N.Y. Public Service Law Section 146
Board decisions


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 § 145 (Conduct of hearing)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.


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:


the public need for the facility and the basis thereof;


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;


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;


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;


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;


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 Public Authorities Law § 1005 (Powers and duties of authority)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


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.


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 § 142 (Application for a certificate)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.


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

Source: Section 146 — Board decisions, https://www.­nysenate.­gov/legislation/laws/PBS/146 (updated Sep. 22, 2014; accessed Nov. 25, 2023).

Nov. 25, 2023

Last modified:
Sep. 22, 2014

§ 146’s source at nysenate​.gov

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