N.Y. PBS Law § 165 — New York Code / Act PBS / Article 10 / Section 165
Hearing schedule
Status: in_force

§ 165. Hearing schedule. 1. After the receipt of an application filed\npursuant to section one hundred sixty-four of this article, the chair of\nthe board shall, within sixty days of such receipt, determine whether\nthe application complies with such section and upon finding that the\napplication so complies, fix a date for the commencement of a public\nhearing. The department of environmental conservation shall advise the\nboard within said sixty day period whether an application filed pursuant\nto paragraph (b) of subdivision four of this section contains sufficient\ninformation meeting the requirements specified under subparagraphs (i)\nthrough (iv) of such paragraph to qualify for the expedited procedure\nprovided for in such paragraph. No later than the date of the\ndetermination that an application complies with section one hundred\nsixty-four of this article, the department of environmental conservation\nshall initiate its review pursuant to federally delegated or approved\nenvironmental permitting authority. The chair of the board may require\nthe filing of any additional information needed to supplement an\napplication before or during the hearings.\n  2. Within a reasonable time after the date has been fixed by the chair\nfor commencement of a public hearing, the presiding examiner shall hold\na prehearing conference to expedite the orderly conduct and disposition\nof the hearing, to specify the issues, to obtain stipulations as to\nmatters not disputed, and to deal with such other matters as the\npresiding examiner may deem proper. Thereafter, the presiding examiner\nshall issue an order identifying the issues to be addressed by the\nparties provided, however, that no such order shall preclude\nconsideration of additional issues or requests for additional\nsubmissions, documentation or testimony at a hearing which warrant\nconsideration in order to develop an adequate record as determined by an\norder of the board. The presiding examiner shall be permitted a\nreasonable time to respond to any and all interlocutory motions and\nappeals, but in no case shall such time extend beyond forty-five days.\n  3. All parties shall be prepared to proceed in an expeditious manner\nat the hearing so that it may proceed regularly until completion, except\nthat hearings shall be of sufficient duration to provide adequate\nopportunity to hear direct evidence and rebuttal evidence from residents\nof the area affected by the proposed major electric generating facility.\nTo the extent practicable, the place of the hearing shall be designated\nby the presiding examiner at a location within two miles of the proposed\nlocation of the facility.\n  4. (a) Except as provided in paragraph (b) of this subdivision,\nproceedings on an application shall be completed in all respects in a\nmanner consistent with federally delegated or approved environmental\npermitting authority, including a final decision by the board, within\ntwelve months from the date of a determination by the chair that an\napplication complies with section one hundred sixty-four of this\narticle; provided, however, the board may extend the deadline in\nextraordinary circumstances by no more than six months in order to give\nconsideration to specific issues necessary to develop an adequate\nrecord. The board must render a final decision on the application by the\naforementioned deadlines unless such deadlines are waived by the\napplicant. If, at any time subsequent to the commencement of the\nhearing, there is a material and substantial amendment to the\napplication, the deadlines may be extended by no more than six months,\nunless such deadline is waived by the applicant, to consider such\namendment.\n  (b) Proceedings on an application by an owner of an existing major\nelectric generating facility to modify such existing facility or site a\nnew major electric generating facility adjacent or contiguous to such\nexisting facility, shall be completed in all respects in a manner\nconsistent with federally delegated or approved environmental permitting\nauthority, including a final decision by the board, within six months\nfrom the date of a determination by the chair that such application\ncomplies with section one hundred sixty-four of this article, whenever\nsuch application demonstrates that the operation of the modified\nfacility, or of the existing facility and new facility in combination,\nwould result in:\n  (i) a decrease in the rate of emission of each of the relevant siting\nair contaminants. For facilities that are partially replaced or\nmodified, the percentage decrease shall be calculated by comparing the\npotential to emit of each such contaminant of the existing unit that is\nto be modified or replaced as of the date of application under this\narticle to the future potential to emit each such contaminant of the\nmodified or replacement unit as proposed in the application. For\nfacilities that are sited physically adjacent or contiguous to an\nexisting facility, the percentage decrease shall be calculated by\ncomparing the potential to emit of each such contaminant of the existing\nfacility as of the date of application under this article, to the future\npotential to emit each such contaminant of the existing and new facility\ncombined as proposed in the application;\n  (ii) a reduction of the total annual emissions of each of the relevant\nsiting air contaminants emitted by the existing facility. The percentage\nreduction shall be calculated by comparing (on a pounds-per-year basis)\nthe past actual emissions of each of the relevant siting air\ncontaminants emitted by the existing facility averaged over the three\nyears preceding the date of application under this article, to the\nannualized potential to emit each such contaminant of the modified\nfacility or of the combined existing and new facility as proposed in the\napplication;\n  (iii) introduction of a new cooling water intake structure where such\nstructure withdraws water at a rate equal to or less than closed-cycle\ncooling; and\n  (iv) a lower heat rate than the heat rate of the existing facility.\n  The applicant shall supply the details of the analysis in the\napplication and such supporting information, as may be requested by the\nboard or, in the exercise of federally delegated or approved\nenvironmental permitting authority, the department of environmental\nconservation, necessary to show compliance with the requirements of\nsubparagraphs (i) through (iv) of this paragraph. The board may extend\nthe deadline in extraordinary circumstances by no more than three months\nin order to give consideration to specific issues necessary to develop\nan adequate record. The board shall render a final decision on the\napplication by the aforementioned deadlines unless such deadlines are\nwaived by the applicant. If, at any time subsequent to the commencement\nof the hearing, there is a material and substantial amendment to the\napplication, the deadlines may be extended by no more than three months,\nunless such deadline is waived by the applicant, to consider such\namendment.\n  5. If an application for an amendment of a certificate proposing a\nchange in the facility is likely to result in any material increase in\nany environmental impact of the facility or a substantial change in the\nlocation of all or a portion of such facility, a hearing shall be held\nin the same manner as a hearing on an application for a certificate. The\nboard shall promulgate rules, regulations and standards under which it\nshall determine whether hearings are required under this subdivision and\nshall make such determinations.\n