2012 New York Consolidated Laws
PBS - Public Service
Article 10 - (160 - 173) SITING OF MAJOR ELECTRIC GENERATING FACILITIES
168 - Board decisions.

 
    §  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, including
  any briefs or exceptions to any recommended decision of such examiner or
  to any 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 not grant a certificate or amendment thereof for
  the construction or operation of a facility, either as  proposed  or  as
  modified  by  the  board, without making explicit findings regarding the
  nature of the probable environmental impacts  of  the  construction  and
  operation  of  the  facility,  including  the  cumulative  environmental
  impacts of the construction and operation of related facilities such  as
  electric  lines,  gas  lines,  water  supply lines, waste water or other
  sewage treatment facilities, communications and relay facilities, access
  roads, rail facilities, or steam lines, including impacts on:
    (a) ecology, air, ground and surface water, wildlife, and habitat;
    (b) public health and safety;
    (c)  cultural,  historic,  and   recreational   resources,   including
  aesthetics and scenic values; and
    (d) transportation, communication, utilities and other infrastructure.
  Such  findings  shall  include the cumulative impact of emissions on the
  local community including whether the construction and operation of  the
  facility   results   in   a  significant  and  adverse  disproportionate
  environmental  impact,  in  accordance  with   regulations   promulgated
  pursuant  to  paragraph  (f)  of  subdivision one of section one hundred
  sixty-four  of  this  article  by  the   department   of   environmental
  conservation regarding environmental justice issues.
    3.  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 the board determines that:
    (a) the facility is a beneficial addition to or substitution  for  the
  electric generation capacity of the state; and
    (b)  the  construction  and  operation  of the facility will serve the
  public interest; and
    (c)  the  adverse  environmental  effects  of  the  construction   and
  operation  of  the  facility will be minimized or avoided to the maximum
  extent practicable; and
    (d) if the board finds that the facility results in or contributes  to
  a  significant  and adverse disproportionate environmental impact in the
  community in which the facility would be  located,  the  applicant  will
  avoid,  offset  or  minimize the impacts caused by the facility upon the
  local community for the duration that the certificate is issued  to  the
  maximum extent practicable using verifiable measures; and
    (e)  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 elect not
  to  apply,  in whole or in part, any local ordinance, law, resolution or
  other action or any regulation issued thereunder or any  local  standard
  or  requirement,  including,  but  not limited to, those relating to the
  interconnection to and use of water, electric, sewer, telecommunication,
  fuel and steam lines in public rights of way, which would  be  otherwise
  applicable  if  it finds that, as applied to the proposed facility, such

  is unreasonably burdensome 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.
    4. In making the determinations required in subdivision three of  this
  section, the board shall consider:
    (a) the state of available technology;
    (b) the nature and economics of reasonable alternatives;
    (c)  environmental  impacts  found pursuant to subdivision two of this
  section;
    (d) the impact of construction and operation  of  related  facilities,
  such  as  electric  lines, gas lines, water supply lines, waste water or
  other sewage treatment facilities, communications and relay  facilities,
  access roads, rail facilities, or steam lines;
    (e)  the consistency of the construction and operation of the facility
  with the energy policies and long-range energy planning  objectives  and
  strategies contained in the most recent state energy plan;
    (f)  the  impact on community character and whether the facility would
  affect communities that are disproportionately  impacted  by  cumulative
  levels of pollutants; and
    (g)  such  additional  social,  economic,  visual  or other aesthetic,
  environmental and other considerations deemed pertinent by the board.
    5. The  department  or  the  commission  shall  monitor,  enforce  and
  administer  compliance  with  any  terms and conditions set forth in the
  board's order.
    6. A copy of the board's decision and opinion shall be served on  each
  party electronically or by mail.
    7.  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 permanent board shall retain jurisdiction
  with  respect  to  the  amendment,  suspension  or   revocation   of   a
  certificate.