Sec. 1001.31. Exhibit 31: local laws and ordinances

Before preparing the exhibit required by this section, the applicant shall consult with the municipalities or other local agencies whose requirements are the subject of the exhibit to determine whether the applicant has correctly identified all such requirements and to determine whether any potential request by the applicant that the board elect to not apply any such local requirement could be obviated by design changes to the proposed facility, or otherwise.

As the information to be included in the application pursuant to this section will be used by parties to determine their positions in the issues conference and the remainder of the hearing phase of the proceeding, the lists should be created with care so as not to cause any party to needlessly expend resources due to a misclassification. For local procedural requirements supplanted by PSL section 172, the applicant shall not request that the board elect not to apply them. Misclassification of items or the inclusion of unnecessary or inappropriate items may be grounds for finding the application not in compliance. Applicants must carefully screen their lists to correctly reflect local actions not for the construction or operation of the proposed major electric generating facility.

Exhibit 31 shall contain:

(a) A list of all local ordinances, laws, resolutions, regulations, standards and other requirements applicable to the construction or operation of the proposed major electric generating facility (includes interconnection electric transmission lines and fuel gas transmission lines that are not subject to review under article VII of the PSL) that are of a procedural nature. These local procedural requirements are supplanted by PSL article 10 unless the board expressly authorizes the exercise of the procedural requirement by the local municipality or agency.

(b) A list of all local procedural requirements required to be identified pursuant to subdivision (a) of this section for which the applicant requests that the board expressly authorize the exercise of the procedural requirement by the local municipality or agency, including a statement why such local exercise would be desirable or appropriate.

(c) Identification of the city, town, village, county, or State agency qualified by the Secretary of State that shall review and approve the building plans, inspect the construction work, and certify compliance with the New York State Uniform Fire Prevention and Building Code, the Energy Conservation Construction Code of New York State, and the substantive provisions of any applicable local electrical, plumbing or building code. If no other arrangement can be made, the Department of State should be identified. The statement of identification shall include a description of the preliminary arrangement made between the applicant and the entity that shall perform the review, approval, inspection, and compliance certification, including arrangements made to pay for the costs thereof including the costs for any consultant services necessary due to the complex nature of such facilities. If the applicable city, town or village has adopted and incorporated the New York State Uniform Fire Prevention and Building Code for administration into its local electric, plumbing and building codes, the applicant may make a request pursuant to subdivision (b) of this section that the board expressly authorize the exercise of the electric, plumbing and building permit application, inspection and certification processes by such city, town or village.

(d) A list of all local ordinances, laws, resolutions, regulations, standards and other requirements applicable to the construction or operation of the proposed major electric generating facility (includes interconnection electric transmission lines and fuel gas transmission lines that are not subject to review under article VII of the PSL) that are of a substantive nature, together with a statement that the location of the facility as proposed conforms to all such local substantive requirements, except any that the applicant requests that the board elect to not apply. Copies of zoning, flood plain and similar maps, tables and/or documents shall be included in the exhibit when such are referenced in such local substantive requirements. Pursuant to PSL section 168(3)(e), the board must find that the facility is designed to operate in compliance with these local substantive requirements, all of which shall be binding upon the applicant, unless the board elects to not apply them by finding that, as applied to the proposed facility such are unreasonably burdensome in view of the existing technology or the needs of or costs to ratepayers whether located inside or outside of such municipality.

(e) A list of all local substantive requirements required to be identified pursuant to subdivision (d) of this section for which the applicant requests that the board elect to not apply them by finding that, as applied to the proposed facility such are unreasonably burdensome in view of the existing technology or the needs of or costs to ratepayers whether located inside or outside of such municipality. For each local substantive requirement identified, a statement justifying the request shall be provided. The statement of justification shall show with facts and analysis the degree of burden caused by the requirement, why the burden should not reasonably be borne by the applicant, that the request cannot reasonably be obviated by design changes to the proposed facility, the request is the minimum necessary, and the adverse impacts of granting the request are mitigated to the maximum extent practicable. The statement shall include a demonstration:

(1) for requests grounded in the existing technology, that there are technological limitations (including governmentally imposed technological limitations) related to necessary facility component bulk, height, process or materials that make compliance by the applicant technically impossible, impractical or otherwise unreasonable;

(2) for requests grounded in factors of costs or economics (likely involving economic modeling), that the costs to consumers associated with applying the local substantive requirement outweigh the benefits of applying such provision; and

(3) for requests grounded in the needs of consumers, that the needs of consumers for the facility outweigh the impacts on the community that would result from refusal to apply the local substantive requirement.

(f) A list of all local ordinances, laws, resolutions, regulations, standards and other requirements applicable to the interconnection to or use of water, sewer, telecommunication and steam lines in public rights of way that are of a procedural nature. These local procedural requirements are not supplanted unless the board elects to not apply them by finding that, as applied to the proposed facility interconnections such are unreasonably burdensome in view of the existing technology or the needs of or costs to ratepayers whether located inside or outside of such municipality.

(g) A list of all local ordinances, laws, resolutions, regulations, standards and other requirements applicable to the interconnection to or use of water, sewer, telecommunication and steam lines in public rights of way that are of a substantive nature. These local substantive requirements are not supplanted unless the board elects to not apply them by finding that, as applied to the proposed facility interconnections such are unreasonably burdensome in view of the existing technology or the needs of or costs to ratepayers whether located inside or outside of such municipality.

(h) A list of all local procedural or substantive requirements required to be identified pursuant to subdivisions (f) and (g) of this section for which the applicant requests that the board elect to not apply them by finding that, as applied to the proposed facility interconnections such are unreasonably burdensome in view of the existing technology or the needs of or costs to ratepayers whether located inside or outside of such municipality. For each local procedural or substantive requirement identified, a statement justifying the request shall be provided. The statement of justification shall show with facts and analysis the degree of burden caused by the requirement, why the burden should not reasonably be borne by the applicant, that the request cannot reasonably be obviated by design changes to the proposed facility, the request is the minimum necessary, and the adverse impacts of granting the request are mitigated to the maximum extent practicable. The statement shall include a demonstration:

(1) for requests grounded in the existing technology, that there are technological limitations (including governmentally imposed technological limitations) related to necessary facility component bulk, height, process or materials that make compliance by the applicant technically impossible, impractical or otherwise unreasonable;

(2) for requests grounded in factors of costs or economics (likely involving economic modeling), that the costs to consumers associated with applying the local substantive requirement outweigh the benefits of applying such provision; and

(3) for requests grounded in the needs of consumers, that the needs of consumers for the facility outweigh the impacts on the community that would result from refusal to apply the local substantive requirement.

(i) A summary table of all local substantive requirements required to be identified pursuant to subdivisions (d) and (g) of this section in two columns listing the provisions in the first column and a discussion or other showing demonstrating the degree of compliance with the substantive provision in the second column.

(j) An identification of the zoning designation or classification of all lands constituting the site of the proposed facility and a statement of the language in the zoning ordinance or local law by which it is indicated that the proposed facility is a permitted use at the proposed site. If the language of the zoning ordinance or local law indicates that the proposed facility is a permitted use at the proposed site subject to the grant of a special exception, a statement of the criteria in the zoning ordinance or local law by which qualification for such a special exception is to be determined.