N.Y. Public Service Law § 167: Conduct of hearing

§ 167. Conduct of hearing. 1. (a) The hearing shall be conducted in an

expeditious manner by a presiding examiner appointed by the department.

An associate hearing examiner shall be appointed by the department of

environmental conservation prior to the date set for commencement of the

public hearing. The associate examiner shall attend all hearings as

scheduled by the presiding examiner and shall assist the presiding

examiner in inquiring into and calling for testimony concerning relevant

and material matters. The conclusions and recommendations of the

associate examiner shall be incorporated in the recommended decision of

the presiding examiner, unless the associate examiner prefers to submit

a separate report of dissenting or concurring conclusions and

recommendations. In the event that the commissioner of environmental

conservation issues permits pursuant to federally delegated or approved

authority under the federal Clean Water Act, the federal Clean Air Act

and the federal Resource Conservation and Recovery Act, or section

15-1503 and article nineteen of the environmental conservation law, the

record in the proceeding and the associate examiner's conclusions and

recommendations shall, insofar as is consistent with federally delegated

or approved environmental permitting authority, provide the basis for

the decision of the commissioner of environmental conservation whether

or not to issue such permits.

(b) The testimony presented at a hearing may be presented in writing.

Oral testimony may be presented at any public statement hearing

conducted by the board for the taking of unsworn statements. The board

may require any state agency to provide expert testimony on specific

subjects where its personnel have the requisite expertise and such

testimony is considered necessary to the development of an adequate

record. All testimony and information presented by the applicant, any

state agency or other party shall be subject to discovery and

cross-examination. A record shall be made of the hearing and of all

testimony taken and the cross-examinations thereon. The rules of

evidence applicable to proceedings before a court shall not apply. The

presiding examiner may provide for the consolidation of the

representation of parties, other than governmental bodies or agencies,

having similar interests. In the case of such a consolidation, the right

to counsel of its own choosing shall be preserved to each party to the

proceeding provided that the consolidated group may be required to be

heard through such reasonable number of counsel as the presiding

examiner shall determine. Appropriate regulations shall be issued by the

board to provide for prehearing discovery procedures by parties to a

proceeding, consolidation of the representation of parties, the

exclusion of irrelevant, repetitive, redundant or immaterial evidence,

and the review of rulings by presiding examiners.

2. A copy of the record including, but not limited to, testimony,

briefs and hearing testimony shall be made available by the board within

thirty days of the close of the evidentiary record for examination by

the public, and shall be made available on the department's website.

3. The chair of the board may enter into an agreement with an agency

or department of the United States having concurrent jurisdiction over

all or part of the location, construction, or operation of a major

electric generating facility subject to this article with respect to

providing for joint procedures and a joint hearing of common issues on a

combined record, provided that such agreement shall not diminish the

rights accorded to any party under this article.

4. The presiding examiner shall allow testimony to be received on

reasonable and available alternate locations for the proposed facility,

alternate energy supply sources and demand-reducing measures, provided

notice of the intent to submit such testimony shall be given within such

period as the board shall prescribe by regulation, which period shall be

not less than thirty nor more than sixty days after the commencement of

the hearing. Nevertheless, in its discretion, the board may thereafter

cause to be considered other reasonable and available locations for the

proposed facility, alternate energy supply sources and, where

appropriate, demand-reducing measures.

5. Notwithstanding the provisions of subdivision four of this section,

the board may make a prompt determination on the sufficiency of the

applicant's consideration and evaluation of reasonable alternatives to

its proposed type of major electric generating facility and its proposed

location for that facility, as required pursuant to paragraph (i) of

subdivision one of section one hundred sixty-four of this article,

before resolution of other issues pertinent to a final determination on

the application; provided, however, that all interested parties have

reasonable opportunity to question and present evidence in support of or

against the merits of the applicant's consideration and evaluation of

such alternatives, as required pursuant to paragraph (i) of subdivision

one of section one hundred sixty-four of this article, so that the board

is able to decide, in the first instance, whether the applicant's

proposal is preferable to alternatives.