NY Pub Serv L § 165 (2021)
2021 New York Laws PBS - Public Service Article 10 - Siting of Major Electric Generating Facilities 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.