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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."
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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
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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

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A08510 Text:

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

           S. 5844                                                  A. 8510

                              2011-2012 Regular Sessions

                             S E N A T E - A S S E M B L Y

                                     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    S 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    S  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    S 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    S 5.  The public service law is amended by adding a new  section  66-m
    2  to read as follows:
    3    S  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    S 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    S 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    S  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    S 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    S 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    S 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    S 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    S 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    S 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    S  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    S 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    S  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    S 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    S 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    S 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    S  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    S 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    S 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    S  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    S 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    S 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    S 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    S 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
   24  SIXTY-EIGHT  OF  THIS  ARTICLE,  AND, IN THE EVENT OF SUCH A DENIAL, ANY
   25  SUCH 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    S 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    S  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    S  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  S 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    S 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    S  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    S 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    S  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    S 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    S  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    S 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    S 20. The state finance law is amended by adding a new section 97-kkkk
    7  to read as follows:
    8    S  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    S 21. The environmental conservation law is amended by  adding  a  new
   22  section 19-0312 to read as follows:
   23  S 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    S  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    S  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    S 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.
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