Search OpenLegislation Statutes

This entry was published on 2014-09-22
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
Board decisions
Public Service (PBS) CHAPTER 48, ARTICLE 8
* § 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