2023 New York Laws › PBS - Public Service › Article 10 - Siting of Major Electric Generating Facilities › 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.