Article X Statute Document

New York State Consolidated Laws

Public Service

* ARTICLE X

SITING OF MAJOR ELECTRIC GENERATING FACILITIES

* NB: Expires and repealed 2003/01/01

§ 160. Definitions.

161. General provisions relating to the board.

162. Board certificate.

163. Pre-application procedures.

164. Application for a certificate.

165. Hearing schedule.

166. Parties to a certification proceeding.

167. Conduct of hearing.

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.

* S 160. Definitions. Where used in this article, the following terms, unless the context otherwise requires, shall have the following meanings:

1. "Municipality" means a county, city, town or village located in this state.

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 and consist of seven persons: the chairman of the public service commission, who shall serve as chairman of the board; the commissioner of environmental conservation; the commissioner of health; the chairman of the New York state energy research and development authority; the commissioner of economic development and two ad hoc public members appointed by the governor. One ad hoc public member 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 public member 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 is 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 generating 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.

* S 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 to 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 joint-stock 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 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.

* S 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 and conditions contained therein.

3. A certificate issued hereunder may be amended as herein 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 or 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 constitute a violation of any certificate issued under this article and which do not result in an increase in capacity of the facility of more 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 waste.

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 to 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.

* S 163. Pre-application procedures. 1. Any person proposing to submit an application for a certificate shall file with the chairman of the board a preliminary scoping statement containing a brief discussion, on the basis of available information, of the following items: (a) a description of the proposed facility and its environmental setting; (b) potential environmental impacts from the construction and/oroperation of the proposed facility; (c) any proposed study or program of studies designed to evaluate potential environmental impacts; (d) any measures proposed to minimize environmental impacts; (e) reasonable alternatives to the proposed facility as may be required by paragraph (b) of the subdivision one of section one hundred sixty-four of this article; and (f) any other information that may be relevant or that the board may require.

2. Such person shall serve copies of the preliminary scoping statement on persons enumerated in paragraph (a) of subdivision two of section one hundred sixty-four of this article and provide notice of such statement as provided in paragraph (b) of such subdivision.

3. To facilitate the application process and enable citizens to participate in decisions that affect their health and safety and the environment, the department shall provide opportunities for citizen involvement. Such opportunities shall encourage consultation with the public early in the application process, especially before any parties enter a stipulation pursuant to subdivision four of this section. The primary goals of the citizen participation process shall be to facilitate communication between the applicant and interested or affected persons. The process shall foster the active involvement of the interested or affected persons.

4. Such person may consult and seek agreement with any interested person, including, but not limited to, the staff of the department, the department of environmental conservation and the department of health, as appropriate, as to any aspect of the preliminary scoping statement and study or program of studies made or to be made to support such application. The staff of the department, the department of environmental conservation, the department of health, the person proposing to file an application, and any other interested person may enter into a stipulation setting forth an agreement on any aspect of the preliminary scoping statement and the studies or program of studies to be conducted. Any such person proposing to submit an application for a certificate shall serve a copy of the proposed stipulation upon all persons enumerated in paragraph (a) of subdivision two of section one hundred sixty-four of this article, provide notice of such stipulation to those persons indentified in paragraph (b) of such subdivision, and afford the public a reasonable opportunity to submit comments on the stipulation before it is executed by the interested parties. Nothing herein, however, shall bar any party to a hearing on an application, other than any party to a pre-applicationstipulation, from timely raising objections to any aspect of the preliminary scopint statement and the methodology and scope of any stipulated studies or programs of study.

* S 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 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 a 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 cost 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 subsequent 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 long-range 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 or 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

(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 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 as 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 an application shall be given as set forth in subdivision two of this section.

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.

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 three hundred 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 one hundred 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 a 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 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 fund, provided, 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.

* S 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. Upon a determination that an application complies with section one hundred sixty-four of this article the department of environmental conservation may initiate a review pursuant to federally delegated or approved environmental permit authority. The chairman of the board may require the filing of any additional information needed to supplement an application before or during the hearings.

2. Within a 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 deem proper. Thereafter, the presiding examiner shall issue an order identifying 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.

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 extend 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 are 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.

5. 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.

* S 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 potential environmental impact of the proposed facility, and, as appropriate, any alternate facility or energy source on the environment, and whether and how such facility would comply with applicable state and federal environmental protection laws, standards, rules and regulations;

(d) The department of health;

(e) The department of agriculture and markets;

(f) The New York state energy research and development authority;

(g) Where the facility or any portion thereof or of any alternate is to be located within the Adirondack park, as defined in subdivision one of section 9-0101 of the environmental conservation law, the Adirondack park agency;

(h) A 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 notice 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;

(i) Any individual resident in a 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 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;

(j) 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 industrial 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;

(k) 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 as the date

for filing of the application;

(l) Any other municipality or resident of such municipality which the board in its discretion finds to have an 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

(m) 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 or 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 subsequent stages of the proceeding.

* S 167. Conduct of hearing. 1. (a) 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 a separate report of dissenting or concurring conclusions and recommendations. In the event that the commissioner of environmental conservation issues permits pursuant to federally delegated or approved authority under the federal Clean Water Act, the federal Clean Air Act and the federal Resource Conservation and Recovery Act, the record in the proceeding and the associate hearing examiner's recommended decision shall provide the basis for the decision of the commissioner of environmental conservation whether or not to issue such permit.

(b) 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 governmental bodies or 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 as the presiding examiner shall determine. Appropriate regulations shall be issued by the board to provide for prehearing discovery procedures 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 over 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 a facility that has not been selected pursuant to an approved procurement process, alternate energy supply sources and, where appropriate, demand-reducing measures, provided notice of the intent to submit such testimony 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 a 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 make a prompt determination on the sufficiency of the applicant`s consideration and evaluation of reasonable 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; provided, however, that all interested parties have reasonable opportunity to participate in consideration and evaluation of such alternatives, as required pursuant to paragraph (b) of subdivision one of section one 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.

* S 168. Board decisions. 1. The board shall make the final decision on an application under this article for a certificate or amendment thereof, upon 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 to 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 such terms, conditions, limitations or modifications of the construction or operation of the facility as the board may deem appropriate. The board shall 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, suspension or revocation of a certificate. The commission shall monitor, enforce and administer compliance 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 major 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; or (ii) that the facility was selected pursuant to an approved procurement process;

(b) The nature of the probable environmental impacts, including an evaluation of the predictable adverse and beneficial impacts on the environment and ecology, public health and safety, aesthetics, scenic, historic and recreational value, forest and parks, air and water quality, fish and other marine life and wildlife;

(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 compatible with public health and safety, (iii) will not be in contravention of water quality standards or be inconsistent with applicable regulations of the department of environmental conservation, or in case no 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 development of the state, and public health 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 or 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 the board may refuse to apply any local ordinance, law, resolution or other action or any regulation issued thereunder or any local standard or 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 impacts of the facility and reasonable alternatives examined as required pursuant to paragraph (b) of subdivision one of section one hundred sixty-four of this article.

3. The board may, 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 as 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.

* S 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 reasons for the action taken. If the board has found that any local ordinance, law, resolution, regulation or other action issued thereunder or 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.

* S 170. Rehearing and judicial review. 1. Any party aggrieved by the board`s decision denying or granting a certificate may apply to the board for a rehearing within thirty days after issuance of the aggrieving 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 necessary to develop an adequate record. The applicant may waive such deadline. Thereafter such a party may obtain judicial review of such decision as provided in this section. A judicial proceeding shall be brought in the appellate division of the supreme court of the state of New York in the judicial department embracing the county wherein the facility is to be located or, if the application is denied, the county wherein the applicant has proposed to locate the facility. Such proceeding shall be initiated by the filing of a petition in such court within thirty days after the issuance of a final decision by the board upon the application for rehearing together with proof of service of a demand on the board to file with said court a copy of a written transcript of the record of the proceeding and a copy of the board`s decision and opinion. The board`s copy of said transcript, decision and opinion, shall be available at all reasonable times to all parties for examination without cost. Upon receipt of such petition and demand the board shall forthwith deliver to the court a copy of the record and a copy of the board`s decision and opinion. Thereupon, the court shall have jurisdiction of the proceeding and shall have the power to grant such relief as it deems just and proper, and to make and enter an order enforcing, modifying and enforcing as so modified, remanding for further specific evidence or findings or setting aside in whole or in part such decision. The appeal shall be heard on the record, without requirement of reproduction, and upon briefs to the court. No objection that has not been urged by the party in his application for rehearing before the board shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of fact on which such decision is based shall be conclusive if supported by substantial evidence on the record considered as a whole and matters of judicial notice set forth in the opinion. The jurisdiction of the appellate division of the supreme court shall be exclusive and its judgment and order shall be final, subject to review by the court of appeals in the same manner and form and with the same effect as provided for appeals in a special proceeding. All such proceedings shall be heard and determined by the appellate division of the supreme court and by the court of appeals as expeditiously as possible and with lawful precedence over all other matters.

2. The grounds for and scope of review of the court shall be limited to whether the decision and opinion of the board are:

(a) In conformity with the constitution of the state and the United States;

(b) Supported by substantial evidence in the record and matters of judicial notice properly considered and applied in the opinion;

(d) Made in accordance with procedures set forth in this article or established by rule or regulation pursuant to this article; or

(e) Arbitrary, capricious or an abuse of discretion.

3. Except as herein provided article seventy-eight of the civil practice law and rules shall apply to appeals taken hereunder.

* S 171. Jurisdiction of courts. Except as expressly set forth in section one hundred seventy of this article and except for review by the court of appeals of a decision of the appellate division of the supreme court as provided for therein, no court of this state shall have jurisdiction to hear or determine any matter, case or controversy concerning any matter which was or could have been determined in a proceeding under this article or to stop or delay the construction or operation of a major electric generating facility except to enforce compliance with this article or the terms and conditions issued thereunder.

* S 172. Powers of municipalities and state agencies. 1. Notwithstanding any other provision of law, no state agency, municipality or any agency thereof may, except as expressly authorized under this article by the board, require any approval, consent, permit, certificate or other condition for the construction or operation of a major electric generating facility with respect to which an application for a certificate hereunder has been filed, other than those provided by otherwise applicable state law for the protection of employees engaged in the construction and operation of such facility; provided, however, that in the case of a municipality or an agency thereof, such municipality has received notice of the filing of the application therefor; and provided further, however, that the department of environmental conservation may issue permits pursuant to federally delegated of approved authority under the federal Clean Water Act, the federal Clean Air Act and the federal Resource Conservation and Recovery Act. In issuing such permits, the commissioner of environmental conservation shall follow procedures established in this article to the extent that they are consistent with federally delegated or approved environmental permitting authority. The commissioner of environmental conservation shall provide such permits to the board prior to its determination whether or not to issue a certificate.

2. The Adirondack park agency shall not hold public hearings for a major electric generating facility with respect to which an application hereunder is filed, provided that such agency has received notice of the filing of such application.