S T A T E   O F   N E W   Y O R K
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                                  7005

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              April 7, 2011
                               ___________

Introduced by M. of A. CAHILL -- read once and referred to the Committee
  on Energy

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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02145-03-1

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  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  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

A. 7005                             3

THAT ASSURE FULL AND ADEQUATE PUBLIC PARTICIPATION IN MATTERS BEFORE THE
BOARD; (B) RESPONDING TO INQUIRIES FROM THE PUBLIC  FOR  INFORMATION  ON
HOW TO PARTICIPATE IN MATTERS BEFORE THE BOARD; (C) ASSISTING THE PUBLIC
IN REQUESTING RECORDS RELATING TO MATTERS BEFORE THE BOARD; (D) ENSURING
ALL  INTERESTED  PERSONS  ARE  PROVIDED WITH A REASONABLE OPPORTUNITY TO
PARTICIPATE AT PUBLIC MEETINGS RELATING TO 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,

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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
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.

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  5. ANY PERSON INTENDING  TO  CONSTRUCT  A  MAJOR  ELECTRIC  GENERATING
FACILITY  EXCLUDED  FROM THIS ARTICLE PURSUANT TO PARAGRAPH (B), (C), OR
(D) OF SUBDIVISION FOUR OF THIS SECTION MAY ELECT TO BECOME  SUBJECT  TO
THE  PROVISIONS OF THIS ARTICLE BY DELIVERING NOTICE OF SUCH ELECTION TO
THE  CHAIR  OF  THE  BOARD.  THIS ARTICLE SHALL THEREAFTER APPLY TO EACH
ELECTRIC GENERATING FACILITY IDENTIFIED IN SUCH NOTICE FROM THE DATE  OF
ITS RECEIPT BY THE CHAIR OF THE BOARD. FOR THE PURPOSES OF THIS ARTICLE,
EACH  SUCH FACILITY SHALL BE TREATED IN THE SAME MANNER AS A MAJOR 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 FIVE OF THIS SECTION. THE PRIMARY GOALS OF THE
CITIZEN PARTICIPATION  PROCESS  SHALL  BE  TO  FACILITATE  COMMUNICATION
BETWEEN  THE  APPLICANT AND INTERESTED OR AFFECTED PERSONS.  THE PROCESS
SHALL FOSTER THE  ACTIVE  INVOLVEMENT  OF  THE  INTERESTED  OR  AFFECTED
PERSONS.
  4.  (A)  EACH  PRE-APPLICATION  PRELIMINARY SCOPING STATEMENT SHALL BE
ACCOMPANIED BY A FEE IN AN AMOUNT EQUAL TO 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-KKKK  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

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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
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:

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  (A) A DESCRIPTION OF THE SITE AND A DESCRIPTION OF THE FACILITY TO  BE
BUILT   THEREON;   INCLUDING   AVAILABLE   SITE  INFORMATION,  MAPS  AND
DESCRIPTIONS, PRESENT AND PROPOSED DEVELOPMENT,  SOURCE  AND  VOLUME  OF
WATER REQUIRED FOR PLANT OPERATION AND COOLING, ANTICIPATED EMISSIONS TO
AIR,  INCLUDING  BUT NOT LIMITED TO 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

A. 7005                             8

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
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;

A. 7005                             9

  (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 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-KKKK OF THE STATE FINANCE  LAW,  TO  BE  DISBURSED  AT  THE
BOARD'S  DIRECTION,  TO  DEFRAY EXPENSES INCURRED BY MUNICIPAL AND OTHER
LOCAL PARTIES TO THE PROCEEDING (EXCEPT  A  MUNICIPALITY  WHICH  IS  THE
APPLICANT)  FOR  EXPERT  WITNESS,  CONSULTANT,  ADMINISTRATIVE AND LEGAL
FEES, PROVIDED, HOWEVER, SUCH EXPENSES SHALL NOT BE AVAILABLE FOR  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

A. 7005                            10

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 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.  (A)  EXCEPT  AS  PROVIDED  IN  PARAGRAPH  (B) OF THIS SUBDIVISION,
PROCEEDINGS ON AN APPLICATION SHALL BE COMPLETED IN ALL  RESPECTS  IN  A
MANNER  CONSISTENT  WITH  FEDERALLY  DELEGATED OR APPROVED ENVIRONMENTAL
PERMITTING AUTHORITY, INCLUDING A FINAL DECISION BY  THE  BOARD,  WITHIN
TWELVE  MONTHS  FROM  THE  DATE  OF A DETERMINATION BY THE CHAIR THAT AN
APPLICATION COMPLIES WITH SECTION ONE HUNDRED SIXTY-FOUR OF  THIS  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.
  (B)  PROCEEDINGS  ON  AN  APPLICATION BY AN OWNER OF AN EXISTING MAJOR
ELECTRIC GENERATING FACILITY TO MODIFY SUCH EXISTING FACILITY OR SITE  A
NEW  MAJOR  ELECTRIC  GENERATING FACILITY ADJACENT OR CONTIGUOUS TO SUCH
EXISTING FACILITY, SHALL BE  COMPLETED  IN  ALL  RESPECTS  IN  A  MANNER
CONSISTENT WITH FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL PERMITTING
AUTHORITY,  INCLUDING  A  FINAL DECISION BY THE BOARD, WITHIN SIX MONTHS

A. 7005                            11

FROM THE DATE OF A DETERMINATION BY  THE  CHAIR  THAT  SUCH  APPLICATION
COMPLIES  WITH  SECTION ONE HUNDRED SIXTY-FOUR OF THIS ARTICLE, WHENEVER
SUCH APPLICATION DEMONSTRATES THAT THE OPERATION OF THE MODIFIED FACILI-
TY,  OR  OF THE EXISTING FACILITY AND NEW FACILITY IN COMBINATION, WOULD
RESULT IN:
  (I) A DECREASE IN THE RATE OF EMISSION OF EACH OF THE RELEVANT  SITING
AIR  CONTAMINANTS  BY  A  PERCENTAGE  WHICH SHALL BE DETERMINED FOR EACH
FACILITY BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION AND WHICH SHALL
BE BASED ON THE LOAD ZONE OF EACH FACILITY.   FOR  FACILITIES  THAT  ARE
PARTIALLY  REPLACED OR MODIFIED, THE PERCENTAGE DECREASE SHALL BE CALCU-
LATED BY COMPARING (ON A POUNDS-PER-MEGAWATT HOUR BASIS)  THE  POTENTIAL
TO  EMIT  OF  EACH  SUCH  CONTAMINANT OF THE EXISTING UNIT THAT IS TO BE
MODIFIED OR REPLACED AS OF THE DATE OF APPLICATION UNDER THIS ARTICLE TO
THE FUTURE POTENTIAL TO EMIT EACH SUCH CONTAMINANT OF  THE  MODIFIED  OR
REPLACEMENT UNIT AS PROPOSED IN THE APPLICATION. FOR FACILITIES THAT ARE
SITED  PHYSICALLY  ADJACENT  OR  CONTIGUOUS TO AN EXISTING FACILITY, THE
PERCENTAGE  DECREASE  SHALL   BE   CALCULATED   BY   COMPARING   (ON   A
POUNDS-PER-MEGAWATT  HOUR  BASIS)  THE  POTENTIAL  TO  EMIT OF EACH SUCH
CONTAMINANT OF THE EXISTING FACILITY AS OF THE DATE OF APPLICATION UNDER
THIS ARTICLE, TO THE FUTURE POTENTIAL TO EMIT EACH SUCH  CONTAMINANT  OF
THE EXISTING AND NEW FACILITY COMBINED AS PROPOSED IN THE APPLICATION;
  (II) A REDUCTION OF THE TOTAL ANNUAL EMISSIONS OF EACH OF THE RELEVANT
SITING AIR CONTAMINANTS EMITTED BY THE EXISTING FACILITY BY A PERCENTAGE
WHICH  SHALL  BE DETERMINED FOR EACH FACILITY BY THE DEPARTMENT OF ENVI-
RONMENTAL CONSERVATION AND WHICH SHALL BE BASED ON THE LOAD ZONE OF EACH
FACILITY. THE PERCENTAGE REDUCTION SHALL BE CALCULATED BY COMPARING  (ON
A  POUNDS-PER-YEAR BASIS) THE PAST ACTUAL EMISSIONS OF EACH OF THE RELE-
VANT SITING AIR CONTAMINANTS EMITTED BY THE EXISTING  FACILITY  AVERAGED
OVER  THE THREE YEARS PRECEDING THE DATE OF APPLICATION UNDER THIS ARTI-
CLE, TO THE ANNUALIZED POTENTIAL TO EMIT EACH SUCH  CONTAMINANT  OF  THE
MODIFIED  FACILITY  OR  OF  THE  COMBINED  EXISTING  AND NEW FACILITY AS
PROPOSED IN THE APPLICATION;
  (III) (A) FOR AIR CONTAMINANTS OTHER THAN CARBON DIOXIDE, EMPLOYS  AIR
POLLUTION  CONTROL  TECHNOLOGY  THAT  ACHIEVES  LAER, AND (B) FOR CARBON
DIOXIDE, MEETS AN EMISSION RATE  WHICH  SHALL  BE  DETERMINED  FOR  EACH
FACILITY BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION AND WHICH SHALL
BE  BASED ON THE LOAD ZONE OF EACH FACILITY PER MEGAWATT HOUR, PROVIDED,
THAT FOR FACILITIES THAT WILL USE MORE THAN ONE FUEL, THE CARBON DIOXIDE
EMISSION RATE SHALL BE CALCULATED ON THE BASIS OF THE PRIMARY FUEL USE;
  (IV) WHEN A NEW COOLING WATER INTAKE STRUCTURE  IS  PLANNED,  INSTALLS
CLOSED-CYCLE COOLING OR SOME OTHER TECHNOLOGY THAT WITHDRAWS WATER AT AN
AMOUNT EQUAL TO OR LESS THAN CLOSED-CYCLE COOLING; AND
  (V)  WILL RESULT IN A LOWER HEAT RATE THAN THE HEAT RATE OF THE EXIST-
ING FACILITY.
  THE APPLICANT SHALL SUPPLY THE DETAILS OF THE ANALYSIS IN THE APPLICA-
TION AND SUCH SUPPORTING INFORMATION, AS MAY BE REQUESTED BY  THE  BOARD
OR,  IN  THE  EXERCISE  OF FEDERALLY DELEGATED OR APPROVED ENVIRONMENTAL
PERMITTING AUTHORITY,  THE  DEPARTMENT  OF  ENVIRONMENTAL  CONSERVATION,
NECESSARY  TO  SHOW COMPLIANCE WITH THE REQUIREMENTS OF SUBPARAGRAPH (I)
OF THIS PARAGRAPH. FOR FACILITIES OVER TWO  HUNDRED  THOUSAND  KILOWATTS
WHICH HAVE NOT BEEN SELECTED PURSUANT TO AN APPROVED PROCUREMENT PROCESS
THE  BOARD  MAY EXTEND THE DEADLINE IN EXTRAORDINARY CIRCUMSTANCES BY NO
MORE THAN THREE MONTHS IN ORDER TO GIVE CONSIDERATION TO SPECIFIC ISSUES
NECESSARY TO DEVELOP AN ADEQUATE RECORD. THE BOARD SHALL RENDER A  FINAL
DECISION  ON THE APPLICATION BY THE AFOREMENTIONED DEADLINES UNLESS SUCH
DEADLINES ARE WAIVED BY THE APPLICANT. IF, AT ANY TIME SUBSEQUENT TO THE

A. 7005                            12

COMMENCEMENT OF THE HEARING, THERE IS A MATERIAL AND SUBSTANTIAL  AMEND-
MENT  TO  THE APPLICATION, THE DEADLINES MAY BE EXTENDED BY NO MORE THAN
THREE MONTHS, UNLESS SUCH  DEADLINE  IS  WAIVED  BY  THE  APPLICANT,  TO
CONSIDER SUCH AMENDMENT.
  5.  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, 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

A. 7005                            13

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
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

A. 7005                            14

BECAUSE  OF  THE POTENTIAL ENVIRONMENTAL EFFECTS ON SUCH MUNICIPALITY OR
PERSON, IF THE MUNICIPALITY OR PERSON HAS FILED WITH THE BOARD A  NOTICE
OF INTENT TO BECOME A PARTY, WITHIN FORTY-FIVE DAYS AFTER THE DATE GIVEN
IN  THE  PUBLISHED  NOTICE  AS  THE  DATE FOR FILING OF THE APPLICATION,
TOGETHER WITH AN EXPLANATION OF THE POTENTIAL ENVIRONMENTAL  EFFECTS  ON
SUCH MUNICIPALITY OR PERSON; AND
  (O)  SUCH  OTHER PERSONS OR ENTITIES AS THE BOARD MAY AT ANY TIME DEEM
APPROPRIATE, WHO  MAY  PARTICIPATE  IN  ALL  SUBSEQUENT  STAGES  OF  THE
PROCEEDING.
  2.  THE  DEPARTMENT  SHALL  DESIGNATE  MEMBERS  OF ITS STAFF WHO SHALL
PARTICIPATE AS A PARTY IN PROCEEDINGS UNDER THIS ARTICLE.
  3. ANY PERSON MAY MAKE A  LIMITED  APPEARANCE  IN  THE  PROCEEDING  BY
FILING  A  STATEMENT OF HIS OR HER INTENT TO LIMIT HIS OR HER APPEARANCE
IN WRITING AT ANY TIME PRIOR TO THE COMMENCEMENT  OF  THE  HEARING.  ALL
PAPERS  AND  MATTERS FILED BY A PERSON MAKING A LIMITED APPEARANCE SHALL
BECOME PART OF THE RECORD. NO PERSON MAKING A LIMITED  APPEARANCE  SHALL
BE  A  PARTY  OR  SHALL  HAVE  THE  RIGHT  TO  PRESENT 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

A. 7005                            15

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.
  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

A. 7005                            16

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
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

A. 7005                            17

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
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-

A. 7005                            18

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
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

A. 7005                            19

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
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[,]

A. 7005                            20

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
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-kkkk
to read as follows:
  S  97-KKKK.  INTERVENOR ACCOUNT. 1. THERE IS HEREBY ESTABLISHED IN THE
JOINT CUSTODY OF THE STATE COMPTROLLER AND THE COMMISSIONER OF  TAXATION
AND FINANCE AN ACCOUNT TO BE KNOWN AS THE INTERVENOR ACCOUNT.
  2.  SUCH  ACCOUNT  SHALL  CONSIST OF ALL REVENUES RECEIVED FROM SITING
APPLICATION FEES FOR ELECTRIC GENERATING FACILITIES PURSUANT TO SECTIONS
ONE HUNDRED SIXTY-THREE AND ONE HUNDRED SIXTY-FOUR OF THE PUBLIC SERVICE
LAW.
  3. MONEYS OF THE ACCOUNT, FOLLOWING APPROPRIATION BY THE  LEGISLATURE,
MAY  BE  EXPENDED  IN  ACCORDANCE  WITH  THE  PROVISIONS OF SECTIONS ONE
HUNDRED 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.

A. 7005                            21

  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  TWELVE,  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 TWELVE.
  B. NO LATER THAN JANUARY FIRST, TWO THOUSAND TWELVE, 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 TWELVE, 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 SIXTEEN,
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  TWELVE,  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 TWELVE, 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 THIRTEEN.
  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, 2021; 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.