2019 New York Laws
PBS - Public Service
Article 8 - Siting of Major Steam Electric Generating Facilities
146 - Board Decisions.

* § 146. 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 forty-five 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. The public
service 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
steam electric generating facility, either as proposed or as modified by
the board, unless it shall first find and determine:
  (a) the public need for the facility and the basis thereof;
  (b) the nature of  the  probable  environmental  impact,  including  a
specification   of   the   predictable  adverse  effect  on  the  normal
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) represents the minimum adverse environmental
impact, considering the state of available technology,  the  nature  and
economics  of  the various alternatives, the interests of the state with
respect to asthetics, 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  and
(iii)  will  not discharge any effluent that will be in contravention of
the standards adopted by 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;
  (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. 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. For the purposes of this article an agreement between
the applicant and a municipality in which the proposed facility is to be

located,  entered  into  on  or  before  May  first,  nineteen   hundred
seventy-six,   relating   to  the  location  of  facilities  within  the
municipality shall be deemed to be and have the force and  effect  of  a
local law;
  (e)   that   the  facility  is  consistent  with  long-range  planning
objectives for electric power supply in the state, including an economic
and reliable electric system; and for protection of the environment;
  (f) that the facility will serve the public interest, convenience  and
necessity,  provided,  however,  that a determination of necessity for a
facility made by the power authority of the state of New  York  pursuant
to  section  ten hundred five of the public authorities law for which an
application for a certificate  has  been  filed  prior  to  July  first,
nineteen hundred seventy-eight shall be conclusive on the board; and
  (g)  that  the  facility  is  in  the public interest, considering the
environmental impact of the facility, the total cost  to  society  as  a
whole,  the possible available sites or alternative available sources of
energy, as the case may be, both within the state and elsewhere and  the
immediacy  and  totality of the needs of the people of the state for the
facility within the context of the need for public utility services  and
for protection of the environment.
  3.  The  board  shall,  either  as a part of the decision described in
subdivision two of this section or as part of any determination  as  may
be  appropriately  made in conformance with regulations adopted pursuant
to paragraph (b) of subdivision six of section one hundred forty-two  of
this  article,  issue  a  permit  under  section four hundred two of the
Federal Water Pollution  Control  Act  amendments  of  nineteen  hundred
seventy-two. Such permit shall be based upon the evidence of record with
respect  to  the  construction  and  operation  of  the water intake and
discharge systems of the facility and shall contain such conditions  and
limitations  as  the  board  shall  deem  appropriate. The issuance of a
permit 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.
  * NB Expired January 1, 1989
  * NB Operative with regard to applications filed on or before December
         31, 1988
  * NB There are 2 § 146's