NY Pub Serv L § 164 (2021)
2021 New York Laws PBS - Public Service Article 10 - Siting of Major Electric Generating Facilities 164 - Application for a Certificate.

§   164.  Application  for  a  certificate.  1.  An  applicant  for  a certificate shall file with the board an application, in  such  form  as the  board  may  prescribe  containing  the  following  information  and materials:  (a) A description of the site and a description of the facility to  be built   thereon;   including   available   site  information,  maps  and descriptions, present and proposed development,  source  and  volume  of water required for plant operation and cooling, anticipated emissions to air,  including  but  not  limited  to  federal  criteria pollutants and mercury, anticipated discharges  to  water  and  groundwater,  pollution control  equipment,  and,  as  appropriate,  geological, visual or other aesthetic,  ecological,  tsunami,  seismic,  biological,  water  supply, population and load center data;  (b) An evaluation of the expected environmental and health impacts and safety  implications  of  the facility, both during its construction and its operation, including any studies, identifying the  author  and  date thereof,  used  in  the evaluation, which identifies (i) the anticipated gaseous, liquid  and  solid  wastes  to  be  produced  at  the  facility including   their   source,   anticipated   volumes,   composition   and temperature, and such other attributes as the board may specify and  the probable  level  of  noise  during  construction  and  operation  of the facility; (ii) the treatment processes to reduce wastes to  be  released to  the  environment,  the  manner  of  disposal for wastes retained and measures for noise abatement; (iii) the anticipated volumes of wastes to be released to the environment under  any  operating  condition  of  the facility,   including   such   meteorological,  hydrological  and  other information  needed  to  support   such   estimates;   (iv)   conceptual architectural  and  engineering  plans  indicating  compatibility of the facility with the environment; (v) how the construction and operation of the facility, including transportation  and  disposal  of  wastes  would comply  with  environmental  health  and safety standards, requirements, regulations and rules under state and municipal laws,  and  a  statement why   any   variances  or  exceptions  should  be  granted;  (vi)  water withdrawals from and discharges to the watershed; (vii) a description of the fuel interconnection and supply  for  the  project;  and  (viii)  an electric  interconnection  study, consisting generally of a design study and a system reliability impact study;  (c) Such evidence as will enable the board  and  the  commissioner  of environmental  conservation to evaluate the facility's pollution control systems and to reach a  determination  to  issue  therefor,  subject  to appropriate  conditions  and  limitations,  permits  pursuant to federal recognition of state authority in  accordance  with  the  federal  Clean Water   Act,  the  federal  Clean  Air  Act  and  the  federal  Resource Conservation and Recovery Act, and permits pursuant to  section  15-1503 and article nineteen of the environmental conservation law;  (d)  Where  the  proposed  facility  intends to use petroleum or other back-up fuel for generating electricity, evidence and an  evaluation  on the adequacy of the facility's on-site back-up fuel storage and supply;  (e)  A  plan for security of the proposed facility during construction and operation of such facility and the measures to be  taken  to  ensure the  safety  and security of the local community, including contingency, emergency response and evacuation control, to be reviewed by  the  board in  consultation  with  the New York state division of homeland security and emergency services and in cities with a population over one million, such plan shall also be  reviewed  by  the  local  office  of  emergency management;  (f) In accordance with rules and regulations that shall be promulgated by  the  department  of  environmental  conservation for the analysis of  environmental justice issues, including the requirements  of  paragraphs (g)  and  (h)  of  subdivision  one  of  this  section, an evaluation of significant and adverse disproportionate environmental  impacts  of  the proposed   facility,   if  any,  resulting  from  its  construction  and operation, including  any  studies  identifying  the  author  and  dates thereof, which were used in the evaluation;  (g)  A cumulative impact analysis of air quality within a half-mile of the facility, or other radius as determined by standards established  by department  of  environmental  conservation  regulations, that considers available data associated with projected emissions  of  air  pollutants, including  but  not  limited to federal criteria pollutants and mercury, from sources, including, but not limited to,  the  facility,  facilities that  have  been  proposed  under  this  article  and  have submitted an application determined to  be  in  compliance  by  the  board,  existing sources,  and  sources  permitted  but  not  yet  constructed  that were permitted sixty or more days prior to  the  filing  of  the  application under  title  V  of  the  clean air act, provided that such analysis and standards shall be in accordance with rules and regulations  that  shall be  promulgated by the department of environmental conservation pursuant to this paragraph;  (h) A comprehensive demographic, economic and physical description  of the  community  within which the facility is located, within a half-mile radius of the location of the proposed facility, compared and contrasted with the county in which the facility  is  proposed  and  with  adjacent communities  within  such county, including reasonably available data on population, racial  and  ethnic  characteristics,  income  levels,  open space,  and public health data, including available department of public health data on  incidents  of  asthma  and  cancer  provided  that  such description  and  comparison  shall  be  in  accordance  with  rules and regulations promulgated pursuant to paragraph (f) of this subdivision;  (i) A description and evaluation of reasonable and available alternate locations to the  proposed  facility,  if  any;  a  description  of  the comparative advantages and disadvantages as appropriate; and a statement of  the  reasons  why  the  primary  proposed  location  and  source, as appropriate, is best  suited,  among  the  alternatives  considered,  to promote  public health and welfare, including the recreational and other concurrent uses which the site may serve, provided that the  information required  pursuant  to  this  paragraph  shall be no more extensive than required under article eight of the environmental conservation law;  (j) For proposed wind-powered facilities, the  expected  environmental impacts   of   the   facility   on   avian  and  bat  species  based  on pre-construction  studies  conducted  pursuant  to  paragraph   (c)   of subdivision  one of section one hundred sixty-three of this article; and a proposed plan to avoid or, where unavoidable,  minimize  and  mitigate any such impacts during construction and operation of the facility based on  existing  information  and  results  of post-construction monitoring proposed in the plan;  (k) An analysis of the potential impact  that  the  proposed  facility will  have  on  the wholesale generation markets, both generally and for the location-based market in which the facility is proposed, as well  as the potential impact of the proposed facility on fuel costs;  (l)   A  statement  demonstrating  that  the  facility  is  reasonably consistent with the most recent state energy plan,  including,  but  not limited  to,  impacts  on  fuel  diversity,  regional  requirements  for capacity, electric transmission and fuel delivery constraints and  other issues   as   appropriate,  including  the  comparative  advantages  and disadvantages  of  reasonable  and  available  alternate  locations   or properties  identified  for power plant construction, and a statement of  the reasons why the proposed location and source is best  suited,  among the alternatives identified, to promote public health and welfare;  (m)  Such  other information as the applicant may consider relevant or as may be required by the board. Copies of  the  application,  including the  required  information,  shall  be filed with the board and shall be available for public inspection; and   2. Each application shall be accompanied by proof of service, in  such manner as the board shall prescribe, of:  (a)  A  copy of such application on (i) each municipality in which any portion of such facility  is  to  be  located  as  proposed  or  in  any alternative  location  listed.  Such  copy  to  a  municipality shall be addressed to the chief executive officer thereof and shall  specify  the date on or about which the application is to be filed;  (ii) each member of the board;  (iii) the department of agriculture and markets;  (iv) the secretary of state;  (v) the attorney general;  (vi) the department of transportation;  (vii) the office of parks, recreation and historic preservation;  (viii)  a  library  serving  the  district of each member of the state legislature in whose district any portion  of  the  facility  is  to  be located as proposed or in any alternative location listed;  (ix)  in  the  event  that  such  facility  or  any portion thereof as proposed or in any alternative location listed  is  located  within  the Adirondack  park, as defined in subdivision one of section 9-0101 of the environmental conservation law, the Adirondack park agency; and  (x) the public information coordinator for placement on the website of the department; and  (b)  A  notice  of  such  application  on  (i)  persons  residing   in municipalities  entitled  to  receive  a  copy  of the application under subparagraph (i) of paragraph (a) of this subdivision. Such notice shall be given by the publication of a summary of the application and the date on or about which it will be filed, to be published under regulations to be promulgated by the board, in such  form  and  in  such  newspaper  or newspapers,   including   local   community   and   general  circulation newspapers, as will serve substantially to inform  the  public  of  such application,  in  plain  language,  in English and in any other language spoken as determined by the  board  by  a  significant  portion  of  the population  in  the  community, that describes the proposed facility and its location, the range of potential environmental and health impacts of each pollutant, the  application  and  review  process,  and  a  contact person,  with  phone  number  and address, from whom information will be available as the application proceeds;  (ii) each member of  the  state  legislature  in  whose  district  any portion  of  the  facility  is  to  be  located  as  proposed  or in any alternative location listed; and  (iii) persons who have filed a statement with the secretary within the past twelve months that they wish to receive all such notices concerning facilities in the area in  which  the  facility  is  to  be  located  as proposed or in any alternative location listed.   3.  Inadvertent  failure  of  service  on  any  of the municipalities, persons, agencies, bodies or commissions named  in  subdivision  two  of this  section  shall  not be jurisdictional and may be cured pursuant to regulations of the board designed to afford such persons adequate notice to  enable  them  to  participate  effectively  in  the  proceeding.  In addition,  the  board  may, after filing, require the applicant to serve notice of the application or copies thereof  or  both  upon  such  other persons and file proof thereof as the board may deem appropriate.    4.  The  board  shall prescribe the form and content of an application for an amendment of a certificate to be issued pursuant to this article. Notice of such an application shall be given as set forth in subdivision two of this section.   5.  If a reasonable and available alternate location not listed in the application is proposed in the certification proceeding, notice of  such proposed  alternative  shall be given as set forth in subdivision two of this section.   6. (a) Each application shall be accompanied by a fee in an amount (i) equal to one thousand dollars for each thousand kilowatts  of  capacity, but  no more than four hundred thousand dollars, (ii) and for facilities that will require  storage  or  disposal  of  fuel  waste  byproduct  an additional  fee  of  five  hundred dollars for each thousand kilowatt of capacity, but no more than fifty thousand dollars shall be deposited  in the    intervenor    account,    established    pursuant    to   section ninety-seven-kkkk of the state finance  law,  to  be  disbursed  at  the board's  direction,  to  defray expenses incurred by municipal and other local parties to the proceeding (except  a  municipality  which  is  the applicant)  for  expert  witness,  consultant,  administrative and legal fees, provided, however,  such  expenses  shall  not  be  available  for judicial  review  or litigation. If at any time subsequent to the filing of the application, the application is amended in a manner that warrants substantial additional scrutiny, the board  may  require  an  additional intervenor fee in an amount not to exceed seventy-five thousand dollars. The  board  shall  provide  for  notices,  for municipal and other local parties, in all appropriate  languages.  Any  moneys  remaining  in  the intervenor  account  after  the board's jurisdiction over an application has ceased shall be returned to the applicant.  (b) Notwithstanding any other provision of law to  the  contrary,  the board  shall  provide by rules and regulations for the management of the intervenor account and for disbursements from the account,  which  rules and  regulations shall be consistent with the purpose of this section to make available to municipal parties at least one-half of the  amount  of the  intervenor  account and for uses specified in paragraph (a) of this subdivision. In addition, the board shall provide other local parties up to one-half of the amount of the intervenor account, provided,  however, that  the  board  shall assure that the purposes for which moneys in the intervenor account will be  expended  will  contribute  to  an  informed decision as to the appropriateness of the site and facility and are made available  on  an  equitable  basis  in a manner which facilitates broad public participation.