N.Y. PBS Law § 164 — New York Code / Act PBS / Article 10 / Section 164
Application for a certificate
Status: in_force

§ 164. Application for a certificate. 1. An applicant for a\ncertificate shall file with the board an application, in such form as\nthe board may prescribe containing the following information and\nmaterials:\n  (a) A description of the site and a description of the facility to be\nbuilt thereon; including available site information, maps and\ndescriptions, present and proposed development, source and volume of\nwater required for plant operation and cooling, anticipated emissions to\nair, including but not limited to federal criteria pollutants and\nmercury, anticipated discharges to water and groundwater, pollution\ncontrol equipment, and, as appropriate, geological, visual or other\naesthetic, ecological, tsunami, seismic, biological, water supply,\npopulation and load center data;\n  (b) An evaluation of the expected environmental and health impacts and\nsafety implications of the facility, both during its construction and\nits operation, including any studies, identifying the author and date\nthereof, used in the evaluation, which identifies (i) the anticipated\ngaseous, liquid and solid wastes to be produced at the facility\nincluding their source, anticipated volumes, composition and\ntemperature, and such other attributes as the board may specify and the\nprobable level of noise during construction and operation of the\nfacility; (ii) the treatment processes to reduce wastes to be released\nto the environment, the manner of disposal for wastes retained and\nmeasures for noise abatement; (iii) the anticipated volumes of wastes to\nbe released to the environment under any operating condition of the\nfacility, including such meteorological, hydrological and other\ninformation needed to support such estimates; (iv) conceptual\narchitectural and engineering plans indicating compatibility of the\nfacility with the environment; (v) how the construction and operation of\nthe facility, including transportation and disposal of wastes would\ncomply with environmental health and safety standards, requirements,\nregulations and rules under state and municipal laws, and a statement\nwhy any variances or exceptions should be granted; (vi) water\nwithdrawals from and discharges to the watershed; (vii) a description of\nthe fuel interconnection and supply for the project; and (viii) an\nelectric interconnection study, consisting generally of a design study\nand a system reliability impact study;\n  (c) Such evidence as will enable the board and the commissioner of\nenvironmental conservation to evaluate the facility's pollution control\nsystems and to reach a determination to issue therefor, subject to\nappropriate conditions and limitations, permits pursuant to federal\nrecognition of state authority in accordance with the federal Clean\nWater Act, the federal Clean Air Act and the federal Resource\nConservation and Recovery Act, and permits pursuant to section 15-1503\nand article nineteen of the environmental conservation law;\n  (d) Where the proposed facility intends to use petroleum or other\nback-up fuel for generating electricity, evidence and an evaluation on\nthe adequacy of the facility's on-site back-up fuel storage and supply;\n  (e) A plan for security of the proposed facility during construction\nand operation of such facility and the measures to be taken to ensure\nthe safety and security of the local community, including contingency,\nemergency response and evacuation control, to be reviewed by the board\nin consultation with the New York state division of homeland security\nand emergency services and in cities with a population over one million,\nsuch plan shall also be reviewed by the local office of emergency\nmanagement;\n  (f) In accordance with rules and regulations that shall be promulgated\nby the department of environmental conservation for the analysis of\nenvironmental justice issues, including the requirements of paragraphs\n(g) and (h) of subdivision one of this section, an evaluation of\nsignificant and adverse disproportionate environmental impacts of the\nproposed facility, if any, resulting from its construction and\noperation, including any studies identifying the author and dates\nthereof, which were used in the evaluation;\n  (g) A cumulative impact analysis of air quality within a half-mile of\nthe facility, or other radius as determined by standards established by\ndepartment of environmental conservation regulations, that considers\navailable data associated with projected emissions of air pollutants,\nincluding but not limited to federal criteria pollutants and mercury,\nfrom sources, including, but not limited to, the facility, facilities\nthat have been proposed under this article and have submitted an\napplication determined to be in compliance by the board, existing\nsources, and sources permitted but not yet constructed that were\npermitted sixty or more days prior to the filing of the application\nunder title V of the clean air act, provided that such analysis and\nstandards shall be in accordance with rules and regulations that shall\nbe promulgated by the department of environmental conservation pursuant\nto this paragraph;\n  (h) A comprehensive demographic, economic and physical description of\nthe community within which the facility is located, within a half-mile\nradius of the location of the proposed facility, compared and contrasted\nwith the county in which the facility is proposed and with adjacent\ncommunities within such county, including reasonably available data on\npopulation, racial and ethnic characteristics, income levels, open\nspace, and public health data, including available department of public\nhealth data on incidents of asthma and cancer provided that such\ndescription and comparison shall be in accordance with rules and\nregulations promulgated pursuant to paragraph (f) of this subdivision;\n  (i) A description and evaluation of reasonable and available alternate\nlocations to the proposed facility, if any; a description of the\ncomparative advantages and disadvantages as appropriate; and a statement\nof the reasons why the primary proposed location and source, as\nappropriate, is best suited, among the alternatives considered, to\npromote public health and welfare, including the recreational and other\nconcurrent uses which the site may serve, provided that the information\nrequired pursuant to this paragraph shall be no more extensive than\nrequired under article eight of the environmental conservation law;\n  (j) For proposed wind-powered facilities, the expected environmental\nimpacts of the facility on avian and bat species based on\npre-construction studies conducted pursuant to paragraph (c) of\nsubdivision one of section one hundred sixty-three of this article; and\na proposed plan to avoid or, where unavoidable, minimize and mitigate\nany such impacts during construction and operation of the facility based\non existing information and results of post-construction monitoring\nproposed in the plan;\n  (k) An analysis of the potential impact that the proposed facility\nwill have on the wholesale generation markets, both generally and for\nthe location-based market in which the facility is proposed, as well as\nthe potential impact of the proposed facility on fuel costs;\n  (l) A statement demonstrating that the facility is reasonably\nconsistent with the most recent state energy plan, including, but not\nlimited to, impacts on fuel diversity, regional requirements for\ncapacity, electric transmission and fuel delivery constraints and other\nissues as appropriate, including the comparative advantages and\ndisadvantages of reasonable and available alternate locations or\nproperties identified for power plant construction, and a statement of\nthe reasons why the proposed location and source is best suited, among\nthe alternatives identified, to promote public health and welfare;\n  (m) Such other information as the applicant may consider relevant or\nas may be required by the board. Copies of the application, including\nthe required information, shall be filed with the board and shall be\navailable for public inspection; and\n  2. Each application shall be accompanied by proof of service, in such\nmanner as the board shall prescribe, of:\n  (a) A copy of such application on (i) each municipality in which any\nportion of such facility is to be located as proposed or in any\nalternative location listed. Such copy to a municipality shall be\naddressed to the chief executive officer thereof and shall specify the\ndate on or about which the application is to be filed;\n  (ii) each member of the board;\n  (iii) the department of agriculture and markets;\n  (iv) the secretary of state;\n  (v) the attorney general;\n  (vi) the department of transportation;\n  (vii) the office of parks, recreation and historic preservation;\n  (viii) a library serving the district of each member of the state\nlegislature in whose district any portion of the facility is to be\nlocated as proposed or in any alternative location listed;\n  (ix) in the event that such facility or any portion thereof as\nproposed or in any alternative location listed is located within the\nAdirondack park, as defined in subdivision one of section 9-0101 of the\nenvironmental conservation law, the Adirondack park agency; and\n  (x) the public information coordinator for placement on the website of\nthe department; and\n  (b) A notice of such application on (i) persons residing in\nmunicipalities entitled to receive a copy of the application under\nsubparagraph (i) of paragraph (a) of this subdivision. Such notice shall\nbe given by the publication of a summary of the application and the date\non or about which it will be filed, to be published under regulations to\nbe promulgated by the board, in such form and in such newspaper or\nnewspapers, including local community and general circulation\nnewspapers, as will serve substantially to inform the public of such\napplication, in plain language, in English and in any other language\nspoken as determined by the board by a significant portion of the\npopulation in the community, that describes the proposed facility and\nits location, the range of potential environmental and health impacts of\neach pollutant, the application and review process, and a contact\nperson, with phone number and address, from whom information will be\navailable as the application proceeds;\n  (ii) each member of the state legislature in whose district any\nportion of the facility is to be located as proposed or in any\nalternative location listed; and\n  (iii) persons who have filed a statement with the secretary within the\npast twelve months that they wish to receive all such notices concerning\nfacilities in the area in which the facility is to be located as\nproposed or in any alternative location listed.\n  3. Inadvertent failure of service on any of the municipalities,\npersons, agencies, bodies or commissions named in subdivision two of\nthis section shall not be jurisdictional and may be cured pursuant to\nregulations of the board designed to afford such persons adequate notice\nto enable them to participate effectively in the proceeding. In\naddition, the board may, after filing, require the applicant to serve\nnotice of the application or copies thereof or both upon such other\npersons and file proof thereof as the board may deem appropriate.\n  4. The board shall prescribe the form and content of an application\nfor an amendment of a certificate to be issued pursuant to this article.\nNotice of such an application shall be given as set forth in subdivision\ntwo of this section.\n  5. If a reasonable and available alternate location not listed in the\napplication is proposed in the certification proceeding, notice of such\nproposed alternative shall be given as set forth in subdivision two of\nthis section.\n  6. (a) Each application shall be accompanied by a fee in an amount (i)\nequal to one thousand dollars for each thousand kilowatts of capacity,\nbut no more than four hundred thousand dollars, (ii) and for facilities\nthat will require storage or disposal of fuel waste byproduct an\nadditional fee of five hundred dollars for each thousand kilowatt of\ncapacity, but no more than fifty thousand dollars shall be deposited in\nthe intervenor account, established pursuant to section\nninety-seven-kkkk of the state finance law, to be disbursed at the\nboard's direction, to defray expenses incurred by municipal and other\nlocal parties to the proceeding (except a municipality which is the\napplicant) for expert witness, consultant, administrative and legal\nfees, provided, however, such expenses shall not be available for\njudicial review or litigation. If at any time subsequent to the filing\nof the application, the application is amended in a manner that warrants\nsubstantial additional scrutiny, the board may require an additional\nintervenor fee in an amount not to exceed seventy-five thousand dollars.\nThe board shall provide for notices, for municipal and other local\nparties, in all appropriate languages. Any moneys remaining in the\nintervenor account after the board's jurisdiction over an application\nhas ceased shall be returned to the applicant.\n  (b) Notwithstanding any other provision of law to the contrary, the\nboard shall provide by rules and regulations for the management of the\nintervenor account and for disbursements from the account, which rules\nand regulations shall be consistent with the purpose of this section to\nmake available to municipal parties at least one-half of the amount of\nthe intervenor account and for uses specified in paragraph (a) of this\nsubdivision. In addition, the board shall provide other local parties up\nto one-half of the amount of the intervenor account, provided, however,\nthat the board shall assure that the purposes for which moneys in the\nintervenor account will be expended will contribute to an informed\ndecision as to the appropriateness of the site and facility and are made\navailable on an equitable basis in a manner which facilitates broad\npublic participation.\n