APPLI-
CABLE  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 THEREFOR; 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

S. 8394                            18

ACT. IN ISSUING SUCH PERMITS, THE COMMISSIONER OF ENVIRONMENTAL  CONSER-
VATION SHALL FOLLOW PROCEDURES ESTABLISHED IN THIS ARTICLE TO THE EXTENT
THAT  THEY  ARE CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED ENVIRON-
MENTAL PERMITTING AUTHORITY. THE COMMISSIONER OF ENVIRONMENTAL CONSERVA-
TION  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 OR AFFECT THE REQUIRED REVIEW BY THE BOARD OF THE ANTICIPATED ENVI-
RONMENTAL 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 SIXTY-EIGHT OF THIS ARTI-
CLE, 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.
  S 173. APPLICABILITY TO PUBLIC AUTHORITIES. FOR PURPOSES OF THIS ARTI-
CLE,  THE  POWER  AUTHORITY  OF  THE STATE OF NEW YORK, THE GREEN ISLAND
POWER AUTHORITY AND THE LONG ISLAND POWER AUTHORITY SHALL BE REQUIRED TO
APPLY ALL PROVISIONS OF  THIS  ARTICLE  FOR  MAJOR  ELECTRIC  GENERATING
FACILITIES  WHICH  EITHER  AUTHORITY  BUILDS  OR CAUSES TO BE BUILT. FOR
GENERATING FACILITIES WHICH ARE NOT MAJOR  ELECTRIC  GENERATING  FACILI-
TIES,  NEITHER  AUTHORITY SHALL BE PERMITTED TO SERVE AS LEAD AGENCY FOR
PURPOSES OF ENVIRONMENTAL REVIEW PURSUANT TO THE PROVISIONS OF THE ENVI-
RONMENTAL CONSERVATION LAW.
  S 2. 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  such  law
provides  for  assessment  of  the  authority for certain costs relating
thereto, the provisions of the public service law and of  the  conserva-
tion  law  and  every  other  law  relating  to the department of public
service or the public service commission or to the ENVIRONMENTAL conser-
vation 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  3.  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 authori-
ty's siting and operation of a major transmission  facility  as  therein

S. 8394                            19

defined and article [eight] TEN of the public service law shall apply to
the  authority's siting and operation of a major [steam] electric gener-
ating facility as therein defined.
  S 4. 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 facili-
ties owned or operated by the authority shall  not  be  subject  to  the
provisions  of the public service law or to regulation by, or the juris-
diction of, the public service commission,  except  to  the  extent  (a)
article seven of the public service law applies to the siting and opera-
tion  of  a  major utility transmission facility as defined therein, (b)
article [eight] TEN of such law applies to the siting of a  MAJOR  ELEC-
TRIC  generating facility as defined therein, and (c) section eighteen-a
of such law provides for assessment for certain costs, property or oper-
ations.
  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 5. The state finance law is amended by adding a new section  97-jjjj
to read as follows:
  S  97-JJJJ.  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 SIXTY-THREE 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 6. 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:
  A.  "MERCURY"  MEANS  ELEMENTAL  MERCURY  AND  ANY COMPOUND CONTAINING
MERCURY.
  B. "MAJOR ELECTRIC GENERATING FACILITY" MEANS ANY ELECTRICITY GENERAT-
ING FACILITY WITH A NAMEPLATE CAPACITY OF TWENTY THOUSAND  KILOWATTS  OR
MORE.
  C. "ANNUAL MERCURY EMISSIONS RATE" MEANS THE POUNDS OF MERCURY EMITTED
BY MAJOR ELECTRIC GENERATING FACILITIES IN A GIVEN CALENDAR YEAR DIVIDED
BY  THE  TOTAL MEGAWATTS GENERATED IN A CALENDAR YEAR, USING METHODOLOGY
SET FORTH IN PARAGRAPH F OF SUBDIVISION TWO OF THIS SECTION.
  2. A. NO LATER THAN JANUARY FIRST, TWO THOUSAND  ELEVEN,  THE  COMMIS-
SIONER SHALL PROMULGATE RULES AND REGULATIONS SUCH THAT A MAJOR ELECTRIC
GENERATING FACILITY CONSTRUCTED AFTER THE EFFECTIVE DATE OF THIS SECTION
SHALL  EMIT  NO MORE THAN 1.3 POUNDS PER MEGAWATT HOUR OF TOTAL NITROGEN
OXIDE EMISSIONS BY MAY FIRST, TWO THOUSAND ELEVEN.

S. 8394                            20

  B. NO LATER THAN JANUARY FIRST, TWO THOUSAND ELEVEN, THE  COMMISSIONER
SHALL  PROMULGATE  RULES  AND  REGULATIONS  LIMITING THE AMOUNT OF TOTAL
SULFUR  DIOXIDE  EMITTED  BY  MAJOR   ELECTRIC   GENERATING   FACILITIES
CONSTRUCTED AFTER THE EFFECTIVE DATE OF THIS SECTION.
  C.  NO LATER THAN JANUARY FIRST, TWO THOUSAND ELEVEN, THE COMMISSIONER
SHALL PROMULGATE RULES AND REGULATIONS IMPLEMENTING REDUCTIONS IN  EMIS-
SIONS  OF  CARBON  DIOXIDE  IN  ACCORDANCE  WITH  THE PROVISIONS OF THIS
SECTION. THE COMMISSIONER SHALL DEVELOP A MECHANISM FOR  MAJOR  ELECTRIC
GENERATING  FACILITIES  CONSTRUCTED  AFTER  THE  EFFECTIVE  DATE OF THIS
SECTION TO COMPLY BASED ON AN EMISSIONS PERFORMANCE  STANDARD  EXPRESSED
IN POUNDS OF POLLUTANT EMITTED PER MEGAWATT HOUR GENERATED.
  D. UPON THE EFFECTIVE DATE OF THIS SECTION, THE COMMISSIONER SHALL SET
A  PERMANENT  CAP  ON  THE TOTAL AMOUNT OF CARBON DIOXIDE EMITTED BY ALL
FOSSIL FUEL-FIRED ELECTRICITY GENERATING UNITS HAVING A  RATED  CAPACITY
EQUAL TO OR GREATER THAN TWENTY-FIVE THOUSAND KILOWATTS THAT IS EQUAL TO
64,310,805 SHORT TONS AND BEGINNING JANUARY FIRST, TWO THOUSAND FIFTEEN,
SUCH CAP SHALL BE REDUCED BY TWO AND ONE-HALF PERCENT OF SAID AMOUNT PER
YEAR FOR FOUR CONSECUTIVE YEARS.
  E.  THE COMMISSIONER MAY ESTABLISH OR EMPLOY AN EMISSIONS CREDIT TRAD-
ING MECHANISM TO FACILITATE COMPLIANCE WITH CARBON DIOXIDE REQUIREMENTS.
  F. BY JANUARY FIRST,  TWO  THOUSAND  ELEVEN,  THE  COMMISSIONER  SHALL
PROMULGATE  RULES  AND REGULATIONS THAT PROVIDE A METHODOLOGY FOR DETER-
MINING THE ANNUAL MERCURY EMISSIONS RATE, MEASURED IN POUNDS  PER  MEGA-
WATT, FROM MAJOR ELECTRIC GENERATING FACILITIES IN THIS STATE.
  G. THE COMMISSIONER SHALL PROMULGATE, NO LATER THAN JANUARY FIRST, TWO
THOUSAND ELEVEN, RULES AND REGULATIONS SUCH THAT A MAJOR ELECTRIC GENER-
ATING  FACILITY  CONSTRUCTED  AFTER  THE  EFFECTIVE DATE OF THIS SECTION
SHALL EMIT NO MORE THAN 2.5 POUNDS PER MEGAWATT HOUR  OF  TOTAL  MERCURY
EMISSIONS BY JANUARY FIRST, TWO THOUSAND TWELVE.
  3.  THE  EMISSION  RATES,  LIMITATIONS, AND PRACTICES REQUIRED BY THIS
SECTION SHALL NOT BE CONSTRUED  TO  SUPERSEDE  MORE  STRINGENT  EMISSION
RATES,  LIMITATIONS,  AND PRACTICES THAT ARE APPLICABLE ON THE EFFECTIVE
DATE OF THIS SECTION OR MAY BECOME APPLICABLE AFTER SUCH EFFECTIVE DATE.
  S 7. 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  8.  This  act shall take effect immediately and shall expire and be
deemed repealed December 31, 2020; and 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.