§ 168 — Board decisions

§ 168. Board decisions. 1. The board shall make the final decision on\nan application under this article for a certificate or amendment\nthereof, upon the record made before the presiding examiner, including\nany briefs or exceptions to any recommended decision of such examiner or\nto any report of the associate examiner, and after hearing such oral\nargument as the board shall determine. Except for good cause shown to\nthe satisfaction of the board, a determination under subdivision five of\nsection one hundred sixty-seven of this article that the applicant's\nproposal is preferable to alternatives shall be final. Such a\ndetermination shall be subject to rehearing and review only after the\nfinal decision on an application is rendered.\n 2. The board shall not grant a certificate or amendment thereof for\nthe construction or operation of a facility, either as proposed or as\nmodified by the board, without making explicit findings regarding the\nnature of the probable environmental impacts of the construction and\noperation of the facility, including the cumulative environmental\nimpacts of the construction and operation of related facilities such as\nelectric lines, gas lines, water supply lines, waste water or other\nsewage treatment facilities, communications and relay facilities, access\nroads, rail facilities, or steam lines, including impacts on:\n (a) ecology, air, ground and surface water, wildlife, and habitat;\n (b) public health and safety;\n (c) cultural, historic, and recreational resources, including\naesthetics and scenic values; and\n (d) transportation, communication, utilities and other infrastructure.\nSuch findings shall include the cumulative impact of emissions on the\nlocal community including whether the construction and operation of the\nfacility results in a significant and adverse disproportionate\nenvironmental impact, in accordance with regulations promulgated\npursuant to paragraph (f) of subdivision one of section one hundred\nsixty-four of this article by the department of environmental\nconservation regarding environmental justice issues.\n 3. The board may not grant a certificate for the construction or\noperation of a major electric generating facility, either as proposed or\nas modified by the board, unless the board determines that:\n (a) the facility is a beneficial addition to or substitution for the\nelectric generation capacity of the state; and\n (b) the construction and operation of the facility will serve the\npublic interest; and\n (c) the adverse environmental effects of the construction and\noperation of the facility will be minimized or avoided to the maximum\nextent practicable; and\n (d) if the board finds that the facility results in or contributes to\na significant and adverse disproportionate environmental impact in the\ncommunity in which the facility would be located, the applicant will\navoid, offset or minimize the impacts caused by the facility upon the\nlocal community for the duration that the certificate is issued to the\nmaximum extent practicable using verifiable measures; and\n (e) the facility is designed to operate in compliance with applicable\nstate and local laws and regulations issued thereunder concerning, among\nother matters, the environment, public health and safety, all of which\nshall be binding upon the applicant, except that the board may elect not\nto apply, in whole or in part, any local ordinance, law, resolution or\nother action or any regulation issued thereunder or any local standard\nor requirement, including, but not limited to, those relating to the\ninterconnection to and use of water, electric, sewer, telecommunication,\nfuel and steam lines in public rights of way, which would be otherwise\napplicable if it finds that, as applied to the proposed facility, such\nis unreasonably burdensome in view of the existing technology or the\nneeds of or costs to ratepayers whether located inside or outside of\nsuch municipality. The board shall provide the municipality an\nopportunity to present evidence in support of such ordinance, law,\nresolution, regulation or other local action issued thereunder.\n 4. In making the determinations required in subdivision three of this\nsection, the board shall consider:\n (a) the state of available technology;\n (b) the nature and economics of reasonable alternatives;\n (c) environmental impacts found pursuant to subdivision two of this\nsection;\n (d) the impact of construction and operation of related facilities,\nsuch as electric lines, gas lines, water supply lines, waste water or\nother sewage treatment facilities, communications and relay facilities,\naccess roads, rail facilities, or steam lines;\n (e) the consistency of the construction and operation of the facility\nwith the energy policies and long-range energy planning objectives and\nstrategies contained in the most recent state energy plan;\n (f) the impact on community character and whether the facility would\naffect communities that are disproportionately impacted by cumulative\nlevels of pollutants; and\n (g) such additional social, economic, visual or other aesthetic,\nenvironmental and other considerations deemed pertinent by the board.\n 5. The department or the commission shall monitor, enforce and\nadminister compliance with any terms and conditions set forth in the\nboard's order.\n 6. A copy of the board's decision and opinion shall be served on each\nparty electronically or by mail.\n 7. Following any rehearing and any judicial review of the board's\ndecision, the board's jurisdiction over an application shall cease,\nprovided, however, that the permanent board shall retain jurisdiction\nwith respect to the amendment, suspension or revocation of a\ncertificate.\n