N.Y. Public Service Law § 165: Hearing schedule

§ 165. Hearing schedule. 1. After the receipt of an application filed

pursuant to section one hundred sixty-four of this article, the chair of

the board shall, within sixty days of such receipt, determine whether

the application complies with such section and upon finding that the

application so complies, fix a date for the commencement of a public

hearing. The department of environmental conservation shall advise the

board within said sixty day period whether an application filed pursuant

to paragraph (b) of subdivision four of this section contains sufficient

information meeting the requirements specified under subparagraphs (i)

through (iv) of such paragraph to qualify for the expedited procedure

provided for in such paragraph. No later than the date of the

determination that an application complies with section one hundred

sixty-four of this article, the department of environmental conservation

shall initiate its review pursuant to federally delegated or approved

environmental permitting authority. The chair of the board may require

the filing of any additional information needed to supplement an

application before or during the hearings.

2. Within a reasonable time after the date has been fixed by the chair

for commencement of a public hearing, the presiding examiner shall hold

a prehearing conference to expedite the orderly conduct and disposition

of the hearing, to specify the issues, to obtain stipulations as to

matters not disputed, and to deal with such other matters as the

presiding examiner may deem proper. Thereafter, the presiding examiner

shall issue an order identifying the issues to be addressed by the

parties provided, however, that no such order shall preclude

consideration of additional issues or requests for additional

submissions, documentation or testimony at a hearing which warrant

consideration in order to develop an adequate record as determined by an

order of the board. The presiding examiner shall be permitted a

reasonable time to respond to any and all interlocutory motions and

appeals, but in no case shall such time extend beyond forty-five days.

3. All parties shall be prepared to proceed in an expeditious manner

at the hearing so that it may proceed regularly until completion, except

that hearings shall be of sufficient duration to provide adequate

opportunity to hear direct evidence and rebuttal evidence from residents

of the area affected by the proposed major electric generating facility.

To the extent practicable, the place of the hearing shall be designated

by the presiding examiner at a location within two miles of the proposed

location of the facility.

4. (a) Except as provided in paragraph (b) of this subdivision,

proceedings on an application shall be completed in all respects in a

manner consistent with federally delegated or approved environmental

permitting authority, including a final decision by the board, within

twelve months from the date of a determination by the chair that an

application complies with section one hundred sixty-four of this

article; provided, however, the board may extend the deadline in

extraordinary circumstances by no more than six months in order to give

consideration to specific issues necessary to develop an adequate

record. The board must render a final decision on the application by the

aforementioned deadlines unless such deadlines are waived by the

applicant. If, at any time subsequent to the commencement of the

hearing, there is a material and substantial amendment to the

application, the deadlines may be extended by no more than six months,

unless such deadline is waived by the applicant, to consider such

amendment.

(b) Proceedings on an application by an owner of an existing major

electric generating facility to modify such existing facility or site a

new major electric generating facility adjacent or contiguous to such

existing facility, shall be completed in all respects in a manner

consistent with federally delegated or approved environmental permitting

authority, including a final decision by the board, within six months

from the date of a determination by the chair that such application

complies with section one hundred sixty-four of this article, whenever

such application demonstrates that the operation of the modified

facility, or of the existing facility and new facility in combination,

would result in:

(i) a decrease in the rate of emission of each of the relevant siting

air contaminants. For facilities that are partially replaced or

modified, the percentage decrease shall be calculated by comparing the

potential to emit of each such contaminant of the existing unit that is

to be modified or replaced as of the date of application under this

article to the future potential to emit each such contaminant of the

modified or replacement unit as proposed in the application. For

facilities that are sited physically adjacent or contiguous to an

existing facility, the percentage decrease shall be calculated by

comparing the potential to emit of each such contaminant of the existing

facility as of the date of application under this article, to the future

potential to emit each such contaminant of the existing and new facility

combined as proposed in the application;

(ii) a reduction of the total annual emissions of each of the relevant

siting air contaminants emitted by the existing facility. The percentage

reduction shall be calculated by comparing (on a pounds-per-year basis)

the past actual emissions of each of the relevant siting air

contaminants emitted by the existing facility averaged over the three

years preceding the date of application under this article, to the

annualized potential to emit each such contaminant of the modified

facility or of the combined existing and new facility as proposed in the

application;

(iii) introduction of a new cooling water intake structure where such

structure withdraws water at a rate equal to or less than closed-cycle

cooling; and

(iv) a lower heat rate than the heat rate of the existing facility.

The applicant shall supply the details of the analysis in the

application and such supporting information, as may be requested by the

board or, in the exercise of federally delegated or approved

environmental permitting authority, the department of environmental

conservation, necessary to show compliance with the requirements of

subparagraphs (i) through (iv) of this paragraph. The board may extend

the deadline in extraordinary circumstances by no more than three months

in order to give consideration to specific issues necessary to develop

an adequate record. The board shall render a final decision on the

application by the aforementioned deadlines unless such deadlines are

waived by the applicant. If, at any time subsequent to the commencement

of the hearing, there is a material and substantial amendment to the

application, the deadlines may be extended by no more than three months,

unless such deadline is waived by the applicant, to consider such

amendment.

5. If an application for an amendment of a certificate proposing a

change in the facility is likely to result in any material increase in

any environmental impact of the facility or a substantial change in the

location of all or a portion of such facility, a hearing shall be held

in the same manner as a hearing on an application for a certificate. The

board shall promulgate rules, regulations and standards under which it

shall determine whether hearings are required under this subdivision and

shall make such determinations.