N.Y. Public Service Law 146 – Board decisions
* § 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.
Terms Used In N.Y. Public Service Law 146
- Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
- Board: means the New York state board on electric generation siting and the environment, which shall be in the department of public service and consist of seven persons, one of whom shall be the chairman of the public service commission, who shall serve as chairman of the board, one of whom shall be the commissioner of environmental conservation, one of whom shall be the commissioner of health, one of whom shall be the commissioner of the state energy office, one of whom shall be the commissioner of commerce and two of whom shall be public members appointed by the governor, one of whom shall be an ad hoc member who shall be a resident of the judicial district in which the facility as primarily proposed is to be located and one of whom shall be an ad hoc member who shall be a resident of the county in which the facility as primarily proposed is to be located. See N.Y. Public Service Law 140
- Certificate: means a certificate of environmental compatibility and public need authorizing the construction of a major steam electric generating facility issued by the board pursuant to this article. See N.Y. Public Service Law 140
- Department: means the state department of public service. See N.Y. Public Service Law 140
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Major steam electric generating facility: means a steam electric generating facility with a generating capacity of fifty thousand kilowatts or more. See N.Y. Public Service Law 140
- Municipality: means a county, city, town or village in the state. See N.Y. Public Service Law 140
- Oral argument: An opportunity for lawyers to summarize their position before the court and also to answer the judges' questions.
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 § 1005 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