21-106. Co-generation, small hydro and alternate energy production facilities. 1. For the purposes of this article:
a. The term "co-generation facility" shall include any facility with an electric generating capacity of up to eighty megawatts, together with any related facilities located at the same project site, which is fueled by coal, gas, wood, alcohol, solid wastes, refuse-derived fuel, water or oil, to the extent any such oil fueled facility was fueled by oil prior to the effective date of this article and there is no increase in the amount of oil used at the facility or to the extent oil is used as a backup fuel for such facility, and which simultaneously or sequentially produces either electricity or shaft horsepower and useful thermal energy.
b. The term "alternate energy production facility" shall include any solar, wind turbine, waste management, resource recovery, refuse-derived fuel or wood burning facility, together with any related facilities located at the same project site, with an electric generating capacity of up to eighty megawatts, which produces electricity, gas or useful thermal energy.
c. The term "small hydro facility" shall include (i) any hydroelectric facility of up to eighty megawatts at an existing dam, together with any related facilities located at the same project site, or (ii) any hydroelectric facility of up to two and one-half megawatts that requires the construction of a new dam, together with any related facilities located at the same project site; provided however, that such term shall not include any such facility within either the Adirondack Park or the Catskill Park.
d. The term "related facilities" shall mean any land, work, system, building, improvement, instrumentality or thing necessary or convenient to the construction, completion or operation of any co-generation, alternate energy production or small hydro facility and include also such transmission or distribution facilities as may be necessary to conduct electricity, gas or useful thermal energy to users located at or near a project site.
2. Notwithstanding any other provision of law other than the public service law, no state department, board, agency, authority or commission, and no political subdivision, municipality, or any agency thereof may require any approval, consent, permit, certificate, statement, report or other condition for the construction or operation of: (a) a co-generation or alternate energy production facility, when such facilities are located in any area of the state other than in a city of one million persons or more or other than within the boundaries of the Adirondack Park and Catskill Park other than those provided by otherwise applicable state laws (i) for the protection of employees engaged in the construction and operation of any such facility or (ii) for protection of freshwater or tidal wetlands or other than those necessary to comply with local zoning or building laws or ordinances or other than those issued by a state agency pursuant to a delegation of authority pursuant to federal law or other than article eight, article nineteen, article twenty-seven or title five of article fifteen of the environmental conservation law; or (b) a small hydro facility, other than those provided by otherwise applicable state law for the protection of fresh water wetlands or of employees engaged in the construction and operation of any such facility or other than those necessary to comply with local zoning and building laws or ordinances or other than those issued by a state agency pursuant to a delegation of authority pursuant to federal law, or other than article eight or title five of article fifteen of the environmental conservation law; provided, however, that construction or operation of a small hydro facility shall not be identified by the commissioner of environmental conservation as an action or class of actions that is likely to require preparation of an environmental impact statement pursuant to such article eight.
3. Nothing herein shall be construed to exempt any co-generation, small hydro or alternate energy production facility from meeting any applicable requirement of federal law.
4. Any owner or operator of a co-generation, small hydro or alternate energy production facility constructed and placed in operation on or after June twenty-sixth, nineteen hundred eighty shall comply with the rules and regulations of the state energy office with respect to matters affecting public health and safety provided, however, that such rules or regulations shall not apply to any such facilities which produce electricity, gas or useful thermal energy for on-site residential use in residential dwellings of four or fewer units. The state energy office, in consultation with the public service commission, shall promulgate rules and regulations to implement this section by January first, nineteen hundred eighty-one.
5. The maximum penalty which may be recovered pursuant to section 5-119 of this chapter for a continuing violation of any rule or regulation promulgated by the office pursuant to subdivision four of this section shall be ten thousand dollars.
Last modified: February 3, 2019