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This entry was published on 2014-09-22
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Conduct of hearing
Public Service (PBS) CHAPTER 48, ARTICLE 10
§ 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.