§ 167 — Conduct of hearing

§ 167. Conduct of hearing. 1. (a) The hearing shall be conducted in an\nexpeditious manner by a presiding examiner appointed by the department.\nAn associate hearing examiner shall be appointed by the department of\nenvironmental conservation prior to the date set for commencement of the\npublic hearing. The associate examiner shall attend all hearings as\nscheduled by the presiding examiner and shall assist the presiding\nexaminer in inquiring into and calling for testimony concerning relevant\nand material matters. The conclusions and recommendations of the\nassociate examiner shall be incorporated in the recommended decision of\nthe presiding examiner, unless the associate examiner prefers to submit\na separate report of dissenting or concurring conclusions and\nrecommendations. In the event that the commissioner of environmental\nconservation issues permits pursuant to federally delegated or approved\nauthority under the federal Clean Water Act, the federal Clean Air Act\nand the federal Resource Conservation and Recovery Act, or section\n15-1503 and article nineteen of the environmental conservation law, the\nrecord in the proceeding and the associate examiner's conclusions and\nrecommendations shall, insofar as is consistent with federally delegated\nor approved environmental permitting authority, provide the basis for\nthe decision of the commissioner of environmental conservation whether\nor not to issue such permits.\n (b) The testimony presented at a hearing may be presented in writing.\nOral testimony may be presented at any public statement hearing\nconducted by the board for the taking of unsworn statements. The board\nmay require any state agency to provide expert testimony on specific\nsubjects where its personnel have the requisite expertise and such\ntestimony is considered necessary to the development of an adequate\nrecord. All testimony and information presented by the applicant, any\nstate agency or other party shall be subject to discovery and\ncross-examination. A record shall be made of the hearing and of all\ntestimony taken and the cross-examinations thereon. The rules of\nevidence applicable to proceedings before a court shall not apply. The\npresiding examiner may provide for the consolidation of the\nrepresentation of parties, other than governmental bodies or agencies,\nhaving similar interests. In the case of such a consolidation, the right\nto counsel of its own choosing shall be preserved to each party to the\nproceeding provided that the consolidated group may be required to be\nheard through such reasonable number of counsel as the presiding\nexaminer shall determine. Appropriate regulations shall be issued by the\nboard to provide for prehearing discovery procedures by parties to a\nproceeding, consolidation of the representation of parties, the\nexclusion of irrelevant, repetitive, redundant or immaterial evidence,\nand the review of rulings by presiding examiners.\n 2. A copy of the record including, but not limited to, testimony,\nbriefs and hearing testimony shall be made available by the board within\nthirty days of the close of the evidentiary record for examination by\nthe public, and shall be made available on the department's website.\n 3. The chair of the board may enter into an agreement with an agency\nor department of the United States having concurrent jurisdiction over\nall or part of the location, construction, or operation of a major\nelectric generating facility subject to this article with respect to\nproviding for joint procedures and a joint hearing of common issues on a\ncombined record, provided that such agreement shall not diminish the\nrights accorded to any party under this article.\n 4. The presiding examiner shall allow testimony to be received on\nreasonable and available alternate locations for the proposed facility,\nalternate energy supply sources and demand-reducing measures, provided\nnotice of the intent to submit such testimony shall be given within such\nperiod as the board shall prescribe by regulation, which period shall be\nnot less than thirty nor more than sixty days after the commencement of\nthe hearing. Nevertheless, in its discretion, the board may thereafter\ncause to be considered other reasonable and available locations for the\nproposed facility, alternate energy supply sources and, where\nappropriate, demand-reducing measures.\n 5. Notwithstanding the provisions of subdivision four of this section,\nthe board may make a prompt determination on the sufficiency of the\napplicant's consideration and evaluation of reasonable alternatives to\nits proposed type of major electric generating facility and its proposed\nlocation for that facility, as required pursuant to paragraph (i) of\nsubdivision one of section one hundred sixty-four of this article,\nbefore resolution of other issues pertinent to a final determination on\nthe application; provided, however, that all interested parties have\nreasonable opportunity to question and present evidence in support of or\nagainst the merits of the applicant's consideration and evaluation of\nsuch alternatives, as required pursuant to paragraph (i) of subdivision\none of section one hundred sixty-four of this article, so that the board\nis able to decide, in the first instance, whether the applicant's\nproposal is preferable to alternatives.\n