-  This bill is not active in this session.
 

A08510 Summary:

BILL NO    A08510 

SAME AS    SAME AS UNI. S05844

SPONSOR    Cahill (MS)

COSPNSR    Silver, Farrell, Kolb, Amedore, Weisenberg, Zebrowski, Roberts,
           Spano, Gabryszak, Crespo, Englebright, Finch, Friend, Hevesi,
           Linares, Moya, Rosenthal, Simotas, Cymbrowitz, Brennan, Lupardo,
           Kavanagh, Jaffee

MLTSPNSR   Molinaro

Amd SS18-a, 42 & 65, add S66-m, Art 10 SS160 - 173, Pub Serv L; amd S242, RP L;
ren SS1020-hh - 1020-jj to be SS1020-ii - 1020-kk, add S1020-hh, amd SS1891,
1894. 1896, 1897, 1014, 1020-c, 1020-s & 1899, Pub Auth L; amd SS8-0111,
17-0823, 19-0305 & 49-0307, add S19-0312, En Con L; add S97-kkkk, St Fin L

Establishes the "power NY act of 2011."
Go to top

A08510 Actions:

BILL NO    A08510 

06/22/2011 referred to energy
06/22/2011 reported referred to ways and means
06/22/2011 reported referred to rules
06/22/2011 reported 
06/22/2011 rules report cal.599
06/22/2011 ordered to third reading rules cal.599
06/22/2011 message of necessity - 3 day message
06/22/2011 passed assembly
06/22/2011 delivered to senate
06/22/2011 REFERRED TO RULES
06/22/2011 SUBSTITUTED FOR S5844
06/22/2011 3RD READING CAL.1522
06/22/2011 MESSAGE OF NECESSITY
06/22/2011 PASSED SENATE
06/22/2011 RETURNED TO ASSEMBLY
08/04/2011 delivered to governor
08/04/2011 signed chap.388
Go to top

A08510 Votes:

A08510 06/22/2011 120/14
AbbateYCastellYGalefYKatzYMcKevitYRabbittYStevensY
AbinantYCastroYGanttERKavanagYMcLaughYRaiaYSweeneyY
AmedoreYCerettoYGibsonYKellnerYMengYRamosYTediscoY
ArroyoERClarkYGiglioYKirwanERMill D YReilichNOTenneyY
AubryYColtonYGlickYKolbYMill JMYReillyYThieleY
BarclayNOConteYGoodellYLancmanYMill MGYRive J YTitoneY
BarronABCookYGottfriYLatimerYMillmanYRive N YTitusY
BenedetYCorwinYGrafYLavineYMolinarYRive PMYTobaccoY
BingYCrespoYGuntherYLentolNOMontesaYRobertsYWeinsteY
BlankenNOCrouchYHannaNOLiftonYMorelleYRobinsoERWeisenbY
BoylandERCurranYHawleyERLinaresYMoyaYRodriguERWeprinY
BoyleYCusickYHayesYLope PDNOMurrayYRosenthYWrightY
BraunstYCymbrowYHeastieYLope VJNONolanYRussellNOZebrowsY
BrennanYDenDekkNOHevesiYLosquadYOaksNOSaladinYMr SpkrY
BronsonYDinowitYHikindYLupardoYO'DonneYSaywardY
Brook KERDupreyYHooperERMageeYOrtizNOScarborY
BurlingNOEnglebrYHoytYMagnareYPalmesaYSchimelY
ButlerNOFarrellYJacobsYMaiselYPaulinYSchimmiY
CahillYFinchYJaffeeYMalliotYPeoplesYSchroedY
CalhounYFitzpatYJeffrieERMarkeyYPerryYSimotasY
CamaraERFriendYJohnsNOMcDonouYPretlowYSmardzY
CanestrYGabryszYJordanYMcEnenyYRaYSpanoY

Go to top

A08510 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
            S. 5844                                                  A. 8510
 
                               2011-2012 Regular Sessions
 
                SENATE - ASSEMBLY
 
                                      June 22, 2011
                                       ___________
 
        IN  SENATE  --  Introduced  by  Sens.  MAZIARZ,  PARKER, GRISANTI -- (at
          request of the Governor) -- read twice and ordered printed,  and  when
          printed to be committed to the Committee on Rules
 
        IN  ASSEMBLY  --  Introduced  by M. of A. CAHILL, SILVER, FARRELL, KOLB,

          AMEDORE, WEISENBERG, ZEBROWSKI,  ROBERTS,  SPANO,  GABRYSZAK,  CRESPO,
          ENGLEBRIGHT, FINCH, FRIEND, HEVESI, LINARES, MOYA, ROSENTHAL, SIMOTAS,
          CYMBROWITZ,  BRENNAN,  LUPARDO -- (at request of the Governor) -- read
          once and referred to the Committee on Energy
 
        AN ACT to amend the public service law, the public authorities law,  the
          real  property  law,  the  state  finance  law,  and the environmental
          conservation law, in relation to establishing the power NY act of 2011
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  This act shall be known and may be cited as the "power NY
     2  act of 2011".
     3    § 2. Subdivision 2 of section  18-a  of  the  public  service  law  is
     4  amended by adding a new paragraph (h) to read as follows:

     5    (h) On-bill recovery charges billed pursuant to section sixty-six-m of
     6  this  chapter  shall  be  excluded from any determination of an entity's
     7  gross operating revenues derived from intrastate utility operations  for
     8  purposes of this section.
     9    §  3.  Section 42 of the public service law is amended by adding a new
    10  subdivision 3 to read as follows:
    11    3. The rights and responsibilities of  residential  customers  partic-
    12  ipating  in  green  jobs-green  New  York  on-bill  recovery pursuant to
    13  section sixty-six-m of this chapter shall be substantially comparable to
    14  those of electric and gas customers not participating in on-bill  recov-
    15  ery,  and  charges  for on-bill recovery shall be treated as charges for

    16  utility service for the purpose of this article, provided that:
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD12069-07-1

        S. 5844                             2                            A. 8510
 
     1    (a) all determinations and safeguards related to the  termination  and
     2  reconnection  of  service shall apply to on-bill recovery charges billed
     3  by a utility pursuant to such section;
     4    (b)  in  the event that the responsibility for making utility payments
     5  has been assumed by occupants of a multiple dwelling pursuant to section
     6  thirty-three of this article or by occupants of  a  two-family  dwelling

     7  pursuant  to  section  thirty-four of this article, such occupants shall
     8  not be billed for  any  arrears  of  on-bill  recovery  charges  or  any
     9  prospective  on-bill  recovery charges, which shall remain the responsi-
    10  bility of the incurring customer;
    11    (c) deferred payment agreements pursuant to  section  thirty-seven  of
    12  this  article  shall  be available to customers participating in on-bill
    13  recovery on the same terms as other customers,  and  the  utility  shall
    14  retain  the  same  discretion to defer termination of service as for any
    15  other delinquent customer;
    16    (d) where a customer has a budget billing plan  or  levelized  payment
    17  plan pursuant to section thirty-eight of this article, the utility shall

    18  recalculate  the  payments  under  such  plan  to  reflect the projected
    19  effects of installing energy efficiency measures as soon as  practicable
    20  after  receipt  of  information on the energy audit and qualified energy
    21  efficiency services selected;
    22    (e) on-bill recovery charges shall not be subject to the provisions of
    23  section forty-one of this article;
    24    (f) late payment charges on unpaid on-bill recovery charges  shall  be
    25  determined  as provided in this section, or as otherwise consented to by
    26  the customer in the agreement for  green  jobs-green  New  York  on-bill
    27  recovery  and  any  such charges shall be remitted to the New York state
    28  energy research and development authority;

    29    (g) notwithstanding the provisions  of  section  forty-three  of  this
    30  article,  when a complaint is related solely to work performed under the
    31  green jobs-green New York  program  or  to  the  appropriate  amount  of
    32  on-bill  recovery  charges, the utility shall only be required to inform
    33  the customer of the complaint handling procedures of the New York  state
    34  energy  research and development authority, which shall retain responsi-
    35  bility for handling such complaints, and such complaints  shall  not  be
    36  deemed  to  be  complaints about utility service in any other commission
    37  action or proceeding; and
    38    (h) billing information provided pursuant  to  section  forty-four  of
    39  this  article  shall  include  information  on green jobs-green New York

    40  on-bill recovery charges, including the basis for such charges, and  any
    41  information  or  inserts  provided by the New York state energy research
    42  and development authority related thereto. In addition, at least annual-
    43  ly the authority shall provide the utility with information  for  inclu-
    44  sion  or insertion in the customer's bill that sets forth the amount and
    45  duration of remaining  on-bill  recovery  charges  and  the  authority's
    46  contact  information  and  procedures  for resolving customer complaints
    47  with such charges.
    48    § 4.   Paragraph (d) of subdivision 6 of  section  65  of  the  public
    49  service  law, as added by chapter 204 of the laws of 2010, is amended to
    50  read as follows:
    51    (d) for installation of capital improvements and fixtures  to  promote

    52  energy  efficiency upon the request and consent of the customer, includ-
    53  ing but not limited to the performance of  qualified  energy  efficiency
    54  services  for  customers  participating  in  green  jobs-green  New York
    55  on-bill recovery pursuant to section sixty-six-m of this article.

        S. 5844                             3                            A. 8510
 
     1    § 5.  The public service law is amended by adding a new  section  66-m
     2  to read as follows:
     3    §  66-m. Green jobs-green New York on-bill recovery. 1.(a) The commis-
     4  sion shall, within  forty-five  days  of  the  effective  date  of  this
     5  section, commence a proceeding to investigate the implementation by each
     6  combination  electric  and  gas  corporation  having  annual revenues in

     7  excess of two hundred  million  dollars  of  a  billing  and  collection
     8  service  for  on-bill  recovery charges in payment of obligations of its
     9  customers to the green jobs-green New York revolving  loan  fund  estab-
    10  lished  pursuant to title nine-A of article eight of the public authori-
    11  ties law and, within one hundred fifty days of  the  effective  date  of
    12  this section, the commission shall make a determination establishing the
    13  billing and collection procedures for such on-bill recovery charges. The
    14  department  shall  consult  with  the New York state energy research and
    15  development authority in the preparation of its recommendations  to  the
    16  commission  for  such  determination.  The commission shall require such

    17  electric and gas corporations to offer billing and  collection  services
    18  for  green  jobs-green  New  York  on-bill recovery charges for eligible
    19  customers within three hundred  days  of  the  effective  date  of  this
    20  section.  To  the extent practicable, such electric and gas corporations
    21  shall utilize existing electronic  data  interchange  infrastructure  or
    22  other  existing  billing  infrastructure  to implement their billing and
    23  collection responsibilities under this section, and shall utilize  fund-
    24  ing  available  from  the New York state energy research and development
    25  authority to defray any costs associated  with  electronic  data  inter-
    26  change  improvements  or other costs of initiating and implementing this
    27  program.

    28    (b) To ensure proper program design and implementation, each  electric
    29  and  gas  corporation  shall initially limit the number of customers who
    30  pay a green jobs-green New York on-bill recovery  charge  at  any  given
    31  time  to no more than one half of one percent of its total customers, on
    32  a first come, first served basis. Prior to reaching such limit, the  New
    33  York  state energy research and development authority shall petition the
    34  commission to review said limit, and the commission shall increase  such
    35  limit provided that the commission finds that the program has not caused
    36  significant harm to the electric or gas company or its ratepayers.
    37    (c)  The commission may suspend such an electric and gas corporation's

    38  offering of the on-bill recovery charge provided  that  the  commission,
    39  after  conducting  a hearing as provided in section twenty of this chap-
    40  ter, makes a finding that there is a significant increase in arrears  or
    41  utility service disconnections that the commission determines is direct-
    42  ly  related  to  the on-bill recovery charge, or a finding of other good
    43  cause.
    44    (d) The on-bill recovery charge shall be collected on  the  bill  from
    45  the  customer's  electric  corporation unless the qualified energy effi-
    46  ciency services at that customer's premises  result  in  more  projected
    47  energy  savings  on  the  customer's gas bill than the electric bill, in
    48  which case such charge shall be collected on the customer's  gas  corpo-

    49  ration bill.
    50    (e)  The  commission  shall determine an appropriate percentage, up to
    51  fifteen percent, of the energy savings from qualified energy  efficiency
    52  services,  financed  with  a  loan  pursuant to section eighteen hundred
    53  ninety-six of the public authorities law that is subject to  an  on-bill
    54  recovery  charge,  to  be  credited  to the combination electric and gas
    55  corporation that is issuing the bill for such charge,  for  purposes  of

        S. 5844                             4                            A. 8510
 
     1  meeting  such  corporation's  targets  under  energy efficiency programs
     2  established by the commission.
     3    2. Schedules for the collection and billing of on-bill recovery charg-

     4  es shall provide:
     5    (a)  that  billing  and  collection services shall be available to all
     6  customers who have met the standards established by the New  York  state
     7  energy  research  and  development  authority  for  participation in the
     8  on-bill recovery mechanism under the green jobs-green New  York  program
     9  and  have  executed an agreement for the performance of qualified energy
    10  efficiency services under such  program;  provided,  however,  that  for
    11  residential  properties any such customer must hold primary ownership or
    12  represent the primary owner or owners of the premises and  hold  primary
    13  meter  account responsibility or represent the primary holder or holders
    14  of meter account responsibility for all meters  to  which  such  on-bill

    15  recovery charges will apply;
    16    (b) that the responsibilities of such electric and gas corporation are
    17  limited  to providing billing and collection services for on-bill recov-
    18  ery charges as directed by the authority;
    19    (c) that the rights  and  responsibilities  of  residential  customers
    20  paying  on-bill  recovery charges shall be governed by the provisions of
    21  article two of this chapter;
    22    (d) unless fully satisfied prior to sale or  transfer,  that  (i)  the
    23  on-bill  recovery  charges  for  any services provided at the customer's
    24  premises shall survive changes in ownership, tenancy  or  meter  account
    25  responsibility, and (ii) that arrears in on-bill recovery charges at the

    26  time  of account closure or meter transfer shall remain the responsibil-
    27  ity of the incurring customer, unless expressly assumed by a  subsequent
    28  purchaser of the property subject to such charges;
    29    (e)  not less than forty-five days after closure of an account that is
    30  subject to an on-bill recovery charge, and provided  that  the  customer
    31  does not re-establish service with such electric and gas corporation, it
    32  shall  be  the  responsibility of the New York state energy research and
    33  development authority and  not  the  electric  and  gas  corporation  to
    34  collect any arrears that are due and owing;
    35    (f)  a  customer remitting less than the total amount due for electric
    36  and/or gas services and on-bill recovery charges shall have such partial

    37  payment first applied as payment for electric and/or  gas  services  and
    38  any remaining amount will be applied to the on-bill recovery charge;
    39    (g)  billing and collection services shall be available without regard
    40  to whether the energy or fuel delivered by the utility is the customer's
    41  primary energy source;
    42    (h) unless otherwise precluded by  law,  participation  in  the  green
    43  jobs-green  New  York  program shall not affect a customer's eligibility
    44  for any rebate or incentive offered by a utility; and
    45    (i) any other provisions necessary to  provide  for  the  billing  and
    46  collection of on-bill recovery charges.
    47    3. The commission shall not approve any application for the conversion

    48  to  submetering  of  any  master  meter  which is subject to any on-bill
    49  recovery charges.
    50    § 6. Sections 1020-hh, 1020-ii and 1020-jj of the  public  authorities
    51  law,  as  renumbered  by chapter 433 of the laws of 2009, are renumbered
    52  sections 1020-ii, 1020-jj and 1020-kk and a new section 1020-hh is added
    53  to read as follows:
    54    § 1020-hh. Green jobs-green New York on-bill recovery. 1. Within three
    55  hundred days of the effective date of this section, the authority  shall
    56  establish a program to provide for the billing and collection of on-bill

        S. 5844                             5                            A. 8510
 
     1  recovery  charges  for  payment  of  obligations of its customers to the

     2  green jobs-green New York revolving loan fund  established  pursuant  to
     3  title  nine-A  of  article  eight  of  the  public authorities law. Such
     4  program  shall be consistent with the standards set forth in subdivision
     5  three of section forty-two and section sixty-six-m of the public service
     6  law. To the maximum extent practicable, funding available from  the  New
     7  York  state  energy research and development authority shall be utilized
     8  to defray any costs associated with electronic data interchange improve-
     9  ments or other costs of initiating and implementing this program.  Bill-
    10  ing and collection services under such tariffs shall commence as soon as
    11  practicable after establishment of the program.

    12    2.  The  authority  may  suspend  its offering of the on-bill recovery
    13  charge provided that the authority makes  a  finding  that  there  is  a
    14  significant  increase  in arrears or utility service disconnections that
    15  the authority determines is directly related to such charge, or a  find-
    16  ing of other good cause.
    17    §  7.  Subdivision 5 of section 1891 of the public authorities law, as
    18  added by chapter 487 of the laws of 2009, is amended to read as follows:
    19    5. "Eligible project" means qualified energy efficiency services for a
    20  non-residential structure, a residential  structure  or  a  multi-family
    21  structure.    An  eligible  project  shall not be considered (a) a major
    22  capital improvement pursuant to subparagraph (g)  of  paragraph  one  of

    23  subdivision  g  of section 26-405 of the administrative code of the city
    24  of New York, subparagraph (k) of  paragraph  one  of  subdivision  g  of
    25  section 26-405 of the administrative code of the city of New York, para-
    26  graph  six of subdivision c of section 26-511 of the administrative code
    27  of the city of New York, paragraph three of subdivision d of section six
    28  of section four of chapter five hundred seventy-six of the laws of nine-
    29  teen hundred seventy-four, and  the  second  undesignated  paragraph  of
    30  paragraph (a) of subdivision four of section four of chapter two hundred
    31  seventy-four  of the laws of nineteen hundred forty-six; or (b) an indi-
    32  vidual apartment improvement pursuant to subparagraph (e)  of  paragraph

    33  one of subdivision g of section 26-405 of the administrative code of the
    34  city  of New York, paragraph thirteen of subdivision c of section 26-511
    35  of the administrative code of the city of New  York,  paragraph  one  of
    36  subdivision  d  of  section  six of section four of chapter five hundred
    37  seventy-six of the laws of nineteen  hundred  seventy-four,  and  clause
    38  five  of  the second undesignated paragraph of paragraph (a) of subdivi-
    39  sion four of section four of chapter two  hundred  seventy-four  of  the
    40  laws of nineteen hundred forty-six.
    41    § 7-a. Section 1894 of the public authorities law is amended by adding
    42  a new subdivision 4 to read as follows:
    43    4.  Any  organization  using  funding  provided  under the program for

    44  marketing or other outreach activities shall not commingle such  market-
    45  ing  or  outreach activities with any other advocacy or policy promotion
    46  efforts.
    47    § 8. Section 1896 of the public authorities law, as added  by  chapter
    48  487 of the laws of 2009, is amended to read as follows:
    49    § 1896. Green jobs-green New York revolving loan fund. 1. (a) There is
    50  hereby  created  a  green  jobs-green  New York revolving loan fund. The
    51  revolving loan fund shall consist of:
    52    (i) all moneys made available for the purpose of  the  revolving  loan
    53  fund pursuant to section eighteen hundred ninety-nine-a of this title;
    54    (ii)  payments  of  principal and interest, including any late payment
    55  charges, made pursuant to loan or financing agreements entered into with

    56  the authority or its designee pursuant to this section; and

        S. 5844                             6                            A. 8510
 
     1    (iii) any interest earned by the investment of moneys in the revolving
     2  loan fund.
     3    (b) The revolving loan fund shall consist of two accounts:
     4    (i) one account which shall be maintained for monies to be made avail-
     5  able  to  provide loans to finance the cost of approved qualified energy
     6  efficiency services for residential structures and  multi-family  struc-
     7  tures, and
     8    (ii)  one  account which shall be maintained for monies made available
     9  to provide loans to finance the cost of approved qualified energy  effi-
    10  ciency  services  for non-residential structures. The initial balance of
    11  the residential account established in [clause] subparagraph (i) of this

    12  paragraph shall represent at least fifty percent of the total balance of
    13  the two accounts. The authority shall not commingle the  monies  of  the
    14  revolving  loan  fund  with any other monies of the authority or held by
    15  the authority, nor shall the  authority  commingle  the  monies  between
    16  accounts.  Payments  of  principal, interest and fees shall be deposited
    17  into the account created and maintained  for  the  appropriate  type  of
    18  eligible project.
    19    (c)  In  administering  such  program, the authority is authorized and
    20  directed to:
    21    (i) use monies made available for the revolving loan fund  to  achieve
    22  the  purposes  of this section by section eighteen hundred ninety-nine-a
    23  of this title, including but not limited to making loans  available  for
    24  eligible projects;
    25    (ii)  enter  into  contracts  with one or more program implementers to

    26  perform such functions as the authority deems appropriate; [and]
    27    (iii) establish an on-bill recovery mechanism for repayment  of  loans
    28  for the performance of qualified energy efficiency services for eligible
    29  projects provided that such on-bill recovery mechanism shall provide for
    30  the utilization of any on-bill recovery programs established pursuant to
    31  section  sixty-six-m  of the public service law and section one thousand
    32  twenty-hh of this chapter;
    33    (iv) establish standards for customer participation  in  such  on-bill
    34  recovery  mechanism,  including  standards  for  reliable  utility  bill
    35  payment, current good standing on any  mortgage  obligations,  and  such
    36  additional  standards as the authority deems necessary; provided that in

    37  order to provide broad access to on-bill recovery, the authority  shall,
    38  to  the  fullest  extent  practicable,  consider alternative measures of
    39  creditworthiness that are prudent in order to include  participation  by
    40  customers  who  are less likely to have access to traditional sources of
    41  financing;
    42    (v) to the extent feasible, make available on a pro rata basis,  based
    43  on  the number of electric customers within the utility service territo-
    44  ry, to combination electric and  gas  corporations  that  offer  on-bill
    45  recovery  pursuant  to section sixty-six-m of the public service law and
    46  the Long Island power authority, up to five hundred thousand dollars  to
    47  defray  costs  directly  associated  with  changing or upgrading billing

    48  systems to accommodate on-bill recovery charges;
    49    (vi) within thirty days of closing of a loan to a customer, pay a  fee
    50  of  one  hundred  dollars  per  loan to the combination electric and gas
    51  corporation in whose service territory such customer is  located  or  to
    52  the  Long  Island  power  authority  if  such customer is located in the
    53  service territory of that authority to help defray the  costs  that  are
    54  directly associated with implementing the program;
    55    (vii)  within  thirty  days  of closing of a loan to a customer, pay a
    56  servicing fee of one percent of the loan amount to the combination elec-

        S. 5844                             7                            A. 8510
 

     1  tric and gas corporation in whose service  territory  such  customer  is
     2  located  or  to  the  Long  Island  power  authority if such customer is
     3  located in the service territory of that authority to  help  defray  the
     4  costs that are directly associated with the program; and
     5    (viii)  exercise  such  other  powers  as are necessary for the proper
     6  administration of the  program,  including  at  the  discretion  of  the
     7  authority,  entering into agreements with applicants and with such state
     8  or federal agencies as necessary to directly receive rebates and  grants
     9  available  for  eligible  projects  and apply such funds to repayment of
    10  applicant loan obligations.
    11    2. (a) The authority shall provide financial assistance in the form of

    12  loans for the performance of qualified energy  efficiency  services  for
    13  eligible projects on terms and conditions established by the authority.
    14    (b)  Loans  made  by  the  authority pursuant to this section shall be
    15  subject to the following limitations:
    16    (i) eligible projects shall meet cost effectiveness  standards  devel-
    17  oped by the authority;
    18    (ii)  loans  shall  not exceed thirteen thousand dollars per applicant
    19  for approved qualified energy efficiency services for residential struc-
    20  tures, and twenty-six thousand dollars per applicant for approved quali-
    21  fied  energy  efficiency  services   for   non-residential   structures,
    22  provided,  however,  that  the  authority may permit a loan in excess of
    23  such amounts if the total cost of energy efficiency measures financed by

    24  such loan will achieve a payback period of fifteen years or less, but in
    25  no event shall any such loan exceed  twenty-five  thousand  dollars  per
    26  applicant  for  residential  structures  and  fifty thousand dollars per
    27  applicant for non-residential structures; and  for  multi-family  struc-
    28  tures  loans  shall be in amounts determined by the authority, provided,
    29  however, that the authority shall assure that a  significant  number  of
    30  residential structures are included in the program; [and]
    31    (iii)  no  fees or penalties shall be charged or collected for prepay-
    32  ment of any such loan; and
    33    (iv) loans shall be at interest rates determined by the  authority  to
    34  be no higher than necessary to make the provision of the qualified ener-
    35  gy efficiency services feasible.

    36    In determining whether to make a loan, and the amount of any loan that
    37  is  made,  the authority is authorized to consider whether the applicant
    38  or borrower has received, or is eligible to receive,  financial  assist-
    39  ance and other incentives from any other source for the qualified energy
    40  efficiency  services  which would be the subject of the loan.  In deter-
    41  mining whether a loan will achieve a payback period of fifteen years  or
    42  less  pursuant to subparagraph (ii) of this paragraph, the authority may
    43  consider the amount of the loan to be  reduced  by  the  amount  of  any
    44  rebates  for qualified energy efficiency services received by the appli-
    45  cant or by the authority on behalf of an applicant.
    46    (c) Applications for financial assistance  pursuant  to  this  section

    47  shall  be reviewed and evaluated by the authority or its designee pursu-
    48  ant to eligibility and qualification requirements  and  criteria  estab-
    49  lished by the authority. The authority shall establish standards for (i)
    50  qualified energy efficiency services, and (ii) measurement and verifica-
    51  tion  of  energy savings. Such standards shall meet or exceed the stand-
    52  ards used by the authority for similar  programs  in  existence  on  the
    53  effective date of this section.
    54    (d)  The  amount  of  a  fee  paid  for an energy audit provided under
    55  section eighteen hundred ninety-five of this title may be added  to  the
    56  amount  of a loan that is made under this section to finance the cost of

        S. 5844                             8                            A. 8510
 
     1  an eligible project conducted in response to such energy audit. In  such

     2  a  case,  the  amount  of the fee may be reimbursed from the fund to the
     3  borrower.
     4    (e) In establishing an on-bill recovery mechanism:
     5    (i)  the  cost-effectiveness of an eligible project shall be evaluated
     6  solely on the basis of the costs and projected savings to  the  applying
     7  customer,  using standard engineering assessments and prior billing data
     8  and usage patterns; provided however that based  upon  the  most  recent
     9  customer  data  available,  on  an annualized basis, the monthly on-bill
    10  repayment amount for a package of measures shall not exceed  one-twelfth
    11  of the savings projected to result from the installation of the measures
    12  provided  further  that nothing herein shall be construed to prohibit or

    13  prevent customers whose primary heating energy source is from  delivera-
    14  ble fuels from participating in the program;
    15    (ii)  the  authority  shall establish a process for receipt and resol-
    16  ution of customer complaints concerning on-bill recovery charges and for
    17  addressing delays and defaults in customer payments; and
    18    (iii) the authority may limit the availability of lighting measures or
    19  household appliances that are not permanently affixed to real property.
    20    (f) Prior to or at the closing of each  loan  made  pursuant  to  this
    21  section,  the  authority  shall  cause  a  notice to be provided to each
    22  customer receiving such loan stating, in clear and conspicuous terms:
    23    (i) the financial and legal obligations and risks  of  accepting  such

    24  loan responsibilities, including the obligation to provide or consent to
    25  the customer's utility providing the authority information on the sourc-
    26  es  and  quantities  of  energy  used in the customer's premises and any
    27  improvements or modifications to the premises, use of  the  premises  or
    28  energy  consuming  appliances  or equipment of any type that may signif-
    29  icantly affect energy usage;
    30    (ii) that the on-bill recovery charge will be billed by such  customer
    31  utility company and that failure to pay such on-bill recovery charge may
    32  result  in  the customer having his or her electricity and/or gas termi-
    33  nated for non-payment, provided that such utility  company  follows  the

    34  requirements  of  article  two of the public service law with respect to
    35  residential customers;
    36    (iii)    that  incurring  such  loan  to  undertake  energy-efficiency
    37  projects  may  not result in lower monthly energy costs over time, based
    38  on additional factors that contribute to monthly energy costs;
    39    (iv) that the program is operated by the authority and it is the  sole
    40  responsibility  of  the  authority  to  handle  consumer  inquiries  and
    41  complaints related to the operation  and  lending  associated  with  the
    42  program,  provided  further that the authority shall provide a mechanism
    43  to receive such consumer inquiries and complaints.
    44    (g) Any person entering into a loan agreement pursuant to this section

    45  shall have the right to cancel any such loan agreement until midnight of
    46  the fifth business day following the day on which such person signs such
    47  agreement provided the loan proceeds have not yet been disbursed.
    48    3. The authority shall evaluate the cost-effectiveness of the  on-bill
    49  recovery  mechanism  on an on-going basis. (a) In conducting such evalu-
    50  ation, the authority shall request each customer to provide:
    51    (i) information on energy usage and/or permission to collect  informa-
    52  tion  on energy usage from utilities and other retail vendors, including
    53  but not limited to information required to  be  furnished  to  consumers
    54  under article seventeen of the energy law;
    55    (ii)  information  on  other  sources of energy used in the customer's

    56  premises; and

        S. 5844                             9                            A. 8510
 
     1    (iii) information on any improvements or modifications to the premises
     2  that may significantly affect energy usage.
     3    (b)  At a minimum the authority shall collect and maintain information
     4  for dates prior  to  the  performance  of  qualified  energy  efficiency
     5  services,  to  establish a baseline, and for dates covering a subsequent
     6  time period to measure the effectiveness of  such  measures.  Such  data
     7  shall be correlated with information from the energy audit and any other
     8  relevant information, including information on local weather conditions,
     9  and  shall  be  used  to  evaluate  the  on-bill recovery program and to

    10  improve the accuracy of projections of cost-effectiveness on an on-going
    11  basis. An analysis of such data shall be included in the  annual  report
    12  prepared pursuant to section eighteen hundred ninety-nine of this title.
    13    (c)  All  information collected by the authority shall be confidential
    14  and shall be used exclusively for the purposes of this subdivision.
    15    4. (a) Qualified energy efficiency services repaid through an  on-bill
    16  recovery mechanism shall be considered a special energy project pursuant
    17  to  section  eighteen  hundred  fifty-one  of this article. The New York
    18  state energy research and development authority shall secure every  loan
    19  issued for such services that are to be repaid through an on-bill recov-

    20  ery mechanism with a mortgage upon the real property that is improved by
    21  such  services.  Such mortgage shall be recorded pursuant to section two
    22  hundred ninety-one-d of the real property law.
    23    (b)  All terms and provisions of a green jobs-green New York  mortgage
    24  pursuant  to  this  subdivision  shall be subject and subordinate to the
    25  lien of any mortgage or mortgages on such property.   When a  subsequent
    26  purchaser  of  the  property is granted a mortgage, the green jobs-green
    27  New York mortgage shall be subordinate to the terms of that mortgage.
    28    (c) The mortgagee shall not retain any right  to  enforce  payment  or
    29  foreclose upon the property.
    30    § 9. Section 1897 of the public authorities law is amended by adding a

    31  new subdivision 7 to read as follows:
    32    7.  The  authority  shall  prescribe conditions for training that will
    33  include identifiable standards for all education and training activities
    34  authorized under this section, and will designate a  certificate  to  be
    35  issued  to  any  trainee  that  successfully  meets  such  standards and
    36  completes the required education and training.
    37    § 10. Subdivision 3 of section 1899 of the public authorities law,  as
    38  added by chapter 487 of the laws of 2009, is amended to read as follows:
    39    3.  The  status  of the authority's activities and outcomes related to
    40  section eighteen hundred ninety-six of this  title.  Such  report  shall
    41  include, but not be limited to:
    42    (a)  the number of persons who have applied for and received financial
    43  assistance through the revolving loan fund;

    44    (b) the revolving loan fund account balances;
    45    (c) the number of loans in default; [and]
    46    (d) the amount and nature of the costs incurred by the  authority  for
    47  the  activities described in paragraph (c) of subdivision one of section
    48  eighteen hundred ninety-six of this title;
    49    (e) the authority's activities and outcomes related to establishing an
    50  on-bill recovery mechanism, including the number  of  persons  who  have
    51  applied  for  and  who  have received financial assistance that utilizes
    52  on-bill recovery and the results of  the  evaluation  program  performed
    53  pursuant  to subdivision three of section eighteen hundred ninety-six of
    54  this title;
    55    (f)  the amount expended by the authority in support  of  the  program

    56  and the purposes for which such funds have been expended;

        S. 5844                            10                            A. 8510
 
     1    (g)  the  number of customers participating in the program, separately
     2  stating the number of residential and non-residential customers and  the
     3  amounts financed;
     4    (h)  the  number  of  program participants who are in arrears in their
     5  utility accounts for electric and/or gas service;
     6    (i)  the number of program participants who are in  arrears  in  their
     7  on-bill recovery charge payments;
     8    (j)  the number of program participants whose utility service has been
     9  terminated for non-payment;
    10    (k) a description of the geographic distribution of loans made;

    11    (l)  an estimate of the energy savings resulting from this program;
    12    (m)  an estimate of the average project cost; and
    13    (n)   in consultation with the department of labor, an estimate of the
    14  number of jobs created under the program.
    15    § 11. Section 242 of the real property law is amended by adding a  new
    16  subdivision 4 to read as follows:
    17    4.  Disclosure  prior  to  the  sale of real property to which a green
    18  jobs-green New York on-bill recovery charge  applies.  (a)  Any  person,
    19  firm, company, partnership or corporation offering to sell real property
    20  which  is subject to a green jobs-green New York on-bill recovery charge
    21  pursuant to title nine-A of article eight of the public authorities  law

    22  shall  provide  written  notice  to  the  prospective  purchaser  or the
    23  prospective purchaser's agent, stating as  follows:  "This  property  is
    24  subject  to  a  green jobs-green New York on-bill recovery charge". Such
    25  notice shall also state the total amount of  the  original  charge,  the
    26  payment schedule and the approximate remaining balance, a description of
    27  the  energy efficiency services performed, including improvements to the
    28  property, and an explanation of the benefit of the green jobs-green  New
    29  York qualified energy efficiency services. Such notice shall be provided
    30  by the seller prior to accepting a purchase offer.
    31    (b) Any prospective or actual purchaser who has suffered a loss due to

    32  a  violation  of  this  subdivision  is  entitled  to recover any actual
    33  damages incurred from the person offering to sell or selling  said  real
    34  property.
    35    §  12. The public service law is amended by adding a new article 10 to
    36  read as follows:
    37                                 ARTICLE 10
    38               SITING OF MAJOR ELECTRIC GENERATING FACILITIES
    39  Section 160. Definitions.
    40          161. General provisions relating to the board.
    41          162. Board certificate.
    42          163. Pre-application procedures.
    43          164. Application for a certificate.
    44          165. Hearing schedule.
    45          166. Parties to a certification proceeding.
    46          167. Conduct of hearing.

    47          168. Board decisions.
    48          169. Opinion to be issued with decision.
    49          170. Rehearing and judicial review.
    50          171. Jurisdiction of courts.
    51          172. Powers of municipalities and state agencies.
    52          173. Applicability to public authorities.
    53    § 160. Definitions. Where used in this article, the  following  terms,
    54  unless  the  context  otherwise requires, shall have the following mean-
    55  ings:

        S. 5844                            11                            A. 8510
 
     1    1. "Municipality" means a county, city, town  or  village  located  in
     2  this state.
     3    2.  "Major  electric generating facility" means an electric generating

     4  facility with a nameplate generating capacity  of  twenty-five  thousand
     5  kilowatts or more, including interconnection electric transmission lines
     6  and  fuel  gas  transmission  lines that are not subject to review under
     7  article seven of this chapter.
     8    3. "Person" means any individual, corporation, public  benefit  corpo-
     9  ration,  political subdivision, governmental agency, municipality, part-
    10  nership, co-operative association, trust or estate.
    11    4. "Board" means the New  York  state  board  on  electric  generation
    12  siting and the environment, which shall be in the department and consist
    13  of  seven persons: the chair of the department, who shall serve as chair
    14  of the  board;  the  commissioner  of  environmental  conservation;  the

    15  commissioner  of health; the chair of the New York state energy research
    16  and development authority; the commissioner of economic development  and
    17  two  ad hoc public members, both of whom shall reside within the munici-
    18  pality in which the facility is proposed to be located, except  if  such
    19  facility is proposed to be located within the city of New York, then all
    20  ad  hoc  members shall reside within the community district in which the
    21  facility is proposed to be located. One ad hoc member shall be appointed
    22  by the president pro tem of the senate and one ad hoc  member  shall  be
    23  appointed by the speaker of the assembly, in accordance with subdivision
    24  two of section one hundred sixty-one of this article. The term of the ad

    25  hoc public members shall continue until a final determination is made in
    26  the particular proceeding for which they were appointed.
    27    5.  "Certificate"  means  a certificate of environmental compatibility
    28  and public need authorizing the construction of a major electric  gener-
    29  ating facility issued by the board pursuant to this article.
    30    6.  "Fuel  waste  byproduct" shall mean waste or combination of wastes
    31  produced as a byproduct of generating electricity from a major  electric
    32  generating facility in an amount which requires storage or disposal and,
    33  because  of  its quantity, concentration, or physical, chemical or other
    34  characteristics, may pose a substantial present or potential  hazard  to
    35  human health or the environment.

    36    7.  "Nameplate"  means  a  manufacturer's  designation,  generally  as
    37  affixed to the generator unit, which states the  total  output  of  such
    38  generating  facility as originally designed according to the manufactur-
    39  er's original design specifications.
    40    8. "Public information coordinator" means an office created within the
    41  department which shall assist and advise interested parties and  members
    42  of  the public in participating in the siting and certification of major
    43  electric generating facilities. The duties  of  the  public  information
    44  officer  shall include, but not be limited to: (a) implementing measures
    45  that assure full and adequate public participation in matters before the

    46  board; (b) responding to inquiries from the public  for  information  on
    47  how to participate in matters before the board; (c) assisting the public
    48  in requesting records relating to matters before the board; (d) ensuring
    49  all  interested  persons  are  provided with a reasonable opportunity to
    50  participate at public meetings relating to matters before the board; (e)
    51  ensuring that all necessary or  required  documents  are  available  for
    52  public access on the department's website within any time periods speci-
    53  fied  within this article; and (f) any other duties as may be prescribed
    54  by the board, after consultation with the department.
    55    9. "Local parties" shall mean persons residing in a community who  may

    56  be affected by the proposed major electric generating facility who indi-

        S. 5844                            12                            A. 8510
 
     1  vidually  or  collectively  seek intervenor funding pursuant to sections
     2  one hundred sixty-three and one hundred sixty-four of this article.
     3    §  161.  General  provisions  relating to the board.   1.   The board,
     4  exclusive of the ad hoc members, shall have the power to adopt the rules
     5  and regulations relating to the procedures  to  be  used  in  certifying
     6  facilities  under  the provisions of this article, including the suspen-
     7  sion or revocation thereof, and shall further have  the  power  to  seek
     8  delegation  from  the  federal government pursuant to federal regulatory

     9  programs applicable to the siting of major  electric  facilities.    The
    10  chairperson,  after  consultation  with  the  other members of the board
    11  exclusive of the ad hoc members, shall have  exclusive  jurisdiction  to
    12  issue  declaratory  rulings regarding the applicability of, or any other
    13  question under, this article and rules and regulations adopted hereunder
    14  and to grant requests for extensions or amendments to  or  transfers  of
    15  certificate terms and conditions, provided that no party to the proceed-
    16  ing opposes such request for extensions or amendments within thirty days
    17  of  the  filing  of such request.   Regulations adopted by the board may
    18  provide for renewal applications for pollutant  control  permits  to  be

    19  submitted to and acted upon by the department of environmental conserva-
    20  tion  following commercial operation of a certified facility.  The board
    21  shall not accept any pre-application preliminary  scoping  statement  or
    22  application for a certificate, or exercise any powers or functions until
    23  the  department  of environmental conservation has promulgated rules and
    24  regulations required by paragraphs (f) and   (g) of subdivision  one  of
    25  section  one  hundred  sixty-four of this article and section 19-0312 of
    26  the environmental conservation law;  provided  however  that  the  board
    27  shall  be  authorized  to  adopt  rules and regulations required by this
    28  article.
    29    2. Upon receipt of a  pre-application  preliminary  scoping  statement

    30  under  this  article,  the chair shall promptly notify the governor, the
    31  president pro tem of the senate, the speaker of the assembly, the  chief
    32  executive officers representing the municipality and the county in which
    33  the  facility  is  proposed  to  be  located,  and,  if such facility is
    34  proposed to be located within the city of New York,  the  mayor  of  the
    35  city  of New York, as well as the chairperson of the community board and
    36  the borough president representing the area in  which  the  facility  is
    37  proposed  to  be  located.  One  ad hoc member shall be appointed by the
    38  president pro tem of the senate and one ad hoc member shall be appointed
    39  by the speaker of the assembly from a list of  candidates  submitted  to

    40  them,  in  the  following  manner.  If  such  facility is proposed to be
    41  located outside of the city of New York,  the  chief  executive  officer
    42  representing  the  municipality  shall  nominate four candidates and the
    43  chief executive officer representing  the  county  shall  nominate  four
    44  candidates for consideration. If such facility is proposed to be located
    45  outside  of the city of New York and in a village located within a town,
    46  the chief executive officer representing the town  shall  nominate  four
    47  candidates,  the  chief  executive officer representing the county shall
    48  nominate four candidates, and the chief executive  officer  representing
    49  the  village  shall  nominate four candidates for consideration. If such

    50  facility is proposed to be located in the city of New York,  the  chair-
    51  person  of  the community board, the borough president, and the mayor of
    52  the city of New York shall each nominate four candidates  for  consider-
    53  ation.    Nominations shall be submitted to the president pro tem of the
    54  senate and the speaker of the assembly within fifteen days of receipt of
    55  notification of the pre-application preliminary  scoping  statement.  In
    56  the  event that the president pro tem of the senate does not appoint one

        S. 5844                            13                            A. 8510
 
     1  of the candidates within thirty days of such nominations,  the  governor
     2  shall  appoint  the  ad  hoc member from the list of candidates.  In the

     3  event that the speaker of the assembly  does  not  appoint  one  of  the
     4  candidates  within  thirty  days of such nominations, the governor shall
     5  appoint the ad hoc member from the list of candidates.    In  the  event
     6  that  one  or  both of the ad hoc public members have not been appointed
     7  within forty-five days, a majority of persons named to the  board  shall
     8  constitute a quorum.
     9    3.  In  addition  to  the  requirements of the public officers law, no
    10  person shall be eligible to be an  appointee  to  the  board  who  holds
    11  another state or local office. No member of the board may retain or hold
    12  any  official  relation  to,  or  any  securities of an electric utility
    13  corporation operating in the state or  proposed  for  operation  in  the

    14  state,  any  affiliate  thereof or any other company, firm, partnership,
    15  corporation, association or  joint-stock  association  that  may  appear
    16  before  the board, nor shall either of the appointees have been a direc-
    17  tor, officer or, within the previous ten years, an employee thereof. The
    18  ad hoc appointees shall receive the sum of two hundred dollars for  each
    19  day  in  which  they  are  actually  engaged in the performance of their
    20  duties pursuant to this  article  plus  actual  and  necessary  expenses
    21  incurred  by  them  in  the  performance of such duties. The chairperson
    22  shall  provide  such  personnel,  hearing  examiners,  subordinates  and
    23  employees  and  such  legal,  technological, scientific, engineering and

    24  other services and such meeting rooms, hearing rooms and  other  facili-
    25  ties  as  may  be  required in proceedings under this article. The board
    26  under the direction of the chairperson, may provide for its  own  repre-
    27  sentation  and  appearance  in all actions and proceedings involving any
    28  question under this article. The department of  environmental  conserva-
    29  tion shall provide associate hearing examiners. Each member of the board
    30  other  than  the  ad  hoc appointees may designate an alternate to serve
    31  instead of the member with respect to all proceedings pursuant  to  this
    32  article.  Such designation shall be in writing and filed with the chair-
    33  person.
    34    § 162. Board certificate. 1.  Following the promulgation of rules  and

    35  regulations  pursuant  to  paragraphs  (f) and (g) of subdivision one of
    36  section one hundred sixty-four of this article, and section  19-0312  of
    37  the  environmental conservation law, no person shall commence the prepa-
    38  ration of a site for, or begin the  construction  of  a  major  electric
    39  generating  facility in the state, or increase the capacity of an exist-
    40  ing electric generating facility by more than twenty-five thousand kilo-
    41  watts without having first obtained a certificate issued with respect to
    42  such facility by the board. Any such facility with respect  to  which  a
    43  certificate is issued shall not thereafter be built, maintained or oper-
    44  ated  except  in conformity with such certificate and any terms, limita-

    45  tions or conditions contained  therein,  provided  that  nothing  herein
    46  shall exempt such facility from compliance with federal, state and local
    47  laws  and  regulations  except  as otherwise provided in this article. A
    48  certificate for a major electric generating facility, or an increase  in
    49  the  capacity  of  an existing electric generating facility by more than
    50  twenty-five thousand kilowatts, may be  issued  only  pursuant  to  this
    51  article.
    52    2.  A  certificate  may be transferred, subject to the approval of the
    53  board, to a person who agrees to comply with the terms, limitations  and
    54  conditions contained therein.
    55    3.  A certificate issued under this article may be amended pursuant to
    56  this section.

        S. 5844                            14                            A. 8510
 
     1    4. This article shall not apply: (a) To a  major  electric  generating
     2  facility  over  which any agency or department of the federal government
     3  has exclusive siting jurisdiction, or has jurisdiction  concurrent  with
     4  that  of  the state and has exercised such jurisdiction to the exclusion
     5  of regulation of the facility by the state;
     6    (b) To normal repairs, replacements, modifications and improvements of
     7  a  major  electric  generating  facility,  whenever  built, which do not
     8  constitute a violation of any certificate issued under this article  and
     9  which  do  not result in an increase in capacity of the facility of more

    10  than twenty-five thousand kilowatts;
    11    (c) To a major electric generating facility (i) constructed  on  lands
    12  dedicated  to  industrial  uses,  (ii) the output of which shall be used
    13  solely for industrial purposes, on the premises, and (iii) the  generat-
    14  ing capacity of which does not exceed two hundred thousand kilowatts; or
    15    (d)  To  a  major  electric  generating  facility if, on or before the
    16  effective date of the rules and regulations promulgated pursuant to this
    17  article and section 19-0312 of the environmental  conservation  law,  an
    18  application has been made for a license, permit, certificate, consent or
    19  approval  from  any federal, state or local commission, agency, board or

    20  regulatory body, in which application the location of the major electric
    21  generating facility has been designated by  the  applicant;  or  if  the
    22  facility is under construction at such time.
    23    5.  Any  person  intending  to  construct  a major electric generating
    24  facility excluded from this article pursuant to paragraph (b),  (c),  or
    25  (d)  of  subdivision four of this section may elect to become subject to
    26  the provisions of this article by delivering notice of such election  to
    27  the  chair  of  the  board.  This article shall thereafter apply to each
    28  electric generating facility identified in such notice from the date  of
    29  its receipt by the chair of the board. For the purposes of this article,

    30  each  such facility shall be treated in the same manner as a major elec-
    31  tric generating facility as defined in this article.
    32    § 163. Pre-application procedures. 1. Any person proposing  to  submit
    33  an application for a certificate shall file with the board a preliminary
    34  scoping  statement containing a brief discussion, on the basis of avail-
    35  able information, of the following items:
    36    (a)  description  of  the  proposed  facility  and  its  environmental
    37  setting;
    38    (b)  potential  environmental  and  health  impacts resulting from the
    39  construction and operation of the proposed facility;
    40    (c) proposed studies or program of studies designed to evaluate poten-

    41  tial environmental and health impacts, including, for proposed wind-pow-
    42  ered facilities, proposed studies during pre-construction activities and
    43  a proposed period of post-construction operations monitoring for  poten-
    44  tial impacts to avian and bat species;
    45    (d) measures proposed to minimize environmental impacts; and
    46    (e)  where  the  proposed  facility  intends to use petroleum or other
    47  back-up fuel for generating electricity, a discussion  and/or  study  of
    48  the  sufficiency  of  the  proposed  on-site  fuel  storage capacity and
    49  supply; and
    50    (f) reasonable alternatives to the facility that may  be  required  by
    51  paragraph  (i)  of  subdivision one of section one hundred sixty-four of
    52  this article;

    53    (g) identification of all other state  and  federal  permits,  certif-
    54  ications,  or other authorizations needed for construction, operation or
    55  maintenance of the proposed facility; and

        S. 5844                            15                            A. 8510
 
     1    (h) any other information that may be relevant or that the  board  may
     2  require.
     3    2. Such person shall serve copies of the preliminary scoping statement
     4  on persons enumerated in paragraph (a) of subdivision two of section one
     5  hundred  sixty-four of this article and provide notice of such statement
     6  as provided in paragraph (b) of such subdivision in plain  language,  in
     7  English and in any other language spoken as determined by the board by a

     8  significant  portion  of the population in the community, that describes
     9  the proposed facility and its location, the range of potential  environ-
    10  mental  and health impacts of each pollutant, the application and review
    11  process, and a contact person, with phone number and address, from  whom
    12  information will be available as the application proceeds.
    13    3.  To  facilitate  the  pre-application and application processes and
    14  enable citizens to participate in decisions that affect their health and
    15  safety and the environment, the department and such person shall provide
    16  opportunities for citizen involvement. Such opportunities shall  encour-
    17  age consultation with the public early in the pre-application and appli-

    18  cation  processes,  especially  before  any  parties enter a stipulation
    19  pursuant to subdivision five of this section. The primary goals  of  the
    20  citizen  participation  process  shall  be  to  facilitate communication
    21  between the applicant and interested or affected persons.   The  process
    22  shall  foster  the  active  involvement  of  the  interested or affected
    23  persons.
    24    4. (a) Each pre-application preliminary  scoping  statement  shall  be
    25  accompanied  by  a fee in an amount equal to three hundred fifty dollars
    26  for each thousand kilowatts of generating capacity of the subject facil-
    27  ity, but no more than two hundred thousand dollars, to be  deposited  in
    28  the intervenor account established pursuant to section ninety-seven-kkkk

    29  of  the  state  finance  law,  to be disbursed at the hearing examiner's
    30  direction to defray pre-application expenses incurred by  municipal  and
    31  local  parties (except for a municipality submitting the pre-application
    32  scoping statement) for expert witness,  consultant,  administrative  and
    33  legal  fees. If at any time subsequent to the filing of the pre-applica-
    34  tion the pre-application is substantially modified or revised, the board
    35  may require an additional pre-application intervenor fee  in  an  amount
    36  not  to  exceed  twenty-five  thousand dollars.   No fees made available
    37  under this paragraph shall be used for judicial  review  or  litigation.
    38  Any moneys remaining in the intervenor account upon the submission of an

    39  application  for  a  certificate  shall be made available to intervenors
    40  according to paragraph (a) of subdivision six  of  section  one  hundred
    41  sixty-four of this article.
    42    (b) Pre-application disbursements from the intervenor account shall be
    43  made  in  accordance  with rules and regulations established pursuant to
    44  paragraph (b) of subdivision six of section one  hundred  sixty-four  of
    45  this  article which rules shall provide for an expedited pre-application
    46  disbursement schedule to assure early and meaningful public involvement,
    47  with at least one-half  of  pre-application  intervenor  funds  becoming
    48  available  through  an application process to commence within sixty days
    49  of the filing of a pre-application preliminary scoping statement.

    50    5. After meeting the requirements of subdivisions one through three of
    51  this section, and after pre-application intervenor funds have been allo-
    52  cated by the pre-hearing examiner pursuant to paragraph (b) of  subdivi-
    53  sion  four  of  this section, such person may consult and seek agreement
    54  with any interested person, including, but not limited to, the staff  of
    55  the  department,  the  department  of environmental conservation and the
    56  department of health, as appropriate, as to any aspect of  the  prelimi-

        S. 5844                            16                            A. 8510
 
     1  nary scoping statement and any study or program of studies made or to be
     2  made  to  support  such  application.  The  staff of the department, the

     3  department of environmental conservation, the department of health,  the
     4  person proposing to file an application, and any other interested person
     5  may enter into a stipulation setting forth an agreement on any aspect of
     6  the  preliminary scoping statement and the studies or program of studies
     7  to be conducted. Any such person proposing to submit an application  for
     8  a  certificate  shall  serve a copy of the proposed stipulation upon all
     9  persons enumerated in paragraph (a) of subdivision two  of  section  one
    10  hundred  sixty-four  of this article, provide notice of such stipulation
    11  to those persons identified in paragraph (b) of  such  subdivision,  and
    12  afford  the  public  a  reasonable opportunity to submit comments on the

    13  stipulation before it is executed by the interested parties.  Nothing in
    14  this section, however, shall bar any party to a hearing on  an  applica-
    15  tion, other than any party to a pre-application stipulation, from timely
    16  raising  objections  to  any aspect of the preliminary scoping statement
    17  and the methodology and scope of any stipulated studies  or  program  of
    18  studies  in any such agreement. In order to attempt to resolve any ques-
    19  tions that may arise as a result of such  consultation,  the  department
    20  shall designate a hearing examiner who shall oversee the pre-application
    21  process  and mediate any issue relating to any aspect of the preliminary
    22  scoping statement and the methodology and scope of any such  studies  or

    23  programs  of study. Upon completion of the notice provisions provided in
    24  this section, such hearing examiner shall,  within  sixty  days  of  the
    25  filing  of  a preliminary scoping statement, convene a meeting of inter-
    26  ested parties in order to initiate the stipulation process.
    27    § 164. Application for a certificate. 1. An applicant  for  a  certif-
    28  icate  shall  file  with  the  board an application, in such form as the
    29  board may prescribe containing the following information and materials:
    30    (a) A description of the site and a description of the facility to  be
    31  built   thereon;   including   available   site  information,  maps  and
    32  descriptions, present and proposed development,  source  and  volume  of

    33  water required for plant operation and cooling, anticipated emissions to
    34  air, including but not limited to federal criteria pollutants and mercu-
    35  ry,  anticipated  discharges to water and groundwater, pollution control
    36  equipment, and, as appropriate, geological, visual or  other  aesthetic,
    37  ecological,  tsunami,  seismic, biological, water supply, population and
    38  load center data;
    39    (b) An evaluation of the expected environmental and health impacts and
    40  safety implications of the facility, both during  its  construction  and
    41  its  operation,  including  any studies, identifying the author and date
    42  thereof, used in the evaluation, which identifies  (i)  the  anticipated
    43  gaseous,  liquid and solid wastes to be produced at the facility includ-

    44  ing their source, anticipated volumes, composition and temperature,  and
    45  such other attributes as the board may specify and the probable level of
    46  noise during construction and operation of the facility; (ii) the treat-
    47  ment  processes  to reduce wastes to be released to the environment, the
    48  manner of disposal for wastes retained and measures for noise abatement;
    49  (iii) the anticipated volumes of wastes to be released to  the  environ-
    50  ment  under  any  operating  condition  of  the facility, including such
    51  meteorological, hydrological and other  information  needed  to  support
    52  such  estimates;  (iv)  conceptual  architectural  and engineering plans
    53  indicating compatibility of the facility with the environment;  (v)  how

    54  the construction and operation of the facility, including transportation
    55  and disposal of wastes would comply with environmental health and safety
    56  standards, requirements, regulations and rules under state and municipal

        S. 5844                            17                            A. 8510
 
     1  laws, and a statement why any variances or exceptions should be granted;
     2  (vi)  water  withdrawals  from  and discharges to the watershed; (vii) a
     3  description of the fuel interconnection and supply for the project;  and
     4  (viii)  an  electric  interconnection  study,  consisting generally of a
     5  design study and a system reliability impact study;
     6    (c) Such evidence as will enable the board  and  the  commissioner  of

     7  environmental  conservation to evaluate the facility's pollution control
     8  systems and to reach a  determination  to  issue  therefor,  subject  to
     9  appropriate  conditions  and  limitations,  permits  pursuant to federal
    10  recognition of state authority in  accordance  with  the  federal  Clean
    11  Water  Act, the federal Clean Air Act and the federal Resource Conserva-
    12  tion and Recovery Act, and permits pursuant to section 15-1503 and arti-
    13  cle nineteen of the environmental conservation law;
    14    (d) Where the proposed facility intends  to  use  petroleum  or  other
    15  back-up  fuel  for generating electricity, evidence and an evaluation on
    16  the adequacy of the facility's on-site back-up fuel storage and supply;

    17    (e) A plan for security of the proposed facility  during  construction
    18  and  operation  of  such facility and the measures to be taken to ensure
    19  the safety and security of the local community,  including  contingency,
    20  emergency  response  and evacuation control, to be reviewed by the board
    21  in consultation with the New York state division  of  homeland  security
    22  and emergency services and in cities with a population over one million,
    23  such  plan  shall  also  be  reviewed  by  the local office of emergency
    24  management;
    25    (f) In accordance with rules and regulations that shall be promulgated
    26  by the department of environmental  conservation  for  the  analysis  of
    27  environmental  justice  issues, including the requirements of paragraphs

    28  (g) and (h) of subdivision one of this section, an evaluation of signif-
    29  icant and adverse disproportionate environmental impacts of the proposed
    30  facility, if any, resulting from its construction and operation, includ-
    31  ing any studies identifying the author and  dates  thereof,  which  were
    32  used in the evaluation;
    33    (g)  A cumulative impact analysis of air quality within a half-mile of
    34  the facility, or other radius as determined by standards established  by
    35  department  of  environmental  conservation  regulations, that considers
    36  available data associated with projected emissions  of  air  pollutants,
    37  including  but  not  limited to federal criteria pollutants and mercury,
    38  from sources, including, but not limited to,  the  facility,  facilities

    39  that  have been proposed under this article and have submitted an appli-
    40  cation determined to be in compliance by the  board,  existing  sources,
    41  and  sources permitted but not yet constructed that were permitted sixty
    42  or more days prior to the filing of the application under title V of the
    43  clean air act, provided that such analysis and  standards  shall  be  in
    44  accordance  with  rules and regulations that shall be promulgated by the
    45  department of environmental conservation pursuant to this paragraph;
    46    (h) A comprehensive demographic, economic and physical description  of
    47  the  community  within which the facility is located, within a half-mile
    48  radius of the location of the proposed facility, compared and contrasted

    49  with the county in which the facility  is  proposed  and  with  adjacent
    50  communities  within  such county, including reasonably available data on
    51  population, racial  and  ethnic  characteristics,  income  levels,  open
    52  space,  and public health data, including available department of public
    53  health data on  incidents  of  asthma  and  cancer  provided  that  such
    54  description  and  comparison shall be in accordance with rules and regu-
    55  lations promulgated pursuant to paragraph (f) of this subdivision;

        S. 5844                            18                            A. 8510
 
     1    (i) A description and evaluation of reasonable and available alternate
     2  locations to the proposed facility, if any; a description of the compar-

     3  ative advantages and disadvantages as appropriate; and  a  statement  of
     4  the  reasons  why the primary proposed location and source, as appropri-
     5  ate,  is  best  suited,  among  the  alternatives considered, to promote
     6  public health and welfare, including the recreational and other  concur-
     7  rent  uses  which  the  site  may  serve,  provided that the information
     8  required pursuant to this paragraph shall  be  no  more  extensive  than
     9  required under article eight of the environmental conservation law;
    10    (j)  For  proposed wind-powered facilities, the expected environmental
    11  impacts of the facility on avian and bat species based on  pre-construc-
    12  tion  studies  conducted pursuant to paragraph (c) of subdivision one of

    13  section one hundred sixty-three of this article; and a proposed plan  to
    14  avoid  or,  where  unavoidable,  minimize  and mitigate any such impacts
    15  during construction and operation of  the  facility  based  on  existing
    16  information  and results of post-construction monitoring proposed in the
    17  plan;
    18    (k) An analysis of the potential impact  that  the  proposed  facility
    19  will  have  on  the wholesale generation markets, both generally and for
    20  the location-based market in which the facility is proposed, as well  as
    21  the potential impact of the proposed facility on fuel costs;
    22    (l) A statement demonstrating that the facility is reasonably consist-
    23  ent  with  the most recent state energy plan, including, but not limited

    24  to, impacts on fuel diversity, regional requirements for capacity, elec-
    25  tric transmission and fuel delivery  constraints  and  other  issues  as
    26  appropriate,  including  the comparative advantages and disadvantages of
    27  reasonable and available alternate locations  or  properties  identified
    28  for  power  plant  construction,  and a statement of the reasons why the
    29  proposed location and source is  best  suited,  among  the  alternatives
    30  identified, to promote public health and welfare;
    31    (m)  Such  other information as the applicant may consider relevant or
    32  as may be required by the board. Copies of  the  application,  including
    33  the  required  information,  shall  be filed with the board and shall be
    34  available for public inspection; and

    35    2. Each application shall be accompanied by proof of service, in  such
    36  manner as the board shall prescribe, of:
    37    (a)  A  copy of such application on (i) each municipality in which any
    38  portion of such facility is to be located as proposed or in any alterna-
    39  tive location listed. Such copy to a municipality shall be addressed  to
    40  the  chief  executive  officer  thereof and shall specify the date on or
    41  about which the application is to be filed;
    42    (ii) each member of the board;
    43    (iii) the department of agriculture and markets;
    44    (iv) the secretary of state;
    45    (v) the attorney general;
    46    (vi) the department of transportation;
    47    (vii) the office of parks, recreation and historic preservation;

    48    (viii) a library serving the district of  each  member  of  the  state
    49  legislature  in  whose  district  any  portion  of the facility is to be
    50  located as proposed or in any alternative location listed;
    51    (ix) in the event  that  such  facility  or  any  portion  thereof  as
    52  proposed  or  in  any  alternative location listed is located within the
    53  Adirondack park, as defined in subdivision one of section 9-0101 of  the
    54  environmental conservation law, the Adirondack park agency; and
    55    (x) the public information coordinator for placement on the website of
    56  the department; and

        S. 5844                            19                            A. 8510
 
     1    (b)  A  notice  of such application on (i) persons residing in munici-

     2  palities entitled to receive a copy of the  application  under  subpara-
     3  graph  (i)  of  paragraph  (a) of this subdivision. Such notice shall be
     4  given by the publication of a summary of the application and the date on
     5  or about which it will be filed, to be published under regulations to be
     6  promulgated  by the board, in such form and in such newspaper or newspa-
     7  pers, including local community and general circulation  newspapers,  as
     8  will  serve  substantially  to inform the public of such application, in
     9  plain language, in English and in any other language  spoken  as  deter-
    10  mined  by  the  board  by a significant portion of the population in the
    11  community, that describes the proposed facility and  its  location,  the

    12  range  of  potential environmental and health impacts of each pollutant,
    13  the application and review process, and a  contact  person,  with  phone
    14  number  and  address,  from  whom  information  will be available as the
    15  application proceeds;
    16    (ii) each member of  the  state  legislature  in  whose  district  any
    17  portion  of the facility is to be located as proposed or in any alterna-
    18  tive location listed; and
    19    (iii) persons who have filed a statement with the secretary within the
    20  past twelve months that they wish to receive all such notices concerning
    21  facilities in the area in  which  the  facility  is  to  be  located  as
    22  proposed or in any alternative location listed.

    23    3.  Inadvertent  failure  of  service  on  any  of the municipalities,
    24  persons, agencies, bodies or commissions named  in  subdivision  two  of
    25  this  section  shall  not be jurisdictional and may be cured pursuant to
    26  regulations of the board designed to afford such persons adequate notice
    27  to enable them to participate effectively in the  proceeding.  In  addi-
    28  tion, the board may, after filing, require the applicant to serve notice
    29  of the application or copies thereof or both upon such other persons and
    30  file proof thereof as the board may deem appropriate.
    31    4.  The  board  shall prescribe the form and content of an application
    32  for an amendment of a certificate to be issued pursuant to this article.

    33  Notice of such an application shall be given as set forth in subdivision
    34  two of this section.
    35    5. If a reasonable and available alternate location not listed in  the
    36  application  is proposed in the certification proceeding, notice of such
    37  proposed alternative shall be given as set forth in subdivision  two  of
    38  this section.
    39    6. (a) Each application shall be accompanied by a fee in an amount (i)
    40  equal  to  one thousand dollars for each thousand kilowatts of capacity,
    41  but no more than four hundred thousand dollars, (ii) and for  facilities
    42  that  will  require storage or disposal of fuel waste byproduct an addi-
    43  tional fee of five hundred dollars for each thousand kilowatt of capaci-

    44  ty, but no more than fifty thousand dollars shall be  deposited  in  the
    45  intervenor account, established pursuant to section ninety-seven-kkkk of
    46  the  state  finance  law,  to  be disbursed at the board's direction, to
    47  defray expenses incurred by municipal and other  local  parties  to  the
    48  proceeding  (except  a  municipality  which is the applicant) for expert
    49  witness, consultant, administrative and legal fees,  provided,  however,
    50  such  expenses shall not be available for judicial review or litigation.
    51  If at any time subsequent to the filing of the application, the applica-
    52  tion is amended in a manner that warrants substantial additional scruti-
    53  ny, the board may require an additional intervenor fee in an amount  not

    54  to  exceed  seventy-five  thousand  dollars. The board shall provide for
    55  notices, for municipal and  other  local  parties,  in  all  appropriate
    56  languages.  Any  moneys  remaining  in  the intervenor account after the

        S. 5844                            20                            A. 8510
 
     1  board's jurisdiction over an application has ceased shall be returned to
     2  the applicant.
     3    (b)  Notwithstanding  any  other provision of law to the contrary, the
     4  board shall provide by rules and regulations for the management  of  the
     5  intervenor  account  and for disbursements from the account, which rules
     6  and regulations shall be consistent with the purpose of this section  to

     7  make  available  to municipal parties at least one-half of the amount of
     8  the intervenor account and for uses specified in paragraph (a)  of  this
     9  subdivision. In addition, the board shall provide other local parties up
    10  to  one-half of the amount of the intervenor account, provided, however,
    11  that the board shall assure that the purposes for which  moneys  in  the
    12  intervenor account will be expended will contribute to an informed deci-
    13  sion  as  to  the  appropriateness of the site and facility and are made
    14  available on an equitable basis in  a  manner  which  facilitates  broad
    15  public participation.
    16    §  165. Hearing schedule. 1. After the receipt of an application filed
    17  pursuant to section one hundred sixty-four of this article, the chair of

    18  the board shall, within sixty days of such  receipt,  determine  whether
    19  the  application  complies  with  such section and upon finding that the
    20  application so complies, fix a date for the  commencement  of  a  public
    21  hearing.   The department of environmental conservation shall advise the
    22  board within said sixty day period whether an application filed pursuant
    23  to paragraph (b) of subdivision four of this section contains sufficient
    24  information meeting the requirements specified under  subparagraphs  (i)
    25  through  (iv)  of  such paragraph to qualify for the expedited procedure
    26  provided for in such paragraph.  No later than the date of the  determi-
    27  nation  that an application complies with section one hundred sixty-four

    28  of this article, the  department  of  environmental  conservation  shall
    29  initiate its review pursuant to federally delegated or approved environ-
    30  mental  permitting  authority.  The  chair  of the board may require the
    31  filing of any additional information needed to supplement an application
    32  before or during the hearings.
    33    2. Within a reasonable time after the date has been fixed by the chair
    34  for commencement of a public hearing, the presiding examiner shall  hold
    35  a  prehearing conference to expedite the orderly conduct and disposition
    36  of the hearing, to specify the issues,  to  obtain  stipulations  as  to
    37  matters not disputed, and to deal with such other matters as the presid-

    38  ing  examiner  may deem proper. Thereafter, the presiding examiner shall
    39  issue an order identifying the issues to be  addressed  by  the  parties
    40  provided,  however,  that  no such order shall preclude consideration of
    41  additional issues or requests for additional submissions,  documentation
    42  or testimony at a hearing which warrant consideration in order to devel-
    43  op  an  adequate  record  as  determined  by  an order of the board. The
    44  presiding examiner shall be permitted a reasonable time  to  respond  to
    45  any and all interlocutory motions and appeals, but in no case shall such
    46  time extend beyond forty-five days.
    47    3.  All  parties shall be prepared to proceed in an expeditious manner

    48  at the hearing so that it may proceed regularly until completion, except
    49  that hearings shall be of sufficient duration to provide adequate oppor-
    50  tunity to hear direct evidence and rebuttal evidence from  residents  of
    51  the area affected by the proposed major electric generating facility. To
    52  the  extent practicable, the place of the hearing shall be designated by
    53  the presiding examiner at a location within two miles  of  the  proposed
    54  location of the facility.
    55    4.  (a)  Except  as  provided  in  paragraph  (b) of this subdivision,
    56  proceedings on an application shall be completed in all  respects  in  a

        S. 5844                            21                            A. 8510
 

     1  manner  consistent  with  federally  delegated or approved environmental
     2  permitting authority, including a final decision by  the  board,  within
     3  twelve  months  from  the  date  of a determination by the chair that an
     4  application  complies  with section one hundred sixty-four of this arti-
     5  cle; provided, however, the board may extend the  deadline  in  extraor-
     6  dinary circumstances by no more than six months in order to give consid-
     7  eration  to specific issues necessary to develop an adequate record. The
     8  board must render a final decision on the application by  the  aforemen-
     9  tioned  deadlines unless such deadlines are waived by the applicant. If,
    10  at any time subsequent to the commencement of the hearing,  there  is  a

    11  material and substantial amendment to the application, the deadlines may
    12  be  extended  by no more than six months, unless such deadline is waived
    13  by the applicant, to consider such amendment.
    14    (b) Proceedings on an application by an owner  of  an  existing  major
    15  electric  generating facility to modify such existing facility or site a
    16  new major electric generating facility adjacent or  contiguous  to  such
    17  existing  facility,  shall  be  completed  in  all  respects in a manner
    18  consistent with federally delegated or approved environmental permitting
    19  authority, including a final decision by the board,  within  six  months
    20  from  the  date  of  a  determination by the chair that such application

    21  complies with section one hundred sixty-four of this  article,  whenever
    22  such application demonstrates that the operation of the modified facili-
    23  ty,  or  of the existing facility and new facility in combination, would
    24  result in:
    25    (i) a decrease in the rate of emission of each of the relevant  siting
    26  air  contaminants.   For facilities that are partially replaced or modi-
    27  fied, the percentage decrease  shall  be  calculated  by  comparing  the
    28  potential  to emit of each such contaminant of the existing unit that is
    29  to be modified or replaced as of the  date  of  application  under  this
    30  article  to  the  future  potential to emit each such contaminant of the
    31  modified or replacement unit as proposed in the application. For facili-

    32  ties that are sited physically adjacent or  contiguous  to  an  existing
    33  facility,  the  percentage decrease shall be calculated by comparing the
    34  potential to emit of each such contaminant of the existing  facility  as
    35  of  the  date of application under this article, to the future potential
    36  to emit each such contaminant of the existing and new facility  combined
    37  as proposed in the application;
    38    (ii) a reduction of the total annual emissions of each of the relevant
    39  siting  air contaminants emitted by the existing facility.  The percent-
    40  age reduction shall be calculated by  comparing  (on  a  pounds-per-year
    41  basis)  the  past  actual  emissions  of each of the relevant siting air

    42  contaminants emitted by the existing facility averaged  over  the  three
    43  years preceding the date of application under this article, to the annu-
    44  alized  potential to emit each such contaminant of the modified facility
    45  or of the combined existing and new facility as proposed in the applica-
    46  tion;
    47    (iii) introduction of a new cooling water intake structure where  such
    48  structure  withdraws  water at a rate equal to or less than closed-cycle
    49  cooling; and
    50    (iv) a lower heat rate than the heat rate of the existing facility.
    51    The applicant shall supply the details of the analysis in the applica-
    52  tion and such supporting information, as may be requested by  the  board

    53  or,  in  the  exercise  of federally delegated or approved environmental
    54  permitting authority,  the  department  of  environmental  conservation,
    55  necessary  to show compliance with the requirements of subparagraphs (i)
    56  through (iv) of this paragraph. The board may  extend  the  deadline  in

        S. 5844                            22                            A. 8510
 
     1  extraordinary  circumstances  by  no  more than three months in order to
     2  give consideration to specific issues necessary to develop  an  adequate
     3  record.  The  board  shall render a final decision on the application by
     4  the  aforementioned  deadlines  unless  such deadlines are waived by the
     5  applicant. If, at any time subsequent to the commencement of  the  hear-

     6  ing,  there  is a material and substantial amendment to the application,
     7  the deadlines may be extended by no more than three months, unless  such
     8  deadline is waived by the applicant, to consider such amendment.
     9    5.  If  an  application  for an amendment of a certificate proposing a
    10  change in the facility is likely to result in any material  increase  in
    11  any  environmental impact of the facility or a substantial change in the
    12  location of all or a portion of such facility, a hearing shall  be  held
    13  in the same manner as a hearing on an application for a certificate. The
    14  board  shall  promulgate rules, regulations and standards under which it
    15  shall determine whether hearings are required under this subdivision and
    16  shall make such determinations.

    17    § 166. Parties to a certification proceeding. 1. The  parties  to  the
    18  certification proceedings shall include:
    19    (a) The applicant;
    20    (b) The department of environmental conservation;
    21    (c) The department of economic development;
    22    (d) The department of health;
    23    (e) The department of agriculture and markets;
    24    (f) The New York state energy research and development authority;
    25    (g) The department of state;
    26    (h) The office of parks, recreation and historic preservation;
    27    (i)  Where  the facility or any portion thereof or of any alternate is
    28  to be located within the Adirondack park, as defined in subdivision  one
    29  of  section 9-0101 of the environmental conservation law, the Adirondack

    30  park agency;
    31    (j) A municipality entitled to receive a copy of the application under
    32  paragraph (a) of subdivision two of section one  hundred  sixty-four  of
    33  this  article, if it has filed with the board a notice of intent to be a
    34  party, within forty-five days after the  date  given  in  the  published
    35  notice  as  the date for the filing of the application; any municipality
    36  entitled to be a party herein and seeking to  enforce  any  local  ordi-
    37  nance,  law, resolution or other action or regulation otherwise applica-
    38  ble shall present evidence in support thereof or shall  be  barred  from
    39  the enforcement thereof;
    40    (k)  Any  individual  resident in a municipality entitled to receive a

    41  copy of the application  under  paragraph  (a)  of  subdivision  two  of
    42  section  one  hundred  sixty-four of this article if he or she has filed
    43  with the board a notice of intent to be a party, within forty-five  days
    44  after  the  date given in the published notice as the date for filing of
    45  the application;
    46    (1) Any non-profit corporation or association, formed in whole  or  in
    47  part  to promote conservation or natural beauty, to protect the environ-
    48  ment, personal health or other biological values, to preserve historical
    49  sites, to promote consumer interests, to represent commercial and indus-
    50  trial groups or to promote the orderly development of any area in  which
    51  the  facility  is to be located, if it has filed with the board a notice

    52  of intent to become a party, within forty-five days after the date given
    53  in the published notice as the date for filing of the application;
    54    (m) Any other municipality or resident of  such  municipality  located
    55  within  a five mile radius of such proposed facility, if it or the resi-
    56  dent has filed with the board a notice of  intent  to  become  a  party,

        S. 5844                            23                            A. 8510
 
     1  within  forty-five  days after the date given in the published notice as
     2  the date for filing of the application;
     3    (n)  Any other municipality or resident of such municipality which the
     4  board in its discretion finds to have  an  interest  in  the  proceeding

     5  because  of  the potential environmental effects on such municipality or
     6  person, if the municipality or person has filed with the board a  notice
     7  of intent to become a party, within forty-five days after the date given
     8  in  the  published  notice  as  the  date for filing of the application,
     9  together with an explanation of the potential environmental  effects  on
    10  such municipality or person; and
    11    (o)  Such  other persons or entities as the board may at any time deem
    12  appropriate, who  may  participate  in  all  subsequent  stages  of  the
    13  proceeding.
    14    2.  The  department  shall  designate  members  of its staff who shall
    15  participate as a party in proceedings under this article.

    16    3. Any person may make a  limited  appearance  in  the  proceeding  by
    17  filing  a  statement of his or her intent to limit his or her appearance
    18  in writing at any time prior to the commencement of the  hearing.    All
    19  papers  and  matters filed by a person making a limited appearance shall
    20  become part of the record.  No person making a limited appearance  shall
    21  be a party or shall have the right to present testimony or cross-examine
    22  witnesses or parties.
    23    4.  The  presiding  officer may for good cause shown, permit a munici-
    24  pality or other person entitled to become a party under subdivision  one
    25  of  this  section,  but which has failed to file the requisite notice of
    26  intent within the time required, to become a party, and  to  participate

    27  in all subsequent stages of the proceeding.
    28    § 167. Conduct of hearing. 1. (a) The hearing shall be conducted in an
    29  expeditious  manner by a presiding examiner appointed by the department.
    30  An associate hearing examiner shall be appointed by  the  department  of
    31  environmental conservation prior to the date set for commencement of the
    32  public  hearing.  The  associate  examiner  shall attend all hearings as
    33  scheduled by the presiding examiner and shall assist the presiding exam-
    34  iner in inquiring into and calling for testimony concerning relevant and
    35  material matters. The conclusions and recommendations of  the  associate
    36  examiner  shall  be  incorporated  in  the  recommended  decision of the

    37  presiding examiner, unless the associate examiner prefers  to  submit  a
    38  separate  report of dissenting or concurring conclusions and recommenda-
    39  tions. In the event that the commissioner of environmental  conservation
    40  issues  permits  pursuant  to  federally delegated or approved authority
    41  under the federal Clean Water Act, the federal Clean  Air  Act  and  the
    42  federal  Resource  Conservation and Recovery Act, or section 15-1503 and
    43  article nineteen of the environmental conservation law,  the  record  in
    44  the  proceeding and the associate examiner's conclusions and recommenda-
    45  tions shall, insofar  as  is  consistent  with  federally  delegated  or
    46  approved  environmental  permitting authority, provide the basis for the

    47  decision of the commissioner of environmental  conservation  whether  or
    48  not to issue such permits.
    49    (b)  The testimony presented at a hearing may be presented in writing.
    50  Oral  testimony  may  be  presented  at  any  public  statement  hearing
    51  conducted  by  the board for the taking of unsworn statements. The board
    52  may require any state agency to provide  expert  testimony  on  specific
    53  subjects  where  its  personnel  have  the  requisite expertise and such
    54  testimony is considered necessary to  the  development  of  an  adequate
    55  record.  All  testimony  and information presented by the applicant, any
    56  state agency or other party shall be subject to discovery and cross-exa-


        S. 5844                            24                            A. 8510
 
     1  mination. A record shall be made of the hearing  and  of  all  testimony
     2  taken and the cross-examinations thereon. The rules of evidence applica-
     3  ble to proceedings before a court shall not apply. The presiding examin-
     4  er  may  provide for the consolidation of the representation of parties,
     5  other than governmental bodies or agencies, having similar interests. In
     6  the case of such a consolidation, the right to counsel of its own choos-
     7  ing shall be preserved to each party to the proceeding provided that the
     8  consolidated group may be required to be heard through  such  reasonable
     9  number  of counsel as the presiding examiner shall determine.  Appropri-

    10  ate regulations shall be issued by the board to provide  for  prehearing
    11  discovery  procedures  by  parties to a proceeding, consolidation of the
    12  representation of parties,  the  exclusion  of  irrelevant,  repetitive,
    13  redundant or immaterial evidence, and the review of rulings by presiding
    14  examiners.
    15    2.  A  copy  of  the  record including, but not limited to, testimony,
    16  briefs and hearing testimony shall be made available by the board within
    17  thirty days of the close of the evidentiary record  for  examination  by
    18  the public, and shall be made available on the department's website.
    19    3.  The  chair of the board may enter into an agreement with an agency
    20  or department of the United States having concurrent  jurisdiction  over

    21  all or part of the location, construction, or operation of a major elec-
    22  tric generating facility subject to this article with respect to provid-
    23  ing  for  joint  procedures  and  a  joint hearing of common issues on a
    24  combined record, provided that such agreement  shall  not  diminish  the
    25  rights accorded to any party under this article.
    26    4.  The  presiding  examiner  shall  allow testimony to be received on
    27  reasonable and available alternate locations for the proposed  facility,
    28  alternate  energy  supply sources and demand-reducing measures, provided
    29  notice of the intent to submit such testimony shall be given within such
    30  period as the board shall prescribe by regulation, which period shall be

    31  not less than thirty nor more than sixty days after the commencement  of
    32  the  hearing.  Nevertheless, in its discretion, the board may thereafter
    33  cause to be considered other reasonable and available locations for  the
    34  proposed  facility, alternate energy supply sources and, where appropri-
    35  ate, demand-reducing measures.
    36    5. Notwithstanding the provisions of subdivision four of this section,
    37  the board may make a prompt determination  on  the  sufficiency  of  the
    38  applicant's  consideration  and evaluation of reasonable alternatives to
    39  its proposed type of major electric generating facility and its proposed
    40  location for that facility, as required pursuant  to  paragraph  (i)  of

    41  subdivision  one  of  section  one  hundred  sixty-four of this article,
    42  before resolution of other issues pertinent to a final determination  on
    43  the  application;  provided,  however,  that all interested parties have
    44  reasonable opportunity to question and present evidence in support of or
    45  against the merits of the applicant's consideration  and  evaluation  of
    46  such  alternatives, as required pursuant to paragraph (i) of subdivision
    47  one of section one hundred sixty-four of this article, so that the board
    48  is able to decide,  in  the  first  instance,  whether  the  applicant's
    49  proposal is preferable to alternatives.
    50    §  168. Board decisions. 1. The board shall make the final decision on

    51  an application under this article for a certificate or amendment  there-
    52  of,  upon  the  record made before the presiding examiner, including any
    53  briefs or exceptions to any recommended decision of such examiner or  to
    54  any  report of the associate examiner, and after hearing such oral argu-
    55  ment as the board shall determine. Except for good cause  shown  to  the
    56  satisfaction  of  the  board,  a determination under subdivision five of

        S. 5844                            25                            A. 8510
 
     1  section one hundred sixty-seven of this  article  that  the  applicant's
     2  proposal  is preferable to alternatives shall be final.  Such a determi-
     3  nation shall be subject to rehearing and review  only  after  the  final

     4  decision on an application is rendered.
     5    2.  The  board  shall not grant a certificate or amendment thereof for
     6  the construction or operation of a facility, either as  proposed  or  as
     7  modified  by  the  board, without making explicit findings regarding the
     8  nature of the probable environmental impacts  of  the  construction  and
     9  operation  of  the  facility,  including  the  cumulative  environmental
    10  impacts of the construction and operation of related facilities such  as
    11  electric  lines,  gas  lines,  water  supply lines, waste water or other
    12  sewage treatment facilities, communications and relay facilities, access
    13  roads, rail facilities, or steam lines, including impacts on:
    14    (a) ecology, air, ground and surface water, wildlife, and habitat;

    15    (b) public health and safety;
    16    (c) cultural, historic, and recreational resources, including aesthet-
    17  ics and scenic values; and
    18    (d) transportation, communication, utilities and other infrastructure.
    19  Such findings shall include the cumulative impact of  emissions  on  the
    20  local  community including whether the construction and operation of the
    21  facility results in a significant and adverse disproportionate  environ-
    22  mental  impact,  in  accordance with regulations promulgated pursuant to
    23  paragraph (f) of subdivision one of section one  hundred  sixty-four  of
    24  this  article  by the department of environmental conservation regarding
    25  environmental justice issues.

    26    3. The board may not grant a certificate for the construction or oper-
    27  ation of a major electric generating facility, either as proposed or  as
    28  modified by the board, unless the board determines that:
    29    (a)  the  facility is a beneficial addition to or substitution for the
    30  electric generation capacity of the state; and
    31    (b) the construction and operation of  the  facility  will  serve  the
    32  public interest; and
    33    (c)  the  adverse environmental effects of the construction and opera-
    34  tion of the facility will be minimized or avoided to the maximum  extent
    35  practicable; and
    36    (d)  if the board finds that the facility results in or contributes to
    37  a significant and adverse disproportionate environmental impact  in  the

    38  community  in  which  the  facility would be located, the applicant will
    39  avoid, offset or minimize the impacts caused by the  facility  upon  the
    40  local  community  for the duration that the certificate is issued to the
    41  maximum extent practicable using verifiable measures; and
    42    (e) the facility is designed to operate in compliance with  applicable
    43  state and local laws and regulations issued thereunder concerning, among
    44  other  matters,  the environment, public health and safety, all of which
    45  shall be binding upon the applicant, except that the board may elect not
    46  to apply, in whole or in part, any local ordinance, law,  resolution  or
    47  other  action  or any regulation issued thereunder or any local standard

    48  or requirement, including, but not limited to,  those  relating  to  the
    49  interconnection to and use of water, electric, sewer, telecommunication,
    50  fuel  and  steam lines in public rights of way, which would be otherwise
    51  applicable if it finds that, as applied to the proposed  facility,  such
    52  is  unreasonably  burdensome  in  view of the existing technology or the
    53  needs of or costs to ratepayers whether located  inside  or  outside  of
    54  such  municipality. The board shall provide the municipality an opportu-
    55  nity to present evidence in support of such ordinance, law,  resolution,
    56  regulation or other local action issued thereunder.

        S. 5844                            26                            A. 8510
 

     1    4.  In making the determinations required in subdivision three of this
     2  section, the board shall consider:
     3    (a) the state of available technology;
     4    (b) the nature and economics of reasonable alternatives;
     5    (c)  environmental  impacts  found pursuant to subdivision two of this
     6  section;
     7    (d) the impact of construction and operation  of  related  facilities,
     8  such  as  electric  lines, gas lines, water supply lines, waste water or
     9  other sewage treatment facilities, communications and relay  facilities,
    10  access roads, rail facilities, or steam lines;
    11    (e)  the consistency of the construction and operation of the facility
    12  with the energy policies and long-range energy planning  objectives  and

    13  strategies contained in the most recent state energy plan;
    14    (f)  the  impact on community character and whether the facility would
    15  affect communities that are disproportionately  impacted  by  cumulative
    16  levels of pollutants; and
    17    (g) such additional social, economic, visual or other aesthetic, envi-
    18  ronmental and other considerations deemed pertinent by the board.
    19    5.  The department or the commission shall monitor, enforce and admin-
    20  ister compliance with any terms and conditions set forth in the  board's
    21  order.
    22    6.  A copy of the board's decision and opinion shall be served on each
    23  party electronically or by mail.
    24    7. Following any rehearing and any  judicial  review  of  the  board's

    25  decision,  the  board's  jurisdiction  over  an application shall cease,
    26  provided, however, that the permanent board  shall  retain  jurisdiction
    27  with  respect  to  the  amendment, suspension or revocation of a certif-
    28  icate.
    29    § 169. Opinion to be issued with decision. In rendering a decision  on
    30  an application for a certificate, the board shall issue an opinion stat-
    31  ing  its  reasons  for the action taken. If the board has found that any
    32  local ordinance, law, resolution,  regulation  or  other  action  issued
    33  thereunder  or  any  other  local standard or requirement which would be
    34  otherwise applicable is unreasonably burdensome  pursuant  to  paragraph
    35  (e)  of  subdivision  three  of  section one hundred sixty-eight of this

    36  article, it shall state in its opinion the reasons therefor.
    37    § 170. Rehearing and judicial review. 1. Any party  aggrieved  by  the
    38  board's  decision  denying  or  granting  a certificate may apply to the
    39  board for a rehearing within thirty days after issuance of the  aggriev-
    40  ing  decision.  Any  such application shall be considered and decided by
    41  the board and any rehearing shall be completed and a  decision  rendered
    42  thereon  within  ninety  days of the expiration of the period for filing
    43  rehearing petitions, provided however that  the  board  may  extend  the
    44  deadline  by  no  more than ninety days where a rehearing is required if
    45  necessary to develop an adequate record. The applicant  may  waive  such

    46  deadline.  Thereafter  such  a  party may obtain judicial review of such
    47  decision as provided in this section. A  judicial  proceeding  shall  be
    48  brought  in  the appellate division of the supreme court of the state of
    49  New York in the judicial department embracing  the  county  wherein  the
    50  facility  is  to be located or, if the application is denied, the county
    51  wherein the applicant has proposed to locate the facility. Such proceed-
    52  ing shall be initiated by the filing of a petition in such court  within
    53  thirty days after the issuance of a final decision by the board upon the
    54  application  for rehearing together with proof of service of a demand on
    55  the board to file with said court a copy of a written transcript of  the

    56  record of the proceeding and a copy of the board's decision and opinion.

        S. 5844                            27                            A. 8510
 
     1  The  board's  copy  of  said  transcript, decision and opinion, shall be
     2  available at all reasonable times to all parties for examination without
     3  cost. Upon receipt of such petition and demand the board shall forthwith
     4  deliver  to  the  court  a  copy of the record and a copy of the board's
     5  decision and opinion.  Thereupon, the court shall have  jurisdiction  of
     6  the proceeding and shall have the power to grant such relief as it deems
     7  just and proper, and to make and enter an order enforcing, modifying and
     8  enforcing  as  so  modified,  remanding for further specific evidence or

     9  findings or setting aside in whole or in part such decision. The  appeal
    10  shall  be  heard on the record, without requirement of reproduction, and
    11  upon briefs to the court. No objection that has not been  urged  by  the
    12  party  in his or her application for rehearing before the board shall be
    13  considered by the court, unless the failure  or  neglect  to  urge  such
    14  objection  shall  be excused because of extraordinary circumstances. The
    15  findings of fact on which such decision is based shall be conclusive  if
    16  supported  by  substantial  evidence on the record considered as a whole
    17  and matters of judicial notice set forth in the opinion.  The  jurisdic-
    18  tion  of  the appellate division of the supreme court shall be exclusive

    19  and its judgment and order shall be final,  subject  to  review  by  the
    20  court of appeals in the same manner and form and with the same effect as
    21  provided for appeals in a special proceeding. All such proceedings shall
    22  be  heard  and determined by the appellate division of the supreme court
    23  and by the court of appeals as expeditiously as possible and with lawful
    24  precedence over all other matters.
    25    2. The grounds for and scope of review of the court shall  be  limited
    26  to whether the decision and opinion of the board are:
    27    (a)  In  conformity with the constitution, laws and regulations of the
    28  state and the United States;
    29    (b) Supported by substantial evidence in the  record  and  matters  of

    30  judicial notice properly considered and applied in the opinion;
    31    (c) Within the board's statutory jurisdiction or authority;
    32    (d)  Made  in  accordance with procedures set forth in this article or
    33  established by rule or regulation pursuant to this article;
    34    (e) Arbitrary, capricious or an abuse of discretion; or
    35    (f) Made pursuant to a process that afforded meaningful involvement of
    36  citizens affected by  the  facility  regardless  of  age,  race,  color,
    37  national origin and income.
    38    3.  Except as herein provided article seventy-eight of the civil prac-
    39  tice law and rules shall apply to appeals taken hereunder.
    40    § 171. Jurisdiction of  courts.  Except  as  expressly  set  forth  in

    41  section one hundred seventy of this article and except for review by the
    42  court  of appeals of a decision of the appellate division of the supreme
    43  court as provided for therein, no court of this state shall have  juris-
    44  diction  to hear or determine any matter, case or controversy concerning
    45  any matter which was or could have been determined in a proceeding under
    46  this article or to stop or delay the  construction  or  operation  of  a
    47  major  electric  generating  facility  except to enforce compliance with
    48  this article or the terms and conditions issued thereunder.
    49    § 172. Powers of municipalities and state agencies.  1.  Notwithstand-
    50  ing  any  other  provision  of law, no state agency, municipality or any

    51  agency thereof may, except as expressly authorized under this article by
    52  the board, require any approval, consent, permit, certificate  or  other
    53  condition for the construction or operation of a major electric generat-
    54  ing  facility  with  respect  to  which an application for a certificate
    55  hereunder has been filed, including pursuant to paragraph (e) of  subdi-
    56  vision  three  of  section  one hundred sixty-eight of this article, any

        S. 5844                            28                            A. 8510
 
     1  such approval, consent, permit, certificate or condition relating to the
     2  interconnection to or use of water, electric, sewer,  telecommunication,
     3  fuel and steam lines in public rights of way, provided that this article

     4  shall  not  impair or abrogate any federal, state or local labor laws or
     5  any otherwise applicable state  law  for  the  protection  of  employees
     6  engaged  in  the  construction and operation of such facility; provided,
     7  however, that in the case of a municipality or an agency  thereof,  such
     8  municipality has received notice of the filing of the application there-
     9  for; and provided further, however, that the department of environmental
    10  conservation  shall be the permitting agency for permits issued pursuant
    11  to federally delegated or approved authority  under  the  federal  Clean
    12  Water  Act, the federal Clean Air Act and the federal Resource Conserva-
    13  tion and Recovery Act.   In issuing such permits,  the  commissioner  of

    14  environmental  conservation  shall follow procedures established in this
    15  article to the extent that they are consistent with federally  delegated
    16  or  approved  environmental  permitting authority.   The commissioner of
    17  environmental conservation shall provide such permits to the board prior
    18  to its determination whether or not to issue a certificate. The issuance
    19  by the department of environmental conservation of such permits shall in
    20  no way interfere with the required review by the  board  of  the  antic-
    21  ipated environmental and health impacts relating to the construction and
    22  operation  of  the  facility  as  proposed,  or its authority to deny an
    23  application for certification pursuant to  section  one  hundred  sixty-

    24  eight  of  this  article,  and,  in the event of such a denial, any such
    25  permits shall be deemed null and void.
    26    2. The Adirondack park agency shall not hold  public  hearings  for  a
    27  major  electric generating facility with respect to which an application
    28  hereunder is filed, provided that such agency has received notice of the
    29  filing of such application.
    30    § 173. Applicability to public authorities.   The power  authority  of
    31  the  state  of  New  York, the Green Island power authority and the Long
    32  Island power authority shall be subject to all provisions of this  arti-
    33  cle  for  major  electric generating facilities which any such authority
    34  builds or causes to be built. For generating facilities  which  are  not

    35  major  electric  generating facilities, none of the above named authori-
    36  ties shall be permitted to serve as lead agency for purposes of environ-
    37  mental review pursuant to the provisions of the environmental  conserva-
    38  tion law.
    39    §  13.  The  opening  paragraph  and paragraph (b) of subdivision 5 of
    40  section 8-0111 of the environmental conservation law, as added by  chap-
    41  ter 612 of the laws of 1975, are amended to read as follows:
    42    The  requirements of [subdivision two of section 8-0109 of] this arti-
    43  cle shall not apply to:
    44    (b) Actions subject to the provisions requiring a certificate of envi-
    45  ronmental compatibility and public need in articles seven  [and  eight],
    46  ten and the former article eight of the public service law; or

    47    §  14. Section 17-0823 of the environmental conservation law, as added
    48  by chapter 801 of the laws of 1973, is amended to read as follows:
    49  § 17-0823. Power plant siting.
    50    In the case of a major steam electric generating facility, as  defined
    51  in  section  one  hundred  forty  of  the  public  service  law, for the
    52  construction or operation of which a certificate is required  under  the
    53  former  article  eight  of  [such] the public service law, [an applicant
    54  shall apply for and obtain such certificate in lieu of filing an  appli-
    55  cation  and obtaining a permit under this article. Any reference in this
    56  article to a permit shall, in the case  of  such  major  steam  electric


        S. 5844                            29                            A. 8510

     1  generating facility, be deemed for all purposes to refer to such certif-
     2  icate, provided that nothing] or a major electric generating facility as
     3  defined  in section one hundred sixty of the public service law, for the
     4  construction or operation of which a certificate is required under arti-
     5  cle  ten  of  the public service law, such certificate shall be deemed a
     6  permit under this section if issued  by  the  state  board  on  electric
     7  generation siting and the environment pursuant to federally delegated or
     8  approved  environmental permit authority. Nothing herein shall limit the
     9  authority of the [departments] department of health  and  [environmental

    10  conservation]  the  department  to  monitor the environmental and health
    11  impacts resulting from the operation of such major steam electric gener-
    12  ating facility or major electric  generating  facility  and  to  enforce
    13  applicable  provisions  of  the  public  health  law  and [environmental
    14  conservation laws] this article and the  terms  and  conditions  of  the
    15  certificate  governing  the  environmental  and health impacts resulting
    16  from such operation. In such case all powers,  duties,  obligations  and
    17  privileges  conferred  upon the department by this article shall devolve
    18  upon the New York state board on  electric  generation  siting  and  the
    19  environment.  In  considering  the granting of permits, such board shall
    20  apply the provisions of this article and the Act.

    21    § 15. Paragraph j of subdivision 2 of section 19-0305 of the  environ-
    22  mental  conservation law, as amended by chapter 525 of the laws of 1981,
    23  is amended to read as follows:
    24    j. Consider for approval or disapproval applications for  permits  and
    25  certificates  including  plans  or  specifications for air contamination
    26  sources and air cleaning installations or any part thereof submitted [to
    27  him pursuant to] consistent  with  the  rules  of  the  department,  and
    28  inspect  the  installation  for  compliance with the plans or specifica-
    29  tions; provided that in the case of a major  steam  electric  generating
    30  facility, as defined in [either] former section one hundred forty of the
    31  public  service  law,  for  which  a certificate is required pursuant to

    32  [either] the former article eight of [such] the public service law, or a
    33  major electric generating facility as defined  in  section  one  hundred
    34  sixty  of  the  public  service law, for which a certificate is required
    35  pursuant to article ten of the public service law, such  approval  func-
    36  tions [shall] may be performed by the state board on electric generation
    37  siting and the environment, as defined in [such] the public service law,
    38  pursuant  to  federally  delegated  or approved environmental permitting
    39  authority, and such inspection  functions  shall  be  performed  by  the
    40  department[;  provided further that nothing]. Nothing herein shall limit

    41  the authority of the [departments] department of  health  and  [environ-
    42  mental  conservation]  the  department  to monitor the environmental and
    43  health impacts resulting from the operation of such major steam electric
    44  generating facility and to enforce applicable provisions of  the  public
    45  health  law  and  [the environmental conservation laws] this chapter and
    46  the terms and conditions of the certificate governing the  environmental
    47  and health impacts resulting from such operation.
    48    §  16.  Paragraph (e) of subdivision 3 of section 49-0307 of the envi-
    49  ronmental conservation law, as added by chapter 292 of the laws of 1984,
    50  is amended to read as follows:
    51    (e) where land subject to a conservation easement or  an  interest  in

    52  such  land  is  required for a major utility transmission facility which
    53  has received a certificate of  environmental  compatibility  and  public
    54  need  pursuant to article seven of the public service law or is required
    55  for a major steam electric generating  facility  which  has  received  a
    56  certificate [or] of environmental compatibility and public need pursuant

        S. 5844                            30                            A. 8510
 
     1  to  the former article eight of the public service law, or a major elec-
     2  tric generating facility or repowering  project  which  has  received  a
     3  certificate  of  environmental compatibility and public need pursuant to
     4  article  ten  of the public service law, upon the filing of such certif-

     5  icate in a manner prescribed for recording a conveyance of real property
     6  pursuant to section two hundred ninety-one of the real property  law  or
     7  any  other  applicable  provision of law, provided that such certificate
     8  contains a finding that the public  interest  in  the  conservation  and
     9  protection  of  the  natural resources, open spaces and scenic beauty of
    10  the Adirondack or Catskill parks has been considered.
    11    § 17. Section 1014 of the public authorities law, as amended by  chap-
    12  ter 446 of the laws of 1972, is amended to read as follows:
    13    §  1014.  Public service law not applicable to authority; inconsistent
    14  provisions in other acts superseded. The rates, services  and  practices
    15  relating  to  the generation, transmission, distribution and sale by the
    16  authority, of power to be generated from the projects authorized by this

    17  title shall not be subject to the provisions of the public  service  law
    18  nor  to  regulation by, nor the jurisdiction of the department of public
    19  service. Except to the extent article seven of the  public  service  law
    20  applies  to  the  siting  and  operation of a major utility transmission
    21  facility as defined therein, and article ten of the public  service  law
    22  applies to the siting of a major electric generating facility as defined
    23  therein,  and  except  to  the  extent  section eighteen-a of [such] the
    24  public service law provides for assessment of the authority for  certain
    25  costs  relating thereto, the provisions of the public service law and of
    26  the environmental conservation law and every other law relating  to  the
    27  department  of public service or the public service commission or to the

    28  environmental conservation department or to  the  functions,  powers  or
    29  duties  assigned  to  the division of water power and control by chapter
    30  six hundred nineteen[,] of the  laws  of  nineteen  hundred  twenty-six,
    31  shall  so far as is necessary to make this title effective in accordance
    32  with its terms and purposes be deemed to be superseded, and wherever any
    33  provision of law shall be found in conflict with the provisions of  this
    34  title  or  inconsistent with the purposes thereof, it shall be deemed to
    35  be superseded, modified or repealed as the case may require.
    36    § 18. Paragraph c of subdivision 8 of section  1020-c  of  the  public
    37  authorities law, as amended by chapter 7 of the laws of 1987, is amended
    38  to read as follows:
    39    c. Article seven of the public service law shall apply to the authori-

    40  ty's  siting  and  operation of a major transmission facility as therein
    41  defined and article [eight] ten of the public service law shall apply to
    42  the authority's siting and operation of a major [steam] electric  gener-
    43  ating facility as therein defined.
    44    §  19. Section 1020-s of the public authorities law, as added by chap-
    45  ter 517 of the laws of 1986, is amended to read as follows:
    46    § 1020-s. Public service law generally not  applicable  to  authority;
    47  inconsistent  provisions in certain other acts superseded. 1. The rates,
    48  services and practices relating to the electricity generated by  facili-
    49  ties  owned  or  operated  by  the authority shall not be subject to the
    50  provisions of the public service law or to regulation by, or the  juris-
    51  diction  of,  the  public  service  commission, except to the extent (a)

    52  article seven of the public service law applies to the siting and opera-
    53  tion of a major utility transmission facility as  defined  therein,  (b)
    54  article  [eight]  ten  of such law applies to the siting of a generating
    55  facility as defined therein, and (c)  section  eighteen-a  of  such  law
    56  provides for assessment for certain costs, property or operations.

        S. 5844                            31                            A. 8510
 
     1    2.  The  issuance  by  the authority of its obligations to acquire the
     2  securities or assets of LILCO shall be deemed not to be  "state  action"
     3  within  the  meaning  of the state environmental quality review act, and
     4  such act shall not be applicable in any respect to such  acquisition  or
     5  any action of the authority to effect such acquisition.

     6    § 20. The state finance law is amended by adding a new section 97-kkkk
     7  to read as follows:
     8    §  97-kkkk.  Intervenor account. 1. There is hereby established in the
     9  joint custody of the state comptroller and the commissioner of  taxation
    10  and finance an account to be known as the intervenor account.
    11    2.  Such  account  shall  consist of all revenues received from siting
    12  application fees for electric generating facilities pursuant to sections
    13  one hundred sixty-three and one hundred sixty-four of the public service
    14  law.
    15    3. Moneys of the account, following appropriation by the  legislature,
    16  may  be  expended  in  accordance  with  the  provisions of sections one
    17  hundred sixty-three and one hundred sixty-four  of  the  public  service

    18  law. Moneys shall be paid out of the account on the audit and warrant of
    19  the  state comptroller on vouchers certified or approved by the chair of
    20  the public service commission.
    21    § 21. The environmental conservation law is amended by  adding  a  new
    22  section 19-0312 to read as follows:
    23  § 19-0312. Power plant emissions and performance standards.
    24    1. Definitions. As used in this section:
    25    a.  "Mercury" means elemental, oxidized, and particle-bound mercury in
    26  source emissions.
    27    b. "Major electric generating facility" means any electricity generat-
    28  ing facility with a nameplate capacity of twenty-five thousand kilowatts
    29  or more.
    30    2. Any major electric generating facility shall demonstrate compliance

    31  with all applicable emission requirements established by the  department
    32  for  the  purpose  of  complying  with all state and federal air quality
    33  requirements,  including  requirements  for  Sulfur  Dioxide,   Nitrogen
    34  Oxides,  Mercury, Carbon Dioxide and particulate matter of less than 2.5
    35  microns. Such facility must also comply with other applicable department
    36  air quality requirements relating to offsetting of emissions.
    37    3. No later than twelve  months  after  the  effective  date  of  this
    38  section, the commissioner shall promulgate rules and regulations target-
    39  ing  reductions in emissions of carbon dioxide that would apply to major
    40  electric generating facilities that  commenced  construction  after  the
    41  effective date of the regulations.

    42    §  22.  Study  to Increase Generation from Photovoltaic Devices in New
    43  York.  1. Legislative Intent. The legislature hereby finds and  declares
    44  that  solar  energy  generation  from  photovoltaic  devices in New York
    45  represents less than 0.01 percent of the State's electricity generation.
    46  While the current cost of electricity from  photovoltaic  devices  is  a
    47  premium  above  market  price for electricity from most other fuels, the
    48  cost  of  installing  such  photovoltaic  generation  is  declining  and
    49  increasing  solar energy generation represents a significant opportunity
    50  for the development of the State's clean energy economic sector and  the
    51  creation of new high technology jobs in New York.
    52    2.  The  New  York state energy research and development authority, in
    53  consultation with the department of public service, is hereby authorized

    54  and directed to conduct a study with respect  to  increasing  generation
    55  from  photovoltaic  devices  in New York, including, but not limited to,
    56  the following:

        S. 5844                            32                            A. 8510
 
     1    a. Identify administrative and policy options that could  be  used  in
     2  achieve  goals of two thousand five hundred megawatts of generation from
     3  photovoltaic devices in New York by 2020 and five thousand megawatts  by
     4  2025.
     5    b.  Conduct  a targeted analysis of the per megawatt cost of achieving
     6  increased generation from photovoltaic devices and the costs of  achiev-
     7  ing the goals specified in paragraph a of this subdivision using each of
     8  the  options identified in the analysis conducted pursuant to such para-
     9  graph.
    10    c. Conduct an analysis of the net economic and job  creation  benefits

    11  of  achieving the goals specified in subdivision a of this section using
    12  each of the options identified in the  analysis  conducted  pursuant  to
    13  such subdivision.
    14    d.  Conduct an analysis of the environmental benefits of achieving the
    15  goals specified in paragraph a of this subdivision  using  each  of  the
    16  options identified in the analysis conducted pursuant to such paragraph.
    17    3.  The New York state energy research and development authority shall
    18  report to the governor and the legislature on the findings and recommen-
    19  dations of the study conducted  pursuant  to  subdivision  two  of  this
    20  section on or before January 31, 2012.
    21    §  23.  Severability.  If  any clause, sentence, paragraph, section or
    22  part of this act shall be adjudged by any court of  competent  jurisdic-
    23  tion to be invalid, such judgment shall not affect, impair or invalidate

    24  the  remainder  thereof,  but  shall be confined in its operation to the
    25  clause, sentence, paragraph, section or part thereof  directly  involved
    26  in the controversy in which such judgment shall have been rendered.
    27    § 24. This act shall take effect immediately; provided that nothing in
    28  this  act shall be construed to limit any administrative authority, with
    29  respect to matters included in this act, which authority  existed  prior
    30  to  the  effective date of this act.  Within twelve months of the effec-
    31  tive date of this act, all rules and regulations  required  pursuant  to
    32  this  act  shall  be  adopted.   Prior to the adoption of such rules and
    33  regulations by the New York state board on  electric  generation  siting
    34  and  the  environment  and  the department of environmental conservation
    35  required under this act, nothing in this act shall affect the  right  to

    36  apply  for  a  permit  pursuant  to  the  environmental conservation law
    37  including article 8 therein, or other applicable  laws,  to  operate  an
    38  electric  generating  facility  with  a nameplate generating capacity of
    39  twenty-five thousand kilowatts or more.
Go to top
Page display time = 0.3191 sec