§ 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.