NY Pub Serv L § 168 (2021)
2021 New York Laws PBS - Public Service Article 10 - 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.