N.Y. Pub. Serv. Law § 164

Current through 2024 NY Law Chapter 443

Section 164 - Application for a certificate

1. An applicant for a certificate shall file with the board an application, in such form as the board may prescribe containing the following information and materials:

(a) A description of the site and a description of the facility to be built thereon; including available site information, maps and descriptions, present and proposed development, source and volume of water required for plant operation and cooling, anticipated emissions to air, including but not limited to federal criteria pollutants and mercury, anticipated discharges to water and groundwater, pollution control equipment, and, as appropriate, geological, visual or other aesthetic, ecological, tsunami, seismic, biological, water supply, population and load center data;

(b) An evaluation of the expected environmental and health impacts and safety implications of the facility, both during its construction and its operation, including any studies, identifying the author and date thereof, used in the evaluation, which identifies (i) the anticipated gaseous, liquid and solid wastes to be produced at the facility including their source, anticipated volumes, composition and temperature, and such other attributes as the board may specify and the probable level of noise during construction and operation of the facility; (ii) the treatment processes to reduce wastes to be released to the environment, the manner of disposal for wastes retained and measures for noise abatement; (iii) the anticipated volumes of wastes to be released to the environment under any operating condition of the facility, including such meteorological, hydrological and other information needed to support such estimates; (iv) conceptual architectural and engineering plans indicating compatibility of the facility with the environment; (v) how the construction and operation of the facility, including transportation and disposal of wastes would comply with environmental health and safety standards, requirements, regulations and rules under state and municipal laws, and a statement why any variances or exceptions should be granted; (vi) water withdrawals from and discharges to the watershed; (vii) a description of the fuel interconnection and supply for the project; and (viii) an electric interconnection study, consisting generally of a design study and a system reliability impact study;

(c) Such evidence as will enable the board and the commissioner of environmental conservation to evaluate the facility's pollution control systems and to reach a determination to issue therefor, subject to appropriate conditions and limitations, permits pursuant to federal recognition of state authority in accordance with the federal Clean Water Act, the federal Clean Air Act and the federal Resource Conservation and Recovery Act, and permits pursuant to section 15-1503 and article nineteen of the environmental conservation law;

(d) Where the proposed facility intends to use petroleum or other back-up fuel for generating electricity, evidence and an evaluation on the adequacy of the facility's on-site back-up fuel storage and supply;

(e) A plan for security of the proposed facility during construction and operation of such facility and the measures to be taken to ensure the safety and security of the local community, including contingency, emergency response and evacuation control, to be reviewed by the board in consultation with the New York state division of homeland security and emergency services and in cities with a population over one million, such plan shall also be reviewed by the local office of emergency management;

(f) In accordance with rules and regulations that shall be promulgated by the department of environmental conservation for the analysis of environmental justice issues, including the requirements of paragraphs (g) and (h) of subdivision one of this section, an evaluation of significant and adverse disproportionate environmental impacts of the proposed facility, if any, resulting from its construction and operation, including any studies identifying the author and dates thereof, which were used in the evaluation;

(g) A cumulative impact analysis of air quality within a half-mile of the facility, or other radius as determined by standards established by department of environmental conservation regulations, that considers available data associated with projected emissions of air pollutants, including but not limited to federal criteria pollutants and mercury, from sources, including, but not limited to, the facility, facilities that have been proposed under this article and have submitted an application determined to be in compliance by the board, existing sources, and sources permitted but not yet constructed that were permitted sixty or more days prior to the filing of the application under title V of the clean air act, provided that such analysis and standards shall be in accordance with rules and regulations that shall be promulgated by the department of environmental conservation pursuant to this paragraph;

(h) A comprehensive demographic, economic and physical description of the community within which the facility is located, within a half-mile radius of the location of the proposed facility, compared and contrasted with the county in which the facility is proposed and with adjacent communities within such county, including reasonably available data on population, racial and ethnic characteristics, income levels, open space, and public health data, including available department of public health data on incidents of asthma and cancer provided that such description and comparison shall be in accordance with rules and regulations promulgated pursuant to paragraph (f) of this subdivision;

(i) A description and evaluation of reasonable and available alternate locations to the proposed facility, if any; a description of the comparative advantages and disadvantages as appropriate; and a statement of the reasons why the primary proposed location and source, as appropriate, is best suited, among the alternatives considered, to promote public health and welfare, including the recreational and other concurrent uses which the site may serve, provided that the information required pursuant to this paragraph shall be no more extensive than required under article eight of the environmental conservation law;

(j) For proposed wind-powered facilities, the expected environmental impacts of the facility on avian and bat species based on pre-construction studies conducted pursuant to paragraph (c) of subdivision one of section one hundred sixty-three of this article; and a proposed plan to avoid or, where unavoidable, minimize and mitigate any such impacts during construction and operation of the facility based on existing information and results of post-construction monitoring proposed in the plan;

(k) An analysis of the potential impact that the proposed facility will have on the wholesale generation markets, both generally and for the location-based market in which the facility is proposed, as well as the potential impact of the proposed facility on fuel costs;

(l) A statement demonstrating that the facility is reasonably consistent with the most recent state energy plan, including, but not limited to, impacts on fuel diversity, regional requirements for capacity, electric transmission and fuel delivery constraints and other issues as appropriate, including the comparative advantages and disadvantages of reasonable and available alternate locations or properties identified for power plant construction, and a statement of the reasons why the proposed location and source is best suited, among the alternatives identified, to promote public health and welfare;

(m) Such other information as the applicant may consider relevant or as may be required by the board. Copies of the application, including the required information, shall be filed with the board and shall be available for public inspection; and

2. Each application shall be accompanied by proof of service, in such manner as the board shall prescribe, of:

(a) A copy of such application on

(i)each municipality in which any portion of such facility is to be located as proposed or in any alternative location listed. Such copy to a municipality shall be addressed to the chief executive officer thereof and shall specify the date on or about which the application is to be filed;

(ii) each member of the board;

(iii) the department of agriculture and markets;

(iv) the secretary of state;

(v) the attorney general;

(vi) the department of transportation;

(vii) the office of parks, recreation and historic preservation;

(viii) a library serving the district of each member of the state legislature in whose district any portion of the facility is to be located as proposed or in any alternative location listed;

(ix) in the event that such facility or any portion thereof as proposed or in any alternative location listed is located within the Adirondack park, as defined in subdivision one of section 9-0101 of the environmental conservation law, the Adirondack park agency; and

(x) the public information coordinator for placement on the website of the department; and

(b) A notice of such application on

(i)persons residing in municipalities entitled to receive a copy of the application under subparagraph (i) of paragraph (a) of this subdivision. Such notice shall be given by the publication of a summary of the application and the date on or about which it will be filed, to be published under regulations to be promulgated by the board, in such form and in such newspaper or newspapers, including local community and general circulation newspapers, as will serve substantially to inform the public of such application, in plain language, in English and in any other language spoken as determined by the board by a significant portion of the population in the community, that describes the proposed facility and its location, the range of potential environmental and health impacts of each pollutant, the application and review process, and a contact person, with phone number and address, from whom information will be available as the application proceeds;

(ii) each member of the state legislature in whose district any portion of the facility is to be located as proposed or in any alternative location listed; and

(iii) persons who have filed a statement with the secretary within the past twelve months that they wish to receive all such notices concerning facilities in the area in which the facility is to be located as proposed or in any alternative location listed.

3. Inadvertent failure of service on any of the municipalities, persons, agencies, bodies or commissions named in subdivision two of this section shall not be jurisdictional and may be cured pursuant to regulations of the board designed to afford such persons adequate notice to enable them to participate effectively in the proceeding. In addition, the board may, after filing, require the applicant to serve notice of the application or copies thereof or both upon such other persons and file proof thereof as the board may deem appropriate.

4. The board shall prescribe the form and content of an application for an amendment of a certificate to be issued pursuant to this article. Notice of such an application shall be given as set forth in subdivision two of this section.

5. If a reasonable and available alternate location not listed in the application is proposed in the certification proceeding, notice of such proposed alternative shall be given as set forth in subdivision two of this section.

6.

(a) Each application shall be accompanied by a fee in an amount (i) equal to one thousand dollars for each thousand kilowatts of capacity, but no more than four hundred thousand dollars, (ii) and for facilities that will require storage or disposal of fuel waste byproduct an additional fee of five hundred dollars for each thousand kilowatt of capacity, but no more than fifty thousand dollars shall be deposited in the intervenor account, established pursuant to section ninety-seven-kkkk of the state finance law, to be disbursed at the board's direction, to defray expenses incurred by municipal and other local parties to the proceeding (except a municipality which is the applicant) for expert witness, consultant, administrative and legal fees, provided, however, such expenses shall not be available for judicial review or litigation. If at any time subsequent to the filing of the application, the application is amended in a manner that warrants substantial additional scrutiny, the board may require an additional intervenor fee in an amount not to exceed seventy-five thousand dollars. The board shall provide for notices, for municipal and other local parties, in all appropriate languages. Any moneys remaining in the intervenor account after the board's jurisdiction over an application has ceased shall be returned to the applicant.

(b) Notwithstanding any other provision of law to the contrary, the board shall provide by rules and regulations for the management of the intervenor account and for disbursements from the account, which rules and regulations shall be consistent with the purpose of this section to make available to municipal parties at least one-half of the amount of the intervenor account and for uses specified in paragraph (a) of this subdivision. In addition, the board shall provide other local parties up to one-half of the amount of the intervenor account, provided, however, that the board shall assure that the purposes for which moneys in the intervenor account will be expended will contribute to an informed decision as to the appropriateness of the site and facility and are made available on an equitable basis in a manner which facilitates broad public participation.

N.Y. Pub. Serv. Law § 164