40-360.06. Factors to be considered in issuing a certificate of environmental compatibility

A. The committee may approve or deny an application and may impose reasonable conditions on the issuance of a certificate of environmental compatibility and in so doing shall consider the following factors as a basis for its action with respect to the suitability of either plant or transmission line siting plans:

1. Existing plans of this state, local government and private entities for other developments at or in the vicinity of the proposed site.

2. Fish, wildlife and plant life and associated forms of life on which they are dependent.

3. Noise emission levels and interference with communication signals.

4. The proposed availability of the site to the public for recreational purposes, consistent with safety considerations and regulations.

5. Existing scenic areas, historic sites and structures or archaeological sites at or in the vicinity of the proposed site.

6. The total environment of the area.

7. The technical practicability of achieving a proposed objective and the previous experience with equipment and methods available for achieving a proposed objective.

8. The estimated cost of the facilities and site as proposed by the applicant and the estimated cost of the facilities and site as recommended by the committee, recognizing that any significant increase in costs represents a potential increase in the cost of electric energy to the customers or the applicant.

9. Any additional factors that require consideration under applicable federal and state laws pertaining to any such site.

B. The committee shall give special consideration to the protection of areas unique because of biological wealth or because they are habitats for rare and endangered species.

C. Notwithstanding any other provision of this article, the committee shall require in all certificates for facilities that the applicant comply with all applicable nuclear radiation standards and air and water pollution control standards and regulations, but shall not require either of the following:

1. Compliance with performance standards other than those established by the agency having primary jurisdiction over a particular pollution source.

2. That a contractor, subcontractor, material supplier or other person engaged in the construction, maintenance, repair or improvement of any project subject to approval of the commission negotiate, execute or otherwise become a party to any project labor agreement, neutrality agreement as defined in section 34-321, apprenticeship program participation or contribution agreement or other agreement with employees, employees' representatives or any labor organization as a condition of or a factor in the commission's approval of the project. This paragraph does not:

(a) Prohibit private parties from entering into individual collective bargaining relationships.

(b) Regulate or interfere with activity protected by law, including the national labor relations act.

D. Any certificate granted by the committee shall be conditioned on compliance by the applicant with all applicable ordinances, master plans and regulations of the state, a county or an incorporated city or town, except that the committee may grant a certificate notwithstanding any such ordinance, master plan or regulation, exclusive of franchises, if the committee finds as a fact that compliance with such ordinance, master plan or regulation is unreasonably restrictive and compliance therewith is not feasible in view of technology available. When it becomes apparent to the chairman of the committee or to the hearing officer that an issue exists with respect to whether such an ordinance, master plan or regulation is unreasonably restrictive and compliance therewith is not feasible in view of technology available, the chairman or hearing officer shall promptly serve notice of such fact by certified mail on the chief executive officer of the area of jurisdiction affected and, notwithstanding any provision of this article to the contrary, shall make such area of jurisdiction a party to the proceedings on its request and shall give it an opportunity to respond on such issue.