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the duration of the contract in accordance with policies and established by the commission.
$ 5. The public service law is amended by adding a new section 66-i to read as follows:
§ 66-i. Electric capacity procurement. 1. Any electric utility corporation, prior to entering electric capacity purchase contracts prior to making substantial investments to satisfy electric capacity needs, including investments in new construction, repowering or life extension of electric generating facilities, and demand-reducing measures, should consider reasonably available sources and suppliers of electric capacity and demand reducing measures, and should select the source or sources which best serve the public interest, taking into consideration such factors as ratepayer impacts, system reliability, environmental impacts, conservation of energy resources, preservation or creation economic opportunities, fuel efficiency, fuel availability and diversity, and public health and welfare.
2. The commission shall have authority to require each electric corporation to conduct competitive bidding auctions or other procurement programs for the purpose of satisfying electric capacity needs from reasonably available sources and suppliers of electric capacity.
3. The commission shall have authority to prescribe guidelines, rules and regulations regarding the participation of utility companies, their affiliates, subsidiaries and any other corporation or person in competitive bidding auctions, or regarding any other method of acquiring electric capacity. Any rules, regulations, guidelines and determinations adopted or issued by the commission pertaining to acquisition of electric capacity shall be consistent with the policy stated in subdivision one of this section, and subsequent to May first, nineteen hundred ninety-three, shall also require acquisitions of electric capacity to be reasonably consistent with the forecasts, policies and long-range planning objectives and strategies contained in the most recent final state energy plan adopted pursuant to article six of the energy law, provided, however, that any determination made by the commission under this section that is not reasonably consistent with the plan shall be deemed in compliance with this section, provided that such determination by the commission includes a finding that the element of the plan is no longer reasonable or probable based on a material and substantial change in fact or circumstance, and a statement explaining the basis for this finding.
4. Nothing in this section shall be construed to require the commission to order the use of a competitive bidding auction, or to preclude the commission from allowing or requiring a capacity addition set-aside, incentive rates or other forms of rate treatment, or a separate auction or program, to encourage investments in demand-reducing measures, renewable energy sources, or other energy sources reasonably consistent with the state energy plan.
§ 6. The public service law is amended by adding a new article 10 to read as follows:
SITING OF MAJOR ELECTRIC GENERATING FACILITIES
Section 160. Definitions.
161. General provisions relating to the board.
163. Pre-application procedures.
164. Application for a certificate.
165. Hearing schedule.
166. Parties to a certification proceeding.
168. Board decisions.
169. Opinion to be issued with decision.
170. Rehearing and judicial review.
171. Jurisdiction of courts.
172. Powers of municipalities and state agencies.
§ 160. Definitions. Where used in this article, the following terms, unless the context otherwise requires, shall have the following meanings: "Municipality" means a county, city, town or village located in
2. "Major electric generating facility" means an electric generating facility with a generating capacity of eighty thousand kilowatts or more, including interconnection electric transmission lines and fuel gas transmission lines that are not subject to review under article seven of this chapter.
3. "Person" means any individual, corporation, public benefit corporation, political subdivision, governmental agency, municipality, partnership, co-operative association, trust or estate.
4. "Board" means the New York state board on electric generation siting and the environment, which shall be in the department of public service and consist of seven persons, one of whom shall be the chairman of the public service commission, who shall serve as chairman of the board, one of whom shall be the commissioner of environmental conservation, one of whom shall be the commissioner of health, one of whom shall be the commissioner of the state energy office, one of whom shall be the commissioner of economic development and two of whom shall be public bers appointed by the governor, one of whom shall be an ad hoc member who shall be a resident of the judicial district in which the facility as proposed is to be located and one of whom shall be an ad hoc member who shall be a resident of the county in which the facility as proposed is to be located. The term of the ad hoc members shall continue until a final determination has been made in the particular proceeding for which they were appointed.
5. "Department" means the state department of public service.
6. "Certificate" means a certificate of environmental compatibility and public need authorizing the construction of a major electric ating facility issued by the board pursuant to this article.
7. "Approved procurement process" means any electric capacity procurement process approved by the commission and subsequent to May first, nineteen hundred ninety-four, approved by the commission as reasonably consistent with the most recent state energy plan adopted pursuant to article six of the energy law.
§ 161. General provisions relating to the board. Upon receipt of an application under this article, the chairman shall promptly notify the governor. Within thirty days of such notification the governor shall appoint the ad hoc members. Four of the seven persons on the board shall constitute a quorum for the transaction of any business of the board, and the decision of four members of the board shall constitute action of the board. The board, exclusive of the ad hoc members, shall have the power to adopt rules and regulations relating to the procedures to be used in certifying facilities under the provisions of this article, including the suspension or revocation thereof, and shall further have the power to seek delegation from the federal government pursuant to federal regulatory programs applicable to the siting of major electric generating facilities. The chairman, after consultation with the other members of the board exclusive of the ad hoc members, shall have exclusive jurisdiction to issue declaratory rulings regarding the applicability of, or any other question under, this article and rules and regulations adopted hereunder. Regulations adopted by the board may provide for renewal applications for pollutant control permits to be submitted and acted upon by the department of environmental conservation following commercial operation of a certified facility;
In addition to the requirements of the public officers law, no person shall be eligible to be an appointee of the governor to the board who holds another state or local office. No member of the board may retain or hold any official relation to, or any securities of an electric utility corporation operating in the state, any affiliate thereof or any other company, firm, partnership, corporation association or jointstock association that may appear before the board, nor shall either of the appointees have been a director, officer or, within the previous ten years, an employee thereof. The appointees of the governor shall receive the sum of two hundred dollars for each day in which they are actually engaged in the performance of their duties herein plus actual and necessary expenses incurred by them in the performance of such duties. The chairman shall provide such personnel, hearing examiners, subordinates, employees and such legal, technological, scientific, engineering and other services and such meeting rooms, hearing rooms and other facilities as may be required in proceedings under this article. The board may provide for its own representation and appearance in all actions and EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law
proceedings involving any question under this article. The department of environmental conservation shall provide associate hearing examiners. Each member of the board other than the appointees of the governor may designate an alternate to serve instead of the member with respect to all proceedings pursuant to this article. Such designation shall be in writing and filed with the chairman.
§ 162. Board certificate. 1. After the one hundred eightieth day after the effective date of this article, no person shall commence the preparation of a site for, or begin the construction of a major electric generating facility in the state without having first obtained a certificate issued with respect to such facility by the board. Any such facility with respect to which a certificate is issued shall not thereafter be built, maintained or operated except in conformity with such certificate and any terms, limitations or conditions contained therein, provided that nothing herein shall exempt such facility from compliance with state law and regulations thereunder subsequently adopted or with municipal laws and regulations thereunder not inconsistent with the provisions of such certificate. A certificate for a major electric generating facility may be issued only pursuant to this article.
2. A certificate may be transferred, subject to the approval of the board, to a person who agrees to comply with the terms, limitations conditions contained therein.
3. A certificate issued hereunder may be amended as here in provided. 4. This article shall not apply: (a) To a major electric generating facility if, on or before the one hundred eightieth day after the effective date of this article, an application has been made for a license, permit, certificate, consent or approval from any federal, state local commission, agency, board or regulatory body, in which application the location of the major electric generating facility has been designated by the applicant; or if the facility is under construction at such time;
(b) To a major electric generating facility over which any agency or department of the federal government has exclusive jurisdiction, or has jurisdiction concurrent with that of the state and has exercised such jurisdiction, to the exclusion of regulation of the facility by the state;
(c) To normal repairs, replacements, modifications and improvements of a major electric generating facility, whenever built, which do not stitute a violation of any certificate issued under this article and which do not result in an increase in capacity of the facility of than fifty thousand kilowatts;
(d) To a major electric generating facility (i) constructed on lands dedicated to industrial uses, (ii) the output of which shall be used solely for industrial purposes, on the premises, and (iii) the generating capacity of which does not exceed two hundred thousand kilowatts; or (e) To a major electric generating facility which generates electricity from the combustion of solid waste or from fuel derived from solid
5. Any person intending to construct a major electric generating facility excluded from this article pursuant to paragraph (a), (c), or (d) of subdivision four of this section may elect to become subject to the provisions of this article by delivering notice of such election the chairman of the board. This article shall thereafter apply to each electric generating facility identified in such notice from the date of its receipt by the chairman of the board. For the purposes of this article, each such facility shall be treated in the same manner as a major electric generating facility as defined in this article.
§ 163. Pre-application procedures. 1. Any person proposing to submit an application for a major electric generating facility may consult with, and seek agreement with, the staff of the department, the department of environmental conservation and the department of health, as appropriate, as to any study or program of studies made or to be made to support such application. If the staff of the department, the department of environmental conservation, the department of health, as appropriate, and the person proposing to file an application can agree as to the studies or program of studies to be conducted, they shall enter into a stipulation setting forth the agreement. Any such stipulation shall be served upon all persons enumerated in subdivision two of section one hundred sixty-four of this article. Nothing herein, however, shall bar any party to a hearing on an application, other than any party to a preapplication agreement, from timely raising objections to the methodology
and scope of
any stipulated studies or program of studies in any such
2. In order to attempt to resolve any questions that may arise as a the result of consultation pursuant to subdivision one of this section, board shall designate a hearing examiner who shall mediate any issue relating to the methodology and scope of any such studies or programs of study to which the staff of the department, the department of environmental conservation, the department of health, as appropriate, and the person seeking to file an application cannot agree. If the parties can agree, they shall enter into a stipulation setting forth the agreement. Any such stipulation shall be served upon all persons enumerated in subdivision two of section one hundred sixty-four of this article. Nothing herein, however, shall bar any party to a hearing on an application other than any party to such a stipulation from timely raising objections to the methodology and scope of any stipulated studies or program of studies in any such agreement.
§ 164. Application for a certificate. 1. An applicant for a certificate shall file with the chairman of 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 and proposed development, source and volume of water required for plant operation and cooling, and as appropriate, geological, aesthetic, ecological, tsunami, seismic, biological, water supply, population and load center data;
(b) A description and evaluation of reasonable alternative locations to the proposed facility, if any, and with respect to a facility that has not been selected pursuant to an approved procurement process, a description and evaluation of reasonable energy supply source alternatives and, where appropriate, demand-reducing measures to the proposed facility; a description of the comparative advantages and disadvantages of each such location, energy supply source and demand-reducing measure, 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;
(c) Studies, identifying the author and date thereof, which have been made of the expected environmental impact and safety of the facility, both during its construction and its operation, which studies are sufficient to identify (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; and (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 statement why any variances or exceptions should be granted;
(d) Except with respect to a facility that has been selected pursuant to an approved procurement process, estimated cost information, including plant costs by account, all expenses by categories including fuel costs, plant service life and capacity factor and total generating per kilowatt-hour, including both plant and related transmission, and comparative costs of alternatives considered;
(e) A statement (i) demonstrating that the facility will satisfy additional electric capacity or other electric system needs, and that the construction of the facility is reasonably consistent with long-range energy planning objectives and strategies, provided however, that subseEXPLANATION-Matter in italics is new; matter in brackets [ ] is old law
quent to the adoption of a state energy plan pursuant to article six of the energy law, an applicant shall demonstrate that the construction of the facility is reasonably consistent with the energy policies and longrange energy planning objectives and strategies contained in the most recent state energy plan; or (ii) that the facility was selected pursuant to an approved procurement process;
(f) Such evidence as will enable the board 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
(g) 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.
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) 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;
(viii) in the event such facility or any portion thereof as proposed or in any alternative location listed is located within its jurisdiction, the St. Lawrence-Eastern Ontario commission;
(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
(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 will serve substantially to inform the public of such application;
(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 board 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 hereunder. Notice of such application shall be given as set forth in subdivision two of this
5. If a reasonable alternative location or, with respect to a facility that has not been selected pursuant to an approved procurement process, a reasonable alternative energy supply source or demand reducing measure 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.
* So in original. (Period inadvertently added.)