2023 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.