I am in accord with the conclusion reached by the majority that the New York State Board on Electric Generation Siting and the Environment (Siting Board) erred in holding that the Power Authority of the State of New York (PASNY) was exempt as a mátter of law from applicable local laws and regulations of the City of New York relating to environment, public health and safety. Both the board and PASNY took the untenable position that the latter somehow enjoys sovereign immunity from relevant regulatory ordinances of the municipality in which the proposed site is located, which immunity stems from its purported *374status as a governmental State agency. Such reasoning is fallacious and without a basis in law.
Contrary to dictum contained in Atwell v Power Auth. of State of N. Y. (67 AD2d 365, 374), PASNY is not a State agency or department. Pursuant to statute it was created as a “corporate municipal instrumentality of the state * * * a body corporate and politic, a political subdivision of the state, exercising governmental and public powers” (Public Authorities Law, § 1002, emphasis supplied). Consistent with entities such as the Thruway Authority, PASNY ‘“is an autonomous public corporation, with an existence separate and independent from the State’ ” (King v Power Auth. of State of N. Y., 60 AD2d 925-926, emphasis supplied; see, also, Cole v State of New York, 64 AD2d 1023). Statutes granting powers to a public corporation should be strictly construed, and powers not essential to the furtherance of the purpose of the corporation should not be implied where they are not stated in the statute (81A CJS, States, § 142). With respect to PASNY, the sole statutory exemption it enjoys under the Public Authorities Law is an exemption from taxation (Public Authorities Law, § 1012). That the Legislature intended that PASNY should not be “exempt” or “immune” from relevant laws and regulations of municipalities is clearly evident from the following language contained in its legislative findings when it enacted former article 8 of the Public Service Law in 1972 (L 1972, ch 385, § 1): “The legislature therefore hereby declares that it shall be the purpose of this Act to provide for expeditious resolution of all matters concerning the location of major steam electric generating facilities presently under the jurisdiction of multiple state and local agencies, including all matters of state and local law, in a single proceeding in which the policies heretofore described shall apply and to which access will be open to citizens, groups, municipalities and other public agencies to enable them to participate in these decisions.” (Emphasis supplied.)
Thus, as the majority correctly observed, the Siting Board is mandated to decide, based on a full record, (a) whether the proposed facility is designed to operate in compliance with local laws and regulations, or, (b) in the *375alternative, whether such laws and regulations are, inter alia, unreasonably restrictive as applied to the facility, with the burden of proof devolving upon PASNY (see Public Service Law, § 146, subd 2, par [d]).
In reaching its conclusion that the City of New York had the affirmative duty of proving that specific provisions of its local laws and regulations should be imposed or considered by PASNY, the Siting Board either overlooked or ignored the following pertinent language found in sections 141 (subd 1), 142 (subd 1, par [c]), and 146 (subd 2, par [d]) of the Public Service Law:
Ҥ 141. Board certificate
“1. * * * [N]o persons shall * * * begin the construction of a major steam 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.” (Emphasis supplied.)
Ҥ 142. 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 * * *
“(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 * * * (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”. (Emphasis supplied.)
*376Ҥ 146. Board decisions * * *
“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 may not grant a certificate for the construction or operation of a major steam electric generating facility, either as proposed or as modified by the board, unless it shall first find and determine * * *
“(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 standards 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 consumers whether located inside or outside of such municipality.” (Emphasis supplied.)
Furthermore, any doubt still existing in one’s, mind after reading the above statutory excerpts concerning whether PASNY has the burden of proving that local laws and regulations are unreasonable and unduly restrictive vis-avis a proposed site, should be completely dispelled by the following provisions found in 16 NYCRR 71.9, which implement article 8 of the Public Service Law:
“Applicable laws, regulations, and standards, (a) (1) The applicant, in its direct testimony and as part of the exhibit information required to be submitted by Parts 72 through 80 of this Title, shall explain the extent to wjhich the location, design, construction, operation, and maintenance of a proposed facility at a proposed site is designed to comply with each Federal and State law, rule, regulation or standard, interstate compact, and international requirement relevant and material to a determination of the application. If the location, design, construction, operation or maintenance of a proposed facility at a proposed site will *377not be in full compliance with each such Federal and State law, rule, regulation, or standard, interstate compact, or international requirement under all circumstances, the applicant shall describe in detail any limitation or procedure it proposes to assure compliance under such circumstances or otherwise justify the nonconforming aspects of the proposed facility.
“(2) The applicant shall also demonstrate either:
“(i) that the location, design, construction, operation, and maintenance of a proposed facility at a proposed site will comply with each applicable municipal ordinance, law, resolution, regulation, standard, or requirement; or
“(ii) that, with respect to any particular ordinance, law, resolution, regulation, standard or requirement, why that particular ordinance, law, resolution, regulation, standard, or requirement is unreasonably restrictive in view of the existing technology or of the needs of, or costs to, consumers whether located inside or outside of such municipality ” (Emphasis supplied.)
However, contrary to the majority I find that other serious errors were committed by the Siting Board in this matter. Thus I do not concur with remanding the matter to the Siting Board for a rehearing on the issue of applicability of the city’s laws and regulations; but based on its erroneous determinations as to such rules and regulations, and for the following additional reasons, I vote, (a) to vacate the certificate of environmental compatibility and public need granted PASNY and (b) to dismiss the application for such certificate.
PROOF OF NEED
In the opening statement supporting its application for a certificate of compatibility and need, PASNY asserted: “The foregoing Resolution adopted by the Trustees of the Applicant are, pursuant to Section 146 (f) of the Public Service Law, conclusive upon the Board with respect to the question of the need for the facility. Therefore; the Rules and Regulations pertaining to public need are not required to be met in the Application. Insofar as the Application contains data and studies relating to that subject, they are *378submitted for informational purposes only.” (Emphasis supplied.)
In taking such an arbitrary and capricious position, PASNY acted in derogation of requirements set forth in section 142 of the Public Service Law entitled “Application for a certificate”, and provisions in the Department of Public Service Rules and Regulations which implement the statutory requirements, to wit, 16 NYCRR 70.2 and 72.1. Set forth in the statute and its implementing rules is the following clear and unequivocal language:
Ҥ 142: 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 * * *
“(e) a statement explaining the need for the facility including (i) reasons that the facility is necessary or desirable for the public welfare and is not incompatible with health and safety”. (Emphasis supplied.)
“70.2 Requirements for an application * * *
“(b) The applicant’s written testimony in support of its application shall * * *
“(2) analyze its case in terms of the facts’and conclusions the board must find and determine under paragraphs (a) through (g) of subdivision (2) of section 146 of the Public Service Law”.
“72.1 * * * Need for a facility. The applicant shall: (a) provide an analysis of the need for the proposed facility, taking into account existing and planned generation and transmission facilities of the applicant and of the Statewide power system and practically available and technically feasible sources of power from outside the State, including a statement of any system reliability and safety criteria upon which the need for the proposed facility is based”.
Under the above-quoted language, on the issue of need, it is manifestly clear that PASNY is required to submit more than incidental and cursory material for “informational purposes only” on a vital issue in its application for a *379certificate. It is incumbent upon it under the statute to furnish detailed information and in-depth analysis with respect, inter alia, to the issue of need in order that each party appearing at the Siting Board hearing may have an opportunity to adduce evidence and render arguments either supporting or controverting the position taken by PASNY on such issue. Absent such information and evidence herein, the record is incomplete, and correspondingly there is little or nothing to permit adequate Appellate Division review pursuant to section 148 of the Public Service Law vis-à-vis PASNY’s resolution of need (cf. Atwell v Power Auth. of State of N. Y., supra, pp 374-375).
Interestingly, the majority is likewise critical of the action taken by PASNY in sloughing off its obligations with respect to what must be contained in an application submitted by it pursuant to section 142 of the Public Service Law. Following its conclusion that PASNY’s resolution of need, although binding upon the Siting Board, nevertheless is re viewable by this court, the majority criticizes PASNY for taking the “position [at the hearing] * * * that there is ‘no reason to receive * * * information that formed the basis for the finding [of need].’ ” Nevertheless it then opines that since PASNY’s resolution of November 13, 1974 reiterated the findings of the Legislature in 1972 and 1974, pertaining to meeting shortages of dependable electric power capacity in the southern part of the State (i.e., the New York City metropolitan area), such resolution cannot be deemed arbitrary or capricious or lacking in evidentiary support.
In my opinion such argument is untenable. First of all the majority does not address itself to the fact that at the Siting Board hearing, evidence directly relating to the issue of need, other than the statutory findings, was not permitted to be presented. Such fact is conceded by PASNY in its brief on review, when it states: “The Examiners and the Board correctly interpreted this exemption [demonstration of need] to preclude any evidentiary exploration of the need question.” (Emphasis supplied.)
Second, what the majority has done in ratifying the action of the Siting Board on the issue of need based on *380legislative findings, is to hold in effect that legislative findings may be utilized (1) in lieu of the moving party’s obligation to plead and prove an essential facet of its case, and (2) also to preclude the admission of evidence on such issue in opposition to the position taken by PASNY. However, a legislative finding may not be used for such purposes.
A contemporaneous legislative declaration or finding contained in a statute may best be defined as an interpretation placed upon a statute at the time of enactment and also the stated reasons for its enactment (cf. 73 Am Jur 2d, Statutes, § 179; Velishka v City of Nashua, 99 NH 161). It follows, therefore, that in the absence of a clear indication to the contrary, a legislative finding, although entitled to probative value, should not be employed as a substitute for matter that must be set forth in an application or pleading. Neither should legislative recitals or findings be used for the purpose of precluding competent evidence from being adduced at a trial or hearing related to an issue in dispute whether it be in support or in opposition thereto. Recitals in public statutes of matters of fact, although admissible on an issue as to such fact, and while entitled to great weight, are not conclusive between the parties affected, or binding on the court (see Home Owners’ Loan Corp. v Oleson, 68 SD 435; 82 CJS, Statutes, § 318). It is well recognized that findings of fact made by the Legislature must actually be findings of fact. They are not entitled to the presumption of correctness if they are nothing more than recitations amounting to conclusions, and they are always subject to judicial inquiry (Seagram-Distillers Corp. v Ben■ Greene, Inc., 54 So 2d 235 [Supreme Ct, Fla, en banc]).
Thus I am of the opinion that PASNY, having failed to furnish information and an in-depth analysis on the issue of need in its application pursuant to section 142 of the Public Service Law, and the fact that evidence on such issue was improperly denied admittance at the Siting Board hearing, the determination of need by PASNY is based upon an incomplete record and thus not reviewable by this court pursuant to section 148 of the Public Service Law.
*381ALTERNATE SOURCES OF POWER
Section 146 (subd 2, par [g]) of the Public Service Law provides, inter alia:
Ҥ 146. Board decisions * * *
“2. The board shall render a decision upon the record either to grant or deny the application * * * The board may not grant a certificate for the construction or operation of a major steam electric generating facility, either as proposed or as modified by the board, unless it shall first find and determine * * *
“(g) that the facility is in the public interest, considering the * * * possible available sites or alternative available sources of energy, as the case may be, both within the state and elsewhere”. (Emphasis supplied.)
The statutory language quoted above clearly requires that the board render findings of fact on the question of alternate sources of energy. The board, in its order and opinion issued February 26, 1981, recognized this statutory obligation albeit in an oblique fashion. It did concede that consideration given to alternate energy sources in the State Energy Master Plan (SEMP) proceeding and recommendations of the Energy Planning Board (EPB) were not substitutes for an applicant’s consideration of alternate practical sources of power or for the board’s consideration of such possibility. According to the board, it was required, “by the terms of Article VIII, to conduct [its] own independent and site-specific assessment of alternatives within that framework and those objectives.” Despite such assertion, the board relied almost exclusively on the SEMP hearing and the recommendation of the EPB in rejecting the alternate forms or sources of power.
With respect to the purchasing of power, it seems obvious that the board foreclosed all meaningful testimony in support of it as an alternative energy source. By its own admission the board refused to allow the City of New York’s counsel to question a PASNY witness as to whether it could delay its plans for a new facility and still serve its load, load growth and capacity requirements.
The board also sought to discount alternate energy sources by placing meaningless conclusory statements in *382the record. For example, when the city pointed out that the EPB report concluded that the city’s electric system should have economic interconnections with neighboring systems, PASNY responded, and the board concurred, that the proposed facility at Arthur Kill is “entirely consistent with the SEMP.” Evidently the board erroneously believed that such non sequitur was a sufficient response to render the record complete on the matter since it provided no other reason for the rejection of this apparently feasible option. Similarly, although the board admits that the EPB report calls for a “careful study” of the option of purchasing power from non-Canadian sources, it concludes off-handedly that “the record on alternative energy sources is not made insufficient by the absence of a more detailed consideration of power purchases.”
It should be noted at this point that neither PASNY nor the board ever considered the feasibility of a combination of “Canadian power” and “purchased power” from interconnecting neighboring systems as an alternative to the proposed plant. This “combined” alternative, because of its economic, environmental and logistical feasibility, would appear to be significant in view of (a) the EPB’s recommendation that the purchase of non-Canadian sources of power be “carefully studied”, and also (b) the fact that on July 11, 1973, PASNY passed a resolution of “need” under article 7 of the Public Service Law in order to facilitate the transmission of Canadian power from that country to New York City for inter alia, the Metropolitan Transportation Authority and the New York City Transit Authority. The transmittal of such Canadian power was designed by PASNY at that time to eliminate the need for the construction of a polluting fossil fueled plant in the southeastern part of New York State. (See Atwell v Power Auth. of State of N. Y., 67 AD2d 365, 375-376, supra.)
That PASNY made no serious effort to study the feasibility, inter alia, of alternate sources of power, may be gleaned from the following colloquy that took place at the hearing involving Judge Levy, the hearing examiner, Frank Ponterio, the ad hoc member of the board, and Gerald Stillman, Principal Research and Development Engineer for PASNY:
*383“judge levy * * * I take it, you did not go into meeting the needs of the Power Authority from outside the State of New York or the availability of facilities outside the state?
“witness Stillman: That is correct, sir ***
“mr. ponterio: I don’t understand your comment that it was desired to have the facility in New York City. It seems to me that the location of this site is or should have been a conclusion of studies * * *
“witness stillman: Insofar as the siting panel was concerned itself, it was given certain directives by Power Authority management. Power Authority management had decided on the fossil and the nuclear plant. I was only very peripherally involved in those deliberations. I was working under those constraints. I believe there may have been some kind of arrangement with the IRS because if [sic] the tax-free bond nature of the Power Authority bond, that played a role in the choice of the type of plants.
“Beyond that, I really can’t offer any more. We were functioning under certain directives.” (Emphasis supplied.)
What seems evident from Stillman’s astounding admission above, is that the tax exempt status of PASNY’s bonds played a predominant role in the selection of the Arthur Kill site for the proposed facility. Accordingly, I am of the opinion that the decision of the board with regard to available sources of energy is not supported by substantial evidence in the record.
environmental impact/compatibility with public
HEALTH AND SAFETY
A. BOILER EMISSIONS
At the Siting Board hearing, testimony, essentially uncontroverted, was adduced from witnesses for the Departments of Health of the State and City of New York on the high incidence of air pollution in and around the site, and the possible deleterious health effects of smokestack emissions from the proposed plant’s boiler.
It was noted in such testimony that already present in the New York-New Jersey area surrounding the Arthur Kill site, were large regions in which air pollutant concen*384trations periodically exceed the standards set by the city, State and Federal governments. In certain areas such as the Goethals Bridge, Tottenville High School, Fresh Kills, Bayonne and Perth Amboy, concentrations were sufficiently high to cause concern regarding long-term effects on health. Nevertheless, into such an environment, the proposed plant was designed to emit annually from the burning of coal, 6,600 tons of sulphur dioxide, and 13,700 tons of nitrogen oxides.
In a Health Systems Plan for 1978 issued by the Health Systems Agency of New York City, it was revealed that Staten Island has a higher death rate from lung cancer than all of the other four boroughs of the City of New York, as well as the Nation as a whole, at all age levels. The same document also indicated that mortality from chronic bronchitis, emphysema and bronchiectasis on Staten Island exceeded that of the other boroughs and was more than 50% higher than the city as a whole. Based on the vital statistics concerning the Staten Island area set forth in the Health Systems Plan, it was the opinion of Dr. Melvin S. Schwartz, Assistant Commissioner for Biostatistics of the New York City Health Department, that there “seems to be a certain carcinogenic tendency in the Staten Island area” and “[t]o add anything further to a situation like this is it seems to me, an unwarranted risk.” Later in the hearing, and shortly after an epidemiologic study had been conducted at the city’s request by a team of experts headed by Dr. Schwartz, a report was issued with respect thereto entitled: “The Effect of Air Pollution on the Mortality and Morbidity Rates of the Borough of Staten Island.”
In the compiling of data in connection with the study, an analysis was prepared from the 349 health areas set out in New York City, 10 of which comprised Staten Island. A health area contained between 15,000 to 30,000 population. Included in statistics for a health area were all births recorded on a health area basis for the previous half century. Also, 20% of the health areas of New York City having the highest number of deaths for health related reasons were designated as “Quintile one”; the 20% of the health areas having the second highest rate were designated “Quintile two”, etc. By map overlays the relationship *385between mortality rates and other factors were visually presented.
The overlays included:
“(1) percent persons 65 years of age and over in each health area in 1970”,
“(2) percent persons 45-64 years of age in each health area in 1970”, and
“(3) major sources and locations of sulfate and particulate emissions in New York City and New Jersey.”
For the years 1975, 1976 and 1977, the study revealed that on a borough basis, Staten Island ranked eighth highest out of the 30-city health districts for respiratory cancer mortality rate and sixth highest of the 30-city health districts for bronchitis!emphysema!asthma mortality rates. With respect to the 10 health areas comprising Staten Island, 4 of the 10 were in the top quintile, i.e., the 20% of all health areas in New York City having the highest death rates due to respiratory cancer. Three other health areas of Staten Island were in the second highest quintile of mortality rates due to respiratory cancer. Thus, 7 out of the 10 health areas of Staten Island were among the 40% of health areas of New York City having the highest rates of mortality from respiratory cancer.
Moreover, when a map overlay was made of the point of sources of pollution such as sulphur dioxide, sulfates, smokeshade and particulate, it was found that the sources of pollution from New Jersey were concentrated in close proximity to the northern and western shores of Staten Island. (The proposed site herein is in the western shore area.) It was evident that prevailing westerly winds carry New Jersey’s output of pollutants to Staten Island in heavy concentrations. From an examination of the then current vital statistics and demographic characteristics of Staten Island, the following sobering results were ascertained: (1) Staten Island as a borough, a health center district and a constellation of 10 health areas, compared to each other borough, health district, and other comparable health areas of New York City, has higher rates of death due to respiratory cancer and emphysema-asthma-bfonchitis. (2) All of the four Staten Island health areas that are in *386Quintile one of respiratory cancer exhibit a population age distribution contrary to expectation. Each such health area has a younger age distribution than other city health areas with a higher respiratory cancer rate. (3) Air pollutants from both New Jersey and the city contribute to the air quality finding over Staten Island.
I consider it significant that although one of PASNY’s expert witnesses (Professor Lawrence A. Thibodeau) testified that he was not aware of any evidence that a health related effect would result from an increase in air pollution from the proposed plant, he conceded that preliminary analysis of a six-year study of concentrations of pollutants in Steubenville, Ohio, “seem[s] to indicate that there may be some health effect”. Although he claimed the effect was “very minimal”, Thibodeau recognized that the health effect from pollutants in Steubenville “needs to be further assessed when more of the longitudinal data become available.” (Emphasis supplied.) Paradoxically, Thibodeau did not join in the recommendation of Dr. . Schwartz that more detailed and exhaustive studies should be conducted in view of the fact that statistics gathered over a number of years strongly suggested that pollutants originating from the neighboring State of New Jersey were responsible for the high incidence of respiratory cancer on Staten Island.
It must also be noted that Thibodeau acknowledged that other studies (by Lave and Seskin) have indicated that mortality rates increase correspondingly as the level of total suspended particulates increases and there is evidence that, at very high levels, air pollution is associated with mortality. He also impliedly conceded that the cumulative effect of inhalation of pollution over the years may cause the elderly to be more susceptible to pollution than younger people. Also interesting is that although Thibodeau’s conclusion that the state of the art did not permit any defensible statement of the (projected) health effect of the plant at Arthur Kill, the study on which he based his conclusion (by Dr. Schimmel) contained the following contrasting statement: “Association between daily [particulate] levels as measured by smoke shade and daily mortality is positive and statistically significant.” (Emphasis supplied.)
*387Indeed, with respect to whether there was a sufficient relation between air pollutants and mortality, Thibodeau, in an earlier lecture, took the position that: “And so while we cannot use individual coefficients and we need to just [think] about it as an adjustment, it can be worthwhile, however, for establishing that there is an effect.”
Throughout this hearing before the Siting Board the experts for PASNY took the position that current measurements show compliance with air quality standards at the Arthur Kill site, and that the proposed plant would not have detectable adverse health effects on Staten Island communities. However, when confronted with a statement in a report by the National Academy of Sciences indicating that health effects could occur due to exposures to levels of sulfates below certain ambient concentration levels discussed in testimony by PASNY’s experts, one of the same experts (Ferris) stated, inter alia: “Well, I think we have made the point [that] there are no adequate data to make up a standard on sulfates.” (Emphasis supplied.)
PASNY’s experts also criticized certain studies relied upon by the opposing parties because they did not take into account such factors as cigarette smoking and “other important variables”. However, Thibodeau did admit that there were other studies which added smoking as a variable, and came up with results fairly consistent with the opposing studies (Lave & Seskin, and Lipfert) which did not include such variable. Moreover another PASNY expert (Speizer) conceded that a study (Steubenville, Ohio) in which he and others were involved, indicated that exposure to air pollution had an adverse effect on smokers and nonsmokers alike, “the nature of which [was] more reporting of illness or phlegm production”.
I am convinced that in concluding that emissions from the proposed plant’s smokestack would have little or no adverse health effects upon Staten Island residents, PAS-NY’s experts based such conclusion on flawed and incomplete data. For example, ambient sulfate concentrations for the Arthur Kill site were measured at stations in Manhattan, and ambient lead concentrations were measured at stations in Hempstead and Mamaroneck. Similarly, the *388annual average background for trace metals was measured at a station located at 121st Street in Manhattan.
It is difficult to understand what relevance such off Staten Island stations could possible have to that borough’s problems of pollutant concentrations. Moreover, it is extremely puzzling, to say the least, why PASNY ignored certain critical data from monitoring stations on Staten Island located at Borough Hall and the Fresh Kill Land Fill. For example, contrary to Dr. Cramer’s testimony for PASNY that there was seemingly little difference with respect to sulfur dioxide concentrations on Staten Island between 1977 and 1978, experts for the City of New York Health Department pointed out that increases in the sulfur dioxide annual average from 1977 to 1978 were shown at the following monitoring stations in that borough: Susan Wagner High School — 70% increase; Goethals Bridge — 25% increase; and P.S. 26 — 58% increase.
Finally, on this issue of smokestack emissions at the proposed site, I believe the testimony of one of the city’s Board of Health experts, Morton Israel, not only is relevant, but sobering and perhaps chilling. Israel revealed that he conducted a survey on Staten Island by sending questionnaires to physicians in that borough seeking information as to the frequency of visits to them by patients for respiratory conditions broken down by age groups to those under age 15, those 15 to age 44, and those from 45 to age 64. Earlier, a national survey had been made on generally similar groups. Contrasting the results from the national survey with those obtained from the Staten Island survey, Israel observed: “For the young population,.the percentages of patient visits attributed to respiratory disease for the National Survey are similar to the percentage of physicians reporting respiratory diseases as the most common problem; 27.8% on a nationwide basis and approximately 35% for Staten Island. But in the general United States population, age groups 15 through 44 and 45 through 64 show a decline in respiratory conditions as causes for visits to doctors: 12.2% for the first and 11.3% for the second. For Staten Islanders, the percentage remains generally at the same high level through age 44, and begins to decline in the older age groups” (Emphasis supplied.)
*389Based on the above statistics, Israel drew the following conclusions: “In the United States as a whole, as the average person grows older, he goes to the doctor one-half to one-third as often for respiratory ailments; in Staten Island, the proportion of physicians reporting respiratory diseases as the most common problem remains consistently high for patients through age 44, and this becomes especially high with primary care physicians. In other words, in Staten Island, the average patient through age 44 remains at the same level of physician visits for respiratory complaints which he had as a child. The Staten Island community, according to their physicians is the equivalent of a large pediatric community for both the early and late adult years.”
Adding to Israel’s evaluation, was the following remark of Dr. Schwartz:
“One of the natural results of the high level of repeated insults to-the respiratory systems reported by the survey is the end product of bronchitis, emphysema, asthma and respiratory cancer death * * *
“Rates for bronchitis, asthma and emphysema deaths have only been computed by the Health Department since 1969. For that 10-year period — the most recent, of course — Staten Island has led the rest of the Boroughs in death rate from bronchitis, emphysema and asthma.”
B. EMISSIONS FROM THE COOLING TOWER
In its application for the certificate, PASNY estimated that droplets of water released into the air via the proposed natural cooling tower would be approximately 11 gallons per minute and that 14,300 gallons of water per minute of the 222,0.00 gallons of water per minute taken in by the proposed cooling tower, would be discharged back into the Arthur Kill as “blowdown”. Purportedly concerned about the effect of such discharge of droplets on air quality, and the effect of “blowdown” on water quality, PASNY in its application provided data from a 12-month monitoring of the Arthur Kill site from April, 1975 for various chemicals and fecal coliform (colon bacilli) bacteria. Such sampling was limited to every four weeks, at approximately six-hour intervals, except that in August of the same year, samples *390were taken every three hours over a 27-hour period. One of the engineers, Grace Ekman, testified that the samples were not tested for chloroform, carbon tetrachloride, vinyl chloride of PCB’s. She also noted that fecal coliform (colon bacilli) counts in the samples taken in July, 1975, were 13 to 21 times the standard of1,500 organisms per 100 milliliters of water set by the New Jersey State Department of Environmental Protection, and that no tests were conducted to identify specific pathogenic (disease developing) microorganisms, viral organisms or other enteric (relating to the intestines) bacteria that might be amongst the fecal coliform.
On the issue of dispersions of viruses through the cooling tower, PASNY, in July, 1978, presented its own panel of witnesses.
One of them, Dr. Mark D. Sobsey, estimated that viral concentrations of the water in the proposed cooling tower could approximate 13,600 infectious units per liter. His estimates were based upon what the Siting Board broadly characterized as “available scientific literature”, and data from a one-day sampling of the Arthur Kill water on May 15, 1978. Conceding that the peak virus levels in sewage occur in the late summer and early fall, while the available data from the Arthur Kill was obtained only in May and June, Sobsey arbitrarily multiplied by 100 the maximum viral concentration of 1.8 infectious units per liter ascertained from the May 15, 1978 test, and arrived at a figure of 180 infectious units per liter at the peak season. Further assuming that the cooling tower would take in such contaminated water, plus four per centum raw sewage, with a maximum viral concentration of 100,000 infectious units per liter, Sobsey then calculated that the “cooling tower drift” (water dispersed in the air) would contain 5,842 infectious units per liter, which “is only about one-third the ground level virus concentration derived from a worst case analysis.”
Based on Sobsey’s estimates, which as noted above were themselves founded primarily and speculatively upon a one-day sample of Arthur Kill waters in an off-peak season, a second member of PASNY’s panel, Joseph J. Cramer, believed that under Sobsey’s “worst case analy*391sis”, application of the cooling tower model would result in a predicted maximum 24-hour airborne concentration of .00086 viruses per cubic meter. Such concentration,, according to Cramer, would occur about 1.3 miles from the tower, and represents merely “a spatial and temporal maximum”. He concluded by stating that if there was one individual at that point of concentration (1.3 miles from the tower), he would, based on the “worst case” analysis, be exposed to one virus every 50 days.
In stark contrast to the testimony of PASNY’s experts, upon which the Siting Board speculatively reasoned that the virus emissions from the cooling tower were “acceptably small”, witnesses for the State Department of Health, and its counterpart for the City of New York, gave voluminous testimony attesting to the danger from infectious organisms.
Specifically, Dr. Carl Stephen Kim testified that in a survey conducted by the United States Environmental Protection Agency in 1977, 30 of 33 organic compounds found in the Arthur Kill waters were considered to be toxic to varying degrees. Of those, chloroform and trichlorethlene were known to be animal carcinogens and others in the list were suspected to be carcinogens. In his opinion, the over-all toxicity of such “an exotic mixture of organics”, would most likely be greater than expected due to synergism (co-operative action of discrete agencies such that the total effect is greater than the sum of the effects taken independently). He did not believe it possible that enough information had been gathered to provide a more reliable estimate of risk. He suggested, inter alia, that all the major organic compounds of toxicological significance in the Arthur Kill waters at the site of the proposed intake be identified.
Dr. David Axelrod, another member of the State Board of Health panel, testified that conceivably one of the enteric viruses that would be present in the Arthur Kill waters because of its raw sewage content would be hepatitis. According to Axelrod, a single infectious case of hepatitis resulting from the Arthur Kill water because of the aerosol exposure of the cooling tower, and the exposure to areas where droplets would result, had the potential for produc*392ing an epidemic of that disease. He noted that in 1959 the Interstate Sanitary Commission Record classified the Arthur Kill essentially as being equivalent to a sewer. Although he conceded that, from conversations with the Environmental Protection Agency, there had been an effort to improve the quality of water there since 1959, he stated there had not been a major change in the nature of the water.
Finally, Dr. Rudolph Deibel, another witness for the State Department of Health, noted that raw sewage, such as found in the Arthur Kill waters, contains not only fecal coliform, but also various viruses such as enteroviruses, polioviruses, coxsackie (related to poliomyelitis) A and B, echo (virus found in the gastrointestinal tract, sometimes associated with respiratory ailments and meningitis), neoviruses, adenoviruses and hepatitis A. Although the expected average virus dénsity in domestic sewage has been estimated to be 700 viruses per 100 milliliters of water, as many as 46,350 viruses per 100 milliliters have been detected. While all sewage and water treatment processes remove or destroy viruses, no method is likely to remove all of the viruses found in sewage or raw water.
Deibel also asserted that it would take many hours of heating water in a cooling tower between 40 and 50 degrees Centigrade (106 to 122 degrees Fahrenheit) before such procedure would have a considerable effect in wiping out or inactivating viruses. He also noted that an epidemic of enterovirus at Fort Dix, New Jersey, arose from one infectious unit per 6,000 up to one per 60,000 liters of air.
Augmenting the significant testimony given by the State Department of Health experts was the following adduced from experts of the New York City Department of Health:
Dr. Stephen J. Millian testified that Dr. Sobsey’s use of 50,000 infectious units as representative of the total concentration for all viruses in raw sewage was erroneous. He pointed out that in the study relied upon by Sobsey, 61,500 infectious units had been recovered in a single sample. Moreover, Sobsey only estimated the concentration of neoviruses and made no estimates of rotaviruses, hepatitis A, *393norwalk or related gastroenteric strains. Furthermore, in equating one plaque-forming unit (PFU) to one infectious unit (IU), Sobsey, according to Millian, underestimated the true measure of infectious doses that may be responsible for a single plaque. He also observed that Sobsey did not deal with the likelihood that viruses occur in clumps or aggregate when shed in feces. It was Millian’s opinion that 219,500 plaque-forming units is “representative” of the worst case concentration of viruses in raw sewage in nonepidemic years. He further asserted that seasonal peaks in the epidemic levels of enteric viruses could easily produce five or ten fold higher concentrations of “wild-type” viruses in receiving waters.
In concluding his direct testimony, Millian uttered the following sobering remark:
“Therefore, a truly conservative maximum ‘worst case’ approach to estimating total viral concentration must address probable underestimations due to both statistical and seasonal variations, thus necessitating the calculation of a figure on the order of 3x 5x 40,000 PFU/1 = 600,000 PFU/1 for a non-epidemic year.
“I therefore recommend that concentrations of about this order of magnitude should be employed to estimate the potential public health risks presented by viruses derived from heavily contaminated waters of the Arthur Kill” (Emphasis supplied.)
Dr. Frederick M. Shofner, also testifying for the City Health Department, noted that Sobsey’s calculations were based upon data derived, not from a cooling tower as proposed for the Arthur Kill site, but rather from a mechanical draft tower at Oak Ridge. He also pointed out that maximum airborne concentrations of smaller droplets would occur,, not at 1.3 miles from the facility as claimed by Dr. Cramer, PASNY’s expert, but rather at 10 kilometers or 6 miles, therefrom, and that such concentrations might even rise for distances of 30 kilometers, or 19 miles, downwind.
It must also be mentioned that another expert who testified for the City Health Department, Dr. James Halitsky, criticized Dr. Sobsey’s and also Dr. Cramer’s “worst *394case” analysis. Both Sobsey and Cramer had concluded that if there was one individual at the greatest point of airborne concentration of droplets from the cooling tower such individual would be exposed to one virus every 50 days. However, Halitsky, using'the calculations of Sobsey, pointed out that the latter, in concentrating on what was the chance of an individual catching one virus, overlooked the fact that many people in the area are “breathing with the same probability”. Thus, the true approach is not the “individual’s chance of catching one virus but rather what is the probability of causing incidences in the entire population [385,000] surrounding the plant.” (Emphasis supplied.)
Another expert witness in opposition to the cooling tower concept was Dr. Joseph L. Melnick, called on behalf of petitioner Guy V. Molinari. Melnick gave little or no credence to Sobsey’s “worst case” estimates, because, inter alia, they were based on the highest viral concentrations in raw sewage taken from a study of samples from Santee, California, a town with a population of 12,000. He also noted that none of the studies relied upon by Sobsey were of raw sewage in highly populated urban areas.
Notwithstanding that the site for the proposed fossil fueled generating facility is within an area already exposed to sources of great industrial pollution originating for the most part from factories and refineries in nearby New Jersey, the majority has concluded that the determination of the Siting Board that the facility “will have acceptable impacts on the environment and on public health” was supported by substantial evidence, and that such determination was neither arbitrary nor capricious. Concomitantly it may be inferred from such conclusion that the majority is also in accord with the further statement of the board that “the potential impacts on public health at Arthur Kill are small enough to be acceptable and should not preclude use of the site if it is preferable on other grounds.”
Yet, after having carefully read and evaluated the significant evidence in the record as to boiler and cooling tower emissions, the uppermost thought raised and recurring in my mind is just what segment of society would *395agree that any adverse impact on the public health stemming from emissions from the proposed plant would be so minimal as to be “acceptable”? Conceivably, many if not most of PASNY bondholders might be amenable to the proposition that any ensuing risk to the public health would be insignificant. Moreover, in all likelihood the vast majority of the populace living outside the sphere of the area affected by the plant’s construction would not have a strong opinion on the issue either way. However, I do not believe it logical to assume that any reasonable person residing within the Staten Island portion of what might be categorized the “carcinogenic corridor”, an area already deleteriously affected by industrial pollution originating in New Jersey, would agree that additional toxic material spewed from the proposed plant into the environment would not pose an added significant risk to the public health. In similar vein, countless persons of today’s generations residing on Staten Island within the “carcinogenic corridor”, all too often on hot summer days during atmospheric inversions, have undoubtedly experienced the discomfort of burning eyes, and have had their nostrils assaulted by pungent and sickening odors largely resulting from New Jersey industrial pollutants being carried to their communities by prevailing westerly winds. I daresay they would view with jaundiced (and perhaps even burning) eyes a purportedly scientific prognosis in which it is declared that additional pollutants emitted from a proposed nearby generating facility, into an already befouled environment, would not constitute an added risk of serious consequence to the public health.
Stripped of all the technical jargon cluttering the record on the effect upon the environment and public health, PASNY’s contention that such emissions from the cooling tower would not deleteriously affect the environment and public health is based upon patently inadequate, incomplete and meager evidence submitted by it at the hearing before the board. Uncontroverted by PASNY, and given little if any weight by the board, is the fact that the Arthur Kill is a highly polluted waterway, the proposed plant is located in close proximity to a greatly contaminated portion of the Arthur Kill, and pollutants in unknown but *396possibly hazardous levels will be emitted from the plant’s cooling tower, and dispersed into areas already plagued by a high incidence of respiratory diseases.
Despite the highly contaminated condition of the Arthur Kill, PASNY’s experts based their findings that the cooling tower’s emissions would not adversely affect the public health, upon data submitted from a one-day sampling of its waters for viruses. Such sampling was taken during an off-peak season of the year. Similarly, PASNY admitted that organic chemical sampling of the Arthur Kill waters was conducted on only one day from the pier adjacent to the proposed site. Notwithstanding such obviously superficial exploratory action, the board in its final order and opinion cavalierly states: “PASNY’s analysis of the chemical content of the Arthur Kill and of the dispersion of small amounts of organic chemicals by the proposed plant provides a sufficient basis for concluding that the expected emission of these substances is acceptable and does not present a significant risk to public health.”
Also noteworthy of mention at this time is that in support of PASNY’s “worst case analysis” of viral concentration in order to evaluate the potential adverse health impact (based solely on the one-day virus sampling) Dr. Sobsey, PASNY’s virologist, admitted that he adopted the methodology and sampling techniques employed by Brook-haven National Laboratory in its recovery of viruses from the Arthur Kill estuary. Ironically, however, the record reveals that Brookhaven clearly had serious doubts and second thoughts later with respect to the thoroughness and reliability of the methodology and sampling techniques it used, as is evident from the following remark found in its ensuing report: “The Arthur Kill study conducted by Brookhaven National Laboratory during May-June 1978 was limited both in seasonal scope, and sampling frequency. Virus recoveries from a few samples (24) taken during a one-month period do not accurately reflect likely recoverable virus occurrence on a year-round basis. Furthermore, the reported virus concentrations must be considered as representing a fraction of the total virus numbers likely present in Kill waters.” (Emphasis supplied.)
*397It is obvious therefore that PASNY’s use of a methodology and technique for sampling of the Arthur Kill waters, disowned by its creator as being “limited both in seasonal scope, and sampling frequency”, and “not accurately reflect[ing an] * * * occurrence on a year-round basis”, did not satisfy the requirements of section 142 (subd 1, pars [b], [c]) of the Public Service Law, pertaining, respectively, to the requirements that in an application for a certificate the applicant submit information and materials pertaining to alternate sites and sources of power, and, inter alia, the reasons why the proposed site is best suited to promote the public health and welfare, as well as studies of the expected environmental impact and safety of the facility “sufficient to identify (i) the anticipated gaseous, liquid and solid wastes to be produced at the facility”, etc. (Emphasis supplied.)
With respect to the portion of the hearing pertaining to public health risks associated with fossil fuel combustion (boiler) emissions, I direct my attention at this time to the approximately one page “Discussion and Conclusions” promulgated by the Siting Board on this extremely important subject. After summarizing the contrasting evidence and arguments raised by the parties, the board gave the following statements which it considers a sufficient basis for its conclusion that the proposed plant would not prove a significant risk to the public health:
“The record presents a range of risks of adverse impact from a plant at Arthur Kill * * * Each of the studies presented by the witnesses has its strengths and weaknesses, and we are unwilling either to consider any of them entirely definitive or to discount any of them as have the Examiners. Our reluctance to endorse any one presentation * * *, simply reflects the difficulties and uncertainties that must be faced when an attempt is made to trace subtle influences in a large and diverse human population.
“We thus cannot conclude on this record that the plant’s boiler stack emissions will, as a certainty, have no adverse impact whatsoever on public health. PASNY may turn out to be right in seeing the risk as negligible, but prudence suggests assuming a risk somewhere within the range that emerges from the record as a whole. After giving due *398weight to the various studies presented on that record, we conclude that the facility’s likely impact on public health in New York City and the surrounding area is acceptably small, and will be outweighed by the plant’s benefits.” (Emphasis supplied.)
From a cursory reading of the inadequate, skimpy and brief statement above, it is manifestly evident that the board has furnished no rational basis to support its conclusion that the likely impact of emissions from the boiler stack would be “acceptably small”. Subdivision 2 of section 146 of the Public Service Law states, inter alia: “The board shall issue, with its decision, an opinion stating in full its reasons for its decision.” (Emphasis supplied.) If anything, the board has set forth, with respect to the issue of boiler emissions and their effect on the public health, not the “full * * * reasons” for its decision, but, rather an absence of reasons (i.e., “[e]ach of the studies presented by the witnesses has it strengths and weaknesses”, “[w]e thus cannot conclude on this record that the plant’s boiler stack emissions will, as a certainty, have no adverse impact whatsoever on public health”). Nowhere in its statement does the board indicate that the evidence adduced by PASNY demonstrates to a reasonable certitude that the facility’s impact on the public health resulting from boiler emissions would be “acceptably small”. Its placing the risk to the public health at the “acceptably small” range of the spectrum is not based on reasons set forth in the opinion, but rather because “prudence suggests assuming a risk somewhere within the range that emerges from the record as a whole.” Simply put, the “reasons” given by the board for its decision on the boiler emission issue attained neither the quality nor breadth of the type envisioned by the legislators who drafted section 146 of the Public Service Law.
Similar to the holding of this Bench that PASNY, under section 146 (subd 2, par [d]) of the Public Service Law has the burden of proving that applicable local laws and regulations are unreasonable and unduly restrictive, I also believe that pursuant to section 142 (subd 1, par [e]), PASNY has the burden of proving that a proposed facility (including its boiler emissions), is not “incompatible with health and safety”. In administrative proceedings the gen*399eral rule is that an applicant for relief, benefits, or a privilege, has the burden of proof (73 CJS, Public Administrative Bodies and Procedure, § 124; see, also, 73 CJS, Public Utilities, § 53).
Returning to the statement and conclusion on the boiler emission issue, it is apparent that the board did not accord significantly greater weight to the evidence of one side or the other (i.e., “[e]ach of the studies presented * * * has its strengths and weaknesses”, “[o]ur reluctance to endorse any one presentation * * * simply reflects the difficulties and uncertainties * * * when an attempt is made to trace subtle influence in a large and diverse human population”). In fact the entire statement is permeated with indecisiveness, vacillation and doubt. Such being the fact, it is patently evident from the statement that the board tacitly admits that PASNY did not meet its burden of proving the proposed facility located at the Arthur Kill site would not be “incompatible with health and safety” at least with respect to boiler emissions (Public Service Law, § 142, subd 1, pars [b], [e], cl [i]). It follows, therefore, since PASNY had not met its burden of proof on the boiler emissions issue, that the board erred in granting a certificate of environmental compatibility and public need. If the evidence before a commission (or an administrative hearing board) is such as to raise in the minds of the commission legitimate doubts as to the existence of essential facts, the commission must rule against the application on the ground that the applicant did not sustain his burden of proving to the satisfaction of the commission that the facts were as claimed (Neumann v Industrial Comm., 257 Wis 120). The burden cannot be shifted by a commission’s adopting premises for a decision not supported by the evidence (Utah Constr. Co. v Berg, 68 Ariz 285). It should again be observed that the board reached its ultimate conclusion that the amount of boiler emissions from the facility would have an “acceptably small” impact on the public health not on evidentiary facts, but on the basis that “prudence” suggests that the board assume a risk “somewhere” within the range of risks submitted by the parties in the adversarial hearing. However, the law is settled that the findings of an administrative board may not rest on *400surmise, conjecture, or speculation (or an assumption) or on the personal opinion of the board (Matter of Motiachino v New York State Liq. Auth., 12 Misc 2d 666, revd on other grounds 6 AD2d 378; 73 CJS, Public Administrative Bodies and Procedure, § 126).
Despite the strong doubts the board evidently had as to the possible effect boiler emissions might have on the public health, as reflected in its conclusion, it nevertheless issued the certificate authorizing construction of the proposed facility based largely, if not primarily, on PASNY’s one-day samplings of the Arthur Kill for viruses and chemicals. However, in directing PASNY to conduct a further one-year postcertification monitoring of the estuary for the same materials, the board clearly reflected its own doubt as to the limited sampling it impliedly found to be sufficient.
I find nothing in article 8 of the Public Service Law which remotely suggests that the board has the authority to order such a research program after certification (see Atwell v Power Auth. of State of N. Y., 67 AD2d 365, 380, supra).
CONCLUSION
Notwithstanding the fact that PASNY’s experts on more than one occasion conceded (somewhat reluctantly) that not only statistical studies made by their counterparts in opposition, but theirs as well, have indicated a direct relationship of air pollution to the incidence of death and illnesses from respiratory diseases, PASNY has preferred in this case to dwell upon the shortcomings of the studies made by its adversaries (and so acknowledged by the latter) and slough off such evidence of the correlation with a confusing conclusion that the “state of [the] art does not permit a defensible” statement of the projected health effect of the Arthur Kill plant. In the face of the significant evidence adduced by PASNY’s opponents of the high incidence of deaths and illnesses resulting from respiratory diseases, and its relation to industrial air pollution, I find PASNY’s reliance on patently inadequate tests and its unwillingness to participate in, or conduct, further' relevant statistical studies in connection with the proposed *401site, to be callous and decidedly not in the best interest of the public in general.
I have no quarrel with the proposition that modern technology (which includes the generating of electric power) has brought countless benefits to society. Yet, unfortunately, I am also cognizant that insufficient research and experimentation at the outset into potential aftereffects have resulted in our being ill-equipped and even helpless at times to combat serious problems that have accompanied the benefits. Our imaginations were stimulated by what was to be our rewards from the harnessing of nuclear energy. However, little or no thought at the outset was directed to the disposal of nuclear waste and the dangers of radioactive fallout. Today many of our estuaries (including the Arthur Kill) are no more than floating industrial garbage dumps because little or no controls were instituted or pertinent studies conducted beforehand. These are just two vivid examples of the serious problems that “progress” has wrought because of insufficient research and inadequate testing.
Finally, it has been said that those who ignore history are condemned to repeat it and therefore condemned to live with it. What I truly fear is that today’s generations, because of patently inadequate testing of the Arthur Kill waters, and rejection of significant evidence connecting air pollution with the high incidence of deaths and nonfatal illnesses on Staten Island, may well be condemning innumerable persons of future generations to early death based on a specious conclusion that “the potential impacts on public health at Arthur Kill are small enough to be acceptable.”
I have “carefully parsed” (according to the majority) and delved conscientiously and assiduously into all of the voluminous and highly technical evidence in this record, and have sifted it thoroughly for competency, relevancy and substantiveness. Substantial evidence is not a talisman used by a court under which it automatically fixes its imprimatur on an administrative determination. Rather, it is a standard of review that requires a court to delve deeply into the record to determine the rationality of administrative action (Matter of Cortland-Clinton, Inc. v *402New York State Dept, of Health, 59 AD2d 228). A court reviewing substantiality of evidence upon which an administrative agency has acted exercises a genuine judicial function and does not confirm a determination simply because it was made by such agency (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176). To do otherwise would be an abdication of judicial responsibility.
Without belaboring my arguments on the issues of “Boiler Emissions” and “Emissions from the Cooling Tower”,-1 reiterate that the expert testimony of PASNY’s witnesses to the effect that emissions from the proposed power plant will not adversely affect the public health, together with the results from patently inadequate and superficial samplings of the Arthur Kill waters, on which such testimony is based, does not constitute a rational basis to support the Siting Board’s findings that the public health impact of both boiler and cooling tower emissions would be minimal.
Mangano, Thompson and Bracken, JJ., concur with Mollen, P. J.; Titone, J., concurs in part and dissents in part, with an opinion.
Petitions granted to the extent that the determination of the New York State Board on Electric Generation Siting and the Environment, dated July 22, 1981, is annulled, on the law, without costs or disbursements, and the matter is remitted to the Siting Board for a rehearing on the question of whether the proposed facility is designed to operate in compliance with local laws and regulations or, in the alternative, that said local laws and regulations are unreasonably restrictive as applied to the proposed facility.