N.Y. Public Service Law § 164: Application for a certificate

§ 164. Application for a certificate. 1. An applicant for a

certificate shall file with the board an application, in such form as

the board may prescribe containing the following information and

materials:

(a) A description of the site and a description of the facility to be

built thereon; including available site information, maps and

descriptions, present and proposed development, source and volume of

water required for plant operation and cooling, anticipated emissions to

air, including but not limited to federal criteria pollutants and

mercury, anticipated discharges to water and groundwater, pollution

control equipment, and, as appropriate, geological, visual or other

aesthetic, ecological, tsunami, seismic, biological, water supply,

population and load center data;

(b) An evaluation of the expected environmental and health impacts and

safety implications of the facility, both during its construction and

its operation, including any studies, identifying the author and date

thereof, used in the evaluation, which identifies (i) the anticipated

gaseous, liquid and solid wastes to be produced at the facility

including their source, anticipated volumes, composition and

temperature, and such other attributes as the board may specify and the

probable level of noise during construction and operation of the

facility; (ii) the treatment processes to reduce wastes to be released

to the environment, the manner of disposal for wastes retained and

measures for noise abatement; (iii) the anticipated volumes of wastes to

be released to the environment under any operating condition of the

facility, including such meteorological, hydrological and other

information needed to support such estimates; (iv) conceptual

architectural and engineering plans indicating compatibility of the

facility with the environment; (v) how the construction and operation of

the facility, including transportation and disposal of wastes would

comply with environmental health and safety standards, requirements,

regulations and rules under state and municipal laws, and a statement

why any variances or exceptions should be granted; (vi) water

withdrawals from and discharges to the watershed; (vii) a description of

the fuel interconnection and supply for the project; and (viii) an

electric interconnection study, consisting generally of a design study

and a system reliability impact study;

(c) Such evidence as will enable the board and the commissioner of

environmental conservation to evaluate the facility's pollution control

systems and to reach a determination to issue therefor, subject to

appropriate conditions and limitations, permits pursuant to federal

recognition of state authority in accordance with the federal Clean

Water Act, the federal Clean Air Act and the federal Resource

Conservation and Recovery Act, and permits pursuant to section 15-1503

and article nineteen of the environmental conservation law;

(d) Where the proposed facility intends to use petroleum or other

back-up fuel for generating electricity, evidence and an evaluation on

the adequacy of the facility's on-site back-up fuel storage and supply;

(e) A plan for security of the proposed facility during construction

and operation of such facility and the measures to be taken to ensure

the safety and security of the local community, including contingency,

emergency response and evacuation control, to be reviewed by the board

in consultation with the New York state division of homeland security

and emergency services and in cities with a population over one million,

such plan shall also be reviewed by the local office of emergency

management;

(f) In accordance with rules and regulations that shall be promulgated

by the department of environmental conservation for the analysis of

environmental justice issues, including the requirements of paragraphs

(g) and (h) of subdivision one of this section, an evaluation of

significant and adverse disproportionate environmental impacts of the

proposed facility, if any, resulting from its construction and

operation, including any studies identifying the author and dates

thereof, which were used in the evaluation;

(g) A cumulative impact analysis of air quality within a half-mile of

the facility, or other radius as determined by standards established by

department of environmental conservation regulations, that considers

available data associated with projected emissions of air pollutants,

including but not limited to federal criteria pollutants and mercury,

from sources, including, but not limited to, the facility, facilities

that have been proposed under this article and have submitted an

application determined to be in compliance by the board, existing

sources, and sources permitted but not yet constructed that were

permitted sixty or more days prior to the filing of the application

under title V of the clean air act, provided that such analysis and

standards shall be in accordance with rules and regulations that shall

be promulgated by the department of environmental conservation pursuant

to this paragraph;

(h) A comprehensive demographic, economic and physical description of

the community within which the facility is located, within a half-mile

radius of the location of the proposed facility, compared and contrasted

with the county in which the facility is proposed and with adjacent

communities within such county, including reasonably available data on

population, racial and ethnic characteristics, income levels, open

space, and public health data, including available department of public

health data on incidents of asthma and cancer provided that such

description and comparison shall be in accordance with rules and

regulations promulgated pursuant to paragraph (f) of this subdivision;

(i) A description and evaluation of reasonable and available alternate

locations to the proposed facility, if any; a description of the

comparative advantages and disadvantages as appropriate; and a statement

of the reasons why the primary proposed location and source, as

appropriate, is best suited, among the alternatives considered, to

promote public health and welfare, including the recreational and other

concurrent uses which the site may serve, provided that the information

required pursuant to this paragraph shall be no more extensive than

required under article eight of the environmental conservation law;

(j) For proposed wind-powered facilities, the expected environmental

impacts of the facility on avian and bat species based on

pre-construction studies conducted pursuant to paragraph (c) of

subdivision one of section one hundred sixty-three of this article; and

a proposed plan to avoid or, where unavoidable, minimize and mitigate

any such impacts during construction and operation of the facility based

on existing information and results of post-construction monitoring

proposed in the plan;

(k) An analysis of the potential impact that the proposed facility

will have on the wholesale generation markets, both generally and for

the location-based market in which the facility is proposed, as well as

the potential impact of the proposed facility on fuel costs;

(l) A statement demonstrating that the facility is reasonably

consistent with the most recent state energy plan, including, but not

limited to, impacts on fuel diversity, regional requirements for

capacity, electric transmission and fuel delivery constraints and other

issues as appropriate, including the comparative advantages and

disadvantages of reasonable and available alternate locations or

properties identified for power plant construction, and a statement of

the reasons why the proposed location and source is best suited, among

the alternatives identified, to promote public health and welfare;

(m) Such other information as the applicant may consider relevant or

as may be required by the board. Copies of the application, including

the required information, shall be filed with the board and shall be

available for public inspection; and

2. Each application shall be accompanied by proof of service, in such

manner as the board shall prescribe, of:

(a) A copy of such application on (i) each municipality in which any

portion of such facility is to be located as proposed or in any

alternative location listed. Such copy to a municipality shall be

addressed to the chief executive officer thereof and shall specify the

date on or about which the application is to be filed;

(ii) each member of the board;

(iii) the department of agriculture and markets;

(iv) the secretary of state;

(v) the attorney general;

(vi) the department of transportation;

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

(viii) a library serving the district of each member of the state

legislature in whose district any portion of the facility is to be

located as proposed or in any alternative location listed;

(ix) in the event that such facility or any portion thereof as

proposed or in any alternative location listed is located within the

Adirondack park, as defined in subdivision one of section 9-0101 of the

environmental conservation law, the Adirondack park agency; and

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

the department; and

(b) A notice of such application on (i) persons residing in

municipalities entitled to receive a copy of the application under

subparagraph (i) of paragraph (a) of this subdivision. Such notice shall

be given by the publication of a summary of the application and the date

on or about which it will be filed, to be published under regulations to

be promulgated by the board, in such form and in such newspaper or

newspapers, including local community and general circulation

newspapers, as will serve substantially to inform the public of such

application, in plain language, in English and in any other language

spoken as determined by the board by a significant portion of the

population in the community, that describes the proposed facility and

its location, the range of potential environmental and health impacts of

each pollutant, the application and review process, and a contact

person, with phone number and address, from whom information will be

available as the application proceeds;

(ii) each member of the state legislature in whose district any

portion of the facility is to be located as proposed or in any

alternative location listed; and

(iii) persons who have filed a statement with the secretary within the

past twelve months that they wish to receive all such notices concerning

facilities in the area in which the facility is to be located as

proposed or in any alternative location listed.

3. Inadvertent failure of service on any of the municipalities,

persons, agencies, bodies or commissions named in subdivision two of

this section shall not be jurisdictional and may be cured pursuant to

regulations of the board designed to afford such persons adequate notice

to enable them to participate effectively in the proceeding. In

addition, the board may, after filing, require the applicant to serve

notice of the application or copies thereof or both upon such other

persons and file proof thereof as the board may deem appropriate.

4. The board shall prescribe the form and content of an application

for an amendment of a certificate to be issued pursuant to this article.

Notice of such an application shall be given as set forth in subdivision

two of this section.

5. If a reasonable and available alternate location not listed in the

application is proposed in the certification proceeding, notice of such

proposed alternative shall be given as set forth in subdivision two of

this section.

6. (a) Each application shall be accompanied by a fee in an amount (i)

equal to one thousand dollars for each thousand kilowatts of capacity,

but no more than four hundred thousand dollars, (ii) and for facilities

that will require storage or disposal of fuel waste byproduct an

additional fee of five hundred dollars for each thousand kilowatt of

capacity, but no more than fifty thousand dollars shall be deposited in

the intervenor account, established pursuant to section

ninety-seven-kkkk of the state finance law, to be disbursed at the

board's direction, to defray expenses incurred by municipal and other

local parties to the proceeding (except a municipality which is the

applicant) for expert witness, consultant, administrative and legal

fees, provided, however, such expenses shall not be available for

judicial review or litigation. If at any time subsequent to the filing

of the application, the application is amended in a manner that warrants

substantial additional scrutiny, the board may require an additional

intervenor fee in an amount not to exceed seventy-five thousand dollars.

The board shall provide for notices, for municipal and other local

parties, in all appropriate languages. Any moneys remaining in the

intervenor account after the board's jurisdiction over an application

has ceased shall be returned to the applicant.

(b) Notwithstanding any other provision of law to the contrary, the

board shall provide by rules and regulations for the management of the

intervenor account and for disbursements from the account, which rules

and regulations shall be consistent with the purpose of this section to

make available to municipal parties at least one-half of the amount of

the intervenor account and for uses specified in paragraph (a) of this

subdivision. In addition, the board shall provide other local parties up

to one-half of the amount of the intervenor account, provided, however,

that the board shall assure that the purposes for which moneys in the

intervenor account will be expended will contribute to an informed

decision as to the appropriateness of the site and facility and are made

available on an equitable basis in a manner which facilitates broad

public participation.