« AnteriorContinuar »
6. (a) Each application shall be accompanied by a fee in an amount equal to one thousand dollars for each thousand kilowatts of generating capacity of the subject facility, but no more than one hundred fifty thousand dollars to be deposited in the intervenor account, established pursuant to section ninety-seven-tt of the state finance law, to be disbursed at the board's direction, to defray expenses incurred by municipal and other local parties to the proceeding (except a municipality which is the applicant) for expert witness and consultant fees. If at any time subsequent to the filing of the application, the application is amended in a manner that warrants substantial additional scrutiny, the board may require an additional intervenor fee in an amount not to exceed fifty thousand dollars. The board shall provide for transcripts, the reproduction and service of documents,
and the publication of required notices, for municipal parties. Any moneys remaining in the intervenor fund, after the board has issued its decision on an application under this article and the time for applying for å rehearing and judicial review has expired, shall be returned to the applicant.
(b). Notwithstanding any other provision of law to the contrary, the board shall provide by rules and regulations for the management of the intervenor fund and for disbursements from the fund, which rules and regulations shall be consistent with the purpose of this section to make available to municipal parties at least one-half of the amount of the intervenor fund and for
specified in paragraph (a) of this subdivision. In addition, the board shall provide other local parties up to one-half of the amount of the intervenor fund,
however, that the board shall assure that the purposes for which moneys in the intervenor fund will be expended will contribute to an informed decision as to the appropriateness of the site and facility and are made available on an equitable basis in a manner which facilitates broad public participation.
7. After public notice and an opportunity to comment, the board shall promulgate such regulations as may be necessary to implement, with respect to major electric generating facilities, permit programs established pursuant to requirements of the Federal Clean Water Act, the Federal Clean Air Act and the Federal Resource Conservation and Recovery Act. Such regulations shall be consistent with any state program requirements established by the United States environmental protection agency for state participation in such pollutant control permit programs and shall include procedures for early consideration and such prompt determination as is feasible of issues arising under such permit programs.
§ 165. Hearing schedule. 1. After the receipt of an application filed pursuant to section one hundred sixty-four of this article, the chairman of the board shall, within sixty days of such receipt, determine whether the application complies with such section and upon finding that the application so complies, fix a date for the commencement of a public hearing. If the chairman determines that an application does not conform to section one hundred sixty-four of this article, he may nevertheless fix a date for the commencement of a public hearing on any portions of the application which do conform with section one hundred sixty-four of this article and permit the filing of such additional information as may be needed to supplement an application before or during the hearings. 2. Within
reasonable time after the date has been fixed by the chairman for commencement of a public hearing,,, the presiding examiner shall hold a prehearing conference to expedite the orderly conduct and disposition of the hearing, to specify the issues, to obtain stipulations as to matters not disputed, and to deal with such other matters as the presiding examiner may deen proper. Thereafter, the presiding iner shall issue an order ident'ifying the issues to be addressed by the parties provided, however, that no such order shall, preclude consideration of issues which warrant consideration in order to develop an adequate record as determined by an order of the board.
3., All parties shall be prepared to proceed in an expeditious manner at the hearing so that it may proceed regularly until completion.
The place of the hearing shall be designated by the presiding examiner, except that hearings of sufficient duration to provide adequate opportunity to hear direct evidence and rebuttal evidence from residents of the area affected by the major electric generating facility. EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law
4. Proceedings on an application shall be completed in all respects, including a final decision by the board, within twelve months from the date of a
determination by the chairman that an application complies with section one hundred sixty-four of this article; provided, however, for facilities over two hundred thousand kilowatts which have not been selected pursuant to an approved procurement process the board may tend the deadline in extraordinary circumstances by no more than six months in order to give consideration to specific issues necessary
to develop an adequate record. The board must render a final decision on the application by the aforementioned deadlines unless such deadlines
waived by the applicant. If, at any time subsequent to the commencement of the hearing, there is a material and substantial amendment to the application, the deadlines may be extended by no more than six months, unless such deadline is waived by the applicant, to consider such amendment. On an
application for an amendment of a certificate proposing a change in the facility likely to result in any material increase in any environmental
impact of the facility or a substantial change in the location of all or a portion of such facility, a hearing shall be held in the same manner as a hearing on an application for a certificate. The board shall promulgate rules, regulations and standards under which it shall determine whether hearings are required under this subdivision and shall make such determinations.
§ 166. Parties to a certification proceeding. 1. The parties to the certification proceedings shall include:
(a) The applicant;
(b) The department of environmental conservation, which shall in any such proceeding present expert testimony and information concerning the
environmental impact of the proposed facility, and, as appro-, priate, any alternate facility or energy source on the environment, and whether and how such facility would comply with applicable state and municipal environmental protection laws, standards, rules and regulations;
(c) 'The department of economic development;
the facility or any portion thereof or of any alternate is to be located within its jurisdiction, the St. Lawrence-Eastern Ontario commission;
(h) Where the facility or any portion thereof or of any alternate is to be located within the Adirondack park, as defined in subdivision of section 9-0101 of the environmental conservation law, the Adirondack park agency;,
(i) Ă municipality entitled to receive a copy of the application under paragraph (a) of subdivision two of section one hundred sixty-four of this article, if it has filed with the board a notice of intent to be a party, within forty-five days after the date given in the published tice as the date for the filing of the application; any municipality entitled to be a party herein and seeking to enforce any local ordinance, law, resolution or other action or regulation otherwise applicable shall present evidence in support thereof or shall be barred from the enforcement thereof;
(j) Any individual resident in a municipality entitled to receive a copy of the application under paragraph (a) of subdivision two of
hundred sixty-four of this article if he has filed with the board a notice of intent to be a party, within forty-five days after the date given in the published notice as the date for filing of the application;
(k) Any non-profit corporation or association, formed in whole or in part to promote conservation or natural beauty, to protect the environment, personal health or other biological values, to preserve historical sites, to promote consumer interests, to represent commercial and indus; trial groups or to promote the orderly development of any area in which the facility is to be located, if it has filed with the board a notice of intent to become a party, within forty-five days after the date given in the published notice as the date for filing of the application;
(1) Any other municipality or resident of such municipality located within a five mile radius of such proposed facility, if it or the resident has filed with the board a notice of intent to become a party, within forty-five days after the date given in the published notice the date for filing of the application,
(m) Any other municipality or resident of such municipality which the board in its discretion finds to have
interest in the proceeding because of the potential environmental effects on such municipality or person, if the municipality or person has filed with the board a notice of intent to become a party, within forty-five days after the date given in the published notice as the date for filing of the application, together with an explanation of the potential environmental effects on such municipality or person; and
(n) Such other persons or entities as the board may at any time deem appropriate, who may participate in all subsequent stages
of the proceeding
2. The department shall designate members of its staff who shall participate as a party in proceedings under this article.
3. Any person may make a limited appearance in the proceeding by filing a statement of his intent to limit his appearance in writing, at any time prior to the commencement of the hearing. All papers and matters filed by a person making a limited appearance shall become part of the record. No person making a limited appearance shall be a party or shall have the right to present oral testimony or cross-examine witnesses parties.
4. The board may for good cause shown, permit a municipality or other person entitled to become a party under subdivision one of this section, but which has failed to file the requisite notice of intent within the time required, to become a party, and to participate in all
all subsequent stages of the proceeding.
$ 167. Conduct of hearing. 1. The hearing shall be conducted in an expeditious manner by a presiding examiner appointed by the department. An associate hearing examiner shall be appointed by the department of environmental conservation prior to the date set for commencement of the public hearing. The associate examiner shall attend all hearings as scheduled by the presiding examiner and he shall assist the presiding examiner in inquiring into and calling for testimony concerning relevant and material matters. The conclusions and recommendations of the associate examiner shall be incorporated in the recommended decision of the presiding examiner, unless the associate examiner prefers to submit separate report of dissenting or concurring conclusions and recommendations.
The testimony presented at a hearing may be presented in writing or orally. The board may require any state agency to provide expert testimony on specific subjects where its personnel have the requisite expertise and such testimony is considered necessary to the development of an adequate record. A record shall be made of the hearing and of all testimony taken and the cross-examinations thereon. The rules of evidence applicable to proceedings before a court shall not apply. The presiding examiner may provide for the consolidation of the representation of parties, other than
agencies, having similar interests. In the case of such a consolidation, the right to counsel of its own choosing shall be preserved to each party to the proceeding provided that the consolidated group may be required to be heard through such reasonable number of counsel
the preşiding examiner shall determine. Appropriate regulations shall be issued by the board to provide for prehearing discoveryprocedures by parties to a proceeding, consolidation of the representation of parties,
the exclusion of irrelevant, repetitive, redundant or immaterial evidence, and the review of rulings by presiding examiners.
2. A copy of the record shall be made available by the board at all reasonable times for examination by the public.
3. The chairman of the board may enter into an agreement with an agency or department of the United States having concurrent jurisdiction
all or part of the location, construction, or operation of a major electric generating facility subject to this article with
respect to providing for joint procedures and a joint hearing of common issues on a combined record, provided that such agreement shall not diminish the rights accorded to any party under this article.
4. The presiding examiner shall allow testimony to be received on reasonable and available alternate locations, and, with respect to facility that has not been selected pursuant to an approved procurement process, alternate energy supply sources and, where appropriate, demandreducing measures,
provided notice of the intent to submit such testiEXPLANATION-Matter in italics is new; matter in brackets  is old law
mony shall be given within such period as the board shall prescribe by regulation, which period shall be not less than thirty nor more than sixty days after the commencement of the hearing: Nevertheless, in its discretion, the board may thereafter cause to be considered other reasonable and available locations, and, with respect to & facility that has not been selected pursuant to an approved procurement process, alternate energy supply sources and, where appropriate, , demand-reducing measures.
5. Notwithstanding the provisions of subdivision four of this section, the board may, by regulation, promulgate procedures to permit a prompt determination by the board on the sufficiency of the applicant's consideration and evaluation of alternatives to its proposed type of major electric generating facility and its proposed location for that facility, as required pursuant to paragraph (b) of subdivision one of section one hundred sixty-four of this article, before resolution of other issues pertinent to a final determination on the application. Such proce dures shall assure that all interested parties have reasonable opportunity to question and present evidence support of
the merits of the applicant's consideration and evaluation of alternatives, as required pursuant to paragraph (b) of subdivision one of section hundred sixty-four of this article, so that the board is able to decide, in the first instance, whether the applicant's proposal is preferable to alternatives.
§ 168. Board decisions. 1. The board shall make the final decision on an application under this article for certificate amendment thereof, ироп
the record made before the presiding examiner, after receiving briefs and exceptions to the recommended decision of such examiner
and to the report of the associate examiner, and after hearing such oral argument as the board shall determine. Except for good cause shown the satisfaction of the board, a determination under subdivision five of section one hundred sixty-seven of this article that the applicant's proposal is preferable to alternatives shall be final. Such a determination shall be subject to rehearing and review only after the final decision on an application is rendered.
2. The board shall render a decision upon the record either to grant or deny the application as filed or to certify the facility upon
conditions, limitations or modifications of the construction or operation of the facility, as the board maydeem appropriate. The
issue, with its decision, an opinion stating in full its reasons for its decision. The board shall issue an order upon the decision and the opinion embodying, the terms and conditions thereof in full. Following any rehearing and any judicial review of the board's decision, the board's jurisdiction over an application shall cease, provided, however, that the board, exclusive of the ad hoc members, shall retain ' jurisdiction with respect to the amendment,
amendment, suspension or revocation of a certificate. The commission shall monitor, enforce and administer pliance with
any terms and conditions set forth in the board's order. The board may not grant a certificate for the construction or
operation of a ma jor electric generating facility, either as proposed or as modified by the board, unless it shall first find and determine:
(a)(i) That the facility will satisfy additional electric capacity needs or other electric system needs, and that the construction of the facility is consistent with long-range energy planning objectives and strategies, provided however, that subsequent to the adoption of a state energy plan pursuant to article six of the energy law, the board shall find and determine that the construction of the facility is reasonably consistent with the policies and long-range energy planning objectives and strategies contained in the most recent state energy plan; (ii) that the facility was selected pursuant to an approved procurement process;
(b) The nature of the probable environmental impact, including a spec-
(c) that the facility (i) minimizes adverse environmental impacts, considering the state of available technology, the nature and
economics of such reasonable alternatives as are required to be examined pursuant to paragraph (b) of subdivision one of section one hundred sixty-four of this article, the interest of the state with respect to aesthetics, preservation of historic sites, forest and parks, fish and wildlife, viable agricultural lands, and other pertinent considerations, (ii) is
cribe by core ta
setja the is
FTXE Opporto 15th natives, 101
deside rable to
compat ible with public health and safety, (iii) will not discharge any effluent that will be in contravention of the standards adopted by the department of environmental conservation, or in case classification has been made of the receiving waters associated with the facility, will not discharge any effluent that will be unduly injurious to the propagation and protection of fish and wildlife, the industrial developinent of the state, and public health and
and public enjoyment of the receiving waters, (iv) will not emit any pollutants to the air that will be in contravention of applicable air emission control requirements air quality standards, (v) will control the runoff and leachate from any solid waste disposal facility, and (vi) will control the disposal of any hazardous waste;
(d) That the facility is designed to operate in compliance with applicable state and local laws and regulations issued thereunder concerning, among other matters, the environment, public health and safety, all of which shall be binding upon the applicant, except that
may refuse to apply any local ordinance, law, resolution or other action or any regulation issued thereunder or any local standard requirement which would be otherwise applicable if it finds that as applied to the proposed facility such is unreasonably restrictive in view of the existing technology or the needs of or costs to ratepayers whether located inside or outside of such municipality. The board shall provide the municipality an opportunity to present evidence in support of such ordinance,' law,' resolution, regulation or other local action issued thereunder; and
(e) That the construction and operation of the facility is in the public interest, considering the environmental impact of the facility and the reasonable alternatives examined as required pursuant to paragraph (b) of subdivision
hundred sixty-four of this article.
3. The board shall, either as a part of the decision described in subdivision two of this section or as a part of any determination as may be appropriately made in conformance with regulations adopted pursuant to subdivision seven of section one hundred sixty-four of this article, issue permits pursuant to federal recognition of state authority in accordance with the Federal Clean Water Act, the Federal Clean Air Act and the Federal Resource Conservation and Recovery Act. Such permits shall be based upon the evidence of record with respect to the construction and operation of the pollution control systems of the facility and shall contain such conditions and limitations
the board shall deem appropriate. The issuance of such permits as part of a determination hereunder shall not prevent the board, if it be so disposed, from denying the application under subdivision two of this section in which event the permit shall thenceforth be deemed to be of no force or effect.
4. A copy of the board's decision and opinion shall be served on each party personally or by mail.
§ 169. Opinion to be issued with decision. In rendering a decision on an application for a certificate, the board shall issue an opinion stating its
for the action taken. If the board has found that any local ordinance, law, resolution, regulation other action issued thereunder any other local standard or requirement which would be otherwise applicable is unreasonably restrictive pursuant to paragraph (d) of subdivision two of section one hundred sixty-eight of this article, it shall state in its opinion the reasons therefor.
$ 170. Rehearing and judicial review. 1: Any party aggrieved by the board's decision denying or granting &
certificate may apply to the board for a rehearing within thirty days after issuance of the ageriering decision. Any such application shall be considered and decided by the board and any rehearing shall be completed and a decision rendered thereon within ninety days of the expiration of the period for filing rehearing, petitions, provided however that the board may extend the deadline by no more than ninety days where a rehearing is required if
to develop an adequate record. The applicant may waive such deadline. Thereafter such a party may obtain judicial review of such decision
provided in this section. A judicial proceeding shall be brought in the appellate division of the supreme court of the state New York in the judicial department embracing the county where in the facility is to be located or, if the application is denied,
the county wherein the applicant has proposed to locate the facility. Such proceedEXPLANATION-Matter in italics is new; matter in brackets [ ] is old law