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.
Last modified: February 3, 2019