N.Y. Public Service Law § 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.